Opinion privilege

Opinion privilege is a protected form of speech, of importance to US federal and state law. The US First Amendment guarantees free speech, subject to certain limitations. One of these limitations is defamation, in various forms, notably libel. While federal precedent does not explicitly state that opinion is protected against prosecution under libel laws (indeed it explicitly states the contrary), the combined effect of several rulings is such as to effectively make such the case.

Historical development

Opinion privilege has its roots in the common law fair comment doctrine.

Scope

Opinion based on fact is not protected qua opinion, if the opinion is based on false facts. Opinion that implies alleged facts has the same standing as the implied alleged fact.

Exceptions

Fact couched as opinion is not protected. For example "It is my opinion that he is a liar." would not be treated any differently than "He is a liar."

Relevant cases

• Ollman v. Evans
• Gertz v. Robert Welch, Inc.
• Milkovich v. Lorain Journal Co.
• Hustler Magazine v. Falwell
• Spence v. Flynt 816 P.2d 771 (Wyo. 1991)

Bibliography

• Restatement (Second) of Torts
• Nat Stem,Defamation, Epistemology, and the Erosion (But Not Destruction) of the Opinion Privilege
• Esward M. Sussman, Milkovich revisited: "Saving" the Opinion Privilege, Duke Law Journal, pp. 415-448
• Jeffrey E. Thomas, Statements of Fact, Statements of Opinion, and the First Amendment, 74 Cal. L. Rev. pages 1001-1058 (1986).