                               District of Columbia
                                Court of Appeals
No. 14-CV-792
                                                                      APR - 7 2016
KAREN THOMPSON,
                                                Appellant,

     v.                                                       CAB-4137-09


WILLIAM H. ARMSTRONG,
                                                Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                   Civil Division


     BEFORE:       BLACKBURNE-RIGSBY and BECKWITH, Associate Judges; and
FARRELL, Senior Judge.

                                    JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

             ORDERED and ADJUDGED that the judgment for the appellee is
reversed, and the matter is remanded with instructions for the trial court to enter
judgment in favor of the appellant.

                                         For the Court:




Dated: April 7, 2016.

Opinion by Senior Judge Michael W. Farrell.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 14-CV-792                         4/7/16

                         KAREN THOMPSON, APPELLANT,

                                         v.

                       WILLIAM H. ARMSTRONG, APPELLEE.

                      Appeal from the Superior Court of the
                              District of Columbia
                                (CAB-4137-09)

                        (Hon. Stuart G. Nash, Trial Judge)

(Argued February 29, 2016                                 Decided April 7, 2016)

      Joshua J. Fougere, with whom Joseph R. Guerra, Noah T. Katzen, and
Arthur B. Spitzer were on the brief, for appellant.

      Kevin Byrnes for appellee.

     Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and
FARRELL, Senior Judge.

      FARRELL, Senior Judge: A jury awarded William H. Armstrong sizable

damages in his suit alleging intentional interference with a prospective contractual

relationship by Karen Thompson.          Before us is Ms. Thompson‟s appeal

contending, mainly, that she was erroneously denied judgment as a matter of law

because the suit, premised on true or non-provably false statements she had made
                                        2


to a government agency about Mr. Armstrong‟s fitness for a law enforcement

position, was precluded by the First Amendment. In light of what we conclude

was Mr. Armstrong‟s status as a public official at the time, we agree with Ms.

Thompson and reverse the judgment in Mr. Armstrong‟s favor.1



                                I.     Background



                                        A.



      The facts underlying Mr. Armstrong‟s multi-count suit against Ms.

Thompson are described in our earlier opinion, Armstrong v. Thompson, 80 A.3d

177 (D.C. 2013) (Armstrong I), as follows:



            [Mr.] Armstrong, a former special agent with the
            Treasury Inspector General for Tax Administration
            (TIGTA), was on the verge of leaving TIGTA to take a
            job at the United States Department of Agriculture
            (USDA) when the USDA abruptly rescinded its offer of
            employment after one of Mr. Armstrong‟s TIGTA
            coworkers sent six then-anonymous letters to the USDA
            avowing that the agency was making a “grave error” in
            offering Mr. Armstrong a job because he was under
            internal investigation for serious integrity violations and

      1
         We accordingly have no occasion to reach Ms. Thompson‟s alternative
claims of trial error.
                                          3


              other misconduct and would be a liability to the USDA.



Id. at 180 (footnote omitted.).2 On the basis of these letters, Mr. Armstrong

brought five tort claims against the letter writer, Ms. Thompson: defamation,

invasion of privacy (false light), invasion of privacy (publication of private facts),

intentional infliction of emotional distress, and intentional interference with

contractual relations. Following discovery, the trial court (Judge Epstein) granted

summary judgment to Ms. Thompson on each claim after applying the common-

law elements of each tort. On Mr. Armstrong‟s appeal, this court affirmed that

decision as to the first four claims. With particular focus on the defamation claim,

the court analyzed in detail Ms. Thompson‟s letters to the USDA and concluded

that “no reasonable juror could deny the substantial truth of each of the statements

[of fact] to which Mr. Armstrong objects,” and that the rest of the statements “were

assertions of opinion that were unverifiable and therefore not actionable as

defamation.” Id. at 185, 187.3


      2
          TIGTA is a division of the United States Department of Treasury.
      3
         The court‟s affirmance on the twin invasion of privacy counts rested on
the substantial overlap of the elements of those torts with the elements of
defamation, Armstrong I, 80 A.3d at 188-89, and on the principle that “a plaintiff
may not avoid the strictures of the burdens of proof associated with defamation by
resorting to a claim of false light invasion.” Id. at 188 (citations and internal
quotation marks omitted). Regarding the emotional distress claim, we concluded
                                                                (continued…)
                                          4


