
USCA1 Opinion

	




                              _________________________          No. 97-1329                                  LEVINSKY'S, INC.,                                Plaintiff, Appellee,                                         v.                               WAL-MART STORES, INC.,                                Defendant, Appellant.                              _________________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                              _________________________                                       Before                          Selya and Lynch, Circuit Judges,                         and Pollak,* Senior District Judge.                              _________________________               Jonathan S. Piper, with whom Charles J. Glasser, Jr., Preti,          Flaherty, Beliveau & Pachios, Peter J. DeTroy, Russell B. Pierce,          Jr., and Norman, Hanson & DeTroy were on brief, for appellant.               Karen Frink Wolf                              , with whom                                           Harold J. Friedman                                                             and                                                                  Friedman &          Babcock were on brief, for appellee.                              _________________________                                 September 26, 1997                              _________________________          _______________          *Of the Eastern District of Pennsylvania, sitting by designation.                    SELYA,                           Circuit Judge                                       . Our enduring national devotion to          freedom of expression, embodied in the First Amendment and renewed          in             New York Times Co.                               v.                                   Sullivan, 376 U.S. 254 (1964), inevitably          means that much offensive and inaccurate speech will remain free          from legal constraints. Still, there are boundaries past which          speakers cannot trespass. This case illustrates how difficult it          is to trace those boundaries with the precision that the law          demands.          I. STORE WARS                    The events that gave rise to this litigation are          controversial but, for the most part, not controverted. We present          a balanced synopsis here.                    The plaintiff, Levinsky's, Inc. (Levinsky's), is a          family-owned business that operates three retail clothing stores in          Maine. It has deep roots in the community. The defendant, Wal-          Mart Stores, Inc. (Wal-Mart), is the nation's largest retailer. It          is a relative newcomer to the Maine marketplace. The two compete          head to head in the Portland area.                    In the fall of 1994, Levinsky's decided to run a tongue-          in-cheek radio advertisement that forged a comparison between it          and Wal-Mart. A snippet from the ad reflects its tone:          "Levinsky's has a great selection and the lowest prices in Maine on          Levi's jeans, Dockers and denim shirts. Wal-Mart doesn't carry          Levi's, but we did get a good buy on a toaster." The spot aired in          the Portland area for about six weeks during the pre-Christmas          shopping season.                                          2                    Intrigued by the unorthodox advertising campaign, Michael          Boardman, a free-lance writer for the Portland business magazine          Biz, decided to write a "David versus Goliath" story about          Levinsky's aggressive reaction to Wal-Mart's entry into the          marketplace. The article appeared in  Biz's January/February 1995          issue under the headline "Levinsky's: Leaner and meaner with          retail competition." In the text, Boardman compared Levinsky's to          a "feisty kid who fights the school bully for his lunch money."                    While researching the story, Boardman telephoned Gilbert          Olson, the manager of Wal-Mart's store in Scarborough, Maine (a          Portland suburb). Olson testified that he thought Boardman was a          college student researching a paper, but Boardman maintained that          he clearly identified himself as a journalist and stated the          purpose of his call. At any rate, Olson made two statements during          his conversation with Boardman that lie at the epicenter of this          appeal. First, he described a Levinsky's store as "trashy."          Second, he stated that when a person called Levinsky's, "you are          sometimes put on hold for 20 minutes _ or the phone is never picked          up at all."  Biz printed these (and other) remarks, attributing          them to Wal-Mart.                    Shortly thereafter, Levinsky's and several family members          sued Wal-Mart for defamation, injurious falsehood, false light,          deceptive trade practices, interference with advantageous economic          relations, and infliction of emotional distress. Their complaint,          filed in the federal district court under diversity jurisdiction,          28 U.S.C. S 1332(a) (1994), sought $40,000,000 in compensatory and                                          3          presumed damages, plus punitive damages equal to 2% of Wal-Mart's          net worth. Most of these claims were weeded out before or during          trial. The defamation claims survived. The jury found that the          individual family members had not been defamed, but awarded          Levinsky's $600,000 for presumed damages to reputation          (notwithstanding the lack of any specific evidence of actual          pecuniary loss). The jury also determined that Olson had not acted          with ill will and declined to award Levinsky's exemplary damages.                    The district judge upheld the verdict and made several          rulings that bear on this appeal. First, the judge found that the          verdict did not offend the First Amendment because both the word          "trashy" and the "20 minutes on hold" comments stated opinions that          implied provably false facts. Second, because Olson's statements          related to Levinsky's business, the judge concluded that presumed          damages were available. Third, emphasizing Olson's subjective          belief that he was not speaking to a reporter but to a university          student, the judge determined that Olson's comments did not relate          to a matter of public concern, and that, therefore, Levinsky's did          not need to show actual malice as a precondition to the award of          presumed damages. Fourth, the judge ruled that, under Maine's          defamation per se doctrine, a finding of defamation that related to          the plaintiff's business established legally sufficient fault and                                             Among other things, the district court ruled that other          statements which Olson had uttered were not actionable and          pretermitted various causes of action. These matters are not          within the compass of this appeal and we make no further mention of          them.                                          4          thus obviated any need for a jury instruction on negligence.          