Section 5.59 Constitutional Privilege for Opinion

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2. (§5.59) Constitutional Privilege for Opinion

While the "fair comment" privilege provided a safe harbor for certain subjective comments, courts continued to wrestle with the need to protect other subjective comments that, while falling outside the bounds of the "fair comment" privilege, still appeared to lack verifiably false assertions of fact. For a time, it appeared that these expressions of "opinion" were protected by an opinion privilege that was a wholly separate, constitutionally mandated doctrine.

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court seemingly made this common-law privilege absolute (in other words, not overcome by a finding of falsity or actual malice) in stating:

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.

Id. at 339–40. Based on this statement, the courts almost universally adopted a broad "opinion privilege" under which many defamatory statements comprised mainly of subjective opinion, but still having factual components, were found nonactionable as a matter of constitutional law. See, e.g., Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 499 (Mo. App. E.D. 1980) (an editorial that characterized the plaintiff, a lawyer, as being the "henchman" of a union official and engaging in "sleazy dealings"); Henry v. Halliburton, 690 S.W.2d 775, 791 (Mo. banc 1985) (references to insurance agents as "frauds" and "twisters").

In Henry, 690 S.W.2d 775, the Supreme Court of Missouri held that expressions of opinion were subject to an absolute privilege. Id. at 786–87. In deciding whether statements were actionable fact or privileged opinion, the Henry Court relied on the "totality of the circumstances" test first set forth in the decision of the United States Circuit Court of Appeals for the District of Columbia in Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127 (1985). Henry, 690 S.W.2d at 787–88. Under this analysis, to determine whether words are fact or opinion, a court should examine the totality of the circumstances in which they were made and:

· "analyze the common usage or meaning of the alleged defamatory statement[ ]" (e.g., is it capable of a precise factual connotation or is it a hyperbolic statement or rhetoric?);

· "consider the statement’s [objective] verifiability" (can it objectively and realistically be proven true or false?);

· consider the literary context of the statement (e.g., editorial or lampoon vs. news); and

· consider "the broader [social] context in which the statement appears" (e.g., political commentary).

Id.

In deciding whether statements were fact or opinion, the Henry Court held that "[i]t is up to the trial judge in the first instance to determine whether the alleged statements are capable of being treated as assertions of fact, although the jury may decide that they were not so understood." Id. at 788. Because this analysis requires consideration of all relevant attending circumstances, the Henry Court reasoned that "[o]rdinarily such a determination would be made at a motion for summary judgment." Id. at 789.

This two-step process was further explained in Pape v. Reither, 918 S.W.2d 376, 379–80, 382 (Mo. App. E.D. 1996). Under this two-step inquiry, the trial court first assesses if a statement is capable of being understood as a factual assertion as opposed to an expression of opinion. If not, the defendant is entitled to judgment as a matter of law. But even if the court determines that the statement is capable of being treated as an assertion of fact, the statement is not actionable unless the plaintiff establishes that listeners did, in fact, understand the statement as a factual assertion. One commentator offered the following cogent analysis of this procedure:

The judge’s duty is...