      This court reversed, however, as to Mr. Armstrong‟s claim of intentional

interference with contractual relations. As a defense to that tort, we recognized,

the defendant may seek “to prove that her interference was not wrongful,” id. at

190, and in determining whether that burden has been met courts, “following

settled law in the District of Columbia,” must weigh seven factors as spelled out in

the RESTATEMENT (SECOND) TORTS § 767 (1977). Id. at 191. Unlike the trial

judge, we concluded that on the evidence proffered by Mr. Armstrong, “reasonable

minds could differ on the outcome of this balancing test and on . . . whether Ms.

Thompson was legally justified in intentionally interfering with Mr. Armstrong‟s

prospective employment.” Id.



      At the same time, we took note of the fact that in a post-argument

submission to this court Ms. Thompson had “argued for the first time that the

truthfulness of her allegations to the USDA should preclude liability for intentional

interference under § 772 (a) of the RESTATEMENT.” Id. at 191 n.28.4 But, we

___________
(…continued)
that “no reasonable juror could find that [Mr. Armstrong‟s] distress was so severe
as to satisfy the third [element] of the tort of intentional infliction.” Id. at 189.
      4
         RESTATEMENT § 772 (a) states that “[o]ne who intentionally causes a third
person . . . not to enter into a prospective contractual relation with another does not
interfere improperly with the other‟s contractual relation, by giving the third
person . . . truthful information.”
                                          5


observed, “this court has never explicitly adopted § 772,” and we declined to

consider the issue — “not an uncomplicated one” — because Ms. Thompson had

not argued “in her appellate brief . . . or in the trial court that truthfulness was a

complete defense under RESTATEMENT § 772,” id., citing “Dyer v. William

Bergman & Assocs., 657 A.2d 1132, 1137 n.5 (D.C. 1995) (defendant waived his

contention that the court should adopt the „truthful statement‟ defense to an

intentional interference claim by failing to raise the issue before the trial court and

in his first appeal).” In Armstrong I, therefore, we “remanded [the case] for further

proceedings” limited to the intentional interference claim. Id. at 192.



                                          B.



      In moving originally for summary judgment, Ms. Thompson had argued

that, besides common law defenses entitling her to judgment as a matter of law, the

First Amendment shielded her completely from liability for truthful or not

provably false statements made to the USDA about Mr. Armstrong, a public

official, citing Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), and Cohen v.

Cowells Media Co., 501 U.S. 663 (1991). Judge Epstein did not reach the First

Amendment argument because of his resolution of each tort-claim on common law

grounds. After this court‟s partial reversal, Ms. Thompson renewed before the trial
                                         6


court (now Judge Nash) the defense that her non-defamatory statements of fact and

opinion about a “public official” were fully protected by the First Amendment.

Judge Nash declined to consider the argument, however, because he deemed this

court to have held that both the common law (RESTATEMENT § 772) and First

Amendment defenses were waived. See JA 84-85 (finding no “possibility that this

court could, consistent with the Court of Appeals decision, grant summary

judgment to [Ms. Thompson] on the ground that the communications contained

exclusively truthful information”). At a later point, the judge reiterated that the

First Amendment defense “is one of the arguments that I‟ve found to have been

waived.” The case therefore proceeded to trial and verdict.



                                   II.   Discussion



                                          A.

      Ms. Thompson argues that both First Amendment and common law

principles, specifically the RESTATEMENT (SECOND) TORTS § 772 (a), barred her

liability as a matter of law for statements this court held were either substantially

true factually or, as expressions of opinion, not provably false. Mr. Armstrong

counters at the outset that both arguments are foreclosed by Armstrong I (Br. for

Appellee at 6). He is only partly right. In that appeal, this court rejected Ms.
                                           7


Thompson‟s invitation for us to adopt § 772 (a) because neither in the trial court

nor on appeal had she argued, contrary to settled law in this jurisdiction, “that

truthfulness was a complete defense under Restatement § 772.” Id. at 191 n.28.

That ruling did not, as Ms. Thompson implies, merely postpone consideration of

the issue to the trial court on remand; instead, we cited Dyer v. William S. Bergman

& Assocs., supra, and its holding that the defendant there “waived” the § 772

argument “by failing to raise the issue before the trial court and in his first appeal.”

