1173 (1919) (dissenting opinion) ("[T]he ultimate good desired is better reached by free trade in ideas—. 2. For example, in Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1290 (CA4 1987), the court found that a disparaging statement about a product test in an industry newsletter, set forth following a list of seven observations about the test's methodology, "readily appears to be nothing more than the author's personal inference from the test results. He attributes the brawl to Maple Heights coach Milkovich's wild gestures, ranting and egging the crowd on against the competing team from Mentor. Rehnquist for the Court, Brennan, joined by Marshall, in dissent. The first such statement is factual and defamatory and may support a defamation action by Jones' brother. Diadiun never says, for instance, that Milkovich committed perjury. And most courts that later considered such cases applied the same standard they had previously applied and 'reached the result that they likely would have before the Supreme Court decided [Milkovich]," writes Len Niehoff and Ashley Messenger in 2016 in "Milkovich v. Lorain Journal, Twenty-Five Years Later: The Slow, Quiet, and Troubled Demise of Liar Libel.". Although I agree with the majority that statements must be scrutinized for implicit factual assertions, the majority's scrutiny in this case does not "hol[d] the balance true," ante, at 23, between protection of individual reputation and freedom of speech. . "Probably as much in distasteful reaction to the chicanery of the two officials as in displeasure over the actual incident, the board then voted to suspend Maple from this year's tournament and to put Maple Heights, and both Milkovich and his son, Mike Jr. (the Maple Jaycee coach), on two-year probation. 'A lesson which, sadly, in view of the events of the past year, is well they learned early. " . " See Cianci, supra, at 64. "); id., at 245, 496 N.E.2d, at 702 ("These ideals are not only an integral part of First Amendment freedoms under the federal Constitution but are independently reinforced in Section 11, Article I of the Ohio Constitution . Decided June 21, 1990. * As the majority recognizes, the kind of language used and the context in which it is used may signal readers that an author is not purporting to state or imply actual, known facts. This contention is meritless. For instance, the statement, "I think Jones lied," may be provable as false on two levels. We hold that the First Amendment does not prohibit the application of Ohio's libel laws to the alleged defamations contained in the article. 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.8 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." 863, 107 L.Ed.2d 947 (1990), to consider the important questions raised by the Ohio courts' recognition of a constitutionally required "opinion" exception to the application of its defamation laws. for Cert. For the first time, the column quotes a third party's version of events. "This position is borne out by the second headline on the continuation of the article which states: '. See also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 510-511, and n. 29, 104 S.Ct. Then Diadiun guesses that by the time of the court hearing, the two officials "apparently had their version of the incident polished and reconstructed, and the judge apparently believed them." Scott, 25 Ohio St.3d, at 252-253, 496 N.E.2d, at 707-708 (emphasis in original). Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), was a United States Supreme Court case that rejected the argument that a separate opinion privilege existed against libel. . New York Times, 376 U.S., at 270, 84 S.Ct., at 720. A determination whether petitioner lied in this instance can be made on a core of objective evidence by comparing, inter alia, petitioner's testimony before the OHSAA board with his subsequent testimony before the trial court. Pp. . Lower courts have, correctly in our view, essentially ignored both holdings. The Restatement (Second) of Torts § 566, Comment c (1977), makes a similar observation. 1173. Although statements of opinion may imply an assertion of a false and defamatory fact, they do not invariably do so. Respondent J. Theodore Diadiun authored an article in an Ohio newspaper implying that petitioner Michael Milkovich, a local high school wrestling coach, lied under oath in a judicial proceeding about an incident involving petitioner and his team which occurred at a wrestling match. "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." . Diadiun not only reveals the facts upon which he is relying but he makes it clear at which point he runs out of facts and is simply guessing. The court found that application of the first two factors to the column militated in favor of deeming the challenged passages actionable assertions of fact. But the speculative conclusion itself is actionable only if it implies the existence of another false and defamatory fact. The column does not quote any testimony from the court proceeding, nor does it describe what Milkovich said in court. urge us to view the disputed statements "[a]gainst the background of a high profile controversy in a small community," and says that "[t]hey related to a matter of pressing public concern in a small town." "Fortunately, it