Mr. Chow of New York v. Ste. Jour Azur S.A., Henri Gault and Christian Millau

Appellants Ste. Jour Azur S.A., Henri Gault and Christian Millau appeal from a judgment entered in the United States District Court for the Southern District of New York after a four day jury trial before Griesa, J. The jury returned a general verdict against appellants, finding that a restaurant review published by Ste. Jour Azur S.A. in the Gault/Millcm Guide to New York had libeled appellee Mr. Chow of New York. The jury awarded $20,000 in compensatory damages and $5 in punitive damages. The district court denied appellants’ motion for a judgment notwithstanding the verdict and entered judgment in favor of appellee.

For the reasons that follow, we vacate the judgment and remand with instructions to dismiss the complaint.

Background

Ste. Jour Azur S.A. (Ste. Jour), a French corporation, is the publisher of a restaurant guide called Gault/Millau Guide to New York (Guide). Henri Gault and Christian Millau are the Guide’s editors and are also shareholders in Ste. Jour. In April 1981, the Guide published, in French, a review of Mr. Chow, a restaurant located in New York City which specializes in Chinese cuisine. The review was written by Yves Bridault, a French journalist who had previously written reviews for the Guide. Bridault wrote his review based on his dining experience at Mr. Chow on December 18, 1980. Because of its importance to the resolution of the issues before us, we reproduce in its entirety an English translation of the review. 1

Mr. Chow 324 E. 54th Street (between 1st and 2nd Avenues) (751-9030) Every day until 11:45

Still another Chinese restaurant, but this one is the latest darling of fashionable society. Until the middle of the night “beautiful people” of all sorts crowd into this huge and very noisy room whose two levels bring back with brio the era of the (Western) 1930s with the customary array of walls lacquered black and beige, indirect lighting and banisters of gilded metal. Their ambition, apparently, is more to be seen in this superb decor than to eat Chinese style. While his London restaurant enjoys an honorable reputation (although it is clearly overrated) the branch which the clever Mr. Chow has just opened in New York is simply astounding from a culinary point of view. In a pinch, you might not care that you have to wait ten minutes to obtain chopsticks instead of forks, that it is impossible to have the basic condiments (soy sauce, hot sauce, etc.) on the table, that the principal concern of the waiters (Italians) is to sell you expensive alcoholic drinks, but the last straw is that the dishes on the menu (very short) have only the slightest relationship to the essential spirit of Chinese cuisine. With their heavy and greasy dough, the dumplings, on our visit, resembled bad Italian ravioli, the steamed meatballs had a disturbingly gamy taste, the sweet and sour pork contained more dough (badly cooked) than meat, and the green peppers which accompanied it remained still frozen on the plate. The chicken with chili was rubbery and the rice, soaking, for some reason, in oil, totally insipid. Had we been specially punished for be *222 ing so pretentious as to drink only tea? Apparently not, for the drinkers of alcohol seemed as badly off as we. At a near-by table, the Peking lacquered duck (although ordered in advance) was made up of only one dish (instead of the three traditional ones), composed of pancakes the size of a saucer and the thickness of a finger. At another table, the egg-rolls had the gauge of andouillette sausages, and the dough the thickness of large tagliatelle. No matter, since the wine kept flowing. We do not know where Mr. Chow recruits his cooks, but he would do well to send them for instruction somewhere in Chinatown. There, at least, they still know the traditions. It is, however, true, that when one sees with what epicurian airs his customers exclaim at canned lychees, one can predict for him a long and prosperous life uptown. About $25, without the drinks.

On February 19, 1982 Mr. Chow of New York, the joint venture that owns Mr. Chow, commenced the instant action. In the complaint, Ste. Jour, Gault and Millau were named as defendants and jurisdiction was based on diversity of citizenship. The complaint alleged that the review contained false and defamatory statements and sought compensatory damages in excess of $10,000 and punitive damages in excess of $250,000.

At trial, appellee’s main witnesses were Dr. Lawrence Joseph, Michael Chow, Sik Chung Lam and Kooh Hong Kim. Dr. Joseph, a professor of French language and literature at Smith College, testified that he had translated the French version of the review into the English version. He also gave testimony concerning the accuracy of his translation of the phrase “the green peppers ... remained still frozen on the plate.” Michael Chow, the founder of Mr. Chow, testified about food preparation at Mr. Chow, the traditional number of dishes in Peking Duck and the damages suffered by Mr. Chow. Sik Chung Lam, head chef at Mr. Chow, testified about the preparation of certain dishes at Mr. Chow and authenticated a video tape recording of the chefs at Mr. Chow preparing sweet and sour pork, green peppers and fried rice. Kooh Hong Kim, flour chef at Mr. Chow, also testified about the preparation of certain dishes at Mr. Chow and gave a live demonstration of his method of making Chinese pancakes.

