Bucher v. Roberts, 595 P.2d 239 (Colo. 1979). · Go Syfert
Bucher v. Roberts, 595 P.2d 239 (Colo. 1979). Cases Citing This Book View Copy Cite
118 citation events (4 in the last 25 years) across 17 distinct courts.
Strongest positive: TMJ Implants, Inc. v. Aetna, Inc. (ca10, 2007-08-21)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) TMJ Implants, Inc. v. Aetna, Inc.
10th Cir. · 2007 · confidence medium
Co., 659 P.2d 1351, 1357-59 (Colo.1983) (adopting Restatement § 559 and its cmt. e regarding when statement may be defamatory, citing Restatement § 563 regarding determination of defamatory meaning, and relying on Restatement § 566 and its cmt. b regarding protected opinions); Bucher v. Roberts, 198 Colo. 1 , 595 P.2d 239, 241-42 (1979) (relying on Restatement § 566 and its cmts. c and e regarding protected opinion). 3 .
examined Cited as authority (rule) In Re Green (3×) also: Cited "see"
Colo. · 2000 · confidence medium
As a logical extension of the New York Times test for assessing the defendant's knowledge of the falsity of his statement, "a crucial distinction exists between false statements of fact which receive no constitutional protection in defamation cases and ideas or opinions which by definition can never be false so as to constitute false statements which are unprotected." Bucher v. Roberts, 198 Colo. 1, 3 , 595 P.2d 239 241 (1979); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974) ("Under the First Amendment there is no such thing as a false idea.").
discussed Cited as authority (rule) Travers v. Shane
Mass. Super. Ct. · 1995 · confidence medium
App. 1982) (“fucking spic” and “fucking Mexican greaser” not slander per se); Bucher v. Roberts, 595 P.2d 239, 241 (Colo. 1979) (notdefam-atoiy, as a matter of law, for supervisor to criticize buyer for using too many sources by uttering: “You did not need two fucking gabardine resources.
discussed Cited as authority (rule) Moore v. Sun Publishing Corp.
N.M. Ct. App. · 1994 · confidence medium
“Once a court needs to speculate concerning the meaning the statement purports to convey, as must be done here, we enter the area of opinion as opposed to factual assertion.” Bucher v. Roberts, 198 Colo. 1 , 595 P.2d 239, 241 (1979) (en banc).
discussed Cited as authority (rule) Henderson v. Times Mirror Co.
D. Colo. · 1987 · confidence medium
As re-affirmed in Bucher v. Roberts, 198 Colo. 1 , 595 P.2d 239, 241 (1979), “Once a court needs to speculate concerning the meaning the statement purports to convey ... we enter the area of opinion as opposed to factual assertion.” The next step under the Oilman test is to assess whether the statements are objectively capable of proof or disproof.
discussed Cited as authority (rule) Henry v. Halliburton
Mo. · 1985 · confidence medium
See e.g., Lauderback v. American Broadcasting Co., 741 F.2d 193, 195 (8th Cir.1984); Rinsley v. Brandt, 700 F.2d 1304, 1309 (10th Cir.1983); Cianci v. New Times Publishing Co., 639 F.2d 54, 63 (2nd Cir.1980); Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2nd Cir.1977), cert. denied, 434 U.S. 834 , 98 S.Ct. 120 , 54 L.Ed.2d 95 ; Bucher v. Roberts, 198 Colo. 1 , 595 P.2d 239, 241 (1979); Fleming v. Benzaquin, 390 Mass. 175 , 454 N.E.2d 95, 103-04 (1983); Duchesnaye v. Munro Enterprises, Inc., 125 N.H. 244 , 480 A.2d 123, 125 (1984); Beckman v. Dunn, 276 Pa.Super. 527 , 419 A.2d 583, 587 (1980).
discussed Cited as authority (rule) Burns v. McGraw-Hill Broadcasting Co., Inc. (2×)
Colo. · 1983 · confidence medium
We have recognized that “a crucial distinction exists between false statements of fact which receive no constitutional protection in defamation cases and ideas or opinions which by definition can never be false so as to constitute false statements which are unprotected.” Bucher v. Roberts, 198 Colo. 1, 3 , 595 P.2d 239, 241 (1979); see Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974).
discussed Cited as authority (rule) From v. Tallahassee Democrat, Inc.
Fla. Dist. Ct. App. · 1981 · confidence medium
