Opinion as a Defense to Defamation: Can an Opinion Be Defamatory? Featured Image

Opinion as a Defense to Defamation: Can an Opinion Be Defamatory?

The opinion defense to defamation is a legal principle that holds that statements made as opinions are protected speech and cannot be the basis of a defamation claim. To bring a successful defamation claim, a defendant must have published a false statement of fact (not just an opinion) concerning the plaintiff, that caused damage to their reputation.

The defense of opinion protects individuals from being held liable for defamation in cases where the statements made were opinions rather than false statements of fact. This defense is based on the First Amendment right to freedom of speech, which recognizes that opinions are a form of protected speech. In order for a statement to be considered an opinion, it must be a statement that can be neither proven nor disproven.

At Minc Law, we have extensive experience navigating the ins and outs of defamation law in the United States and across the globe. We have authored more than 22 comprehensive state law guides on defamation, litigated hundreds of cases across the United States, and removed over 50,000-plus pieces of defamatory content from the internet for clients.

In this article, we will explore the concept of opinion as a defense to defamation and how it is applied in the legal system.

Video: When Can You Sue Over Statements of Opinion?

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Definition of Defamation: Libel vs. Slander

Defamation is a legal term used to describe a false statement made to a third party that injures another person or entity’s reputation. Defamation can also be referred to as:

  • Defamation of character,
  • Injury to reputation,
  • Character assassination,
  • Traducement,
  • Vilification, and
  • Famacide.

What Are the Different Types of Defamation?

There are two main types of defamation: libel and slander.

Libel is a written or published false statement that harms a third party’s reputation. This can take many forms, including written articles, photographs, or cartoons.

Slander, on the other hand, is a spoken false statement that harms a third party’s reputation. Slanderous statements can be made in person, over the phone, or even in a broadcasted radio or television program.

Moreover, defamation that takes place online is called internet defamation. In most cases, internet defamation falls under the category of libel. It may involve false statements posted on social media, online review websites, and other user-generated content platforms.

Internet Defamation Lawyer Checklist

What Elements Do You Need to Prove in a Defamation Claim?

It is important to note that the specific elements required to prove defamation may vary depending on the jurisdiction in which the claim is being brought.

However, the following elements are generally considered to be the basic building blocks of a successful defamation claim:

  • The defendant made a false statement of fact about the plaintiff;
  • The statement was published or communicated to a third party;
  • The defendant made the state with either negligence or actual malice;
  • The statement was not protected by a privilege; and
  • The statement caused harm to the plaintiff’s reputation.

Required Elements For a Valid Defamation Claim

Defendant Published a False Statement of Fact

In a defamation lawsuit, the central issue is whether the defendant made a false statement of fact about the plaintiff. A false statement can be a statement of fact or an assertion that can be proven true or false.

In contrast, an opinion is not a statement of fact and is not defamatory, as it expresses the speaker’s subjective views. However, if the recipient of the opinion can logically infer that the opinion is based in fact, it may be considered defamatory.

Statement Must Be “Of and Concerning” the Plaintiff

This means that the statement must specifically refer to the plaintiff and be understood by a third party to be about the plaintiff. In other words, the defamatory statement must be about the plaintiff and not just someone with the same name or a general message that could apply to many people.

Communicated to a Third Party

The third element is a valid defamation claim is that the false statement must be communicated to a third party in some manner. This means the statement must be published or communicated to someone other than the plaintiff.

The Statement Was Made With At Least Negligent Intent

Negligent intent means that the defendant did not take reasonable care to determine the truth of the statement before publishing it. In some cases, a plaintiff may have to prove actual malice. Actual malice refers to a situation where the defendant knew the statement was false or active with reckless disregard for the truth.

This higher standard is required in some jurisdictions when the plaintiff is a public figure, or a matter of public concern is involved.

The Statement Was Not Privileged

Privilege refers to a legal protection that shields a person from liability for making a defamatory statement in certain circumstances.

Most states recognize some type of legal privilege, including absolute privilege, qualified privilege, fair report privilege, neutral report privilege, or statutory privilege.

For example, statements made in a courtroom or other judicial proceedings are generally protected by absolute privilege.

Statement Caused Damage to the Plaintiff’s Reputation

Finally, the plaintiff must show that their reputation has suffered as a result of the defendant’s false statement. This can be demonstrated through evidence of harm to the plaintiff’s personal relationships, loss of income or employment, or any other tangible harm traced to the defendant’s statement.

Can an Opinion Be Considered Defamatory?

While opinions are generally protected by the First Amendment and not considered defamatory, an opinion can become defamatory if it implies the existence of undisclosed defamatory facts.

For example, if the defendant says, “I saw John the other night, and I think John is a thief,” this could be considered defamatory if the recipient can reasonably infer that the opinion is based on undisclosed facts.

