From NDMAscendant, LLC v. Matze, decided Thursday by the Nevada Supreme Court (Justices Kristina Pickering, Elissa Cadish, and Patricia Lee):
This case arises from the firing of respondent John Matze, CEO of the former social media company, Parler LLC. Parler was a social media platform that touted its commitment to free speech. However, Parler was eventually deplatformed from Apple and Amazon app stores following allegations that the app was used by participants in the January 6, 2021, incident at the U.S. Capitol. In the aftermath of the deplatforming, Matze was fired, and he subsequently wrote a memorandum commenting on the circumstances of his firing. This memorandum was leaked and reported on by various news sources, including Fox Business.
Appellant Dan Bongino—then a political commentator, radio show host, and Parler shareholder—published a Facebook Live video on his Facebook page in response to Matze’s memorandum and public statements. Bongino asserted that Matze’s narrative regarding the circumstances of his firing was untrue, including statements that some “really bad” and “terrible” decisions had been made “by people on the inside” that “led to us getting put down by Amazon and others,” costing the company its “product stability.” Bongino further claimed that Bongino and his Parler colleagues were more committed to free speech and product stability than Matze.
Matze sued for, among other things, defamation, but the court rejected the claim, concluding that Bongino’s statements were opinions and therefore not actionable:
To determine whether a statement is one of opinion or fact, this court asks “whether a reasonable person would be likely to understand the remark as an expression of the source’s opinion or as a statement of existing fact.” Opinion statements are incapable of being verifiably true or false. Further, we do not parse each word or detail in a statement to determine whether it is defamatory, rather, “the determinative question is whether the gist or sting of the statement is true or false.” “In cases involving political comment, there is a strong inclination to determine the remarks to be opinion rather than fact.” See also Herring Networks, Inc. v. Maddow (9th Cir. 2021) (concluding that “the broad context” of liberal television host’s show makes it more likely audiences will expect host’s statements to be opinions).
We conclude that appellants met their burden under prong one. In reviewing the evidence presented by Bongino, including the transcript of the statements at issue, we conclude that Bongino’s video expressions tend to show a political commentator on a hyperbolic rant. Although Bongino purported to provide viewers with “the real story” and “correct the record” regarding Matze’s termination, the gist of Bongino’s statements as a whole is that he believed that himself and others at Parler were more committed to protecting free speech and product stability on the platform than Matze. These statements, constituting most of Bongino’s rant, are plainly unverifiable opinions…. “Statements of opinion are those whose truth or falsity cannot be established by the judicial process.” …
However, Matze draws our attention to several of Bongino’s statements which Matze asserts accuse him of impropriety and misconduct rather than just comparing their respective levels of free speech advocacy, including that some “really bad” and “terrible” decisions were made, with the implication it is Matze who made them, costing Parler its relationships with Amazon and others and its product stability. With Bongino’s role as an insider at Parler, Matze asserts that there is an implication of knowledge of underlying facts, rather than opinion.
But a statement about whether a former employee made decisions that were bad or terrible also constitutes an unverifiable opinion. Courts that have considered similar vague statements [e.g., calling people’s actions “crappy or half-assed” or a “common and sleazy tactic”] have concluded they were non-verifiable and therefore held them to be opinions as a matter of law.
