Board of Forensic Document Examiners, Inc., et al., Plaintiffs-Appellants,
American Bar Association, et al., Defendants-Appellees.
April 8, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:17-cv-1130 -
Edmond E. Chang, Judge.
Wood, Chief Judge, Scudder and St. Eve, Circuit Judges.
SCUDDER, CIRCUIT JUDGE.
Board of Forensic Document Examiners brought a defamation
action alleging reputational harm from an article published
in an American Bar Association law journal. The district
court dismissed the action, concluding that the article did
not sufficiently identify the Board or any of its members as
the subjects of criticism and, even if it had, expressed
nothing more than the author's opinion. Because we agree
that the statements are non-actionable, constitutionally
protected expressions of opinion, we affirm.
Board of Forensic Document Examiners is a nonprofit
organization that administers a certification program for
forensic document examiners. Certified examiners analyze and
compare handwriting and provide expert testimony in judicial
proceedings. The Board has certified about a dozen examiners,
including each of the individual plaintiffs.
dispute centers on an article by Thomas Vastrick, a forensic
document examiner certified by a different, much larger
organization: the American Board of Forensic Document
Examiners, which we will call the American Board.
Vastrick's article, Forensic Handwriting Comparison
Examination in the Courtroom, appeared in The
Judges' Journal, a peer-reviewed scholarly journal
published by the ABA. The summer 2015 edition of the journal
in which Vastrick's article was published focused on
topics in forensic science encountered by judges when
qualifying expert witnesses. Vastrick's article spanned
four pages and offered guidance for judges in evaluating the
qualifications and credentials of handwriting experts.
Vastrick urged judges to look for experts certified by the
American Board and warned judges to "be wary of other
certifying bodies." The article also included
Vastrick's photo and a brief biography, which identified
Vastrick 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 Justice.
the article did not mention the Board of Forensic Document
Examiners by name, the Board believed that Vastrick
nonetheless defamed its members by making false and
misleading statements about how to distinguish between
"true professionals" and "lesser
qualified" examiners. The Board initially responded by
submitting a rebuttal to Vastrick's article, but
frustrated with the ABA's suggested edits, it abandoned
the effort and instead filed this action. The Board's
complaint asserted claims of defamation per se and
invasion of privacy on behalf of all of its members generally
and member Andrew Sulner specifically on the basis that he
was singled out by Vastrick. The Board also asserted claims
of civil conspiracy, false advertising under the Lanham Act,
and violations of state competition laws.
Board amended its complaint and focused on four specific
statements in Vastrick's article:
"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
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