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April 6, 1984

PHILIP D. HELD, Plaintiff,
JOEL POKORNY, Defendant.

The opinion of the court was delivered by: WEINFELD


Plaintiff, Philip B. Held, an attorney licensed in the State of New York who also is engaged in an insurance business at the same premises where he conducts his law practice, commenced this diversity action against his stepson, Joel Pokorny, charging him with libel.

 Plaintiff was married to the defendant's mother from 1968 until her death in March of 1982. Plaintiff exercised his right of election against the will of his deceased wife. *fn1" Thereafter, in May 1983, the defendant wrote a letter to plaintiff as follows:

 I am obligated to inform you of the unveiling. My mother was a kind and gentle woman who shared fifteen years of her life with you. Your contravening her wishes is immoral. I request that you do not attend.

 Joel Pokorny

 Plaintiff's amended complaint alleges two separate causes of action and seeks $1,000,000 in damages under each. The first, which makes no reference to the plaintiff's proceeding for his elective share of his wife's estate, alleges that the defendant's letter is libelous per se because it was intended to impute to plaintiff the commission of immoral acts and immoral behavior and thereby to injure his good name, standing, and reputation among his professional and business associates and persons with whom he worked in his legal and business office. The letter had been mailed to plaintiff's office, where it allegedly was published when opened in the ordinary course of business by employees responsible for receiving, sorting, and distributing each day's mail. The letter allegedly was understood by those employees, and by others to whose attention the letter came, to mean that the plaintiff had committed an immoral act, and it allegedly had the effect of inducing an unsavory and evil opinion of plaintiff in the minds of a substantial number of plaintiff's employees and other members of the community.

 The second cause of action specifically alleges that plaintiff elected, as authorized under New York law, to institute a proceeding in the Surrogates Court of the State of New York to recover monies due and owing a surviving spouse under the Estates Powers and Trust Law and that the defendant, by the letter referred to in the first cause of action, meant and intended to mean that plaintiff is immoral by virtue of the exercise of his right of election under that law.

 The allegedly libelous document makes no reference to plaintiff's professional or business activities. The gist of both causes of action is that plaintiff is referred to as immoral because he contravened his deceased wife's wishes by proceeding to exercise his right of election as a surviving spouse, and the essential element of both claims is that the charge of immorality is libelous per se. The defendant moves to dismiss each claim, contending that because the letter merely charged what plaintiff had a legal right to do, it is not libelous and that because the words were not applied to plaintiff's professional or business activities, it does not constitute libel per se. The Court agrees and the motion to dismiss the respective causes of action is granted.

 The threshhold issue is whether the statement "your contravening her wishes is immoral" is a statement of fact or of opinion.Expressions "of one's opinion of another, however unreasonable or vituperative, since they cannot be subjected to the test of truth or falsity, cannot be held libelous and thus are entitled to absolute immunity from liability under the First Amendment." *fn2"

 Whether a statement constitutes fact or opinion is a question of law for the Court to decide. *fn3" The boundary line between fact and opinion is not a precise one. *fn4" In general, "rhetorical hyperbole," and "vigorous epithets" are expressions of opinion, *fn5" as are "concepts whose content is so debatable, loose and varying, that they are insusceptible to proof of truth or falsity." *fn6" Accusations of criminal or unethical activity, on the other hand, are expressions of fact, *fn7" as are allegations relating to one's professional integrity that are susceptible of proof. *fn8"

 The Court has no doubt that defendant's statement "your contravening her wishes is immoral" is an expression of opinion. It is hardly different from saying "your contravening her wishes is shocking." Webster's New International Dictionary defines moral as "conforming to a standard of what is good and right; righteous, virtuous." *fn9" Those concepts are infinitely debatable, and their precise meaning is extremely elusive. As Justice Hunt noted over 100 years ago, the principle of right and wrong, or morality or immorality, is impossible as an element of proof:

 There can be no more uncertain rule of action than that which is furnished by an intention to do right. How or by whom is the right to be ascertained? What is right in a particular case? . . . What is or what may be right depends upon many circumstances. The principle is impracticable as a rule of action to be administered by the courts. *fn10"

 Indeed, the Court could not instruct the jury on how to evaluate the truth of a charge if immorality without entering an age old debate better left to philosophers. *fn11"

 Further, the classification of defendant's statement as one of opinion is obvious after an examination of other expressions the courts have classified as opinion. The Supreme Court has held that an article describing a real estate developer's negotiating posture as "blackmail" was opinion, as "the word was no more than rhetorical hyperbole, a vigorous epithet." *fn12" Similarly, the court held that an essay charging individuals who had refused to join a union with having "rotten principles," lacking "character," and being a "traitor" was a statement of opinion because the "words were obviously used here in a loose and figurative sense to ...

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