In this аction for libel, plaintiff, John S. Riley, appeals Superior Court’s grant of defendants’, Gannett Company, Inc., owner of The Morning News, and writer Ralph S. Moyed, motion for summary judgment. We affirm.
The alleged libel was contained in Moyed’s column published in Wilmington, Delaware in the Morning News on November 18, 1983. In the column, Mоyed accused certain New Castle County politicians of allowing the zoning process in the County to degenerate into private battles between commercial interests and criticized several politicians for their ties with special interests. Moyed stated that John Riley, then a member of the New Castle County Council, and hence a public figure, had “enjoyed a golf outing with developer Albert Marta,” and afterwards “seemed more understanding of Marta’s plan for turning the Brandywine Country Club into a regional shopping center — and Concord Pike into a parking lot.” Later in the column, Moyed stated that he did not “think that anyone could buy ... John Riley for 18 holes of golf” and that “[he] doubt[ed] that many citizens would want to spend half a day playing golf with some minor politicians. ...”
The Superior Court granted summary judgment in favor of Moyed and Gannеtt. 1 The Court found that, aside from the statement that Riley had enjoyed a golf outing with Marta, the references to Riley were protected expressions of opinion. The Court then ruled that the golf outing statement, though false in its implication of a recent outing, was incapable of a defamatory meaning and, in any event, the statement was substantially true. Relying on section 566 of the Restatement (Second) of Torts, the Court concluded that opinions based on nondefamatory facts do not give rise to an action for libel.
I
Before a public figure such as Riley can recover from a news publisher in a libel action, he must show by clear and convincing evidence that the defendant published defamatory falsehoods with actual malice.
Bose Corp. v. Consumers Union,
466 U.S.
*251
485,
However, before a Court reaches the question оf actual malice, it must determine two questions of law:
first,
whether alleged defamatory statements are expressions of fact or protected expressions of opinion; and
two,
whether the challenged statements are capable of a defamatory meaning.
2
If a court determines that the statements are protected expressions of opinion or that they are not capable of a defamatory meaning, it will not reach the actual malice issue or need to inquire into the defendant’s state of mind.
Hutchinson v. Proxmire,
A.
Pure expressions of opinion are protected under the First Amendment.
Gertz v. Robert Welch, Inc.,
Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the compеtition of other ideas. But there is no constitutional value in false statements of facts.
Id.
at 339-40,
A pure opinion is one that is based on stated facts or facts that are known to the parties or assumed by them to exist.
Dairy Stores, Inc. v. Sentinel Publishing Co.,
B.
In analyzing whether a particular statement is an expression of fact or opinion and, if opinion, whether pure or mixed, we must consider it from the perspective of an ordinary reader of the statement.
Mr. Chow of New York v. Ste. Jour Azur S.A.,
2 Cir.,
In
Oilman, supra,
the Court developed a four-part test to determine whether the average reader would view a statement as one of fact or one of opiniоn.
C.
Applying the Oilman test to the facts of this case, we conclude that, other than the statement that Riley had played golf with Marta, Moyed’s statements about Riley are constitutionally protected expressions of pure opinion.
First, аs to the meaning of the specific language used in the challenged statements, Riley asserts that it implies that he was guilty of profiteering and receiving unlawful gratuities, both of which are crimes under the Delaware Code. See 11 Del.C. §§ 1212(3) and 1206. 4 We disagree that an ordinary reader would draw such an infеrence from the statements. There is no implication in the column that Riley received any benefit, pecuniary or otherwise, which is a necessary element of both profiteering and the receipt of unlawful gratuities. Rather, the common meaning of the challengеd language is that, in Moyed’s opinion, Riley and a number of other politicians spent more time listening to developers than to their constituents.
“A statement regarding (1) a public official's business, social, or political affiliations, and (2) how those affiliations seem reflectеd in decision-making hardly constitutes a libelous charge of bribery and corruption.”
Okun v. Superior Court of Los Angeles County,
Second,
it is also apparent that the challenged statements, other than the golf outing statement, cannot be objectively verified. An ordinary reader trying to determine whether after a golf game with Marta, Riley “seemed more understanding” of Marta’s plan, would hаve an impossible task of objectively verifying its truth or falsity and would be left with nothing but his own subjective impression of how Riley “seemed.” Therefore, a reader cannot rationally view an unverifiable statement as conveying actual facts.
Ollman,
Third,
considering the full context of the statеments, it is reasonable to conclude that average readers of the
Morning News
are familiar with Moyed’s disparaging style of writing. Moyed has been a full-time writer-commentator with the
Morning News
since 1978. He is a well-known professional provocateur who relies on heavy sarcasm to create controversy or convey a message. Readers expect that commentators such as he will make strong statements, sometimes phrased in a polemical manner that would hardly be considered balanced or fair elsewhere as a news reрorting column.
