Opinion And The First Amendment

News that NBC is shifting Jay Leno to 11:30 and bumping Conan O’Brien to 12:05 gives us an opportunity to explain how the First Amendment and opinion are related. So let’s just say that I write something on my blog to the effect that Jay Leno is a backstabbing no talent hack. Would Leno have a defamation case against me? In all likelihood, no. Putting aside the fact that truth is a defense in any defamation action, a party can only proceed with a defamation action if the defendant publishes false facts. A “fact” is something that can be definitively verified. So a true opinion (or hyperbole) is not subject to verification. My opinion that Leno is a no talent hack cannot be verified. There are apparently people who think otherwise (and I won’t tell you my opinion of those folks). And my statement that Leno is a “backstabber” is hyperbole – no reasonable person would think that I am literally saying that Leno stabs people. So Leno could not prove that what I said was false and that would prevent a defamation suit. But inserting “in my opinion” (or “IMHO”) before or after a statement doesn’t make it opinion. For example, if I were to say “in my opinion, Jay Leno has a criminal record” that would not be opinion. Whether he has a criminal record is a verifiable fact. He either has one or he doesn’t. And since he could prove he doesn’t, he could bring a defamation suit over that. I’m sure the founding fathers did not realize when they adopted the First Amendment that they’d be offering protection for cable news personalities, sports talk callers and bloggers. But they did! And I for one am eternally grateful.