Subject:  MILKOVICH v. LORAIN JOURNAL CO., Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


MILKOVICH v. LORAIN JOURNAL CO. et al.


certiorari to the court of appeals of ohio, lake county

No. 89-645.  Argued April 24, 1990--Decided June 21, 1990

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.
Both he and School Superintendent Scott testified at an investigatory
hearing before the Ohio High School Athletic Association (OHSAA), which
placed the team on probation.  They testified again during a suit by
several parents, in which a county court overturned OHSAA's ruling.  The
day after the court's decision, respondent Lorain Journal Company's
newspaper published a column authored by respondent Diadiun, which implied
that Milkovich lied under oath in the judicial proceeding.  Milkovich
commenced a defamation action against respondents in the county court,
alleging that the column accused him of committing the crime of perjury,
damaged him in his occupation of teacher and coach, and constituted libel
per se.  Ultimately, the trial court granted summary judgment for
respondents.  The Ohio Court of Appeals affirmed, considering itself bound
by the State Supreme Court's determination in Superintendent Scott's
separate action against respondents that, as a matter law, the article was
constitutionally protected opinion.

Held:

    1. The First Amendment does not require a separate "opinion" privilege
limiting the application of state defamation laws.  While the Amendment
does limit such application, New York Times Co. v. Sullivan, 376 U. S. 254,
the breathing space that freedoms of expression require to survive is
adequately secured by existing constitutional doctrine.  Foremost, where a
media defendant is involved, a statement on matters of public concern must
be provable as false before liability can be assessed, Philadelphia
Newspapers, Inc. v. Hepps, 475 U. S. 767, thus ensuring full constitutional
protection for a statement of opinion having no provably false factual
connotation.  Next, statements that cannot reasonably be interpreted as
stating actual facts about an individual are protected, see, e. g.,
Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6, thus
assuring that public debate will not suffer for lack of "imaginative
expression" or the "rhetorical hyperbole" which has traditionally added
much to the discourse of this Nation.  The reference to "opinion" in dictum
in Gertz v. Robert Welch, Inc., 418 U. S. 323, 339-340, was not intended to
create a wholesale defamation exemption for "opinion."  Read in context,
the Gertz dictum is merely a reiteration of Justice Holmes' "marketplace of
ideas" concept, see Abrams v. United States, 250 U. S. 616, 630.  Simply
couching a statement--"Jones is a liar"--in terms of opinion--"In my
opinion Jones is a liar"--does not dispel the factual implications
contained in the statement.  Pp. 9-19.

    2. A reasonable factfinder could conclude that the statements in the
Diadiun column imply an assertion that Milkovich perjured himself in a
judicial proceeding.  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.  Nor does
the article's general tenor negate this impression.  In addition, the
connotation that Milkovich committed perjury is sufficiently factual that
it is susceptible of being proved true or false by comparing, inter alia,
his testimony before the OHSAA board with his subsequent testimony before
the trial court.  P. 19.

    3. This decision balances the First Amendment's vital guarantee of free
and uninhibited discussion of public issues with the important social
values that underlie defamation law and society's pervasive and strong
interest in preventing and redressing attacks upon reputation.  Pp. 20-21.

46 Ohio App. 3d 20, 545 N. E. 2d 1320, reversed and remanded.

Rehnquist, C. J., delivered the opinion of the Court, in which White,
Blackmun, Stevens, O'Connor, Scalia, and Kennedy, JJ., joined.  Brennan,
J., filed a dissenting opinion, in which Marshall, J., joined.

------------------------------------------------------------------------------




Subject: 89-645--OPINION, MILKOVICH v. LORAIN JOURNAL CO.

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-645



MICHAEL MILKOVICH, Sr., PETITIONER v. LORAIN JOURNAL CO. et al.

on writ of certiorari to the court of appeals of ohio, lake county

[June 21, 1990]



    Chief Justice Rehnquist delivered the opinion of the Court.

