Piscatelli v Van Smith, 424 MD 294, 35 A. 3d 1140 (2012)

Tort Law for Paralegals Chapter 11 Defamation.

Nicholas A. PISCATELLI v. Van SMITH, et al. that his reputation had been injured thereby and he Peter A. Prevas (Prevas & Prevas, Baltimore, had been portrayed in a false light. Piscatelli sued MD), on brief, for petitioner. Peter F. Axelrad Respondents in the Circuit Court for Baltimore (Michael S. Steadman, Jr. of Council, Baradel, City for damages based on defamation and false Kosmerl & Nolan, P.A., Annapolis, MD), on brief, light claims. The Circuit Court g for respondents. Respondents' motion for summary judgment which judgment the Court of Special Appeals affirmed subsequently upon Piscatelli's appeal. HARRELL Having granted Piscatelli's petition for writ of 1144*1144 Peter A. Prevas (Prevas & Prevas, certiorari, we shall conclude ultimately that the Baltimore, MD), on brief, for petitioner. Peter F. 1145 manner in which Respondent* 1145 published those Axelrad (Michael S. Steadman, Jr. of Council, statements placed them within the protective Baradel, Kosmerl & Nolan, P.A., Annapolis, MD), embrace of the fair reporting and fair comment on brief, for respondents. privileges, and consequently, Piscatelli's claims were not actionable. Therefore, we affirm as a Argued before BELL, C.J., matter of law. HARRELL, BATTAGLIA, GREENE, ADKINS, BARBARA, JOHN C. I. FACTS AND PROCEDURAL ELDRIDGE (Retired, Specially HISTORY Assigned), JJ. in 2006 and 2007, Smith authored, and the City HARRELL, J. Paper published, two articles (one in each year) revisiting the 2003 murders of Convertino and 302 *302 American poet, author, and essayist William Wisniewski and the trial of Anthony Jerome Carlos Williams wrote, "It is not what you say that Miller (Miller) for those crimes. Respondents matters but the manner in which you say it. There published the first article, entitled "Late lies the secret of the ages." Selected Essays, Discovery," on 6 December 2006, and published preface at i (1954). Respondents in the present the second, entitled "The Lonely Killer," on 20 case, CEGW, Inc., owner of the Baltimore-based June 2007. Both articles more than hinted that City Paper, and Van Smith (Smith), a reporter, Piscatelli may have been involved in the murders, published in 2006-07 two articles in the City 303 despite .303 that he was not charged criminally in Paper that reported on the 2003 double murder in connection with the crimes. Baltimore of Jason Convertino (Convertino) and casetext Piscatelli v. Van Smith 424 Md. 294 (Md. 2012) Convertino and Wisniewski were murdered on or responded that he did not. Piscatelli testified also about 11 April 2003, in the Fells Point that: Convertino had been planning to leave neighborhood of Baltimore. Prior to his death, Redwood Trust for a similar position with a rival Convertino worked for Redwood Trust, a nightclub; Convertino planned to switch Sean "P. Baltimore nightclub located in a former bank Diddy" Combs, a popular musician at that time, building (hence the name of the nightclub), rom performing at Redwood Trust to the rival managing and procuring music acts for the club. nightclub; and, Piscatelli suspected Convertino of Wisniewski worked also for Redwood Trust, as taking larger commissions than he was due during well as for a nightlife promotions company that his employment at Redwood Trust. held events at Redwood Trust occasionally. Piscatelli owned Redwood Trust. Respondents reported the statement from the supplemental discovery memorandum in both Two years after the murders, a police investigation articles and Piscatelli's Miller trial testimony in the concluded that Miller committed the crimes. The 20 June 2007 article. Respondents included in the State charged him on 17 February 2006. Miller articles additional relevant comments that may be was tried and found guilty in the Circuit Court for distilled into three themes: the double murder Baltimore City of two counts of second degree 1146remains "mysterious," despite* 1146 M murder and sentenced to two consecutive 30-year conviction; Piscatelli may have had a motive to prison terms. kill Convertino; and, Morgan believed Piscatelli may be involved in her son's murder. Insofar as Piscatelli was concerned, Respondents highlighted in their articles two particular aspects Based on these articles, Piscatelli filed a complaint of the Miller trial. First, on or about 27 October in the Circuit