The question of whether a statement constitutes an actionable statement or merely protected opinion is one of the most difficult questions for a judge to consider in the defamation context. In fact, the California Supreme Court said in a case: "The distinction as to what is a statement of fact and what is a statement of opinion is frequently a difficult one."
The general rule is that in order to be actionable, a statement must declare or imply a provably false fact. Subjective expressions, opinions, rhetoric, hyperbole, and the like, are generally protected. In other words, they are not actionable.
But what does that mean?
I thought it would be helpful to give you some examples of the types of statements which have been held not to be actionable:
- Stating that a political opponent was a "thief" or a "liar" was determined to be hyperbole, and therefore protected speech.
- Stating that a lawyer had used "sleazy tactics" and that the judge had a "dim view of the defense tactics" was not actionable.
- Stating that a person was a "loser wannabe lawyer" and a "creepazoid attorney" were viewed as rhetorical hyperbole that could not be reasonably understood as stating facts.
- The use of metaphoric expressions such as "booby," "baying in the ocean breezes," and keep him honest," were held to be non-actionable subjective expressions of opinion.
- Stating that a reality T.V. show contestant was a "chickenbutt," "local loser," and "big skank" were "unquestionably statements of the speaker’s subjective judgment," and therefore not actionable.
As you can see, the line between what is and what is not actionable can be difficult to determine. I hope that the above examples are helpful.
If you liked this post, consider getting my report, "The Ultimate Beginner’s Guide To Defamation Law."