    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.  Petitioner
sued Diadiun and the newspaper for libel, and the Ohio Court of Appeals
affirmed a lower court entry of summary judgment against petitioner.  This
judgment was based in part on the grounds that the article constituted an
"opinion" protected from the reach of state defamation law by the First
Amendment to the United States Constitution.  We hold that the First
Amendment does not prohibit the application of Ohio's libel laws to the
alleged defamations contained in the article.   This case 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.  In 1974, his team was involved in an
altercation at a home wrestling match with a team from Mentor High School.
Several people were injured.  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.  Following the hearing, OHSAA placed the Maple Heights team on
probation for a year and declared the team ineligible for the 1975 state
tournament.  OSHAA also censored Milkovich for his actions during the
altercation.  Thereafter, several parents and wrestlers sued OHSAA in the
Court of Common Pleas of Franklin County, Ohio, seeking a restraining order
against OHSAA's ruling on the grounds that they had been denied due process
in the OHSAA proceeding.  Both Milkovich and Scott testified in that
proceeding.  The court overturned OHSAA's probation and ineligibility
orders on due process grounds.
    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.  The column
bore the heading "Maple beat the law with the `big lie,' " beneath which
appeared Diadun's photograph and the words "TD Says."  The carryover page
headline announced " . . .  Diadiun says Maple told a lie."  The column
contained the following passages:

    " `. . .  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.
    " `A lesson which, sadly, in view of the events of the past year, is
well they learned early.
    " `It is simply this: If you get in a jam, lie your way out.
    " `If you're successful enough, and powerful enough, and can sound
sincere enough, you stand an excellent chance of making the lie stand up,
regardless of what really happened.
    " `The teachers responsible were mainly Maple wrestling coach, Mike
Milkovich, and former superintendent of schools, H. Donald Scott.


    " `Anyone who attended the meet, whether he be from Maple Heights,
Mentor, or impartial observer, knows in his heart that Milkovich and Scott
lied at the hearing after each having given his solemn oath to tell the
truth.   " `But they got away with it.
    " `Is that the kind of lesson we want our young people learning from
their high school administrators and coaches?
    " `I think not."  See Milkovich v. The News-Herald, 46 Ohio App. 3d 20,
21, 545 N. E. 2d 1320, 1321-1322 (1989). {2}