Court on 5 December 2007, 2006, the State's Attorney provided to Miller's advancing counts of defamation and false light defense counsel a memorandum containing against Respondents, Smith and CEGW, Inc. supplemental discovery responses. The Respondents retorted with a motion for summary memorandum contained the following summary of udgment, arguing, as they do before us, that a conversation Convertino's mother, Pam Morgan Piscatelli failed to establish that Respondents' (Morgan), had with police detectives investigating statements were false and the fair reporting and the murders: air comment privileges protected any allegedly defamatory material. Piscatelli, in his opposition Pam Morgan has stated that an unknown man approached her at a benefit in Binghamton, New to summary judgment in the trial court, contended York, held for her son's child shortly after his that accusations of his involvement in the murders murder. The man advised her that Nick Piscatelli were false and Respondents abused their fair was behind her son's murder, he covered his tracks reporting and fair comment privileges. On 17 and hired someone to kill him. This memorandum February 2009, the trial judge issued a written became part of the criminal case file and the order stating, without further explication, that public record, although it was not offered in there was no dispute of material fact and evidence at Miller's trial. Respondents were entitled to judgment as a matter of law. The second feature of the newspaper reporting Piscatelli filed timely an appeal to the Court of relevant to Piscatelli was that Miller's defense counsel and the prosecutor examined Piscatelli as Special Appeals, maintaining that the Circuit awitness during Miller's trial. The prosecutor Court granted improperly summary judgment asked Piscatelli bluntly if he had anything to do because Respondents abused their fair reporting 304 +304 with the murder of Convertino; Piscatelli and fair comment privileges. The panel of the casetext 2 Piscatelli v. Van Smith 424 Md. 294 (Md. 2012) Court of Special Appeals concluded ultimately, in 262 Md. 285, 292, 277 A.2d 573, 576 (1971) a reported opinion, that the trial judge granted (citing Brown v. Suburban Cadillac, 260 Md. 251, 305 properly summary judgment*305 be 255, 272 A.2d 42, 44 (1971)). Respondents' statements were privileged and not defamatory. Piscatelli v. Smith, 197 Md.App. 23, III. DISCUSSION 41-42, 12 A.3d 164, 175 (2011). Piscatelli advanced two counts in his complaint: defamation and invasion of privacy (false light). Piscatelli filed timely a petition for writ of 306 We shall address *306 in greatest detail Piscatelli's certiorari with this Court, which we granted. 419 defamation claim, but need not address the false Md. 646, 20 A.3d 115 (2011). He presents two light claim separately. An allegation of false light questions for our consideration: whether the Circuit Court granted improperly summary 1147must meet the same legal standards *1147 as an allegation of defamation. Harnish v. Herald-Mail judgment regarding the fair reporting privilege Co., 264 Md. 326, 337, 286 A.2d 146, 152-53 because Respondents abused that privilege, and whether the fair comment privilege applies to (1972); Phillips v. Wash. Magazine, Inc., 58 Md.App. 30, 36 n. 1, 472 A.2d 98, 101 n. 1 derogatory opinions based on purportedly (1984). We shall conclude ultimately that defamatory statements. Respondents did not defame Piscatelli actually, rendering superfluous a separate analysis of his false light claim. Piscatelli phrased the questions presented as "Did the Court of Special Appeals err in In order to plead properly a defamation claim deciding that summary judgment was under Maryland law, a plaintiff must allege properly granted based upon the fair specific facts establishing four elements to the reporting privilege?" and "Did the Court of satisfaction of the fact-finder: " "(1) that the Special Appeals err in deciding that defendant made a defamatory statement to a third summary judgment was properly granted person, (2) that the statement was false, (3) that based upon the fair comment and opinion the defendant was legally at fault in making the privileges?" statement, and (4) that the plaintiff thereby II. STANDARD OF REVIEW suffered harm.' " Indep. Newspapers, Inc. v. Brodie, 407 Md. 415, 441, 966 A.2d 432, 448 The standard of appellate review of the grant of summary judgment is whether