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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Katinka Hosszu, 

Plaintiff, 

v. 

Casey Barrett, et al., 

Defendants.

No. CV-15-02285-PHX-GMS

ORDER 

 Pending before the Court is the Motion to Dismiss by Defendants. (Doc. 26.) For 

the following reasons, the Court grants the motion. 

BACKGROUND 

 Katinka Hosszu (“Hosszu”) is a world-famous professional swimmer. (Compl. 

¶ 4.) A three-time1

 Olympian, five-time World Champion, and Hungarian Sportswoman 

of the Year, Hosszu enjoys a generous backing from corporate and athletic equipment 

sponsors. (Id.) She has a large fan base and is a national source of pride for her native 

Hungary. (Id.) 

 On May 20th, 2015, former Olympic swimmer and swim commentator Casey 

Barrett posted an article entitled The Smell of Smoke on his blog, Cap & Goggles, and 

Swimming World Magazine (“SWM”) published a substantially similar version of his 

article entitled Are Katinka Hosszu’s Performances Being Aided? (collectively, “the May 

 

1

 Hosszu was a three-time Olympian when she filed her Complaint; she is now a fourtime Olympian. Although Hosszu has garnered additional successes since the filing of the Complaint, this Order relies on the facts as alleged. 

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20th article”).2 (Compl. ¶ 32.) Hosszu alleges that the May 20th article published false 

“assertions of fact” which accuse her of using performance-enhancing drugs to achieve 

her success. (Compl. ¶ 33, 48.) 

 However, both parties stipulate that Barrett repeatedly conceded in the May 20th

article that he did not have any proof, such as failed drug tests, to demonstrate that 

Hosszu ever used performance-enhancing drugs. Instead, Hosszu alleges that the May 

20th article accuses her of using performance-enhancing drugs by discussing her 

remarkable comeback after the 2012 Olympic Games, as well as her unusual ability to 

recover quickly in between events. 

 Hosszu further alleges that on August 3, 2015, Barrett published an article entitled 

Women Rule the Worlds, which republished the May 20th article’s defamatory statements. 

(Compl. ¶ 44.) Hosszu further claims that Barrett and SWM collaborated to publish at 

least two other articles entitled Doping: How to Not Get Caught and Suspicious Minds 

and the Doping Rumor Mill about performance-enhancing drug abuse which are 

“reasonably understood to refer to Hosszu.” (Compl. ¶ 45.) 

 Hosszu alleges that Barrett, SWM, and Does 1-20 (“Defendants”) harmed her 

reputation and caused the public and others to hold her in contempt. (Compl. ¶ 49.) She 

claims that sponsors discontinued backing her, that she has been subjected to heightened 

drug testing, and that she is questioned about the “doping allegations” at every interview. 

(Compl. ¶¶ 38–39.) Hosszu brings claims for defamation and false light. 

DISCUSSION 

I. Legal Standard 

 To survive a motion to dismiss for failure to state a claim pursuant to Federal Rule 

of Civil Procedure 12(b)(6), a plaintiff must allege sufficient facts to state a claim to 

 

2

 The Court grants Defendants’ Request for Judicial Notice for Exhibits 1–7 (Doc. 27). 

See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (extending the doctrine of incorporation to “documents in situations where the complaint necessarily relies upon a document or the contents of the document are alleged in a complaint”). However, the Court denies Defendants’ Request for Judicial notice for Exhibits 8–33 

(Doc. 27) because the complaint does not rely upon these documents. Id.

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relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim 

has facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability 

requirement,’ but it asks for more than a sheer possibility that a defendant has acted 

unlawfully.” Id.

 “[T]he tenet that a court must accept as true all of the allegations contained in a 

complaint is inapplicable to legal conclusions.” Id. “When there are well-pleaded factual 

allegations, a court should assume their veracity and then determine whether they 

plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a 

complaint states a plausible claim for relief will . . . be a context-specific task that 

requires the reviewing court to draw on its judicial experience and common sense.” Id. 

II. Analysis 

 

 “[T]o survive [a] motion to dismiss, [a plaintiff] must not only establish that the 

[statements] about which [she] complain[s] are reasonably capable of sustaining a 

defamatory meaning, [she] must also show that they are not mere comment within the 

ambit of the First Amendment.” Knievel v. ESPN, 393 F.3d 1068, 1073–74 (9th Cir. 

2005) (internal citation omitted). “Although defamation is primarily governed by state 

law, the First Amendment safeguards for freedom of speech and press limit state law.” 

Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir. 1995). “The scope of 

constitutional protection extends to statements of opinion on matters of public concern 

that do not contain or imply a provable factual assertion.” Id. (citing Milkovich v. Lorain 

J. Co., 497 U.S. 1, 20 (1990)). Because “expressions of ‘opinion’ may often imply an 

assertion of objective fact,” there is no “wholesale defamation exemption for anything 

that might be labeled ‘opinion.’” Milkovich, 497 U.S. at 18. For example, “[i]f a speaker 

says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to 

the conclusion that Jones told an untruth.” Id. “‘Simply couching such statements in 

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terms of opinion does not dispel [the false, defamatory] implications’ because a speaker 

may still imply ‘a knowledge of facts which lead to the [defamatory] conclusion.’” 

Partington v. Bugliosi, 56 F.3d 1147, 1152-53 (9th Cir. 1995) (quoting Milkovich, 497 

U.S. at 19). 

 “A statement of fact is not shielded from an action for defamation by being 

prefaced with the words ‘in my opinion,’ but if it is plain that the speaker is expressing a 

subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming 

to be in possession of objectively verifiable facts, the statement is not actionable.” Id. at 

1156. “[W]hen an author outlines the facts available to him, thus making it clear that the 

challenged statements represent his own interpretation of those facts and leaving the 

reader free to draw his own conclusions, those statements are generally protected by the 

First Amendment.” Id. at 1156-57. 

 “[T]he threshold question in defamation suits is . . . whether a reasonable 

factfinder could conclude that the statement implies an assertion of objective fact.” 

Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990) (internal quotations 

omitted). “If the answer is no, the claim is foreclosed by the First Amendment.” 

Partington, 56 F.3d at 1153. The Ninth Circuit has “adopted a three-part test” as a 

“starting point” for this analysis: “(1) whether the general tenor of the entire work negates 

the impression that the defendant was asserting an objective fact, (2) whether the 

defendant used figurative or hyperbolic language that negates that impression, and (3) 

whether the statement in question is susceptible of being proved true or false.” Id. (citing 

Unelko, 912 F.2d at 1053). Courts should consider the “totality of the circumstances.” 

Knievel, 393 F.3d at 1074. The Court examines “the work as a whole, the specific 

context in which the statements were made, and the statements themselves to determine 

whether a reasonable factfinder could conclude that the statements imply a false assertion 

of objective fact and therefore fall outside of the protection of the First Amendment.” 

Partington, 56 F.3d at 1153. 

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 Here, Barrett stated in the first sentence of the May 20th article that “there is no 

proof” that Hosszu is aiding her performances with drugs. (Doc. 27-1 at Ex. 1, PDF 2.) 

Barrett based his conclusion on facts about Hosszu’s recent achievements, her unusual 

ability to recover in between races, and her body type changes. (Doc. 27 at Ex. 1, 2, 7.) 

Barrett outlined the facts available to him, and Hosszu does not dispute the truth of those 

facts. The May 20th article states that “[n]o one competes, consistently, at a higher level 

than [Hosszu] does,” and adds that “[h]er consistency, her ability to recover, and her 

never-flagging form continues [sic] without breakdown, regardless of when or where the 

race is going down.” (Doc. 27-1 at Ex. 1, PDF 3.) Barrett illustrated this general 

observation by detailing Hosszu’s performance at the Charlotte Arena Pro Swim Series 

the weekend before the May 20th article’s publication: 

Hosszu raced in seven individual events. She won six: the 200 free and the 

400 IM on day one; the 200 fly and 100 back on day two (along with a 

why-not 9th in the 400 free); and the 200 IM and 200 back on day three. It 

was that last double on the third day that caught many eyes. Within a 

sixteen minute span, Hosszu posted the top time in the world this year in 

the 200 IM (2:08.66) and returned after a gasp of a warm-down later with a 

200 back in 2:07.79, the third fastest time on earth this year. 

(Id.) Barrett contrasted Hosszu’s performance with the “very tired, in-training swims” of 

“most of the superstars in attendance.” (Id.) 

 From there, Barrett stated that “past signposts point down some dark roads” and 

briefly summarized a documentary he is writing about the 1976 Olympics, when an East 

German team used performance-enhancing drugs. Barrett stressed that a “driving 

narrative” of the film is “the failure of the press to speak up in the face of such obvious 

corruption.” (Id.) According to Barrett, although the East German team was “delivering 

performances that could not be explained by any rational observer,” very few 

commentators voiced their suspicions that the athletes were aiding their performances 

with drugs because “there was no proof.” (Id.) Barrett then claimed to have voiced 

suspicions that Lance Armstrong was using drugs before there was proof of Armstrong’s 

drug use, noting that this “continues to happen, in every sport, every time there’s a 

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champion who stretches plausible achievement in ways that don’t quite pass the bullshit 

test for anyone paying attention.” (Id.) 

 Barrett conceded that his suspicions about Hosszu could be wrong, and stated that 

he hopes they are. (Id.) But then he provided a few more facts to support his suspicions. 

In the 2012 London Olympics, Hosszu placed 4th in her signature event, the 400 IM. (Id.

at PDF 4.) Hosszu stated in an interview that she “gave up” during the event because her 

spirit was shattered by the swimmer who won the event. (Id.) According to Barrett, 

there was “outraged talk . . . some of it bordering on xenophobic” that the winner of the 

event—Ye Shiwen of China—must have been using performance-enhancing drugs. (Id.) 

After outlining these facts, Barrett questioned whether Hosszu might have suspected that 

the swimmer who defeated her had been doping. He ended the article by sharing a 

generalization he claimed to have learned while producing his documentary: “There is 

one prerequisite for athletes who dope: They must convince themselves that their 

competition is doing it. That is the only thing that can validate crossing this line.” 

 In light of Barrett’s concessions that he has “no proof,” that all he has is 

“suspicions,” which may be “wrong,”3

 and in light of his detailed explanation of how 

non-contested facts gave rise to his suspicions, (id. at PDF 2-4), no “reasonable factfinder 

could conclude that the statements imply a false assertion of objective fact.” Partington, 

56 F.3d at 1153. Rather, it is clear to the reader “that the challenged statements represent 

[Barrett’s] own interpretation of [the non-contested] facts” and that the reader is “free to 

draw his own conclusions.” Id. at 1156-57. 

 Additionally, “the general context in which the statements were made negates the 

impression that they imply a false assertion of fact.” Partington, 56 F.3d at 1154. First,

SWM’s version of the May 20th article clearly designated the content as “commentary” in 

three separate places: (1) at the beginning of the article after the title, (2) at end of the 

article, where SWM included a link to a press conference where Hosszu denied the 

 

3

 In the version of the May 20th article published on Barrett’s blog, he further stated, “[T]o any litigious minded folks out there – I realize I’m trafficking in currently unprovable conjecture.” (Doc. 27-1 at Ex. 2, PDF 8.) 

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“commentary,” and (3) at the end of the text in an italicized notice to the reader that the 

“commentary” contained opinion of the author and not SWM.4

 (Doc. 27 at Ex. 1.) The 

other version was posted on a blog, a form of media known for containing personal 

opinion and commentary. Amaretto Ranch Breedables, LLC v. Ozimals, Inc., No. CV 10-

5696 CRB, 2013 WL 3460707, at *4 (N.D. Cal. July 9, 2013) (“[S]tatements made on a 

personal blog are less likely to be viewed as statements of fact.”); Obsidian Fin. Grp., 

LLC v. Cox, 812 F. Supp. 2d 1220, 1223 (D. Or. 2011), aff’d, 740 F.3d 1284 (9th Cir. 

2014) (“[B]logs are a subspecies of online speech which inherently suggest that 

statements made there are not likely provable assertions of fact.”); see also Partington,

56 F.3d at 1154 (“[S]tatements are protected in part because the format in which they are 

found is ‘the type of article generally known to contain more opinionated writing than the 

typical news report.’” (quoting Phantom Touring v. Affiliated Publ’ns, 953 F.2d 724, 729 

(1st Cir. 1992))). Further, the May 20th article employed a highly informal writing style 

more commonly associated with personal commentary than news reporting. Cf. 

Underwager, 69 F.3d at 367 (“[S]ome of the language on the tape and at the seminar was 

colorful, figurative rhetoric that reasonable minds would not take to be factual.”). 

 Nonetheless, this is not a case in which the author was penning satire, attempting 

to be humorous, or otherwise creating a message that was not meant to be taken 

seriously. Cf. Knievel, 393 F.3d at 1077-78. Despite the colorful language, Barrett 

intended his audience to seriously consider the question he was raising – whether Hosszu 

might be enhancing her performances with drugs. 

 There is one more factor for the Court to consider: “whether the statement in 

question is susceptible of being proved true or false.” See Partington, 56 F.3d at 1153. 

First, the Court must determine what the statement in question here is. Barrett never 

stated in the article that Hosszu has ever used performance-enhancing drugs, and (as is 

 

4

 Hosszu alleges that at least one of these designations was added after SWM’s initial 

publication of the May 20th article. (Doc. 1 at ¶ 42.) However, even if the article had not been explicitly labeled “commentary,” the discussion above establishes that a reasonable 

reader would recognize that Barrett was expressing suspicions and conjecture, not 

assertions of fact. 

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discussed above) his explicit caveats and his fair review of the facts on which his 

suspicions are grounded negate the possibility that he was affirmatively asserting as a fact 

that she has done so. He did not explicitly state—but he clearly implied—that he 

believes that Hosszu’s performances should raise strong suspicions that she is using 

performance-enhancing drugs, and that he believes commentators should speak out about 

such suspicions. Such a “statement” is not an assertion of fact. It is a personal opinion 

that is not susceptible of being proved true or false. 

