Talk:Fair comment

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[edit] Actual Malice article

Mr. Berlet nice to see your good work again.

You do recognice that the changes in the article suddenly include actual maice? You do recognice that it is impossible for me to verfiy your source?

Please find a source that is available to the whole wikipedia public. I would value it greatly.

Please understand that there is a wikipedia article called actual malice. I doubt it is nessary to include both definition in one article. Unless of course one wants to advance his own agenda which i am sure nobody really intends.

Otherwise I value your input very much. Thank you for the changes you undoubtedly intend to do now.

--Zirkon 21:44, 29 August 2005 (UTC)

[edit] Interesting quotation

This is a quote from this website: http://www.bbc.co.uk/dna/hub/A656796

"The term 'fair comment' gives the impression that the comments have to be 'fair', but in fact, all that is required is that the opinion is honestly held."

And this was my sentance: "A legal case in which the plaintiff looses against the defendend on reasons of "fair comment" does therefore not mean that the comment issued by the defendant was justified or fair, but that the plaintiff could not prove the bad intentions of the defendant conclusively."

Yes I see differences... Your comments Mr. Berlet?

Zirkon, could you state your position clearly, please, rather than trying to engage in rhetorical interrogation? Also, the talk page becomes hard to read with so much space between your sentences. I'm also confused as to how you can use a source on British libel law for a discussion on the LaRouche situation.SlimVirgin (talk) 22:48, August 29, 2005 (UTC)


I find it remarkable that you call this rhetorical interogation. And I am stiil waiting for comments from Mr. Berlet. Comments which are sorely needed for he changed the relevant part of the paragraph.
By the way I did not realise that it was you who added the canada part. Therefore i have to ask you too if you could come up with a legal source on the internet - since it is imposible for the wider audience to access this book. Thank you for your valuble input SlimVirgin. Concerning your confusion about the use of an english article: I believe in question was the possibility to misunderstand the word "fair" as a qualifier in this legal term which is similarly used in the U.K.. As always i value your input but since it was Mr. Berlet who changed the paragraph it is him i should be explaining this to - after he has had a chance to comment.

Following a fruitfull internet search i was able to find a similiar sentence that comes from a USA source.

This is the source that resembles the British source: http://www.lawyers-media.com/guide/subs.htm...

"The word "fair" is inappropriate, because the comment or opinion could be exaggerated or prejudiced provided it is honestly held."...

This is my original source upon which i largely based my article. [1] ... "a statement of opinion (no matter how ludicrous) based on facts which are correctly stated and which does not allege dishonorable motives on the part of the target of the comment."...

And now again in retrospect my sentence: ... "A legal case in which the plaintiff looses against the defendend on reasons of "fair comment" does therefore not mean that the comment issued by the defendant was justified or fair, but that the plaintiff could not prove the bad intentions of the defendant conclusively."...

Yes I see your point we could exchange "bad intentions" with actual malice.

Considering the meaning of "fair comment" I believe that this sentence has its value and should be returned into the article "fair comment". It does after all put the suggestive "fair" into the proper context. This is something that is nessesary following the demonstratable likeliness to be misslead by this legal term as a layman. How do you see this matter Mr. Berlet? --Zirkon 07:26, 30 August 2005 (UTC)

I have rewritten the explanation of fair comment in the U.S. once again to make matters more clear. In most states, the "fair comment" defense requires a factual basis. "The privilege of 'fair comment' for expressions of opinion depends on the truth of the facts upon which the comment is based" according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan. This is based on Alabama law. I do not have the laws of New York state handy, but since you are attempting to write an apologia for [Political views of Lyndon LaRouche|Lyndon LaRouche] on another page based on a New York lawsuit, you would first have to show that under New York defamation law, "fair comment" does NOT require a factal basis. I do not know if it does or does not. In any case, the judge in the LaRouche case who ruled it was not defamation to call LaRouche anti-Semitic is clearly indicating the defendants introduced sufficient evidence to butress the factual basis of their opinion that LaRouche was an anti-Semite. --Cberlet 13:09, 30 August 2005 (UTC)

[edit] Analysis of All "Fair Comment" Wikipedia Articles so far

[edit] Why I do this:

“I note that Zirkon created a Wikipedia page on fair comment that mischaracterised the actual complicated legal meaning of the term in a way that supports the LaRouchite line on the New York defamation case.” Cberlet 20:52, 29 August 2005 (UTC) (emphasis added)

Following this statement it is nessary for me to show the reader that my own work (the copyedited version of Willmcw) does in fact echo the understanding of fair comment from the external source. '


[edit] First Version of the wikipedia article Fair comment:

Fair comment is a legal term for a defense used in defamation cases. It holds that when a public figure is defamed, even with an absurd or false accusation, they must prove that the opinion was stated maliciously (with hate, dislike, intent and/or desire to harm) in order for defamation to have occured.