the trial court was (2009) (quoting Offen v. Brenner, 402 Md. 191 198, 935 A.2d 719, 723-24 (2007)). For purposes legally correct, because the trial court decides ssues of law, and not disputes of fact, when of the first element, a "defamatory statement" is considering a motion for summary judgment. one that tends to expose a person to " public scorn, hatred, contempt, or ridicule,' " which, as a Rosenberg v. Helinski, 328 Ma. 664, 674, 616 A.2d 866, 871 (1992) (citing, among other cases, consequence, discourages " 'others in the Heat & Power v. Air Prods., 320 Md. 584, 591- community from having a good opinion of, or associating with, that person.' " Brodie, 407 Md. 92, 578 A.2d 1202, 1206 (1990)). A trial court at 441, 966 A.2d at 448 (quoting Offen, 402 Md. may grant summary judgment if there is no genuine dispute as to any material fact and the at 198-99, 935 A.2d at 724). Under the second element, a "false" statement is one "that is not moving party is entitled to judgment as a matter of substantially correct." Batson v. Shiffett, 325 Md. law. Id. (citing Md. Rule 2-501(e)). For purposes 684, 726, 602 A.2d 1191, 1213 (1992). The of the analysis, reasonable factual inferences from plaintiff carries the burden to prove falsity. Id. To the well-pled factual allegations are assumed in favor of the non-moving party. Orrison v. Vance, determine whether a publication is defamatory, a question of law for the court, the publication must casetextPiscatelli v. Van Smith 424 Md. 294 (Md. 2012) be read as a whole: " '[Words have different 1148A.2d 612, 622 (1999) (citing *1148 Simon v. meanings depending on the context in which they Robinson, 221 Md. 200, 205, 154 A.2d 911, 914 are used and a meaning not warranted by the (1959)). Once a prima facie case for a privilege is whole publication should not be imputed.' " adduced, the plaintiff must produce facts, Chesapeake Publ'g Corp. v. Williams, 339 Md. admissible in evidence, demonstrating the 285, 295, 661 A.2d 1169, 1174 (1995) (quoting defendant abused the privilege, in order to Batson, 325 Md. at 723, 602 A.2d at 1210). generate a triable issue for the fact-finder. Where a defendant asserts a privilege in a motion Hanrahan, 269 Md. at 29, 305 A.2d at 156; Kapiloff v. Dunn, 27 Md.App. 514, 530-32, 343 for summary judgment in a defamation action, we 307 consider first *307 whether the asserted privilege A.2d 251, 262 (1975). To demonstrate abuse of applies. See Rosenberg v. Helinski, 328 Md. 664, the privilege, the plaintiff must demonstrate that the defendant made his or her statements with 675-76, 616 A.2d 866, 871-72 (1992); Orrison v. Vance, 262 Md. 285, 292-93, 277 A.2d 573, 576 malice, defined as "a person's actual knowledge (1971); Peroutka v. Streng, 116 Md.App. 301, 312, 308 that his [or her] statement is false, *308 coupled 695 A.2d 1287, 1293 (1997). Thus, we assume with his [or her] intent to deceive another by that the plaintiff's allegations of defamation are means of that statement." Ellerin v. Fairfax Sav. true for purposes of evaluating whether the F.S.B., 337 Md. 216, 240, 652 A.2d 1117, 1129 privilege exists. Rosenberg, 328 Md. at 675-76, (1995); see also Le Marc's Mgmt. Corp. v. 616 A.2d at 871-72; Orrison, 262 Md. at 292-93, Valentin, 349 Md. 645, 651-56, 709 A.2d 1222, 277 A.2d at 576; Peroutka, 116 Md.App. at 312, 1225-28 (1998) (adopting the Ellerin malice 695 A.2d at 1293. standard for awarding punitive damages and proving abuse of defamation privileges). In some circumstances, an absolute or qualified privilege defeats a claim of defamation, if the All relevant circumstances are admissible when defendant did not abuse that privilege. Hanrahan determining whether a defendant abused a v. Kelly, 269 Md. 21, 29-30, 305 A.2d 151, 156 common law defamation privilege, " including the (1973) (citing Wetherby v. Retail Credit Co., 235 defendant's reasonable belief in the truth of his Md. 237, 241, 201 A.2d 344, 347 (1964)). " 'An statements, the excessive nature of the language absolute privilege is distinguished from a qualified used, whether the disclosures were unsolicited, privilege in that the former provides immunity and whether the communication was made in a regardless of the purpose or motive of the proper manner and only to proper parties." defendant, or the reasonableness of his conduct, Orrison, 262 Md. at 295, 277 A.2d at 578 (internal while the latter is conditioned upon the absence of