Again, this question has not heretofore been clearly answered in Florida, but we think the better view should be as pronounced in Bucher v. Roberts, 595 P.2d 239 *57 (Colo. 1979), and Rinaldi v. Holt, Rhinehart & Winston, Inc., 42 N.Y.2d 369 , 397 N.Y.S.2d 943 , 366 N.E.2d 1299 , cert. denied, 434 U.S. 969 , 98 S.Ct. 514 , 54 L.Ed.2d 456 (1977).
discussed Cited as authority (rule) Pease v. Telegraph Publishing Co.
N.H. · 1981 · confidence medium
Gregory v. McDonnell Douglas Corp., 17 Cal. 3d 596, 601 , 552 P.2d 425, 428 , 131 Cal. Rptr. 641, 644 (1976); Bucher v. Roberts, 595 P.2d 239, 241 (Colo. 1979) (en banc); Rinaldi v. Holt, Rhinehart, 42 N.Y.2d 369, 381 , 366 N.E.2d 1299, 1306 , 397 N.Y.S.2d 943, 950 , cert. denied, 434 U.S. 969 (1977); cf. Letter Carriers v. Austin, 418 U.S. 264, 282-84 (1974).
examined Cited "see" Dunlap v. Wayne (4×)
Wash. · 1986 · signal: see · confidence high
See Bucher v. Roberts, 198 Colo. 1, 3-5 , 595 P.2d 239, 241-42 (1979).
discussed Cited "see" Mari v. Wagner Equipment Co., Inc. (2×)
Colo. Ct. App. · 1986 · signal: see · confidence high
See Roberts v. Bucher, 41 Colo.App. 138 , 584 P.2d 97 (1978), rev’d on other grounds, 198 Colo. 1 , 595 P.2d 239 (1979).
examined Cited "see" Bock v. Zittenfield (3×)
Or. Ct. App. · 1983 · signal: accord · confidence high
See Rinaldi v. Holt, Rinehart & Winston, 42 NY 2d 369, 381 , 397 NYS 2d 943 , 366 NE2d 1299 , cert den 434 US 969 (1977); accord Bucher v. Roberts, 198 Colo 1, 595 P2d 239, 241 (1979); Gregory v. McDonnell Douglas Corp., 17 Cal3d 596, 601, 131 Cal Rptr 641, 552 P2d 425 (1976).
discussed Cited "see" Barnhill v. Public Service Company of Colorado (2×)
Colo. Ct. App. · 1982 · signal: see · confidence high
See Roberts v. Bucher, 41 Colo.App. 138 , 584 P.2d 97 (1978), rev’d on other grounds, 198 Colo. 1 , 595 P.2d 239 (1979).
examined Cited "see" Burns v. Denver Post, Inc. (4×)
Colo. Ct. App. · 1981 · signal: see · confidence high
See Bucher v. Roberts, 198 Colo. 1 , 595 P.2d 239 (1979); Restatement (Second) of Torts § 559, Comment e (1977).
discussed Cited "see" Burns v. Denver Post, Inc. (2×)
Colo. Ct. App. · 1979 · signal: see · confidence high
See Bucher v. Roberts, Colo., 595 P.2d 239 (1979).
discussed Cited "see, e.g." Examination Board of Professional Home Inspectors v. International Association of Certified Home Inspectors
D. Colo. · 2021 · signal: see also · confidence medium
The underlying principle in these cases is “[b]ecause no reasonable person would take these types of speech as true, they simply cannot impair one’s good name.” Mink, 613 F.3d at 1005 ; see also Bucher v. Roberts, 595 P.2d 239, 242 (Colo. 1979) (noting that “the abusive statement here could not have reasonably been understood to be taken literally or seriously and amounted to no more than rhetorical hyperbole.”).
discussed Cited "see, e.g." Gordon v. Boyles (2×)
Colo. · 2000 · signal: see also · confidence low
See id. at 16-21 , 110 S.Ct. 2695 ; see also In re Green, 11 P.3d 1078, 1084 (Colo. 2000) ("[A] crucial distinction exists between false statements of fact which receive no constitutional protection in defamation cases and ideas or opinions which by definition can never be false so as to constitute false statements which are unprotected." (quoting Bucher v. Roberts, 198 Colo. 1, 3 , 595 P.2d 239, 241 (1979)).
discussed Cited "see, e.g." Hayes v. Smith (2×)
Colo. Ct. App. · 1992 · signal: see also · confidence low
See also Bucher v. Roberts, 198 Colo. 1 , 595 P.2d 239 (1979) (applying Gertz to private non-media defendant).
examined Cited "see, e.g." Kimerli Jayne Pring v. Penthouse International, Ltd., a New York Corporation, and Philip Cioffari (4×)
10th Cir. · 1983 · signal: see also · confidence low
See also Bucher v. Roberts, 198 Colo. 1 , 595 P.2d 239 (1979); and Myers v. Boston Magazine Co., Inc., 380 Mass. 336 , 403 N.E.2d 376 (1980). 20 The trial court submitted to the jury only the question of identity.
Retrieving the full opinion text from the archive…
Duane Bucher and May D & F Company of Colorado, a Colorado Corporation in Good Standing
v.
Ronald P. Roberts
C-1643.
Supreme Court of Colorado.
May 29, 1979.
595 P.2d 239
Zarlengo, Mott and Zarlengo, Albert E. Zarlengo, Jr., for petitioners., Jerome S. Malman, for respondent.
Lee.
Cited by 53 opinions  |  Published
MR. JUSTICE LEE

