§ 6.4.5.7 OPINION

• Jurisdiction: Arizona

§ 6.4.5.7 Opinion. Courts have long struggled with the question of whether a statement is "opinion" and the effect of such a determination. The history of opinion and defamation law deserves repeating.

At common law, there is no distinction between statements of fact on the one hand and opinion or hyperbole on the other.¹⁸⁰ Common law does recognize a privilege of "fair comment," and in that way protects the honest expression of defamatory statements of opinion so long as they are drawn from a true or privileged statement of facts.¹⁸¹ That privilege was lost on a showing that the comment was motivated by ill will or spite, or by some purpose inconsistent with the social policies supporting the privilege in the first place.¹⁸² The Restatement (Second) of Torts adopts an absolute privilege for "pure opinion" and provides for potential liability for "mixed" opinion, i.e., statements of opinion which implied undisclosed defamatory facts.¹⁸³

In 1974, the United States Supreme Court in dicta made this observation:

Under the first amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.¹⁸⁴

For the next 16 years many lower courts assumed, based on this language, that statements categorized as opinion were constitutionally protected, until the Supreme Court decided the case of Milkovich v. Lorain Journal Co.¹⁸⁵ The Court there held that the First Amendment does not require a separate "opinion privilege," but instead that existing "established safeguards" protecting free expression provide adequate "breathing room" without any need for an additional, separate opinion privilege.¹⁸⁶ In Milkovich, the Court was dealing with an accusation that a high school wrestling coach "lied at the hearing after . . . having given his solemn oath to tell the truth." The Court held that this could be a defamatory statement of fact and remanded for a jury determination. The Court noted that "expressions of opinion may often imply an assertion of objective fact,"¹⁸⁷ and gave examples. Where a speaker says, "In my opinion John Jones is a liar," he thereby implies the existence of facts which support the conclusion that Jones told a lie. Where the speaker or writer states facts upon which the opinion is grounded, such statements may also imply false factual assertions if "either incorrect or incomplete, or if his assessment of them is erroneous."¹⁸⁸ Merely "couching such statements in terms of opinion does not dispel these implications; and the statement 'in my opinion Jones is a liar' causes as much damage to reputation as the statement 'Jones is a liar.'"¹⁸⁹ The court concluded that "[t]he dispositive question in the present case then becomes whether or not a reasonable factfinder could conclude that the statements . . . imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding."¹⁹⁰

The case of Yetman v. English¹⁹¹ was decided on the heels of Milkovich, and dealt with the question of whether calling a legislator a "communist" was opinion. The court closely followed Milkovich, and adopted the...