As part of my work yesterday, I read a California appellate court case that discussed how the courts distinguish between libelous falsehoods and constitutionally protected opinions. A court looks at the totality of the circumstances—both the language of the statement and the context in which it was made. Whether it is an assertion of fact or a statement of opinion depends on how the average reader would interpret it. Statements made on blogs and Internet message boards often are seen as opinions, even if they might be regarded as factual assertions in another context.

For example, if a mainstream news organization published an article falsely stating that a company’s management had defrauded the shareholders, the article would be libelous. But if a news website published an accurate news story about a company’s financial performance, and then a disgruntled investor posted a comment calling the management crooks, the comment wouldn’t be libelous because the average reader would not take it seriously. The culture of Internet posting is one in which readers expect to find exaggeration and name-calling. As a consequence, most of what’s posted on blogs and message boards is not actionable, even when the character of the statement is such that it would clearly be libelous if published in a more respectable venue.

I’m not among those who lament the supposed passing of a golden age of civility. On the contrary, I believe we’re much better off in a society where most people confine their expressions of hate to yelling at each other on the Internet, as opposed to throwing bricks or forming lynch mobs. The past century, with all its ugly prejudices, was very far from being an age of grand public civility. Still, in light of the Internet’s potential to bring us together, it seems a pity we haven’t made better use of it.

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