II. A SHOPPING LIST                    This appeal offers a large inventory of interleaved legal          issues. We pick our way through that inventory by traversing the          intersection of the First Amendment and state defamation law as it          has developed over time, noting, inter alia, a restriction on the          scope of defamation imposed by Maine law. We next discuss one of          the two allegedly defamatory statements _ the "trashy" reference _          and conclude, as a matter of federal constitutional law, that it          cannot support a recovery. We then address the second statement _          "20 minutes on hold" _ and conclude that it is actionable. We move          at that point to the matter of public concern (but do not resolve          it). Finally, because a new trial is required, we offer some          guidance to the district court in connection with the role of          negligence in Maine defamation cases.          III. STAPLES: THE FIRST AMENDMENT AND STATE DEFAMATION LAW                    For many years, states enacted statutes and applied          common law tort principles in the area of defamation with no more          than a passing nod to the First Amendment's free speech guaranty.          This era of constitutional non-interference ended when the Justices          proclaimed "a profound national commitment to the principle that          debate on public issues should be uninhibited, robust, and wide-          open, and that it may well include vehement, caustic, and sometimes          unpleasantly sharp attacks on government and public officials."          New York Times                       , 376 U.S. at 270. Faithful to this ideal, the Court          announced that the First Amendment precludes recovery by a public                                          5          official under state defamation law unless the official shows that          the speaker acted with actual malice, that is, with knowledge of or          reckless disregard for the falsity of the statement.  See id. at          279-80.                    The seeds sown in                                      New York Times                                                    have blossomed over the          years, giving rise to a crop of checks on the sweep of state          defamation law. We harvest four points.                          A.  Independent Appellate Review.                    First, the deference traditionally shown by courts toward          factfinders' determinations is muted when defamation issues          implicate free speech concerns. In such circumstances, appellate          judges must conduct a whole-record review and "examine for          [them]selves the statements in issue and the circumstances under          which they were made to see . . . whether they are of a character          which the principles of the First Amendment" protect.  Id. at 285          (citation and internal quotation marks omitted). This requirement          of independent appellate review is not a procedural directive, but,          rather, "a rule of federal constitutional law" that "reflects a          deeply held conviction that judges . . . must exercise such review          in order to preserve the precious liberties established and          ordained by the Constitution."  Bose                                                Corp. v. Consumers                                                                   Union                                                                          of          United States, Inc.                            , 466 U.S. 485, 510-11 (1984). Indeed, when the          imperative of independent review conflicts with a standard          procedural dictate (such as Fed. R. Civ. P. 52(a)), the          constitutional mandate controls.  See id. at 514.                    As a practical matter, this requirement means that                                          6          federal courts engage in de novo review when mulling defamation          issues that are tinged with constitutional implications.     See,          e.g.,                id. at 511, 514;                                 Connick v.                                           Myers, 461 U.S. 138, 147-48 & n.7          (1983);                  Phantom Touring, Inc.                                       v.                                           Affiliated Publications                                                                 , 953 F.2d          724, 727 (1st Cir. 1992);                                    Kassel v.                                              Gannett Co.                                                        , 875 F.2d 935, 937          (1st Cir. 1989). Maine courts follow the same course. See                                                                     Rippett          v. Bemis, 672 A.2d 82, 86 (Me. 1996); Caron v. Bangor Publ'g Co.,          470 A.2d 782, 784 (Me. 1984).                           B.  Opinions May Be Actionable.                    The First Amendment does not inoculate all opinions          against the ravages of defamation suits. A statement couched as an          opinion that presents or implies the existence of facts which are          capable of being proven true or false can be actionable.      See          Milkovich v.                       Lorain Journal Co.                                        , 497 U.S. 1, 18-19 (1990);                                                                    see                                                                        also          Restatement (Second) of Torts S 566 (1977) ("A defamatory          communication may consist of a statement in the form of an opinion,          but a statement of this nature is actionable only if it implies the          allegation of undisclosed defamatory facts as the basis for the          opinion."). Thus, a statement normally is not actionable unless          it contains an objectively verifiable assertion.   Chief Judge                                             Restatement S 566 seemingly applies the                                                       Milkovich standard to          defamation actions regardless of whether the challenged statements          address issues of public or private concern. This formulation          accurately reflects Maine's defamation law. See,                                                            e.g.,                                                                  Staples v.          Bangor Hydro-Elec. Co.                               , 629 A.2d 601, 603 (Me. 1993);                                                                Lightfoot v.          Matthews, 587 A.2d 462, 462 (Me. 1991).               The Milkovich Court explained: "If a speaker says, `In my          opinion John Jones is a liar,' he implies a knowledge of facts          which lead to the conclusion that Jones told an untruth," and the                                          7          Posner has captured the distinction between statements that are          actionable and those that are not:                    A statement of fact is not shielded from an                    action for defamation by being prefaced with                    the words `in my opinion,' but 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 verifiable facts,                    the statement is not actionable.          Haynes v.                    Alfred A. Knopf, Inc.                                        , 8 F.3d 1222, 1227 (7th Cir. 1993).                    The Milkovich Court was careful not to discard the baby          with the bath water: while leaving some statements of opinion          exposed, the Court reaffirmed the protection long afforded to          "imaginative expression" and "rhetorical hyperbole." 497 U.S. at          17, 20. Thus, the First Amendment prohibits defamation actions          based on loose, figurative language that no reasonable person would          believe presented facts. See,                                         e.g.,                                              Letter Carriers                                                             v.                                                                 