Touro Law Review
One of the most interesting, and certainly most litigated, defamation questions in New York State is when constitutional protection should be afforded speech that arguably would be regarded as opinion. In resolving that question, the New York Court of Appeals has decided that the New York State Constitution affords greater protection for speech than does the federal constitution. While the New York standard seems to be far more generous in protecting speech than the federal standard, it may be that in the vast majority of cases, the outcomes would be the same under either state or federal analysis. The two standards use different routes to get to more or less the same place. Both standards ultimately focus on whether a reasonable reader would understand the statement to be asserting a fact about the plaintiff.
Eileen R. Kaufman and Leon Friedman,
Freedom of Speech: How Does the New York Constitution Compare to the United States Constitution, 14 Touro L. Rev. 583
Available at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/223