Appellants called as witnesses Yves Bridault, Raymond Sokolov and Christine Bridault. Mr. Bridault, the reviewer, testified about his approach to writing reviews and the events surrounding his visit to Mr. Chow. Mr. Sokolov, a New York restaurant reviewer, testified about writing restaurant reviews generally, about the reputation of the Guide and about a negative dining experience he had had at Mr. Chow. Christine Bridault testified that she had accompanied her husband to Mr. Chow and that his review was an accurate description of their experience.

The district court submitted six statements to the jury. It instructed the jury that, as a matter of law, these were statements of fact and that if any one of them was false, defamatory and made with malice it would support a finding that the review had libeled Mr. Chow. The six statements submitted were:

(1) “It is impossible to have the basic condiments ... on the table.”

(2) “The sweet and sour pork contained more dough ... than meat.”

(3) “The green peppers ... remained still frozen on the plate.”

(4) The rice was “soaking ... in oil.”

(5) The Peking Duck “was made up of only one dish (instead of the traditional three).”

(6) The pancakes were “the thickness of a finger.”

The jury returned a general verdict, finding that the review was libelous. It awarded $20,000 in compensatory and $5 in punitive damages. Appellants’ motion for judgment notwithstanding the verdict was denied without opinion.

Discussion

On appeal, appellants raise a host of grounds for reversal. Among them are a *223 claim that the statements submitted to the jury are opinion and thus protected speech and a claim that the evidence on the issue of malice is insufficient to support the jury’s findings. Because we find these two claims dispositive of this appeal, we do not consider appellants’ other claims. 2

A. Opinion

Appellants’ initial argument is that the district court erred when it failed to hold that the statements submitted to the jury were opinion and thus privileged. Appellants’ argument stems from the Supreme Court’s decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), where the Court stated:

We begin with the common ground. 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 competition of other ideas. But there is no constitutional value in false statements of fact.

Id. at 339-40, 94 S.Ct. at 3006-07 (footnote omitted). We have recognized that Gertz made crucial the distinction between statements of fact and opinions. See, e.g., Buckley v. Littell, 539 F.2d 882, 893 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 785, 50 L.Ed.2d 776 (1977). And, we have held that generally one cannot be liable simply for expressing an opinion. Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977).

The Supreme Court has also made clear that the constitutional protection afforded statements of opinion is not lost simply because the opinion is expressed through the use of figurative or hyperbolic language. In Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), a newspaper had reported that plaintiff had been characterized as “blackmailing” the city in connection with negotiations to obtain zoning variances. The Court held that the statement could not be read literally. “On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [plaintiff’s] negotiating position extremely unreasonable.” Id. at 14, 90 S.Ct. at 1542. Thus, the Court reversed the libel judgment that had been based on the statement.

The Court reached a similar result in Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974). 3 In Old Dominion, the defendant labor union had called the plaintiff a scab and quoted a statement attributed to Jack London that defined a scab as “a traitor to his God, his country, his family and his class.” Id. at 268, 94 S.Ct. at 2773. The Court found that the use of the word “traitor” was not a representation of fact. Rather, “[s]uch words were obviously used here in a loose, figurative sense____ Expression of such an opinion, even in the *224 most pejorative terms, is protected----” Id. at 284, 94 S.Ct. at 2781. The Court concluded by noting that “London’s ‘definition of a scab’ is merely rhetorical hyperbole, a lusty and imaginative expression of ... contempt.” Id. at 285-86, 94 S.Ct. at 2781-82.

Although it is clear that expressions of opinion are constitutionally protected, the determination of whether a specific statement is one of opinion or fact is difficult. As an initial matter, the inquiry into whether a statement should be viewed as one of fact or one of opinion must be made from the perspective of an “ordinary reader” of the statement. Buckley v. Lit-tell, 539 F.2d at 894. It is also clear that the determination of whether a statement is opinion or rhetorical hyperbole as opposed to a factual representation is a question of law for the court. Davis v. Ross, 754 F.2d 80, 85 (2d Cir.1985); Ollman v. Evans, 750 F.2d 970, 978 (D.C.Cir.1984) (en banc); Lauderback v. American Broadcasting Cos., 741 F.2d 193, 196 n. 6 (8th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 961, 83 L.Ed.2d 967 (1985); Lewis v. Time Inc., 710 F.2d 549, 553 (9th Cir.1983); Rinsley v. Brandt, 700 F.2d 1304, 1309 (10th Cir.1983); Church of Scientology v. Siegelman, 475 F.Supp. 950, 955 (S.D.N.Y. 1979); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 381, 366 N.E.2d 1299, 1306, 397 N.Y.S.2d 943, 950, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). Beyond this point, however, the law in this area is murky.

