Law Firm New Jersey

First it was wronged consumers posting negative reviews about vendors on online forums. Now bloggers posting entries about everything from allegedly crooked politicians to evil landlords are increasingly becoming the defendants of choice in defamation lawsuits, sometimes over entries that are no longer than a few words. While at one time many forum surfers did not have the assets or the recognition to be worthwhile targets for the likes of big business and wealthy individuals, websites such as Wordpress and Twitter have given an online voice to millions of people, many of which have everything to lose in costly and protracted litigation.

To understand what type of speech can expose a blogger to litigation risk, one must realize that free speech protection only extends to certain types of speech. Opinion certainly enjoy a substantial level of First Amendment protection; however, only those opinions that the average person recognizes as just that—a blogger’s opinion—are protected. While certain statements are clearly identifiable as an opinion by a reasonable person, other statements that are intended to be opinions can easily be construed as fact.

For example, take the following statement: “In my opinion, Jane’s food tastes bland.” While certainly a negative reflection on Jane, most reasonable people would understand that the writer is expressing an opinion about Jane’s cooking. Now, examine this next statement: “In my opinion, Jane is a liar and a thief .” While both this statement and the previous statement are intended only to represent the writer’s opinion of Jane, the latter statement will likely be construed as fact by a reasonable person. Even though the writer expresses the statement as an opinion, the implication of the statement is that the writer has formed the opinion based on fact. If, based on this implication, Jane sues the writer, the writer would have to show a reasonable person would not construe his statements as fact. This is a very difficult—and expensive—proposition.

Alternatively, the writer could prove that his statements are factual, in that Jane really is a liar and thief. Truthful statements, no matter how harsh they might be, are unequivocally protected under the First Amendment. if you can prove that your statements are true, you have an absolute defense to a defamation claim. Thus, if the writer can establish that Jane lies and steals, he most likely will have a solid defense to Jane’s defamation claim. However, proving whether statements are true is often an extremely costly task. In many cases, a defendant who successfully defends a defamation lawsuit based on the contention that their statements are true usually ends up spending thousands of dollars in legal fees and associated expenses anyway. This is because statements that may appear to be true based on logical assumptions and educated speculation in everyday life are not good enough to ward of a motivated plaintiff operating in a legal system that values concrete fact over speculation. As such, to successfully defend a  defamation action, a defendant has to prove that their statements are true, not that they are likely to be true.

For example, perhaps Jane drives a $100,000 Mercedes and lives in the city’s biggest house, but only makes $30,000 a year as a secretary. She claims she receives money from a wealthy “family member,” but refuses to disclose the identity of the family member. She also does unspecified “freelance volunteer work” for Lou Mobster, a jeweler who is suspected of dealing in stolen diamonds. While Joe Blogger might reasonably opine that Jane is a thief for Lou and she is lying about the source of her income, if he wishes to present his opinion in his blog, he must be aware  that many of his readers will construe his opinion as fact. The funny thing is, if Jane keeps suspicious company and appears to be living beyond her means, Joe’s opinion becomes even more likely to be construed as fact, and therefore more likely to cause Jane damage. Therefore, if Jane files a defamation lawsuit against Joe and shows that she receives money from her wealthy uncle and Joe cannot present evidence that Jane also steals from the city, Joe will be on the hook for Jane’s damages, regardless of how reasonable Joe’s opinion seemed at the time he blogged about it.

So how does a blogger insulate himself from litigation while still offering the provocative opinions his readers demand? The answer is simple: he can’t. If you insist on publishing your opinions, you must be prepared to endure any fallout your publication causes. As such, if you intend to blog about any topic that concerns a legal entity (e.g. a person, a company, a retail outlet, etc.), you must understand that no matter how careful you are in presenting your opinions, you will always run the risk of irking the wrong people and finding yourself on the business end of a defamation lawsuit.