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Board of Forensic Document Examiners, Inc. v. American Bar Association

United States Court of Appeals, Seventh Circuit

May 1, 2019

Board of Forensic Document Examiners, Inc., et al., Plaintiffs-Appellants,
v.
American Bar Association, et al., Defendants-Appellees.

          Argued April 8, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:17-cv-1130 - Edmond E. Chang, Judge.

          Before Wood, Chief Judge, Scudder and St. Eve, Circuit Judges.

          SCUDDER, CIRCUIT JUDGE.

         The 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.

         I

         The 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.

         This 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.

         While 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.

         The 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 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 ...

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