It is also important to note that merely framing a statement as an opinion, e.g., “It’s my opinion that John is a thief,” does not automatically make it an opinion. The court will examine the statement as a whole, including the context in which it was made, to determine whether it is a statement of fact or an opinion.

Opinion as a Defense to Defamation

It is essential to understand the difference between a fact and an opinion in the context of defamation. A fact is a piece of information that can be proven true or false through evidence.

For example, a statement such as “John Doe has a criminal record” can be proven true or false through official records. If the statement is false and causes harm to John Doe’s reputation, it could be considered defamatory.

On the other hand, a statement of opinion is a personal belief or viewpoint that cannot be proven true or false. Opinions are subjective and often reflect a person’s feelings or attitude toward a particular subject. For example, a statement such as “John Doe is a terrible person” is an opinion that cannot be proven or disproven.

What is the Definition of Opinion?

An opinion is a personal belief or viewpoint about a particular subject. It reflects a person’s feelings toward that subject but is not necessarily based on facts or evidence. An opinion cannot be proven as it is subjective in nature.

In the case of Milkovich v. Lorain Journal Co., 479 US 1, Supreme Court 1990, the Supreme Court defined an opinion as “an expression of a viewpoint, which may be supported by reason or evidence, but which is incapable of being proved true or false.” The case dealt with a defamation lawsuit against a newspaper, and the court ruled that statements of opinion are protected by the First Amendment unless they imply a false statement of fact.

Many states have followed the ruling in Milkovich, while others have chosen not to adopt it. Although some states have built-in procedural protections relating to opinion speech in their state constitutions that are stronger than those provided by U.S. Constitution or U.S. Supreme Court precedent. An in-depth analysis by a knowledgeable attorney is necessary to navigate the complex landscape of defamation law and determine the best course of action.

How Does Opinion Differ From Truth as a Defense?

Opinion and truth are two different defenses in the context of defamation. A statement of opinion is protected by the First Amendment, as it reflects a personal belief that cannot be proven true or false. On the other hand, truth is an absolute defense to defamation, as a true statement cannot be defamatory.

How Do You Determine if a Statement is an Opinion?

Determining whether a statement is an opinion is a crucial factor in bringing a viable defamation claim. The Supreme Court established a simple test for this determination: whether the statement is “factual enough to be proved true or false.”

However, to determine if a statement is an opinion, most states use a multi-factor test that takes into account several relevant factors and circumstances. In Ohio (and several other states), for instance, courts consider four (or five) key factors that involve analyzing:

  1. The precise wording used by the defendant,
  2. The verifiability of the statement,
  3. The general context in which the statement was made, and
  4. The broader context in which it appeared.

Factor 1: Specific Language Used

The defendant’s specific language is a crucial factor in determining if a statement is an opinion or a fact. The court will examine the words used and focus on the ordinary meaning assigned to the words by a typical reader. Additionally, the court will determine whether the language used has a clear and readily understandable meaning or is ambiguous.

For example, in the case of Letter Carriers v. Austin, 418 US 264, Supreme Court 1974, the court considered the language used in a union newsletter that published the names of the plaintiffs under the heading “List of Scabs” with an accompanying definition of “scab” as a “traitor.” Despite the use of the word “traitor,” the court found that, given the broader context of the statement being published in a union newsletter, the term was being used figuratively and was not meant to be taken as an assertion that the employees had committed “the criminal act of treason.”

Factor 2: If the Statement is Verifiable as True or False

The second factor that Ohio courts consider when determining if a statement is an opinion or a fact is the verifiability of the statement. If the allegedly defamatory statement lacks a method of verification, it is less likely that a reasonable reader would believe it to have specific factual content.

For instance, in the case of Milkovich, a newspaper column contained a statement claiming that the plaintiff had lied while under oath. This statement was easily verifiable as true or false, as it referred to a specific, factual event that could be investigated.

Factor 3: What is the General Context of the Statement?

This third factor Ohio courts consider when determining if a statement is an opinion or a fact is the general context of the statement. This refers to the average reader’s reaction to the words and how they appear in the context of the entire publication.

For instance, courts take into account the genre of literature and its influence on the average reader. In the case of Loeb v. Globe Newspaper Co., a court ruled that a statement suggesting that the plaintiff had never backed a winner in a presidential election was protected as an opinion because it was published on the editorial page of a newspaper rather than the front page where news is reported.

Factor 4: What is the Broader Context of the Statement?

In determining the viability of a defamation claim, Ohio courts will consider the broader context of the statement in question. This refers to the perception of the statement by an ordinary reader. The courts will examine the statement from the reader’s perspective to see if it is reasonable for the reader to understand it as a fact or an opinion.