Id.
at 986. “[I]t is [also] well understood that editorial writers and commentators frequently resort to the type of caustic bombast traditionally used in editorial writing to stimulate public reaction.”
Id.
at 984. Furthermore, the constitutional protection afforded statements of oрinion is not lost simply because the opinion is expressed through the use of figurative or hyperbolic language.
Mr. Chow,
Fourth, considering the broader social context in which the column appeared, i.e., that it addressed a current topic of ongoing public debate over a perceived excessive amount of development in the Concord Pike area of the County, language which might otherwise be considered statements of fact have here assumed the character of statements of opinion. Okun, supra at 1374. 5
Therefore, based upon the foregoing analysis, we find that other than the statement that Riley had played golf, with Marta, Moyеd’s statements about Riley are constitutionally protected expressions of pure opinion because an ordinary reader would not infer the existence of undisclosed facts. ,
II
We turn to the second question of law, namely, whether the factual statement that Rilеy had played golf with Marta was a defamatory statement. Only if the Court determines, in the first instance, that the words are capable of a defamatory meaning may a jury consider whether such meaning is to be ascribed to the words.
Slawik v. News-Journal Co.,
Del.Supr.,
Assuming that the golf outing statement was a false statement,
6
that fact alone will not support a cause of action for libel. The statement must also be defamatory.
Restatement (Second) of Torts,
§ 558(a). Statements which are critical of a plaintiff and disparage his performance but do not lower him in the estimation of the community or deter third persons from associating or dealing with him, nor injure his reputation in the popular sense, are not defamatory.
Andres v. Williams,
Del. Supr.,
We find, as a matter of law, that there is nothing defamatory in- Moyed’s statement that Riley had played a game of golf with Marta, even though Riley was a County Council member and Marta was a developer. “It is never libelous to accuse one of doing a legal act although strong epithets аre used in describing the act.”
Golden North Airways, Inc. v. Tanana Publishing Co.,
9th Cir.,
A.
However, even if we construed the golf outing statement to mean that Riley had committed an unlawful act, defendants would not be liable because Moyed’s statement was substantially true. Under Delaware law there is no liability for defamation when a statement is determined to be substantially true.
Gannett Co., Inc. v. Re,
Del.Supr.,
In this case, the gist or sting of the entire column is that Riley engaged in social activities with developers in which their projects were discussed. Riley concedes that he met with W.F. Hansen, President of Brandywine Raceway, at lunch to “discuss the future of the racetrack.” He also had breakfast with and listened to a presentation by George Jarvis, a lobbyist from Delmarva Power and Light Company, concerning rezoning for a power plant. The effect upon the reader had either of these precisely true incidents been reported would have been exactly the same as the report of the golf game. Therefore, substantial truth is a further defense for holding that Moyed and Gannett are not liable for defamation.
B.
Finally, we must reject Riley’s assertion that opinions based on statements that are falsе are actionable. To support a cause of action for libel, the underlying facts must be false as well as defamatory. When an opinion is accompanied by its underlying
nondefamatory
factual basis, a defamation action premised upon that opinion will fail no matter hоw unjustified, unreasonable or derogatory the opinion might be.
Kotlikoff,
* * *
AFFIRMED.
Notes
. William Duffy, retired Justice of this Court, sitting by designation pursuant to Art. IV § 38 of the Delaware Constitution, authored the opinion of the Superior Court.
. Because these are questions of law to be determined by the court, the summary judgment procedure is often applied in this arеa of the law to avoid unnecessary legal fees and discourage frivolous suits.
Kotlikoff v. The Community News,
. See also Restatement (Second) of Torts § 566, comment c, stating that a pure expression of opinion "is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be.”
. 11 Del.C. § 1212(3) provides:
A public servаnt is guilty of profiteering when, in contemplation of official action by himself or by a governmental entity with which he is associated, or in reliance on information to which he has access in his official capacity and which has not been made public:
******
cs) He aids another person to do any of the foregoing acts, intending to gain thereby a personal benefit.
11 Del.C. § 1206 provides:
A public servant is guilty of receiving unlawful gratuities when he solicits, accepts or agrees to accept any personal benefit for engaging [in] official conduct which he is required or authorized to perform, and for which he is not entitled to any special or additional compensation.
. In Okun, supra, the Supreme Court of California stated:
"[W]here potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their position by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion."
. Riley had played golf with Marta in 1977, but not recently as the statement implied.