Talk:Fair comment

message: Mr. Berlet nice to see your good work again.
You do recognice that the changes in the article suddenly include actual maice?
You do recognice that it is impossible for me to verfiy your source?
Please find a source that is available to the whole wikipedia public. I would value it greatly.  
Please understand that there is a wikipedia article called actual malice. I doubt it is nessary to include both definition in one article. Unless of course one wants to advance his own agenda which i am sure nobody really intends.
Otherwise I value your input very much. Thank you for the changes you undoubtedly intend to do now. 
--Zirkon 21:44, 29 August 2005 (UTC)
thread_title:  Actual Malice article 

message: This is a quote from this website: http://www.bbc.co.uk/dna/hub/A656796
"The term 'fair comment' gives the impression that the comments have to be 'fair', but in fact, all that is required is that the opinion is honestly held."
And this was my sentance: "A legal case in which the plaintiff looses against the defendend on reasons of "fair comment" does therefore not mean that the comment issued by the defendant was justified or fair, but that the plaintiff could not prove the bad intentions of the defendant conclusively."
Yes I see differences...  Your comments Mr. Berlet?
:Zirkon, could you state your position clearly, please, rather than trying to engage in rhetorical interrogation? Also, the talk page becomes hard to read with so much space between your sentences. I'm also confused as to how you can use a source on British libel law for a discussion on the LaRouche situation.SlimVirgin (talk) 22:48, August 29, 2005 (UTC)
::I find it remarkable that you call this rhetorical interogation. And I am stiil waiting for comments from Mr. Berlet. Comments which are sorely needed for he changed the relevant part of the paragraph.
::By the way I did not realise that it was you who added the canada part. Therefore i have to ask you too if you could come up with a legal source on the internet - since it is imposible for the wider audience to access this book. Thank you for your valuble input SlimVirgin. Concerning your confusion about the use of an english article: I believe in question was the possibility to misunderstand the word "fair" as a qualifier in this legal term which is similarly used in the U.K.. As always i value your input but since it was Mr. Berlet who changed the paragraph it is him i should be explaining this to - after he has had a chance to comment. 
Following a fruitfull internet search i was able to find a similiar sentence that comes from a USA source. 
This is the source that resembles the British source: http://www.lawyers-media.com/guide/subs.htm...
"The word "fair" is inappropriate, because the comment or opinion could be exaggerated or prejudiced provided it is honestly held."...
This is my original source upon which i largely based my article. 
...
"a statement of opinion (no matter how ludicrous) based on facts which are correctly stated and which does not allege dishonorable motives on the part of the target of the comment."...
And now again in retrospect my sentence:
...
"A legal case in which the plaintiff looses against the defendend on reasons of "fair comment" does therefore not mean that the comment issued by the defendant was justified or fair, but that the plaintiff could not prove the bad intentions of the defendant conclusively."...
Yes I see your point we could exchange "bad intentions" with actual malice.
Considering the meaning of "fair comment" I believe that this sentence has its value and should be returned into the article "fair comment". It does after all put the suggestive "fair" into the proper context. This is something that is nessesary following the demonstratable likeliness to be misslead by this legal term as a layman.
How do you see this matter Mr. Berlet?
--Zirkon 07:26, 30 August 2005 (UTC)
replies: text: I have rewritten the explanation of fair comment in the U.S. once again to make matters more clear.  In most states, the "fair comment" defense requires a factual basis. "The privilege of 'fair comment' for expressions of opinion depends on the truth of the facts upon which the comment is based" according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan. This is based on Alabama law.  I do not have the laws of New York state handy, but since you are attempting to write an apologia for [Political views of Lyndon LaRouche|Lyndon LaRouche] on another page based on a New York lawsuit, you would first have to show that under New York defamation law, "fair comment" does NOT require a factal basis. I do not know if it does or does not. In any case, the judge in the LaRouche case who ruled it was not defamation to call LaRouche anti-Semitic is clearly indicating the defendants introduced sufficient evidence to butress the factual basis of their opinion that LaRouche was an anti-Semite. --Cberlet 13:09, 30 August 2005 (UTC)
replies: text: Following this statement it is nessary for me to show the reader that my own work (the copyedited version of Willmcw) does in fact echo the understanding of fair comment from the external source. '
===First Version of the wikipedia article Fair comment:===
Fair comment is a legal term for a defense used in defamation cases. It holds that when a public figure is defamed, even with an absurd or false accusation, they must prove that the opinion was stated maliciously (with hate, dislike, intent and/or desire to harm) in order for defamation to have occured.
