Group libel- what is fact and what is opinion

[Sean Wilson]

... I have not had time to read all these mails. Interesting discussion, though (what I have seen). My two cents about something (apologies if it is not germane):   
 ... This appears to be a language game. There are two ideas being sent in and out of a forced dichotomy that is imposed by the labels "fact" or "opinion." The two concepts are empiricism and cogency. Whether a group of people with the label "Jews" did or did not kill someone is indeed a "factual assertion" if that phrase simply means an empirical question. All empirical questions are factual assertions. But empirical questions have a varying degree of cogency. Some are quite true or false; others are quite speculative. Therefore, one can have an opinion about the facts. One cannot have an opinion about something that is certain. Opinion by its very nature involves speculation of some sort.
 The ability to speculate with thought must be protected, even if it is speculation about "facts." However, if something is both empirically known AND certain, it would be libel to then recklessly attribute falsity to the matter at another's expense.
 So with respect to the statement "jews killed jesus," one must ask: does this purport to attribute falsity to something empirically certain, or does it purport to advocate (foolishly) how one should feel about a general set of historical events.
 (Personally I think these distinctions are useless. What the sentence really "says" is "I hate you," which should continue to be protected so long as it is: (a) merely abstract (and hence an ideology); and (b) not an assault or fighting words)
 Regards.
 Dr. Sean Wilson, Esq. 
Penn State University
Website: http://ludwig.squarespace.com/home/
Email discussion group:  http://groups.yahoo.com/group/TheLudwigGroup 
SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/



----- Original Message ----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: conlawprof at lists.ucla.edu
Sent: Wednesday, March 7, 2007 7:02:51 PM
Subject: RE: Group libel- what is fact and what is opinion


Well, note what *is* clearly opinion about "all Jews are
Christ-Killers."  The defamatory portion, "Jews are morally responsible
for Christ's death," is opinion.  The view that Jews at the time were
morally responsible, on which the defamatory portion, is opinion.  

    The one item that might be characterized as fact is the premise
underlying Jews' moral responsibility -- the theory that Jewish leaders
were involved in Christ's death, or that the Jewish crowd could have
saved him and didn't.  (Cf. John 19:12:  "And from thenceforth Pilate
sought to release him: but the Jews cried out, saying, If thou let this
man go, thou art not Caesar's friend: whosoever maketh himself a king
speaketh against Caesar.")  This item is not even defamatory of
modern-day Jews, since it's an allegation of the conduct of others 2000
years ago.  But it's not even clear to me that claims about such events
2000 years ago can be said to be claims of fact; given the
inaccessibility of the facts to modern factfinding, they seem to be
opinion, just as claims about how the universe was created (including
purely physical claims) are opinion.  There is an underlying fact about
what happened; but assertions about it must, I think, be understood as
opinion.

    In any case, it is not the case, I think, that "whether 'christ
killers' is a claim of fact or not is a question of fact," nor is it
"far from constitutional law":  It is a question of how the statement is
characterized; clearly much of the assertion, including its defamatory
portions, is opinion, and the one component that is not clearly fact is
still, I think, likely a statement of opinion about who said what 2000
years ago.  Nor is it correct to say "I don't see how calling Jews
'Christ killers' *isn't* a statement of fact!  It is a factual claim
about who is responsible for the death of  Jesus, not a 'mere' opinion."
Calling Jews "Christ killers" is mostly a statement of opinion about
moral responsibility, with a possible grain of (not itself defamatory)
factual assertion -- though I think more properly considered opinion
about an unknowable set of facts -- about what some people said 2000
years ago.

    Eugene
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