Appellate panel: 'Defamatory' American Bar Association journal article was actually protected speech

By D.M. Herra | May 6, 2019

CHICAGO – A certifying agency for forensic document examiners failed to convince a federal appellate court that the American Bar Association libeled it by publishing an article that suggested another agency’s graduates were better trained.

The Board of Forensic Document Examiners brought the defamation suit against the ABA, The Judges’ Journal, and Thomas Vastrick in 2016. In the suit, the BFDE and about half of the 14 forensic document examiners it certified claimed an article authored by Vastrick and published in The Judges’ Journal constituted libel, invasion of privacy and deceptive advertising.

The Judges’ Journal is a quarterly publication of the ABA. The article, “Forensic Handwriting Comparison Examination in the Courtroom,” appeared in a 2015 edition dedicated to topics of forensic science judges encounter when qualifying expert witnesses.

The lawsuit notes that Vastrick is certified by a different organization, the American Board of Forensic Document Examiners. Both the BFDE and the ABFDE are accredited by the Forensic Specialties Accreditation Board, a project of the U.S. Department of Justice. At the time the complaint was filed, only 14 experts were certified through BFDE, most of whom work in the private sector, while about 150 were certified through ABFDE, most of whom work in the public sector.

Seventh Circuit Judge Michael Scudder  

In his article, Vastrick urged judges to look for experts with ABFDE certification and “be wary of other certifying bodies.” He also implied that the training format employed by the ABFDE is superior to those used by other certifying organizations and that only ABFDE-certified experts are “true professionals.”

After reviewing the complaint, a Chicago district judge found the article, which does not mention BFDE by name, is protected by the First Amendment as an opinion piece. Both the district and appellate courts noted, if the BFDE took issue with Vastrick’s characterization of the industry, the proper venue to contradict him was through a rebuttal piece in the same publication.

That is what the BFDE initially tried to do, according to court documents, but, frustrated with the ABA’s suggested edits, it dropped the rebuttal and filed suit instead.

After the district court dismissed its suit, the BFDE appealed, claiming it was improper that the court applied Illinois law to its claims when each of the plaintiffs is from a different state. 

The appellate judges dismissed this allegation, saying there were no conflicts between Illinois law and the laws of the other states in question.

Appellate judges also agreed with the district judge in finding the statements the BFDE contends were defamatory are actually protected speech.

“Opinions that do not misstate facts are protected not only by Illinois law but also by the First Amendment, and that is so even when the opinions concern one of the five defamation per se categories under Illinois law,” Seventh Circuit Judge Michael Scudder Jr. wrote in the court's opinion. “Context is key, as it matters not only what was said, but who said it, where it was said, and the broader setting of the challenged statements.”

Anyone reading Vastrick’s article would be able to tell that The Judges’ Journal is targeted at judges and that the article reflects “but one practicing expert’s view on how judges should attend to their gatekeeping obligations,” Scudder wrote. He noted that in the article, Vastrick spoke in the first person and presented his views as suggestions based upon his personal experience. The statements the BFDE claimed as defamatory were all too vague to be applied to any one target, the court wrote. The magazine itself also carries a note to readers identifying the articles as “the opinions of the authors alone.”

The article’s status as an opinion piece also protects it from the deceptive advertising claim, the court said, as the statute forbids only misrepresentation of fact.

The BFDE, which had sought damages of more than $200,000 per plaintiff, also lost on its appeal of abuse of discretion by the district court. The judge had refused to grant the BFDE leave to amend its complaint, finding that there is no way the allegations could be stated that would overcome the article’s First Amendment protections. The appellate judges agreed, allowing the BFDE to file an amended complaint would have been futile.

The appeal was heard by Scudder, Seventh Circuit Chief Judge Diane P. Wood and Circuit Judge Amy J. St. Eve.

The plaintiffs have been represented in the action by Cobb & Waites PLLC,of Madison, Tenn.  

The defendants have been represented by Adams and Reese LLP, of Memphis, Tenn., and Miller Korzenik Sommers, of New York.

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Organizations in this Story

Adams and Reese LLP Cobb and Waites LLP The American Bar Association U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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