A legal case in which the plaintiff looses against the defendend on reasons of "fair comment" does therefore not mean that the comment issued by the defendant was justified or fair, but that the plaintiff could not prove the bad intentions of the defendant conclusively.
While this phrase was in use before it became a ruling of the U.S. Supreme Court in the case New York Times v. Sullivan in 1964.
External Links
dictionary law.com
===Source article version:===
Following the Link: dictionary law.com one can find the source article upon which the findings of the first Wikipedia article were based. I refrain from directly posting the whole article since I am not certain about the copyright issues in this context. 
=== Second wikipedia article version of "Fair comment" from Cberlet (with additons by Slimvirgin)===
Fair comment is a legal term for a common law defense in defamation cases (libel or slander).
United States
In the United States, the traditonal privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures. Fair comment is defined as a "common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff."[1].
The defense of "fair comment" in the U.S. since 1964 has largely been replaced by the ruling in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), (U.S. Supreme Court). This case relied on the issue of actual malice, which involves the defendant making a statement known at the time to be false, or which was made with a "reckless disregard" of whether the statement was true or false. If "actual malice" cannot be shown, the defense of "fair comment" is then superceded by the broader protection of the failure by the plaintiff to show "actual malice."
Each state writes its own laws of defamation, and the laws and previously decided precedants in each state vary. In many states, (including Alabama where the case of Times v. Sullivan originated), the "fair comment" defense requires that the "privilege of 'fair comment' for expressions of opinion depends on the truth of the facts upon which the comment is based" according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan.[2]
It is still technically possible to rely only on the common law defense of "fair comment," but since there is no federal law of defamation, the Times v. Sullivan case, decided by the U.S. Supreme Court, extends over state laws as a powerful legal precedant, and it provides more legal protection to a defendant, since under the concept of "actual malice," the absolute truth of the assertion need not be demonstrated.
For more on U.S. defamation laws, see: Media Libel - University of Houston
Canada
In Canada, for something to constitute fair comment, the comment must be on a matter of public interest (excluding gossip), a fair and honest expression of the author's opinion, based on known and provable facts, and with no actual malice underlying it. The cardinal test of whether a statement is fair comment is whether the author honestly believed the opinion, and whether it could be drawn from the known facts. It should also be obvious that the comment is an opinion and is not purporting to be a fact (Crawford 2002, pp. 48-52). (See Chernesky v. Armadale Publications Ltd. [1978] 6 W.W.R. 618 (S.C.C.))
References
dictionary law.com 
Media Libel - University of Houston 
Opinion: "New York Times Co. v. Sullivan 
Crawford, Michael G. The Journalist's Legal Guide, Carswell, 2002 
===Comparison and Analysis===
To make a comparison and an analysis of the 3 Versions (1. wikipedia article, wikipeda cited source article, 2. wikipedia article)
I have made a sentence by sentence core statement analysis of every version. 
The letters in each Version are followed by a descriptive headline for the sentence that is beeing analized. Under the sentence Headline is the quote of the analized sentence. 
The core statements of the sentence are numbered for reference.
====Ver 1 (= 1. Wikipedia article)====
Core statements of Version 1
=====A) Fair comment is a legal term.=====
“Fair comment is a legal term for a defense used in defamation cases.”
=====B) Fair comment definition:===== 
”It holds that when a public figure is defamed, even with an absurd or false accusation, they must prove that the opinion was stated maliciously (with hate, dislike, intent and/or desire to harm) in order for defamation to have occured.”
#-This includes the points that malicouse intend has to be proofed. (This is commonly done in the following way: plaintive has to proofe that the defendend used the defaming words knowing that they were wrong (i.e. false, baseless etc.).) 