We have had occasion to examine this area in several recent decisions. In Buckley v. Littell, our first post-Uerte decision, the district court had found that the book Wild Tongues by Franklin Littell libeled William F. • Buckley, Jr. in three respects:

[FJirst, by labeling Buckley as a “fellow traveler” of “fascism” as those terms are defined in Wild Tongues ...; second, by saying that he acts as a “deceiver” and uses his journalistic position to spread materials from “openly fascist journals” under the guise of responsible conservatism ...; and third, by accusing Buckley of engaging in the same kind of libelous journalism as Westbrook Pegler practiced against Quentin Reynolds.

539 F.2d at 887 (citations omitted). On appeal, we determined the first two statements to be protected opinion.

With respect to the statement that Buckley is a fellow traveler of fascism, we viewed the concept conveyed to be “loose,” “varying” and “insusceptible to proof of truth or falsity.” Id. at 894. Thus, when viewed in the context in which it was made, the statement was “within the realm of protected opinion and idea under Gertz.” Id. We also held that the statement that Buckley printed “ ‘news items’ and interpretations picked up from the openly fascist journals” was “as much a matter of opinion or idea as is the question what constitutes ‘fascism’ or the ‘radical right.’ ” Id. at 895. Thus, the statement could not support a libel action.

Turning to the statement that “[l]ike Westbrook Pegler, who lied day after day in his column about Quentin Reynolds and goaded him into a lawsuit, Buckley could be taken to court by any one of several people who had enough money to hire competent legal counsel and nothing else to do,” we determined that this statement was an assertion of fact; specifically, that Buckley had lied about and libeled several people. Id. We noted that “Littell must have known that when he directly compared Buckley’s statements with those of a proven libeler, the clear meaning to be inferred was that he considered Buckley to be a libeler like Pegler.” Id. at 896. Thus, unlike “the loosely definable, variously interpretable statements” referred to above, the statement that Buckley was engaging in libelous journalism was a factual assertion that, if false and made with actual malice, could support a libel action. Id. at 895-96.

We next examined the constitutional distinction between statements of opinion and statements of fact in Hotchner v. Castillo-Puche. In Hotchner, Doubleday & Company was found liable for statements made about A.E. Hotchner in a book published by *225 Doubleday entitled Hemingway in Spain. The statements described “Hotchner as a manipulator, a ‘toady/ a ‘hypocrite’ who exhibited ‘two-faced behavior’ toward Hemingway’s true friends and ‘put up a very good front as [Hemingway’s] mild-mannered, obedient servant/ an ‘exploiter of [Hemingway’s] reputation’ who was ‘never open and above board.’ ” 551 F.2d at 912.

In analyzing Doubleday’s liability, we recognized that “[a]n assertion that cannot be proved false cannot be held libellous. A writer cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be.” Id. at 913. But, we also recognized that there is an exception to this general rule. We stated:

Liability for libel may attach, however, when a negative characterization of a person is coupled with a clear but false implication that the author is privy to facts about the person that are unknown to the general reader. If an author represents that he has private, first-hand knowledge which substantiates the opinions he expresses, the expression of opinion becomes as damaging as an assertion of fact.

Id. Because we found no evidence to indicate that Doubleday had reason to suspect that the author’s opinion of Hotchner were based on privately known, untrue facts we reversed the judgment against Doubleday. Id. at 914.