 For all of the above reasons, Barrett’s statements in the May 20th article are 

protected by the First Amendment: 

When, as here, an author writing about a controversial occurrence fairly 

describes the general events involved and offers his personal perspective 

about some of its ambiguities and disputed facts, his statements should 

generally be protected by the First Amendment. Otherwise, there would be 

no room for expressions of opinion by commentators, experts in a field, 

figures closely involved in a public controversy, or others whose 

perspectives might be of interest to the public. Instead, authors of every sort 

would be forced to provide only dry, colorless descriptions of facts, bereft 

of analysis or insight. There would be little difference between the editorial 

page and the front page, between commentary and reporting, and the robust 

debate among people with different viewpoints that is a vital part of our 

democracy would surely be hampered. 

Partington, 56 F.3d at 1154. 

 Hosszu’s claims based on the August 3, 2015 publication of Barrett’s article

Women Rule the Worlds allege that this second article republished the May 20th article’s 

statements and reconfirmed Barrett’s continued belief in the sentiments expressed in the 

May 20th article. (Doc. 1 at ¶ 44.) Because the May 20th article is protected by the First 

Amendment, so too is Women Rule the Worlds. 

 Hosszu’s false light claims based on the May 20th and Women Rule the Worlds

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articles fail for the same reason her defamation claims fail: “both statements are 

protected by the First Amendment, regardless of the form of tort alleged.” Partington, 56 

F.3d at 1160. Therefore, Defendants’ Motion to Dismiss regarding these two articles is 

granted. 

 Hosszu also based defamation and false light claims on two other articles, Doping: 

How Not to Get Caught and Suspicious Minds and the Doping Rumor Mill. She alleges 

that these articles “specifically argue that the absence of a positive drug test is not 

tantamount to factual innocence of performance-enhancing drug abuse.” (Doc. 1 at ¶ 45.) 

Hosszu fails to allege that this statement is false, and as such, the claims based on these 

articles fail.5

 Moreover, in Arizona, “defamatory statements must be published in such a 

manner that they reasonably relate to specific individuals.” Hansen v. Stoll, 130 Ariz. 

454, 458, 636 P.2d 1236, 1240 (Ct. App. 1981) (citing Rosenblatt v. Baer, 383 U.S. 75 

(1966)). “While the individual need not be named, the burden rests on the plaintiff to 

[allege] that the publication was ‘of and concerning’ [her].” Id. 

 Hosszu alleged that these articles were “on the subject of performance-enhancing 

drugs abuse, both of which are reasonably understood to refer to Hosszu.” (Compl. ¶ 45.) 

However, while it is not necessary for Hosszu to allege that every reader could make the 

connection between the article in question and herself, the “connection must be 

reasonable under the circumstances.” Hansen, 130 Ariz. at 459, 636 P.2d at 1241 (citing 

Restatement (Second) of Torts § 564 (1977)). These articles never mention Hosszu. 

Instead, they discuss the use of performance-enhancing drugs in the swimming 

community as a whole. (See Doc. 27 at Ex. 3–6.) “If the group [of defamed persons] is 

so large, or the statements so indefinite, that the objects of the defamatory statements 

cannot be readily ascertained, the statements are not actionable.” Hansen, 130 Ariz. at 

458, 636 P.2d at 1240. Moreover, both parties stipulate that Barrett is a known 

 

5

 Because the claims fail on this ground, the Court will not analyze whether they are also protected under the First Amendment. 

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commentator on the topic of performance-enhancing drug use in professional swimming. 

(Compl.¶ 26; Doc. 26 at 4, 9). Thus, if anything, these articles propose a broad view on 

an issue of public concern, rather than targeted assertions of fact which readers could 

reasonably understand to be of and concerning Hosszu. 

 Thus, Hosszu’s defamation claims based on Doping: How Not to Get Caught and 

Suspicious Minds and the Doping Rumor Mill fail. Hosszu’s false light claims based on 

these articles fail for the same reason her defamation claims fail: a false light claim must 

be “of and concerning” the plaintiff. Reynolds v. Reynolds, 231 Ariz. 313, 318, 294 P.3d 

151, 156 (App. 2013). 

III. Leave to Amend 

 “[L]eave to amend should be granted unless the district court determines that the 

pleading could not possibly be cured by the allegation of other facts.” Levine v.

Safeguard Health Enter., Inc., 32 F. App’x 276, 278 (9th Cir. 2002) (citing Bly–Magee v. 

Cal., 236 F.3d 1014, 1019 (9th Cir. 2001)). Here, the pleading cannot be cured by 

alleging additional facts.

CONCLUSION 

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 26) 

is GRANTED. All claims are dismissed with prejudice. The Clerk of Court is directed 

to enter judgment accordingly. 

 Dated this 12th day of August, 2016. 

Honorable G. Murray Snow

United States District Judge

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