A communication is defamatory if it tends to lower an individual’s reputation in the community, or deters third persons from associating or dealing with that individual. However, not all defamatory statements are actionable. If a statement cannot be reasonably interpreted as stating actual facts about the plaintiff, it is protected by the First Amendment. So, some expressions of opinion are protected speech.

Where a defendant’s statements are not protected by the First Amendment, a plaintiff can establish a defamation claim by showing: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either action ability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). 

One of the difficulties in addressing defamation issues lies in determining whether specific statements are actionable. The United States Supreme Court has rejected the idea that all statements of “opinion” are protected. Instead, the Court has found that a statement must be “provable as false” to be actionable. In a case called Milkovich, the Court suggested that the statement “In my opinion Mayor Jones is a liar” would be potentially actionable, while the statement “In my opinion Mayor Jones shows his abysmal ignorance, by accepting the teachings of Marx and Lenin” would not be actionable. This illustrates the difference between an objectively verifiable event, such as lying, and a subjective assertion, like “shows his abysmal ignorance…. ” 

In Michigan, the Court has found that the question of whether someone is a “fit mother,” like the question of whether someone is abysmally ignorant, is necessarily subjective and is therefore not actionable as defamation.

Of course, truth is an absolute defense to a claim of defamation.  So even if a statement is actionable, as tending to lower an individual’s reputation, if the statement can be shown to be true, whether or not it was stated as fact or opinion, the plaintiff will not prevail.g

— Kassem Dakhlallah is a partner with Jaafar & Mahdi Law Group, P.C.  His practice focuses on complex litigation including class actions, representative actions, commercial litigation, civil forfeiture and personal injury. He can be reached at 313. 846.6400 and kassem@jaafarandmahdi.com.