Statements of opinion are protected by the First Amendment, and therefore are not actionable as defamation, e.g. “In my opinion, he has molested and tortured data…” or “I think he has molested and tortured data.” Your choice of words might make you sound like an ass, but you have the right to sound like an ass.

Untrue statements presented as fact are not protected by the First Amendment, and therefore may be subject to a defamation claim, e.g. “He has molested and tortured data…” It becomes a question of fact for a jury as to whether the statement is false, and whether the person made the statement with actual malice as to its falsity:

A judge for the D.C. Superior Court on Thursday refused to let libertarian think tank Competitive Enterprise Institute (CEI) and conservative news site National Review off the hook from a defamation lawsuit brought by climatologist Michael Mann, saying the sites’ musings about the accuracy of Mann’s research may not be protected by the First Amendment.

Mann had sued the outlets in 2012, claiming they published defamatory articles accusing him of academic fraud and comparing him to a convicted child molester, former Penn State assistant football coach Jerry Sandusky. Specifically, Mann alleged that CEI published — and then National Review republished — an article calling Mann “the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science that could have dire economic consequences for the nation and planet.”

Judge Frederick H. Weisberg on Thursday ruled that while “opinions and rhetorical hyperbole” are protected speech under the First Amendment, accusing a climate scientist of lying about his seemingly factual data is serious enough to warrant defamation claims.

“The allegedly defamatory aspect of this sentence is the statement that plaintiff ‘molested and tortured data,’ not the rhetorically hyperbolic comparison to convicted child molester Jerry Sandusky,” Judge Weisberg wrote.

In my opinion, the statements at issue in this lawsuit constitute defamation.

Photo credit: A Hypocrite and Slanderer by Franz Xaver Messerschmidt [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons.