Defamation, “Puppy Mills,” and “A Dog’s Purpose”April 2017
In the opening scene of the movie, A Dog's Purpose, based on the novel by Bruce Cameron, a Golden Retriever puppy escapes from a wire cage when the door is inadvertently left unlatched while a commercial breeder is showing a prospective purchaser a variety of dogs. Cages are stacked upon cages, and though the animals do not appear malnourished or mistreated, many observers would describe the operation as a "puppy mill." In fact, that is exactly how it was described in a book review in Publisher's Weekly.
But what is a "puppy mill," and is the term legally defamatory? This is an issue that recently had to be decided by the Missouri Supreme Court in Mary Ann Smith, d/b/a Smith's Kennel v. Humane Society of the United States and Missourians for the Protection of Dogs, SC 95175 (April 25, 2017).
The case involved an animal rights advocacy group's accusation that a dog breeder was operating a "puppy mill" and one of the "worst puppy mills" in the state. The Supreme Court of Missouri determined that this language, which was used "during a hotly contested political campaign" over proposed animal rights legislation, was "rhetorical hyperbole" and "lusty and imaginative expression" that could not reasonably be interpreted as stating actual facts, but constituted protected opinion. As such, the statements were not actionable defamation as a matter of law.
The case concerned an October 2010 Report of the Humane Society of the United States entitled, "Missouri's Dirty Dozen" ("Report"), which urged voters to support the Puppy Mill Cruelty Prevention Act. The Act, which was later approved by the voters but then limited by the legislature, would have capped the number of dogs used for breeding at 50, mandated rest periods between breeding, and required daily feedings. According to the Humane Society, the purpose of its Report was "to demonstrate current problems that could be addressed by the passage of [the Act], which Missouri citizens [would] vote on [that] November."
The Report listed what the Humane Society believed were the 12 worst Missouri "puppy mills," referencing them as "The Dirty Dozen." Included among the "Dirty Dozen" was plaintiff Mary Ann Smith's kennel, based on the Humane Society's analysis of the number and severity of state and federal animal welfare violations received by Smith's kennel.
The section of the Report devoted to Ms. Smith's kennel began, "Smith's Kennel has a history of repeat USDA violations stretching back more than a decade, including citations for unsanitary conditions; dogs exposed to below-freezing temperatures or excessive heat without adequate shelter from the weather; dogs without enough cage space to turn and move around freely; pest and rodent infestations; injured and bleeding dogs; dogs with loose, bloody stools who had not been treated by a vet; and much more." The Report then cited quotations about Ms. Smith's kennel from federal inspection reports:
- "In the adult building there are approximately 14 dogs with extremely long toenails. It is noted that some of these nails are turning the toes sideways as the dogs walk and hanging down through the wire flooring." (June 2009)
- "There are 3 outdoor pens that have Igloos for housing units that have no bedding material in them. The weather has been reaching temperatures of 20–30 degrees F at night for approximately the past week." (USDA Inspection, Nov. 2008)
- "The owner has issues with this facility that remain consistent with each inspection and more issues have surfaced since the last inspection." (2008)
Smith sued for defamation and false light invasion of privacy because the Report labeled her kennel as a "puppy mill" and among the "worst" puppy mills in the State. She also claimed that several other statements from the Report and later Humane Society news releases and news reports were defamatory, but most of these were generalizations about puppy mills and did not specifically identify Smith or her kennel.
The trial court dismissed Smith's claims based on arguments that the statements, though negative, were protected opinion and not factual. A court of appeals reversed and remanded. Although acknowledging "Plaintiff does not allege … that any of the information specifically about Plaintiff's kennel in the Report was false," the court of appeals held that "the contention that Plaintiff's kennel was a puppy mill with the definitions given as to what constitutes a puppy mill was, under the totality of the circumstances in this case, a factual contention" susceptible to trial for a jury determination falsity. From there, the case was appealed to the Missouri Supreme Court.
The Legal Issues
Under what is commonly referred to as the "opinion" defense, Missouri defamation law—like the law elsewhere—has consistently protected subjective and conclusory statements about a plaintiff's conduct, character, or motives where the factual basis for the statements are either stated or known. See, e.g., Castle Rock Remodeling, LLC v. Better Bus. Bureau of Greater St. Louis, Inc., 354 S.W.3d 234, 241 (Mo. App. E. D. 2011) (company's Better Business Bureau rating based on a subjective interpretation of data and not actionable as a matter of law). In such cases, courts have recognized that the audience is in a position to gauge for itself whether the speaker's conclusions carry weight in light of the stated facts. However, if the facts supporting the opinion are false or intentionally distorted in a material way, the statement, even though expressed as an opinion, may be actionable.