A legal case in which the plaintiff looses against the defendend on reasons of "fair comment" does therefore not mean that the comment issued by the defendant was justified or fair, but that the plaintiff could not prove the bad intentions of the defendant conclusively.

While this phrase was in use before it became a ruling of the U.S. Supreme Court in the case New York Times v. Sullivan in 1964.

External Links dictionary law.com



[edit] Source article version:

Following the Link: dictionary law.com one can find the source article upon which the findings of the first Wikipedia article were based. I refrain from directly posting the whole article since I am not certain about the copyright issues in this context.


[edit] Second wikipedia article version of "Fair comment" from Cberlet (with additons by Slimvirgin)

Fair comment is a legal term for a common law defense in defamation cases (libel or slander).


United States In the United States, the traditonal privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures. Fair comment is defined as a "common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff."[1].

The defense of "fair comment" in the U.S. since 1964 has largely been replaced by the ruling in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), (U.S. Supreme Court). This case relied on the issue of actual malice, which involves the defendant making a statement known at the time to be false, or which was made with a "reckless disregard" of whether the statement was true or false. If "actual malice" cannot be shown, the defense of "fair comment" is then superceded by the broader protection of the failure by the plaintiff to show "actual malice."

Each state writes its own laws of defamation, and the laws and previously decided precedants in each state vary. In many states, (including Alabama where the case of Times v. Sullivan originated), the "fair comment" defense requires that the "privilege of 'fair comment' for expressions of opinion depends on the truth of the facts upon which the comment is based" according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan.[2]

It is still technically possible to rely only on the common law defense of "fair comment," but since there is no federal law of defamation, the Times v. Sullivan case, decided by the U.S. Supreme Court, extends over state laws as a powerful legal precedant, and it provides more legal protection to a defendant, since under the concept of "actual malice," the absolute truth of the assertion need not be demonstrated.

For more on U.S. defamation laws, see: Media Libel - University of Houston


Canada

In Canada, for something to constitute fair comment, the comment must be on a matter of public interest (excluding gossip), a fair and honest expression of the author's opinion, based on known and provable facts, and with no actual malice underlying it. The cardinal test of whether a statement is fair comment is whether the author honestly believed the opinion, and whether it could be drawn from the known facts. It should also be obvious that the comment is an opinion and is not purporting to be a fact (Crawford 2002, pp. 48-52). (See Chernesky v. Armadale Publications Ltd. [1978] 6 W.W.R. 618 (S.C.C.))


References dictionary law.com Media Libel - University of Houston Opinion: "New York Times Co. v. Sullivan Crawford, Michael G. The Journalist's Legal Guide, Carswell, 2002


[edit] Comparison and Analysis

To make a comparison and an analysis of the 3 Versions (1. wikipedia article, wikipeda cited source article, 2. wikipedia article) I have made a sentence by sentence core statement analysis of every version. The letters in each Version are followed by a descriptive headline for the sentence that is beeing analized. Under the sentence Headline is the quote of the analized sentence. The core statements of the sentence are numbered for reference.

[edit] Ver 1 (= 1. Wikipedia article)

Core statements of Version 1

[edit] A) Fair comment is a legal term.

“Fair comment is a legal term for a defense used in defamation cases.”

[edit] B) Fair comment definition:

”It holds that when a public figure is defamed, even with an absurd or false accusation, they must prove that the opinion was stated maliciously (with hate, dislike, intent and/or desire to harm) in order for defamation to have occured.”

  1. -This includes the points that malicouse intend has to be proofed. (This is commonly done in the following way: plaintive has to proofe that the defendend used the defaming words knowing that they were wrong (i.e. false, baseless etc.).)
  2. -By inversion this definiton says that “fair comment” does not qualify an opinion held by the defendend as true or not true. (As it is only nessary for the defendent to show that he did not act with malicouse intentions – As it is only nessary for the plaintiff to show that the defendend did act with malicouse intentions for the defense of fair comment to fail.).

