Defamation laws protect people whose careers, reputations, finances and/or health have been damaged by untrue, harmful statements. However, defamation law often intersects with laws protecting the freedom of speech guaranteed by the First Amendment to the U.S. Constitution.
So, just as it's important to protect people from the harms that untrue statements may cause, it's necessary to protect the right to speak freely and without fear of reprisal. In this article we'll take a closer look at this delicate balance that can make its way to the forefront of a civil lawsuit for defamation.
What Is a Protected Opinion?
If the defendant can prove the statement he or she made was true, the defamation case ends there. People cannot be punished for speaking the truth, no matter how ugly or embarrassing it may be. Truth is always a defense to a claim of defamation.
Opinions, however, are murkier territory. Statements of opinion generally receive protection under the First Amendment. The question then becomes, what is an opinion? Is it usually sufficient for a speaker to preface a statement (one that might otherwise be considered defamatory) with the words "I think" or "In my opinion"?
The answer, of course, is no. People cannot say whatever they want and get protection for their comments by tacking on a couple of qualifying words. The U.S. Supreme Court has said that a statement is an opinion that merits protection when it is (1) about a matter of public concern, (2) expressed in a way that makes it hard to prove whether it is true or false, and (3) can't be reasonably interpreted to be a factual statement about someone. (The Supreme Court case is Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).)
To apply this test, courts usually consider several factors, such as the manner in which the harmful statement was made.
- Did the speaker use figurative or hyperbolic language, making it hard to view the statement as an expression of fact?
- If the statement is published in print or online, what was its overall context?
- Would the context make it hard for a reader to think the writer was conveying a fact?
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