delivered the opinion of the Court.

We granted certiorari to review the court of appeals’ decision in Roberts v. Bucher, 41 Colo. App. 138, 584 P.2d 97 (1978). The court of appeals reversed a district court’s judgment notwithstanding the jury verdict in favor of plaintiff Ronald P. Roberts, who had sued defendant[*3] Duane Bucher for defamation. The district court held that the remarks made by the defendant were not defamatory as a matter of law. We agree with the ruling of the district court and therefore reverse the court of appeals.

Plaintiff was employed as a buyer of young men’s clothing for the May-D&F department store and the defendant was his supervisor. On the occasion in question, plaintiff had entered defendant’s office accompanied by two executive sales representatives of Lévi-Strauss & Company to tender a proposal for an order of gabardine slacks. Angered at plaintiffs dealings with several suppliers of such clothing, the defendant directed the following allegedly slanderous remarks toward the plaintiff:

“You did not need two fucking gabardine resources. You are presently jacking yourself off with Metro slacks, and another fucking resource, Buccaneer slacks, called today.”

After trial, the jury returned a verdict in favor of the plaintiff and awarded him $5,000 compensatory damages and $500 punitive damages. Defendant then filed a motion for judgment notwithstanding the verdict. The court, on reconsideration of its prior ruling to the contrary, held as a matter of law that defendant’s words were not defamatory and the court therefore entered judgment for the defendant notwithstanding the verdict of the jury.

In our view, whether the challenged statement is defamatory is controlled by Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), which stated, among other things, that:

“We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. . . .”