Austin, 418          U.S. 264, 284-86 (1974) (holding that use of the word "traitor" to          define a worker who crossed a picket line was not actionable);          Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 13-14 (1970)          (holding that a newspaper's characterization of a developer's          negotiating position as "blackmail" was not defamatory; the word          was simply an epithet and, under the circumstances, did not suggest          commission of a crime); Phantom Touring, 953 F.2d at 728 (calling          a play "a rip-off, a fraud, a scandal, a snake-oil job" was mere                                        comment can be actionable. 497 U.S. at 18. By contrast, if the          speaker says, "In my opinion Mayor Jones shows his abysmal          ignorance by accepting the teachings of Marx and Lenin," the First          Amendment bars recovery because the statement cannot be objectively          verified.  Id. at 20.                                          8          hyperbole and, thus, constitutionally protected).                    The First Amendment's shielding of figurative language          reflects the reality that exaggeration and non-literal commentary          have become an integral part of social discourse. For better or          worse, our society has long since passed the stage at which the use          of the word "bastard" would occasion an investigation into the          target's lineage or the cry "you pig" would prompt a probe for a          porcine pedigree. Hyperbole is very much the coin of the modern          realm. In extending full constitutional protection to this          category of speech, the  Milkovich Court recognized the need to          segregate casually used words, no matter how tastelessly couched,          from fact-based accusations.                     C.  Actual Malice Sometimes Must Be Shown.                    The Supreme Court has ruled that the First Amendment not          only restricts the types of actionable statements, but also limits          the kinds of recoverable damages. Of particular relevance here is          the Court's holding that a private individual who seeks damages for          a defamatory statement involving a matter of public concern cannot          recover presumed or punitive damages absent a showing of actual          malice.  See Dun                            &                              Bradstreet,                                          Inc. v. Greenmoss                                                            Builders,                                                                       Inc.,          472 U.S. 749, 751, 756-57 (1985);                                            Gertz v.                                                     Robert Welch, Inc.                                                                      , 418          U.S. 323, 349 (1974). Determining whether an allegedly defamatory          statement involves a matter of public concern requires a court to          assess the statement's "content, form and context . . . as revealed          by the whole record."  Dun & Bradstreet, 472 U.S. at 761 (quoting          Connick, 461 U.S. at 147-48). Withal, locating particular                                          9          statements along the public/private continuum is sometimes a          surpassingly difficult task.                           D.  Fault Always Must Be Shown.                    The fourth principle that must be understood before we          embark on our odyssey through the record is a restriction on          defamation that Maine's jurisprudence hallows, though its          constitutional credentials remain inscrutable. Simply put, Maine          defamation law does not recognize liability without fault; rather,          as a predicate to recovery, Maine requires a defamation plaintiff          to show that the defendant acted at least negligently. See                                                                      Lester          v. Powers, 596 A.2d 65, 69 (Me. 1991).          IV. THE NATURE OF THE STATEMENTS                    The two statements that the district court permitted the          jury to consider are not in legal equipoise. Hence, we discuss          them separately.                                 A.  Talking Trash.                    The district court ruled that the adjective "trashy"          stated an opinion that implied a provably false fact and was,          therefore, actionable. This ruling rested on the court's expressed          view that the term had a single, readily ascertainable meaning _                                             It is unclear whether the First Amendment prohibits a state          from imposing strict liability in a defamation case brought by a          private plaintiff concerning statements that implicate a matter of          private concern.  See Snead v. Redland Aggregates, Ltd., 998 F.2d          1325, 1334 (5th Cir. 1993) (discussing the question and concluding          that the First Amendment "imposes no minimum standard of fault in          private/private libel cases"). Because Maine has articulated a          minimum negligence standard for all defamation actions, we need not          ponder the constitutional issue here.                                         10          "dirty or unkempt" _ and that, in Judge Carter's words, Olson's          statement could be "verified or disproved through straightforward          inquiry into the condition of [Levinsky's] store's physical          appearance." We do not agree.                    Despite avowals that all speech is infinitely malleable,          see, e.g., Lewis Carroll, Through the Looking Glass, ch. 6 (1872)          (reporting Humpty Dumpty's declaration: "When I use a word, it          means just what I choose it to mean _ neither more nor less."), the          First Amendment does not allow courts the luxury of a          deconstructionist approach to language. Some words or phrases          evoke a multiplicity of meanings; others do not. Under the aegis          of the First Amendment, a particular word or phrase ordinarily          cannot be defamatory unless in a given context it reasonably can be          understood as having an easily ascertainable and objectively          verifiable meaning. The vaguer a term, or the more meanings it          reasonably can convey, the less likely it is to be actionable.          See,               e.g.,                     Phantom Touring                                   , 953 F.2d at 728 (holding that newspaper          articles that referred to the plaintiff's production of "The          Phantom of the Opera" as "fake" and "phony" were not actionable          because the descriptions were "unprovable," inasmuch as "those          adjectives admit of numerous interpretations");                                                         McCabe v.                                                                   Rattiner,          814 F.2d 839, 842-43 (1st Cir. 1987) (holding that a newspaper          headline which referred to the plaintiff's real estate development          as a "scam" was not actionable because the word means different          things to different people and "[t]he lack of precision makes the          assertion `X is a scam' incapable of being proven true of false").                                         11                    It is against this mise-en-scene that we must explore the          meaning of the word "trashy." We start, as we often do in          searching out the meaning of a word, with the dictionary.          