Opinions Laden with Factual Content Are Actionable

As a general proposition, libel and slander liability requires a defamatory statement of fact; expressions of opinion are not actionable. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Factual statements are generally those that contain—expressly or impliedly—a provably false factual connotation. “Mr. Smith drank ten shots of tequila last night” is a statement of fact; either he drank ten shots or he didn’t. Expressions of opinion, on the other hand, are relative in nature and depend largely upon the speaker’s personal viewpoint. They tend to consist of evaluative statements reflecting the speaker’s own political, moral, or aesthetic views. “I think Mr. Smith drinks more tequila than he really should” would likely be deemed an expression of opinion by most courts. But consider the statement “I think Mr. Smith must be an alcoholic.” Fact or opinion?

Statements that appear at first to be opinions but which could fairly be interpreted as implying the existence of facts not disclosed by the speaker are treated by Virginia courts as opinions “laden with factual content,” which is a sufficient predicate upon which to base a defamation action. (See Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 298 n.8 (1987)). Ultimately, whether a statement of apparent opinion will be deemed sufficiently laden with factual content to support a defamation action will depend on a number of factors that would influence how a reasonable reader or listener would most likely interpret the statement. Considerations include the following:

  • What is the meaning of the specific language of the challenged statement in common usage? Does the language have a precise meaning that is commonly understood, or is the statement indefinite and ambiguous? Recipients of a statement are less likely to infer facts from vague or ambiguous statements than from those with a commonly understood meaning.
  • In what context was the statement made, and what are the surrounding statements? Was the statement made by someone shouting at a political rally or was it written in a press release? Do the surrounding statements suggest irony, sarcasm, or parody? Consideration of these factors can greatly affect whether a particular statement will be understood to convey factual meaning.

It is difficult to analyze a statement like “I think Mr. Smith must be an alcoholic” without learning more about the circumstances in which it was made. Who said what to whom, and in what context? What else did the speaker say? These factual details are key to understanding whether the statement may be actionable.

A federal court sitting in Virginia recently grappled with these issues in Reynolds v. Pionear, LLC, a case brought by an employee who claimed her employer defamed her while she underwent a security clearance. There were three statements at issue, all of which were allegedly made to a federal investigator by a Pionear employee:

  1. That Reynolds was discharged by Pionear for “unfavorable employment” or “conduct” at Bank of America; Profanity
  2. That Reynolds had engaged in “inappropriate conduct” with a co-worker; and
  3. That Reynolds had spoken “rudely and with profanity” to her co-worker.

Pionear moved to dismiss Reynolds’ defamation complaint, arguing that the statements were mere expressions of opinion. The court disagreed and denied the motion.

The court recognized that, when read in isolation, the characterizations of Reynolds’ employment as “unfavorable,” “inappropriate,” and “rude” amount to non-actionable opinions. However, the court also noted that defendants can be held liable for defamation “when a negative characterization is coupled with a clear but false implication that the speaker is privy to facts about the person that are unknown to the general listener.”

Examining the statements in context, the court found that the assertion that Reynolds spoke “with profanity” was provably true or false, regardless of the somewhat vague definition of the word “profanity.” The statement suggests that Reynolds uttered words that some would characterize as profane during her employment, an allegation Reynolds said was untrue. “Here, the unspoken facts that could be evaluated in a defamation suit are the actual words used by Reynolds that Pionear has characterized as ‘profanity.’ By stating that Reynolds spoke ‘with profanity,’ Pionear has implied that Reynolds uttered actual profane words, the specifics of which were not divulged in the allegedly defamatory statement.”

Moreover, the court held, the inclusion of the “profanity” statement in close proximity to the first two statements of apparent opinion rendered those first two statements “laden with factual content” such that they could also form the basis for defamation liability.

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