MVP characterizes the statements at issue (the “Statements”) as:
4. Dillard’s April 3, 2019 blog post where “Dillard claimed that he conducted a surveying [sic] showing that only 2% of teachers are supportive of MVP.” [Compl. ¶ 18.] This Motion will refer to this statement as the “Survey Statement,” and a copy of the April 3, 2019 blog post is attached as Exhibit C. (Footnote 4)
D. THE SURVEY STATEMENT IS NEITHER DEFAMATORY NOR FALSE.
For its fourth alleged defamatory statement, MVP cherry-picks another statement from the April 3, 2019 blog post—the Survey Statement—to suggest that Dillard claimed to have “conducted a survey[] showing that only 2% of teachers are supportive of MVP.” [Compl. ¶ 18.] But MVP’s characterization is not controlling where it is inaccurate, as it is here. The actual post included the following:
A few weeks ago, I … gathered over 400 math teacher email addresses. I sent them a survey and invited them to give feedback. I identified that this was a parent initiated survey, not from WCPSS. I promised confidentiality. As expected, once administration caught wind of this, some teachers were warned or instructed to NOT respond. As expected, I got responses anyway—27 in total, plus several emails and phone calls. As expected, some (9 out of ~400, 2%) were very very-and I mean very supportive of MVP. Now, this was not a scientific survey, and response (especially negative) was discouraged. So we can’t really compare raw numbers of supporters versus non-supporters since one of those groups could be punished for responding….Again, this is NOT a scientific survey.
See Exhibit C. For reasons that follow, the Survey Statement cannot support a defamation claim.
1. The Survey Statement is Not Capable of Defamatory Meaning and is Protected Opinion.
The Survey Statement, like the others already discussed, would not subject a company to public hatred, contempt, or ridicule and is part of a larger, contentious debate about the proper education of students in Dillard’s county and posted on a blog meant to express a parent’s view of that debate. See Section II.A.1, supra. Understood in that context, the Survey Statement is not capable of defamatory meaning for the same reasons discussed above.
Moreover, criticizing a company’s product by saying only a percentage of teachers are “supportive” of it is the kind of imprecise language that has no definite and fixed meaning and that is not capable of verification. See Ollman, 750 F.2d at 979 (citing cases holding that calling judge “incompetent” or a newspaper’s reporting “sloppy and irresponsible” are too imprecise to support a claim for defamation); see also Direct Import I, 538 P.2d at 1041-42 (statement that auto executive thought product was waste of money was not defamatory).
Finally, the Survey Statement is opinion based on disclosed facts and, as a result, is protected speech. In the April 3 post, Dillard explains the survey he conducted of 400 teachers and the results of that survey. This data is disclosed to the reader, and Dillard’s conclusions are based on that data, but are also qualified by Dillard’s warning that the survey is neither scientific nor comprehensive, given its limitations. See Exhibit C. Under these circumstances, Dillard’s statements are nonactionable opinion. See Section II.A.1, supra.
2. MVP Has Not Pled Facts Showing the Survey Statement is False.
Even if that were not the case, MVP has not adequately pled that the Survey Statement is false. For example, MVP has not pled that Dillard did not send a survey to approximately 400 teachers and that Dillard did not receive only nine responses that were supportive of MVP’s program. Instead, MVP has, again, in a conclusory fashion only alleged that the statement is false, [Compl. ¶ 19], which is insufficient as a matter of law. (Footnote 18) See Section II.A.2, supra.
4 The April 3, 2019 blog is also available at https://wakemvp.blogspot.com/2019/04/independent-surveys-of-wcpss-teachers.html.
18 And, again, MVP cannot plead the falsity of the Survey Statement because it is substantially true, as proven by the information disclosed in the April 3, 2019 blog post, which reports teacher responses and contains a hyperlink to the actual survey.