Legally Speaking: "Tonight's Special: A Lawsuit"

John G. Browning Jun. 14, 2007, 4:00am

My mother taught me that if you can't say something nice about someone, don't say anything at all. Clearly, she wasn't grooming me for a career as a restaurant critic.

While critics are accustomed to influencing diners with sometimes merciless reviews of restaurants, one thing they will probably never get used to is being sued over their criticism. Believe it or not, such lawsuits have become an occupational hazard for restaurant reviewers.

Chops Restaurant in Bala Cynwyd, Penn., recently reacted to a negative review by the Philadelphia Inquirer - all of three sentences long -w ith a 16 page libel lawsuit.

According to the Inquirer's restaurant critic, Craig LaBan, the meal was "expensive and disappointing," with a chopped salad that was "soggy and sour" and a strip steak that was "miserably tough and fatty." What prompted the lawsuit were not just the comments themselves or the impact of the critique on Chops' reputation or business, but what Chops' lawyer Dion Rassias describes as not merely an opinion, but a false statement of fact.

According to the restaurant, LaBan ate a steak sandwich without bread (not a strip steak), and therefore the critic "had no personal knowledge of the quality of the Chops strip steak."

A lawsuit in New Jersey brought by Valenzano Winery takes New Jersey Life Magazine to task over a 2005 article that didn't even name its wine. Instead, the critic referred to New Jersey wines as being "made here with fruit flavors that are designed to mask the otherwise dreadful plonk." Valenzano's owner claimed he was filing suit "in order to protect our reputation and the reputation of New Jersey wineries."

In Port St. Lucie, Delmonico Grill recently sued Scripps Treasure Coast Newspapers and its restaurant reviewer, Patricia Smith, over a critique that it contends was not only negative, but false. Delmonico's owners claim that the critic panned their decor, while pronouncing another restaurant with a similar interior as "cozy and inviting."

They also contend that food descriptions were wildly inaccurate, including referring to some dishes as previously prepared; Delmonico's chef notes that "we prepare everything to order," and maintains that they have receipts showing that the ingredients in question were purchased a mere two hours before the meal was served.

Delmonico's owners say that business has suffered because of the negative review, and that they just want to help protect other small, privately owned restaurants from what they characterize as "untrue reviews".

But if past treatment in the courts is any indication, both the restaurants and the winery have uphill battles ahead of them. Critics and the newspapers they write for are generally not liable for expressing their opinions.Courts usually dismiss such suits that involve nothing more than opinion, and sometimes characterize statements that are hyperbole or metaphor as opinion in disguise.

Other courts have ruled that the restaurant failed to show that such statements were made with actual malice; essentially, that the critic knew his statements were false or that he had serious doubts that they had any basis in the truth.

Judges have let reviewers get away with some pretty harsh statements, ranging from describing a fish dish as "trout a la green plague" (according to the court, "an ordinarily informed person would not infer that these entrees were actually carriers of communicable diseases") to "bring a can of Raid if you plan to eat here" (the court described it as a legally protected use of humor and ridicule).

Dallas media lawyer Charles "Chip" Babcock points out that "Juries just are absolutely skeptical of claims about restaurant reviews. They believe it's just classic opinion."

Babcock should know. In 2004, he defended the Dallas Morning News and its restaurant critic Dotty Griffith from a defamation lawsuit brought by restaurant mogul Phil Romano. Romano had taken exception to Griffith's review of his newest restaurant, Il Mulino (which has since closed). Romano claimed factual inaccuracies abounded in the article, ranging from statements that the tomato vodka sauce was "overwrought with butter" (when in fact it had none) to complaints about too much Gorgonzola in a ravioli dish that supposedly contained none.

Romano also accused Griffith and the Morning News of fraud, and questioned the critic's choice of dining companion, restaurateur Janet Cobb; the lawsuit alleged that the rating was calculated to hurt Il Mulino's business and to help Cobb's. The lawsuit was eventually dropped when the Dallas Morning News agreed to re-review the restaurant, something Babcock describes as part of the newspaper's normal policy.

While restaurants' claims of defamation typically fare poorly in the U.S., it's a different story abroad.

In Australia, for example, the legal battle over upscale Sydney restaurant Coco Roco lasted longer than the restaurant did. After their establishment was described by the Sydney Morning Herald as a "bleak spot on the culinary landscape" with "unpalatable" food and flavors that "jangled like a car crash," the restaurant owners sued.

Despite the fact that the restaurant closed within weeks of opening, and that a jury found in favor of the newspaper, Coco Roco's proprietors pressed on and eventually won at the appellate court level.

Earlier this year, a Belfast jury hit The Irish Times with a $50,000.00 verdict over their review of an Italian restaurant named Goodfellas. Restaurant critic Caroline Workman had rated the pasta as overcooked and soggy, the chicken marsala as smothered in some unrecognizable sauce that did not contain marsala wine, and the overall impression as "hugely disappointing".

In Ireland, opinion is protected only if it is honestly held; despite Ms. Workman's testimony that she honestly believed that the one-star rating (out of five) of Goodfellas was justified, the jury evidently didn't believe her. The newspaper plans to appeal the verdict.

As one federal appellate judge put it, "reviews, although they may be unkind, are not normally a breeding ground for successful libel actions." This doesn't mean that critics will sleep any easier in our litigious society.

Michael Bauer, restaurant critic for The San Francisco Chronicle, figures he's "always one misplaced adjective away from getting slapped with legal action."

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