Milkovich v. Lorain Journal Co.

(Milkovich v. Lorain Journal Co. (89-645), 497 U.S. 1 (1990))

Procedural Posture

The procedural posture of this case is extremely complex, so this will be greatly abbreviated.

Milkovich was a wrestling coach at Maple Heights High School. His team was involved in an altercation that hospitalized several players on the opposing team. The Ohio High School Athletic Association held a hearing and disciplined Milkovich and his team. Several parents sued the OHSAA and Milkovich and Superintendent Scott testified in the suit., and the Court overturned SHSAA's probation.

The Lorain Journal published an article in the sports section with a headline "Maple beat the law with the 'big lie"

Milkovich sued for defamation, claiming the article accused him of perjury--a factual statement. Lorain argued that this was an opinion piece and did not contain statements of fact.

Scott sued for defamation separately, and the Ohio Supreme Court ruled that the column was "constitutionally protected opinion." The Ohio Supreme Court used a four-factor analysis to determine that the article was opinion, rather than fact based:

These factors are: (1) "the specific language used"; (2) "whether the statement is verifiable"; (3) "the general context of the statement"; and (4) "the broader context in which the statement appeared."

Supreme Court Review of the History of Opinion/Fact Analysis

Under common law

defamatory communications were deemed actionable regardless of whether they were deemed to be statements of fact or opinion. See, e.g., Restatement of Torts, supra, §§ 565-567. As noted in the 1977 Restatement (Second) of Torts § 566, Comment a:

Under the law of defamation, an expression of opinion could be defamatory if the expression was sufficiently derogatory of another as to cause harm to his reputation, so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. . . . The expression of opinion was also actionable in a suit for defamation, despite the normal requirement that the communication be false as well as defamatory. . . . This position was maintained even though the truth or falsity of an opinion -- as distinguished from a statement of fact -- is not a matter that can be objectively determined and truth is a complete defense to a suit for defamation.

However, due to concerns that unduly burdensome defamation laws could stifle valuable public debate, the privilege of "fair comment" was incorporated into the common law as an affirmative defense to an action for defamation.

The principle of "fair comment" afford[ed] legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact.

As this statement implies, comment was generally privileged when it concerned a matter of public concern, was upon true or privileged facts, represented the actual opinion of the speaker, and was not made solely for the purpose of causing harm.

The Court went on to review New York Times v. Sullivan, Curtis Publishing Co. v. Butts, Gertz v. Robert Welch and Philadelphia Newspapers, Inc. v. Hepps. The following rules emerged under these cases.

1. A public official or public figure plaintiff must prove that the defamatory statement of fact was false. The plaintiff must also prove with convincing clarity that the statement was made with actual malice in order to recover any damages.
2. A private figure speaking on a topic of public concern must prove that the defamatory statement of fact was false. She must at least prove negligence before recovering compensatory damages and actual malice before being awarded presumed or punitive damages. These requirements protect media defendants. It is uncertain whether they also protect non-media defendants.

The Court listed several cases showing that hyperbole was also protected speech.

1. In Greenbelt Cooperative Publishing Assn., a realtor was accused of "blackmail" when it took a tough bargaining position with city council. This was protected speech because

   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.

2. Hustler Magazine, Inc. v. Falwell: First Amendment precluded recovery under state emotional distress action for ad parody which "could not reasonably have been interpreted as stating actual facts about the public figure involved"
3. Letter Carriers v. Austin: (use of the word "traitor" in literary definition of a union "scab" not basis for a defamation action under federal labor law, since used "in a loose, figurative sense" and was "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members").

 

The Question before the Court: Should the Court Declare "Opinion" is Protected Speech?

Respondents would have us recognize, in addition to the established safeguards discussed above, still another First Amendment-based protection for defamatory statements which are categorized as "opinion," as opposed to "fact." . . .

If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, "In my opinion Jones is a liar," can cause as much damage to reputation as the statement, "Jones is a liar." As Judge Friendly aptly stated:

[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words "I think."

 

. . . respondents do not really contend that a statement such as, "In my opinion John Jones is a liar," should be protected by a separate privilege for "opinion" under the First Amendment. But they do contend that, in every defamation case, the First Amendment mandates an inquiry into whether a statement is "opinion" or "fact," and that only the latter statements may be actionable. They propose that a number of factors developed by the lower courts . . . be considered in deciding which is which. But we think the "‘breathing space'" which "‘freedoms of expression require in order to survive,'" is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between "opinion" and fact.

