Milkovich, #MeToo, and “Liars”: Defamation Law and the Fact-Opinion Distinction

By Pooja Bhaskar

Since the start of the #MeToo movement, sexual assault survivors have increasingly turned defamation law against their alleged assaulters. In these #MeToo defamation cases, an alleged victim publicly claims that another person, usually someone of considerable wealth and fame, sexually assaulted them. The alleged assaulter then calls their accuser a liar, causing their accuser to sue their alleged assaulter for defamation. These cases have consistently raised an element of the defamation analysis that has long challenged courts: distinguishing between statements of actionable “fact” and nonactionable “opinion.”

#MeToo defamation cases raise the question of whether an alleged assaulter’s claim that their accuser lied constitutes actionable fact or nonactionable opinion. The U.S. Supreme Court attempted to provide guidance on how to conduct fact-opinion analyses in a case similar to #MeToo cases, where a plaintiff sued the defendant for calling them a liar. However, U.S. courts diverge in their approaches to the fact-opinion analysis and have come to varying results on the fact-opinion question in #MeToo defamation cases.

This Note argues that, when properly applied, the fact-opinion distinction does not shield alleged assailants from defamation liability because the alleged assailants’ claims that their alleged victims lied constitute implicit assertions of eyewitness testimony about a factual matter.