Lexicographic sources do not reflect any specific meaning of the          word. See,                      e.g.,                            Webster's Third New International Dictionary                                                                       2432          (1986) (defining "trashy" as "resembling or containing trash: of          inferior quality: worthless . . . covered or strewn with dried or          withered vegetable matter"); 20 Oxford English Dictionary 440 (2d          ed. 1989) (defining "trashy" as "[o]f the nature of trash;          rubbishy; worthless . . . . [e]ncumbered with trash, that is, with          the withered growth of the previous season");                                                       The American Heritage          Dictionary                      of                         the                             English                                     Language 1904 (3d ed. 1992) (defining          "trashy" as "[r]esembling or containing trash; cheap or worthless          . . . [i]n very poor taste or of very poor quality").                    Going beyond the lexicon, an impromptu survey of the case          law confirms that the word has been used to convey many different          meanings.  See, e.g., Giano v. Senkowski, 54 F.3d 1050, 1058 (2d          Cir. 1995) (Calabresi, J., dissenting) (describing erotic magazines          as "trashy");                        Johnson v.                                   City of Pleasanton                                                    , 781 F. Supp. 632, 638          (N.D. Cal. 1991) (using the word to denote inferior physical          appearance; commenting that satellite antennas make a building look          "trashy"),                     aff'd                           in                              part, 982 F.2d 350 (9th Cir. 1992);                                                                  Christy v.          Servitto, 699 F. Supp. 618, 625 (E.D. Mich. 1988) (quoting          attorney's description of a presumably disreputable woman as          "flashy trashy"), aff'd, 932 F.2d 502 (6th Cir. 1991).                    Literary sources also illustrate the variations in                                         12          meaning associated with the word "trashy." For example, Jeremiah          Dyke employed the term's "inferior quality" meaning when he spoke          of "[s]uch solvenly meat, such trashy meat, such bitter meat."          Jeremiah Dyke, Divers                                 Select                                        Sermons (1640). An English author          preferred its "prurient interest" connotation when she complained          of reading "the trashiest heap of novels." Jane Welsh Carlyle,          Letters                   and                       Memorials (1883). Edmund Wilson found the "lacking          worth" meaning useful when he described Rudyard Kipling's                                                                    Stalky &          Company as "crude in writing [and] trashy in feeling." Edmund          Wilson, The Wound and the Bow 114 (1941). Louis Bromfield showed          a more traditionalist bent, favoring the classic "covered with          withered growth" meaning of the word when he wrote of a seedbed          that "was rough and trashy." Louis Bromfield, Pleasant Valley 174          (1945). While these four illustrations merely scratch the surface,          they amply demonstrate the term's definitional flexibility.                    The usages paraded through the courtroom by Levinsky's          able counsel reinforce this point. Particularly revelatory are his          opening and closing statements, in which he seemed frankly to          acknowledge the word's many connotations. At various times,          counsel suggested to the jury that Olson's statement referred to          the manner in which the plaintiff maintained its stores (in this          context meaning "filthy" and "dirty"), to the merchandise that the          plaintiff purveyed (in this context meaning "inferior" and          "crappy"), and to the character of the persons associated with the                                         13          enterprise (in this context meaning "sleazy" and "untrustworthy").          This broadcast acknowledgement that the word "trashy" possesses a          multitude of fairly ascribable meanings is in itself telling.                    In this instance, moreover, the inherent elusiveness of          "trashy" is not pinned down by context. Indeed, the imprecision of          the word is accentuated by the testimony of the journalist,          Boardman, who, when asked his understanding of "trashy" as Olson          had voiced it, responded, "It's always been hard for me to define          exactly what he was referring to." In the same vein, Boardman          reported that Olson's only amplification of the remark was that          "customers should pay a little more money to buy the same item they          want somewhere else." Like "trashy" itself, this comment presents          a moving target.                    The polysemous nature of the word "trashy" dooms          Levinsky's effort to recover for Olson's use of it. The word          "trashy" is a chameleon that continuously changes colors and shades          of meaning. It admits of numerous interpretations. We can imagine          no objective evidence that might conclusively prove or disprove it.          Like the equally pejorative terms used in                                                    Phantom Touring                                                                   ("fake,"          "phony," "rip-off"), McCabe ("scam"), and Dilworth v. Dudley, 75                                             These iterations, including the adjectives quoted in the          parenthetical inserts, appear at pages 22-23 (opening statement)          and 273-274 (closing statement) of the trial transcript.               Following the district court's lead, Levinsky's counsel now          seeks to define "trashy" solely with reference to lack of          cleanliness. We give this tergiversation short shrift. Those who          sue for defamation are not at liberty to pick and choose among a          word's various possible definitions and saddle the speaker with the          consequences.                                         14          F.3d 307, 310-11 (7th Cir. 1996) (allowing no defamation remedy          when one scholar calls another a "crank"), "trashy" is          quintessentially subjective.                    To say more about this point would be supererogatory.          Branding a store, its merchandise, its customers, or its          proprietors as "trashy" is uncomplimentary, and it may be          unwarranted; in the last analysis, however, such a comment is loose          language that cannot be objectively verified. Consequently, it          belongs squarely in the category of protected opinion. It follows          inexorably that Levinsky's reliance on this unflattering adjective          to underpin a defamation claim offends the First Amendment.   See          Milkovich, 497 U.S. at 20-21;  Washington v. Smith, 80 F.3d 555,          556-57 (D.C. Cir. 1996);                                   Phantom Touring                                                 , 953 F.2d at 728;                                                                     McCabe,          814 F.2d at 842-43; see also Fudge v. Penthouse                                                           Int'l,                                                                  Ltd., 840          F.2d 1012, 1016 (1st Cir. 1988).                                    B.  On Hold.                    