According to well-established precedent, Texas' heartbeat bill is not valid law. Is it therefore defamation to claim that those who violate it are "breaking the law"? Also, even if the bill were a valid law, AFAIK it's not a criminal statute. Is it defamation to claim that those who violate it are "committing a crime"?
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"breaking the law" might fall under fair comment until a case is decided.– Looking for loopholesCommented Sep 7, 2021 at 7:08
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Is the basis for calling these individuals criminals disclosed by the speaker? Is the person to whom the statement is made in a position to take some sort of lawful action based upon someone being a "criminal"?– ohwillekeCommented Sep 7, 2021 at 23:29
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Is it therefore defamation to claim that those who violate it are "breaking the law"? AFAIK it's not a criminal statute. Is it defamation to claim that those who violate it are "committing a crime"?
No. These assertions rather constitute statements of opinion and therefore are not actionable. For it to constitute a possibly actionable statement of fact, it would have to falsely impute to someone a specific, ascertainable act or conduct.
Furthermore, in some contexts the matter at issue is so sensitive that its implications on someone's reputation is independent of whether a bill reaches enactment. Abortion is one such topic. A person's view of an abortionist is very unlikely to be influenced by the ensuing legislation. To people who oppose abortion, abortionists are equally repugnant regardless of whether the act of aborting additionally constitutes a violation of some statute. Conversely, abortion supporters are not going to have a worse impression of an abortionist merely on grounds that abortion becomes outlawed.
answered Sep 7, 2021 at 12:13
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This answer would benefit from citations to cases actually addressing the question. I suspect that this has been litigated many times, if not in the context of abortion.– bdb484Commented Sep 7, 2021 at 20:15
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@bdb484 See Cianci v. New Times Pub. Co., 639 F.2d 54, 64 (1980) ("Almost any charge of crime [...] is by necessity a statement of opinion"). Not even as a statement of "mixed opinion" would the statements at issue be actionable, since neither "implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it" Steinhilber v. Alphonse, 68 N.Y.2d 283, 289 (1986) (emphasis added). Commented Sep 7, 2021 at 21:47
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That's a weird bit of dicta to cherry pick out of Cianci, which immediately goes on to reject that reasoning as a basis for evaluating liability.– bdb484Commented Sep 8, 2021 at 12:20
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@bdb484 "which immediately goes on to reject that reasoning as a basis for evaluating liability." Very unclear what you mean by that unelaborated comment. But the very next paragraph in Cianci excludes from the category of protected statements of opinion "a charge which could reasonably be understood as imputing specific criminal or other wrongful acts". Such requirement of imputation specificity reinforces the first paragraph of this answer. Commented Sep 8, 2021 at 17:07
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I'm saying that you're quoting Cianci as support, but you're relying on a quote about what the law is not. It rejects the theory of nonliability that you're endorsing and the language you're now citing actually cuts against your argument. If Defendant says Abortionist is a criminal because he violated SB 8, that's imputing a specific wrongful act. This answer is like saying students can't talk politics because "any word spoken in class ... that deviates from the views of another person may start an argument or cause a disturbance. Tinker v. Des Moines, 393 U.S. 503, 508 (1969).– bdb484Commented Sep 8, 2021 at 19:19