citations omitted); see also Woodruff, 125 malice and is forfeited if it is abused.' " Smith v. Md.App. at 402-03, 725 A.2d at 623. While Danielczyk, 400 Md. 98, 117, 928 A.2d 795, 806 malice is usually a question for the fact-finder, it (2007) (quoting Di Blasio v. Kolodner, 233 Md. need not be submitted to the fact-finder when the 512, 522, 197 A.2d 245, 250 (1964)). plaintiff fails to allege or prove facts that would support a finding of malice. Chesapeake Publ'g Here, Respondents contended that two conditional Corp., 339 Md. at 302, 661 A.2d at 1177; Orrison, privileges insulated their allegedly defamatory 262 Md. at 294, 277 A.2d at 577; Woodruff, 125 remarks: the fair reporting and fair comment Md.App. at 402, 725 A.2d at 622 (citing Simon, privileges. Whether a conditional privilege exists 221 Md. at 205-06, 154 A.2d at 914-915) ("Once is a question of law, and the defendant bears the a judge determines that a privilege exists, the burden of proof to establish the privilege question of whether the privilege was abused is for Woodruff v. Trepel, 125 Md.App. 381, 402, 725 the jury, subject to the censorial power of the casetext Piscatelli v. Van Smith 424 Md. 294 (Md. 2012) judge where there is no evidence of malice, and production necessary to create an issue for a fact- the burden on the issue is on the plaintiff."). *309 1149*1149 finder of whether abuse of the privilege A. The Fair Reporting Privilege occurred. Neither Piscatelli nor Respondents engaged The fair reporting privilege is a qualified privilege appeal the question of whether to report legal and official proceedings that are, in Piscatelli, because of his conduct relating and of themselves defamatory, so long as the to the Miller trial, is a private figure on account is "fair and substantially accurate." public figure. Ordinarily, whether the Chesapeake Publ'g Corp. v. Williams, 339 Md. plaintiff is a public or p dictates whether a plaintiff must prove his 285, 296, 661 A.2d 1169, 1174 (1995) (citing or her claim on a negligence or malice Rosenberg v. Helinski, 328 Md. 664, 676-77, 616 basis. Compare Chesapeake Publ'g Corp. A.2d 866, 872 (1992)). The privilege arises from v. Williams, 339 Md. 285, 297, 661 A.2d he public's interest in having access to 1169, 1175 (1995) (public figure) with information about official proceedings and public Hearst Corp. v. Hughes, 297 Md. 112, 123, meetings. Restatement (Second) of Torts $ 611 166 A.2d 486, 491-92 (1983) (private emt. a (1977); see also Rosenberg, 328 Md. at figure). We said in Jacron Sales Co. v. 679-80, 616 A.2d at 873-74. A defendant abuses Sindorf, 276 Md. 580, 600, 350 A.2d 688, his or her fair reporting privilege, not upon a 700 (1976), however, "that in a case where showing of actual malice (as with other common a common law conditional privilege is law conditional privileges), found to exist, the negligence standard of Gertz is logically subsumed in the higher 310 ' but when the defendant's account " "fails the *310 standard for proving malice .. and test of fairness and accuracy.' " Chesapeake therefore becomes irrelevant to the trial of Publ'g Corp., 339 Md. at 297, 661 A.2d at 1175 the case. Were the plaintiff who is (citing Rosenberg, 328 Md. at 677-78, 616 A.2d confronted with a conditional privilege at 872-73). Fairness and accuracy is satisfied incapable of proving the malice necessary when the reports are substantially correct, to overcome that hurdle, it would be of no impartial, coherent, and bona fide. Batson v. consequence that he might have met the lesser standard of negligence." Shiflett, 325 Md. 684, 727, 602 A.2d 1191, 1213 (1992) (citing McBee v. Fulton, 47 Md. 403, 417, 1. Generally 426 (1878)). Although whether a report is fair and With this foregoing background setting in mind, accurate is ordinarily a question of fact for the we address Piscatelli's first contention: that fact-finder, Batson, 325 Md. at 727, 602 A.2d at Respondents' abuse of the fair reporting privilege 1213, summary judgment is appropriate where the was, on this record, a triable issue for a jury. plaintiff fails to point to evidence of unfairness Piscatelli argues this is "not appropriate for and inaccuracy. See Rosenberg, 328 Md. at 679, resolution by summary judgment ... unless the 616 A.2d at 873 (affirming summary judgment record is absolutely devoid of any evidence that where defendant established the fair reporting the City Paper did not fairly and