Since @hebegebe brought up the Gibson’s case, the appellate opinion in that case is a good place to look for a discussion about what constitutes fact vs opinion in a libel/defamation case, and what gets a case to a jury. https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2022/2022-Ohio-1079.pdf
The appellate court stated: “It was for the trial court to decide as a matter of law whether the statements alleged to be defamatory were constitutionally protected speech or actionable as statements of fact.” In fact, Oberlin was granted summary judgment before trial on Gibsons’ claims that were based on the students’ chants about the bakery being racist. Those claims never went to the jury.
At trial, the sole issues were whether Oberlin had “disseminated false, written statements of fact that caused the Gibsons significant harm.” The case focused on the flyer that was disseminated and on a student senate resolution, both of which stated that the Gibsons had a long “history” or “account” of racial profiling and discriminatory treatment. The court distinguished saying Gibsons was “racist” (opinion) from what it considered more factual claims about Gibsons’ “history” or “account.”
“To determine whether an alleged defamatory statement is fact or opinion, we examine
four factors: the specific language used, whether the statement is verifiable, the general context of the statement, and the broader context in which the statement appeared.”
The court concluded that the claims about Gibsons’ historical behavior were more in the nature of verifiable facts, not opinion. Therefore it was proper, according to the court, to let that go to the jury.
Regardless of whether you think the result in Gibsons was right or wrong, it illustrates why FIRE thinks that calling the lesson “Islamophobic” is more opinion than fact, and therefore should be protected. I admire the fact that FIRE strives to be consistent in its approach to what speech is protected.