Thursday, February 23, 2012

Blowing Off Steam: Opinion v. Allegation

Last month I talked about a case discussing whether bloggers are journalists, and I concluded that the answer is: sometimes. That particular case involved a woman who claimed to be an investigative journalist, and the judge tailored his decision to that category.

But investigative journalists aren't the only people who write for newspapers and other recognized media. What about columnists, for instance? They often deal with opinion rather than fact. And what happens if you use opinion to blow off steam in your blog?

The law says that pure opinion can't libel anyone. But if the opinion implies that it is based on facts and those facts are untrue, the writer could be liable for defamation.

So how do you know when something is an opinion rather than an allegation? The test is how a reasonable reader would interpret the statements, and a reasonable reader considers the context.

Genre or subgenre is a major component of context. When you read a book review, don't you assume you are reading the reviewer's opinion? That's what an appeals court said when Dan Moldea sued the New York Times over a review of his non-fiction book on organized crime influences in professional football.* The review said the book contained "too much sloppy journalism" and gave a number of examples. The court found that the statements were opinion and the paper was not guilty of libel, but the court's written decision implied that the result might have been different if the reviewer had not included the examples.

Context also includes the writing's tone. When Boston Magazine printed an article on the best and worst in local sports, it chose James Myers as the worst sportscaster and described him as "The only newscaster in town who is enrolled in a course for remedial speaking."** Since Myers wasn't taking remedial speaking classes, he sued. The state's highest court described the article as loaded with one-liners that were obvious attempts at humor. Given the tone of the article, the court held that a reasonable reader would understand the remedial speaking remark as an opinion (that Myers should be enrolled in a course for remedial speaking) rather than as a fact (that Myers was actually enrolled).

But labeling something as opinion is not enough if the statement implies knowledge of untrue facts. Thomas Diadiun's newspaper column suggested that a former high school wrestling coach had perjured himself.*** The column used the words "Diadiun says" and "TD says" to describe its content, and the paper claimed that the statements in the column were opinion.

The United States Supreme Court disagreed. According to the Court, if a reasonable jury could conclude that the statements implied the coach had actually committed perjury, then the newspaper could be liable for defamation if the allegation was not true. So the Supreme Court sent the case back to the lower court for trial.

While these cases deal with media defendants, the basic principal that an opinion can't defame anyone is true for all bloggers. Still, it must be a pure opinion and not a factual allegation.

So watch your words when blowing off steam.

Kathryn Page Camp

* Moldea v. New York Times Co., 22 F.3d 310 (D.C. Cir. 1994).
** Myers v. Boston Magazine Co., 403 N.E.2d 376 (Mass. 1980).
*** Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).


  1. Very interesting, Kathryn. Thank you for the informative article.


  2. Something to think about.Thanks.