#-By inversion this definiton says that “fair comment” does not qualify an opinion held by the defendend as true or not true. (As it is only nessary for the defendent to show that he did not act with malicouse intentions – As it is only nessary for the plaintiff to show that the defendend did act with malicouse intentions for the defense of fair comment to fail.).   
=====C) Explanation of definiton:=====
“A legal case in which the plaintiff looses against the defendend on reasons of "fair comment" does therefore not mean that the comment issued by the defendant was justified or fair, but that the plaintiff could not prove the bad intentions of the defendant conclusively.”
#-Explanation that the legal term fair comment does not a qualify a statement. In essence again the definition of “fair comment” but inverted. Or in other words the definition of something shows what it is, but in defining what something is you also define what something – implicitly - is not.
====Ver 2 (= Source article of 1. wikipedia article)====
Core statements of version 2
=====A) “fair comment” definition:=====
“a statement of opinion (no matter how ludicrous) based on facts which are correctly stated and which does not allege dishonorable motives on the part of the target of the comment.”
#-F.C. makes no qualifing statement about the opinion. 
#-F.C. can only be used when the facts are correctly stated. 
#-Dishonorable motives are not what led the statement of opinion maker. 
=====B) Explanation of definition:=====
“The U.S. Supreme Court has ruled that to protect free speech, statements made about a public person (politician, officeholder, movie star, author, etc.), even though untrue and harmful, are fair comment unless the victim can prove the opinions were stated maliciously-with hate, dislike, intent and/or desire to harm.”
#- F.C. in its current form is based on a US S.C. decision. 
#- F.C. is there to protect free speech.
#- F.C. is only usable on a public person
#- F.C. does not evaluate (qualify) the statement made nor the effects thay may have
#- F.C. the victim (public person) has to  be unable to prove the bad intentions against the victim.
=====C) limits of Fair Comment:=====
Thus, a public figure may not sue for defamation based on published opinions or alleged information which would be the basis of a lawsuit if said or published about a private person not worthy of opinion or comment.
#- F.C. as a defense can only be used against a public figure. 
#- F.C. a private person could sue for defamation against an opinion or comment.  
=====D) Used as a defense:=====
This is a crucial defense against libel suits put up by members of the media.
#- F.C. It is a legal defense mostly used by the media.
====Ver 3 (= 2. Wikipedia article (version of Cberlet))====
Core statements of version 3
=====A) Single sentence definiton=====
“Fair comment is a legal term for a common law defense in defamation case.”
#- F.C. is a legal term. 
=====B) Lead in:=====
“In the United States, the traditonal privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures.”
#-F.C. as used in the U.S.
#-F.C. is a traditional privilege
#-F.C. is a protection for opinions spoken or pulished whatever those opinions may be
#-F.C. is usable only as a defense against public figures
=====C) Definition=====
“Fair comment is defined as a "common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff."[1].”
#-F.C. is a common law defense
#-F.C. helps to guarantee the freedom of the press to express statements 
#-F.C. is only usable on matters of public interest.
#-F.C. cannot be used if the statements were used with bad intentions against the plaintiff
=====D) History of the defense=====
“The defense of "fair comment" in the U.S. since 1964 has largely been replaced by the ruling in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), (U.S. Supreme Court).”
#-the way F.C.was used has largely been replaced by a US SC ruling since 1964. 
=====E) Specifics of the historical case: actual malice=====
“This case relied on the issue of actual malice, which involves the defendant making a statement known at the time to be false, or which was made with a "reckless disregard" of whether the statement was true or false. “
#-Defintion of actual malice 
=====F) Connection between actual malice and the “fair comment” defense=====
“If "actual malice" cannot be shown, the defense of "fair comment" is then superceded by the broader protection of the failure by the plaintiff to show "actual malice." ”
#-actual malice must be proven.
#-failure to show actual malice means the defense of “fair  comment” stands regardless of what the actual (local) definition of “fair comment” is.  
=====G) About the laws of defamation=====
“Each state writes its own laws of defamation, and the laws and previously decided precedants in each state vary. “
#-defamation law is state law.
