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Fact vs. opinion: Defamation ruling makes gray area grayer

By Douglas Lee
Special to the First Amendment Center Online

The difference between fact and opinion, it seems, is a matter of opinion.

One of the few areas of defamation law that remains unsettled, the fact-opinion dichotomy continues to challenge trial and appellate judges. Indeed, the gray area between fact and opinion is so wide it sometimes swallows the distinction.

One of those times occurred in Rose v. Hollinger International, Inc., a case decided May 19 by the Illinois Appellate Court. In Rose, the court affirmed a trial court’s dismissal of a former employee’s libel claim against the publisher of The Jerusalem Post on the grounds that the blistering e-mail announcing the employee’s departure was protected opinion.

After a short stint with the Chicago Sun-Times, Thomas Rose in 1998 became the publisher and chief executive officer of the Post, an affiliate of the Chicago newspaper. He moved to Israel and worked in that position until he was fired on May 25, 2004. Two days later, Bret Stephens, the paper’s editor-in-chief, e-mailed the editorial staff about the firing. His message read in part:

“For those of us who have seen up close the damage Tom did to this newspaper, this is a happy event indeed. For those Tom damaged personally, with his abusive behavior and bizarre management style, it is happier still. So good riddance, Tom, good riddance. You will not be missed.

“So many of us have been waiting for this day, and fighting for it, that we may be forgiven for thinking that Tom’s departure brings our problems to an end. It does not. It will be some time before we can undo the damage he has wrought: To our finances, to our reputation, to our business relationships, to our morale, to the quality of our editorial product.

“What we can say is that, with Tom gone, we can begin to address our problems in a rational and purposeful way. ...”

Not surprisingly, Jerusalem Post employees forwarded the e-mail to others, and parts of it eventually were published in at least two newspapers. Rose then sued Stephens, the Post, its publisher (Hollinger International Inc.) and Chicago Sun-Times Inc., under a variety of theories, including defamation. The trial court dismissed the defamation count, holding the allegedly libelous statements in the e-mail were protected expressions of opinion.

On appeal, the court affirmed. In doing so, it turned first to the U.S. Supreme Court’s 1990 opinion in Milkovich v. Lorain Journal Co., in which the high court intended to scale back First Amendment protection of opinion. Simply couching speech as opinion, the court said, does not insulate it from liability. Instead, liability can and should be imposed if the purported opinion implies defamatory facts.

As many courts and commentators noted at the time, the Milkovich test is problematic because it potentially punishes implications the speaker never intended. As a result, many courts purporting to follow Milkovich have distinguished between fact and opinion in ways that actually expand protection for opinion.

In Rose, for example, the Illinois court noted the Milkovich standard is “restrictive,” saying “a defamatory statement is constitutionally protected only if it cannot be reasonably interpreted as stating actual fact.” That interpretation, the Illinois court said, depends on three factors: whether the statement has “a precise and readily understood” meaning, whether the statement is verifiable and whether the statement’s “literary or social context” signals it has factual content.

After setting forth the “restrictive” Milkovich standard, however, the Illinois court applied it expansively.

Initially, the court rejected out of hand any suggestion that the assertions “abusive behavior” and “bizarre management style” might imply defamatory facts, saying they “clearly are nonactionable opinion and require no further analysis.” In doing so, the court failed to note that, while descriptions of behavior usually are subjective expressions intended as adjectives, Stephens’ were intended more as verbs, to demonstrate how Rose had “damaged personally” other employees at the newspaper. Especially when the speaker was a firsthand witness to Rose’s behavior in the newsroom, it is surprising the court did not at least consider whether these assertions implied defamatory facts.

The only statement the court analyzed in detail was the allegation that Rose had damaged the company’s finances. While preferred from a First Amendment perspective, the court’s conclusion that the statement was protected opinion is hardly indisputable.

In determining the allegation did not have a precise and reasonably understood meaning, for example, the court said the statement was too vague to alert readers as to which aspect of the company’s finances Stephens was referring. Because “[d]ifferent readers will have different views of the meaning of the phrase,” the court said, the phrase did not have “a precise core of meaning for which a consensus of understanding exists.”

Similarly, the court concluded the statement was too vague to be verifiable. “One cannot tell whether it is a matter of profit and loss,” the court said. “Or assets and liabilities. Or net worth.” Therefore, the court said, any investigation to prove or disprove the allegation would be fruitless.

Finally, the court held the statement’s context indicated it was a “mean-spirited sendoff” rather than a statement of fact: “We do not see how a reasonable reader would take ‘wrought damage to our finances’ as a factual assertion that Rose caused some injury to specific, identifiable pecuniary affairs or resources of the newspaper.”

The court did not say the e-mail could not be read to imply defamatory facts, as it certainly can. The e-mail can be read to imply that Rose created a hostile work environment, caused employees psychological harm and acted irrationally. It also can be read to imply that Rose’s actions adversely affected the newspaper’s profits, damaged the newspaper’s business relationships and diminished the value of the company.

The basis for the court’s holding, therefore, was not that the e-mail could not be read to imply defamatory facts but that it could be read to imply too many, that it was too general and too vague to imply only one meaning.

Such an expansive view of opinion — while initially pleasing to First Amendment advocates — is troubling because it threatens the balance that courts have worked hard to strike between free speech and protection of reputation. If it ultimately becomes impossible (or even more difficult than it is today) for people to sue for defamation, the news media will be presumed to be unaccountable, which will undermine the media's credibility.

Speech, after all, rarely is so specific that it eliminates all vagueness. Even a seemingly direct statement of defamatory fact — a judge accepted a bribe in exchange for imposing a light sentence, for example — can leave some questions unanswered. In this example, who bribed the judge? A family member? A politician? The mob? And with what? Money? Sexual favors? The promise of a promotion? And how light was the sentence? At the lower end of a statutory range? Outside that range? Or just not as heavy as the prosecution requested?

By seeking to avoid the possibility that Milkovich might punish unintended implications, the court deciding Rose and other courts like it have extended First Amendment protections once reserved for expressions of opinion to speech that is simply vague. How far these protections extend, however, is unclear. Do the questions above about the judge’s bribe, for example, render that statement nonactionable? If so, should they? If not, why not?

Seemingly anticipating questions about its decision, the court in Rose noted: “A clear line between fact and opinion is impossible to draw.” Ironically, though the appeals court’s conclusion is not verifiable and perhaps imprecise (what, after all, is a “clear line”?), it certainly appears to state an indisputable fact.


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