[edit] C) Explanation of definiton:

“A legal case in which the plaintiff looses against the defendend on reasons of "fair comment" does therefore not mean that the comment issued by the defendant was justified or fair, but that the plaintiff could not prove the bad intentions of the defendant conclusively.”

  1. -Explanation that the legal term fair comment does not a qualify a statement. In essence again the definition of “fair comment” but inverted. Or in other words the definition of something shows what it is, but in defining what something is you also define what something – implicitly - is not.


[edit] Ver 2 (= Source article of 1. wikipedia article)

Core statements of version 2

[edit] A) “fair comment” definition:

“a statement of opinion (no matter how ludicrous) based on facts which are correctly stated and which does not allege dishonorable motives on the part of the target of the comment.”

  1. -F.C. makes no qualifing statement about the opinion.
  2. -F.C. can only be used when the facts are correctly stated.
  3. -Dishonorable motives are not what led the statement of opinion maker.

[edit] B) Explanation of definition:

“The U.S. Supreme Court has ruled that to protect free speech, statements made about a public person (politician, officeholder, movie star, author, etc.), even though untrue and harmful, are fair comment unless the victim can prove the opinions were stated maliciously-with hate, dislike, intent and/or desire to harm.”

  1. - F.C. in its current form is based on a US S.C. decision.
  2. - F.C. is there to protect free speech.
  3. - F.C. is only usable on a public person
  4. - F.C. does not evaluate (qualify) the statement made nor the effects thay may have
  5. - F.C. the victim (public person) has to be unable to prove the bad intentions against the victim.

[edit] C) limits of Fair Comment:

Thus, a public figure may not sue for defamation based on published opinions or alleged information which would be the basis of a lawsuit if said or published about a private person not worthy of opinion or comment.

  1. - F.C. as a defense can only be used against a public figure.
  2. - F.C. a private person could sue for defamation against an opinion or comment.

[edit] D) Used as a defense:

This is a crucial defense against libel suits put up by members of the media.

  1. - F.C. It is a legal defense mostly used by the media.


[edit] Ver 3 (= 2. Wikipedia article (version of Cberlet))

Core statements of version 3

[edit] A) Single sentence definiton

“Fair comment is a legal term for a common law defense in defamation case.”

  1. - F.C. is a legal term.

[edit] B) Lead in:

“In the United States, the traditonal privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures.”

  1. -F.C. as used in the U.S.
  2. -F.C. is a traditional privilege
  3. -F.C. is a protection for opinions spoken or pulished whatever those opinions may be
  4. -F.C. is usable only as a defense against public figures

[edit] C) Definition

“Fair comment is defined as a "common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff."[1].”

  1. -F.C. is a common law defense
  2. -F.C. helps to guarantee the freedom of the press to express statements
  3. -F.C. is only usable on matters of public interest.
  4. -F.C. cannot be used if the statements were used with bad intentions against the plaintiff

[edit] D) History of the defense

“The defense of "fair comment" in the U.S. since 1964 has largely been replaced by the ruling in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), (U.S. Supreme Court).”

  1. -the way F.C.was used has largely been replaced by a US SC ruling since 1964.

[edit] E) Specifics of the historical case: actual malice

“This case relied on the issue of actual malice, which involves the defendant making a statement known at the time to be false, or which was made with a "reckless disregard" of whether the statement was true or false. “

  1. -Defintion of actual malice

[edit] F) Connection between actual malice and the “fair comment” defense

“If "actual malice" cannot be shown, the defense of "fair comment" is then superceded by the broader protection of the failure by the plaintiff to show "actual malice." ”

  1. -actual malice must be proven.
  2. -failure to show actual malice means the defense of “fair comment” stands regardless of what the actual (local) definition of “fair comment” is.

[edit] G) About the laws of defamation

“Each state writes its own laws of defamation, and the laws and previously decided precedants in each state vary. “

  1. -defamation law is state law.

