The First Amendment to the United States Constitution protects the right to express one’s opinions without fear of defamation lawsuits or other punishment. If you had a bad experience at a local restaurant, you are free to post a negative review on Yelp, Google, or some other consumer-review site and tell the world exactly what you think of the place. The restaurant may not appreciate the effect of your review on its average “star rating,” but it won’t be able to sue you for defamation (not successfully, anyway) if all you did was express your constitutionally-protected opinions. But what are those, exactly?
Distinguishing opinions from statements of fact is not as simple as it sounds, and in many cases, judges and scholars will reach opposite conclusions. For example, a common accusation that gets thrown around a lot is “scam artist” or “scammer.” Is that a factual assertion or an opinion? It’s hard to say without knowing more context. Is the declarant using the term to accuse someone of being “grossly unfair” (an opinion) or is he saying that actual fraud is taking place? Suppose someone writes online that Gatorade’s marketing campaign is a “scam” because Gatorade doesn’t really quench thirst as well as plain water. Contrast that with a statement accusing a local accountant of scamming customers out of hundreds of dollars by manipulating their tax returns. To “scam” someone means different things in different contexts.
Recognizing this, the Fourth Circuit developed a four-part test for distinguishing facts from opinions. Under this test, federal courts sitting in Virginia should consider the following factors: (1) the speaker’s choice of words; (2) whether the challenged statement is capable of being objectively characterized as true or false; (3) the context of the challenged statement within the speech as a whole; and (4) the broader social context into which the statement fits. See Potomac Valve & Fitting Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1287–88 (4th Cir. 1987). The second element–the verifiability of the statement–is by far the most important factor. The remaining elements can be (and are, in Virginia state courts) lumped together into a general consideration of overall context. Ultimately, the key consideration in state or federal court is whether the statement, taken in context, can be reasonably interpreted to declare or imply untrue facts.
Let’s take a recent example from a real case. Gregory v. Chapman was a dispute between John Gregory, a Loudoun County police officer, and Mike Chapman, the Sheriff for Loudoun County, Virginia. On June 14, 2015, Gregory arrested an individual named Lyle Grenoble for public intoxication and took him to the police station in handcuffs. When they exited the cruiser, Gregory suddenly threw Grenoble to the ground and thrust his knee into Grenoble’s back. (Later, he would claim that he did so because Grenoble acted aggressively). Gregory was found guilty of assault and battery in General District Court, but that conviction was later reversed on appeal.
Sheriff Chapman terminated Gregory’s employment for misconduct, and reaffirmed his decision even after a circuit court jury found Gregory not guilty. Gregory sued for defamation and a number of other claims. According to the complaint, Sheriff Chapman made defamatory statements to the news media in which he stated that he found the video footage of the Grenoble incident “very disturbing,” and stated that he “knew something had to be done.”
Applying the Fourth Circuit’s four-part test, the court didn’t get past the all-important second prong. Chapman’s statement to the media that he found the incident “very disturbing” is an opinion because it cannot be objectively characterized as true or false. Rather, it merely “reflects his emotional reaction to observing the video,” the court held. Similarly, the statement that he “knew something had to be done” only “reflects his personal assessment of the necessary reaction to the video.” In other words, the court held (in essence, not explicitly) that Chapman’s statements could not be reasonably interpreted as a declaration or implication of any factual assertions. Because the statements could not be characterized as true or false, they were properly characterized as personal opinion. Defamation actions cannot be maintained when based on statements of constitutionally-protected opinion, so the court dismissed the case.
In Virginia state court, there is no four-part test. The basic test applied in state court holds that when a statement is relative in nature and depends largely on a speaker’s viewpoint, that statement is an expression of opinion. Courts look to both the apparent intent of the speaker as well as to how it would presumably be interpreted by a reasonable listener. (See, e.g., Carwile v. Richmond Newspapers, 196 Va. 1, 7 (1954) (holding that courts and juries should interpret such statements “as other people would understand them,…according to the sense in which they appear to have been used”); Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 714 (2006) (“statements which cannot reasonably be interpreted as stating actual facts about a person, are not actionable”); Carolinas Cement Co. v. Riverton Inv. Corp., 53 Va. Cir. 69 (Frederick County 2000) (“Construction will be derived from the expressions used in the whole scope and apparent object of the writer”)).
Context is also very important to determining whether a statement, when read as a whole, should be treated as fact or opinion. (See American Communications Network, Inc. v. Williams, 264 Va. 336, 341-42 (2002) (holding that defendant’s words must be considered in context rather than in isolation); Yeagle v. Collegiate Times, 255 Va. 293, 297-98 (1998) (analyzing phrase at issue “in the context of the entire article” written by the defendant); Lamb v. Weiss, 62 Va. Cir. 259 (Winchester 2003) (noting that “words are always colored by the context in which they are used”)). Considerations such as the identity of the speaker, the forum for the speech, and whether a reasonable reader would infer the existence of undisclosed defamatory facts are all factors that can affect how a reasonable listener would interpret a particular statement.
To illustrate, let’s take a quick look at Compassionate Care Pediatrics, LLC v. Children’s Medical Center, Ltd., 100 Va. Cir. 6 (Henry County Sept. 6, 2018). The allegations in that case were that Lea Lineberry, a pediatric nurse practitioner, left Children’s Medical Center (“CMC”) and formed her own pediatric services business, Compassionate Care Pediatrics (“CCP”) taking several patients with her. Upon learning that Lineberry had formed a competing business, CMC began spreading false information about her to damage her business and to discourage patients from transferring their files. The complaint alleged that CMC directed several of its employees to make the following false statements, among others:
- Lineberry overdosed patients of CMC.
- Lineberry stole prescription drug pads from CMC.
- Lineberry committed prescription drug fraud by prescribing medications that were not authorized or required.
- Lineberry overdosed children in her care.
- Lineberry kept undocumented records, a situation that could have caused children’s deaths.
- Lineberry was prescribing medications in amounts that could have caused children’s deaths.
The complaint further alleged that CMC’s President told former patients that “Lineberry was incompetent as a nurse practitioner.”
In reviewing these statements, the court found that the accusation of incompetence was opinion but that all the other statements allegedly made by CMC were factual in nature. The court’s reasoning was simply that the statement alleging incompetence “does not contain a provably false factual connotation” and whether Lineberry was incompetent “depends upon the speaker’s viewpoint.” The other allegations (regarding overdosing patients, etc.) “are capable of being proven true or false.”