7.5 Fact Versus Opinion
| Library | The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.) |
7.5 FACT VERSUS OPINION
7.501 In General. Another key analysis requires distinguishing between fact and opinion. 67 The former can support a defamation claim, the latter cannot. As one court explained, opinions can be hurtful but cannot form the basis of a defamation action. 68
7.502 Federal Constitutional Protection. Starting with the United States Supreme Court's comment that "there is no such thing as a false idea," 69 courts throughout the United States developed a constitutional doctrine immunizing opinion as absolutely protected by the First Amendment. However, in Milkovich v. Lorain Journal Co., 70 the United States Supreme Court abandoned the notion of a separate constitutional protection for opinion. The Court held that "the 'breathing space' which 'freedoms of expression require in order to survive,' is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between 'opinion' and fact." 71
The Milkovich decision did not completely eradicate the opinion doctrine. Although the Court in Milkovich declined to find a separate constitutional protection for opinion, it continued to recognize the general rule that a statement may be actionable only if the plaintiff can prove it false. 72 Therefore, as a matter of constitutional law, only demonstrably false statements may incur liability.
In the years since Milkovich, courts have wrestled with the decision's significance. 73
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7.503 Virginia Constitutional Protection. Virginia courts continue to recognize a separate absolute constitution-based protection for opinion even after the United States Supreme Court in Milkovich found no special rule arising from the United States Constitution. 74 In Chaves v. Johnson, 75 the Virginia Supreme Court recognized an absolute "opinion" defense, holding that "[p]ure expressions of opinion . . . cannot form the basis of an action for defamation." Significantly, the court rested the doctrine on both the First Amendment to the United States Constitution and on the Virginia Constitution. 76
The constitutional nature of the opinion defense makes little difference on a practical level but certainly bolsters the significance of the opinion defense.
7.504 Four-Part Test. Given the critical difference between fact and opinion, courts obviously must determine how to analyze the communication at issue. Courts cannot avoid the analysis, because they rather than jurors decide whether the communication constitutes fact or opinion.
In Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 77 the Fourth Circuit adopted a four-part test that had been articulated by the District of Columbia Circuit. 78 Under this approach, a court examines four factors:
| 1. | The specific words used. Words constituting opinion are likely to be "indefinite and ambiguous" rather than carrying a "precise core of meaning for which a consensus of understanding exists." The court must measure the statements against the "average reader's view of the statement rather than that of either the most skeptical or most credulous reader"; 79 | ||
| 2. | Whether the allegedly defamatory statements are "veri-fiable"; 80 |
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| 3. | The context of the challenged statement "within the writing or speech as a whole," including the use of any cautionary language or other indication of opinion rather than fact; 81 and | ||
| 4. | The "broader social context into which the statement fits." 82 |
7.505 Difficulty of Drawing the Line. Applying these tests can be difficult. 83 For instance, courts may find that a statement that appears totally factual, such as "that man is a snake," states an opinion rather than a fact. Conversely, making a factual statement in the guise of an opinion, such as "in my opinion the auditor committed malpractice by failing to properly perform the tests associated with Section 18.4 of the Audit Procedures," does not automatically save a defendant from possible liability. 84
Moreover, many courts place some limits on what opinions someone may safely utter. For instance, some courts in other states have indicated that a defendant may incur liability for stating the opinion that the plaintiff committed a criminal act. 85
In 2011, a circuit court indicated that a question could not constitute a defamatory statement of fact. 86 However, it is possible to imagine some questions meeting that standard.
7.506 Relationship Between Opinion and Facts. Analyzing the impact of an arguable opinion requires an examination of the relationship between the arguable opinion and any factual statements that accompany it.
First, it is important to remember that statements of fact that support a nonactionable opinion can themselves support a defamation claim. 87 For
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instance, calling someone an "idiot" is almost surely protected, but adding a factual statement, such as "because she lost $10,000 in Las Vegas last weekend," can trigger liability if that provable statement is false, defamatory, and otherwise satisfies the standard for defamation liability.
