UC Law SF Communications and Entertainment Journal


Following Gertz v. Robert Welch, Inc., state and federal courts struggled to develop guidelines to distinguish fact from opinion in libel law. While the existing guidelines have resulted in broader constitutional protection of opinion statements, they do not constrain ad hoc judicial interpretation of text as either fact or opinion. This article examines the fact/opinion distinction from both a communication and a legal perspective and argues that the use of an interdisciplinary approach to the fact/opinion question exposes fundamental problems with the existing guidelines. The author concludes that for opinion to have adequate constitutional protection, context should be used as a determinative criterion in distinguishing fact from opinion.