Whether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern

QUESTIONS PRESENTED Under the First Amendment, “a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990). Applying that principle, practically every lower court to consider the issue has recognized that the First Amendment shields from defamation liability subjective commentary on the facts of a matter of public concern. The D.C. Court of Appeals split from that consensus to hold that that rule is limited to things like book reviews and does not protect speech opining on public controversies like the debate over climate science. Such commentary, it held, may be subject to defamation liability whenever a jury could conceivably find it to be false, even when the underlying facts are undisputedly true. Accordingly, the questions presented are: 1. Whether the First Amendment permits defamation liability for subjective commentary on true facts concerning a matter of public concern. 2. Whether the determination of whether a challenged statement contains a provably false factual connotation is a question of law for the court or a question of fact for the jury.