Id. Consequently, this holding of waiver by Armstrong I became the law of the

case, see, e.g., Lynn v. Lynn, 617 A.2d 963, 969 (D.C. 1992) (law of the case

“precludes reopening questions resolved by an earlier appeal in the same case”),

and Judge Nash correctly refused to consider the § 772 argument on remand.



      Mr. Armstrong is mistaken, on the other hand, in arguing that Armstrong I

rejected Ms. Thompson‟s First Amendment defense. The court there said nothing

about potential First Amendment limits on Mr. Armstrong‟s ability to sue for

intentional interference, for the obvious reason that Ms. Thompson had not raised

it as an alternative ground for upholding the summary judgment granted by Judge

Epstein (who in turn had not reached the First Amendment defense). On appeal,

Mr. Armstrong takes no serious issue with Ms. Thompson‟s point that she was not

obliged to raise the alternative ground for affirmance.         See, e.g., Crocker v.
                                          8


Piedmont Aviation, Inc., 49 F.3d 735, 740-41 (D.C. Cir. 1995) (“forcing appellees

to put forth every conceivable alternative ground for affirmance might increase the

complexity and scope of appeals more than it would streamline the progress of the

litigation”). Instead, Mr. Armstrong points to a statement later by a motions

division of this court, in denying Ms. Thompson‟s motion for stay of judgment

after the jury‟s verdict, which Mr. Armstrong sees as tantamount to rejecting the

First Amendment defense on the merits.5 But in denying the stay request, the

motions division well knew that it was not deciding the merits of Ms. Thompson‟s

appeal but only, among other things, the likelihood of her succeeding on the

merits. Its ruling was thus consistent with the doctrine that a merits division of the

court may “depart[ ] from a motion division‟s ruling in the same case,” Kleinbart

v. United States, 604 A.2d 861, 867 (D.C. 1992), and that “law of the case is not

established” by “denial of a stay.” 18 B CHARLES ALAN WRIGHT, ARTHUR R.

MILLER, et al., FEDERAL PRACTICE & PROCEDURE § 4478.5 (2d ed. 2015).



      Judge Nash therefore erred in concluding that Armstrong I foreclosed

consideration of Ms. Thompson‟s First Amendment defense. But because, as will

be apparent, no further development of the record is necessary to resolve the First

      5
         The motions division observed that Ms. Thompson had not cited “any case
binding in our jurisdiction that holds that the First Amendment precludes liability
for truthful statements involving private figures on matters of private concern.”
                                          9


Amendment issues, a remand to the trial court for that purpose is unnecessary and

we proceed to consideration of them.



                                          B.



      It is axiomatic that “[t]he Free Speech Clause of the First Amendment . . .

can serve as a defense in state tort suits . . . .” Snyder v. Phelps, 562 U.S. 443, 451

(2011). Although the protections which the First Amendment affords speech have

been applied most prominently in suits for defamation, see, e.g., New York Times

Co. v. Sullivan, 376 U.S. 254 (1964), their applicability to other torts has

repeatedly been recognized. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S.

46 (1988) (protections applied to intentional infliction of emotional distress);

Blodgett v Univ. Club, 930 A.2d 210, 222-23 (D.C. 2007) (“a plaintiff may not

avoid the strictures of the burdens of proof associated with defamation by resorting

to a claim of false light invasion”).          Unsurprisingly, therefore, courts have

regularly held that First Amendment restrictions apply to suits for intentional

interference with contractual relations. See Farah v. Esquire Magazine, 736 F.3d

528, 540 (D.C. Cir. 2013); Jefferson City Sch. Dist. No. R-1 v. Moody’s Investor

Servs., Inc., 175 F.3d 848, 856-58 (10th Cir. 1999); Beverly Hills Foodland Inc. v.

United Food & Commercial Workers Union, Local 655, 39 F.3d 191, 196-97 (8th
                                         10


Cir. 1994); Unelko Corp. v. Rooney, 912 F.2d 1049, 1057-58 (9th Cir. 1990); cf.

