By Robert D. Balin and Samuel M. Bayard
A recent decision by the New York County Supreme Court reaffirms the longstanding principle under New York law and the First Amendment that an author’s speculation about a factual matter constitutes protected opinion when the grounds for that opinion are set forth. In a case with colorful and unusual facts, Justice Shlomo Hagler issued a thoughtful decision that safeguards the rights of authors, publishers, and other content creators to speculate on the fundamental mysteries of life. If you’ve perhaps suspected that the answer to the question “Who’s your daddy?” isn’t always so black and white, here’s your citation to back it up: Oleniak v. Slaton, No. 153239/2013 (Sup. Ct. N. Y. Cty. May 23, 2014).
Pam Slaton is an “investigative genealogist” who helps adoptees search for their biological parents. An adoptee herself, Ms. Slaton runs her own investigative agency and was featured in the TV show “Searching For…” on Oprah Winfrey’s OWN Network. Slaton and her co-author Samantha Marshall also wrote Reunited: An Investigative Genealogist Unlocks Some of Life’s Great Mysteries, which was published by St. Martin’s Press in 2012. In part, the book recounts several of Ms. Slaton’s cases, in which she has helped adoptees, including Run DMC’s Darryl McDaniels, find their birth parents. But Reunited is also an autobiography, tracing Slaton’s personal search for her own birth parents. As recounted in the book, when Ms. Slaton finally locates her birth mother (identified as “Priscilla”), Priscilla wants nothing to do with Ms. Slaton and makes the horrifying claim that Ms. Slaton is the product of incest. Much of the personal narrative in the book revolves around Ms. Slaton’s attempt to disprove this hurtful allegation, though Ms. Slaton informs readers that she cannot conclusively rule out this possible explanation of who her father may be. But Ms. Slaton nonetheless keeps searching, and the book follows along as she tracks down a Bronx man identified as “Vinnie,” who is “presumed to be [her] father” in adoption agency records.
Chapter Eight of Reunited chronicles Ms. Slaton’s relationship with Vinnie (known to his friends as “Big Vinnie”) and her developing personal views on whether or not he is her biological father. Slaton has sporadic contact with Vinnie for a decade, alternately charmed by his personality and repelled by his “creepy and cavalier” comments. Plagued by “nagging doubt” as to whether Vinnie is her father, Ms. Slaton eventually arranges DNA testing in an effort to “know once and for all if Vinnie was [her] biological father.” The book describes how, after the DNA tests prove “inconclusive,” Slaton has an epiphany. Feeling herself growing closer to Vinnie emotionally in the wake of her adopted mother’s death, Slaton concludes that she does not “need the scientific evidence” to achieve closure and “feels,” with “every pore of [her] being,” that Vinnie “must be” her biological father. The chapter ends with Slaton full of warmth and affection for Vinnie, the man she believes to be her father.
And then “Vinnie” sued. In April 2013, plaintiff Vincent Oleniak instituted a libel action against Slaton, her co-author Marshall and the publisher of Reunited in New York State Supreme Court, New York County. In his complaint, Oleniak alleges that Reunited falsely accuses him of being Slaton’s father and of acknowledging his paternity. Oleniak admits in the complaint that he indeed had an unmarried sexual relationship with Slaton’s biological mother and had a child (Vinnie Jr.) from an out-of-wedlock relationship with another woman, but asserts that he is not Slaton’s father and has consistently told her so since they first met. The complaint also alleges that the book falsely accuses Oleniak of “sexual promiscuity and misconduct” by labelling him a “Lothario” and “player” who “kept an old shoe box…full of pictures…of various women.”
The defendants filed a pre-answer motion to dismiss the complaint, arguing, among other things, that (1) the statements in Reunited expressing Slaton’s belief that Vinnie is her biological father are non-actionable opinion based on disclosed facts; and (2) that referring to Vinnie as a “Lothario” and “player” was not defamatory and was likewise opinion.
The court’s ruling
Justice Hagler granted defendants’ motion to dismiss in its entirety, holding that Ms. Slaton’s statements about Vinnie’s paternity were non-actionable opinion. The court started from the bedrock principle that, under New York law, courts must examine statements in their overall context and may not “sift through a communication for the purpose of isolating and identifying assertions of fact.” Applying this principle, Justice Hagler concluded that a reasonable reader would understand that Slaton does not know for sure who her father is, and that the book expresses her speculation on her own parentage based on emotional factors disclosed to the reader.
Looking at the overall context of the statements, the court found that “the autobiographical nature of the book” weighed in favor of a finding of opinion. In support, the court cited language from Goetz v. Kunstler, 164 Misc. 2d 557 (Sup. Ct., N.Y. Cty. 1995), suggesting that autobiographies are written from “a subjective . . . point of view and do not purport to be anything else.” The court further observed that, throughout the book, Slaton repeatedly informs readers that she is relying on her “gut,” “instincts,” and “intuition” in forming opinions and pursuing her cases.
