MVP characterizes the statements at issue (the “Statements”) as:
3. Dillard’s April 3, 2019 blog post stating that “‘80-90%’ of students using MVP are ‘either drowning in math chaos Hell, or the teacher is partially supplementing the program to keep results afloat and attention down.’” [Compl. ¶ 16 (purporting to quote Dillard).] This Motion will refer to this statement as the “Math Chaos Hell Statement,” and a copy of the April 3, 2019 blog post is attached as Exhibit C. (Footnote 4)
C. THE MATH CHAOS HELL STATEMENT IS NEITHER DEFAMATORY NOR FALSE.
MVP alleges that Dillard’s statement, in an April 3, 2019 blog post, that “80-90%” of students are “drowning in math chaos Hell” is defamatory. [Compl. ¶ 16.] Dillard’s actual statement, however, is materially different:
While WCPSS and MVP have never conceded that this program might not work for some teachers & students, Wake MVP parent does concede that there are some teachers and some students, when paired together, the MVP experience may be math Heaven on Earth. (Footnote 16) For the other 80% - 99%, they are either drowning in math chaos Hell, or the teacher is partially supplementing the program to keep results afloat and attention down.”
See Exhibit C. Any claim related to this statement fails as a matter of law.
1. The Math Chaos Hell Statement is Not Capable of Conveying Defamatory Meaning and is Protected Opinion.
Again, the Court must evaluate the alleged defamatory statement in the context of the overall dispute related to MVP’s efficacy. For the same reasons already discussed, see Section II.A.1, supra, readers would understand that the statement was being made in a blog post by a non-neutral party expressing a particular opinion that is based on disclosed facts, see Exhibit G; no one would assume that Dillard meant to express unvarnished statements of fact.
As an initial matter, because alleging that teachers are partially supplementing MVP’s program with other methods does not subject MVP to public hatred, contempt, or ridicule and comments only on the quality of MVP’s product, MVP presumably is relying on the statement that students are in “math chaos Hell” to support its defamation claim. But the Math Chaos Hell Statement is just the kind of classic rhetorical hyperbole or “loose, figurative” language that cannot reasonably be understood as conveying facts about the plaintiff. (Footnote 17) Mink, 613 F.3d at 1005; Milkovich v. Lorain Journal, 497 U.S. 1, 21 (1990). No reasonable reader would, for instance, understand Dillard to be claiming that students were in fact drowning in an actual math hell, whatever that might mean.
This is because “math chaos Hell” does not mean much of anything at all, which is fatal to MVP’s claim. Under Utah law, “the common usage or the meaning of the words used” and “whether the statement is capable of being objectively verified as true or false,” along with the immediate and broader context of the statement, are factors useful in distinguishing fact from opinion. West, 872 P.2d at 1018 (citing with approval the test established in Ollman, 750 F.2d at 979). Where the words used are “indefinite” and “ambiguous” and lack a “precise core of meaning for which a consensus of understanding exists,” those words typically are expressions of opinion and cannot support a claim for defamation. Ollman, 750 F.2d at 979 (“[S]tatements that are ‘loosely definable’ or ‘variously interpretable’ cannot in most context support an action for defamation.”). And where no clear method of verification exists to evaluate a statement, “a reader cannot rationally view an unverifiable statement as conveying actual facts.” Id. at 981.
Here, the statement that 80-90% of students are drowning in math chaos Hell has no precise meaning and is not capable of verification. Under West and its ilk, that statement is thus nonactionable opinion, particularly in the context in which it was made. See Gilbrook v. City of Westminster, 177 F.3d 839, 862-63 (9th Cir. 1999) (calling someone “a Jimmy Hoffa” was the kind of “figurative rhetoric” that a reasonable audience expects during a public debate and was not provable as true or false); see West, 872 P.2d at 1010 (citing cases deciding that “exaggerated commentary” such as “traitor,” “scalawag,” “rake,” and “scoundrel” is not likely to damage reputation).
2. MVP Has Not Pled Facts Showing the Math Chaos Hell Statement is False.
Even if the Math Chaos Hell Statement could be seen as conveying facts, MVP has not sufficiently alleged that such facts are false. As explained above, falsity is an essential element of a defamation claim, and it is MVP’s burden to plead falsity with requisite specificity. See Section II.A.2, supra. The bare conclusion that MVP offers is not sufficient. [Compl. ¶ 17.]
4 The April 3, 2019 blog is also available at https://wakemvp.blogspot.com/2019/04/independent-surveys-of-wcpss-teachers.html.
16 The underlined portion of the statement is a hyperlink to another post on the Blog. See Exhibit G. Because it is referenced in the Math Chaos Hell Statement, Exhibit G is properly before the Court. See pp. 20-21 & n.13, supra.
17 Moreover, because Dillard’s statement suggests that 80-90% of students are either in math chaos Hell, or the teacher is supplementing MVP’s program with other methods, it is the kind of mere hypothesis or speculation that signals to the reader that it is an opinion rather than fact. See Section II.F.1, infra.