Can writers still express their opinions? Not knowing the difference between protected opinion and libelous fact could expose you to substantial liability

Folio: The Magazine for Magazine Management, April, 1990 by Slade Metcalf

"What is this world coming to when we can't express our opinion about someone else?"

Have you heard that refrain recently? Well, there is an easy response: The protection for properly based opinion is as strong as ever. However, there is a much more difficult question: What is properly based opinion? That issue has drawn more attention and analysis by libel lawyers and courts than any other libel question in recent years. Why would that be, you might ask? Shouldn't it be fairly easy to tell what is and what is not opinion? Not necessarily.

For example, most people would agree that a review of a proposed building by an architecture critic would be protected opinion. Indeed, a Federal judge in New York dismissed a libel suit brought by developer Donald Trump based on an article by critic Paul Gapp, which appeared in The Sunday Tribune Magazine of The Chicago Tribune. The article postulated that a proposed 150story building in Manhattan, supposedly to be built by Trump, "would be one of the silliest things anyone could inflict on New York or any other city." The court ruled that the article was absolutely protected as opinion,

However, many other writings are not so easy to categorize. The general rule is that opinion is absolutely protected if the facts underlying the expression of opinion are set forth in the article itself or are generally known or available to the reader. In such case, the expression is known as "pure opinion." If, on the other hand, the underlying facts are not set forth in the article or are not known to the reader, or the facts set forth are arguably false, the expression is referred to as mixed opinion" and is not protected. The expression is thus deemed to be a statement of fact. Courts require the underlying facts to be accessible to the reader so the reader can arrive at his or her own opinion and agree or disagree with the writer.

In 1987, a New York State appellate court considered the opinion issue in connection with an article in Musician, Player and Listener titled "Jimi Hendrix-The Voodoo Lives On." The article, written in 1980 by a freelancer on the 10th anniversary of Hendrix's untimely death, discussed some of the problems Hendrix faced at the beginning of his career. one passage read, "No one asked about his business, not that Hendrix wasn't so befuddled on a lot of those points that his answers would have been coherent. To record as a sideman with Curtis Knight, he'd been forced to sign a $1 contract with an unbelievably unscrupulous character named Ed Chalpin, who later won two percent of his record royalties and the right to the Band of Gypsies live album in an out-of-court settlement because Hendrix's management controlled lawyers weren't willing to mount a substantial fight."

No, Hendrix's lawyers didn't sue, but Mr. Chalpin did. The appellate court ruled that the expression "unbelievably unscrupulous character," although sounding like opinion on its face, was mixed opinion" and thus not protected. First, the court viewed the phrase "a $1 contract," which arguably supplied the factual basis for the opinion, as probably false. Second, the phrase "forced to sign" was accompanied by the implication that the author is privy to facts, unknown to the reader, which are supportive of this conclusion and detrimental" to Mr. Chalpin. In the court's view, once the writer "undertook to provide a factual basis for his opinion, he was obliged to provide his readers with a reasonably accurate version of those facts ......

That same appellate court, one year later, dismissed a libel case brought by the publisher and editor of Vintage magazine against the publisher of a rival magazine, Wine Spectator, based on an article and letter to the editor. The unsolicited letter was from a Wine Spectator reader who described some bad experiences he had had with Vintage and its publisher. The reader offered his negative opinion of Vintage and its advertising policy. The court found that the reader had set forth in his letter the facts underlying his opinion, and thus the letter was absolutely protected.

Four-part test

In addition to this "pure opinion" versus mixed opinion" analysis, courts have increasingly turned to a four-part test to determine whether a particular passage should be interpreted as an expression of opinion or a statement of fact. The test requires the court to examine the following:

1. Whether the language in dispute has a precise meaning that is readily understandable, or whether it is indefinite and ambiguous.

2. Whether the statement is verifiable in that it can be objectively characterized as true or false.

3. The full context of the communication in which the statement occurs, including the surrounding language.

4. The broader social setting surrounding the language, including the existence of any applicable customs or conventions that might alert the reader that what he or she is about to read is likely to be opinion and not fact.

As to the last factor, an article or editorial written to comment on a heated political battle or labor dispute would likely alert the reader that the statements should be viewed as the opinion of the writer and not factual assertions.