    Petitioner commenced a defamation action against respondents in the
Court of Common Pleas of Lake County, Ohio, alleging that the headline of
Diadiun's article and the 9 passages quoted above "accused plaintiff of
committing the crime of perjury, an indictable offense in the State of
Ohio, and damaged plaintiff directly in his life-time occupation of coach
and teacher, and constituted libel per se."  App. 12.  The action proceeded
to trial, and the court granted a directed verdict to respondents on the
grounds that the evidence failed to establish the article was published
with "actual malice" as required by New York Times Co. v. Sullivan, 376 U.
S. 254 (1964).  See App. 21-22.  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.  See Milkovich v. The Lorain
Journal, 65 Ohio App. 2d 143, 416 N. E. 2d 662 (1979).  The Ohio Supreme
Court dismissed the ensuing appeal for want of a substantial constitutional
question, and this Court denied certiorari.  449 U. S. 966 (1980).
    On remand, relying in part on our decision in Gertz v. Robert Welch,
Inc., 418 U. S. 323 (1974), the trial court granted summary judgment to
respondents on the grounds that the article was an opinion protected from a
libel action by "constitutional law," App. 55, and alternatively, as a
public figure, petitioner had failed to make out a prima facie case of
actual malice.  App. 55-59.  The Ohio Court of Appeals affirmed both
determinations.  Id., at, 62-70.  On appeal, the Supreme Court of Ohio
reversed and remanded.  The court first decided that petitioner was neither
a public figure nor a public official under the relevant decisions of this
Court.  See Milkovich v. News-Herald, 15 Ohio St. 3d 292, 294-299, 473 N.
E. 2d 1191, 1193-1196 (1984).  The court then found that "the statements in
issue are factual assertions as a matter of law, and are not
constitutionally protected as the opinions of the writer. . . . The plain
import of the author's assertions is that Milkovich, inter alia, committed
the crime of perjury in a court of law."  Id., at 298-299, 473 N. E. 2d, at
1196-1197.  This Court again denied certiorari.  474 U. S. 953 (1985).
    Meanwhile, Superintendent Scott had been pursuing a separate defamation
action through the Ohio courts.  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."  Scott v. News-Herald, 25 Ohio St. 3d 243, 254, 496 N.
E. 2d 699, 709 (1986).  Consequently, the court upheld a lower court's
grant of summary judgment against Scott.
    The Scott court decided that the proper analysis for determining
whether utterances are fact or opinion was set forth in the decision of the
United States Court of Appeals for the D. C. Circuit in Ollman v. Evans,
242 U. S. App. D. C. 301, 750 F. 2d 970 (1984), cert. denied, 471 U. S.
1127 (1985).  See Scott, 25 Ohio St. 3d, at 250, 496 N. E. 2d, at 706.
Under that analysis, four factors are considered to ascertain whether,
under the "totality of circumstances," a statement is fact or opinion.
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."  Id., at 706.
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.  Id., at 250-252, 496 N. E. 2d, at 706-707.  That potential
outcome was trumped, however, by the court's consideration of the third and
fourth factors.  With respect to the third factor, the general context, the
court explained that "the large caption `TD Says' . . . would indicate to
even the most gullible reader that the article was, in fact, opinion."
Id., at 252, 496 N. E. 2d, at 707. {3}  As for the fourth factor, the
"broader context," the court reasoned that because the article appeared on
a sports page--"a traditional haven for cajoling, invective, and
hyperbole"--the article would probably be construed as opinion.  Id., at
253-254, 496 N. E. 2d, at 708. {4}
    Subsequently, considering itself bound by the Ohio Supreme Court's
decision in Scott, the Ohio Court of Appeals in the instant proceedings
affirmed a trial court's grant of summary judgment in favor of respondents,
concluding that "it has been decided, as a matter of law, that the article
in question was constitutionally protected opinion."  Milkovich v.
News-Herald, 46 Ohio App. 3d 20, at 23, 545 N. E. 2d at, 1324.  The Supreme
Court of Ohio dismissed petitioner's ensuing appeal for want of a
substantial constitutional question.  App. 119.  We granted certiorari, 493
U. S. ---- (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.  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.  See L. Eldredge, Law of Defamation 5 (1978).
    In Shakespeare's Othello, Iago says to Othello:

"Good name in man and woman, dear my lord.
Is the immediate jewel of their souls.
Who steals my purse steals trash;
`Tis something, nothing;
`Twas mine, `tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed."  Act III, scene 3.


