Non-Actionable Opinion

Opinions Made Without Asserting False Factual Statements are not Actionable as Defamation

Pure opinions are not actionable as defamation claims. The distinction between non-actionable opinions and false factual assertions is sometimes hard to draw. Couching false statements with expressions of opinion does not protect a person from a defamation claim. We have defended a number of defamation claims on the basis that our client is entitled to assert pure opinions and ensure that defamation plaintiffs we represent can overcome this hurdle.

Opinion is entitled to First Amendment protection. The workplace is a useful environment for considering the differences between non-actionable opinions that are protected under the First Amendment and cannot be the basis for a defamation action. Free speech rights do not disappear at the work place doors. If generalized statements of opinion could be the subject a defamation action, courts and juries would be turned into referees for all kinds of workplace spats. Employees would be deterred from voicing legitimate negative opinions about a co-worker, boss, or former boss. Free speech rights, permit workers to voice their opinions even with harsh and strident language. For that reason, opinions, untethered from specific facts, cannot be the basis for defamation liability.

Alleged defamatory statements are non-actionable opinion if they are too broad, conclusory, and subjective to be objectively verifiable. When an Illinois court determines if a statement is non-actionable as opinion, the Court should consider whether (1) the words have a precise, readily understood meaning, (2) the context negates the impression that the speaker intended to convey a fact, and (3) the statement can be objectively verified.

General, broad, conclusory or subjective statements that can be understood in a variety of ways, that lack factual context or the necessary detail for the statement to have a precise and readily understood meaning, or a failure by the plaintiff to explain the evidence, tend to be the most important factors on which Illinois courts rely to determine whether otherwise potentially defamatory words or phrases are opinion, rather than a defamatory fact capable of objective verification.

Courts have dismissed libel complaints and have instead found the alleged defamatory statements to be non-actionable opinion for generality, lack of factual context, subjectivity or failure to explain the evidence in the following factual scenarios:

• Statements in an email describing the plaintiff as "uncooperative, evasive, and not forthcoming in her representations."
• "A problem employee"
• The phrase "cheating the city;"
• The plaintiff as a "'crook'; and
• "fired because of incompetence"
• "unprofessional"

In contrast, courts have found statements to be defamatory and not opinion where false statements were made (1) to potential employers and (2) tied to specific incidents and that could be objectively disproven were actionable.

• In a hospital fellowship programs, false statements were made to prevent the plaintiff from obtaining a fellowship, which efforts succeeded. The defendants claimed the plaintiff was a poor candidate based on the objectively disprovable basis that he had low test scores. They claimed the plaintiff was "aggressive in the workplace, especially with women." The court noted that "aggressive in the workplace" alone was too vague but by linking it to a specific qualifying phrase of "with women," defendants made the statement actionable by narrowing the field of reference to specific aggressive interactions with a specific subset of individuals which could be objectively verified. The court found the statement "incompetent" to be objectively verifiable because the plaintiff had won honors and awards specifically for his competence.
• False statements that a doctor was making false diagnosis of patients and providing them with unnecessary treatments and tests so they could receive workers' compensation benefits and plaintiff could receive a windfall. All of the statements were tied to specific factual occurrences, the examination of workers' compensation patients, that could be objectively verified, i.e. did the patients suffer the specific injury with which plaintiff had diagnosed them.

Outside the workplace, courts that have found defamatory statements rather than opinion apply the same reasoning:

• Statements that plaintiff was "not for real" and "scamming" were found to assert actionable facts, and not mere opinion, because the radio disc jockeys in question provided the specific, objectively-verifiable basis for the statements including that the festival which plaintiff claimed to be hosting did not exist.
• Statements in an in-depth article accusing the plaintiff of filing frivolous lawsuits were actionable because the truth of the claims made in the plaintiff's lawsuits and identified in the alleged defamatory article could be objectively proven. One of the plaintiff's lawsuits accused an airline of losing his luggage, and it could be proven whether the lawsuit was frivolous by determining if in fact the airline lost the luggage.

Context is crucial in determining a fact or opinion. Words should not be interpreted literally if the context of the statement indicates that they are being used loosely or colloquially. Opinions are distinguishable and do not give the green light to defamation suits when statements are devoid of factual context.

Statements are considered to be "nonactionable opinion" if they are "too broad, conclusory, and subjective to be objectively verifiable." Liu v. Nw. Univ., 78 F. Supp. 3d 839, 850 (N.D. Ill. 2015) (quoting Illinois Appellate Court decision in Hopewell). As the Hopewell court explained, when determining if a statement is nonactionable opinion entitled to First Amendment protection, the Court should consider: (1) whether the words have a precise, readily understood meaning, (2) whether the context negates the impression that the speaker intended to convey a fact, and (3) whether the statement can be objectively verified.

Case Law in Illinois for Non-Actionable Opinion

The Federal District Court in Liu dismissed a defamation claim regarding statements in an email describing the plaintiff as "uncooperative, evasive, and not forthcoming in her representations" because the statements were nonactionable opinions. 78 F. Supp. 3d at 849-51. As the court explained, statements that "lack[] factual context" fall into the category of nonactionable opinion. The Liu court cited several examples including:

• Schivarelli, which found the phrase "cheating the city" to be not actionable because "[defendant] did not explain the evidence that she was referring to, nor did she state why she thought [plaintiff] was cheating the city, how he was cheating the city, or even what she meant by the term 'cheating.'"
• Dubinsky, which found that referring to the plaintiff as a "'crook' was not actionable because it was a general statement made without factual context"; and
• Hopewell, which "found the phrase 'fired because of incompetence' to be nonactionable opinion because it was 'too broad, conclusory, and subjective to be objectively verifiable.'"

In contrast, the court pointed out, "courts have found statements actionable where a factual basis has been provided for the statement" and cited examples of cases where such factual basis was provided including McDaniel v. Loyola Univ. Med. Ctr., No. 13-cv-06500, 2014 WL 4269126, at *13 (N.D. Ill. Aug. 28, 2014) "f[ound] that a statement that plaintiff was a poor candidate was linked to his test scores, 'provid[ing] the context and factual basis missing in Hopewell.'" Id. at 850. Because the defendant "did not explain the basis for his opinion that Liu was being uncooperative, evasive, and not forthcoming" in his email, the statements "[could] not be objectively verified." Id. at 850-51. The court rejected the argument that plaintiff could provide the "factual context" missing from the allegedly defamatory email through the allegations of her complaint. Id.

The seminal Illinois appellate case on non-actionable opinion in defamation cases is Hopewell which found the statement that plaintiff "was fired for incompetence" to be non-actionable opinion. The court reasoned that although the word "incompetent" is an easily understood term, the broad scope of the term "renders it lacking the necessary detail for it to have a precise and readily understood meaning." The court further observed:

There are numerous reasons why one might conclude that another is incompetent; one person's idea of when one reaches the threshold of incompetence will vary from the next person's. Without the context and content of the statement to limit the scope of "incompetent," we cannot say that here is a precise meaning.

A number of courts have followed the same analysis as the Liu, Hopewell, Dubinsky, and Schivarelli courts and dismissed defamation claims based on statements lacking factual context finding them to be non-actionable opinions. See, Manjarres v. Nalco Co (finding statements that plaintiff was "unprofessional" and "incompetent" to be nonactionable opinion because "the alleged statements contain no specific facts suggesting a verifiable basis and offer no references to personal experiences with Plaintiff."); Artunduaga v. Univ. of Chicago Med. Ctr (finding statements that "[i]t was unanimous amongst the numerous evaluators . . . that the issues that [plaintiff] has will be extremely difficult to correct"; "it was quite clear to all of the reviewers that Surgery . . . just would not be the best fit for [plaintiff]"; and "[plaintiff] feels that she has improved, however, no one else in the entire section and across the department has recognized that fact" were "too imprecise to place the statements outside the category of non-actionable opinion."); Rose v. Hollinger Int'l, Inc. ("Given the broad and shapeless form of Stephens' accusation, we do not see how a reasonable person would go about proving or disproving the assertion. Where would such a person begin?")

Defamation law continues to change and evolve. Defamation attorneys must have extensive knowledge of the dichotomy between pure opinion and false factual assertions mixed with opinion other aspects of defamation law to effectively prosecute claims for businesses, professionals and individuals who have been defamed online. Our attorneys have over thirty years of experience in prosecuting and defending defamation cases. We are committed to protecting our clients from harmful cyber smears and online defamation and to protecting clients who have been wrongfully sued for defamation when they are simply expressing strongly held negative opinions. Located in Chicago and Elmhurst, Illinois, we have won judgments or settlements for our clients in defamation and libel suits throughout the Chicago area. To arrange for a consultation with one of our attorneys, contact us online or call at 630-333-0333.

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