An opinion is protected from libel to further the free flow of ideas. The Court found in Ollman v. Evans the alleged defaming article, published by Rowland Evans and Robert Novak, about professor Bertell Ollman, consisted of a collection of opinions and conclusions based on factual evidence. Thus, the Court developed the four-part Ollman Test to apply to the material in question to evaluate if a statement is truly an opinion.
A statement of fact must be capable of being proved either true or false, whereas an opinion is a statement of one’s preference or outlook, which may conflict between multiple sources. For one to consider the statement in question as an opinion, one must not be able to provide evidence or documentation to validate it. For instance, one may claim, “My bus ride is 20 minutes long.” Someone can verify this statement by timing how long it takes for the bus to complete its route. In contrast, one may say, “I hate riding the bus because it takes forever to get anywhere.” This statement is a personal belief about time perception, where 20 minutes to one person may seem like “forever,” whereas another person may think otherwise. Another element of the test is determining the common usage or meaning of a word.
Occasionally a statement of opinion may get mixed in with factual claims. For instance, if one says, “My brother is a pig,” they may be referring to their sibling’s uncleanliness or greediness. However, when analyzed under scrutiny, the court determines “whether the statement has a precise core meaning for which a consensus of understanding exists or, conversely, whether the statement is indefinite and ambiguous...” (Trager 232). Therefore, one may interpret the sentence as a fact if they believed the common word “pig,” would refer to one’s brother being a farm animal. The First Amendment does not protect changing a quote’s meaning when it stands alone. Words may take on other meanings depending on the context one uses it in.
Often, people may understand a statement of opinion as a hyperbole, but without context, it may appear factual. For example, in 2017, Sarah Palin accused the New York Times of slander in an opinion editorial, which suggested “materials distributed by Palin’s political action committee played a role in inciting a mass shooting” back in 2011 (Kennedy). Originally her lawsuit got dismissed by a New York federal judge, but upon appeal, the three-judge panel decided the lower court made a mistake in the procedure they used to “assess the validity of arguments put forth by Palin’s legal team” (Kennedy). However, articles published in Op-Ed pages “alert the reader that he is in the context of controversy and politics, and that what he reads does not even purport to be as balanced, objective, and fair-minded as he has a right to hope to be the case with what is contained in the news columns of the paper” (Trager 234). The material in question must be looked at as a whole. In Palin’s case, this means one must consider the information’s place of publication in a section of the newspaper dedicated to expressing an opinion separate from the newspaper’s editorial board. In conjunction with the journalistic context where the statement occurs, one must also consider the social context.
Depending on the audience and the situation, people understand words differently. For instance, a college student attends a symposium and listens to a scientist’s presentation about pollution in the ocean. The social context of the researcher’s profession, which a college student would understand, includes an extensive process to collect data and analyze it. Therefore, the scientist’s background adds more weight to their claims linking pollution as harmful to the ocean. In contrast, a science-based puppet show for kindergarten or first-grade students may say, “The Earth is sad because of all the trash in the ocean.” This claim leans toward being an opinion to simplify facts. This is because the intended audience the puppeteer directs the statement at is young children.
One also must consider the place where expression of opinion occurred. For instance, if a scientist published an article in a scholarly journal and asserted the Earth is flat, a general audience would assume this opinion may be factual due to the credibility and authoritative position of the scientist. However, if a man standing on the street with a sign shouting about the Earth being flat, more people would be inclined to believe his claims are an opinion as he does not have as much credibility.
Everyone is free to form their own opinion but to consider it so one must apply the Ollman Test. One may distinguish opinion from a fact if they cannot verify the statement as true or false and after they consider the word’s common usage, journalistic and social context. A libel defendant must meet these qualifications to use opinion as a defense.
Kennedy, Merrit. “Appeals Court Revives Sarah Palin’s Defamation Lawsuit Against ‘The New
York Times.’” NPR, https://www.npr.org/2019/08/06/748615956/appeals-court-revives-sarah-palins-defamation-lawsuit-against-the-new-york-times Accessed 25 Oct. 2019
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