Separating Fact From Opinion Is Not Always Easy

Defamation Law 101 teaches that expressions of opinion are protected by the First Amendment and are not actionable in court. To bring a successful defamation suit, you’ll need to prove that someone made a false statement of fact about you. If that person merely expressed his or her personal opinion, the law of defamation will not provide a remedy, no matter how unfavorable the opinion is or how harshly it was expressed. Distinguishing assertions of fact from expressions of opinion, however, is not always an easy task. Smart lawyers and even judges will frequently disagree with each other on whether a particular statement is “fact” or “opinion”.

In theory, the differences are clear. A statement of fact is one that contains an assertion capable of being proven true or false. Statements of opinion are those that can’t be proven true or false because they depend on the speaker’s personal, subjective viewpoint. A recent Virginia case illustrates the difficulties that come with applying this test to real-world situations.

McCray v. Infused Solutions, LLC, is a case that arose out of an employment dispute. Sheryl McCray was employed as a General Clerk at a United States Army Recruiting Center in Hampton, Virginia. She got into an argument with a work colleague, Jonah Jancewicz, who took offense when she asked that he notify her prior to taking any lunch breaks. Both McCray and Jancewicz complained to their superiors about the incident, and a few days later, McCray was put on probation and issued a “Final Warning Notice” about her behavior. The Warning, which McCray alleges was shared by the prime contractor with the subcontractor that employed her, contained the following statements:

  • “Employee is extremely confrontational and exhibiting constant insubordinate behavior towards individuals at her work location.”
  • “[McCray’s behavior] has been an issue for over 90 days and appears to be getting significantly worse instead of improving.”

McCray was terminated shortly thereafter, and she sued for both defamation and tortious interference, claiming the statements made about her were false.

What do you think? Fact or opinion? To me, this sounds like constitutionally protected opinion. Whether McCray was “extremely confrontational” is not susceptible of being proven true or false. Regardless of what she actually did or said to Jancewicz or other co-workers, some people might regard the behavior as “extremely confrontational” whereas others might regard it as merely “moderately confrontational” or perhaps “somewhat metal-confusion-1-1413118-300x200rude, but not necessarily confrontational.” If all of these different views are plausible and reasonable, how could McCray prove, as a matter of defamation law, that the assertion was false? The accusation that she was “insubordinate” is a closer call because some might interpret that to mean she disobeyed a direct order, whereas others might interpret it to mean she was merely disrespectful to authority. The latter strikes me as clearly opinion, but the former may be properly considered a statement of fact. With regard to the second statement at issue, it seems to me that whether her alleged behavior had been worsening, as stated in the Warning she received, is also a matter of opinion.

The court, however, held that the statements were statements of fact. Not only that, but in the view of the court, it wasn’t even a close call. Referencing the statements in the Warning, the court wrote:

These statements clearly (1) could prejudice Plaintiff in the practice of her profession as a clerk and (2) contain factual connotations that could be proved false. See Tronfeld v. Nationwide Mut. Ins. Co., 636 S.E.2d 447, 451 (Va. 2006) (holding statement that a lawyer “just takes people’s money” could be defamatory per se); Fuste v. Riverside Healthcare Ass’n, Inc., 575 S.E.2d 858, 861 (Va. 2003) (holding statement that doctors “abandoned” their patients and that there were “concerns about their competence” could be defamatory per se). Thus, the statements in the Final Warning Notice could be defamatory per se under Virginia law.

I was surprised the court reached this conclusion, especially with so little analysis, but was even more surprised that the defendant’s lawyers didn’t even argue that the statements at issue were non-actionable opinion. As noted by the court, “Defendants do not seriously challenge Plaintiff’s assertion that the statements in the…”Final Warning Notice” were defamatory.”

This just goes to show that defamation cases can be very unpredictable, as different lawyers, judges, and jurors will look at the same set of facts and often reach widely divergent conclusions.


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