We again examined the distinction between opinion and fact in Edwards v. National Audubon Society, 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977). In Edwards, the district court had found a portion of a letter written by Roland Clements, an officer and employee of the Audubon Society, to the New York Times libelous per se. Included in the letter was the following statement: “Nor do we like to call people liars, but those who have most consistently misused our data — [list of individuals, including plaintiffs] — certainly have had time to learn from our patient explanations of their misinterpretations of our data over the several years of the DDT controversy.” Id. at 119. Looking to the context in which the epithet “liar” was used, we held that it “merely expressed the opinion that anyone who persisted in misusing Audubon statistics after being forewarned could not be intellectually honest. Since the basis for this opinion was fully set forth, the communication of Clements’ views cannot be libelous, however mistaken they might be.” Id. at 121. 4

More recently, in Cianci v. New Times Publishing Co., 639 F.2d 54 (2d Cir.1980), we held that a statement alleging criminal conduct fell outside of the constitutional protection afforded opinion. At issue in Cianci was an article that charged Vincent Cianci, Jr., then seeking reelection as may- or of Providence, Rhode Island, with raping a woman at gunpoint and subsequently paying her $3,000 to drop rape charges. We determined that the charges made against Cianci were leveled in a literal sense and were not the use of undefinable language or rhetorical hyperbole, stating that to call the charges “merely an expression of ‘opinion’ would be to indulge in Humpty-Dumpty’s use of language.” Id. at 64. Thus, we held that direct accusations of criminal misconduct, even when the underlying facts are disclosed, are not protected as opinion. Id. at 65. Accord Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d at 381-82, 366 N.E.2d at 1307, 397 N.Y.S.2d at 951.

Although none of these four decisions can be said to establish an actual test for determining if a statement is protected *226 opinion or unprotected fact, they do provide guidance. Thus, it is clear that we must examine both the context in which the statements are made and the circumstances surrounding the statements. See Edwards, 556 F.2d at 121; Buckley, 589 F.2d at 893-94. We must also look at the language itself to determine if it is used in a precise, literal manner or in a loose, figurative or hyperbolic sense. Cianci, 639 F.2d at 64; Buckley, 539 F.2d at 893-94. Related to this inquiry, we must examine the statements to determine if they are objectively capable of being proved true or false. Hotchner, 551 F.2d at 913; Buckley, 539 F.2d at 894. Finally, if the above analysis indicates that the statement is opinion, we must determine if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. Davis, at 85-86; Cianci, 639 F.2d at 64-65; Hotchner, 551 F.2d at 913. 5

In the-recent en banc decision of the D.C. Circuit in Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984), Judge Starr, writing for the court, developed a similar guide to aid in the determination of whether the average reader would view a statement as one of fact or one of opinion. Judge Starr listed four factors that should be considered.

First, a court should analyze “the common usage or meaning of the specific language” used in the challenged statement. Id. at 979. Such an analysis is helpful because the average reader is “considerably less likely to infer facts from an indefinite or ambiguous statement than one with a commonly understood meaning.” Id. Second, a court should consider whether the statement is “objectively capable of proof or disproof.” Id. at 981. This analysis is important because “[Ijacking a clear method of verification ... the trier of fact may improperly tend to render a decision based upon approval or disapproval of the contents of the statement, its author, or its subject.” Id. Third, a court should examine the immediate context in which the statement is made. Id. at 982. “The language of the entire column may signal that a specific statement which, standing alone, would appear to be factual is in actuality a statement of opinion.” Id. Finally, the court should examine “the broader social context into which the statement fits,” id. at 983, and “the different social conventions or customs inherent in different types of writing.” Id. at 984. This inquiry recognizes that “[s]ome types of writing or speech by custom or convention signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.” Id. at 983.

Turning to the instant case, we believe that application of the guidelines culled from our previous opinions and Judge Starr’s opinion in Oilman mandates a holding that five of the six statements submitted to the jury were opinion rather than fact. Only the statement that Mr. Chow served Peking Duck in one dish rath *227 er than the traditional three can be considered factual.

1. Context

As indicated earlier, both the immediate and broader context in which a statement occurs can indicate that what appears to be a statement of fact is in reality protected opinion. The opinion of the Massachusetts Supreme Court in Myers v. Boston Magazine Co., 380 Mass. 336, 403 N.E.2d 376 (1980), is a clear example of such a situation. In Myers, a sports announcer sued over a statement that appeared in a magazine section entitled “Best & Worst: SPORTS.” The section named Myers as the worst sports announcer, stating that he was “[t]he only newscaster in town who is enrolled in a course for remedial speaking.” Id. at 338, 403 N.E.2d at 377. Looking to the entire context, the court concluded that it was clear that the statement was opinion. It stated:

The “Best and Worst” format invites the reader to test his opinions against the author’s. Some of the recipients of the “awards” may have been so interested as to take them seriously, but the reasonable reader could only approach the article with a measure of scepticism and an expectation of amusement. Neither of these predispositions is conducive to misunderstanding a joke as a statement of fact.