Defamation law developed not only as a means of allowing an individual to
vindicate his good name, but also for the purpose of obtaining redress for
harm caused by such statements.  Eldredge, supra, at 5.  As the common law
developed in this country, apart from the issue of damages, one usually
needed only allege an unprivileged publication of false and defamatory
matter to state a cause of action for defamation.  See, e. g., Restatement
of Torts MDRV 558 (1938); Gertz v. Robert Welch, Inc., 418 U. S., at 370
(White, J., dissenting) ("Under typical state defamation law, the defamed
private citizen had to prove only a false publication that would subject
him to hatred, contempt, or ridicule").  The common law generally did not
place any additional restrictions on the type of statement that could be
actionable.  Indeed, 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, 15 565-567.  As noted in the 1977
Restatement (Second) of Torts MDRV 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."  1 F. Harper & F.
James, Law of Torts MDRV 5.28, p. 456 (1956) (footnote omitted).  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.  See Restatement of Torts, supra, MDRV 606.  "According to
the majority rule, the privilege of fair comment applied only to an
expression of opinion and not to a false statement of fact, whether it was
expressly stated or implied from an expression of opinion."  Restatement
(Second) of Torts, supra, MDRV 566 Comment a.  Thus under the common law,
the privilege of "fair comment" was the device employed to strike the
appropriate balance between the need for vigorous public discourse and the
need to redress injury to citizens wrought by invidious or irresponsible
speech.
    In 1964, we decided in New York Times Co. v. Sullivan, 376 U. S. 254,
that the First Amendment to the United States Constitution placed limits on
the application of the state law of defamation.  There the Court recognized
the need for "a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with `actual
malice'--that is, with knowledge that it was false or with reckless
disregard of whether it was false or not."  376 U. S., at 279-280.  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."  Gertz v. Robert
Welch, Inc., 418 U. S., at 334 (quoting New York Times, supra, at 279).
    Three years later, in Curtis Publishing Co. v. Butts, 388 U. S. 130
(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.'  The Court extended the constitutional privilege announced in
that case to protect defamatory critcism of nonpublic persons `who are
nevertheless intimately involved in the resolution of important public
questions or, by reason of their fame, shape events in areas of concern to
society at large.' "  Gertz, supra, at 336-337 (quoting Butts, 388 U. S.,
at 164 (Warren, C. J., concurring in result)).  As Chief Justice Warren
noted in concurrence, "[o]ur citizenry has a legitimate and substantial
interest in the conduct of such persons, and freedom of the press to engage
in uninhibited debate about their involvement in public issues and events
is as crucial as it is in the case of `public officials.' "  Butts, supra,
at 164.  The Court has also determined that both for public officials and
public figures, a showing of New York Times malice is subject to a clear
and convincing standard of proof.  Gertz, supra, at 342.
    The next step in this constitutional evolution was the Court's
consideration of a private individual's defamation actions involving
statements of public concern.  Although the issue was intially in doubt,
see Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), the Court
ultimately concluded that the New York Times malice standard was
inappropriate for a private person attempting to prove he was defamed on
matters of public interest.  Gertz v. Robert Welch, Inc., supra.  As we
explained:

"Public officials and public figures usually enjoy significantly greater
access to the channels of effective communication and hence have a more
realistic opportunity to counteract false statements than private
individuals normally enjoy.



    "[More important,] public officials and public figures have voluntarily
exposed themselves to increased risk of injury from defamatory falsehood
concerning them.  No such assumption is justified with respect to a private
individual."  Id., at 344-345 (footnote omitted).


Nonetheless, the Court believed that certain significant constitutional
protections were warranted in this area.  First, we held that the States
could not impose liability without requiring some showing of fault.  See
id., at 347-348 ("This approach . . . recognizes the strength of the
legitimate state interest in compensating private individuals for wrongful
injury to reputation, yet shields the press and broadcast media from the
rigors of strict liability for defamation").  Second, we held that the
States could not permit recovery of presumed or punitive damages on less
than a showing of New York Times malice.  See id., at 350 ("Like the
doctrine of presumed damages, jury discretion to award punitive damages
unnecessarily exacerbates the danger of media self- censorship . . .").
    Still later, in Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767
(1986), we held "that the common-law presumption that defamatory speech is
false cannot stand when a plaintiff seeks damages against a media defendant
for speech of public concern."  475 U. S., at 777.  In other words, the
Court fashioned "a constitutional requirement that the plaintiff bear the
burden of showing falsity, as well as fault, before recovering damages."
Id., at 776.  Although recognizing that "requiring the plaintiff to show
falsity will insulate from liability some speech that is false, but
unprovably so," the Court believed that this result was justified on the
grounds that "placement by state law of the burden of proving truth upon
media defendants who publish speech of public concern deters such speech
because of the fear that liability will unjustifiably result."  Id., at
777-778.
    We have also recognized constitutional limits on the type of speech
which may be the subject of state defamation actions.  In Greenbelt
Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970), a real
estate developer had engaged in negotiations with a local city council for
a zoning variance on certain of his land, while simultaneously negotiating
with the city on other land the city wished to purchase from him.  A local
newspaper published certain articles stating that some people had
characterized the developer's negotiating position as "blackmail," and the
developer sued for libel.  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."  Id., at 13.  Noting that the published reports "were
accurate and full," the Court reasoned that "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."  Id., at 13-14.  See also Hustler
Magazine, Inc. v. Falwell, 485 U. S. 46, 50 (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 (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").
    The Court has also determined "that in cases raising First Amendment
issues . . . an appellate court has an obligation to `make an independent
examination of the whole record' in order to make sure that `the judgment
does not constitute a forbidden intrusion on the field of free expression.'
"  Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499
(1984) (quoting New York Times, 376 U. S., at 284-286).  "The question
whether the evidence in the record in a defamation case is sufficient to
support a finding of actual malice is a question of law."  Harte-Hanks
Communications, Inc. v. Connaughton, 491 U. S., ----, ---- (1989).
    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."  For this proposition they rely principally on the following dictum
from our opinion in Gertz:
"Under the First Amendment there is no such thing as a false idea.  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.  But
there is no constitutional value in false statements of fact."  418 U. S.,
at 339-340 (footnote omitted).