Delloma v. Consol. Coal Co., 996 F.2d 168, 172 (7th Cir. 1993) (noting the

“significant First Amendment problems” that would be raised by “permitting

recovery for tortious interference based on truthful statements”). Mr. Armstrong‟s

argument that defamation and intentional interference protect very different

interests can be made regarding invasion of privacy or any of the other actions that

courts have refused to distinguish for First Amendment purposes. The point, and

the reason we align ourselves with the decisions just cited, is that “a plaintiff may

not use related causes of action to avoid the constitutional requisites of a

defamation claim.” Moldea v. New York Times Co., 22 F.3d 310, 319-20 (D.C.

Cir. 1994).



                                         C.



      The issue before us, then, is whether the First Amendment provides full

protection from liability to Ms. Thompson for her statements about Mr. Armstrong

to USDA that this court determined were either substantially true or not provably

false. We conclude that it does.



      The First Amendment “prohibits a public official from recovering damages
                                         11


for a defamatory falsehood relating to his official conduct unless he proves that the

statement was made with „actual malice.‟” New York Times, 376 U.S. at 279-80.

The reason is that, “where the criticism is of public officials and their conduct of

public business, the interest in private reputation is overborne by the larger public

interest, secured by the Constitution, in the dissemination of truth.” Garrison v.

Louisiana, 379 U.S. 64, 72-73 (1964).         To prove “actual malice” in these

circumstances, the public official must show by clear and convincing evidence

“that the statement was made . . . with knowledge that it was false or with reckless

disregard of whether it was false or not.” New York Times, 376 U.S. at 279-80.

And “actual malice” must be shown regardless of the speaker‟s motives. See

Garrison, 379 U.S. at 74 (rejecting, under New York Times Co., a Louisiana rule

“permitting a finding of malice based on an intent merely to inflict harm, rather

than an intent to inflict harm through falsehood”).



      To decide whether Mr. Armstrong was required to prove actual malice on

Ms. Thompson‟s part, therefore, we must ask whether Mr. Armstrong, a

government employee, was a “public official” and, if so, whether Ms. Thompson‟s

statements to USDA “relat[ed] to his official conduct.” New York Times, supra.

Together these questions implicate the third and broader one of whether Ms.

Thompson‟s statements involved issues of public concern, because “[i]t is speech
                                         12


on matters of public concern that is at the heart of the First Amendment‟s

protection.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,

758-59 (1985) (plurality opinion) (citations and internal quotation marks omitted);

see Snyder, 562 U.S. at 451-52.



                                         1.



      Undisputed facts of record and relevant case authority, including a decision

of our own, teach us that Mr. Armstrong was a public official at the time in

question.   He was an Assistant Special Agent in Charge (ASAC) at TIGTA,

supervising five to seven employees.       As an ASAC, he was responsible for

managing a group of Special Agents investigating mainly fraud involving Internal

Revenue Service procurements. His unit presented the results of its investigations

either to an “adjudicator” or to the United States Attorney‟s Office if possible

criminal prosecution was warranted. His duties required him to carry a firearm and

federal law enforcement credentials, and gave him access to sensitive databases

and information. In TIGTA‟s own description, which Mr. Armstrong does not

question, he occupied “a position of heightened public trust and responsibility” as a

“[f]ederal law enforcement officer,” and “[a]s an ASAC [was] held to a higher

standard of conduct than non-supervisory employees . . . .”
                                         13




      Whether Mr. Armstrong was a public official “is a question of law to be

resolved by the court.” Moss v. Stockard, 580 A.2d 1011, 1029 (D.C. 1990).

Although the term “„public official‟ cannot „be thought to include all public

employees,‟” id. (quoting Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979)),

the designation “applies at the very least to those among the hierarchy of

government employees who have, or appear to the public to have, substantial

responsibility for or control over the conduct of governmental affairs.” Rosenblatt

v. Baer, 383 U.S. 75, 85 (1966) (emphasis added). Lower courts have consistently

held that this standard fits the responsibility of law enforcement officers,

particularly those with supervisory authority. This court is among them. In Beeton

v. District of Columbia, 779 A.2d 918 (2001), we considered whether the

plaintiff/appellant, a correctional officer at the District‟s then-prison facility in

Lorton, Virginia, was a public official “at the time the [alleged] defamatory article

[about her] appeared.” Id. at 920. In holding that she was, we pointed out that Ms.

