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September 3, 1985


The opinion of the court was delivered by: WEINFELD


Plaintiff Donald Trump, a New York real estate developer, brings this libel action against the Chicago Tribune Company ("Tribune") and Paul Gapp, an employee of the Tribune whose byline describes him as the Tribune's "architecture critic." Plaintiff's complaint seeks damages based upon statements contained in an article appearing under the heading of "Design" in the Sunday Tribune Magazine of August 12, 1984, in which Gapp discussed Trump's plan to construct the tallest building in the world, a 150-story tower, on a landfill site at the southeast end of Manhattan island. Plaintiff's complaint alleges that Gapp's criticism of the proposed venture, which was accompanied by a Tribune artist's illustration depicting a building which plaintiff calls "an atrocious, ugly monstrosity" damaged plaintiff's reputation as a developer conscious of aesthetic values and "torpedoed" plaintiff's plans. Defendant moves for dismissal of the complaint under Fed. R. Civ. P. 12(b)(6).

 The article published by the Tribune and written by Gapp began with the sentence: "The only remotely appealing aspect of Donald Trump's proposed 150-story Manhattan skyscraper, announced several days ago, is that it would not be done in the Fence Post Style of the 1970s." *fn1" The following paragraph declared that "the world's tallest tower would be one of the silliest things anyone could inflict on New York or any other city." The piece went on to describe Trump Tower, another development by plaintiff, as a "skyscraper offering condos, office space and a kitschy shopping atrium of blinding flamboyance." Gapp described Trump's proposal for the 1,940-foot building as "Guiness Book of World Records architecture," and characterized as "eyewash" Trump's statement that the new building would architecturally "balance" the two World Trade Center towers on the west side of lower Manhattan.

 Plaintiff maintains that these comments were false and defamatory, and alleges in particular that he has chosen no architect and has no plan for his proposed building. He claims that the Tribune article falsely implies that plaintiff has plans for the building and that Gapp had reviewed them and found them aesthetically displeasing. Plaintiff also asserts a claim based upon remarks by Gapp published in the Wall Street Journal in its Real Estate column of August 29, 1984. Gapp told the Journal's reporter that Trump's proposal was "aesthetically lousy," and that the central part of his own city, Chicago, "has already been loused up by giant-ism."

 Defendants, on the other hand, argue that the contents of the Gapp article are entitled to complete immunity under the First Amendment protection of expressions 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" Opinion may be expressed through "rhetorical hyperbole" and "vigorous epithets," *fn3" even in the most pejorative terms, but when the criticism takes the form of accusations of criminal or unethical conduct, or derogation of professional integrity in terms subject to factual verification, the borderline between fact and opinion has been crossed. *fn4" Whether a statement constitutes fact or opinion is a question of law, and is thus appropriate for resolution on a motion to dismiss. *fn5"

 After a careful review of the record, this court has no doubt that the statements contained in the Tribune article are expressions of opinion. The very presentation of the article in the Sunday Tribune Magazine section, under the heading of the "Design" column, with a byline identifying the author as the Tribune's "Architecture Critic," informs the reader that the article embodies commentary by a Tribune columnist, and is not a news story reporting factual material. From the first sentence, which describes the "only remotely appealing aspect" of the Trump project, the prose is cast in subjective terms; the very words Trump objects to, which refer to the proposal as "one of the silliest things anyone could inflict on New York" and describe the asserted aesthetic balance between the proposed tower and the World Trade Center as "eyewash," convey to the reader the highly personal and subjective nature of the judgments expressed. It must be clear to any reader that in the realm of architecture, as in all aesthetic matters, what is "appealing" to one viewer may be appalling to another. *fn6" There are many who would disagree with Mr. Gapp's view, also expressed in the Tribune piece, that the World Trade Centers "still stand as two of the most desolately ugly buildings in New York," *fn7" but there is no way that the Court could instruct a jury on the process of evaluating whether the statement is true or false as a matter of fact.

