Milkovich v. Lorain Journal Co. 497 U.S. 1 (1990)

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This is a major free press case that has been widely misunderstood, especially by the news media. The Los Angeles Times, for example, called it a "huge setback" for freedom of the press. Under the heading, "Supreme Court Strips Away "Opinion' as Libel Defense," the Times announced that the Court had unanimously demolished "a widely used media defense against libel suits, ruling that a writer or speaker may be sued for statements that express opinion." The Times censured the Court for having acted "with astonishing recklessness … when it overturned nearly two decades of precedent and ruled that the First Amendment does not automatically protect expressions of opinion from being found libelous." A dramatic increase in libel litigation was foreseen as a result of the Court's chilling just the sort of "serious speech the First Amendment was intended to protect." Every critic, editorialist, cartoonist, and commentator faced trial, the Times predicted.

In fact, the Court did not diminish the First Amendment's protection of opinion and overruled no precedents, let alone two decades of them. It did hold, however, that opinion requires no new constitutional protection because the conventional safeguards of freedom of expression adequately protect opinion in libel cases. It held, too, that if an expression of opinion implied an assertion of objective fact on a matter of public concern, no liability for defamation would exist unless the party bringing suit proved that the publication was false and published with malice in the case of a public official or a public figure, or false and published with "some level of fault" in the case of a private individual involved in a matter of public concern.

In this case, the publication accused a private individual of perjuring himself in a judicial proceeding on a matter of public concern, but the accusation was couched in terms of opinion, for example, "anyone who attended the [wrestling] meet … knows in his heart that [Coach] Milkovich … lied at the hearing." Chief Justice william h. rehnquist, for the Court, observed that the writer should not escape liability merely because he used words such as "I think," because he might do as much damage to an individual's reputation as he would by saying flatly that he had lied.

The publishing company sought a special rule distinguishing "fact" from "opinion" and exempting opinion from the law of libel. This is what the Court refused to do because some opinions connoted facts for which their authors ought to be responsible. The Court made clear, however, that "a statement of opinion relating to a matter of public concern which does not contain a provably false factual connotation will receive full constitutional protection."

justices william j. brennan and thurgood marshall dissented, but only on the question as to whether the publisher in this case should be held accountable for libel. Significantly, Brennan, who was the Court's foremost exponent of freedom of the press in libel cases, declared that Rehnquist addressed the issue of First Amendment protection of opinion "cogently and almost entirely correctly. I agree with the Court that … only defamatory statements that are capable of being proved false are subject to liability under state libel law." Thus, the Court did not diminish constitutional protections of opinion and held, properly, that existing First Amendment doctrines adequately served to insulate from libel prosecutions the expression of sheer opinion in matters of public interest.

Leonard W. Levy