For example, in the Letter Carriers v. Austin case, the term “scab” was placed in the context of a highly publicized labor dispute. The court found that the use of such exaggerated language was common in these types of disputes and that the average reader would understand it to be an opinion rather than a claim of criminal behavior.

What is the Difference Between a Simple vs. Mixed Statement of Opinion?

A simple expression of opinion is a statement that is made after the facts on which the opinion is based have been presented. On the other hand, a mixed expression of opinion is not accompanied by the facts and may be implied by the speaker or assumed by those who receive the communication. The distinction between the two is important in terms of determining whether a statement can stand as the basis for a defamation lawsuit.

If a statement of opinion is based on disclosed, non-defamatory facts, then it cannot be the basis for a defamation action, no matter how unreasonable or derogatory the opinion may be.

However, if the expression of an opinion is based on undisclosed or implied facts, the recipient’s understanding of the statement becomes relevant. If the recipient reasonably believes the truth of an undisclosed or implied defamatory fact, the speaker could be held liable.

What Are Some Examples of Opinion as a Defense?

The U.S. Supreme Court established the legal standard for statements of opinion in the Milkovich case. According to the Milkovich standard, there are two broad categories of opinions protected by the First Amendment:

  1. Statements that are not “provable as false,” meaning they cannot be proven true or false through objective evidence. They include subjective beliefs based on disclosed true facts. For example, the Milkovich court said the following statement would be an opinion: “In my opinion, Mayor Jones shows his abysmal ignorance by accepting the teaching of Marx and Lenin.”
  2. Statements that “cannot reasonably [be] interpreted as stating actual facts,” meaning they use “loose, figurative, or hyperbolic language,” or the general tenor of the work negates the impression that actual facts are being asserted.

More recently, courts have ruled that the opinion defense protects statements regarding:

  • Muslim terrorism financing in the United States, see Mar-Jac Poultry, Inc. v. Katz.
  • The operator of all-inclusive vacation resorts using racist hiring policies, see Sandals Resorts Int’l Ltd. v. Google, Inc.
  • The local mayor’s rationale for sending a questionnaire to the city’s younger residents, see Bentkowski v. Scene Magazine.

However, a court deemed statements made during a plagiarism investigation, which partially held a university faculty member responsible for widespread student copying, as not being protected opinions.

The evaluation of whether a statement constitutes an opinion or a statement of fact requires a consideration of the general and broader context in which the statement was made. This is especially important in the context of internet defamation claims, as the culture of internet communications has been characterized as “encouraging a freewheeling, anything-goes atmosphere.” Sandals Resorts Int’l Ltd. v. Google, Inc., citing Cheverud, Comment, Cohen v. Google, Inc., 55 N.Y. L Sch L Rev 333,335 (2010/2011).

Can It Be Defamatory to State Opinions That Hurt the Feelings of Others?

The general rule is no. Just because a statement is mean or hurtful does not make it defamatory. For example, if an author finds a review of their book claiming, “This is the worst book I’ve read all year!” it is unlikely that the review would be considered defamatory. It is merely an opinion that can be neither proven nor disproven.

In fact, stating, “this is only my opinion” before making a statement may protect you from being sued for defamation in most instances.

For further reading, please see our comprehensive guide explaining how to file a defamation lawsuit.

Finding Your State’s Requirements For Opinion

Every state has different laws and jurisprudence regarding defamation. For this reason, it is important to consider your state’s laws and defenses to defamation before pursuing a defamation claim.

Where Can I Find My State’s Laws on Opinion?

At Minc Law, we have authored more than 22 guides to state defamation laws. We recommend checking out our Complete Guide to Online Defamation Law to find each of our state guides.

You can also peruse our guide explaining how to find the defamation requirements in your state.

How Minc Law Can Help You Assess if You Have a Defamation Claim

If you suspect you have a case of defamation, it is crucial to seek the assistance of a qualified lawyer. Defamation is a complicated legal matter with many factors that must be considered in order to assess the strength and potential success of your claim.

An experienced attorney can evaluate your situation, determine any defenses that may be raised by the opposing party, and provide insight into truth or opinion as possible defenses. For more information about finding a defamation attorney, check out our comprehensive guide, “Hiring a Defamation Lawyer.”

If you are facing online defamation, it is even more important to speak with an expert in the field. Online defamation often intersects with other areas of law, such as online harassment, privacy laws, copyright law, stalking, and extortion. A seasoned internet defamation attorney can identify these intersections and develop the best legal strategy to address your specific case.


“Trust me, you don’t want to get into these messes, but I feel a lot more at ease having spoken with the kind folks here at Minc Law. It really won’t hurt to call and assess your options.”


Jan 26, 2022

If you are ready to discuss your case with a defamation attorney, our team is here to help. You can reach us through our online chat or contact form or schedule a no-obligation initial consultation with an intake specialist by calling (216) 373-7706.

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