SUPPLEMENTAL OPINION & ORDER

HERNANDEZ, District Judge:

Plaintiffs Obsidian Finance Group, LLC and Kevin Padrick bring this defamation action against defendant Crystal Cox. In a July 7, 2011 Opinion & Order, 2011 WL 2745849 I denied plaintiffs' motion for partial summary judgment on the issue of liability after determining that the challenged statements were protected by the First Amendment.

Defendant did not cross-move for summary judgment. However, given my conclusion, I gave notice in the July 7, 2011 Opinion that I intended to grant summary judgment for defendant "independent of the motion." See Fed.R.Civ.P. 56(f). I gave plaintiffs the opportunity to file an opposition to such action. On July 22, 2011, plaintiffs filed a memorandum in opposition to a grant of summary judgment in favor of defendant. Although defendant was given the opportunity to reply to plaintiffs' opposition, she has not done so.

Plaintiffs seek reconsideration of my conclusion that the First Amendment precludes liability for the statements made by defendant. In support, plaintiffs cite relevant legal authority for the first time. Plaintiffs re-submit the blog posts filed with their original summary judgment motion. They also submit additional blog posts that were not included with their previous motion. To the extent plaintiffs' July 22, 2011 Opposition Memorandum addresses newly-submitted blog posts, I construe it as a supplemental motion for summary judgment.

The July 7, 2011 Opinion contains the background of the dispute and quotes all of the previously-submitted blog posts. I do not repeat that information here. As to my legal conclusion, I held that under the relevant three-part test used by the Ninth Circuit to determine if speech is constitutionally protected by the First Amendment as "opinion," meaning that a reasonable factfinder could not conclude that the challenged statements implied a probably false assertion, the statements were protected. July 7, 2011 Op. at pp. 11-14. I noted the obviously critical blog title on which they appeared, the creation of a forum for "heated debate," the extensive use of hyperbolic and figurative language, and the posing of several questions rather than statements, as evidence that when the totality of circumstances were considered, the statements were not actionable assertions of fact. Id. I further noted that while there were some statements that could be reasonably interpreted as implying a provable factual assertion if considered in isolation, they could not be so reasonably interpreted when they were considered in context. Id. at pp. 12-13.

Plaintiffs argue that the general tenor of the websites supports, rather than negates, the impression that defendant was asserting claims of serious civil and criminal misconduct as objective facts, that defendant did not use hyperbole or figurative language when making the defamatory statements, and that defendant's statements are susceptible of being proved true or false based on objective evidence. I have reviewed all of the blog posts plaintiffs submitted in support of their original summary judgment motion in light of the arguments they make in their July 22, 2011 Opposition Memorandum. However, I adhere to my original conclusion regarding those posts and thus, for the reasons explained in the July 7, 2011 Opinion, I grant summary judgment to defendant on the issue of liability for statements made in the blog posts plaintiffs submitted with their original motion.

With one exception discussed below, I also reach the same conclusion regarding the new posts plaintiffs submitted for the first time with their July 22, 2011 Opposition Memorandum.

As I explained in the July 7, 2011 Opinion, in assessing whether a statement is actionable as an assertion of fact or is protected by the First Amendment as "opinion," the Ninth Circuit has held that after Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), where the Supreme Court rejected a bright-line categorical First Amendment protection for "opinions," the "threshold question" in a defamation claim is "whether a reasonable factfinder could conclude that the contested statement implies an assertion of objective fact." Gardner v. Martino, 563 F.3d 981, 987 (9th Cir.2009) (internal quotation omitted). The Ninth Circuit uses a three-part test to determine whether a statement contains or implies a provable factual assertion. Underwager v. Channel 9 Austl., 69 F.3d 361, 366 (9th Cir.1995). Whether a statement is a statement of opinion or one of fact is a question of law. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1193 (9th Cir.1989); Slover v. Or. St. Bd. of Clinical Social Workers, 144 Or.App. 565, 568, 927 P.2d 1098, 1100 (1996).

The test assesses (1) whether in the broad context, the general tenor of the entire work, including the subject of the statements, the setting, and the format, negates the impression that the defendant was asserting an objective fact; (2) whether the context and content of the specific statements, including the use of figurative and hyperbolic language, and the reasonable expectations of the audience, negate that impression; and (3) whether the statement is sufficiently factual to be susceptible of being proved true or false. Gardner, 563 F.3d at 987; Underwager, 69 F.3d at 366.

While the inquiry in any given case is fact-specific, certain themes are discernable and worth noting here. First, statements made as part of an acknowledged heated debate often negate the impression that the defendant was asserting an objective fact. E.g., Gardner, 563 F.3d at 988 (radio talk show program that included drama, hyperbolic language, opinionated and arrogant host, and heated controversy reduced audience's expectation of learning an objective fact); Underwager, 69 F.3d at 366-67 (fact that statements were made at workshop which included speakers on opposite sides of the "heated debate" over child witness reliability, relevant to analysis); Info. Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980) (in context of legal dispute, "the audience may anticipate efforts by the parties to persuade others to their position by use of epithets, fiery rhetoric or hyperbole, [and thus] language which generally might be considered as statements of fact may well assume the character of statements of opinion") (internal quotations omitted); Art of Living Found. v. Does 1-10, No. 10-CV-05022-LHK, 2011 WL 2441898, at *7 (N.D.Cal. June 15, 2011) (readers less likely to view statements made on blogs with "heated discussion and criticism," as assertions of fact); Nicosia v. De Rooy, 72 F.Supp.2d 1093, 1101 (N.D.Cal.1999) (readers less likely to view statements made as part of heated debate concerning a "bitter legal dispute" as assertions of fact).

Second, while generally, "online speech stands on the same footing as other speech," In re Anonymous Online Speakers, 661 Fed.Appx. 1168, 1173, No. 09-71265, 2011 WL 61635, at *2 (9th Cir. Jan. 7, 2011), blogs1 are a subspecies of online speech which inherently suggest that statements made there are not likely provable assertions of fact. E.g., Art of Living Found., 2011 WL 2441898, at *7 (statements made on obviously critical blog with "heated" discussion and criticism less likely to be viewed as assertions of fact); Nicosia, 72 F.Supp.2d at 1101 (statements made on personal website and through online discussion group less likely to be seen as assertions of fact); see also Too Much Media, LLC v. Hale, 206 N.J. 209, 234-35, 20 A.3d 364, 378-79 (2011) (noting that "online message boards provide virtual, public forums for people to communicate with each other about topics of interest" and "promote a looser, more relaxed communication style") (internal quotation and brackets omitted); Sandals Resorts Int'l, Ltd. v. Google, Inc., 925 N.Y.S.2d 407, 415-16, 86 A.D.3d 32, 43-44 (N.Y.App. Div.2011) (noting that the "low barrier to speaking online allows anyone with an Internet connection to publish his thoughts, free from the editorial constraints that serve as gatekeepers for most traditional media of disseminating information [ ] [o]ften result[ing] in speech characterized by grammatical and spelling errors, the use of slang, and, in many instances, an overall lack of coherence"; observing that readers give less deference to allegedly defamatory remarks published on online message boards, chat rooms, and blogs, than to similar remarks made in other contexts) (internal quotation omitted).

Third, courts have frequently found certain terms suggestive of name calling, exaggeration, ridicule, imaginative expression, or subjective evaluation, and not assertions or implications of provable facts. E.g., Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 284-85, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (statement calling plaintiffs "traitors" not libelous when context showed used figuratively); Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970) (word "blackmail" no more than "rhetorical hyperbole"); Lieberman v. Fieger, 338 F.3d 1076, 1080 (9th Cir.2003) (comments that individual was "Looney Tunes," "crazy," "nuts," and "mentally imbalanced," did not contain verifiable assertions, and thus could not serve as basis for defamation claim); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, 39 F.3d 191, 196 (8th Cir.1994) ("`Unfair' is a term requiring a subjective determination and is therefore incapable of factual proof"); Phantom Touring, Inc. v. Affiliated Publ'ns, 953 F.2d 724, 728 (1st Cir.1992) (statements asserting production was "fake" and "phony" unprovable); Miracle v. New Yorker Magazine, 190 F.Supp.2d 1192, 1200 (D.Haw.2001) (asserting the plaintiff was "nuts" not actionable); Nicosia, 72 F.Supp.2d at 1104 (statements that the plaintiff was a "self-serving fraud," a "criminal" and acted "illegally" understood to be only loose, hyperbolic expression in light of the many surrounding criticisms).

Even the term liar or lying has been found to be figurative, not literal. E.g., Underwager, 69 F.3d at 367 ("the term `lying' applies to a spectrum of untruths including `white lies', `partial truths', `misinterpretation', and `deception'[ ] [and a]s a result, the statement is no more than nonactionable rhetorical hyperbole, a vigorous epithet used by those who considered the appellant's position extremely unreasonable") (internal quotations and brackets omitted); see also Gardner, 563 F.3d at 989 ("lying" statements not sufficiently factual to imply a false factual assertion in light of surrounding statements such as "Polaris sucks" which the court described as "loose, hyperbolic statements . . . which were an obvious exaggeration").

Finally, while the use of a question mark "does not automatically insulate [the defendant] from liability for defamation," Point Ruston, LLC v. Pacific N.W. Reg'l Council of the United Bhd. of Carpenters & Joiners of Am., No. C09-5232BHS, 2010 WL 3732984, at *8 (W.D.Wa. Sept. 13, 2010), it is a "rhetorical device" which can "serve[ ] two purpose[s]": (1) making clear the author's lack of definitive knowledge about an issue; and (2) inviting the reader to consider the possibility of other justifications for the defendant's actions, thereby negating the impression that the statement implies a false assertion of fact. Partington v. Bugliosi, 56 F.3d 1147, 1157 (9th Cir.1995); see also Volm v. Legacy Health Sys., 237 F.Supp.2d 1166, 1178 (D.Or.2002) (statement in the form of a question was a rhetorical question not capable of being proved true or false). If, however, the question can be reasonably read as an assertion of a false fact, it may be actionable. Id.

In their July 22, 2011 Opposition Memorandum plaintiffs submit sixteen previously unsubmitted blog entries. Ex. 1 to July 22, 2011 Padrick Decl. at pp. 15-41. For the reasons discussed below, the following of these entries are not actionable:

Id. at p. 15

Id. at p. 16

Id. at p. 17.

Id. at p. 18.

Id. at p. 22

Id. at p. 23.

Id. at p. 34

Id. at p. 35.

Id. at p. 36.

Id. at p. 37.

Id. at p. 38.

Id. at p. 39.

Id. at pp. 24-25.

All of the above postings appear to have been made on the same "obsidianfinancesucks.com" website described in detail in the July 7, 2011 Opinion. July 7, 2011 Op. at pp. 6-7. These postings include the "introductory information" at the top of each post regarding the "broken" bankruptcy court system, and the "banner-like headline" regarding bankruptcy and trustee corruption. Id.

One additional entry submitted with plaintiffs' July 22, 2011 Opposition Memorandum also appears to have been posted on the "obsidianfinancesucks.com" website, but without the same introductory information or banner-like headline. It reads:

Id. at p. 40.

Another blog post appears to have been made at a different website found at "bankruptcycorruption.com." It reads:

Id. a p. 27.2

As indicated above, under the first prong of the three-part test, the court examines the broad context in which the statements were made, including the general tenor of the entire work, the subject of the statements, the setting, and the format. Here, all but one of the blog postings listed above were made on the obviously critical website "obsidianfinancesucks.com." The remaining one was made on a website which also clearly communicates its position: "bankruptcycorruption.com." By virtue of the websites' titles, the reader of the statements is predisposed to view them with a certain amount of skepticism and with an understanding that they will likely present one-sided viewpoints rather than assertions of provable facts. The cases cited above regarding postings on online blogs or message boards make clear that the setting and format of these communication tools create a "looser, more relaxed communication style," which is less likely to be understood as containing statements of fact or implying factual assertions.

Moreover, the subject matter of the posts concerns the handling of the bankruptcy of Summit Accommodators, Inc. The blog posts do not reveal defendant's role, if any, in that litigation, but the discharge of large amounts of debt in a bankruptcy proceeding in which ordinary investors may lose significant amounts of money can be the topic of "heated debate." Defendant's blog posts have not, based on the submissions filed here, generated comments from readers, but she certainly invites them and thus, the posts are reasonably viewed as creating a forum for discussion on a topic expected to generate some controversy.

Additionally, the general tenor of the blog posts suggests that defendant has some sort of personal vendetta against plaintiffs. The frequency of the posts, the language, discussed more specifically below, the tone, and the occasional and somewhat run-on almost "stream of consciousness"—like sentences read more like a journal or diary entry revealing defendant's feelings rather than assertions of fact. Defendant's addition of attacks on plaintiffs' counsel David Aman further suggests that she has a personal feud with plaintiffs as Aman's only connection to the controversy appears to be his representation of plaintiffs in this litigation. This further undermines the reader's expectations that defendant's statements are to be understood as assertions of provable fact.

The second part of the three-part test examines the context and content of the specific statements, including the use of figurative and hyperbolic language, and the reasonable expectations of the audience. Defendant regularly invokes language which is figurative, hyperbolic, imaginative, or suggestive. E.g., Ex. 1 to July 22, 2011 Padrick Decl. at p. 15 ("corrupt," "immoral," "really bad," "jackass," "thugs,"); p. 16 ("hired a hitman," "pompous ass," "death threat," "fishy circumstances"); p. 17 ("corrupt," "thug," "thief," "dirty lawyer"); p. 18 ("Montana Death Threat Stalker"); p. 22 ("wrong," "immoral," "dirty, illegal tactics"); p. 24 ("THUG, Liar and Thief"); p. 25 ("spineless"); p. 37 ("thug," "thief"), p. 40 ("evil," "greedy," "evil doers", "wrong").3

She also criticizes the Bend District Attorney's Office and calls the "Bend[,] Oregon Judges" corrupt. Ex. 1 to July 22, 2011 Padrick Decl. at pp. 15, 17. She contends Padrick hired a "hit man" to kill her. Id. at pp. 16, 18. She suggests that the entire bankruptcy court system is corrupt. Ex. 1 to July 22, 2011 Padrick Decl. at pp. 15-18, 22-24, 27, 34-39. These types of allegations diminish the reader's expectations that statements posted by defendant on her blog are to be taken as provable assertions of fact. A reasonable reader would understand that defendant's postings generally consist of a fanciful diatribe, fueled by her subjective belief of pervasive corruption throughout the bankruptcy court system and exemplified by the Summit Accommodators bankruptcy.

As to the third prong of the three-part test, the postings contain several statements that when considered in isolation might imply or state provable assertions of fact. For example, defendant states, essentially, in a post made December 21, 2010, that Padrick lied when he told investors he would help keep Summit Accommodators "afloat" during its restructuring and that he actually "jumped the fence" with secret information, stole the job as bankruptcy trustee, and made millions for himself as a result. Id. at p. 15. In another post, she states he has "broken many laws" in the last two years in regard to the Summit Accommodators bankruptcy. Id. at p. 17. She accuses Padrick of participating in "illegal activity," and states that he acted "illegally and unethically" and used "illegal tactics." Id. at p. 22. She contends he "committed fraud against the courts" and asserts that "the Laws Broke Were Broke." Id. at p. 24-25. She alleges that he stole money from the United States government, engaged in fraudulent activity, and committed tax fraud. Id. at pp. 34-36. She further alleges that Padrick broke bankruptcy laws and engaged in theft. Id. at p. 40. She states it was "wrong," and "must be against the law," for Padrick to have advised the Summit Accommodators principals and then, apparently, to have made decisions, presumably as the bankruptcy trustee, that were not in the best interests of the creditors or investors. Id. at p. 40.

But, while these statements appear at first glance to imply provable assertions, they lose the ability to be characterized and understood as assertions of fact when the content and context of the surrounding statements are considered.4 As explained in Art of Living and other cases, statements that might be considered factual assertions of wrongdoing or "bad acts" if considered in isolation, must be analyzed in the context in which they are made which may well negate the reader's impression that the statements are provable fact assertions. E.g., Gardner, 563 F.3d at 988 (when statements that the plaintiffs had lied were considered in context, they were not assertions of fact); Knievel v. ESPN, 393 F.3d 1068, 1078 (9th Cir.2005) (taken in isolation, the defendant's statement that the plaintiff was a pimp could be actionable, but when assessed "in the context in which it was used" the assertion could not be taken literally); Art of Living, 2011 WL 2441898, at *7 (statements including words such as "embezzle," "fraud," and "abuse," accompanied by allegations that the plaintiff obtained money by using false and deceitful declarations, did not "amount to factual accusations of criminal activity" when considered in the specific context in which they were made).

The majority of the statements made by defendant are not sufficiently factual to be proved true or false. The statements accusing plaintiffs of being "thugs," or "evil," or "greedy," are evaluative, subjective expressions not subject to proof. As to those statements that might suggest a sufficient factual basis to be provable, for the reasons explained in the preceding paragraph, the context in which those statements were made dispels a reader's understanding that they are assertions of fact. Additionally, while, as noted above, the use of a question mark is not an absolute protection from liability as a provable statement of fact, it is a commonly recognized rhetorical device which can create an impression for the reader that the author is supposing facts rather than stating provable facts. Moreover, defendant regularly states she "will" prove her allegations or that information and facts are "coming soon." While this might suggest that she actually possesses facts but simply has not posted them yet, in this case any reasonable reader would view the promise of future proof and defendant's failure to contemporaneously post the relevant facts as one more reason why the posts do not constitute provable assertions of fact.