Id. at 342, 403 N.E.2d at 380.

Similarly, in Mashburn v. Collin, 355 So.2d 879 (La.1977), the Supreme Court of Louisiana found the context in which critical remarks about a restaurant were made to indicate that the statements were protected opinion. Among the statements alleged to be defamatory were the following: “the piece de resistance that turns [the stuffed eggplant] into a gourmet dish is to empty a shaker full (more or less) of paprika on top of it;” the sauce on the duck was “yellow death on duck;” and the poached trout should be named “trout a la green plague.” Id. at 888. The court stated that taken by themselves these statements “would appear to be allegations of fact.” Id. at 889. However, it held that “[i]n the final analysis, when we read the entire piece of criticism to determine how ordinary reasonable persons hearing or reading the statements would be likely to understand them, we find that they would be regarded as expressions of the writer’s opinion, and not as statements of fact.” Id. 6

Likewise, the court in Oilman relied on the context in which the disputed statements were made to support its conclusion that the statements would be recognized as opinion. The statement at issue appeared in a column on the Op-Ed page of a newspaper. The court stated that Op-Ed pages are the well recognized home of opinion and comment and thus the average reader will be influenced to read statements located there as opinion. Oilman, 750 F.2d at 986-87.

Restaurant reviews are also the well recognized home of opinion and comment. Indeed, “[b]y its very nature, an article commenting upon the quality of a restaurant or its food, like a review of a play or movie, constitutes the opinion of the reviewer.” Greer v. Columbus Monthly Publishing Corp., 4 Ohio App.3d 235, 238, 448 N.E.2d 157, 161 (1982). The natural function of the review is to convey the critic’s opinion of the restaurant reviewed: the food, the service, the decor, the atmosphere, and so forth. Such matters are to a large extent controlled by personal tastes. The average reader approaches a review with the knowl *228 edge that it contains only one person’s views of the establishment. And importantly, “[a]s is essential in aesthetic criticism ... the object of the judgment is available to the critic’s audience.” Myers, 380 Mass. at 341, 403 N.E.2d at 379. Appellee does not cite a single case that has found a restaurant review libelous. Appellants and amici, on the other hand, cite numerous decisions that have refused to do so. 7 Although the rationale underlying each of these decisions is different, they all recognize to some extent that reviews, although they may be unkind, are not normally a breeding ground for successful libel actions.

2. Language Used

Recognizing that reviews are normally conveyors of opinion, we turn to the language in the review before us to see if it makes factual representations. Examining the language in the review itself, we cannot say that it would cause the average reader to believe that the writer in five of the six contested remarks had gone beyond statements of opinion. It is clear that the writer’s statements would be protected if he had merely said: I found it difficult to get the basic seasonings on my table. The sweet and sour pork was too doughy for my tastes. The green peppers served with the pork were not hot enough. The fried rice was too oily. And the pancakes served with the Peking Duck were too thick. The question thus becomes, did the writer’s use of metaphors and hyperbole turn his comments into factual statements. We believe that it did not.

The protection afforded exaggerated or hyperbolic language stems from the Supreme Court’s Greenbelt decision where the Court held that non-actionable statements do not become actionable merely because they are expressed in the form of rhetorical hyperbole. As the Fourth Circuit has said: “To deny to the press the right to use hyperbole ... would condemn the press to an arid, desiccated recital of bare facts.” Time, Inc. v. Johnston, 448 F.2d 378, 384 (4th Cir.1971).

The above principle has been applied to reviews. For example, in Mashbum, the court recognized that the use of mock praise or hyperbole did not prevent the average reader from viewing the statements involved as expressions of opinion. For example, with respect to the statement about the eggplant, the court stated: “The tenor and context of this remark unmistakably indicate that it is an example of hyperbole which meant merely that in the critic’s opinion a large amount of paprika unnecessarily had been added to the dish.” 355 So.2d at 889.

The Myers Court expressed similar sentiments. In Myers, the plaintiff argued that the statement was not protected hyperbole or mere rhetorical excess because it lacked popular figurative meaning. The court rejected this argument, stating:

[T]he mere presence of a different kind of figurative language from that found in other cases does not free this case from the claims of the distinction between fact and opinion. If the device here is lacking in art, it is no less figurative than a vague epithet or a soaring metaphor. And it deserves the same protection under the First Amendment.

380 Mass. at 344, 403 N.E.2d at 380-81 (footnote omitted). 8 <