Judge Friendly appropriately observed that this passage "has become the
opening salvo in all arguments for protection from defamation actions on
the ground of opinion, even though the case did not remotely concern the
question."  Cianci v. New Times Publishing Co., 639 F. 2d 54, 61 (CA 2
1980).  Read in context, though, the fair meaning of the passage is to
equate the word "opinion" in the second sentence with the word "idea" in
the first sentence.  Under this view, the language was merely a reiteration
of Justice Holmes' classic "marketplace of ideas" concept.  See Abrams v.
United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting) ("[T]he
ultimate good desired is better reached by free trade in ideas . . . the
best test of truth is the power of the thought to get itself accepted in
the competition of the market").
    Thus we do not think this passage from Gertz was intended to create a
wholesale defamation exemption for anything that might be labeled
"opinion."  See Cianci, supra, at 62, n. 10 (The "marketplace of ideas"
origin of this passage "points strongly to the view that the `opinions'
held to be constitutionally protected were the sort of thing that could be
corrected by discussion").  Not only would such an interpretation be
contrary to the tenor and context of the passage, but it would also ignore
the fact that expressions of "opinion" may often imply an assertion of
objective 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.' "  See
Cianci, supra, at 64.  It is worthy of note that at common law, even the
privilege of fair comment did not extend to "a false statement of fact,
whether it was expressly stated or implied from an expression of opinion."
Restatement (Second) of Torts, supra, MDRV 566 Comment a.
    Apart from their reliance on the Gertz dictum, 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 (in what we
hold was a mistaken reliance on the Gertz dictum) be considered in deciding
which is which.  But we think the " `breathing space' " which " `freedoms
of expression require in order to survive,' " Hepps, 475 U. S., at 772
(quoting New York Times, 376 U. S., at 272), 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. {6}  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. {7}
    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.  Falwell, 485 U. S., at 50.
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.  See id., at
53-55.
    The New York Times-Butts and Gertz culpability requirements further
ensure that debate on public issues remains "uninhibited, robust, and
wide-open," New York Times, 376 U. S., at 270.  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. {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."  Bose, 466 U. S., at
499 (quotation omitted).
    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
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.  As the Ohio Supreme Court itself observed, "the clear impact
in some nine sentences and a caption is that [Milkovich] `lied at the
hearing after . . . having given his solemn oath to tell the truth.' "
Scott, 25 Ohio St. 3d, at 251, 496 N. E. 2d, at 707.  This is not the sort
of loose, figurative or hyperbolic language which would negate the
impression that the writer was seriously maintaining petitioner committed
the crime of perjury.  Nor does the general tenor of the article negate
this impression.
    We also think the connotation that petitioner committed perjury is
sufficiently factual to be susceptible of being proved true or false.  A
determination of whether petitioner lied in this instance can be made on a
core of objective evidence by comparing, inter alia, petitioner's testimony
before the OSHAA board with his subsequent testimony before the trial
court.  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."  25 Ohio St. 3d, at 252, 496 N. E. 2d, at 707.  So too with
petitioner Milkovich. {9}
    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.  But there is also another side to
the equation; we have regularly acknowledged the "important social values
which underlie the law of defamation," and recognize that "[s]ociety has a
pervasive and strong interest in preventing and redressing attacks upon
reputation."  Rosenblatt v. Baer, 383 U. S. 75, 86 (1966).  Justice Stewart
in that case put it with his customary clarity:

"The right of a man to the protection of his own reputation from
unjustified invasion and wrongful hurt reflects no more than our basic
concept of the essential dignity and worth of every human being--a concept
at the root of any decent system of ordered liberty.