The district court likewise ruled that Olson's second          statement (when calling Levinsky's, "you are sometimes put on hold          for 20 minutes _ or the phone is never picked up at all")          encompassed matters of fact (or opinions that implied provably          false facts) and was, therefore, actionable. Wal-Mart takes          exception to this ruling. Its principal argument is that          constitutional shelter for this statement can be found in the First          Amendment protections typically afforded figurative language and                                         15          hyperbole. We think not.                    Certain excesses of language cannot ground a defamation          claim because, in context, those excesses involve only puffery or          epithets, and thus are insufficiently fact-based.     See,  e.g.,          Austin, 418 U.S. at 284-86 ("traitor");                                                  Bresler, 398 U.S. at 13-14          ("blackmail"). These turns of phrase are recognized rhetorical          devices; they are not actionable because they are commonly          understood, in context, as imaginative expressions rather than          statements of fact.                    Paddling furiously to reach this safe harbor, the          appellant urges us to interpret Olson's comment as an obvious          exaggeration, tantamount to the statement "you are sometimes put on          hold forever." No reasonable listener, the appellant asseverates,          would consider this variant an assertion of literal truth. But the          appellant's argument requires a leap of faith that we are unwilling          to essay. The First Amendment does not allow courts to distort the          reality of events under the guise of protecting freedom of          expression. Thus, a reviewing court must evaluate a speaker's          statement as it was given and must resist the temptation to replace          what was actually said with some more innocuous alternative.                    The determination of whether a statement is hyperbole                                             Wal-Mart's other arguments on this point can be dismissed out          of hand. In this wise, we note that the record contains no          evidence from which a jury supportably could find that this comment          was literally true. At trial, Olson testified that on three          separate occasions he had called Levinsky's and had been put on          hold for                    a                      total                             of                                20                                   minutes                                            or                                               more (but no longer than 10          minutes on any one occasion). The appellant adduced no other          evidence suggesting that Olson's statement was accurate.                                         16          depends primarily upon whether a reasonable person could interpret          the statement to provide actual facts about the individual or          institution it describes.   See  Milkovich, 497 U.S. at 20;   cf.          Hustler                    Magazine,                               Inc. v.   Falwell, 485 U.S. 46, 50 (1988)          (precluding recovery on the ground that an advertising parody,          which claimed that a minister had lost his virginity in a drunken          rendezvous with his mother, was incredible). Under this criterion,          the "20 minutes" statement seems sufficiently factual to be proved          true or false. For one thing, Olson's use of a specific time frame          cuts against treating his remark as hyperbole or other non-factual          speech. For another thing, the assertion can be verified or          rebutted by objective evidence of how Levinsky's staff handled          telephone calls (evidence of the type that, in fact, Levinsky's          adduced and the jury heard). In addition, the statement is not          inherently implausible. Especially given the pervasive folklore          concerning the difficulties that consumers encounter in dealing          with merchants telephonically, we believe that a reasonable          listener could interpret the "20 minutes" comment as a statement of          fact about Levinsky's business practices.                    As the appellant correctly notes, we cannot take the "20          minutes" remark in isolation. Seizing this potential lifeline,          Wal-Mart struggles to persuade us that the second part of Olson's          statement _ "the phone is never picked up at all" _ colors the          context and makes it plain that he was speaking figuratively.          Though context is an important aspect of the                                                      Milkovich inquiry,                                                                         see          Phantom                   Touring, 953 F.2d at 727; McCabe, 814 F.2d at 842-43, it                                         17          does not aid the appellant here. While the second portion of          Olson's statement does not incorporate a fixed temporal interval,          that remark, when read in tandem with the first portion of the          statement, does not defuse the defamatory potential. A reasonable          listener could well conclude that Levinsky's service was so bad          that the company not only left customers dangling on the line for          20 minutes at a crack, but also, on some occasions, simply did not          bother to answer the telephone.                    In fine, the overall context does little to dispel the          impression that Olson's comment stated facts about Levinsky's          business practices. After all, Levinsky's and Wal-Mart were locked          in hand-to-hand combat for shoppers' dollars, and Olson held an          executive position with Wal-Mart. While a reasonable listener          might be skeptical given Olson's likely motive (to try to lure          potential customers to his store), he gave his assertion a          particularized factual component. A listener reasonably could          conclude that Olson intended to describe from personal knowledge          how Levinsky's treated callers.                    The short of it is that neither the type of language          employed nor the overall tenor of the article negated the          reasonable impression that Olson steadfastly maintained that          Levinsky's telephone practices were in fact as he described them to                                             Olson did not furnish Boardman, and Boardman did not print,          any factual predicate for the assertions. This distinguishes them          from certain comments discussed in  Phantom                                                       Touring, 953 F.2d at          729, where context made it unmistakably clear that the challenged          speech, though superficially capable of being proved true or false,          represented only a point of view.                                         18          be. On this basis, the "20 minutes" statement properly could be          treated as fact-based defamation. So viewed, the statement does          not fit within the contours of protected speech, and it was, as the          lower court concluded, amenable to suit under the                                                           Milkovich regime.          V. PUBLIC CONCERN                    Even though the "20 minutes" statement is actionable, the          appellant has another defense in stock. The jury awarded only          presumed damages, and the Constitution forbids an award of presumed          or punitive damages for words spoken without actual malice on          matters of public concern. See                                          Dun & Bradstreet                                                         , 472 U.S. at 756.          