The Basis of an Opinion

Here's an interesting recent decision, Lassiter v. Lassiter (the 6th Circuit has chosen not to publish the case, so no citation will be forthcoming here). The core of the dispute lies in a book written and self-published by Sharlene Lassiter, a professor of law at Salmon P. Chase College of Law at Northern Kentucky University. Ms. Lassiter recounts the alleged tribulations of her marriage to Christo Lassiter. also a professor of law (but at the University of Cincinnati College of Law).

The allegations that led to a defamation action were of "ongoing mental cruelty and abuse by her husband throughout the marriage," that her husband "physically assaulted her on two occasions," and that he "committed adultery during the marriage." The court lays out a number of quotes from the book which set forth these allegations, for example Ms. Lassiter's comments that "My husband exploded with rage. He grabbed me and dragged me down two and a half flights of steps, leaving me in a heap on the floor," and that "For the next two days, I repeatedly asked God whether my husband was committing adultery, as I admitted that I might not have heard the Lord clearly. Each time the answer was the same. Yes, Sharlene, he is."

The trial court found that Ms. Lassiter was not a "media defendant" despite the self-publication of her book, described as a "single publication of very limited circulation" and that Mr. Lassiter was not a "public figure." No First Amendment protections were implicated, but the court nevertheless found a lack of defamation, and the appellate court agreed. Why?

With regard to the alleged physical abuse (of which two specific instances were reported), the court simply found Ms. Lassiter to be credible. That is, they felt that it was as likely as not that she was telling the truth. As for the adultery, this would be defamation per se if it was defamatory at all. Ms. Lassiter had no direct evidence for it, so she was basically expressing her opinion that it had happened. An unanchored expression of opinion - that someone is "cheap" or "a jerk" does not render the utterer susceptible to a defamation charge. However, an expression of opinion that a person has done a specific act - that someone is unfaithful to his spouse, for example - may reap such liability.

The court quotes the restatement of torts: "A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis of the opinion." In short, if I say that my opinion about someone is that they are an unfaithful spouse, the listener may presume that I know something about that person that leads me to think this. In this case, however, the trial court found "that defendant arrived at the conclusion that the plaintiff had committed adultery on the basis of rumor and circumstantial evidence which was persuasive to her. The facts on which she based the conclusion were disclosed in the book." Emphasis in the original. In other words, there is no presumption about what Ms. Lassiter might know - she set out exactly what she did know. It might or might not have been enough to persuade the next person, but there is no implication that she possesses hidden knowledge that would prove the claim.

This is certainly a sound principle, since people ought to be able to express opinions if they have a reason to believe the truth of them, but such reasons should be available for the public to scrutinize, lest more substantial evidence be imagined than is known to the speaker. It is interesting, however, that one item of evidence which weighed on Ms. Lassiter's certainty was the result of her prayers to God - and God's purported answers. Since the origin of thought, people have claimed to have received communications from higher powers, and it often seems that these communications have an uncanny knack for confirming what the receiver believes (or would like to believe) is the truth. It would be an odd legal world if any person could make a potentially defamatory statement of opinion against another, and be relieved of liability by asserting that the whole basis of this opinion was that "God said so."