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 of which it is a part. It is used when the constituent components of a federation are themselves called states. Federations made up of provinces, cant ...
. The US
First Amendment
First most commonly refers to:
* First, the ordinal form of the number 1
First or 1st may also refer to:
Acronyms
* Faint Images of the Radio Sky at Twenty-Centimeters, an astronomical survey carried out by the Very Large Array
* Far Infrared a ...
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 recognise ...
, subject to certain limitations. One of these limitations is defamation, in various forms, notably
libel
Defamation is a communication that injures a third party's reputation and causes a legally redressable injury. The precise legal definition of defamation varies from country to country. It is not necessarily restricted to making assertions ...
. While federal
precedent
Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by thin ...
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 (inherited from British common law ...
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 from "He is a liar."
Relevant cases
* ''
Ollman v. Evans''
* ''
Gertz v. Robert Welch, Inc.''
* ''
Milkovich v. Lorain Journal Co.''
* ''
Hustler Magazine v. Falwell''
* ''
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