Second, courts have engaged in an odd debate about the overall effect of surrounding an opinion with factual statements. In Schnare v. Ziessow, 88 the Fourth Circuit found that statements in an article were nonactionable opinion. To support this conclusion, the Fourth Circuit noted that whenever the author added an accusatory statement about the plaintiff, "he discloses the factual basis for his disagreement [with the plaintiff] allowing the reader to draw her own conclusion." 89 Thus, the defendant's inclusion of provably true facts supported the opinion defense for conclusions drawn from those disclosed facts.
Two years later, the Fourth Circuit upheld a district court's holding that the opinion defense protects someone's statement that plaintiff was "unfit" to be a Scoutmaster. The Fourth Circuit explained that had the author "included the facts giving rise to his statement that [the plaintiff] was 'unfit,' the statement might be provable as true or false and thus might supply the basis for a defamation claim." 90 Thus, courts take differing positions on whether surrounding a statement with facts makes it less likely or more likely that the statement will receive opinion defense immunity.
Third, some cases involve a subtle analysis. In 2014, one court in the Eastern District of Virginia explained that a plaintiff could amend a complaint to allege that a supposed incident never occurred, which could support a cause of action despite what would otherwise have been the defendant's purported statement that the plaintiff was unprofessional. 91
In 2013, the Virginia Supreme Court reversed a trial court's holding that the defendant's statement that the plaintiff "told me that [he] was going to screw the Authority like he did Fort Pickett" constituted protected opinion. 92 The Supreme Court noted that the plaintiff denied ever making the
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statement, so his defamation claim focused on the defendant's alleged fabrication of a statement rather than its content.
The gravamen of the amended complaint is that Saunders allegedly attributed a fabricated quotation to Tharpe that, as a quotation, caused injury to the reputations of Tharpe and Shearin. Such allegations give rise to a claim of defamation regardless of the truth or falsity of the matters asserted in the statement allegedly attributed to Tharpe or whether such assertions are fact or opinion. 93
7.507 Ironic Nature of the Opinion Doctrine. Ironically, a person who makes a critical statement of another person increases the chance of immunity by using outlandish and over-the-top language. The more outrageous the allegation, the more likely a court will be to find that the statement is a totally protected statement of opinion rather than a statement of provable fact.
7.508 Virginia Supreme Court Cases. The opinion defense plays an increasingly important role in defamation cases everywhere. In fact, two of the most recent Virginia Supreme Court decisions involve the opinion defense. These decisions highlight both the subtlety and the importance of the opinion defense. They also highlight the court's need to examine each communication as part of its critical "gatekeeper" function.
In Tronfeld v. Nationwide Mutual Insurance Co., 94 a well-known Richmond plaintiff's personal injury lawyer sued an insurance company for critical statements a company's insurance adjuster had made about him to an insured. The court first noted that the adjuster's statement that the plaintiff was "no good" deserved absolute protection as a statement of opinion. 95 However, the court found that the adjuster's claim that the plaintiff "just takes people's money" could be proven true or false and thus amounted to an actionable statement of fact. 96
The statement would not be opinion if the evidence showed a settlement or judgment [the plaintiff] obtained for a client
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which exceeded the offer made by an insurance company to the client prior to the retention of [the plaintiff] as his or her legal counsel. 97
The court made a similar finding in connection with the adjuster's statement that the plaintiff's clients would "receive more money" if they "had not hired [the plaintiff] and had dealt with the adjuster." 98
It would not be a matter of opinion that [the plaintiff] takes a client's money without rendering a service of value in return if [the plaintiff], for example, produced evidence of a settlement or judgment he obtained for that client. 99
The Virginia Supreme Court conducted an even more detailed analysis in a workplace defamation case. In Raytheon Technical Services Co. v. Hyland, 100 Hyland (the company's former senior vice president) sued the company and its president for defamation based on five critical comments in the president's evaluation of her. The defendants unsuccessfully demurred on the basis of opinion and later unsuccessfully moved for summary judgment based on the opinion defense. All...
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