syzygy wrote: ↑Sun Oct 23, 2022 12:35 amA case from 1990:
https://en.wikipedia.org/wiki/Milkovich ... Journal_Co.
Wikipedia wrote:Observers and First Amendment law experts had expected that the Court would formalize its observation in Gertz that "there is no such thing as a false idea" into an opinion privilege against libel claims, expanding the traditional fair comment defense. They were taken aback when it declined to, instead suggesting that the constitutional safeguards it had already erected were enough to protect statements of opinion from being actionable.
(...)
Dissent
"The majority does not rest its decision today on any finding that the statements at issue explicitly state a false and defamatory fact. Nor could it," wrote Justice Brennan in his dissent. He and Justice Marshall agreed with the lower courts that there was sufficient indication that the column was opinion to protect it as such: it was on the sports page, it had a picture of the author with "TD Says" in it, and in the text itself, "Diadiun not only reveals the facts upon which he is relying, but he makes it clear at which point he runs out of facts and is simply guessing." (...)
The argument in the dissent corresponds to mine: as long as you make clear what facts you rely on and where you are only speculating, it should be fine. Obviously a dissent is not the law, but I suspect the majority did not disagree with the argument (but with the dissenters' interpretation of the statements at issue.
The majority opinion in fact does seem to disagree:
Rehnquist wrote:If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, "In my opinion Jones is a liar," can cause as much damage to reputation as the statement, "Jones is a liar." As Judge Friendly aptly stated: "[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words 'I think.' " See Cianci, supra, at 64. It is worthy of note that at common law, even the privilege of fair comment did not extend to "a false statement of fact, whether it was expressly stated or implied from an expression of opinion." Restatement (Second) of Torts, § 566, Comment a (1977).
Apart from their reliance on the Gertz dictum, respondents do not really contend that a statement such as, "In my opinion John Jones is a liar," should be protected by a separate privilege for "opinion" under the First Amendment. But they do contend that in every defamation case the First Amendment mandates an inquiry into whether a statement is "opinion" or "fact," and that only the latter statements may be actionable. They propose that a number of factors developed by the lower courts (in what we hold was a mistaken reliance on the Gertz dictum) be considered in deciding which is which. But we think the " 'breathing space' " which " '[f]reedoms of expression require in order to survive,' " Hepps, 475 U.S., at 772, 106 S.Ct., at 1561 (quoting New York Times, supra, 376 U.S., at 272, 84 S.Ct., at 721), is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between "opinion" and fact.
(...)
We are not persuaded that, in addition to these protections, an additional separate constitutional privilege for "opinion" is required to ensure the freedom of expression guaranteed by the First Amendment. The dispositive question in the present case then becomes whether a reasonable factfinder could conclude that the statements in the Diadiun column imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding. We think this question must be answered in the affirmative. As the Ohio Supreme Court itself observed: "[T]he clear impact in some nine sentences and a caption is that [Milkovich] 'lied at the hearing after . . . having given his solemn oath to tell the truth.' " Scott, 25 Ohio St.3d, at 251, 496 N.E.2d, at 707. This is not the sort of loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining that petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression.
https://www.law.cornell.edu/supremecourt/text/497/1
My reading of Carlsen's statement is that it his personal belief that Niemann cheated (also OTB) but that he acknowledges that he cannot prove this and that he may turn out to be wrong on this. Carlsen's statement does not try to convince the reader that Niemann cheated. It tries to explain why Carlsen personally believes that Niemann cheated, and giving this explanation was necessary because of the whole situation and his decision not to play Niemann in the future. (I suspect most of the people criticising Magnus for making the longer statement previously criticised him for not making it.)
Still, in view of Milkovic v. Lorain Journal I do not rule out that Niemann can convince a court or jury that Carlsen's statement contains a potentially actionable allegation of cheating. But then Niemann still has the problem that there is a clear pattern of cheating and that the allegation is not clearly false (and that most if not all the damage was done by the truthful revelation of all the proven cheating).
). I don't think if I had cheated somehow online (and I used the program 'PokerTracker' to get all kinds of data about people...perfectly okay with the sites, so that's just an aside) I could be said to have 'cheated at the casinos'. Two different expressions of the same sport, that's all.