seemed at the time, the Milkovich-Scott version of the incident presented to the board of control had enough contradictions and obvious untruths so that the six board members were able to see through it. 710, 11 L.Ed.2d 686, that the First Amendment to the United States Constitution placed limits on the application of the state law of defamation. . It was seen by legal commentators as the end of an era that began with New York … "I was among the 2,000-plus witnesses of the meet at which the trouble broke out, and I also attended the hearing before the OHSAA, so I was in a unique position of being the only non-involved party to observe both the meet itself and the Milkovich-Scott version presented to the board. Richard A. We now reverse.5 Since the latter half of the 16th century, the common law has afforded a cause of action for damage to a person's reputation by the publication of false and defamatory statements. Co. 6 . 2770, 41 L.Ed.2d 745 (1974); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. Get Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), United States Supreme Court, case facts, key issues, and holdings and reasonings online today. Of course, if the speculative conclusion is preceded by stated factual premises, and one or more of them is false and defamatory, an action for libel may lie as to them. The court granted this motion, finding that Milkovich's evidence failed to establish actual malice as a matter of law. Len Niehoff; Ashley Messenger. 158, 159, 62 L.Ed. 730, 733 (Ex.1862) (Wilde, B.)). The day after the court's decision, respondent Lorain Journal … Under Long, then, federal review is not barred in this case. 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. denied, 471 U.S. 1127, 105 S.Ct. See App. The readers of Diadiun's column would also have been alerted to regard any implicit claim of impartiality by Diadiun with skepticism because Diadiun's newspaper is published in the county in which Mentor High School—home to the team that was allegedly mauled at the wrestling meet—is located. In response to the incident, the Ohio High School Athletic Association (OHSAA) held a hearing at which Milkovich and H. Don Scott, the Superintendent of Maple Heights Public Schools, testified. 220, 226, 396 N.E.2d 996, 1000 (1979) (finding that, as listeners were told the facts upon which a radio talk show host based her conclusion, they "could make up their own minds and generate their own opinions or ideas which might or might not accord with [the host's]"). in defending a lawsuit based on statements of opinion, a defendant may win the case by arguing that the statements are-rhetorical hyperbole-protected by the first amendment-fair comment and criticism **all of these. Thus, the commissioner's alleged assertion that the testimony in court was different is quite nebulous. 710, 11 L.Ed.2d 686, the breathing space that freedoms of expression require to survive is adequately secured by existing constitutional doctrine. Diadiun begins the column by noting that, on the day before, a Court of Common Pleas had overturned the decision by the Ohio High School Athletic Association (OHSAA) to suspend the Maple Heights wrestling team from that year's state tournament. knows in his heart" that Milkovich lied—obvious hyperbole as Diadiun does not purport to have researched what everyone who attended the meet knows in his heart. 2770, 2781-2782, 41 L.Ed.2d 745 (1974) (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"). Both Maple Heights and Mentor are included in the Cleveland standard consolidated statistical area, which in 1980 had a population of 2,834,062. Nor does the general tenor of the article negate this impression. Nonetheless, the Court believed that certain significant constitutional protections were warranted in this area. Orenstein, Jeffrey. " Id., at 269, 84 S.Ct., at 720 (quoting Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. For the same reason, the court in Dunlap v. Wayne, 105 Wash.2d 529, 540, 716 P.2d 842, 849 (1986), concluded: "Arguments for actionability disappear when the audience members know the facts underlying an assertion and can judge the truthfulness of the allegedly defamatory statement themselves." 710, 732, n. 30, 11 L.Ed.2d 686 (1964) ("Since the Fourteenth Amendment requires recognition of the conditional privilege for honest misstatements of fact, it follows that a defense of fair comment must be afforded for honest expression of opinion based upon privileged, as well as true, statements of fact"); Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340, 94 S.Ct. 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.' However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas"). See 418 U.S., at 350, 94 S.Ct., at 3012 ("Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship . For instance, if Riley tells his friends that Smith cheats at cards and Smith then proves that he did not rob a convenience store, Smith cannot recover damages for libel on that basis because he has proved the wrong assertion false. Id., at 92-93, 86 S.Ct., at 679-680 (concurring opinion). "A lesson which, sadly, in view of the events of the past year, is well they learned early. Syllabus. Respondents rely on the following statements made by the Ohio Supreme Court in its discussion of Scott's status as a public official: " 'To say that Milkovich nevertheless was not a public figure for purposes of discussion about the controversy is simply nonsense,' " 25 Ohio St.3d, at 247, 496 N.E.2d, at 704 (quoting Milkovich v. Lorain Journal Co., 474 U.S. 953, 964, 106 S.Ct. But a different result must obtain if the speaker's comments had instead been as follows: "Jones' brother once lied to me; Jones just told me he was 25; I've never met Jones before and I don't actually know how old he is or anything else about him, but he looks 16; I think Jones lied about his age just now." First, that the speaker really did not think Jones had lied but said it anyway, and second that Jones really had not lied. . "But they declined to walk into the hearing and face up to their responsibilities, as one would hope a coach of Milkovich's accomplishments and reputation would do, and one would certainly expect from a man with the responsible poisition [sic ] of superintendent of schools. A reasonable factfinder could conclude that the statements in the Diadiun column imply an assertion that Milkovich perjured himself in a judicial proceeding. On appeal, the Supreme Court of Ohio reversed and remanded. Two years after its Milkovich decision, in considering Scott's appeal, the Ohio Supreme Court reversed its position on Diadiun's article, concluding that the column was "constitutionally protected opinion." 710, 720, 11 L.Ed.2d 686 (1964). The Milkovich v.Lorain Journal decision teaches that A)newspaper columns and columnists are immune from successful libel claims B)in spite of being forums for opinion,newspaper columns and columnists may be targets of successful libel claims C)letters to the editor are protected by the opinion defense D)neutral reportage is limited in its scope 21-22. . Id., at 250-252, 496 N.E.2d, at 706-707. a reader would not expect a sports writer on the sports page to be particularly knowledgeable about procedural due process and perjury. As soon as I wrote the final sentence, I listened to hundreds of voices indicating, "but my tale is 'I can say that some of the stories told to the judge sounded pretty darned unfamiliar,' said Dr. Harold Meyer, commissioner of the OHSAA, who attended the hearing. While petitioner Milkovich was a high school wrestling coach, his team was involved in an altercation at a match with another high school's team. 1. The day after the court rendered its decision, respondent Diadiun's column appeared in the News-Herald, a newspaper which circulates in Lake County, Ohio, and is owned by respondent Lorain Journal Co. Rejecting a contention that liability could be premised on the notion that the word "blackmail" implied the developer had committed the actual crime of blackmail, we held that "the imposition of liability on such a basis was constitutionally impermissible—that as a matter of constitutional law, the word 'blackmail' in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review." Milkovich. 359, 442 (1985) (stressing the need to take into account "the cultural common sense of the ordinary listener or reader").8. . See, e.g., Restatement of Torts, supra, §§ 565-567. The Ohio Supreme Court dismissed the appeal as raising no substantial constitutional question. Of course, the limitations on presumed or punitive damages established by New York Times and Gertz also apply to the type of statements at issue here. See Milkovich v. Lorain Journal, 65 Ohio App.2d 143, 416 N.E.2d 662 (1979). The article did not use the sort of loose, figurative, or hyperbolic language that would negate the impression that Diadiun was seriously maintaining Milkovich committed perjury. . The Ohio Supreme Court dismissed the ensuing appeal for want of a substantial constitutional question, and this Court denied certiorari. "But unfortunately, by the time the hearing before Judge Martin rolled around, Milkovich and Scott apparently had their version of the incident polished and reconstructed, and the judge apparently believed them. " decision to suspend the Maple Heights wrestling team from this year's state tournament. This rule was prompted by a concern that, with respect to the criticism of public officials in their conduct of governmental affairs, a state-law " 'rule compelling the critic of official conduct to guarantee the truth of all his factual assertions' would deter protected speech." Jour Azur S.A., 759 F.2d 219, 227 (CA2 1985). Such questions are matters of public concern long before all the facts are unearthed, if they ever are. See also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 108 S.Ct. speech in terms of its capacity for informing the public does not depend upon the identity of the source, whether corporation, association, union, or individual." http://mtsu.edu/first-amendment/article/563/milkovich-v-lorain-journal-co, By Richard Parker (Updated in 2018 by Deborah Fisher), Milkovich v. Lorain Journal, Twenty-Five Years Later: The Slow, Quiet, and Troubled Demise of Liar Libel, Speech on Trial: Communication Perspectives On Landmark Supreme Court Decisions, http://mtsu.edu/first-amendment/article/563/milkovich-v-lorain-journal-co. First, the media were already protected by requirements that plaintiffs prove both fault and falsity; an additional requirement of a constitutional immunity for media opinions was not necessary. 380, 66 L.Ed.2d 232 (1980). I think he must be an alcoholic.' Diadiun says Maple told a lie." 49 U. Mich. J.L. 359 (1985). Consequently, the court upheld a lower court's grant of summary judgment against Scott. "[More important,] public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. 'Twas mine, 'tis his, and has been slave to thousands; And makes me poor indeed." Monitor Patriot Co. v. Roy, 401 U.S. 265, 277, 91 S.Ct. Brent Lawson English, Cleveland, Ohio, for petitioner. In the Milkovich proceedings below, the Court of Appeals relied completely on Scott in concluding that Diadiun's article was privileged opinion. As the Scott court noted regarding the plaintiff in that case: "[W]hether or not H. Don Scott did indeed perjure himself is certainly verifiable by a perjury action with evidence adduced from the transcripts and witnesses present at the hearing. Unlike a subjective assertion the averred defamatory language is an articulation of an objectively verifiable event." 89-645. '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.' Restatement (Second) of Torts, supra, § 566, Comment a. Diadiun says that it "seemed " that Milkovich's and another official's story contained enough contradictions and obvious untruths that the OHSAA board was able to see through it and that "[p]robably " the OHSAA's suspension of the Maple Heights team reflected displeasure as much at the testimony as at the melee. Milkovich v. Lorain Journal, 497 U.S. 1 (1990) Milkovich v. Lorain Journal Co. No. Thus, it is evident from what Diadiun actually wrote that he had no unstated reasons for concluding that Milkovich perjured himself. Supreme Court of the United States. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. While the Amendment does limit such application, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. In Letter Carriers, we found that plaintiffs could not recover for being accused of being "traitor[s]" because the newsletter's readers would have understood that the author meant that plaintiffs' accurately reported actions were reprehensible and destructive to the social fabric, not that plaintiffs committed treason. This Court again denied certiorari. DOCKET NO. . New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. In Masson v. New Yorker Magazine (1991), the Court rejected constitutional protection for fabricated direct quotations, even when the purported direct statement was a “rational interpretation” of what was actually said. Since the Ohio Court of Appeals did not address the public-private figure question on remand from the Ohio Supreme Court in Milkovich (because it decided against petitioner on the basis of the opinion ruling in Scott ), the ruling of the Ohio Supreme Court in Milkovich presumably continues to be law of the case on that issue. 876, 99 L.Ed.2d 41 (1988)). Thus, since petitioner has failed to establish actual malice, his action is precluded under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. In spite of being forums for opinion, newspaper columns and columnists may be targets of successful libel claims-B. Nor could such a reader infer that Diadiun had further information about Milkovich's court testimony on which his belief was based. 46 Ohio App.3d, at 23, 545 N.E.2d, at 1324. 876, 879, 99 L.Ed.2d 41 (1988) (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"); Letter Carriers v. Austin, 418 U.S. 264, 284-286, 94 S.Ct. There is only a vague statement from the OHSAA commissioner that the testimony "sounded pretty darned unfamiliar. Falwell, 485 U.S., at 50, 108 S.Ct., at 879. This lawsuit is before us for the third time in an odyssey of litigation spanning nearly 15 years.1 Petitioner Milkovich, now retired, was the wrestling coach at Maple Heights High School in Maple Heights, Ohio. Nor does the article's general tenor negate this impression. . “Tony” Parker is an Emeritus Professor of Speech Communication at Northern Arizona University. We think this question must be answered in the affirmative. 2997, 3006-3007, 41 L.Ed.2d 789 (1974) ("Under the First Amendment there is no such thing as a false idea. The Court has previously denied certiorari twice in this litigation on various judgments rendered by the Ohio courts. Lorain Journal Co., 65 Ohio App.2d 143, 416 N.E.2d 662 (1979). Still later, in Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. Both state and federal courts have found that audiences can recognize conjecture that neither states nor implies any assertions of fact, just as they can recognize hyperbole. No. . "Milkovich v. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, and Troubles Demise of Liar Libel." 1975, 18 L.Ed.2d 1094 (1967), a majority of the Court determined "that the New York Times test should apply to criticism of 'public figures' as well as 'public officials.' A review of the context of the statements in question demonstrates that Diadiun is not making an attempt to be impartial and no secret is made of his bias. In Milkovich v. Lorain Journal Co., the Supreme Court clarified how the First Amendment affects state defamation law as relates to opinions. CERTIORARI TO THE COURT OF APPEALS OF OHIO, LAKE COUNTY *2 Brent L. English argued the cause for petitioner. [A] lesson was learned (or relearned) yesterday by the student body of Maple Heights High School, and by anyone who attended the Maple-Mentor wrestling meet of last Feb. 8. " In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S.Ct. This article was originally published in 2009 and updated in 2018. . Milkovich's ranting from the side of the mat and egging the crowd on against the meet official and the opposing team backfired during a meet with Greater Cleveland Conference rival Metor [sic ], and resulted in first the Maple Heights team, then many of the partisan crowd attacking the Mentor squad in a brawl which sent four Mentor wrestlers to the hospital. The debate over constitutional protection for statements of opinion began long before the Supreme Court’s decision in Milkovich. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. . 1949, 1964-1965, and n. 29, 80 L.Ed.2d 502 (1984) (discussing the risks of submitting various questions to juries where freedom of speech is at stake); Gertz, 418 U.S., at 349, 94 S.Ct., at 3011 (expressing concern about juries punishing unpopular opinion rather than compensating individuals for injuries sustained by the publication of a false fact); R. Smolla, Law of Defamation §§ 6.05(3)(a)-(c) (1990); Zimmerman, 18 U.C.D.L.Rev., at 430. See also National Assn. Scott v. News-Herald, 25 Ohio St.3d 243, 254, 496 N.E.2d 699, 709 (1986). 2d 1, 1990 U.S. Brief Fact Summary. See ante, at 16-17. "It is simply this: If you get in a jam, lie your way out. The Ohio Court of Appeals for the Eleventh Appellate District reversed and remanded, holding that there was sufficient evidence of actual malice to go to the jury. . "After all, the Court's recognition of protection for 'imaginative expression,' 'loose, figurative' language, and 'rhetorical hyperbole' offered an alternative strategy to defendants in defamation cases. "Any resemblance between the two occurrances [sic ] is purely coincidental. . which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail." The majority does not rest its decision today on any finding that the statements at issue explicitly state a false and defamatory fact. Opinions were presumed to be protected, in part because U.S. common law was constructed in response to persecutions in England of those who dared criticize royalty. The numerous decisions discussed above establishing First Amendment protection for defendants in defamation actions surely demonstrate the Court's recognition of the Amendment's vital guarantee of free and uninhibited discussion of public issues. In a 7-2 decision, Justice William H. Rehnquist wrote the majority opinion reversing and remanding. 3469, 77 L.Ed.2d 1201 (1983). The column contained the following passages: " '. Thus, we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled "opinion." It certainly sounded different from what Diadiun actually wrote that he had unstated... To expressions of opinion and Comment. observations of their superiors and peers, watching... A speech on the type of speech personal judgment v. 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Create a wholesale defamation exemption for `` opinion. 888, 894, 104 S.Ct. at! Testified again during a suit by several parents, in dissent 53 ( 2004:... The defamatory facts at 777, 106 S.Ct., at 254, 270 84! Obvious untruths. a second hearing was permitted and the infirmities in its reasoning 456 ( 1956 (! To... rhetorical hyperbole stated factual premise on which Diadiun 's assumption that Milkovich perjured himself in a proceeding. Ohio dismissed petitioner 's ensuing appeal for want of a substantial constitutional question warranted in this case,. Language is an articulation of an objectively verifiable event. nor does the general tenor negate this impression,!, Cleveland, Ohio John D. Brown Ohio dismissed petitioner 's ensuing appeal for want a! `` it is unbelievable relates to... rhetorical hyperbole, from watching actions and reactions `` ' of Justice '. Expressing that the paper is lying Consumers Union of United States November 3, 1980 Cleveland,,! In Maple Heights and Mentor are included in the majority does not actually state or imply false and fact... Fact—That Milkovich had perjured himself in a word, when the reasonable reader understand! 'S first Inaugural Address, 403 U.S. 29, 91 S.Ct third fourth... Peers, from watching actions and reactions § 5.28, p. 456 ( 1956 ) ( quoting Sweeney v.,! The two as 'shrugs, ' and that Milkovich perjured himself Good name in man and woman dear... Heavily laden with emotional rhetoric and moral outrage case is remanded for further proceedings not inconsistent this! Judge bought their story, our history, is just not recorded case holds the balance true, therefore the! Ca2 ), thereby precluding federal Review under Michigan v. long, U.S.! Expedient of substituting 'rhetorical hyperbole ' for 'opinion ' in their brief, amici Dow et! And Scott lied third party 's version of events decision, Justice William Rehnquist... The newspaper had accused him of perjury error of opinion. '' concept without some. Court ’ s decision in the 1980 census had a population of 29,735 Brent L. English argued the cause petitioner! 2678, 2694, 105 L.Ed.2d 562 ( 1989 ) the commissioner 's assertion...