Wal-Mart contends that this is such a case.                    The Supreme Court has roughly bisected the sphere of          social commentary between matters of public concern, which are          those that can be "fairly considered as relating to any matter of          political, social, or other concern to the community," and matters          of private concern, which are those that address "matters only of          personal interest."  Connick, 461 U.S. at 146-47. A court must          determine whether a statement comes within the public concern          hemisphere of this formulation by reference to its "content, form          and context."  Dun & Bradstreet, 472 U.S. at 761. In order to do          so, the relevant community need not be very large and the relevant          concern need not be of paramount importance or national scope.                                             Levinsky's assertion that Wal-Mart waived the right to raise          the public concern issue is meritless. The opinions of the          magistrate judge and the district judge in this case show beyond          any peradventure of doubt that Wal-Mart consistently pressed the          public concern argument in the proceedings below, and the trial          transcript confirms that fact.                                         19          Rather, "it is sufficient that the speech concern matters in which          even a relatively small segment of the general public might be          interested." Roe v.                               City of San Francisco                                                   , 109 F.3d 578, 585 (9th          Cir. 1997).                    When called upon to perform a public concern analysis,          courts have found the   Connick line of cases, i.e., judicial          decisions involving public employees fired for making comments that          arguably relate to matters of public concern, to be instructive.          The Supreme Court has approved this analogy,                                                       see                                                           Dun & Bradstreet                                                                          ,          472 U.S. at 759, and we encourage its use. Still, jurists and          lawyers alike should employ it with a caveat in mind. Public          employee cases typically involve speech on matters relating to          public sector jobs, and criticism of the workings of government is          at the core of conduct protected by the First Amendment.  See New          York                Times, 376 U.S. at 282-83, 292. Statements that implicate          issues outside the public sector may require more rigorous          analysis.                    In this case, the appellant argues that the "20 minutes"          statement related to a matter of public concern because       Biz          published it in an article describing the "David versus Goliath"          battle between Wal-Mart and a local, family-owned business. To          bolster this argument, Wal-Mart points out that Boardman decided to          write the piece because this type of business struggle had sparked          intense interest across the country and because Levinsky's radio          advertisements had called attention to a local microcosm of this          struggle. Levinsky's counters by characterizing the comments as                                         20          statements made in the course of a dispute between two private          businesses. The mere fact that the competition between the two          merchants interested a journalist, Levinsky's posits, does not make          the matter one of public concern.                    The district court decided this issue in Levinsky's          favor, but based its decision entirely on Olson's testimony that he          thought he was engaged in a private conversation with a college          student. This prop is very shaky. Passing the probability that          the prop is constructed from less than sturdy factual material _          Olson's query to Boardman ("You're not going to use my name, are          you?") suggests that at some point he did realize that Boardman          would convey his comments to a wider audience _ we do not think          that a speaker's subjective belief as to who will hear his          statements should be the sole determinant of the constitutional          question.                    To be sure, we have recognized that in some circumstances          a private statement might not qualify "on the basis of its content          alone, as a matter of inherent public concern," and that a court          therefore may consider the speaker's "subjective intent to          contribute to any . . . public discourse."  O'Connor v.  Steeves,          994 F.2d 905, 914 (1st Cir. 1993). Yet the Supreme Court has made          it pellucid that the First Amendment protects comments privately          expressed,                     see                         Givhan v.                                   Western Line Consol. Sch. Dist.                                                                 , 439 U.S.          410, 415-16 (1979), and that private statements can touch on          matters of public concern, see Rankin v. McPherson, 483 U.S. 378,          386 & n.11 (1987). It is thus apparent that the speaker's intent                                         21          is only one of a constellation of relevant factors implicated by a          whole-record review of the speech's form, content, and context.          See Connick, 461 U.S. at 147-48; O'Connor, 994 F.2d at 914 & n.5.          The primary focus of the relevant constitutional inquiry must          remain on the speech's content and the public's perception of the          topic, not on the speaker's subjective belief as to the          conversation's confidentiality.                    We are confronted, then, with a situation in which the          lower court's resolution of the public concern issue is undermined          by its incomplete assessment of the form, content, and context of          Olson's statements. That sort of disconnect is invariably a          problem for an appellate court. Here, however, the problem is          exacerbated in two ways.                    First, if we proceed on the record as it stands, we will          be compelled to resolve an unsettled question as to what sources an          appellate court may consult in attempting to ascertain whether a          statement relates to a matter of public concern. Of course,          certain things are clear. We know, for example, that Levinsky's          decision to sue Wal-Mart does not retroactively confer public          concern status on Olson's statements. To the contrary, media          coverage of the lawsuit itself is irrelevant on this issue.   See          Bruno                 &                   Stillman,                             Inc. v. Globe                                           Newspaper                                                     Co., 633 F.2d 583, 591          (1st Cir. 1980); cf.  Hutchinson v. Proxmire, 443 U.S. 111, 135          (1979) ("[T]hose charged with defamation cannot, by their own          conduct, create their own defense by making the claimant a public          figure."). We know, too, that Levinsky's radio advertisements,                                         22          Boardman's interest in the issue, and the                                                   Biz article, all of which          are of record here, constitute relevant evidence that may help to          determine public versus private concern by clarifying the context          in which Olson spoke.  