Opinion: Is it actionable as libel?

If you write that somebody is "a despicable human being" or "one of the worst elements of our society" or "incompetent" or "one of the bar’s shadier practitioners" or "a disgrace to the judiciary" or "a second rater" or "an idiot" or "a traitor" or "a son of a bitch" or "an incestuous drunk," will your statement be actionable as libel (assuming all other elements are present)?

The answer depends on whether the particular statement may be characterized as an expression of opinion or a statement of fact. In the United States, the settled rule is that opinion is absolutely protected by the freedom of speech and of the press clause in their Constitution, but misstatements of fact are not. This fact/opinion dichotomy — also referred to as "fact/ non-fact" dichotomy — has been elevated to constitutional status.

Based on the dicta of the US Supreme Court in a 1974 case (Gertz v. Robert Welch, Inc., 418 US 323) that "there is no such thing as a false idea" and that "However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas" (evoking Justice Holmes’ memorable "market place of ideas" pronouncement), the rule has evolved in the law of defamation that as a matter of constitutional law the expression of any opinion cannot be actionable upon the ground of its falsity. This constitutional protection applies to libel suits brought by public figures as well as private persons.

The rationale is not that opinions are not defamatory; indeed, they can inflict immense reputational injury. Opinions enjoy constitutional immunity because an indispensable element of libel requires the publication to contain a false statement of fact and there is no such thing as a false opinion since it is not susceptible to factual proof.

Our Supreme Court has not expressly adopted the fact/opinion dichotomy as applied and interpreted in the US although in the 1999 case of Borjal v. Court of Appeals (where our Firm represented Messrs. Art Borjal and Max Soliven) the Court said that in order that "a discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition" and that if the comment is "an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts." But since Section 4, Article II of the 1987 Constitution relating to the freedom of speech and of the press is almost an identical formulation of the First Amendment of the US Constitution, the rulings of the US courts on the matter are highly persuasive. To be sure, even under Philippine law, expressions of opinion on matters of public concern will fall within the ambit of the fair comment privilege and will not be actionable.

The constitutional protection of expressions of opinion extends to name-calling, epithets, obscenities, insults, bitter invectives, abusive language (no matter how vulgar or offensive), imaginative expressions, rhetorical hyperbole, extravagant exaggeration employed for rhetorical effect, and loose, figurative or hyperbolic language. Abusive language, no matter how mean, vulgar, obnoxious, insulting or tasteless is regarded as a part of life for which the law of defamation affords no remedy. Our Supreme Court in a slander case has held that the words putang ina mo is a common expression that is often employed not really to slander or defame but rather to express anger or displeasure and that it is seldom, if ever, taken in it literal sense by the hearer, that is, as a reflection on the virtue of a mother.

The problem with the fact/opinion dichotomy is that the task of distinguishing fact from opinion is not an easy one. There is no litmus test for distinguishing fact from opinion. While opinion may be loosely defined as comment that is not subject to being proved true or false, this definition is really of no help in the resolution of actual cases. As noted by Prosser, a noted authority on torts, the fact/opinion distinction has "proved to be a most unsatisfactory and unreliable one, difficult to draw in practice." A number of US courts, struggling on a case-to-case basis to distinguish fact from opinion, have articulated various ways of doing it — notably the so-called four-factor framework, the three-pronged test, the two-tiered analysis, and the totality of circumstances approach — which have only given rise to needless confusion.

The following are examples of statements held by US courts to be protected opinion: (a) The statement that "I have been mistreated, used and robbed by this judge" written by a broker who claimed that the plaintiff judge failed to pay him for his professional services was held to be non-actionable opinion because the statement was not objectively verifiable; (b) The statement that plaintiff was one of the "worst elements of our society" was ruled to be unverifiable as fact and therefore was protected opinion; (c) The statement in a news article that the plaintiff’s private life was "sordid" and "sure to shock millions" was deemed a non-actionable expression or opinion falling under the category or loose, figurative or hyperbolic language," (d) The statement that the plaintiff lawyer was one of the bar’s "shadier practitioners," after reciting the facts in two malpractice judgments involving the plaintiff, was considered protected opinion, and (e) The characterization of the plaintiff as "journalistic scum of the earth" was held to be protected opinion.

However, in a case involving the famous lawyer Gerry Spence who was featured by Hustler Magazine as "asshole of the month" and referred to in the article in question as a "parasitic scum-sucker," a "vermin-infested turd dispenser," and a "shameless shithole," the Wyoming Supreme Court held the statements to be defamatory because they held Spence up to hatred, contempt or ridicule and they did not constitute "fair comment on a matter of public concern." There was a strong dissenting opinion to the effect that "abusive epithets, vulgarities and profanities are nonactionable" and that the statements were protected rhetorical hyperbole and were not assertions of fact.

What is clear from the foregoing illustrations is that there is no rigid or mechanistic approach to the fact/opinion problem. Understandably, each case will turn on is own facts. For some general guidance, it may be worthwhile to consider a 1984 en banc decision of the D Federal Circuit Court of Appeals of the US in the case of Ollman v. Evans (750 F2d 970) which went into an exhaustive discussion of the fact/opinion problem. The majority opinion written by Judge Kenneth Star (the independent prosecutor in the Clinton-Lewinsky affair) and the concurring opinions of two other judges (one of whom was Judge Robert Bork) espoused a "totality of circumstances approach that requires the assessment of four factors, to wit, (a) the common usage or meaning or the alleged defamatory words, (b) the degree to which the statement is objectively capable of proof or disproof, (c) the context into which the statement was made, and (d) the broader social context into which the statement fits.

As regards the "broader social context" factor, some types of writing or speech, according to the Court, signal to the readers or listeners that what is being read or heard is likely to be opinion, not fact. For example, if the statement is contained in the Op-Ed page of a newspaper, it is more likely to be understood as opinion because, in the words of the Court, it is "well understood that editorial writers and commentators frequently resort to the type of caustic bombast traditionally used in editorial writing to stimulate public reaction."

In the concurring opinion of Judge Bork, he suggested that "those who place themselves in the political arena must accept a degree of derogation that others need not." Thus, as stressed by one author, courts should be more inclined to construe negative statements made about public figures as opinion. In other words, "opinion" should have a more expansive meaning for public figures than for private individuals.

In light of the present state of jurisprudence on the matter, the determination of whether an alleged defamatory statement is fact or opinion will have to be left to case-by-case development. Inevitably, the result in each case will hinge on its particular facts. We can only hope that courts faced with a fact/opinion problem will be mindful of the true purposes served by the fact/opinion distinction in libel law: "an accommodation between protection of valuable interests in reputation and the provision of sufficient breathing space for critical and sometimes caustic free expression." This means that with respect to those who enter the public arena, "opinion" should be given a broader meaning because they "must expect latitude in the give-and-take of public debate, extending to sharp and coarse comment, and to excessive and perhaps unwarranted characterization."

(The author is an Of Counsel of Angara Abello Regala & Cruz Law Offices (ACCRALAW). He maybe contacted at tel. # 830-8000; fax # 894-4697; or e-mail: [email protected].)