7.5 FACT VERSUS OPINION
7.501 In General.
Another key analysis requires distinguishing between communications of fact versus opinion. 4122 The former can support a defamation claim, the latter cannot. As one court explained, opinions can be hurtful but cannot form the basis of a defamation action. 4123 Essentially, the content and context of the communication determine whether it is one of fact or opinion. 4124 And "speech which does not contain a provably false factual connotation, or statements which cannot reasonably be interpreted as stating actual facts about a person cannot form the basis of a common law defamation action." 4125
7.502 Federal Constitutional Protection.
Starting with the United States Supreme Court's comment that "there is no such thing as a false idea," 4126 courts throughout the United States developed a constitutional doctrine immunizing opinion as absolutely protected by the First Amendment. However, in Milkovich v. Lorain Journal Co., 4127 the United States Supreme Court abandoned the notion of a separate constitutional protection for opinion. The Court held that "the 'breathing space' which 'freedoms of expression require in order to survive,' is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between 'opinion' and fact." 4128 Still, the Court in Milkovich recognized the general rule that a statement may be actionable only if it is "sufficiently factual to be susceptible of being proved true or false." 4129
In the years since Milkovich, courts have wrestled with the decision's significance. 4130
7.503 Virginia Constitutional Protection.
Virginia courts continue to recognize a separate absolute constitution-based protection for opinion even after the United States Supreme Court in Milkovich found no special rule arising from the United States Constitution. 4131 In Chaves v. Johnson, 4132 the Virginia Supreme Court recognized an absolute "opinion" defense, holding that "[p]ure expressions of opinion . . . cannot form the basis of an action for defamation." Significantly, the court rested the doctrine on both the First Amendment to the United States Constitution and on the Virginia Constitution. 4133
The constitutional nature of the opinion defense makes little difference on a practical level but certainly bolsters its significance.
7.504 Four-Part Test.
Given the critical difference between fact and opinion, courts must determine how to analyze the communication at issue. Courts, rather than jurors, initially decide whether the communication constitutes fact or opinion.
In Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 4134 the Fourth Circuit adopted a four-part test that had been articulated by the District of Columbia Circuit. 4135 Under this approach, which preceded the U.S. Supreme Court's Milkovich decision, a court examines four factors:
1. The specific words used. Words constituting opinion are likely to be "indefinite and ambiguous" rather than carrying a "precise core of meaning for which a consensus of understanding exists." The court must measure the statements against the "average reader's view of the statement rather than that of either the most skeptical or most credulous reader"; 4136
2. Whether the allegedly defamatory statements are "verifiable"; 4137
3. The context of the challenged statement "within the writing or speech as a whole," including the use of any cautionary language or other indication of opinion rather than fact; 4138 and
4. The "broader social context into which the statement fits." 4139
7.505 Difficulty of Drawing the Line.
Applying these factors can be difficult. 4140 For instance, courts may find that a statement that appears factual, such as "that man is a snake," states an opinion rather than a fact. Conversely, making a factual statement in the guise of an opinion, such as "in my opinion the auditor committed malpractice by failing to properly perform the tests associated with Section 18.4 of the Audit Procedures," does not automatically save a defendant from liability. 4141
Some courts place limits on what opinions someone may safely utter. For instance, courts outside of Virginia have indicated that a defendant may incur liability for stating the opinion that the plaintiff committed a criminal act or potentially questioning the same. 4142
7.506 Relationship Between Opinion and Facts.
Analyzing the opinion issue requires an examination of the relationship between the purported opinion and any surrounding factual statements or inferences.
Statements of fact that support a nonactionable opinion can themselves support a defamation claim. 4143 For instance, calling someone an "idiot" is almost surely protected, but adding a factual statement, such as "because she lost $10,000 in Las Vegas last weekend," can trigger liability if that provable statement is false, defamatory, and otherwise satisfies the standard for defamation liability.
Courts have engaged in an odd debate about the overall effect of surrounding an opinion with factual statements. In Schnare v. Ziessow, 4144 the Fourth Circuit held that statements in an article were nonactionable opinion. It noted that whenever the author added an accusatory statement about the plaintiff, "he discloses the factual basis for his disagreement [with the plaintiff] allowing the reader to draw her own conclusion." 4145 Thus, the defendant's inclusion of provably true facts supported the opinion defense for conclusions drawn from those disclosed facts.
Two years later, the Fourth Circuit upheld a district court's holding that the opinion defense protected a statement that the plaintiff was "unfit" to be a Scoutmaster. The Fourth Circuit explained that had the author "included the facts giving rise to his statement that [the plaintiff] was 'unfit,' the statement might be provable as true or false and thus might supply the basis for a defamation claim." 4146 Thus, it seems relatively clear that statements constituting "pure expressions of opinion" or opinion accompanied by a full disclosure of true facts are protected. 4147
Some cases involve a subtle analysis. In 2014, a court in the Eastern District of Virginia explained that a plaintiff could amend a complaint to allege that a supposed incident never occurred, which could support a cause of action despite what would otherwise have been the defendant's purported opinion that the plaintiff was unprofessional. 4148
And in 2013, the Virginia Supreme Court reversed a trial court's holding that the defendant's statement that the plaintiff "told me that [he] was going to screw the Authority like he did Fort Pickett" constituted protected opinion. 4149 The court noted that the plaintiff denied ever making the statement, so his defamation claim focused on the defendant's alleged fabrication of a statement rather than its content.
The gravamen of the amended complaint is that Saunders allegedly attributed a fabricated quotation to Tharpe that, as a quotation, caused injury to the reputations of Tharpe and Shearin. Such allegations give rise to a claim of defamation regardless of the truth or falsity of the matters asserted in the statement allegedly attributed to Tharpe or whether such assertions are fact or opinion. 4150
7.507 Ironic Nature of the Opinion Doctrine.
In general, "[s]tatements that are relative in nature and depend largely upon the speaker's viewpoint are expressions of opinion." 4151 This is particularly true of those statements with outlandish and over-the-top language or inherently unbelievable allegations, so it may be ironic that such aggressive statements, albeit potentially embarrassing or annoying, could enjoy protection from defamation liability.
7.508 Virginia Supreme Court Cases.
The opinion defense plays an important role in defamation cases. Virginia Supreme Court decisions highlight both the subtlety and the importance of the opinion defense. They also highlight the court's need to examine each communication as part of its critical "gatekeeper" function.
In Tronfeld v. Nationwide Mutual Insurance Co., 4152 a well-known Richmond plaintiff's personal injury lawyer sued an insurance company for critical statements a company's insurance adjuster had made about him to an insured. The court first noted that the adjuster's statement that the plaintiff was "no good" deserved absolute protection as a statement of opinion. 4153 However, the court found that the adjuster's claim that the plaintiff "just takes people's money" could be proven true or false and thus amounted to an actionable statement of fact. 4154
The statement would not be opinion if the evidence showed a settlement or judgment [the plaintiff] obtained for a client which exceeded the offer made by an insurance company to the client prior to the retention of [the plaintiff] as his or her legal counsel. 4155
The court made a similar ruling in connection with the adjuster's statement that the plaintiff's clients would "receive more money" if they "had not hired [the plaintiff] and had dealt with the adjuster." 4156
It would not be a matter of opinion that [the plaintiff] takes a client's money without rendering a service of value in return if [the plaintiff], for example, produced evidence of a settlement or judgment he obtained...
