Opinion privilege is a protected form of speech, of importance to US
federal and
state law State law refers to the law of a federated state, as distinguished from the law of the federation
A federation (also known as a federal state) is a political entity characterized by a union of partially self-governing provinces, states, o ...
. The US
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
guarantees
free speech
Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recog ...
, subject to certain limitations. One of these limitations is defamation, in various forms, notably
libel
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defi ...
. While federal
precedent
A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great v ...
does not explicitly state that opinion is protected against prosecution under libel laws (indeed it explicitly states the contrary), the combined effect of several rulings is such as to effectively make such the case.
Historical development
Opinion privilege has its roots in the common law
fair comment
Fair comment is a legal term for a common law defense in defamation cases ( libel or slander). It is referred to as honest comment in some countries.
United States
In the United States, the traditional privilege of "fair comment" is seen as ...
doctrine.
Scope
Opinion based on fact is not protected ''qua'' opinion, if the opinion is based on false facts. Opinion that implies alleged facts has the same standing as the implied alleged fact.
Exceptions
Fact couched as opinion is not protected. For example, "It is my opinion that he is a liar." would not be treated any differently than "He is a liar."
Relevant cases
* ''
Ollman v. Evans''
* ''
Gertz v. Robert Welch, Inc.''
* ''
Milkovich v. Lorain Journal Co.
''Milkovich v. Lorain Journal Co.'', 497 U.S. 1 (1990), was a United States Supreme Court case that rejected the argument that a separate opinion privilege existed against libel. It was seen by legal commentators as the end of an era that began ...
''
* ''
Hustler Magazine v. Falwell
''Hustler Magazine, Inc. v. Falwell'', 485 U.S. 46 (1988), was a landmark decision of the United States Supreme Court ruling that the First and Fourteenth Amendments prohibit public figures from recovering damages for the tort of intentional infli ...
''
* ''
Spence v. Flynt'' 816 P.2d 771 (Wyo. 1991)
References
{{Reflist
Bibliography
* ''Restatement (Second) of Torts''
* Nat Stem,''Defamation, Epistemology, and the Erosion (But Not Destruction) of the Opinion Privilege''
* Esward M. Sussman,
Milkovich revisited: "Saving" the Opinion Privilege', Duke Law Journal, pp. 415-448
* Jeffrey E. Thomas,
Statements of Fact, Statements of Opinion, and the First Amendment', 74 Cal. L. Rev. pages 1001-1058 (1986).
Legal terminology
Defamation