New York Law Journal "Protecting Opinion in Twitter's 'Schoolyard Squabbles' by Steve Kramarsky

March 27, 2017

Over the last few decades, technology has fundamentally changed the way people create, consume and understand information. With that change has come a shift in the way we understand core concepts like "facts" and "truth." In November 2016, New York Times technology journalist Farhad Manjoo, in an article titled "How the Internet Is Loosening Our Grip on the Truth," wrote: "Digital technology has blessed us with better ways to capture and disseminate news … . You would think that greater primary documentation would lead to a better cultural agreement about the 'truth.' In fact, the opposite has happened.

 

"That's a pretty strange idea for a lawyer to deal with—that we, as a society, can't agree anymore on what constitutes a "fact." But for anyone who lives or works in a media-saturated environment, Manjoo's observation probably rings true. His article was recently cited by New York State Supreme Court Justice Barbara Jaffe in Jacobus v. Trump, 2017 WL 160316, at *1 (Sup. Ct. N.Y. Cnty. Jan. 9 2017), a case that turned on that very issue: How should a reasonable person understand the information he or she reads on social media and the Internet?

 

Whether or not society can come to consensus on the line between fact and opinion, the distinction has real, legal consequences. In defamation law, a false statement of fact may be actionable; but a statement of opinion, no matter how offensive, generally is not. And this distinction is more than skin-deep. For instance, statements that appear to be opinion may nevertheless be actionable (as "mixed opinion") if they suggest that they are based on unstated facts.

 

The analysis can be very complex and fact specific, depending not only on the words at issue, but also the context in which they were used. But at the same time, the fact-opinion distinction is a question of law that courts can resolve on a motion to dismiss. The opinion in Jacobus v. Trump is an excellent example of how complicated that analysis has become in the era of pervasive digital information.

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