Further, the more subjective the statement, the less precise it is, and the less objectively verifiable it is supports a determination that the statement is protected opinion. Moreover, the context of the statement can be determinative: statements made in a political context or in a newspaper editorial are more likely to be protected. Finally, Missouri, like many jurisdictions, has rejected defamation claims based on ratings such as good or bad, the best or worst, or a grade of A, B, or C, etc.
In Smith's case, much of that would support a finding that the accusations about her kennel were protected opinion. Though some might not agree with the conclusion that the facts stated about Smith's kennel—none of which she disputed—made the kennel a "puppy mill," the recipients of the Report had the information needed to decide for themselves. Moreover, though having a negative connotation, the term "puppy mill" is not particularly precise or exactly verifiable. Additionally, the political context of the "puppy mill" accusation in the Humane Society's Report was obvious. Finally, once one accepts that the "puppy mill" accusation is protected expression, how can one reasonably gauge whether it is the "worst," any more than gauging whether a particular retailer is the worst in town?
The Missouri Supreme Court's Opinion
None of this established precedent was lost on the Missouri Supreme Court, which readily recognized that describing Smith's kennel as a "puppy mill," while also setting forth the undisputed facts about her kennel, constituted protected opinion. The Court noted that the term was imprecise, in that competing definitions of the term existed. According to the Court, one dictionary defines a "puppy mill" as "a commercial farming operation in which purebred dogs are raised in large numbers." Another definition cited by Smith, defined it as "[a]n establishment that breeds puppies for sale, typically on an intensive basis and in conditions regarded as inhumane." The Court said "[a]s used in the report, the term 'puppy mill' is imprecisely used as 'rhetorical hyperbole' and a 'lusty and imaginative expression of the contempt' of political advocates during a hotly contested political campaign that cannot, therefore, 'reasonably [be] interpreted as stating actual facts.'"
The Court also rejected Smith's claim that the Report's generalized description of the various conditions it observed at the "puppy mills" constituted the applicable definition for a "puppy mill." She claimed that all these conditions were necessarily attributed to her kennel. Because many of these conditions did not exist at her kennel, Smith claimed factual statements were present that could be proven false. According to the Court, however, these statements were "clearly not intended to apply to each and every kennel" referenced in the Report, but simply "aggregated some of the specific violations found" at these kennels. These statements, the Court said, were not "specifically referring to her kennel but are instead statements generally about the conduct of the 'Dirty Dozen.'" Moreover, characterizing the aggregated violations of the "Dirty Dozen" as "atrocious," "unconscionable," "major," or "flagrant" was "purely subjective" and did not "imply objective facts provable as false."
Next, the Court rejected Smith's claim that by calling her kennel among the "worst puppy mills in Missouri," the Report implied that she had more and more-severe animal welfare violations than other Missouri kennels. The Court noted that Smith did not dispute the Report's recitation of the violations found at her kennel. It then said "[t]he "severity" of a kennel's violations is, however, subjective and is not provable as false. A ranking or list, which includes the subjective interpretation of data, leads to subjective conclusions that cannot be provable as false." Because of this, rating her kennel as among the worst could not be actionable.
The Court also rejected Smith's claim that malicious motives were behind including her kennel in the Report and describing it as one of the "worst puppy mills." As noted by the Court, Smith was the mother of a state legislator, Jason Smith, who strongly advocated against the Puppy Mill Cruelty Protection Act and later introduced legislation seeking to limit it. The Court recognized that this does not affect the determination that the statements in the report were subjective opinion and not actionable fact. In fact, though the Court did not cite any support for this contention, it has long been the law that a person's motive for expressing negative opinion does not make an opinion actionable. Castle Rock Remodeling, 354 S.W.3d at 241.
Finally, Smith's attempts to salvage her lawsuit by asserting an alternative false light invasion of privacy claim were rejected by the Court, noting that where a claim is nothing more than a classic defamation case where one party alleges that the other published a false fact, then a false light claim will not lie. The Court noted that it had never adopted the false light tort and that only one Missouri appellate decision had condoned such a claim under vastly different factual circumstances. "[B]ecause Ms. Smith [did] not make any allegations cognizable as a false light invasion of privacy claim, it [was] not necessary for [the] Court to denominate a new cause of action for this tort at this time."
Free expression is fundamental in a democratic society and especially important in the political arena. The term "puppy mill" is imprecise, essentially unverifiable, and the type of rhetoric reasonably expected and legally protected in politically-charged debates. The Supreme Court's opinion preserves, as it recognized, important "constitutional guarantees of free speech and free press and the attendant commitment to maintain 'uninhibited, robust, and wide-open' debate on public issues."
 Lewis Rice LLC submitted an amicus brief in support of the Humane Society on behalf of the St. Louis Post-Dispatch, Kansas City Star, Council of Better Business Bureaus, and the Better Business Bureau of Eastern Missouri and Southern Illinois, in conjunction with Bruce Brown, in-house counsel for the Reporter's Committee for Freedom of the Press. Defendants were represented by Lathrop & Gage in Kansas City.