Thus, a crucial distinction exists between false statements of fact which receive no constitutional protection in defamation cases and ideas or opinions which by definition can never be false so as to constitute false statements which are unprotected. See Old Dominion Branch No. 496, National Association of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); Buckley v. Littell, 539 F.2d 882 (2nd Cir. 1976); Schauer, Language, Truth and the First Amendment: An Essay in Memory of Harry Canter, 64 Va. L. Rev. 263 (1978); Hill, Defamation and Privacy Under the First Amendment, 76 Colum. L. Rev. 1205 (1976); W. Prosser, Torts § 111 (4th ed. 1971). Whether a particular statement constitutes fact or opinion is a question of law. Old Dominion Branch, supra; Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 366 N.E.2d 1299, 397 N.Y.S.2d 943 (1977).

[*4] The Restatement (Second) of Torts § 566 (1976) was revised in accordance with the Gertz decision and now reads:

“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 of the opinion.” Comment c to this section states that in light of Gertz “A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is.”

The plaintiff contends that the defendant’s statement is tantamount to a declaration that the plaintiff is incompetent as a buyer. However, the statement can also mean, if it means anything at all, that the defendant is of the opinion that the plaintiff should use only one gabardine resource. Once a court needs to speculate concerning the meaning the statement purports to convey, as must be done here, we enter the area of opinion as opposed to factual assertion.

This principle was recognized in Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), wherein the alleged defamatory statements were that the plaintiff was a “fellow traveler” of “fascists” and the “radical right.” The court held that those labels “cannot be regarded as having been proved to be statements of fact, among other reasons, because of the tremendous imprecision of the meaning and usage of these terms ...” and because they “. . . are concepts whose content is so debatable, loose and varying, that they are insusceptible to proof of truth or falsity. The use of these terms in the present context is in short within the realm of protected opinion and idea under Gertz."

An erroneous opinion is constitutionally protected and may not be the subject of a private defamation action provided that the truthful facts supporting the opinion are set forth. See Rinaldi, supra. Here, we note that the disclosed fact supporting the allegedly defamatory statement is that the plaintiff was using more than one supply source. This was not a false statement of fact. The remarks did not imply, nor has the plaintiff alluded to, the allegation of any undisclosed defamatory facts. Indeed, the record discloses no evidence that a buyer’s competency depends on limiting his suppliers to only one source. Rather, it may be that common sense dictates that the pull and tug of the open market place could be better utilized by having more than one supplier. It, therefore, was for the hearer, based on the disclosed truthful facts, to weigh the defendant’s statement which supposedly questioned the plaintiffs professional competency.

Finally, we emphasize that the mere use of foul, abusive or vituperative language, such as that used by the defendant, does not constitute a defamation. Cinquanta v. Burdett, 154 Colo. 37, 388 P.2d 779 (1963). Mr. Justice Clark stated in Linn v. Plant Guard Workers Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966): “[T]he most repulsive[*5] speech enjoys immunity provided it falls short of a deliberate or reckless untruth.” The rationale of the rule is explained in Comment e of Restatement (Second) of Torts § 566 (1976), as follows:

Verbal abuse. There are some statements that are in form statements of opinion, or even of fact, which cannot reasonably be understood to be meant literally or seriously and are obviously mere vituperation and abuse. A certain amount of vulgar name-calling is frequently resorted to by angry people without any real intent to make a defamatory assertion, and it is properly understood by reasonable listeners to amount to nothing more. This is true particularly when it is obvious that the speaker has lost his temper and is merely giving vent to insult. . . .”

The abusive statement here could not have reasonably been understood to be taken literally or seriously and amounted to no more than rhetorical hyperbole uttered in an outburst of anger.

In our view, the challenged statement neither contains nor implies false, defamatory facts. It disclosed the underlying basis for the opinion, and therefore, as a matter of law, is not actionable. Because of our disposition, we need not decide whether or not the plaintiff proved special damages.

The judgment of the court of appeals is reversed and the cause is remanded to the court of appeals with directions to reinstate the judgment of the district court in favor of the defendant.

MR. JUSTICE ROVIRA does not participate.