Turning to the specific content regarding Vinnie, Justice Hagler noted that the central mystery of the book – whether Slaton is the product of incest or Vinnie’s daughter – is never resolved. “Given that Slaton left open the possibility that Slaton’s grandfather was her father, it is quite clear that the authors in the Book could not have stated that plaintiff was Slaton’s father as an assertion of fact.” In this regard, the court likened the case to Levin v. McPhee, 119 F.3d 189 (2d Cir. 1997), where the Second Circuit held that conflicting and contradictory accounts of “what either did or might have happened” in a fatal Moscow apartment fire constituted “opinion based on speculation without any implication of fact.” In holding Ms. Slaton’s speculation about her paternity to be non-actionable opinion, the court also found important that Slaton expressly disclaimed reliance on DNA evidence: “[I]t is clear from the Book that the DNA tests did not confirm plaintiff’s paternity, and that Slaton was not relying on conclusive, scientific evidence. To the contrary, any suggestion of paternity is based upon [Slaton’s] opinion and her feelings, and not on assertions of fact.”
The court also rejected Oleniak’s argument that the book was actionable because it falsely accused him of making specific statements acknowledging his paternity. For example, the book states that Vinnie, in his initial meeting with Slaton, “acknowledged [Slaton] as his biological daughter.” The book also states that, when Slaton first got Vinnie on the phone, he said “I know who you are. You are my daughter. You were born on my birthday.” While the complaint claimed these statements were false, Justice Hagler explained that these allegedly false statements did not undermine the defendants’ opinion defense for two reasons.
First, Justice Hager noted that, later in the book chapter, the authors “recorded that plaintiff effectively disavowed his prior paternity acknowledgement.” In other words, the court recognized that statements must be placed in context temporally as a story develops—with a statement’s meaning necessarily affected by its broader context. This reasoning could be particularly helpful to publishers and other content creators who trace the history of investigations, where different information comes to light at different times along the way.
Second, Justice Hagler found that Slaton made sufficiently clear to readers that these purported acknowledgments of paternity by Vinnie were not the basis for her opinion. Instead, the book disclosed a number of subjective and emotional factors that formed the basis of Slaton’s view that Vinnie is her birth father: (1) Vinnie and Slaton “share the same warped sense of humor”; (2) they “have the same no-BS style” and “don’t pull any punches”; (3) Vinnie has “grown on [her]” through his nurturing behavior; (4) Vinnie was there when she was born; (5) Vinnie’s wavy hair resembles her son’s; and (6) Vinnie “is all about feeding the ones he loves.” The court thus concluded that Ms. Slaton’s hypothesis about Vinnie’s paternity “‘is accompanied by a recitation of the facts on which it was based,’ including Slaton’s disavowal of scientific DNA evidence, and, therefore, her hypothesis ‘is readily understood by the audience as [non-actionable] conjecture.’” Justice Hagler accordingly found that the paternity statements constituted pure opinion.
Last, the court also dismissed Oleniak’s claim that the book falsely accuses him of being promiscuous. Justice Hagler emphasized that, other than statements identifying Oleniak’s two extramarital relationships (which Oleniak does not deny), the book contains no “specific references to promiscuity or sexual misconduct” by Vinnie. In this regard, the court ruled that “vague and/or ambiguous” statements about generalized “unchaste behavior” are not defamatory under New York law. The court accordingly held that the statements in the book that Vinnie was a “Lothario” who “never married,” had “an old shoe box…full of pictures…of various women,” and “was such a player” were not sufficiently specific to be defamatory and, in any event, constituted “subjective and speculative opinions.”
The Oleniak decision strongly reaffirms that speculation about murky events—even events as inherently factual (and potentially verifiable) as one’s parentage—will receive full protection as opinion so long as the basis for that speculation is set forth. And for authors, publishers and creators of autobiographies and docudramas that is welcome news indeed. Oleniak has filed a notice of appeal, so New York’s Appellate Division, First Department will have a chance to weigh in on the topic soon.
Originally published in the June 2014 issue of the MLRC MediaLawLetter
 As an alternative ground for dismissal of the paternity statements, defendants also argued that, given changes in social mores, it should no longer be deemed defamatory under New York law to state that a man has fathered a child as part of a monogamous, non-marital relationship. Cf. Freedlander v. Edens Broad.,734 F. Supp. 221, 227 (E.D. Va. 1990) (“cohabitation, in the context of today’s social mores, cannot be said to be behavior involving moral depravity or deviation”). Because Justice Hagler dismissed the complaint on opinion grounds, he did not reach this issue of first impression, which will have to await another day for resolution.