"The destruction that defamatory falsehood can bring is, to be sure, often
beyond the capacity of the law to redeem.  Yet, imperfect though it is, an
action for damages is the only hope for vindication or redress the law
gives to a man whose reputation has been falsely dishonored."  Id., at
92-93 (Stewart, J., concurring).


    We believe our decision in the present case holds the balance true.
The judgment of the Ohio Court of Appeals is reversed and the case remanded
for further proceedings not inconsistent with this opinion.
Reversed.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    The Court has previously denied certiorari twice in this case on
various judgments rendered by the Ohio courts.  See 474 U. S. 953 (1985);
449 U. S. 966 (1980).

2
    In its entirety, the article reads as follows:
    "Yesterday in the Franklin County Common Pleas Court, judge Paul Martin
overturned an Ohio High School Athletic Assn. decision to suspend the Maple
Heights wrestling team from this year's state tournament.
    "It's not final yet--the judge granted Maple only a temporary
injunction against the ruling--but unless the judge acts much more quickly
than he did in this decision (he has been deliberating since a Nov. 8
hearing) the temporary injunction will allow Maple to compete in the
tournament and make any further discussion meaningless.
    "But there is something much more important involved here than whether
Maple was denied due process by the OHSAA, the basis of the temporary
injunction.
    "When a person takes on a job in a school, whether it be as a teacher,
coach, administrator or even maintenance worker, it is well to remember
that his primary job is that of educator.
    "There is scarcely a person concerned with school who doesn't leave his
mark in some way on the young people who pass his way--many are the lessons
taken away from school by students which weren't learned from a lesson plan
or out of a book.  They come from personal experiences with and
observations of their superiors and peers, from watching actions and
reactions.
    "Such 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.
    "A lesson which, sadly, in view of the events of the past year, is well
they learned early.
    "It is simply this: If you get in a jam, lie your way out.
    "If you're successful enough, and powerful enough, and can sound
sincere enough, you stand an excellent chance of making the lie stand up,
regardless of what really happened.
    "The teachers responsible were mainly head Maple wrestling coach Mike
Milkovich and former superintendent of schools H. Donald Scott.
    "Last winter they were faced with a difficult situation.  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.
    "Naturally, when Mentor protested to the governing body of high school
sports, the OHSAA, the two men were called on the carpet to account for the
incident.
    "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.
    "Instead they chose to come to the hearing and misrepresent the things
that happened to the OHSAA Board of Control, attempting not only to
convince the board of their own innocence, but, incredibly, shift the blame
of the affair to Mentor.
    "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.
    "Any resemblance between the two occurrances [sic] is purely
coincidental.
    "To anyone who was at the meet, it need only be said that the Maple
coach's wild gestures during the events leading up to the brawl were passed
off by the two as `shrugs,' and that Milkovich claimed he was `Powerless to
control the crowd' before the melee.
    "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.
    "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.
    "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.
    " `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.  `It certainly sounded different from what they told
us.'
    "Nevertheless, the judge bought their story, and ruled in their favor.
    Anyone who attended the meet, whether he be from Maple Heights, Mentor,
or impartial observer, knows in his heart that Milkovich and Scott lied at
the hearing after each having given his solemn oath to tell the truth.
    "But they got away with it.
    "Is that the kind of lesson we want our young people learning from
their high school administrators and coaches?
    I think not."