[edit] H) About how the “fair comment” defense is implemented in many states

“In many states, (including Alabama where the case of Times v. Sullivan originated), the "fair comment" defense requires that the "privilege of 'fair comment' for expressions of opinion depends on the truth of the facts upon which the comment is based" according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan.[2]

  1. -F.C. must be based on the truth of the facts upon which the comment is based.
  2. -That F.C. must be based on true facts is a requirement in many states. Inversion: If the facts upon which a voiced published oppinon (whatever the oppinion may be) is based are not true then F.C. can not be used.
  3. -F.C. must be based on true facts in Alabama.
  4. -The statements of this sentence are based on U.S.S.C. Justice Brennan.
  5. -The statements are based on the written form of the U.S.S.C. ruling.

[edit] I)Practial use of “fair comment” following the introduction of “actual malice”

“It is still technically possible to rely only on the common law defense of "fair comment," but since there is no federal law of defamation, the Times v. Sullivan case, decided by the U.S. Supreme Court, extends over state laws as a powerful legal precedant, and it provides more legal protection to a defendant, since under the concept of "actual malice," the absolute truth of the assertion need not be demonstrated.”

  1. F.C. is a defense that can technically rely only on the common law defense but the absolute truth of the comment (assertion) has to be demonstrated.
  2. F.C. as State law is now normaly overshadowed by the U.S.S.C precedant case ruling.
  3. ”Actual malice” is a concept
  4. The absolute truth of the comment (assertion) of the defendant does not have to be demonstrated since the U.S.S.C. precedent ruling to use “fair comment”.


[edit] Following this sentance by sentance analysis I make these observations

  1. There is no apparant mischaracterisation of “Fair Comment” in version 1 compared to external source (version 2).
  2. All three versions do have deficits. It should be possible to construct a new version that includes the best of all three versions.
  3. There is a logical break within the version of Mr. Berlet:

Statement I)1 and its inversion I)4 is not compatible to the statements of B)3 and C)4

Why?

a)

“Assertion” is not defined in this context explicidly.

b)

If by implication “assertion” is actually another word for comment of the defendend than it is - following I)1 and I)4 - nessesary to proofe under the traditional understanding of F.C. that the comment is true. B)3 explains that comments are protected whatever they may be. Therefore for the traditional defense of F.C. to work one must proofe that the comment the defendend made is true. But comments are protected whatever they may be – even if not true.

c)

C)4 states therefore that true statements/comments can not be used when they were made with bad intentions against the plaintiff.


[edit] Conclusions

  1. The allegations that I mischaracterised the definition of "Fair comment" to further an agenda are false.
  2. Mr. Berlet makes crutial logical errors in his wikipedia article version of "fair comment".
  3. If Mr. Berlet does not change the last paragraph of his 3. Version this should be done for him.
  4. It is not possible to know if Mr. Berlet made those errors on purpose. But it is certain that he expressed that his Point of View was in danger. As can be demonstrated by the fact that I was constantly accused of rewriting history or of trying to fabricate apologia. Further investigations will reveal that he constantly evaded questions concerning his views upon the topic.
    • Zirkon: here is what I posted on the fair comment page that you keep trying to rewrite to make it seem that LaRouche is not a notorious anti-Semite--Cberlet 13:13, 30 August 2005 (UTC)
    • Please stop trying to rewrite the facts of the laws of defamation to apologize for LaRouche's antisemitism.--Cberlet 00:41, 6 September 2005 (UTC)
    • but since you are attempting to write an apologia for [Political views of Lyndon LaRouche|Lyndon LaRouche] on another page--Cberlet 13:13, 30 August 2005 (UTC)
    • Ridiculous waste of time. Pedantic. Pointless. Attempt to rewrite history. You asked for my comments. I have answered honestly--Cberlet 19:49, 29 August 2005 (UTC)
    • Stop this ridiculous nit-picking.--Cberlet 15:10, 29 August 2005 (UTC)
    • The court ruling is a matter of public record. Attempts to craft apologia for the long track recond of LaRouche's antisemitism are POV. This page threats LaRouche fairly.--Cberlet 02:45, 29 August 2005 (UTC)
    • Please stop trying to invent a way to explain a court decision when none is needed. --Cberlet 17:44, 28 August 2005 (UTC)
    • Wow! I am very sorry, but much of --Zirkon's text appears to me to be pseudo-intellectual gibberish.Cberlet 13:22, 24 October 2005 (UTC)
    • It still seems to me to be a lot of verbiage that results in the same situation that existed before: fancy footwork by a POV warrior out to defend LaRouche from the obvious and well-documented published claim that LaRouche is an antisemite. Cberlet 13:22, 24 October 2005 (UTC)
    • We do not need to misrepresent the law of defamation to arrive at that conclusion--Cberlet 13:22, 24 October 2005 (UTC)
  5. Unfortunatedly I am a little guilty of pressing on with some questions that were not at all helpfull in defusing or furthering the debate. The actual result is still fully the responsebility of Mr. Berlet as he could have always answerd or deflected in a meaningfull manner...
  6. I appologise for making the "fair comment" wikipedia article as a way to introduce the actual meaning of "Fair Comment" into a debate in another Wikipedia article. I thought at the time it would be a nice byproduct of the argument at hand and a good way to circumvent the stonewalling of certain editors. In doing so I have effectively politisied the topic of this article. Any future editor should be aware of this...
  7. The findings in this post are in need of a peer review prozess. I will send requests for help to the noticeboards.

