Fact vs. Opinion: Setting the Record Straight

The most misunderstood concept in defamation law is the distinction between fact and opinion and its relation to liability.  Most people (very smart ones included) mistakenly believe that only facts are actionable as defamation.  But in California opinions are actionable as well if they can ". . . reasonably be understood as declaring or implying actual facts capable of being proved true or false."


 This is the way it works:  a court will examine the totality of the circumstances starting with the alleged defamatory statement itself to determine whether the statement is factual or implies a fact that can be proven false.  If the answer is yes, the statement may be actionable assuming the other elements of a libel or slander claim are met.  If not, it’s over.

But don’t be fooled.  The distinction between a fact and an opinion is very gray, and is often one of the most difficult questions a court must consider, with the exception of calculating damages.  The reason is that language is susceptible to multiple meanings and is made in a variety of contexts. Further, courts have held that rhetorical hyperbole, figurative language, or epithets are not actionable.  So what exactly is the line between rhetorical hyperbole and an actionable opinion?

Some examples are obvious.  For instance, saying someone is a "traitor," is clearly hyperbole when you mean to say that that person is despicable, not that the person is guilty of treason.  Or if a politician calls another politician (what a surprise) a "thief" or a "liar," clearly, this too would qualify as rhetorical hyperbole.

Still some calls are harder to make.  For example, what if someone said, "I think Smith is an alcoholic."  One could easily make the argument that the statement implies undisclosed facts that are known to the person making the statement, which may be capable of being proved true or false, and therefore might be actionable.  On the other hand, one could also successfully argue that the person making the statement was merely expressing his personal opinion or belief.

As you can see, the line is not clear between what constitutes a fact and what constitutes an opinion.  Don’t believe for a minute that your stated opinions are necessarily protected under the First Amendment.  They may not be.

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  1. Lynn says

    Excellent article. Thank you for posting information that is useful to bloggers and online publishers. I run a website with a message board and I have 10+ bloggers. Over the years I’ve had a few lawsuit threats, but none have materialized. Each time I turn to the Internet for answers. Today I found your site. Thanks again!

  2. Patricia says

    I’ve been on the recieving end for many years of my husbands ex wife’s libel and slander. Being accused of being the reason his kids no longer spoke to him (2004), to breaking up HER marriage (not sure of the date but it was during a recorded conversation), killing my husband (2006) and being a stalker (2009).
    What I would like to know is, is there a statute of limitation for defamation of character cases?
    Thank you!

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