 The conclusion that the Tribune article embodies opinion rather than fact is also compelled upon examination of those statements classified as opinion in previous court decisions. The Supreme Court has held that describing a real estate developer's negotiating position as "blackmail" was a statement of opinion, *fn8" as was the charge that workers refusing to join a union had "rotten principles," and "lacked character." *fn9" Statements by a public official that a board game satirizing the system of public assistance for the poor was "ugly and damaging" and "by its insensitivity and shoddiness [did] a discredit to those associated with its manufacturing and marketing" were protected as opinion by out Court of Appeals, *fn10" as was a statement calling an author and lecturer a "fellow traveler" of "fascists" and the "radical right." *fn11" Similarly, this Court has held that it was protected expression of opinion to call "immoral" a lawyer's decision to exercise his right of election against the will of his deceased wife. *fn12" The New York courts *fn13" have held that calling a Judge incompetent, accusing a former director of the State Lottery of "gypping" and "systematically cheating" the public, and describing a teacher who had received pay to which he was not entitled while on sick leave as a "no-show" are all expressions of opinion which cannot be the predicate for a defamation action. *fn14" These cases present claims far more compelling than that advanced by plaintiff here, and each has been found to involve expressions of opinion entitled to full First Amendment protection.

 Plaintiff asserts that even if the Tribune article expresses opinion, it is still not entitled to constitutional protection unless the facts supporting the opinion are set forth. *fn15" Placing principal reliance upon the decision by our Court of Appeals in Hotchner v. Castillo-Puche, *fn16" plaintiff alleges that the article incorrectly implies that defendants had knowledge of facts, unknown to the general public, which substantiate the opinions expressed, that these facts are false, and that the opinions therefore lose their protected character.

 Plaintiff correctly characterizes the holdings in Silsdorf and Hotchner, but their application to the record before the court does not yield plaintiff's conclusion. The facts supporting Mr. Gapp's "speculation" are fully set forth in the articles; indeed, the closing section of the article begins with the sentence: "Yet, while this sort of speculation is amusing, it is necessary to add a few hard facts." *fn17" The matter which follows, concerning the economic constraints on developers seeking to build particularly tall buildings and relying in part on "statistics provided by Trump," are not disputed by the plaintiff. Other facts set forth in the article concerning the Trump proposal include the information that no architect had been selected and no specific design for the building agreed upon, along with the paragraph:

In a recent interview, the real estate tycoon said he proposes to build his 1,940-foot building on landfill along the edge of the East River near the southern tip of Manhattan. It would cost $1 billion and house offices on its lower levels, a hotel in the middle and luxury apartments on top. *fn18"

 Plaintiff testified at his deposition that in July 1984, before the publication of the article in question, he was interviewed by a reporter at the New York Times, and at that interview conveyed to the reporter all the information set out in the paragraph quoted above. *fn19" Thus, it was plaintiff's own statements, conveyed to the press through an interview plaintiff himself arranged, which formed the factual basis of the opinions expressed in the defendants' article. Upon the totality of the record presented, the Court finds that the article set out in full the facts on which the opinions expressed were predicated, and further finds that the truth of those facts is not in dispute, the bulk of the factual material having been provided by the plaintiff.

 Plaintiff nonetheless contends that the illustration and caption accompanying the article, which depict a 150-story building drawn to scale against the skyline of lower Manhattan, falsely imply that defendants had access to plaintiff's plan for the building, and he further contends that the building depicted does not accurately portray his plans.

 Even if the Court were to accept plaintiff's invitation to take the illustration and caption out of the context of the article as a whole, plaintiff's claim with respect to the illustration must fail. The caption identifies the illustration as the "artists' conception of Donald Trump's proposed 150-story skyscraper," *fn20" and thus makes clear that the illustration, like the article it accompanies, is opinion, not a factual report. In addition, plaintiff's claim with respect to the illustration depends upon his contention that the illustration is not in keeping with his proposal, which he says calls for a "tapered" building on a developed site which would include several smaller buildings and extensive landscaping. *fn21" At the same time, plaintiff is equally vehement in declaring that he has no plans, and has not even engaged an architect. Thus, plaintiff contends on the one hand that certain details of the project, as for ...

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