Beeton was commonly addressed as “Corporal” and had recently been “named the

Officer in Charge . . . of the Facility‟s Control Center,” id., and we relied on

“several cases from other jurisdictions holding that law enforcement officers are

public officials.”   Id. at 924. We found particularly instructive St. Amant v.

Thompson, 390 U.S. 727 (1968), in which, we said, “the Supreme Court [had]
                                         14


concluded that a deputy sheriff was a public official and had the burden of proving

that the statements about his official conduct were made with actual malice.” Id.

Although Mr. Armstrong points out that in St. Amant the Supreme Court actually

accepted, “[f]or purposes of this case” and without further discussion, the state

court‟s finding that the plaintiff was a public official, see 390 U.S. at 730, that

discrepancy is of no moment: Beeton‟s holding that a law enforcement officer, at

least one clothed with supervisory authority as Ms. Beeton was, is a public official

is unmistakable.



      Many courts have gone further and held that, because “[l]aw enforcement is

a uniquely governmental affair,” an officer “of law enforcement, from ordinary

patrolman to Chief of Police, is a „public official‟ within the meaning of federal

constitutional law.” Roche v. Egan, 433 A.2d 757, 762 (Me. 1981) (collecting

cases).6 Here it is enough for us to conclude that Mr. Armstrong, a supervisory


      6
          See also Price v. Viking Penguin, Inc., 881 F.2d 1426, 1429-31 (8th Cir.
1989) (FBI Special Agent a public official); Gray v. Udevitz, 656 F.2d 588, 591
(10th Cir. 1981) (law enforcement officials “have uniformly been treated as public
officials within the meaning of New York Times”); Dixon v. Int’l Bhd. of Police
Officers, 504 F.3d 73, 88 (1st Cir. 2002) (police officers are public officials);
Rotkiewicz v. Sadowsky, 730 N.E.2d 282, 288-89 & n.5 (collecting cases) (Mass.
2000) (police officers are public officials for purposes of defamation suit); Rattray
v. City of Nat’l City, 51 F.3d 793, 800 (9th Cir. 1994) (citing cases); Hildebrant v.
Meredith Corp., No. 13-CV-13972, 2014 WL 5420787, at *10 (E.D. Mich. Oct.
23, 2014) (law enforcement officers are public officials for purposes of
                                                                  (continued…)
                                           15


special agent in TIGTA investigating potential criminal fraud, with access to

confidential databases and occupying what TIGTA itself considered “a position of

heightened public trust and responsibility,” was a public figure within the First

Amendment when Ms. Thompson made her statements.



                                           2.



      Ms. Thompson‟s statements to USDA about Mr. Armstrong also “relate[d]

to his official conduct.” New York Times, 376 U.S. at 279-80. “[T]hat limitation,”

one Circuit Court has stated, “has been broadly construed to reach „anything which

might touch on . . . [the] official‟s fitness for office.‟” Dixon v. Int’l Bhd. of Police

Officers, 504 F.3d 73, 88 (1st Cir. 2007) (quoting Garrison, 379 U.S. at 77). And,

as the Supreme Court stated in Garrison, “[f]ew personal attributes are more

germane to fitness for office than dishonesty, malfeasance, or improper motivation,

even though these characteristics may also affect the official‟s private character.”

379 U.S. at 76. Ms. Thompson‟s letters to USDA, as we explained in Armstrong I,

___________
(…continued)
defamation, regardless of whether they set department policy); Young v. Gannett
Satellite Info. Network, Inc., 837 F. Supp. 2d 758, 763 (S.D. Ohio 2011) (“[A]s a
police officer, Young is a public figure for purposes of his defamation claim.”).
                                         16


80 A.3d at 185-88, concerned a TIGTA investigation of Mr. Armstrong for

allegedly gaining unauthorized access to and improperly using information from

TIGTA databases. For instance, what Mr. Armstrong “contends . . . [was] the most

damning claim in Ms. Thompson‟s letters” was that USDA was offering Mr.

Armstrong employment at roughly the same time he “was under internal

investigation by his own agency for suspected violations of both a criminal and

investigative nature.” Id. at 185. These statements undeniably related to Mr.

Armstrong‟s fitness to hold another law enforcement position similar to that he

occupied at TIGTA.