--Zirkon 20:27, 28 October 2005 (UTC)

[edit] Comment

I was asked to comment on this. I know little or nothing about it, but would start researching it by looking in an introductory legal textbook on Defamation or here's some books I found doing a keyword search:

  • The Making of the Modern Law of Defamation by Mitchell, Paul, 1951- ISBN 1841133043 Publisher: Hart Publishing Publish Date: 19 August, 2005 Binding: HARDCOVER
  • Libel Law, Political Criticism, and Defamation of Public Figures: the United States, Europe, and Australia by Amponsah, Peter Nkrumah, 1961- ISBN 1593320116 Publisher: LFB Scholarly Publishing Publish Date: February, 2004 Binding: Library Binding
  • The Law of Defamation, Privacy, Publicity, and Moral Rights: Cases and Materials on Protection of Personality Interests by Sheldon W. Halpern ISBN 0870843435 Publisher: Anderson Pub Co Publish Date: May, 1988 Binding: Paperback

I'm sure those are not the only books and probably not the best one. Simply a suggestion to consult a few reputable sources. I am the distinct impression at least one editor is trying to work from conclusion to source rather then source to conclusion. Another note, if you are actually arguing a case, you would probably brief both defenses although that would depend on many factors. Fred Bauder 01:46, 29 October 2005 (UTC)

[edit] Another Comment

I think that Zirkon is trying to rewrite this page in order to go to one of the Lyndon LaRouche pages and write an apologia for the notorious antisemitic conspiracy theories of LaRouche, who a court ruled could be called an antisemite as "fair comment." This is not a proper process for Wikipedia.--Cberlet 01:54, 29 October 2005 (UTC)

Hello Mr. Berlet nice to see your comment. Mr. Berlet please note that:

  1. I used your version of the article of "fair comment" in my statement on the talkpage of the website you are refering to. To make my point I do not have to change the meaning of "fair comment".
  2. If you do read closely you will find logical inconsistencys in the last paragraph of your "fair comment" version.
  3. Please do not try to devine my intentions as this is a form of an ad hominem argument.
  4. Please respond to the observations and conclusions I have made.
  5. Even though I know this will annoy you - let me thank you for introducing the historical perspective into the "fair comment" article. It still needs some work as there are later U.S. Supreme Court decisions that are also relevant for todays use of "fair comment"

--Zirkon 07:34, 29 October 2005 (UTC)

[edit] My take

IANAL, which means I'm also not a "peer."

First off, from where I sit as a native speaker of American English, the word "fair" in "fair comment," does not refer to whether or not a comment was fair with respect to the subject, only to whether it was fair for the speaker to be commenting. For example, making a public statement about a public figure would be "fair" (e. g. Saying "The mayor is a pompous fool!" on television), while a public statement about a private individual would be "unfair;" saying "My next door neighbor is a pompous fool!" on television wouldn't be "fair" unless your neighbor is able to also come on television to defend herself.

Common usage of the phrase "fair use" in language may or may not have an effect on how a court interprets it, however.

Secondly, don't get too hung up on facts, at least in the United States. A statement of facts is protected speech at least by statute (if not by the state consitution outright) in just about every state. Being a part of common law, fair comment only comes into play when speech isn't explicitly protected by statute (as facts are), and so it would only really apply to statements of either fictions (which may or may not be a deliberate lie) or of opinion.

