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Recently, I've noticed a large uptick in people using cherry-picking to defame their enemies and opponents, both in and out of politics. By this, I mean taking something a person said, then quoting a portion out of context to make it sound as if the person said something else.

For example: a few months back Donald Trump said, "...If I don't get elected, it’s gonna be a bloodbath...", speaking in the context of imports' effects on the U.S. auto industry. The next day, my local newspaper ran an article with the headline, "Amid Concerns of Political Violence, Trump Declares 'Bloodbath' If Not Elected" (paraphrased; I do not remember the exact wording).

I suspect that this example would be impossible to successfully prosecute due to the public figures defense. However, would the same sort of defamation by cherry-picking be illegal if applied to a private figure? Technically, the defaming party is telling the truth; however, they are still making it seem as if the defamed party said something harmful to their reputation that they did not.

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  • What was the context of the article? (Yes, I get the irony). If it was about his poor choice of words, there would be nothing defamatory in the example as shown here. Maybe a more generic example would better illustrate the point?
    – ItWasLikeThatWhenIGotHere
    Commented Oct 22 at 12:41
  • @ItWasLikeThatWhenIGotHere While I do not remember the exact content of the article off the top of my head, it was basically a continuation of the title. Trump already showed that he's a sore loser with Jan. 6th, he will surely have his vicious Brownshirt-wannabes stage another coup if he loses, etc. It's a typical example of the thinly-veiled attack ads which have become unfortunately commonplace on both sides.
    – In Hoc Signo
    Commented Oct 22 at 13:07
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    @ItWasLikeThatWhenIGotHere I think that's the point of the question. The newspaper took a statement that was clearly intended to be figurative, and reported it out of context to make it seem literal. This metaphorical use of "bloodbath" is common, it's hardly a "poor choice of words" except that it opened the door to this. But a clever adversary can do that with almost any language. We shouldn't blame the victim.
    – Barmar
    Commented Oct 22 at 16:54
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    @ItWasLikeThatWhenIGotHere Found this. Apparently it was a Biden campaign spokesman who translated it from metaphorical violence to physical: "instead of appealing to a wider mainstream audience doubles down on his threats of political violence". But they could have been referring to other statemtns made during the same rally.
    – Barmar
    Commented Oct 23 at 15:02
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    @ItWasLikeThatWhenIGotHere I am considering rewording the question accordingly. I did not expect people to get so hung-up on my example (although I probably should have, considering the election's proximity.)
    – In Hoc Signo
    Commented Oct 23 at 18:22

2 Answers 2

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, with some comparative contrast with the

Cherry-picking draws no special analysis in defamation law.

Terminology

First, whether a statement is defamatory is separate from whether it is true or false. In Canada, for example, a statement is defamatory as long as it "would tend to lower the plaintiff’s reputation in the eyes of a reasonable person" (Grant v. Torstar Corp., 2009 SCC 61). And in the United States, courts also separate the two. See for example, Pegasus v. Reno Newspapers, Inc., 118 Nev. 706 (Nev. 2003)

The general elements of a defamation claim require a plaintiff to prove: "(1) a false and defamatory statement...

However, ultimate liability for defamation does depend on the truth or falsity of the defamatory meaning. In the U.S., the plaintiff must generally prove the defamatory meaning is also false in order to make out the case. In Canada, the burden shifts to the defendant to prove on a balance of probabilities that the defamatory meaning is true in order to avoid liability.

Whether the meaning conveyed by a cherry-picked statement is defamatory

The impugned statement may convey more than its literal meaning.

Courts recognize that meaning is contextual. The defamatory sting of a cherry-picked statement may come from some non-literal meaning.

In Canada, (see Weaver v. Corcoran, 2017 BCCA 160, at para. 71):

Words may convey a defamatory meaning literally, inferentially or by legal innuendo. Literal meaning is conveyed directly; inferential meaning, indirectly; and legal innuendo, by extension based on extrinsic facts. ...

Where the literal meaning of words is in issue, it is unnecessary to go beyond the words themselves to prove that they are defamatory. Where a claim is based on the inferential meaning of words, the question is one of impression: what would the ordinary person infer from the words in the context in which they were used? Both literal and inferential defamatory meaning reside within the words, as part of their natural and ordinary meaning. In contrast, where legal innuendo is pleaded the impugned words take on defamatory meaning from outside circumstances beyond general knowledge, but known to the recipient.

Truth or falsity of the defamatory meaning

It is the defamatory meaning determined through the above analysis that would also have to be shown to be false (in the U.S.) or for which truth of that meaning would be a defence (in Canada).

Said another way, if the use of the cherry-picked statement conveys some defamatory meaning X, the plaintiff in the U.S. has to show X is false (the defendant in Canada would have to show X is true).

Therefore, it seems impossible for a successful defamation claim to flow from defamatory meaning that is merely the literal fact that the words were said, since that will always be true.

If there is a defamation claim from a cherry-picked statement, it would have to be because it communicates something else, that something else being defamatory, and that something else being false.

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I don't think you can charge defamation just from a headline -- everyone knows these are terse and often written in provocative form as "clickbait". You need to read the article to understand the context. I found an article with a similar headline on NBC News (I suspect your local paper simply picked this article up from a wire service). The article quotes Trump in context, and it's clear that he means an aconomic bloodbath resulting from not implementing his protectionist policies.

The article does go on to quote a Biden campaign spokesman (this happened in March, several months before Biden stepped down and Harris became the Democratic nominee), who refers to Trump's threats of physical violence and a potential repeat of the January 6 insurrection. But he's likely referring to Trump's rhetoric in general, not this specific "bloodbath" reference. Calling this defamation would be just as much cherry-picking as you're accusing the defamers of doing.

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