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CALLING PLAINTIFF A PEDOPHILE, THREATENING TO HAVE PLAINTIFF ARRESTED, AND THE STATEMENT “YOU’RE TAKING PICTURES OF 10-YEAR-OLD KIDS” CONSTITUTED NONACTIONABLE RHETORICAL OPINION, NOT DEFAMATION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this defamation action should have been granted. The court found that the statements accusing plaintiff of being a pedophile were expressions of opinion, not assertions of fact:

…[T]he employee [defendant] accused plaintiff of either “playing politics or [being] a fucking pedophile.” After plaintiff denied playing politics, the employee responded “Then you’re a fucking pedophile” and stated, “I’m going to Town right now and fucking see if I can get you arrested for being a fucking pedophile. You’re taking pictures of 10-year-old kids, are you crazy or what?” * * *

“Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation” ,,, .. “A pure opinion may take one of two forms. It may be a statement of opinion which is accompanied by a recitation of the facts upon which it is based, or it may be [a]n opinion not accompanied by such a factual recitation so long as it does not imply that it is based upon undisclosed facts” … . “Whether a particular statement constitutes fact or opinion is a question of law” … . “The dispositive inquiry . . . is whether a reasonable [listener] could have concluded that [the statements were] conveying facts about the plaintiff” … .* * *

“Rather than sifting through a communication for the purpose of isolating and identifying assertions of fact, the court should look to the over-all context in which the assertions were made and determine on that basis whether the reasonable [listener] would have believed that the challenged statements were conveying facts about the . . . plaintiff” … . Indeed, the court should consider “the circumstances and . . . the broader social context (i.e., the factual background leading to the [statement])” to determine whether the “message would be taken by the ordinary person not literally, but figuratively” … , particularly where an “audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole” … . Bieber v Town of Hamburg, 2026 NY Slip Op 04605, Fourth Dept 7-24-26

Practice Point: Consult this decision for insight into the difference between statements which constitute “rhetorical opinion” and statements which constitute “defamation.”

 

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