      It is also apparent to us that Ms. Thompson‟s statements to USDA involved

not just Mr. Armstrong as an individual, but matters of “public concern.” Dun &

Bradstreet, 472 U.S. at 758-59.       At least as applied to a supervisory law

enforcement official, we agree that “the ethics of a government employee and thus

his fitness for office” are “quintessentially [a matter] of public concern.” Lewis v.

Elliott, 628 F. Supp. 512, 521 (D.D.C. 1986); see Ayala v. Washington, 679 A.2d

1057, 1067 (D.C. 1996) (“speech [that] concerns the conduct of government . . .

[is] properly treated as of „public concern‟”). Mr. Armstrong counters that Ms.

Thompson‟s letters were essentially the act of a disgruntled employee

masquerading as good-citizen whistleblowing; he cites for this the remarks of
                                           17


judges in earlier related federal litigation that she was acting out of “personal

motives” or, “as far as anybody can tell, out of some sort of vendetta.”7 But

because no question of the First Amendment was before these judges, they had no

reason to be mindful of the “breathing space” it affords speech about the fitness of

public officials, even if motivated by “ill-will.” Garrison, 379 U.S. at 73-74. The

parties dispute Ms. Thompson‟s motives for reporting Mr. Armstrong‟s

embroilment to USDA, but ultimately they are beside the point.8 Judge Epstein,

while also not deciding First Amendment issues, correctly saw the matter of public

concern reflected in society‟s interest “in encouraging disclosure of” substantially

true information “to a federal agency regarding a prospective employee‟s prior

misconduct that is directly related to his fitness for the potential position.”



      It remains for us to reject Mr. Armstrong‟s reliance on Connick v. Myers,

461 U.S. 138 (1983).         There the speech at issue was an internal office

questionnaire that sought answers from co-employees about things like “office

morale” and “the level of confidence in supervisors.” Id. at 141. “[I]f released to

      7
          See Armstrong v. Thompson, 759 F. Supp. 2d 89, 95 (D.D.C. 2011).
      8
          Also beside the point is whether, as Mr. Armstrong contended at oral
argument, USDA was already aware of the information concerning the TIGTA
investigation through Mr. Armstrong and TIGTA‟s own disclosures. This has no
effect on whether Ms. Thompson‟s disclosures are protected by the First
Amendment.
                                          18


the public,” the Supreme Court held, the questionnaire and answers “would convey

no information . . . other than the fact that a single employee [who circulated it] is

upset with the status quo.” Id. at 148. By contrast, Ms. Thompson‟s letters — in

Connick‟s distinguishing words — sought to inform USDA of “actual or potential

wrongdoing or breach of public trust” by a supervisory official, id., a disclosure

“touching upon a matter of public concern.” Id. at 147.



                                          3.



      For these reasons, to avoid summary judgment Mr. Armstrong had to show

that triable issues of fact existed as to Ms. Thompson‟s actual malice in sending the

letters. See Nader v. de Toledano, 408 A.2d 31, 50 (D.C. 1979) (“The question to

be resolved at summary judgment is whether plaintiff‟s proof is sufficient such that

a reasonable juror could find malice with convincing clarity . . . .”). In light of our

decision in Armstrong I, supra, he could not do so. The assertions of fact in Ms.

Thompson‟s letters, we held, were substantially true as a matter of law, 80 A.3d at

185, and the Supreme Court has “long held . . . that actual malice entails falsity.”

Air Wisconsin Airlines v. Hoeper, 134 S. Ct. 852, 861 (2014). For the rest, the

letters consisted of expressions of opinion that we concluded “were unverifiable

and therefore not actionable in defamation.” Id. at 187. The Supreme Court
                                         19


similarly held in Milkovich v Lorain Journal Co., 479 U.S. 1 (1990), that “a

statement of opinion relating to matters of public concern which does not contain a

provably false factual connotation will receive full constitutional protection.” Id.

at 20.     In sum, as a matter of law under the First Amendment, none of the

statements in Ms. Thompson‟s letters provided a basis for liability.



                                         D.



         Accordingly, we must reverse the judgment entered for Mr. Armstrong and

remand with directions for the trial court to enter judgment in favor of Ms.

Thompson.



                                              So ordered.
