Legal Q, re: libel

[Digital Stimulus]

In the thread Westboro Baptist Church being sued, I stated the following (as an opinion) to differentiate between a free speech act and libel:

Originally Posted by Digital Stimulus

...the difference between protesting in front of a store with a sign that reads "The owner is a thief" vs. "I think the owner is a thief". The first is an objective matter of law (was the owner convicted of stealing?); the second is explicitly stated as an opinion, which others may or may not accept.

In a later post, I provided the following qualifier:

Originally Posted by Digital Stimulus

In the least favorable interpretation of my assertion, there's at least an element of doubt that it's a mere opinion. In actuality, I'm pretty sure the view I've put forward has some weight. Particularly if the business can show damages due to the mobile signage.

Can anyone provide any insight into how the legal system would handle such a case? Specifically, would the person carrying the sign be guilty of libel?

[Randy Seltzer]

I'm not reading your linked thread, so my apologies if I miss something relevant thereby.

The law of defamation varies from state to state. But generally, the fact/opinion calculus is a matter of law (not a matter of fact), and will be decided by the judge before it reaches the jury. In most jurisdictions, the standard of interpretation to be used in testing alledged defamatory language is how those in the community where the matters were published would reasonably understand them.

In a statement like the one in your hypothetical ("the owner is a thief"), I would bet that the average viewer would consider that to be an opinion. Statements do not need to be expressly qualified as opinions for courts to consider them as such. If it is regarded as opinion, it is privileged. The common maxim in defamation law is "there's no such thing as a false opinion."

Of course, that's all assuming that the owner actually isn't a thief. If he is a thief, then truth is a compete affirmative defense to a libel claim, so the fact/opinion analysis wouldn't even come up.

AND it depends on the status of "the owner." If the court decides that the statement is NOT opinion, it might still be protected speech if the sign-carrier can convince the judge that "the owner" is a public figure, because public figures have less first amendment protection than private figures.

Sorry, that answer isn't very solid, but defamation is a ridiculously complicated tort, and your hypothetical is missing a lot of information.

[Walloon]

But it could go the other way. If an "opinion" has the appearance of being based on factual information known to the speaker/writer, that could be defamation. Or as the 2nd Restatement of Torts puts it,

§ 566. Expressions of Opinion.
A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.

[anson2995]

Originally Posted by Digital Stimulus

In the thread Westboro Baptist Church being sued, I stated the following (as an opinion) to differentiate between a free speech act and libel:

Free speech and libel aren't mutually exclusive. Your right to express yourself doesn't absolve you of the responsibility of your words. First amendment case law prevents the government from prohibiting certain kinds of speech, but it doesn't mean you can't be held civilly liable for what you've said. In the scenario you described, I don't think "free speech" could be a valid defense for libel.

The ultimate legal issue in the Westboro case is whether states (or the fed gov) can pass laws that restrict speech at funerals, and I don't think that will be a tough call. Many states already have laws that make it a crime to disrupt a religious service, and I can't imagine a set of circumstances under which the Court would want to overturn them.

[Digital Stimulus]

Thanks, Randy Seltzer. No worries about not reading the linked thread; I supplied it as background (if desired). The discussion had taken a turn that focussed on why libel/slander is not considered free speech; I wanted to remove the question from the context of the Phelps' protests (so I'll not comment on that aspect of it, anson2995). Also, I now realize that I made no distinction between civil and criminal actions, which may factor in somewhere.

In sum, thus far:

• If a statement (spoken or written) is true, one cannot be charged with libel/slander.
• If a statement is explicitly marked as opinion, one cannot be charged with libel/slander (with the exception cited by Walloon, which may or may not be the only one).
• Opinions that are stated as facts (or at least are not explicitly labelled as opinions) may be actionable as libel/slander, but are highly subject to specific conditions (local laws, community standards, "public figure" status, etc.).

Also in that thread, I posted the following:

Originally Posted by Digital Stimulus

And I base this on a case I read about recently (I have no idea how I'd go about searching for a cite) in which a person made a similar claim on their website. They were convicted for libel; if the person had included a disclaimer about it being their opinion, s/he would have been in the clear.

Obviously, there is a difference between a webpage and a placard. However, it's not clear to me what the fundamental difference is as it relates to libel/slander. Does the medium affect the possibility of prosecution/conviction?

[PaulParkhead]

Originally Posted by Digital Stimulus

Thanks, Randy Seltzer. No worries about not reading the linked thread; I supplied it as background (if desired). The discussion had taken a turn that focussed on why libel/slander is not considered free speech;

IANAL, but I think it comes down to the old "publish and be damned" thing. That is, libel/slander is free speech, in the sense that you can libel someone and no-one can prevent you or throw you in jail. However, speech, like actions, can have consequences - including civil action.