Can You Speak Freely Online? Courtney Love, Defamation and the First Amendment

Opinion or Defamation?

A while back, news reports indicated that musician Courtney Love was stuck paying $430,000 plus interest to a designer about whom she had unkind words on MySpace and Twitter. That’s an expensive tweet. Ms. Love stated things such as that her designer was a “nasty lying hosebag,” “thief,” and other invective not suitable to be repeated here.  Wait a minute – isn’t there First Amendment protection for opinion expressed on the internet? Well, yes and no.

There is broad First Amendment protection for expression of opinion if it is clear that by giving your “opinion,” you are not basing it on undisclosed facts. Here are some examples of statements that were found to be constitutionally protected opinion:

– that a developer’s negotiating position was “blackmail”

– that investors would “sour on” a project in a “stock tip” column

– that a reporter’s story was “sloppy journalism

– that a loudspeaker system did not have “high accuracy”

– describing a fund’s ads as “lies, damn lies, and fund advertisements

– stating that the sale of living wills was a “scam”

– an accusation of “blatant mismanagement”

– that buyers of stock have been “duped” into a “scam”

Normally, the kind of hyperbole in which Ms. Love engaged is the kind of thing that would fall into this constitutionally protect opinion. Ms. Love’s problem was that her statements appeared to be based on undisclosed facts regarding her personal dealings with the designer. When the expression of opinion appears to be based on undisclosed facts, then it is moved from the realm of constitutionally-protected opinion, and the speaker may be liable if the implied facts are not true.

Also, the strong protection of opinion works best in areas of “public interest.” Not knowing all the facts, it is not clear whether Ms. Love’s beef with the designer involved issues that would have been of interest to the designer’s other customers or potential customers.

What Can We Learn From This?

The lesson here is that when you want to express an opinion about someone on the internet, or anywhere else, make it clear that you are stating all the facts on which your opinion is based. Use publicly available facts, such as links to the person’s own statements or other web sites. Also make sure you are speaking on an area of public interest. Having an attorney experienced in First Amendment issues review the communication before it goes out is always a good idea.

For more information on defamation and online reviews, check out our Sam the Answer podcast.

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation.  When he is not protecting free speech rights, he enjoys volunteering in his community and spending time with his family, especially his grandson, Jack. 

Ventola Law serves the Denver Metro area including Arvada, Aurora, Boulder, Brighton, Commerce City, Castle Rock, Golden, Lakewood, Littleton and Arapahoe, Adams, Douglas and Jefferson Counties.