=====H) About how the “fair comment” defense is implemented in many states =====
“In many states, (including Alabama where the case of Times v. Sullivan originated), the "fair comment" defense requires that the "privilege of 'fair comment' for expressions of opinion depends on the truth of the facts upon which the comment is based" according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan.[2]
#-F.C. must be based on the truth of the facts upon which the comment is based. 
#-That F.C. must be based on true facts is a requirement in many states. Inversion: If the facts upon which a voiced published oppinon (whatever the oppinion may be) is based are not true then F.C. can not be used. 
#-F.C. must be based on true facts in Alabama. 
#-The statements of this sentence are based on U.S.S.C. Justice Brennan.
#-The statements are based on the written form of the U.S.S.C. ruling.
=====I)Practial use of “fair comment” following the introduction of “actual malice”=====
“It is still technically possible to rely only on the common law defense of "fair comment," but since there is no federal law of defamation, the Times v. Sullivan case, decided by the U.S. Supreme Court, extends over state laws as a powerful legal precedant, and it provides more legal protection to a defendant, since under the concept of "actual malice," the absolute truth of the assertion need not be demonstrated.”
#F.C. is a defense that can technically rely only on the common law defense but the absolute truth of the comment (assertion) has to be demonstrated.
#F.C. as State law is now normaly overshadowed by the U.S.S.C precedant case ruling. 
#”Actual malice” is a concept
#The absolute truth of the comment (assertion) of the defendant does not have to be demonstrated since the U.S.S.C. precedent ruling to use “fair comment”. 
===Following this sentance by sentance analysis I make these observations===
# There is no apparant mischaracterisation of “Fair Comment” in version 1 compared to external source (version 2). 
# All three versions do have deficits. It should be possible to construct a new version that includes the best of all three versions. 
# There is a logical break within the version of Mr. Berlet:
Statement I)1 and its inversion I)4 is not compatible to the statements of B)3 and C)4
Why? 
a)
“Assertion” is not defined in this context explicidly. 
b)
If by implication “assertion” is actually another word for comment of the defendend than it is - following I)1 and I)4 - nessesary to proofe under the traditional understanding of F.C. that the comment is true. B)3 explains that comments are protected whatever they may be. 
Therefore for the traditional defense of F.C. to work one must proofe that the comment the defendend made is true. But comments are protected whatever they may be – even if not true. 
c)
C)4 states therefore that true statements/comments can not be used when they were made with bad intentions against the plaintiff.
===Conclusions===
# The allegations that I mischaracterised the definition of "Fair comment" to further an agenda are false.
# Mr. Berlet makes crutial logical errors in his wikipedia article version of "fair comment". 
# If Mr. Berlet does not change the last paragraph of his 3. Version this should be done for him. 
# It is not possible to know if Mr. Berlet made those errors on purpose. But it is certain that he expressed that his Point of View was in danger. As can be demonstrated by the fact that I was constantly accused of rewriting history or of trying to fabricate apologia. Further investigations will reveal that he constantly evaded questions concerning his views upon the topic.
#* Zirkon: here is what I posted on the fair comment page that you keep trying to rewrite to make it seem that LaRouche is not a notorious anti-Semite--Cberlet 13:13, 30 August 2005 (UTC)
thread_title:  Interesting quotation 

message: # The allegations that I mischaracterised the definition of "Fair comment" to further an agenda are false.
# Mr. Berlet makes crutial logical errors in his wikipedia article version of "fair comment". 
# If Mr. Berlet does not change the last paragraph of his 3. Version this should be done for him. 
# It is not possible to know if Mr. Berlet made those errors on purpose. But it is certain that he expressed that his Point of View was in danger. As can be demonstrated by the fact that I was constantly accused of rewriting history or of trying to fabricate apologia. Further investigations will reveal that he constantly evaded questions concerning his views upon the topic.
