JUST THE FACTS

“Just the facts, ma’am.”  Dragnet’s Joe Friday intoned the phrase with ritualistic habit going back to the 1950s radio show.  He would agree then that facts are facts, and opinions are opinions.  The former is a thing that exists or happened, the latter mere belief.

Joe may be dismayed, then, by those areas of law ranging from securities (where companies may not state inaccurate facts) to defamation (where one may not publish a damaging false fact about another) where courts are struggling with mixed statements – those that are part fact, part opinion.

It gets complicated because omitting a fact can be as actionable as stating one.  To use an example straight from the Supreme Court, “we believe our conduct is lawful” sounds like an opinion, but forgetting to divulge “even though our lawyers think it’s not” may make it a misstatement of fact, if by omission. And even if no lawyer was consulted, asserting a belief of legality may, alone, imply the fact that the speaker received legal advice to that effect.

In the defamation context, consider this statement.  One person, the speaker, says she thinks another person, the target, should be made to pay past-due taxes out of their own pocket – perhaps because of errors the target made on another’s behalf.  On the surface, it’s an opinion.  But it may easily be understood to include an implied statement of fact that the target did not or would not do so, so that, if they did in fact pay delinquent taxes out of their own pocket, they might have a case for defamation.

Defamation and other cases looking at peoples’ statements are tricky for a multitude of reasons.  A disciplined analysis of language parsing facts and opinions – the kind of work appellate attorneys might often engage in –will be a crucial part of the case.