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Examples of Non-Defamatory Opinion
Defamation lawsuits are not easy to win because the plaintiff must both prove the difficult elements of his or her case and avoid the many defenses to defamation. This article discusses two examples of one of the standard defenses to defamation: opinion.

Janklow v. Newsweek, Inc.
In this case, the defendant published an article about the plaintiff, a state governor, which indicated that the plaintiff was prosecuting the defendant after the defendant had accused the plaintiff of being a rapist. The plaintiff showed that the prosecution of the defendant began before the defendant accused the plaintiff of being a rapist. Nevertheless, the court ruled that the statement was a statement of opinion and not a statement of fact. The court cited four factors in the defendant’s favor: imprecision, unverifiability, literary context, and political nature. The court pointed out that the statement was not a direct accusation of misconduct, the defendant may have continued the prosecution against the plaintiff out of revenge, the statement was made in a magazine that published opinion, and the statement was about the plaintiff’s conduct as governor.

Stepien v. Franklin
In this case, the plaintiff was the former president of Cleveland Professional Basketball Company, commonly known as the Cleveland Cavaliers. The defendant was the host of a radio sports talk show. The show usually employed an audience call-in format in which listeners were encouraged to call in and give their opinions and/or solicit the defendant’s opinion about professional sports. The defendant used the “insult” genre of entertainment. The defendant was often loud, opinionated, obnoxious, and insulting.

After the plaintiff made a series of questionable player transactions, including trading away several first-round draft choices, the defendant harshly criticized the plaintiff. The defendant’s descriptions of the plaintiff included “stupid,” “dumb,” “buffoon,” “nincompoop,” “scum,” “a cancer,” “an obscenity,” “gutless liar,” “unmitigated liar,” “pathological liar,” “egomaniac,” “nuts,” “crazy,” “irrational, ” “suicidal,” and “lunatic.” The plaintiff brought a defamation action against the defendant. Finding that all of the defendant’s statements were protected opinions rather than defamatory factual statements, the trial court found in favor of the defendant. On appeal, the appellate court affirmed.

The appellate court found that the defendant’s comments were constitutionally protected opinion. The appellate court said that the arena of sports was a traditional haven for cajoling, invective, and hyperbole, and therefore the reasonable listener was on notice that the defendant’s statements were statements of opinion. The appellate court said that there was to be a free exchange of ideas, thoughts, and discussion, it could not place on a commentator the burden to protect against listeners who are not reasonable. The appellate court said that the First Amendment militates the protection of unrestricted hearty debate on issues of concern to the public, including the protection of what may well include vehement, caustic, and sometimes unpleasantly sharp attacks.