Rhetorical hyperbole is a First Amendment-based doctrine that often provides protection to exaggerated, over-the-top speech in defamation cases.  

Defined as “extravagant exaggeration employed for rhetorical effect,” the doctrine provides breathing space to freedom of speech by ensuring that that even heated and emotional rhetoric deserves free-speech protection in a free society.   

Supreme Court finds certain words are hyperbole, not defamation

The U.S. Supreme Court ruled in Greenbelt Cooperative Pub. Ass’n v. Bresler (1970) that the use of the term “blackmail” to refer to a developer’s negotiating style was rhetorical hyperbole more than an imputation of criminal conduct.  The Court reasoned that “even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating position extremely unreasonable.” 

A few years later, the U.S. Supreme Court again applied the rhetorical hyperbole defense to protect the union’s use of the term “scab” in Letter Carriers v. Austin (1974).  The Court reasoned that the use of the term in a union dispute was an example of “loose, figurate language” rather than defamation.  The Court explained that the use of the term was not conveying that the employees were actually committing crimes.

Rhetorical hyperbole defense has protected editorial writers in defamation suits

In Milkovich v. Lorain Journal Co. (1989), the U.S. Supreme Court again discussed the doctrine of rhetorical hyperbole.  The Court noted that “the Constitution protects statements that cannot reasonably [be] interpreted as stating actual facts about an individual made in debate over public matters in order to provide assurance that public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation.” 

The rhetorical hyperbole doctrine or defense has often protected editorial writers and sportswriters from defamation suits.  The thinking is that those type of writers are often writing more than simply straight news reporting and, thus, are entitled to use more figurative language in their descriptions.    

Draft protester engaged in political hyperbole, not true threat to kill the president, court found

While the doctrine primarily appears in defamation cases, the concept occasionally arises in true threat cases.  

This traces back to the Supreme Court’s initial true threat decision – Watts v. United States (1969).  A young draft protester was prosecuted for violating a federal anti-threat law for saying that “the first person he would put in his scope is L.B.J”, referring to President Lyndon Baines Johnson.  The U.S. Supreme Court reversed his conviction, reasoning that he had engaged in “political hyperbole” rather than a true threat.

This article was published April 14, 2020. David L. Hudson, Jr. is a First Amendment Fellow at the Freedom Forum Institute and a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was published April 14, 2020.

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