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U.S. Constitution Title: Opinion and Fair Comment Privileges This is not to say that every statement of opinion is protected. If a statement implies some false underlying facts, it could be defamatory. For example, stating that "in my opinion, the mayor killed her husband" is not likely to be a protected opinion. Couching false statements of fact as opinion or within quotes from other sources generally won’t protect you either. Nor will trying to cover yourself by saying that a politician “allegedly” is a drug dealer, or that your neighbor said the politician “is a drug dealer,” or that in your opinion, the politician is a drug dealer. A reader may well assume you have unstated facts to base your conclusion on, and it would be a defamatory statement if the implied facts turn out to be false. All opinions that rely on underlying facts, however, are not necessarily outside the opinion privilege. If you state the facts on which you are basing your opinion, and the opinion you state could be reasonably drawn from those truthful facts, you will be protected even if your opinion turns out to be incorrect. For example, if you were to say "In my opinion, Danielle is failing out of school" it would likely lead your readers to assume that there are some unstated facts you relied on to draw your conclusion. Such a statement would not be protected, as the privilege does not protect back door entry of facts as "opinion" through innuendo. On the other hand, if you state "In my opinion, Danielle is failing out of school because she is a blond and the only thing I ever see her do at the library is check Facebook," this provides the reader with the information you are basing the opinion on, and allows the reader to come to his own conclusion. Compare the following two statements: The first example states true, non-defamatory facts upon which a reasonable conclusion (that Carol is an alcoholic) is based, and also emphasizes the limits of your knowledge (that you only saw Carol five times). It would be protected as a statement of opinion. Under the second example, readers would likely assume that there are unstated, defamatory facts upon which your conclusion is based. Therefore it would likely fall outside of the privilege. Keep in mind that even if you state the facts you are relying on for your opinion, but those facts turn out to be false, the privilege will not apply. For example, if you say that "In my opinion, Danielle is failing out of school because she failed biology," the privilege would not apply if she got a C in biology. To determine whether a statement is an opinion or a fact, courts will generally look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement. Under this test, the difference between an opinion and a fact often comes down to a case-by-case analysis of the publication's context. Distinguishing Between Statements of Fact and Opinion In general, facts are statements that can be proven true or false; by contrast, opinions are matters of belief or ideas that cannot be proven one way or the other. For example, "Chris is a thief" can be proven false by showing that throughout his entire life Chris never stole anything. Compare that statement with "Chris is a complete moron." The latter is an opinion (or, technically, "a pure opinion"), as what constitutes a moron is a subjective view that varies with the person: one person's moron is not necessarily the next person's moron. Put another way, there would be no way to prove that Chris is not a moron. If a statement is a "pure opinion," it cannot be the basis for a defamation claim. Of course, it is not always easy to determine whether a statement is a pure opinion. As we noted above, opinions that imply false underlying facts will not be protected. For example, stating that "Chris is insane" could be both a fact and an opinion. It could mean Chris has been diagnosed with psychosis and needs to be hospitalized in a mental institution; this could be proven false. It could also mean that Chris has wacky ideas that one doesn't agree with, which is an opinion. In determining which meaning the statement should be given, courts often rely on context and common-sense logic (or to phrase it in legalese, the "totality of circumstances" of the publication). For example, if one called Chris insane in a forum post as part of a heated argument over politics, the statement would likely be interpreted as an opinion. Some examples of protected opinions include the following: Keep in mind, however, that you can't make a statement an opinion merely by prefacing it with "in my opinion." Saying that "in my opinion, Alex stole ten dollars from the church collection basket" would lead most listeners to conclude you had evidence that Alex had indeed stolen the money, and that you intend the statement as one of fact rather than opinion. The courts do not give protection to false factual connotations disguised as opinions. Context and the Totality of the Circumstances In general, courts will look at the context and medium in which the alleged defamation occurred. For example, a statement is more likely to be regarded as an opinion rather than a fact if it occurs in an editorial blog as opposed to a piece of investigative journalism. The wider context may also provide a framework for the court: during the McCarthy-era witch hunts of the 1950s, for example, courts routinely held that referring to someone as a "Communist" was defamatory; in the present day, "communist" has taken on a more generalized (if still often derogatory) political meaning, and courts would almost certainly find use of the word to be a protected opinion. The Internet presents particular issues for the courts, as it is a medium where the lack of face-to-face contact can often make judging the actual meaning and context of a publication difficult. Courts are likely to take into account the particular social conventions of the Internet forum at issue in evaluating a statement's context. But much remains to be determined, such as how the courts would handle the nature of many discussion forums. A 2001 case that dealt with the opinion privilege is worth quoting at length as an indication of the approach courts may well take in determining whether an online posting is a statement of opinion or fact. In regards to a post on a financial bulletin board site the court noted: In short, the court concluded that "the general tone and context of these messages strongly suggest that they are the opinions of the posters." Id. at 1267. It is likely that other courts will take a similarly broad view regarding Internet forums for purposes of the opinion privilege. To summarize, the factors courts often use to determine whether a statement is a protected opinion are: Note that each state decides what is required to establish defamation and what defenses are available, so you should review your state's specific law in the State Law: Defamation section of this guide to determine how the opinion privilege operates in your jurisdiction. Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 7.
#2. To: Gatlin (#0)
I think any attorney would tell you that an article this generic can't really give very good advice to anyone. A lot depends on location, like what state(s) the libelee and libeler live in, where the server is located, what state the court is in where the case was filed. And judges vary considerably in how they handle these cases, even in the same state. ACLU many years ago had a large series of civil rights brochures that had the same problem. They started a project to try to cover the basics in all 50 states but I think they gave up. You just can't give generic advice on criminal or civil law in all 50 states. And judges really don't want to adjudicate the internet at all; they prefer to pretend it doesn't actually exist. You can't blame them: it's a minefield of legal issues.
The last paragraph even stated : I think your “critical analysis” mode may have been set here on “too critical.” I believe that it is your nature to be cocked in the “pick apart” mode as I think you often times are. I recognize that because I see it in myself. Not that any of this matters at all and I am not being critical of you – I am simply replying to your post with my take on it. Salute,
Well, yeah. But if that is the case, then of what practical value is the article to begin with if it doesn't apply to any state at all? That last paragraph made you feel like nothing you had read applied to any state, like you had wasted your time reading it instead of searching out the criminal statutes for the state you are interested in.
“What practical value” – you ask. None, I say – The article is absolutely of no practical value. From a Study: Practical Value Made Clear: Will it make you feel better if I ask Stone to delete the article? Please let me know. In the meantime, I discovered long ago that most all information assets have abundant potential, high above and far beyond the utility for which they were originally intended. Unlike so many things on the highway to knowledge, information is never depleted after it’s consumed and even insignificant information is never of absolutely no value. I promise that in the future I will definitely try to give far more consideration to the “information value” of any article I post. And since we have now developed such a deeply keen interest in doing this and seeing that it is done – then perhaps we can channel Deckard into doing the same, eh? I will leave you with this quote by Daniel Dennett:
I'm not trolling you and I was interested in what the article seemed to promise. Until I got to the end and found it had no real information to offer about any state's laws you may be subject to. I would regard a generic gun article about self-defense legal jeopardy as being in the same league. The best advice is provide a list of links, state by state and with additional links to cities with specific gun laws so that a reader can spend the time actually reading the laws in their own state(s). That's all I'm saying. I know I got no hard info for my state and you didn't either.
#8. To: Tooconservative (#7)
I knew that. And I was just "doing a funny" with you in my reply. Cheers ...
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