Abstract

Sitting at the nexus of unchanging constitutional rights, constantly evolving social norms, and tensions between federal and state justice systems, defamation law in the US is exceedingly complex. In this work, I focus on a single conceptual and practical problem amidst this network: the fact-opinion distinction. This distinction—developed largely as a result of US Supreme Court decisions _Gertz v. Robert Welch, Inc._ and _Milkovich v. Lorraine Journal Co._—states that, while opinions are protected under the First Amendment so long as they do not imply “provably false” information, facts, if false, may always be actionable in a lawsuit for defamation. Thus, the judicial decision of whether an allegedly defamatory statement is fact or opinion is influential in determining whether a claim may move forward. In spite of the significance of this distinction, legal precedent and academic literature shows that there are no generally agreed upon characteristics to organize statements into these two categories. Using the framework of Appraisal Analysis (Martin and White, The Language of Evaluation: Appraisal in English, Palgrave Macmillan, London 2005), I examine a corpus of previously adjudicated defamatory language to answer the question: _how does expression of stance differ between judicially-determined statements of opinion and fact in defamation cases?_ This analysis reveals that judicially-determined opinions express more markers of attitude and expanding engagement than their factual counterparts. Ultimately, I argue that this research may be directly applied to the analysis of allegedly defamatory language in the US, and, in being so applied, may play a role in adding robustness to existing analytical procedures regarding the distinction between fact and opinion in defamation law in the US.