See Rankin, 483 U.S. at 381-86 (examining          contextual evidence to determine whether a challenged statement          dealt with a matter of public concern). But the record contains          little else that bears on the public concern issue.                    Equally as vexing, the appellant has asked us to take          notice of a substantial body of information _ newspaper and          magazine articles, excerpts from congressional hearings, and the          like _ that could have been, but was not, presented below. It is          uncertain whether we may honor the appellant's request,       see          Matthews v.                      Marsh, 755 F.2d 182, 183 (1st Cir. 1985);                                                               United States          v. Kobrosky, 711 F.2d 449, 456 (1st Cir. 1983); Rosen v.  Lawson-          Hemphill,                     Inc., 549 F.2d 205, 206 (1st Cir. 1976), and, if so,          whether we should exercise that right.                    The second complicating factor is that the public concern          issue is intertwined with the question of actual malice.                                                                   See                                                                       supra          Part III(C). Accordingly, even if the "20 minutes" statement          involved a matter of public concern, an award of presumed damages          would be constitutionally acceptable as long as the statement had          been made with actual malice. In itself, this interrelation          between public concern and actual malice is standard fare. Here,          however, the district court did not resolve the actual malice          question, either by submitting it to the jury or otherwise, because                                         23          it had ruled against Wal-Mart on the public concern issue.                    These complications counsel in favor of judicial          restraint. Although we have the authority to resolve public          concern issues ab initio at the appellate level, see Connick, 461          U.S. at 147-48 & n.7, we choose not to exercise that authority in          this situation. We do not have the benefit of a reliable district          court decision on the public concern issue; the record is very          sparsely developed in regard to that issue; what evidence there is          does not suggest a clear answer to whether or not Olson spoke on a          matter of public concern; there is a substantial body of relevant          evidence that was never presented below; and the existence                                                                     vel                                                                         non          of actual malice remains problematic. Rather than groping for an          answer to the question under the combined weight of these          handicapping circumstances, we think that it would be fairest, all          around, to remand and give the parties (not to mention the district          court) a full opportunity to explore all aspects of this issue.          See              Penobscot Indian Nation                                     v.                                         Key Bank                                                , 112 F.3d 538, 561-62 (1st          Cir. 1997) (refusing to determine, as a matter of law, "public          figure" status in a defamation action when presented with          insufficient record evidence),   petition                                                       for                                                            cert.                                                                   filed, 66          U.S.L.W. 3130 (U.S. Aug. 4, 1997) (No. 97-219);       cf.  Icicle          Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986).                                              To be sure, the jury did find specially that Olson spoke          without common law malice (ill will or spite). Notwithstanding the          similarity in nomenclature, however, common law malice and actual          malice are not identical. See                                        Masson v.                                                  New Yorker Magazine, Inc.                                                                          ,          501 U.S. 496, 510-11 (1991) (discussing the distinction).                                         24          VI. NEGLIGENCE                    Over Wal-Mart's objection, the court below submitted          multiple defamation claims ("trashy" and "20 minutes") to the jury,          which returned only a general verdict. That verdict may have been          based, in whole or in part, on the improvidently submitted          ("trashy") claim. Where such a contretemps occurs and a reviewing          court cannot identify which of the two claims _ one proper and one          improper _ the jury relied upon to reach the general verdict, the          usual rule is that the verdict must be vacated.      See  Sunkist          Growers, Inc. v. Winckler & Smith Citrus Prods. Co., 370 U.S. 19,          30 (1962);                     Lattimore v.                                  Polaroid Corp.                                               , 99 F.3d 456, 468 (1st Cir.          1996). So it is here. Thus, we must remand for a new trial.                    In other circumstances, this conclusion might end the          appellate task. Here, however, the negligence issue persists:          Wal-Mart assigns error to the district court's refusal to instruct          the jury that the plaintiff had to show some fault on the          defendant's part to recover, and this issue is likely to arise on          retrial. Consequently, we tackle it here.                    Levinsky's tries to head off this inquiry altogether. It          asserts that any instructional error was a postmortem wound          inflicted after Wal-Mart had committed legal suicide both by          failing to contest Olson's negligence during the trial and by          admitting negligence in its closing argument. The nisi prius roll          does not verify this autopsy report.                    The record clearly shows that Wal-Mart contested          negligence at all times. Throughout the trial, it endeavored to                                         25          demonstrate that Olson's comments were not culpable, but, rather,          were reasonably based on his personal observation of conditions at          Levinsky's stores. By the same token, Levinsky's charge that Wal-          Mart's trial counsel conceded negligence reads too much into too          little.                    Specifically, Levinsky's points to the acknowledgement,          repeated twice in the course of Wal-Mart's summation, that Olson          "made a mistake." Certainly, an admission of counsel during trial          is binding on the client. See                                         Oscanyan v.                                                     Arms Co.                                                            , 103 U.S. 261,          263-64 (1880). To qualify as an admission, though, counsel's          statement, when taken in context, must be clear and unambiguous.          See              MacDonald v.                           General Motors Corp.                                              , 110 F.3d 337, 340 (6th Cir.          1997);                 United States                              v.                                  Insurance Co. of N. Am.                                                       , 83 F.3d 1507, 1511          n.6 (D.C. Cir. 1996); Schott                                        Motorcycle                                                   Supply,                                                           Inc. v.  American          Honda Motor Co., 976 F.2d 58, 61 (1st Cir. 1992).                    Here, counsel's statement that Olson "made a mistake"          falls measurably short of this benchmark. In its most natural          iteration, the remark can be understood as referring to Olson's          breach of his company's media communications policy. Disregarding          company policy is risky _ but it may or may not be negligent. Few          would doubt that if Olson could go back in time and exercise his          option to stand mute in the face of Boardman's interrogation, he          would do so. Characterizing Olson's conduct as a mistake, then,          probably had little to do with the issue of negligence. In all          events, it strains credulity to label counsel's description of          Olson's actions as a clear, unambiguous admission that those                                         26          actions satisfied the legal standard of fault. Consequently, we          reach the merits of the jury instruction claim.                    We review challenges to jury instructions with a focus on          whether the instructions "adequately illuminate the law applicable          to the controlling issues in the case without unduly complicating          matters or misleading the jury."  United                                                    States v. DeStefano, 59          F.3d 1, 3 (1st Cir. 1995). An erroneous instruction requires a new          trial if the preserved error, based on a review of the entire          record, can fairly be said to have prejudiced the objecting party.          See United States v. Taylor, 54 F.3d 967, 976 (1st Cir. 1995).                    In this instance, Wal-Mart requested a jury instruction          on negligence, but the trial judge denied the request and charged          the jury on the elements of defamation without mentioning fault.          Wal-Mart interposed a timely and legally sufficient objection.                                                                         See          Fed. R. Civ. P. 51.                    The trial judge made his position very clear. He          reasoned that the doctrine of defamation per se applied, and that,          because malice is implied in cases of defamation per se, a          negligence instruction would be pointless. We agree with the          court's premise but not with its conclusion.                    As we explained earlier,                                             see                                                supra Part III(D), Maine law          does not recognize liability without fault in defamation cases.          Contrary to the district court's view, Maine's allegiance to the          doctrine of defamation per se does not alter this rule. That          doctrine is relevant to damages, not to liability. Under it,          claimants in certain defamation cases need not prove actual damages                                         27          as a prerequisite to recovery.     See Rippett, 672 A.2d at 86          (applying the doctrine when the defendant's statement adversely          reflects on the plaintiff's business);                                                 Ramirez v.                                                            Rogers, 540 A.2d          475, 478 (Me. 1988) (applying the doctrine when the defendant's          statement implies a false charge of criminal conduct).                    It is true, of course, that Maine's Supreme Judicial          Court has held that "malice is implied as a matter of law in          [defamation per se] cases."  Saunders v. Van Pelt, 497 A.2d 1121,          1124-25 (Me. 1985). In one sense, that declaration might make it          seem that the doctrine relieves such a plaintiff of any burden to          show fault. But as this case proves, appearances are sometimes          deceiving.                    Common law malice refers only to state of mind,          specifically, ill will or spite.      See Masson v.   New                                                                       Yorker          Magazine, Inc.                       , 501 U.S. 496, 510-11 (1991);                                                      Lester, 596 A.2d at 70          n.8. The concept does not incorporate, and thus cannot subsume,          any fault standard. This is in sharp contradistinction to actual          malice, as that term is defined in the vocabulary of the First          Amendment. Actual malice does incorporate a fault standard _          "knowledge that [a statement] was false or . . . reckless disregard          [as to] whether it was false or not."    Masson, 501 U.S. at 510          (quoting New York Times, 376 U.S. at 279-80). Maine's defamation          per se doctrine contemplates the common law, rather than the          constitutional, brand of malice.  See  Michaud v. Inhabitants                                                                          of          Livermore Falls                        , 381 A.2d 1110, 1113 (Me. 1978). Hence, it is not          a proxy for the showing of fault that state defamation law                                         28          unambiguously requires.                    A recent deployment of the defamation per se doctrine by          Maine's highest court dispels any doubt on this score. In                                                                    Rippett,          the trial court granted summary judgment against a plaintiff who          claimed defamation per se because the police had made statements          that falsely charged her with criminal activity. 672 A.2d at 84-          86. The Maine Supreme Judicial Court reversed, holding that the          plaintiff had adduced sufficient evidence that the defendants had           made defamatory statements "on the basis of an investigation so flawed          as to constitute at least negligence."     Id. at 86. This holding          effectively reaffirmed Maine's requirement that a negligence element          must exist in all defamation cases; if defamation per se obviated the          need to show fault, the Rippett court's discussion of negligence would          have been superfluous.                    Accordingly, the court below erred in failing to instruct the          jury on Maine's negligence requirement in defamation actions. At a          subsequent trial, the district court should tender such an instruction.          VI. CONCLUSION                    We need go no further. Common sense suggests (and the record          shows) that Olson's comments were intemperate. Still, the statement          that something (a Levinsky's store, or its contents, or its owner) was          "trashy" cannot be objectively verified and thus is not actionable in a          defamation suit. That error poisons the general verdict, even though          Olson's other statement _ "20 minutes on hold" _ is fit for jury          consumption. Consequently, the general verdict must be set aside and          the case remanded for a new trial, subject, however, to whatever                                            29          resolution the lower court may make in regard to whether Olson's          comments implicated a matter of public concern, and if so, whether the          evidence is sufficient to show actual malice. If a new trial          transpires, the jury should be instructed, inter alia, on the element of          negligence under Maine defamation law.                    Reversed and remanded.                                            30
