Statements made as part of an acknowledged heated debate often negate the impression that the defendant was asserting an objective fact. E.g., Gardner, 563 F.3d at 988 (radio talk show program that included drama, hyperbolic language, opinionated and arrogant host, and heated controversy reduced audience’s expectation of learning an objective fact); Underwager, 69 F.3d at 366-67 (fact that statements were made at workshop which included speakers on opposite sides of the “heated debate” over child witness reliability, relevant to analysis); Info. Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir. 1980) (in context of legal dispute, “the audience may anticipate efforts by the parties to persuade others to their position by use of epithets, fiery rhetoric or hyperbole, [and thus] language which generally might be considered as statements of fact may well assume the character of statements of opinion”) (internal quotations omitted); Art of Living Found. v. Does 1-10, No. 10-CV-05022-LHK, 2011 WL 2441898, at *7 (N.D. Cal. June 15, 2011) (readers less likely to view statements made on blogs with “heated discussion and criticism,”as assertions of fact); Nicosia v. De Rooy, 72 F. Supp. 2d 1093, 1101 (N.D. Cal. 1999) (readers less likely to view statements made as part of heated debate concerning a “bitter legal dispute” as assertions of fact).
The statements accusing plaintiffs of being “thugs,” or “evil,” or “greedy,” are evaluative, subjective expressions not subject to proof. As to those statements that might suggest a sufficient factual basis to be provable, for the reasons explained in the preceding paragraph, the context in which those statements were made dispels a reader’s understanding that they are assertions of fact. Additionally, while, as noted above, the use of a question mark is not an absolute protection from liability as a provable statement of fact, it is a commonly recognized rhetorical device which can create an impression for the reader that the author is supposing facts rather than stating provable facts. Moreover, defendant regularly states she “will” prove her allegations or that information and facts are “coming soon.” While this might suggest that she actually possesses facts but simply has not posted them yet, in this case any reasonable reader would view the promise of future proof and defendant’s failure to contemporaneously post the relevant facts as one more reason why the posts do not constitute provable assertions of fact.
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