From the looks of things, facts only come into play as part of building up the "preponderance of evidence" that civil suits are supposed to hinge on (i. e. deciding whether there was actual malice). In my previous example, the trial would be a contest between my ability to show why it is reasonable for me to believe the mayor is a pompous fool, while the mayor would try to demonstrate why such a view would be unreasonable (and, therefore, probably said with malice). It is not necessarily a matter of whether it is reasonable for anybody to hold the views I stated, only that it is reasonable for me to hold the view with the information (facts or fictions) that I have available to me.

If I received a letter on the mayor's stationery, the content of which led me to believe that the mayor was a pompous fool, it would be fair for me to state my opinion as such unless I actually believe that the letter was a forgery. The letter may have been a falsehood, but if I believe it and can present a preponderance of evidence that I believed it ("Look at the seal and the signature!"), it is fair for me to make a comment on what I thought of that letter.

The mayor, being a public figure and naturally having the attention of the press, would be able to defend his character in the court of public opinion by pointing out that the letter was a forgery, making fair comments of his own, probably including "David was a pompous fool to believe this letter was genuine!"

Finally, since there isn't supposed to be any original research in the articles, using the word "therefore" should be a red flag.

Once again, IANAL. David Iwancio 02:32, 29 October 2005 (UTC)

  • Nicely put. I am a lawyer, and could not have said it better.  BD2412 talk 13:26, 29 October 2005 (UTC)

[edit] I still have some problems with this sentence:

'"It is still technically possible to rely only on the common law defense of "fair comment," but since there is no federal law of defamation, the Times v. Sullivan case, decided by the U.S. Supreme Court, extends over state courts as a powerful legal precedant, and it provides more legal protection to a defendant, since under the concept of "actual malice," the absolute truth of the assertion need not be demonstrated."'

  1. As I said before "assertion" is not expicitly defined.
  2. Where does the concept/idea of absolute truth come from?
  3. What does "absolute truth of the assertion" mean?
  4. Did I had to demonstrate the absolute truth of my assertions (oppinions?/comments?) before the U.S. Supreme Court decision on "fair comment"?
  5. Does this mean that absolutly true assertions stated with maliciouse intend are defamations?

--Zirkon 14:43, 31 October 2005 (UTC)

In libel and slander cases, truth is an absolute defence, no matter what. Prior to the emergence of the actual malice standard, any flasehood in a statement could be used as a basis for damiges in some cases, and the falshood did not have to be malicious. A fair comment defense was most often limited to accurately reproting the statemetns and opnions of others, and to reasonable expressions of opnion based on generally true statements of fact. For example, "fair comment" was cited as a defense in a case where a book reviewer made very negative statemetns about a book and about the quality of the work of the author, but did not protect unrelated negative ststemetns about the author. DES (talk) 16:30, 31 October 2005 (UTC)

  1. The statements before the court over which the plaintiff is suing
  2. Historically, dunno. However, it's probably something mentioned in your state's declaration of rights.
  3. Verifiable facts, as opposed to a statement of opinion (such as an interpretation of facts).
  4. Absolute truth is generally protected by statutes. "Fair comment" doesn't come into play unless a statement is made that isn't absolutely true (such as a statement of opinion). The question becomes, then, not whether what the defendant states is true, but whether the defendant truly believes what they stated.
  5. No, they are not. Facts can be repeated with or without malice, as facts are protected by legislative acts (which trumps common law). The "actual malice" standard is only applied to either statements of opinions or statements of fiction (which may or may not be deliberate lies).

Guppy313 19:05, 31 October 2005 (UTC)

You are incorrect about that last point. Rad our article on Actual malice and the articles it links to. The "actual malice" standard was first propounded by the SCOTUS in a case where it had been alleged that factual errors had been made in a published statement, and testamony did appear to establish that the statements published were not 100% accurate. Whether the errors were such as to defame the public offical who sued was debated but the state trial court and appeals court held that they were, and awarded a damage verdict of $500,000.00 against the NY Times. (The fact that the person who sued ws not even mentioned by name, that some of the errors concerned the number of time MLK had been arrested, and which protest song was sung on a particualr occasion, and the like, was not considered significant by the state count.) In any case, the "actual malice" standard protects agaisnt suits over the publication of factual errors, when made in good faith. It doesn't really deal much with opnion, since it deals with "false statements" and opnions are neither true nor false, rather they are or are not honestly held. DES (talk) 21:42, 31 October 2005 (UTC)


I believe it could be possible to formulate this in a way that does not raise so many questionsmarks... (at least for me)

Like this:


It is still technically possible to rely on the common law defense of "fair comment" with out refering to the "actual malice" standard set by the scotus but that would only be the practical when the defendend is absolutly sure that the facts upon which the opinion of the defendend was based were true. If those facts are not absolutely true (and the the actual malice standard is not taken into account) than the defendend could be sued by the plaintive for damages.
The actual malice standard was set by the supream court in the case Times v. Sullivan. This case acts as a powerful precedent over state courts.
"Actual malice" lifts the nessessity of being faultless in the reporting of the facts from the defendend. Instead it raises the question if factual errors were made in good faith. "Actual malice" means then that the defendend intentionaly stated false facts. It is assumed that if the facts were stated intentionaly falsely that any opinions that were made based upon those facts were done with malice. If the plaintive can prove malice on the side of the defendend the common law defense of "fair comment" is broken.


Any cosponsors for this bill ? ;)

Even better would be any suggestions for improvement!


Simple test if the questions can still be asked with the proposed changes:

  1. As I said before "assertion" is not expicitly defined.
    • This problem does not occure now - assertion is not used.
  2. Where does the concept/idea of absolute truth come from?
    • The idea of absolute truth is put into a different perspective.
      • before: "...under the concept of "actual malice," the absolute truth of the assertion need not be demonstrated."
      • now: "If those facts are not absolutely true (and the the actual malice standard is not taken into account) than the defendend could be sued by the plaintive for damages."
  3. What does "absolute truth of the assertion" mean?
    • This question cannot be asked anymore.
  4. Did I had to demonstrate the absolute truth of my assertions (oppinions?/comments?) before the U.S. Supreme Court decision on "fair comment"?
    • Again this question is impossible to ask now.
  5. Does this mean that absolutly true assertions stated with maliciouse intend are defamations?
    • Since absolute truth is now attributed to the statement of facts this paradox solves itself.

--Zirkon 19:05, 1 November 2005 (UTC)

Here is a somewhat revised version:

It is still technically possible to rely on the common law defense of "fair comment" with out referring to the "actual malice" standard set by the Supreme Court of the United States (SCOTUS) but that would only be a likely course of action when the defendant is absolutly sure that the facts upon which the opinion of the defendant was based were true, or that any falsehoods are not defamatory. If those facts are not absolutely true (and the actual malice standard is not taken into account) than the defendant could be sued by the plaintiff for damages, although the plaintiff would need to establish to the satisfaction of a jury that the statements were defamatory, and that the defandant published or made them.
The actual malice standard was set by the U.S. Supreme Court in the case New York Times v. Sullivan. This case is a powerful precedent which has a major impact on defamation cases in the state courts.
"Actual malice" removes the requirement of being faultless in the reporting of the facts by the defendant. (Under the law prior to this decision any false statement could, if found to be defamatory, be grounds for damages.) Instead it raises the question of whether factual errors were made in good faith. "Actual malice" means then that the defendant intentionaly made false statements of alleged facts, or recklessly failed to verify alleged facts when any reasoanble person would have checked. If it is held that the defendant made intentionally false statements of fact, that will form a powerful argument that any statements of opinion based upon those facts were made with malice. If the plaintiff can prove malice on the part of the defendant the common law defense of "fair comment" is defeated.
The "actual malice" standard only applies when the statement is about a "public official", or a "public figure", or in some cases about a "matter of public interest". When it does apply it offers so much more protection to the defandant that it would be very rare for the defendant to assert "fair comment" instead. When the allegedly defamatory statement is about a purely private person, who is not a "public figure" in any way, the defandant may need to resort to the defence of "fair comment" instead.
Also, the "actual malice" standard is specifically part of United States law, derived from the U.S. Constitution. The defense of "fair comment" is a part of the older common law, and so might apply in non-U.S. jurisdictions which share the common-law tradition, such as the United Kingdom and the British Commonwealth.

How is that? DES (talk) 19:39, 1 November 2005 (UTC)


This is a very much improved version of my proposal. I like the new additions concerning the common law tradition and the use of fair comment on private persons and the improved writing of course. All this makes it a much more usefull Wikipedia article for the common reader. Maybe we should do something about the abreviation "scotus" - make it a link or write it out on the first occurance and put the abreviation into brackets...
But those are details, I believe this could go live as it is now (Btw. already fixed some typos I saw - I hope you don't mind).
I like it very much and it got my vote to crawl out of the sandbox right away.
Thank you!
--Zirkon 21:04, 1 November 2005 (UTC)
Thanks. I made a few further touch ups. DES (talk) 21:31, 1 November 2005 (UTC)


I Honestly believe that this could go live now but...

Lets check how this totally rewriten and expanded paragraph works with the rest of the article :

In the United States, the traditonal privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures. Fair comment is defined as a "common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff."[1].
The defense of "fair comment" in the U.S. since 1964 has largely been replaced by the ruling in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), (U.S. Supreme Court). This case relied on the issue of actual malice, which involves the defendant making a statement known at the time to be false, or which was made with a "reckless disregard" of whether the statement was true or false. If "actual malice" cannot be shown, the defense of "fair comment" is then superceded by the broader protection of the failure by the plaintiff to show "actual malice."
Each state writes its own laws of defamation, and the laws and previously decided precedants in each state vary. In many states, (including Alabama where the case of Times v. Sullivan originated), the "fair comment" defense requires that the "privilege of 'fair comment' for expressions of opinion depends on the truth of the facts upon which the comment is based" according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan.[2]
It is still technically possible to rely on the common law defense of "fair comment" with out referring to the "actual malice" standard set by the Supreme Court of the United States (SCOTUS) but that would only be a likely course of action when the defendant is absolutly sure that the facts upon which the opinion of the defendant was based were true, or that any falsehoods are not defamatory. If those facts are not absolutely true (and the actual malice standard is not taken into account) than the defendant could be sued by the plaintiff for damages, although the plaintiff would need to establish to the satisfaction of a jury that the statements were defamatory, and that the defandant published or made them.
The actual malice standard was set by the U.S. Supreme Court in the case New York Times v. Sullivan. This case is a powerful precedent which has a major impact on defamation cases in the state courts.
"Actual malice" removes the requirement of being faultless in the reporting of the facts by the defendant. (Under the law prior to this decision any false statement could, if found to be defamatory, be grounds for damages.) Instead it raises the question of whether factual errors were made in good faith. "Actual malice" means then that the defendant intentionaly made false statements of alleged facts, or recklessly failed to verify alleged facts when any reasoanble person would have checked. If it is held that the defendant made intentionally false statements of fact, that will form a powerful argument that any statements of opinion based upon those facts were made with malice. If the plaintiff can prove malice on the part of the defendant the common law defense of "fair comment" is defeated.
The "actual malice" standard only applies when the statement is about a "public official", or a "public figure", or in some cases about a "matter of public interest". When it does apply it offers so much more protection to the defandant that it would be very rare for the defendant to assert "fair comment" instead. When the allegedly defamatory statement is about a purely private person, who is not a "public figure" in any way, the defandant may need to resort to the defence of "fair comment" instead.
Also, the "actual malice" standard is specifically part of United States law, derived from the U.S. Constitution. The defense of "fair comment" is a part of the older common law, and so might apply in non-U.S. jurisdictions which share the common-law tradition, such as the United Kingdom and the British Commonwealth.

Hm - at first glance I believe some structure could be usefull. Also we must decide if we define one term more than once in the article. Especially If we use subheadlines this should be considered as it can be usefull for quick reference by the reader to have repetitions of definitions (internal article links could also be a great idea).

So how about a quick and short definiton of Fair comment in the first paragraph - under subheadline "Definition".

Then we could go for the "historical developement" subheadline or we could go for the "legal use today" subheadline...

And the next question that goes beyond the scope of the article is of course: Is there already some kind of article structure with subheadlines for such constantly evolving legal terms? If there is not it could be useful to consider the development of such a structure. In the event of a new entry it would be easier to already have such a basic structure in place - also it would be possible to asses what is missing in this new entry - the downside could be endless copyediting...

Okay - unfortunatedly I will be away for something like 7 days... Starting today (wednesday).

So as I said it could go life now but there is always room for improvement... Thank you for your help with this paragraph and see you in a week.

--Zirkon 23:54, 1 November 2005 (UTC)


I have checked google on "fair comment". Since it prefers wikipedia over any other source I will put the improved version online now. Should there be any objections I am sure I will be able to work them out with the interested parties...

Zirkon 16:52, 7 January 2007 (UTC)

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