accurately privilege and there was "no trace of malice"). report" what transpired over the course of Miller's 3 Traditionally, a plaintiff could overcome prosecution, in so far as Piscatelli was mentioned. the fair reporting privilege by proving Because we conclude that the record extract actual malice. In Rosenberg, however, we before us is devoid of unfair or inaccurate adopted the modern view regarding the fair reporting, Piscatelli failed to meet the burden of reporting privilege, which "discards the search for malice, and simply requires that the report be fair and substantially correct." casetext Piscatelli v. Van Smith 424 Md. 294 (Md. 2012) Rosenberg v. Helinski, 328 Md. 664, 677- One of the things she shared with the police had to 78, 616 A.2d 866, 872-73 (1992) (citing. do with Piscatelli. About a month after the among other cases, Brush-Moore killings, in May 2003, a benefit was held near Newspapers, Inc. v. Pollitt, 220 Md. 132, Binghamton to raise money for Convertino's 138, 151 A.2d 530, 533-34 (1959)). W young daughter. About 500 people showed up, and pointed out that the fair reporting privilege "while not absolute, [is] somewhat broader while it was going on, Morgan in its scope than other conditional approached by a man she'd never seen before and privileges." Rosenberg, 328 Md. at 677-78 asn't seen since. "He said that Nick Piscatelli was 616 A.2d at 872-73 (citing Restatement behind my son's murder," Morgan recalls, "that (Second) of Torts $ 61 1 emt. a (1977)). [Piscatelli had] hired someone to do it, and that he'd covered his tracks." These statements fall 2. The Fair Reporting Privilege within the purview of the fair reporting privilege. Applies to Respondents' Reporting of In Chesapeake Publishing Corp., we concluded the Supplemental Discovery that information in a court case file is covered by Memorandum and Piscatelli's Trial the fair reporting privilege, if the reporter's Testimony account of that information is fair and substantially accurate. 339 Md. at 302, 661 A.2d In the present case, the fair reporting privilege at 1177. Here, the supplemental discovery applies to Respondents' reporting of the excerpt from the supplemental discovery memorandum memorandum was part of the Miller criminal case file and, despite not being offered in evidence at and the summary of Piscatelli's trial testimony. As trial, was a public record that may be reported to the supplemental discovery memorandum, without liability for defamation, so long as the Respondents wrote in the two articles: report is fair and accurate On Oct. 27, [the prosecutor] disclosed in a memorandum to the defense that "Pam Morgan Respondents' summary of Piscatelli's testimony during Miller's trial was: [Convertino's mother] has stated that an unknown man approached her at a benefit in Binghamton, Take, for instance, the motive that Convertino's New York, held for her son's child shortly after his boss may have had. Convertino was hired to murder. The man advised her that Nick Piscatelli manage Redwood Trust by Nicholas Piscatelli, a was behind her son's mur e covered successful Baltimore rea ate developer. and hired someone to kill him." The memo does Piscatelli meticulously restored a historic not indicate when Morgan shared this information downtown bank building that had survived the with investigators, but she told City Paper during a Great Baltimore Fire of 1904 to house his posh Nov. 30 phone interview that the event was held in nightclub. Convertino, witnesses testified atPiscatelli v. Van Smith 424 Md. 294 (Md. 2012) The fair reporting privilege embraces post-trial Respondents' report of Piscatelli's testimony was recounts of trial testimony. Rosenberg, 328 Md. at also fair and accurate. Regarding accuracy, the 680-81, 616 A.2d at 874-75. In Rosenberg, the 313 report depicts *313 accurately the testimony. defendant in the civil suit was an expert witness in Piscatelli's testimony spanned 13 pages of a child custody hearing who testified that the transcript from Miller's trial. Respondents' father abused sexually his daughter. Rosenberg, summary of those 13 pages was a reasonable 328 Md. at 669, 616 A.2d at 868. As Rosenberg abbreviation of Piscatelli's entire testimony. See exited the courthouse, he was interviewed by a Rosenberg, 328 Md. at 683-84, 616 A.2d at 875. local television reporter, to whom he offered a Further, Piscatelli conceded during his discovery summary of his