I recognize that simply because statements are posted on the Internet, or contain a question mark, does not immunize the statements from being actionable in a defamation claim. But, here, none of the statements quoted above create liability for defamation because when the totality of the circumstances are considered, no reasonable juror could conclude that the statements contain provable assertions of fact. Instead, they are protected by the First Amendment. Thus, as to these posts, I deny plaintiffs' supplemental motion for summary judgment and I grant summary judgment to defendant.

In contrast to the above posts, I conclude that as to one post, reasonable readers could reach differing conclusions about whether the statements contain or imply an assertion of objective facts and thus, I deny plaintiffs' supplemental motion as to this post, but I also do not grant summary judgment to defendant.

The post in question appeared on the "bankruptcycorruption.com" website and reads as follows:

Id. at pp. 28-30.5

Because this post appears on the "bankruptcycorruption.com" website, the reader is unable to view it in the context of the dozens of serial posts defendant has placed on the "obsidianfinancesucks.com" website. Thus, although the website title "bankruptcycorruption.com" suggests a certain bias, it is not as strong or specific as the title of the "obsidianfinancesucks.com" website.6 And while the setting and format of a blog tend to reduce a reader's expectation that provable assertions of fact will be found there, the use of a blog does not, as I noted earlier, automatically insulate the poster from liability. Moreover, on this record, with plaintiffs having submitted only two postings from "bankruptcycorruption.com" into the record, a full assessment of the flavor and tenor of the website is not possible. In contrast, the several postings from "obsidianfinancesucks.com" which are in the record show the broad context in which the statements on that website are made.

The December 25, 2010 posting does contain several non-provable, figurative, or subjective-type words which tend to negate the impression that defendant asserts provable statements of fact. For example, defendant refers to Padrick as a "thug," a "liar" and a "thief"; she accuses him of "double talk" and "greed"; she suggests he was "unethical"; and she accuses him of "stealing" the trustee's job. Id. at pp. 28-30. However, this is a fairly long post and overall, these words do not dominate the statements made there. Additionally, in contrast to the posts from "obsidianfinancesucks.com," I cannot, for the reasons explained in the preceding paragraph, collectively examine the surrounding posts to determine the frequency with which defendant uses these words.

This post contains no references to "corrupt" Oregon judges or to a "corrupt" Bend, Oregon District Attorney, facts which suggested that the collective posts on "obsidianfinancesucks.com" would be viewed less seriously. And, while the post is somewhat confusing and uses some unclear terms such as "liquidating trust," it reads more like a factual narrative than the posts made on the "obsidianfinancesucks.com" website, particularly in regard to the allegations regarding a failure to pay taxes.

The last one-third of the post, following defendant's question of whether Padrick and Obsidian Finance committed tax fraud, contains several statements which contain or imply provable assertions of fact. Notably, defendant alleges that as trustee, Padrick engaged in certain transactions on behalf of the "liquidating trust," which I understand to mean the bankruptcy estate for Summit Accommodators, which should have generated a $174,000 tax liability which Padrick did not pay. She asserts that there are "missing tax dollars" as a result. Given that these are fairly specific allegations, a reasonable reader could understand them to imply a provable fact assertion.

In contrast to the statements made on the "obsidianfinancesucks.com" website and discussed above, the broader and surrounding context of this post does not necessarily negate the impression that the statements are incapable of being proved true or false. On the one hand, a reasonable reader may view the title of the website, the fact that the statements appear on a blog, and the use of loose, figurative language, as dispelling such an impression. However, as to this post, and in particular as to the statements made regarding tax fraud, a different reader could reasonably understand the statements to imply provable assertions of fact. As such, summary judgment to either plaintiffs or defendant is inappropriate as to the December 25, 2010 post appearing on the "bankruptcycorruption.com" website.

CONCLUSION

Plaintiffs' July 22, 2011 Opposition Memorandum [# 27] is construed as a supplemental motion for summary judgment as to the blog posts not previously submitted with plaintiffs' original summary judgment motion, and as so construed, is denied.

Summary judgment independent of the motion pursuant to Federal Rule of Civil Procedure 56(f), is granted to defendant as to all blog posts other than the December 25, 2010 blog post appearing on the "bankruptcycorruption.com" website.

The Court will promptly set a telephone scheduling conference to establish a case schedule for trial.

IT IS SO ORDERED.