03/02/2020 AYYADURAI v. FLOOR64, INC | 270 F.Supp.3d 343... | 20170907d75| Leagle.com Rattiner extensively and accurately described his encounter with the resort salespeople, thereby disclosing the basis for his assertion that it was a scam. Readers may have disagreed with the conclusion that it was a scam, but they could not have said that the conclusion was false, because there is no core meaning of scam to which Rattiner's facts and allegations can be compared. Is it a scam to promise a lobster dinner and then only give it after protest? Is it a scam to gross approximately $9 million from a 25 unit resort? The answer depends on the meaning given to the word scam. Id. at 843. 8 Here, even a reader who agrees with defendants' view that plainti should not be credited as the sole inventor of e-mail may not agree that his claim is "fake" or "bogus." One person may consider a claim to be "fake" if any element of it is not true or if it involves a slight twisting of the facts, while another person may only consider a claim to be "fake" only if no element of it is true. Thus, whether statements such as "Dr. Ayyadurai is perpetuating a `fake story' with respect to his claims of invention of email," (Compl. ¶ 34(c)), are provably true or false depends not only on how one de nes "e-mail," but also on how one de nes "fake." Because both terms, in this context, are imprecise, the statements are not actionable. (2)  Subjective Statements That Do Not Imply Knowledge of Objective Facts The statements at issue are also protected as subjective statements. [270 F.Supp.3d 360] "[E]ven a provably false statement is not actionable if it `is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively veri able facts....'" Riley v. Harr, 292 F.3d 282, 289 (1st Cir. 2002) (quoting Gray v. St. Martin's Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000)) (second alteration in original). Thus, "defamation cannot arise where the speaker communicates the non-defamatory facts that undergird his opinion." Piccone vs. Bartels, 785 F.3d 766, 771 (1st Cir. 2015); accord Riley, 292 F.3d 282, 289 ("[W]hen an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment." (quoting Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir. 1995)). The articles at issue provide all of the relevant facts on which defendants rely in reaching the conclusion that plainti 's claim is false. For example, the September 2, 2014 article described the history of electronic messaging, including rudimentary systems that were created as early as 1965, and provided hyperlinks to relevant background information. (Compl. Ex. G at 1). The September 4, 2014 article similarly provided information on the history of the use of the word "email" as well as information concerning a change over time in how plainti de ned the term on his website, again providing hyperlinks to relevant information. (Compl. Ex. I). In the November 3, 2016 post, Masnick wrote that plainti 's claim is "not true" based on his observation that "[b]asically every feature that he put in the application was previously discussed on open mailing lists and RFCs [Requests for Comments] about the internet and the messaging systems that would be grafted onto it — sometimes many years earlier." (Compl. Ex. R at 1) (emphasis in original). 9 By providing the full factual basis for his opinion, the articles cannot reasonably be interpreted to suggest that the author had access to information about plainti 's claim that was not accessible to others. As the First Circuit has explained, this is a "crucial distinction" between cases such as this and cases that reach an opposite result, such as Milkovich. See Phantom Touring, 953 F.2d at 730-31. In Milkovich, "the author of a newspaper column charging that a high school wrestling coach had lied about his behavior at a meet informed his readers that he was in `a unique position' to know that the coach had lied because he had personally observed the relevant events." Riley, 292 F.3d at 290. Here, by contrast, as in Phantom Touring, there is nothing in the articles to "indicate[] that [the author], or anyone else, ha[s] more information about [plainti 's claim] than was reported in the articles." Phantom Touring, 953 F.2d at 731. Furthermore, and signi cantly, it appears that the core underlying facts are not disputed. The articles repeatedly acknowledge that plainti did create an electronic messaging system that he called "email," that he did so at the age of 14 when he was a research fellow at the University of Medicine and Dentistry of [270 F.Supp.3d 361] New Jersey in 1978, that the program apparently worked well, and that he subsequently received a copyright for the program. (See, e.g., Compl. Exs. G, J, N, Q). In addition, plainti has not challenged the accuracy of the factual statements relied upon in reaching the conclusion that his claim is false. For example, the complaint does not identify as false the statement that plainti 's electronic-messaging system was "not the rst" and that "[b]asically every feature that he put in [it] was previously discussed on open mailing lists and RFCs...." (Compl. Ex. R. at 1) (emphasis in original). Nor does it dispute the accuracy of the statement that the de nition of e-mail posted on plainti 's website was changed in in 2012 to expand the number of elements necessary for a messaging system to be considered "e-mail." Thus, while the complaint challenges the conclusions drawn from the available facts, it does not challenge the underlying facts themselves. As noted in one of the articles that the complaint refers to in support of plainti 's claim, "[t]here seems to be little disagreement over who wrote what, and approximately when[.] ... The argument is over what to call things." (Compl. Ex. F at 4). Accordingly, "[t]his is just the kind of subjective judgment that is only minimally about `what happened' but expresses instead a vague and subjective characterization of what happened," and for that reason, that "is protected opinion." Gray, 221 F.3d at 249 (holding that statement that plainti , an in uential lobbyist, "faked his closeness with a number of senior administration o cials" was "protected opinion" where the book at issue "made quite clear that Gray did have contacts at the highest levels" but implied that he "was exaggerating his `closeness'"). In short, the articles disclose the non-defamatory facts on which they rely; make clear that the conclusions drawn from those facts are simply an interpretation of them; and do not rely on other, undisclosed and potentially defamatory facts that are not available to others. Piccone, 785 F.3d at 771 (noting that such statements are "immun[]e ... from defamation liability"). Furthermore, by providing hyperlinks to the relevant information, the articles enable readers to review the underlying information for themselves and reach their own conclusions. See Riley, 292 F.3d at 289. Accordingly, the statements are not actionable. (3)  Hyperbole Several of the statements at issue suggest that plainti 's claim to have invented e-mail is "fraudulent" or that plainti is a "fraud" or a "charlatan." (See, e.g., Compl. ¶¶ 36(a), 37(c), 46(e)). Plainti contends that such statements are defamatory per se, because they suggest the commission of a crime. However, hyperbolic statements, or those using loose, gurative language, are protected as long as no "reasonable person could interpret the statement to provide actual facts about the individual ... it describes." Levinsky's, 127 F.3d at 131. As the Supreme Court explained in Milkovich, "statements that cannot `reasonably [be] interpreted as stating actual facts' about an individual" are protected in order to "assur[e] that public debate will not su er for lack of `imaginative expression' or the `rhetorical hyperbole' which has traditionally added much to the discourse of our Nation." 497 U.S. at 20, 110 S.Ct. 2695 (quoting Falwell, 485 U.S. at 50, 53-55, 108 S.Ct. 876). https://www.leagle.com/decision/infdco20170907d75 6/15