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Radio Host’s Live Remarks Didn’t Defame Retailer

(CN) - The 9th Circuit shot down a defamation lawsuit against the host of a nationally syndicated radio show in Oregon, who was sued by a Polaris dealer after airing an interview with a disgruntled jet-ski buyer. The three-judge panel said host Tom Martino's statements were shielded as constitutionally protected opinion.

Martino of "The Tom Martino Show" invited Melissa Feroglia to call in to his consumer-advocacy show to talk about her dispute with Mt. Hood Polaris in Boring, Ore., owned by John and Susan Gardner.

During the live 55-minute interview, Feroglia said she bought a jet ski that repeatedly overheated and quit running. She told Martino that John Gardner had put in a new engine and tried to fix it, but gave up and offered to buy it back - only he didn't honor the offer. Later, Gardner allegedly told her that the jet ski had been fixed, to which Martino responded, "Yeah ... they're just lying to you."

The Gardners and Mt. Hood Polaris sued Martino, Westwood One and Clear Channel Communications for defamation, false light invasion of privacy and interference with economic relations.

Martino moved to dismiss the complaint as a meritless lawsuit aimed at chilling speech. U.S. District Judge Anna Brown agreed that the defendants were protected by the state's anti-SLAPP statute and dismissed the case without prejudice.

The Gardners appealed, claiming Martino's statements do not merit First Amendment protection because they are false.

In advising Brown, a magistrate judge pointed out that Martino's statement, "they're just lying to you," could have been referring to one of three potential lies: when the plaintiffs said they would buy back the jet ski; when the plaintiffs denied saying they would buy it back; or when the plaintiffs said they had tested the jet ski and it "worked great."

"We do not need to resolve which 'lie' Martino was referring to in the contested statements," wrote U.S. District Judge Consuelo B. Marshall, sitting on the 9th Circuit panel by designation, "because we hold that Martino's statements are nonactionable opinion, which is protected by the First Amendment."

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