About the Guest Writer:
While he is choosing to remain anonymous, our guest writer today is a practicing attorney in the U.S. who is published nationally and abroad. He has been reading Eyes blog for over a year now on the account of being very curious about all things psychological. With that, he was kind enough to write a piece on opinions and the law that I thought readers of Eyes for Lies would enjoy. It applies not only to me, the author of this blog, but to you, the commenter as well.
When is an opinion libelous or slanderous?
There have been some comments on this site about whether Eyes for Lies could be held liable for publishing her opinions. I thought this might be helpful to explain the law in a way that I would explain it to my neighbor. The short answer is that Eyes for Lies has the right to publish her opinions on matters of public interest.
The Freedom of Speech
The first thing to recognize about the tort of defamation, which includes both libel and slander, is that it’s purposes are somewhat at odds with the first amendment. Defamation punishes certain types of speech, yet the first amendment more or less grants us the freedom to say what we want. If so, how does this all work together?
Read moreThe first amendment appears to protect anything anybody might say, but its not that simple. The first amendment does not protect a person from saying, “I will pay you to kill Mick.” Such a statement would be a conspiracy to commit murder, and as such, is clearly punishable by law.
This brings us to the first important distinction, which is between an act and an expression. The mentioned statement is not merely a statement about the state of reality, but rather it is an attempt to change the nature of reality. In essence, the statement is an act.
Unfortunately, finding the line that separates an act from a mere statement is difficult. The famous example given by the US Supreme Court is shouting “fire” in a crowded theater. This may cause people to flee in panic, creating a dangerous situation. And yet fleeing the theater is not illegal. So the difference comes down to an intention to create a direct harmful result which is different from an intention to express a fact or belief.
A couple of differences help to separate the two. The first is difference between an opinion and a fact. If one visits a car salesman, and the salesman says that his car would be great for me, and he is wrong, he has not committed fraud. It is his opinion that the car will be great for me.
If the salesman tells me that his car gets 75 miles to the gallon and he is wrong, and it only gets 30 miles to the gallon, then he has committed fraud. Here the salesman is stating a fact which is incorrect.
Another important difference, however, is between a true statement and a false statement. The line, thankfully, has not been drawn so strictly as to only protect statements that are actually true. The US Supreme Court has held that this would create an atmosphere of self-censorship and fear–where people might not speak out of fear that their statement may prove to be false. Instead, the line is drawn at speech the author knows to be false or could not reasonably believe. This is also a part of the tort of defamation. Therefore, lets move on to Defamation.
Defamation
The tort of defamation is typically understood as “any false and malicious statement published in a way calculated to injure a person.” This is what makes a statement defamation.
The statement must be false to be defamation. Therefore, a wise writer will express beliefs as beliefs, and not facts. For example, imagine reviewing a video of a woman accused of killing her husband. If you write “she is lying,” you may be saying something that is not true; and therefore, making a false statement. If you write “I do not believe her,” then you are making a true statement, even if it turn out the woman did not lie. This is because you are making a statement about yourself, and not the accused.
Notice how this is pretty much the same thing as stating an opinion protected by the first amendment. In essence, you have made it clear this is an opinion, which invites critical thought and enables the search for truth.
Another important part of the tort of defamation is that the statement has to be calculated to cause injury. Therefore, there has to be an intention to cause harm. Accidentally causing harm is not good enough, which brings us to the heart of the difference between commentary and defamation.
To be guilty of defamation, one has to be attempting to harm the subject. An example would be a man who wishes to marry an affianced woman. Therefore, he maliciously spreads lies about her fiancee to break up the planned wedding. Another example might be a banker who spreads lies about a competitor going bankrupt. In such cases, the reason for the lie is to cause harm.
Notice these are pretty much the same thing as shouting “fire” in a crowded theater. The speaker is trying to hurt somebody. So this part of defamation is a lot like the protections provided by the first amendment. If the person really thought there was a fire, then he would not be doing anything wrong shouting “fire” because he is trying to help.
All in all, the freedom of speech means that careful authors are permitted to discuss the facts and offer opinions on public controversies without fear of lawsuits. As Justice Brennan wrote in Time, Inc. v. Hill, the first amendment guarantees “are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the maintenance of our political system, and an open society… The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and the press.”
Disclaimer
(We attorneys love this type of thing! It is a sickness, I know.) This is not a legal memorandum or brief. As such, it will greatly summarize the law, which inevitable means that the loss of technical detail causes accuracy to be lost. I am not writing a textbook. If you write a long commentary about how my gloss overlooks some important doctrines arising out of New York Times v. Sullivan or otherwise act like a law school professor, I shall read it with all the contempt you have merited. If you have an honest question or comment, I shall endeavor to answer you with respect. If you desire a legal memorandum, I shall charge you accordingly.