testimony. Rosenberg, 328 Md. at deposition in the present litigation that this 670, 616 A.2d at 869. Rosenberg's statements paragraph was a truthful-and therefore accurate were found ultimately to be not defamatory -summary of his testimony. because the fair reporting privilege protected them. Rosenberg, 328 Md. at 682-83, 616 A.2d at Respondents' report about Piscatelli's testimony 875. In the present case, Respondents summarized was also fair: it "did not result in a materially in the 2007 City Paper article Piscatelli's misleading account of the hearing." Rosenberg, testimony at Miller's trial. The fair reporting 328 Md. at 682, 616 A.2d at 875. Immediately privilege applies to it. after summarizing Piscatelli's testimony, the article states, "[The prosecutor] took on this 3. Piscatelli Did Not Establish that nettlesome situation directly during the trial: She Respondents Abused the Fair called Piscatelli to testify." Thus, the article Reporting Privilege explains that the details of Piscatelli's relationship Respondents' reports of the supplemental with Convertino arose during Piscatelli's direct discovery memorandum are fair and accurate. The testimony when called as a State's witness. The first paragraph of the relevant passage that reports article recounts also how the defense attorney about the memorandum is an exact quotation from cross-examined Piscatelli, demonstrating that it memorandum. The second and third was Miller's defense attorney who attempted to paragraphs detail Morgan's recollection of the suggest that Piscatelli had a motive to kill events that precipitated the response in the Convertino, thus seeking to divert the focus from Miller. memorandum. Her recollection is consistent with he contents of the memorandum and does not add Although perhaps an unflattering account of additional details or allegations; that is, her Piscatelli's relationship with Convertino, recollection of the event "was fair in that "the Respondents' report was an accurate, fair account 1151 overall *1151 impression created by the summary of Piscatelli's testimony. Piscatelli failed to was no more defamatory than that created by the advance any facts to demonstrate otherwise. There original.' " Rosenberg, 328 Md. at 684, 616 A.2d was no triable issue for a jury. Because there was at 875 (quoting Brown & Williamson Tobacco no triable issue as to abuse of the fair reporting Corp. v. Jacobson, 713 F.2d 262, 270 (7th privilege regarding the supplemental discovery Cir. 1983)). Piscatelli did not adduce facts tending memorandum or Piscatelli's testimony, the Circuit to show that the report was unfair and inaccurate; Court granted properly Respondents' motion for therefore, no abuse of the fair reporting privilege summary judgment regarding this conditional was presented to be judged by a fact-finder. privilege defense. See Rosenberg, 328 Md. at 683- $4, 616 A.2d at 875-76. B. The Fair Comment Privilege casetext Piscatelli v. Van Smith 424 Md. 294 (Md. 2012) Piscatelli argues that the fair comment privilege is his position. The Court of Special Appeals inapplicable because Respondents based their noted, "We do not read the Supreme Court 314 comments on purportedly*314 defamatory, decisions so broadly. Except for dictum in unprivileged facts. Gertz, nothing in New York Times or its progeny indicates that the Court has * We disagree. created an absolute privilege for all 4 The application of the fair comment expressions of opinion on public matters privilege in this case begs an additional and therefore eliminated the defense of "fair comment.' " Kapiloff v. Dunn, 27 question not raised by either Piscatelli or Respondents: whether the fair comment Md.App. 514, 529, 343 A.2d 251, 261 (1975). privilege applies equally to opinions expressed about public figures and private [A] newspaper like any member of the community figures. Although the parties disagreed in may, without liability, honestly express a fair and the Circuit Court whether Piscatelli is a reasonable opinion or comment on matters of public or private figure, they did not legitimate public interest. The reason given is that maintain on appeal their public/private such discussion is in the furtherance of an interest igure arguments. The fair comment privilege, however, seems to apply to of social importance, and therefore it is held public figures, as was the case in A.S. Abell entitled to protection even at the expense of