Foremost, we think Hepps stands for the proposition that a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant is involved. Thus, unlike the statement, "In my opinion Mayor Jones is a liar," the statement, "In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin," would not be actionable. Hepps ensures that a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.

Next, the Bresler-Letter Carriers-Falwell line of cases provide protection for statements that cannot "reasonably [be] interpreted as stating actual facts" about an individual. This provides 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 New York Times-Butts and Gertz culpability requirements further ensure that debate on public issues remains "uninhibited, robust, and wide-open," Thus, where a statement of "opinion" on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth. Similarly, where such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault as required by Gertz. Finally, the enhanced appellate review required by Bose Corp. provides assurance that the foregoing determinations will be made in a manner so as not to "constitute a forbidden intrusion of the field of free expression."

We are not persuaded that, in addition to these protections, an additional separate constitutional privilege for "  opinion"    is required to ensure the freedom of expression guaranteed by the First Amendment.

 

The Lorain Journal Article Was Fact-based and Subject to a Libel Suit.

The dispositive question in the present case then becomes whether or not a reasonable factfinder could conclude that the statements in the Diadiun column imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding. We think this question must be answered in the affirmative. . . .We also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false.

 

Non-Media Defendants

The Court made clear that the discussion in this decision did not necessarily pertain to non-media defendants. The Court stated:

Foremost, we think Hepps stands for the proposition that a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant is involved. ^[n.6]

And Footnote 6 stated:

6 In Hepps the Court reserved judgment on cases involving nonmedia defendants, see 475 U.S., at 779, n.4, and accordingly we do the same. Prior to Hepps, of course, where public-official or public-figure plaintiffs were involved, the New York Times rule already required a showing of falsity before liability could result. Id., at 775.

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Dissenting Opinion (Justices Brennan and Marshall)

The dissenting opinion agrees with the majority on the law handed down by the court--that there is no separate protection for "opinion", but that "full constitutional protection" extends to any statement relating to matters of public concern "that cannot `reasonably [be] interpreted as stating actual facts' about an individual."

The only disagreement with the majority is how the law should be applied to this specific case. The dissenters do not believe that the article in the Lorain Journal should be viewed as containing factual statements. Instead, they argued, the article contained conjecture and hyperbole, and therefore should be protected from liability for defamation.

 

Did NASA officials ignore sound warnings that the Challenger Space Shuttle would explode? Did Cuban-American leaders arrange for John Fitzgerald Kennedy's assassination? Was Kurt Waldheim a Nazi officer? Such questions are matters of public concern long before all the facts are unearthed, if they ever are. Conjecture is a means of fueling a national discourse on such questions and stimulating public pressure for answers from those who know more. "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." New York Times, supra, at 269 (quoting Stromberg v. California, 283 U.S. 359, 369 (1931)). . . .

What may be more disturbing to some about Diadiun's conjecture than, say, an editorial in 1960 speculating that Francis Gary Powers was in fact a spy, despite the Government's initial assurances that he was not, is the naivete of Diadiun's conclusion. The basis of the court decision that is the subject of Diadiun's column was that Maple Heights had been denied its right to due process by the OHSAA. Diadiun, as it happens, not only knew this but included it in his column. But to anyone who knows what "due process" means, it does not follow that the court must have believed some lie about what happened at the wrestling meet, because what happened at the meet would not have been germane to the questions at issue. There may have been testimony about what happened, and that testimony may have been perjured, but to anyone who understands the patois of the legal profession there is no reason to assumefrom the court's decisionthat such testimony must have been given.

Diadiun, therefore, is guilty. He is guilty of jumping to conclusions, of benightedly assuming that court decisions are always based on the merits, and of looking foolish to lawyers. He is not, however, liable for defamation. Ignorance, without more, has never served to defeat freedom of speech. "The constitutional protection does not turn upon `the truth, popularity, or social utility of the ideas and beliefs which are offered.'" New York Times, supra, at 271 (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 445 (1963)).

I appreciate this Court's concern with redressing injuries to an individual's reputation. But as long as it is clear to the reader that he is being offered conjecture and not solid information, the danger to reputation is one we have chosen to tolerate in pursuit of "`individual liberty [and] the common quest for truth and the vitality of society as a whole.'" Falwell, supra, at 5051 (quoting Bose Corp., 466 U.S., at 503504). Readers are as capable of independently evaluating the merits of such speculative conclusions as they are of evaluating the merits of pure opprobrium. Punishing such conjecture protects reputation only at the cost of expunging a genuinely useful mechanism for public debate.

 

 

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