Ray v. City of Bossier City10/24/2003
his own personal comments about the two men. Therefore, Jones' speech was constitutionally protected.
The First Amendment freedoms afford, at the very least, a defense against defamation actions for expressions of opinion. Fitzgerald v. Tucker, 98-2313 (La. 06/29/99), 737 So. 2d 706; Mashburn v. Collin, 355 So. 2d 879 (La. 1977). A pure statement of opinion, which is based totally on the speaker's subjective view and which does not expressly state or imply the existence of underlying facts, usually will not be actionable in defamation. Bussie v. Lowenthal, 535 So. 2d 378 (La. 1988). That is because falsity is an indispensable element of any defamation claim, and a purely subjective statement can be neither true nor false. Id. The opinion may be ostensibly in the form of a factual statement if it is clear from the context that the speaker did not intend to assert another objective fact but only his personal comment on the facts which he had stated. (Emphasis added). Mashburn, supra. Another form of protected speech is hyperbole, which cannot reasonably be interpreted as stating actual fact. Greenbelt Cooperative Publishing, Ass'n v. Bresler, 398 U.S. 6, 90 S. Ct. 1537, 26 L. Ed. 2d 6 (1970); Baxter v. Scott, 37,092 (La. App. 2d Cir. 05/16/03), 847 So. 2d 225.
A cause of action for defamation arises out of a violation of La. C.C. art. 2315. Fitzgerald, supra. Defamation involves the invasion of a person's interest in his or her reputation and good name. Id., Sassone v. Elder, 92-1856 (La. 1993), 626 So. 2d 345. In order to prevail in a defamation action, a plaintiff must prove four elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Fitzgerald, supra; Trentecosta v. Beck, 96-2388 (La. 10/21/97), 703 So. 2d 552; see also Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So. 2d 196 (La. 1980).
However, when a public figure is the object of alleged defamatory words, the United States Supreme Court has held that the First Amendment limits the right of the public figure to recover damages for defamation. In New York Times Co., supra, the Supreme Court concluded that it is not enough for the public figure to prove that the statement sued upon is false. Because the First Amendment protects honest misstatements of fact that are made regarding public figures, such plaintiffs must also prove that the statement was made with "actual malice."
A communication which contains an element of personal disgrace, dishonesty, or disrepute undoubtedly satisfies the definition of defamatory. Fitzgerald, supra; Trentecosta, supra. Nonetheless, not all defamatory statements are actionable. Rather, many statements are protected by the First Amendment's guarantee of freedom of speech. Id. Specifically, a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection. Romero v. Thompson Newspapers (Wisconsin), Inc., 94-1105 (La. 01/17/95), 648 So. 2d 866, cert. denied, 515 U.S. 1131, 1155 S. Ct. 2556, 132 L. Ed. 2d 810 (1995); Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990). Speech on matters of public concern enjoys enhanced constitutional protection. Id.; Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (1985); Baxter, supra.
Plaintiffs urge that Jones' critical comments about them constituted actual malice because the statements were not based on any truthful foundation. In support of this assertion, they note that the conclusion reached
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