Co. v. Kirby, 227 Md. 267, 270-72, 176 uncompensated harm to the plaintiff's A.2d 340, 341-43 (1961), as well as to reputation.A.S. Abell Co. v. Kirby, 227 Md. 267, private figures. Magnusson v. N.Y. Time 272, 176 A.2d 340, 342 (1961). Thus, the fair Co., 98 P.3d 1070, 1080 (Okla.2004) comment privilege is available for opinions or ("[Mjedia defendants may utilize the comments regarding matters of legitimate public common law privilege of fair comment, interest. In Kirby, we discussed the fair comment affording individuals the opportunity for privilege regarding opinions expressed about a honest expressions of opinion on matters of 315 review hearing of a *315 Baltimore police legitimate public interest based on true or commissioner, inferring that it was a matter of privileged statements of fact, to defend legitimate public interest. 227 Md. at 282-83, 176 gainst a defamation cause filed by a A.2d at 348-49. In Kapiloff v. Dunn, the Court of private person."). Special Appeals concluded that the performance Maryland recognizes that, under the fair comment ratings of high-school principals were also a privilege, matter of legitimate public interest. 27 Md.App. 514, 533-34, 343 A.2d 251, 264 (1975). Although 11525 +1152 Maryland case law has not addressed whether the 5 The defense of fair comment is a venerable occurrence or prosecution of crimes, and murder common law privilege. Some legal specifically, are matters of legitimate public scholars posit that New York Times Co. v. interest, other courts have. See Gay v. Williams, Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 486 F.Supp. 12, 16 (D.Alaska 1979) (drug L.Ed.2d 686 (1964) and Gertz v. Robert trafficking); Ratner v. Young, 465 F.Supp. 386, Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997 396-97 (D.Vi.1979) (murder); Rouch v. Enquirer 41 L.Ed.2d 789 (1974) superceded the fai & News of Battle Creek, Mich., 427 Mich. 157, comment privilege. See, e.g., 8 Stuart M. 398 N.W.2d 245, 266-68 (1986) (rape). This Speiser et al., The American Law of Torts $ principle seems obvious. Therefore, the reporting 29:34 (1991); Restatement (Second) of Torts $ 566 rep. n. to emt. c (1977) Maryland law, however, has not adopted casetext Piscatelli v. Van Smith 424 Md. 294 (Md. 2012) about the murders and criminal trial of the 27 Md.App. at 533, 343 A.2d at 263-64. presumed perpetrator at the bottom of this civil litigation are matters of legitimate public interest. Maryland law regarding the types of opinions protected by the fair comment privilege is in Whether a particular publication comes within the accord with the Restatement of Torts (Second), purview of this privilege "often turns on whether which summarizes succinctly the difference or not it contains misstatements of fact as between protected and unprotected opinions for distinguished from expression of opinion." Kirby purposes of the fair comment privilege. 227 Md. at 273, 176 A.2d at 342. The test for Derogatory opinions based on false and determining whether a published statement is a defamatory or undisclosed facts are not privileged. fact or opinion is, "Would an ordinary person, Kirby, 227 Md. at 272-74, 176 A.2d at 342-44; reading the matter complained of, be likely to Kapiloff, 27 Md.App. at 533, 343 A.2d at 263-64; understand it as an expression of the writer's accord Restatement (Second) of Torts $ 566 cmt. opinion or as a declaration of an existing fact?" b & c (1977). These are called mixed opinions. Kirby, 227 Md. at 274, 176 A.2d at 343. The fair Restatement (Second) of Torts $ 566 cmt. b. comment privilege protects an opinion only where Derogatory opinions based on non-defamatory ""the facts on which it is based are truly stated or facts, true facts, privileged facts, or facts assumed privileged or otherwise known either because the mutually by the opinion-maker and recipient are facts are of common knowledge or because, privileged. Kirby, 227 Md. at 272-74, 176 A.2d at though perhaps unknown to a particular recipient 342-44; Kapiloff, 27 Md.App. at 533, 343 A.2d at of the communication, they are readily accessible 263-64; accord Restatement (Second) of Torts $ to him.' " Kirby, 227 Md. at 279-80, 176 A.2d at 566 cmt. b & c. These are labeled simple or pure 346 (quoting 1 Harper and James, The Law of opinions. Restatement (Second) of Torts $ 566 Torts $ 5.28 (1954)). Conversely, an opinion based cmt. b. Thus, under Maryland law, the fair on undisclosed facts, or that permits the inference comment privilege protects simple opinions from of an undisclosed factual basis, is not privileged. being defamatory, but does not protect mixed Kirby, 227 Md. at 274, 176 A.2d at 343. In opinions. Kapiloff, the Court of Special Appeals explained 316 further the difference between protected*316 and Piscatelli argues in his brief that the Court of unprotected opinions under the fair comment Special Appeals applied incorrectly the fair privilege: comment privilege because Respondents' expressed opinions were based on the When [commentary on a matter of public interest] 317 supplemental*317 discovery memorandum and/or is not based upon stated facts or upon facts Piscatelli's testimony, which he alleges were 153 otherwise *1153 known or readily available to the defamatory. We concluded earlier in this opinion,\"53 s \"54 When [commentary on a matter of public interest] is not based upon stated facts or upon facts otherwise *1153 known or readily available to the general public, it is treated as a factual statement and possible constitutional immunity is determined on that basis. Where the statements, however, are actual expressions of opinion, based upon stated or readily known facts, their objective truth or falsity depends on the veracity of these underlying facts. Therefore, any determinations with regard to falsity or the presence of actual malice must look to the stated or known facts which form the basis for the opinion... casetext Piscatelli v. Van Smith as stated or privileged or otherwise known {emphasis added)); accord Restatement (Second) ofTorts 566 cmt. c, illus. 5(2). 6 Respondents' articles include privileged reports on the memorandum and Piscatelli's testimony as bases for its opinions, enabling readers to judge for themselves the quality of the opinions. Kirby, 227 Md. at 280, 176 A.2d at 347 (quoting Odgers on LibelT and stander 166 (6th. ed.1929)). \" '[T]herefore, what would otherwise have been an allegation of fact becomes merely a comment,\" \" or a simple opinion, which the fair comment privilege declaws of its defamatory *1154 expression. id. (quoting Odgers on Libei and Siarider; supra, at 166). The Circuit Court and the Court of Special Appeals were correct that summary judgment was a proper disposition of the fair comment privilege defense. 6 Restatement (Second) of Torts 566 emt. c, illus. 5(2) states the following: If the defendant bases his expression of a derogatory opinion of the plaintiff on his own statement of facts that are not defamatory, he is not subject to liability for the the expression of opinion, so long as it does factual stateme ntnor for not reasonably indicate an assertion of the CKPIESSCU Upll'llUl'lb' WCI'C DHSCO UT] ll'lC supplementall? discovery memorandum andior Piscatelli's testimony, which he alleges were defamatory. We concluded earlier in this opinion, however, that Respondents' reporting of the memorandum and Piscatelli's trial testimony are privileged as fair reporting. Simple opinions, which are protected by the fair comment privilege, include derogatory opinions based on privileged statements of fact. Kirby: 227 Md. at 279, 176 A.2d at 343 (quoting 1 Harper and James, supra, 5.28} (\"[C]riticism is privileged as fair comment only when the facts on which it is based are truly 424 Md. 294 (Md. 2012) existence of other, defamatory, facts that would justify the forming of the opinion. The same result is reached if the statement of facts is defamatory but the facts are true or if the defendant is not shown to be guilty of the requisite fault regarding the truth or defamatory character of the statement of facts, or ere statement offacrs is found to be priviieged. (Emphasis added.) IV. CONCLUSION Piscatelli failed to adduce facts that would be admissible in evidence to demonstrate that Respondents' reporting about *3IH Miller's trial was unfair and inaccurate, a burden he bore in order to present a triable issue for a jury as to whether Respondents abused the fair reporting Additionally, expressed in the articles simple opinions based on privilege. where Respondents disclosed, privileged statements, those opinions are themselves privileged as fair comment. For these reasons, the Circuit Court granted properly Respondents' motion for summary judgment. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; PETITIONER TO PAY COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS