[“]In determining whether an expression is a statement of fact or opinion under the common law, words must be read in their context. Words which, taken by themselves, would appear to be a positive allegation of fact, may be shown by the context to be a mere expression of opinion or argumentative influence…. In order for a statement to be defended as fair comment it must be recognizable by the ordinary reasonable person as opinion and not as a statement of fact.[“] …
The claims against Arndt and Maestri are premised on single internet posts attributed to each of them. Neither post is dated, but the record establishes they were made before Breen filed suit on January 6, 2016, which was less than one year after Dr. Breen’s death on March 1, 2015. The record additionally establishes that during that year, the media focused continuous attention on the shooting, the classification of the death as a homicide by the coroner, the claim that Breen acted in self-defense during a violent altercation, the legal “battle” between Breen and Dr. Breen’s heirs over his estate, the removal by Breen of items from Dr. Breen’s office, the criminal investigation into Dr. Breen’s death, protests expected at the courthouse related to these matters, the decision not to arrest Breen, court filings recounting the self-defense claim, a civil wrongful death suit against Breen, and this defamation suit.
The allegedly defamatory statement attributed to Arndt is:
Arndt averred in her affidavit that she had known Dr. Breen for twenty-one years, believed he saved the lives of her daughter and grandchild, and was sad about his death. She joined a Facebook group called “Rest In Peace Dr. Breen,” for people grieving Dr. Breen’s death. She recalled reading that the coroner classified Dr. Breen’s death as a homicide and expressed frustration with the decision not to arrest Breen. Arndt stated she joined what she believed was a closed Facebook group called “Justice For Dr. Breen,” for people angry and upset that Breen was not arrested and who wanted to discuss whether Breen should be arrested and prosecuted. Arndt averred that any comment she posted was strictly her opinion that Breen should be arrested.
The allegedly defamatory statement attributed to Maestri is:
Maestri averred in her affidavit that she had known Dr. Breen for two years, and considered him a source of strength and support for her family. She stated she posted her condolences to his family on the funeral home’s grief page, where she also read about the closed Facebook group called “Rest In Peace Dr. Breen,” for people grieving the death of Dr. Breen. Maestri stated she believed the purpose of the group was to read about and try to understand what happened to Dr. Breen.
Maestri also stated she joined the Facebook group called “Justice For Dr. Breen,” which helped her understand the loss of Dr. Breen. She indicated she is still upset Breen was not arrested and outraged by what she believes is an injustice. She explained that any comment she posted was her opinion about Dr. Breen’s death and whether Breen should be arrested and prosecuted….
In making their statements, neither Arndt nor Maestri represented that they are a legal authority on the distinctions between the grades of criminal homicide and the legal definition of justifiable homicide. Nor does either statement imply that the speaker is privy to undisclosed facts. Rather, the evidence establishes that the statements were made against a backdrop of continuous media reports fixing the public’s attention on these issues, specifically whether Breen should be criminally prosecuted for killing her husband, based on the facts being reported.
When considered in context, a reasonable person considering Arndt’s and Maestri’s statements in the particular forums in which they were made would not believe them to be anything other than the subjective opinions of Arndt and Maestri expressing disagreement with Breen’s claim that she acted in self-defense and their criticism of the decision not to criminally prosecute her. Neither statement is an actionable defamatory statement. Rather, both are constitutionally protected statements of opinion….