It is still technically possible to rely on the common law defense of "fair comment" without referring to the "actual malice" standard set by the Supreme Court of the United States but that would only be a likely course of action when the defendant is absolutely sure that the facts upon which the opinion of the defendant was based were true, or that any falsehoods are not defamatory. If those facts are not absolutely true (and the actual malice standard is not taken into account) then the defendant could be sued by the plaintiff for damages, although the plaintiff would need to establish to the satisfaction of a jury that the statements were defamatory, and that the defendant published or made them.