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Defamation: Fact vs Opinion

To continue our discussions on what is actually protected under the First Amendment, specifically Freedom of Speech, I would like to address opinion as defamation. I pondered many questions when I came across this section in the book, because I was completely unaware that someone could sue for defamation of another’s opinion. I thought to myself, how do we decide whether an opinion can be defamatory and what is that line where it turns from expressing your feelings about someone or something and into something that could ruin a reputation?

I do not feel that the book really answered these questions, as it says,”…statements of opinion [are] privileged, and therefore not legally defamatory” (Tedford and Herbeck, 97), but also that it depends upon the circumstances of each case of opinioned statements (Tedford and Herbeck, 98). So can opinion really be defamatory or not? This whole topic just seems to be a gray area, without a distinct set of factors that could cause an opinion to be defamatory.

An article published on the First Amendment Center gave some clarity to the uncertainty of opinion as defamatory. Titled Fact vs. opinion: Defamation makes gray area grayer, the article made me think this was just going to make this topic more confusing, but it actually gave me somewhat of an answer to my questions, by explaining opinion vs. fact. A court explanation for ruling in favor of opinion as defamatory was given as an example for explanation; it read, “Simply couching speech as opinion does not insulate it from liability. Instead, liability can and should be imposed if the purported opinion implies defamatory facts” (Fact vs. opinion). So the conclusion I drew at this point, comparing this article and the book, was that as long as what someone says as their opinion can be factually proven, then it cannot be argued or charged as defamation. Simple, right?

Statements that can be proven factually are not defamatory; statements that cannot be proven factually are defamatory.

Although that may be true in theory, I still believe there is a pretty big gray area here with defining opinions vs facts and whether or not opinions can be classified defamatory. Think about media: social, broadcast, news, journals, etc. How can we possibly regulate those platforms when there are millions of postings every single day with opinion-based content that is interpreted differently by every person that sees it? How do we protect people from being defamed through the opinion of others? Is that even possible?


Sources:

"Fact vs. Opinion: Defamation Ruling Makes Gray Area Grayer." First Amendment Center. First Amendment Center, 26 June 2008. Web.
Tedford, Thomas L., and Dale A. Herbeck. Freedom of Speech in the United States. 8th ed. N.p.: STRATA, 2017. Print.


Comments

  1. AnonymousSeptember 26, 2017 at 8:03 PM

    I find your post interesting because we both pointed out gray areas within defamation although the areas we raised questions about were completely different. I believe that an added factor that makes defamation is that damage to reputation is hard to quantify. I am sure that you could roughly estimate loss in business, subscribers, contracts, etc. but it would be hard to estimate damages to character and credibility - the other components that make up reputation.

    I liked the point you raised about how people interpret things differently than others - some people would be able to recognize an article within the media and realize that it is not true or not find it offensive whereas others might may have a totally different experience with the exact same content.

    I also thought it was interesting that only statements that are untrue are considered defamatory. So theoretically you could air out someone's dirty laundry or spread a secret they had to cause damage but because it is true it doesn't meet the burden of being considered defamation.

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