1ST AMDT - FREE SPEECH and Defamation

Recent case law discussing 1st Amdt:

Obsidian Finance v. Cox (discussing whether statements could be defamatory, if characterized as facts vs. opinions).

Volokh. Popehat blog (Ken White).

The court explained it looks to three questions in determining whether a statement is fact or opinion — “(1) whether the general tenor of the entire work negates the impression that the defendant was asserting an objective fact, (2) whether the defendant used figurative or hyperbolic language that negates that impression, and (3) whether the statement in question is susceptible of being proved true or false." Applying those factors, the Ninth Circuit noted that Cox's posts at issue were full of hyperbole and extreme language, were posted on sites with names like obsidianfinancesucks.com that predispose readers to view them with skepticism as one-sided, contain run-on stream-of-consciousness sentences that seem more like diary entries about feelings than statements of fact, and contain bizarre flights of fancy like accusations that Padrick hired a hit man to kill Cox (a common delusional theme in Cox's writings). In short, "the district court correctly found that, in the context of a non-professional website containing consistently hyperbolic language, Cox’s blog posts are 'not sufficiently factual to be proved true or false.'" 

Being argued Tuesday at SCOTUS - Harris v. Quinn (Lyle Denniston): 

[N]on-union members cannot be required to pay any part of a dues assessment that would cover the union’s political or ideological activity, to which those workers may (and often do) object.  Forcing them to do so, the Court has said, would violate their First Amendment rights.
...
 The most obvious alternative approach is a finding that these home-care providers work in an intimate, one-on-one environment, so there is no risk of social disruption over labor relations.
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In the end, the key to the fate of the Abood precedent is whether there is a majority on the Court that has come to believe that the status of public employees is a poor fit for the doctrine of an “agency shop.”  To declare that would be a bold step, indeed, and would upset a great deal of labor law precedent even beyond Abood.  That is a fairly daunting prospect.  The stakes of such a ruling have been energetically debated in the briefs.