Fair comment

Fair comment is a legal term for a common law defense in defamation cases (libel or slander). It is referred to as honest comment in some countries.

In the United States, the traditional privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures. Fair comment is defined as a "common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff".

The defense of "fair comment" in the U.S. since 1964 has largely been replaced by the ruling in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), (U.S. Supreme Court). This case relied on the issue of actual malice, which involves the defendant making a statement known at the time to be false, or which was made with a "reckless disregard" of whether the statement was true or false. If "actual malice" cannot be shown, the defense of "fair comment" is then superseded by the broader protection of the failure by the plaintiff to show "actual malice".

Each state writes its own laws of defamation, and the laws and previously decided precedents in each state vary. In many states, (including Alabama where the case of Times v. Sullivan originated), the "fair comment" defense requires that the "privilege of 'fair comment' for expressions of opinion depends on the truth of the facts upon which the comment is based" according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan.

It is still technically possible to rely on the common law defense of "fair comment" without referring to the "actual malice" standard set by the Supreme Court of the United States but that would only be a likely course of action when the defendant is absolutely sure that the facts upon which the opinion of the defendant was based were true, or that any falsehoods are not defamatory. If those facts are not absolutely true (and the actual malice standard is not taken into account) then the defendant could be sued by the plaintiff for damages, although the plaintiff would need to establish to the satisfaction of a jury that the statements were defamatory, and that the defendant published or made them.

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Wikipedia