#* Zirkon: here is what I posted on the fair comment page that you keep trying to rewrite to make it seem that LaRouche is not a notorious anti-Semite--Cberlet 13:13, 30 August 2005 (UTC)
thread_title: Conclusions

message: I was asked to comment on this. I know little or nothing about it, but would start researching it by looking in an introductory legal textbook on Defamation or here's some books I found doing a keyword search:
*The Making of the Modern Law of Defamation by Mitchell, Paul, 1951-  Publisher: Hart Publishing Publish Date: 19 August, 2005 Binding: HARDCOVER
*Libel Law, Political Criticism, and Defamation of Public Figures: the United States, Europe, and Australia by Amponsah, Peter Nkrumah, 1961-  Publisher: LFB Scholarly Publishing Publish Date: February, 2004 Binding: Library Binding
*The Law of Defamation, Privacy, Publicity, and Moral Rights: Cases and Materials on Protection of Personality Interests by Sheldon W. Halpern  Publisher: Anderson Pub Co Publish Date: May, 1988 Binding: Paperback
I'm sure those are not the only books and probably not the best one. Simply a suggestion to consult a few reputable sources. I am the distinct impression at least one editor is trying to work from conclusion to source rather then source to conclusion. Another note, if you are actually arguing a case, you would probably brief both defenses although that would depend on many factors. Fred Bauder 01:46, 29 October 2005 (UTC)
thread_title: Comment

message: I think that Zirkon is trying to rewrite this page in order to go to one of the Lyndon LaRouche pages and write an apologia for the notorious antisemitic conspiracy theories of LaRouche, who a court ruled could be called an antisemite as "fair comment."  This is not a proper process for Wikipedia.--Cberlet 01:54, 29 October 2005 (UTC)
thread_title: Another Comment

message: IANAL, which means I'm also not a "peer."
First off, from where I sit as a native speaker of American English, the word "fair" in "fair comment," does not refer to whether or not a comment was fair with respect to the subject, only to whether it was fair for the speaker to be commenting.  For example, making a public statement about a public figure would be "fair" (e. g. Saying "The mayor is a pompous fool!" on television), while a public statement about a private individual would be "unfair;"  saying "My next door neighbor is a pompous fool!" on television wouldn't be "fair" unless your neighbor is able to also come on television to defend herself.
Common usage of the phrase "fair use" in language may or may not have an effect on how a court interprets it, however.
Secondly, don't get too hung up on facts, at least in the United States.  A statement of facts is protected speech at least by statute (if not by the state consitution outright) in just about every state.  Being a part of common law, fair comment only comes into play when speech isn't explicitly protected by statute (as facts are), and so it would only really apply to statements of either fictions (which may or may not be a deliberate lie) or of opinion.
From the looks of things, facts only come into play as part of building up the "preponderance of evidence" that civil suits are supposed to hinge on (i. e. deciding whether there was actual malice).  In my previous example, the trial would be a contest between my ability to show why it is reasonable for me to believe the mayor is a pompous fool, while the mayor would try to demonstrate why such a view would be unreasonable (and, therefore, probably said with malice).  It is not necessarily a matter of whether it is reasonable for anybody to hold the views I stated, only that it is reasonable for me to hold the view with the information (facts or fictions) that I have available to me.
If I received a letter on the mayor's stationery, the content of which led me to believe that the mayor was a pompous fool, it would be fair for me to state my opinion as such unless I actually believe that the letter was a forgery.  The letter may have been a falsehood, but if I believe it and can present a preponderance of evidence that I believed it ("Look at the seal and the signature!"), it is fair for me to make a comment on what I thought of that letter.
The mayor, being a public figure and naturally having the attention of the press, would be able to defend his character in the court of public opinion by pointing out that the letter was a forgery, making fair comments of his own, probably including "David was a pompous fool to believe this letter was genuine!"
Finally, since there isn't supposed to be any original research in the articles, using the word "therefore" should be a red flag.
Once again, IANAL. David Iwancio 02:32, 29 October 2005 (UTC)
thread_title:  My take 

message: New Supreme Court of the United Kingdom case - suggests among other things the renaming of the defence to "honest comment"
http://www.supremecourt.uk/docs/UKSC_2009_0210_Judgment.pdf  —Preceding unsigned comment added by 79.173.142.114 (talk) 14:24, 2 December 2010 (UTC)
thread_title:  Spiller v Joseph - UK Supreme Court 

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