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Is the term “puppy mill” legally defamatory?

In the movie, “A Dog’s Purpose,” a caged puppy escapes through a door inadvertently left unlatched while a commercial breeder shows dogs to prospective buyers. Cages are stacked upon cages. Though the dogs do not appear mistreated, some would call the operation a “puppy mill.”

But what is a “puppy mill,” and is the term legally defamatory? The Missouri Supreme Court confronted that issue in Mary Ann Smith, d/b/a Smith’s Kennel v. Humane Society of the United States and Missourians for the Protection of Dogs, SC 95175 (April 25, 2017).

The case involved an animal rights group’s claim that a dog breeder was operating a “puppy mill” and one of the “worst.” The court held this language, used “during a hotly contested political campaign” over proposed animal rights legislation, was “rhetorical hyperbole” and “lusty and imaginative expression” that could not reasonably be interpreted as stating actual facts, but constituted non-actionable opinion.

Background

In 2010, the Humane Society of the United States issued a report entitled, “Missouri’s Dirty Dozen,” supporting the Puppy Mill Cruelty Prevention Act. “[T]o demonstrate current problems that could be addressed by the passage of [the Act], it listed what it believed were the 12 worst Missouri “puppy mills,” including plaintiff Mary Ann Smith’s kennel.

The section on Smith’s kennel began, “Smith’s Kennel has a history of repeat USDA violations stretching back more than a decade, including citations for unsanitary conditions; dogs exposed to below-freezing temperatures or excessive heat without adequate shelter from the weather; dogs without enough cage space to turn and move around freely; pest and rodent infestations; injured and bleeding dogs; dogs with loose, bloody stools who had not been treated by a vet; and much more.” The report then quoted inspection reports about Smith’s kennel.

Smith sued for defamation and false light invasion of privacy over the report’s labeling her kennel a “puppy mill” and among the “worst.” The trial court dismissed Smith’s claims based on arguments the statements were protected opinion. The appellate court reversed. Although acknowledging “Plaintiff does not allege … any of the information specifically about Plaintiff’s kennel in the report was false,” the court held “the contention that Plaintiff’s kennel was a puppy mill with the definitions given as to what constitutes a puppy mill was, under the totality of the circumstances in this case, a factual contention” susceptible to trial for a determination falsity. The case was then transferred to the Supreme Court.

The legal issues

Under the “opinion” defense, Missouri defamation law — like the law elsewhere — protects subjective statements about a plaintiff’s conduct, character, or motives where the factual basis for the statements are either stated or known. In such cases, courts hold the audience can gauge itself whether the conclusions carry weight. However, if facts supporting the opinion are false or materially distorted, the statements may be actionable. Further, statements that are subjective, imprecise, or not objectively verifiable are usually held protected opinion.  Moreover, context can be determinative: statements in a political context or a newspaper editorial are more likely protected.  Finally, Missouri, like many jurisdictions, has rejected claims based on ratings such as best or worst.

Much of that supported a finding the accusations about Smith’s kennel were protected opinion. Though some might disagree that the facts stated about her kennel — none of which she disputed — made it a “puppy mill,” readers could decide themselves. Moreover, the term “puppy mill” is not particularly precise or verifiable. Finally, the political context of the report was obvious.

The Supreme Court’s opinion

This precedent was not lost on the Supreme Court, which held that describing Smith’s kennel as a “puppy mill,” while also identifying the undisputed facts about her kennel, constituted protected opinion. The Court rejected Smith’s claim that the report’s generalized description of conditions at “puppy mills” comprising the Dirty Dozen constituted the applicable definition. Smith claimed all these conditions were necessarily attributed to her and because some did not exist at her kennel, factual statements existed that could be proven false.   The Court, however, said these statements were “clearly not intended to apply to each and every kennel,” but simply “aggregated some of the specific violations found.”

The Court then noted that competing definitions for “puppy mill” existed, making the term imprecise. Smith advanced a dictionary definition that described a “puppy mill” as “[a]n establishment that breeds puppies for sale, typically on an intensive basis and in conditions regarded as inhumane.” But, the Court noted another definition: “a commercial farming operation in which purebred dogs are raised in large numbers”— an apt description of Smith’s kennel. Even if the report intended “a negative connotation,” the Court said that alone would not make it actionable, recognizing “the term ‘puppy mill’ is imprecisely used as ‘rhetorical hyperbole’ and a ‘lusty and imaginative expression of the contempt’ of political advocates during a hotly contested political campaign that cannot, therefore, ‘reasonably [be] interpreted as stating actual facts.’”

Next, the Court rejected Smith’s claim that calling her kennel among the “worst” made the report actionable. The Court noted Smith did not dispute the violations at her kennel and said “[t]he “severity” of a kennel’s violations is, however, subjective and is not provable as false. A ranking or list, which includes the subjective interpretation of data, leads to subjective conclusions that cannot be provable as false.”

The Court also rejected Smith’s claim she was included in the report for malicious reasons, making it actionable. Smith was the mother of a legislator opposed to the act. The Court held this does not change that the statements in the report were subjective opinion. Indeed, courts have held that motive for expressing negative opinion does not make it actionable. See, e.g., Castle Rock Remodeling, LLC v. Better Bus. Bureau of Greater St. Louis, Inc., 354 S.W.3d 234, 241 (Mo. App. E. D. 2011).

Finally, the Court rejected Smith’s false light claim, saying when facts support a defamation case, then false light does not lie. The Court noted it had never adopted the false light tort and only one appellate decision condoned a claim under vastly different facts. As such, “it [was] not necessary for [the] Court to denominate a new cause of action for this tort at this time.”

Smith has sought a rehearing.

Conclusion

Free expression is fundamental in a democratic society; especially in the political arena. The term “puppy mill” is imprecise, essentially unverifiable, and the type of rhetoric reasonably expected and legally protected in politically-charged debates. The Supreme Court’s opinion preserves, as it recognized, important “constitutional guarantees of free speech and free press and the attendant commitment to maintain ‘uninhibited, robust, and wide-open’ debate on public issues.”

martineau-jJoseph E. Martineau is a partner at Lewis Rice focusing his practice on media and communications law. He has extensive experience with defamation and invasion of privacy law, the First Amendment, and media law in general. He can be reached at 314-444-7729 or jmartineau@lewisrice.com.

Lewis Rice submitted an amicus brief in support of the Humane Society on behalf of the St. Louis Post-Dispatch, Kansas City Star, Council of Better Business Bureaus, and the Better Business Bureau of Eastern Missouri and Southern Illinois, in conjunction with Bruce Brown, in-house counsel for the Reporter’s Committee for Freedom of the Press. Maneke Law submitted an amicus brief on behalf of the Missouri Press Association. The Humane Society was represented by Bernie Rhodes at Lathrop & Gage in Kansas City.

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