Opinion and Other Defenses to Defamation

Defamation lawsuits are not easy to win because the plaintiff must both prove the difficult elements of his or her case and avoid the many defenses to defamation. This article discusses some of the standard defenses to defamation, including the defense of opinion.

Challenge the Plaintiff's Case

As can be done in other personal injury cases, a defendant can defend a defamation lawsuit by contesting the plaintiff's proof of the basic elements of the case. If, for example, the plaintiff cannot prove that the defendant's statement was made of and concerning the plaintiff, the defendant cannot be held liable to the plaintiff.

Questions Are Not Statements of Fact

One subtle way to avoid defaming people, a favorite of some talk-show hosts, is to ask pointed questions about a person and say nothing else. Questions are not statements, and so questions are not statements of fact. At most, a question is a suggestion, not a statement of fact.

Suppose you want to suggest that someone is mentally ill without risking liability for defamation. One way is to repeatedly ask questions like "Do you think X is crazy?" or "Do you think that X should see a psychiatrist?" Your questions imply your belief, but you have not made any statements of fact that could potentially lead to liability for defamation.

Opinion

A common challenge to the contention that defendant has made a false statement of fact is the contention that the statement was one of opinion, not fact. The underlying notion is that, if the defendant did in fact have the opinion that the defendant stated, the statement that the defendant had the opinion is true, and truth is a complete defense to defamation.

In the landmark case Gertz v. Robert Welch, Inc., the United States Supreme court explained the defense of opinion as follows: "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."

Statements that are almost always deemed to be statements of opinion and not statements of fact include critical reviews of movies, professional sports teams, restaurants, and theatrical performances.

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