This is the second part in How to Fling About Legal Insults Like a Lawyer. One of the questions last week wondered whether free speech was simply unfettered. Absolutely not and I don’t mean for this series to imply that, but I do know that over the space of a year and a half, I’ve had more than one person threaten legal action. I always take those threats seriously because they implicate not only me, but also my dear blogging partners. Further, these threats can intimidate others who are less familiar with the law into taking down posts, apologizing for perceived wrongdoing, and so forth.
The First Amendment is not intended to protect every utterance. Instead, what the court, any court, has to do is weigh the balance between the right of a person to be free of something injurious and harmful or, in other words, to be free of defamation, and the right of the press and the public to engage in critical discourse. As one legal scholar has said, hurt feelings are not to be redressed in the court of law: “Although scathing characterizations can be hurtful, the law of defamation does not provide redress whenever feelings and sensibilities are offended.” Ward v. Zelikovsky, 643 A.2d 972 (N.J. 1994) citing Harper, 2 The Law of Torts § 5.1, at 24.
One of the more difficult concepts to grasp is the difference between opinion and fact. In the 1974 case of Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974), the Supreme Court held that the First Amendment protects statements of opinions.
We note that to restrict too severely the right to express such opinions, no matter how annoying or disagreeable, would be [sic] dangerous curtailment of a First Amendment right. Individuals should be able to express their views about the prejudices of others without the chilling effect of a possible lawsuit in defamation resulting from their words.
Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108, 110 (1983). In Rybas, the Unhappy Person was a landlord who was accused of being anti-Semitic in a letter from a tenant’s lawyer, the MeanGirl. The Pennsylvania Court found that the statement, while “offensive”, was not defamatory.
The problem of what is opinion and what is fact is one that plagues even the courts. Judge Easterbrook, in the Stevens v. Tillman case I discuss below stated the “courts have wrestled with the question . . . and have come up with buckets full of factors to consider but no useful guidance on what to do when they look in opposite directions, as they always do.” Stevens v. Tillman, 855 F.2d 394, 398 (7th Cir. 1988).
Judge Easterbrook muses philosophically in Stevens , arguing that the there can almost be no difference between opinion and fact.
Most efforts to separate "fact" from "opinion" start with the belief that a "fact" is something verifiable, while an opinion is not. The branch of philosophy known as logical positivism is built on the proposition than only what is verifiable is worth debating (more rigorously, that "there are no synthetic a priori statements except this one–Ã‚ ), but it has fallen on hard times not only because no one can separate the "verifiable" from the"non-verifiable" (was the statement "there are craters on the other side of the moon" an opinion that turned to fact when we gained the ability to put satellites in orbit around the moon?), but also because most philosophers believe that there are useful ways to debate even non-verifiable statements.
Whatever Judge Easterbrook wrote (in the court’s unanimous opinion), the truth is that most courts ostensibly follow the rule that an opinion is a statement that has no verifiable facts or, stated another way, is objectively incapable of proof or disproof. Courts use a multi factor test, and all the factors tend to examine whether a reasonable person (that’s the objective part) would view the statement as verifiable by facts. A statement can move from opinion to defamatory fact if the author implies that there are “facts” to support the opinion. Confused yet?
Courts often use examples to make explain their decision as to whether a statement is a fact or is an opinion and thus it is easier to use examples to explain the paradigmatic differences.
Jennifer McKenzie asked last week whether the statement “That person is racist" was defamatory. This depends on whether the statement is an invective or has factual basis that is implied. Restatement (Second) of Torts § 566. For example, in Horowitz v. Baker, 523 N.E.2d 179 (Ill. Ct. App. 1988), the statements about Unhappy Person included "sleazy–Ã‚ , "cheap–Ã‚ , "pull a fast one–Ã‚ , "secret–Ã‚ , and "rip-off–Ã‚ . Alone and without corresponding facts, the statements imply that the Unhappy Person was engaged in bad, unlawful, and unethical acts. The newspaper that printed the statements, however, based those statements on truthful facts and thus the opinion statements were not defamatory.
In Como v. Riley, 731 N.Y.2d 387, 387 (N.Y. App. Div. 2001) the court found that an action could be brought on the basis that an email was sent entitled “Racism” with the statement that the Unhappy Person’ office cubicle contained a statuette of a black man hanging from a white noose. Of course, if the Unhappy Person actually had a statuette of a black man hanging from a noose like object in the cubicle, the email would have not been defamatory because it would have been true.
In Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988), the Second Circuit of Appeals, found that statements of bigotry were not actionable without corresponding factual inferences. Id. at __. An elementary principal, the Unhappy Person, sued the president of the local PTA, the MeanGirl, for calling the principal a racist. Some of the statements by the MeanGirl president included the following:
We found in our investigation that our principal must be removed…. Our principal is very insensitive to the needs of our community, which happens to be totally black. She made very racist statements during the boycott. She is a racist. She must go. We cannot have racist people around our children…. She made numbers of very racist statements, so many that I would use all of my time to explain to you some of the statements that were made.
Easterbrook writes that the term racism has been bandied about so frequently that it has become “watered down” and become “common coin in political discourse.” I know of one particular author who blogs quite frequently about individuals being racist but I’ve generally viewed her statements as name-calling and opinion rather than statements of fact, no matter how hurtful or offensive. Let me quote some more from Easterbrook:
Language is subject to levelling forces. When a word acquires a strong meaning it becomes useful in rhetoric. A single word conveys a powerful image. When plantation owners held blacks in chattel slavery, when 100 years later governors declared "segregation now, segregation forever–Ã‚ , everyone knew what a "racist" was. The strength of the image invites use. To obtain emotional impact, orators employed the term without the strong justification, shading its meaning just a little. So long as any part of the old meaning lingers, there is a tendency to invoke the word for its impact rather than to convey a precise meaning. We may regret that the language is losing the meaning of a word, especially when there is no ready substitute. But we serve in a court of law rather than of language and cannot insist that speakers cling to older meanings. In daily life "racist" is hurled about so indiscriminately that it is no more than a verbal slap in the face; the target can slap back (as Stevens did). It is not actionable unless it implies the existence of undisclosed, defamatory facts, and Stevens has not relied on any such implication
Is Easterbrook and the Stevens opinion binding on absolutely all actions of defamation? Of course not. It’s merely illustrative and I thought that Easterbrook’s well thought out and philosophical ruminations interesting and helpful. There are fewer and fewer successful cases of defamation, in part because rhetoric is not usually going to be found to be defamatory. A few more examples of non actionable statements:
- a reporter accused of sloppy and irresponsible reporting. Cole v. Westinghouse Broadcasting Co., Inc. 435 N.E.2d 1021 (Mass 1982).
- accusation of a reporter being a “fellow traveler” of “facists” susceptible to wide interpretations. Buckley v. Littell , 539 F.2d 882 (2d Cir. 1976).
- article stating a women’s basketball coach had a tendency to “screw things up” when it came to her team was not defamatory because the statement was not so obviously false and that “‘[s]ports columnists frequently offer intemperate denunciations of coaches’ play calling or strategy.” Washington v. Smith, 80 F.3d 555, 557 (D.C. App. 1996).
On the other side of the coin, you cannot excuse defamatory statements by using the prefatory words, “in my opinion” or “I think” because “it would be destructive of the law of libel if a writer could escape liability for accusations of crime simply by using, explicitly or implicitly, the words ‘I think.’” Cianci v. New Times Publishing Co., 639 F.2d 1200 (2d. Cir. 1980).
Calling someone a mean girl, a hack, or hateful are all opinions with no concrete meaning. What one person defines as mean, another will say is dislikeable but not mean. Calling someone a writer with no discernible skills and can’t plot her way out of a paper bag is also opinion. Writing that Jane Doe is a thief and a liar are closer to the fact side of the diagram. If a person would write Jane Doe is a liar and then show examples that I had taken blog articles and republished them as my own, it is not likely defamatory since the facts are there and can be verified as truth. (I have not done this, of course. I am merely using it as an example).
As I stated at the preface of this article, I am not advocating a system by which bloggers or commenters hurl invectives without conscience. In fact, if you can bear one more Easterbrook quote, he wrote “civilized discourse should be the aspiration of us all.” Stevens, 855 F.3d at 405. But the right to passionate should not be chilled by unhealthy threats of lawsuits as it is not the civil discourse or moderate speech that is subject to condemnation. Id. at 399.
It’s a balance. If there are questions, please post and I’ll do my best to answer them.
Next week: The standards I am referring to above are standards that apply to the criticism of a public figure. By and large, if a blog article is about an author, that author is a public figure. I’ll address the differences next week in part 3 of many parts. Defamation per se v. Defamation per quod and the media defendant.