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Justices Won’t Revive Arizona Company’s Suit Against Rooney

April 15, 1991

WASHINGTON (AP) _ The Supreme Court today refused to revive a $16 million libel lawsuit against television commentator Andy Rooney and CBS by an Arizona-based manufacturer of a chemical treatment for car windshields.

The justices, without comment, let stand rulings that threw out the suit before it reached a jury.

During a 1988 broadcast of the ″60 Minutes″ television program, Rooney did a feature about ″junk″ he had received in the mail. One of the items he spoke about was Rain-X.

It is manufactured by Unelko Corp., whose president, Howard Ohlhausen, invented Rain-X. The product is advertised as a one-step, wipe-on automotive glass coating that repels rain, sleet and snow on contact and makes cleaning car windows easier.

″The fellow who makes this sent me a whole case of it,″ Rooney said. ″He’s very proud of it. I actually spent an hour one Saturday putting it on the windshield of my car. I suppose he’d like a commercial or a testimonial. You know how they hold the product up like this? It didn’t work.″

Unelko Corp. and Ohlhausen sued Rooney and CBS in federal court about two weeks after the feature aired.

The suit alleged libel, product disparagement and interference with business relationships.

U.S. District Judge Robert C. Broomfield in Phoenix dismissed the suit after ruling that Rooney’s feature was ″opinion″ and could not be the basis for such a suit.

By the time an appeal reached the 9th U.S. Circuit Court of Appeals, the Supreme Court had ruled in a separate case that the Constitution’s First Amendment, ensuring free-press rights, does not require a special, separate privilege for stated opinions.

The justices said in their 1990 ruling that expressions of opinion, which cannot be proved true or false, are shielded from legal liability but that assertions of fact included in a stated opinion can be held libelous.

The appeals court, taking the Supreme Court decision into account, said Broomfield’s labeling of Rooney’s feature as opinion was incorrect.

Rooney’s comment - ″It didn’t work″ - is a factual assertion that is capable of being proved true or false, the appeals court said.

But it said there was another reason for throwing out the suit against Rooney and CBS - insufficient evidence that what Rooney said was false.

″Unelko’s evidence did not demonstrate that any of Rooney’s statements were false in substance and thus was not sufficient to avoid summary judgment (dismissal),″ the 9th Circuit court said.

Unelko had offered as proof test results of Rain-X used on a car in Arizona and a deposition in which Rooney was unable to say precisely how much time he had spent applying Rain-X to his car or the exact date he had done so.

The manufacturer had argued that the evidence was enough for a jury to conclude Rooney had not used Rain-X at all.

The case is Unelko Corp. vs. Rooney, 90-1325.