Defamatory Opinions and the Restatement (Second) of Torts

This Article will focus on one important aspect of the Institute’s work: the question of whether opinion, including ridicule, can be an independent basis of an action for defamation. Before undertaking that inquiry, however, some basic concepts regarding defamatory opinions must be understood. First, a statement of opinion can, of course, often be reasonably construed to imply the existence of facts that would justify the opinion. If a direct statement of those facts would be defamatory, then the statement of an opinion that implies the existence of those false facts would be defamatory and capable of supporting an action for defamation. An opinion is said to be an “independent” basis for an action for defamation only in a situation where either the facts are all known or no one would seriously consider the opinion in question as implying any particular factual allegations. Much ridicule is of this latter nature, as is, of course, much simple vituperation. Finally, a declaration need not be prefaced with the words “in my opinion” in order to be classified as a statement of opinion. Evaluative statements like “he is a fool, . . . a son of a bitch . . . a traitor to his class” are all statements of opinion. Some of these remarks may imply that the speaker is aware of specific facts that justify his choice of words, but others have only a vague connection with any particular factual context, and, as is the case with the most vituperative of these remarks, some have no such connection at all.