Journal article merited better disclosure of affiliation w/competing group, not a lawsuit

Board of Forensic Document Examiners, Inc. v. American Bar
Ass’n, — F.3d —-, 2019 WL 1930310, No. 18-2653 (7th Cir. May 1, 2019)
The Board of Forensic Document Examiners is a non-profit
organization that certifies forensic document examiners (currently about 12),
who analyze and compare handwriting and provide expert testimony in judicial
proceedings. Thomas Vastrick, a forensic document examiner certified by a
different, much larger organization (the American Board of Forensic Document
Examiners), wrote an article in The Judges’ Journal, a peer-reviewed scholarly
journal published by the ABA. Vastrick’s article offered guidance for judges in
evaluating the qualifications and credentials of handwriting experts. He urged
judges to look for experts certified by the American Board and warned judges to
“be wary of other certifying bodies.” His biography identified him as a “board
certified forensic document examiner out of Orlando, Florida, with over 37
years of experience,” including service as chairman of the “Questioned
Documents Section of the American Academy of Forensic Sciences” and
participation in a handwriting study funded by the National Institute of
The Board asserted claims of defamation per se and invasion
of privacy on behalf of all of its members, as well as civil conspiracy, false
advertising under the Lanham Act, and violations of state competition laws.  The specifically challenged statements:
“An appropriately trained forensic
document examiner will have completed a full-time, in-residence training
program lasting a minimum of 24 months per the professional published standard
for training. Judges need to be vigilant of this issue. There are large numbers
of practitioners who do not meet the training standard.” “The American Board of
Forensic Document Examiners … is the only certification board recognized by
the broader forensic science community, law enforcement, and courts for
maintaining principles and training requirements concurrent with the published
training standards. Be wary of other certifying bodies.” The article cautioned
judges “to look out for” examiners “[c]ertified by [a] board other than the American
Board of Forensic Document Examiners.” The article also cautioned against any
“[m]ember of American Academy of Forensic Sciences but not the Questioned
Document Section.”
The Board alleged that these statements misled readers about
the qualifications of its certified examiners. First, the professional
standards allegedly require only the equivalent of a 24-month full-time
training program, not a full-time, in-residence program as such. The second and
third statements, which identified the American Board of Forensic Document
Examiners as the only reputable certifying body, allegedly falsely implied that
the plaintiff’s members were unqualified, even though, like the American Board,
the Board is accredited by the Forensic Specialties Accreditation Board. And
Vastrick allegedly harmed one person in particular by warning judges about
forensic examiners who are members of the American Academy of Forensic Sciences
generally but not the American Academy’s Questioned Document Section
specifically; this person apparently is the only examiner who fits this
The Board argued that these statements were defamatory per
se because they falsely imply that its experts do not meet the published
professional training standards for forensic examiners. “But not all statements
that doubt or impugn an individual’s professional abilities are actionable.” Opinions
are nonactionable, even if they concern the topics covered by defamation per
Context showed that the statements were opinion, not
verifiable facts. The article appeared in a scholarly law journal, in an issue
devoted to “Forensic Sciences—Judges as Gatekeepers.” Anyone who read it would
understand that this was “but one practicing expert’s view on how judges should
attend to their gatekeeping obligations.” “Nobody reading the article in this
context could reasonably have seen Vastrick’s statements as assertions of fact
subject to falsification.”  This is
especially reasonable because the Journal warned readers that “[a]rticles
represent the opinions of the authors alone” and “provide opposing views” for
readers to consider. Vastrick also used the language of opinion: “I, as a
practicing forensic document examiner, would like to respectfully suggest ways
to differentiate between the true professional and the lesser-qualified
practitioners.” A label isn’t enough, but it helps the context.
Breaking down the statements also revealed their opinion
status.  For example, Vastrick discussed
the qualifications of “an appropriately trained forensic document examiner.” “This
express qualification—’appropriately trained’—signaled that Vastrick was
offering his own view on adequate qualifications for a forensic examiner, not
describing factual, objective standards for qualifications.” The assertion that
the American Board “is the only certification board recognized by the broader
forensic science community, law enforcement, and courts,” “likewise reflects
the expression of a viewpoint, as the statement is so broad as to lack
objective, verifiable meaning.”  It’s
true that Vastrick should in a moral sense have disclosed his affiliation with
the American Board in the article, but that didn’t make his statements
This conclusion also disposed of the Lanham Act claim.

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