3
    The court continued:

"This position is borne out by the second headline on the continuation of
the article which states: `. . .  Diadiun says Maple told a lie.' . . . The
issue, in context, was not the statement that there was a legal hearing and
Milko vich and Scott lied.  Rather, based upon Diadiun's having witnessed
the original altercation and OHSAA hearing, it was his view that any
position represented by Milkovich and Scott less than a full admission of
culpability was, in his view, a lie. . . . 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. . . .  While Diadiun's
mind is certainly made up, the average reader viewing the words in their
internal context would be hard pressed to accept Diadiun's statements as an
impartial reporting of perjury."  Scott, 25 Ohio St. 3d, at 252-253, 496 N.
E. 2d, at 707-708 (emphasis in original).

4
    Specifically, the court reasoned as follows:

"It is important to recognize that Diadiun's article appeared on the sports
page--a traditional haven for cajoling, invective, and hyperbole. . . . In
this broader context we doubt that a reader would assign the same weight to
Diadiun's statement as if it had appeared under the byline `Law
Correspondent' on page one of the newspaper. . . . On balance . . . a
reader would not expect a sports writer on the sports page to be
particularly knowledgeable about procedural due process and perjury.  It is
our belief that `legal conclusions' in such a context would probably be
construed as the writer's opinion."  Scott, 25 Ohio St. 3d, at 253-254, 496
N. E. 2d, at 708.


5
    Preliminarily, respondents contend that our review of the "opinion"
question in this case is precluded by the Ohio Supreme Court's decision in
Scott, supra.  First, respondents claim that the determination by the Ohio
Supreme Court in Milkovich v. News-Herald, 15 Ohio St. 3d 292, 298, 473 N.
E. 2d 1191, 1196 (1984), that petitioner is not a public official or figure
was overruled in Scott.  Thus, since petitioner has failed to establish
actual malice, his action is precluded under New York Times Co. v.
Sullivan, 376 U. S. 254 (1964) and Curtis Publishing Co. v. Butts, 388 U.
S. 130 (1967).  This contention is meritless.  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,' " Scott, 25 Ohio St. 3d, at 247, 496 N. E. 2d, at 704
(quoting Milkovich v. Lorain Journal Co., et al., 474 U. S. 953, 964 (1985)
(Brennan, J., dissenting from the denial of certiorari)), and "we overrule
Milkovich in its restrictive view of public officials and hold a public
school superintendent is a public official for purposes of defamation law."
Scott, 25 Ohio St. 3d, at 248, 496 N. E. 2d, at 704.  However, it is clear
from the context in which these statements were made that the court was
simply supporting its determination that Scott was a public official, and
that as relates to petitioner Milkovich, these statements were pure dicta.
But more importantly, petitioner Milkovich was not a party to the
proceedings in Scott and thus would not be bound by anything in that ruling
under Ohio law.  See Hainbuchner v. Miner, 31 Ohio St. 3d 133, 137, 509 N.
E. 2d 424, 427 (1987) ("It is universally recognized that a former
judgment, in order to be res judicata in a subsequent action, must have
been rendered in an action in which the parties to the subsequent action
were adverse parties") (quotation omitted).  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.  See Hawley v. Ritley, 35 Ohio St. 3d 157, 160, 519 N. E. 2d
390, 393 (1988) ("[T]he decision of a reviewing court in a case remains the
law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels").
    Nor is there any merit to respondents' contention that the Court of
Appeals below alternatively decided there was no negligence in this case
even if petitioner were regarded as a private figure, and thus the action
is precluded by our decision in Gertz v. Robert Welch, Inc., 418 U. S. 323
(1974).  Although the appellate court noted that "the instant cause does
not present any material issue of fact as to negligence or `actual malice,'
" Milkovich v. News-Herald, 46 Ohio App. 3d 20, 24, 545 N. E. 2d 1320, 1325
(1989), this statement was immediately explained by the court's following
statement that the Scott ruling on the opinion issue had accorded
respondents' absolute immunity from liability.  See Ibid.  The court never
made an evidentiary determination on the issue of respondents' negligence.
    Next, respondents concede that the Scott court relied on both the
United States Constitution as well as the Ohio Constitution in its
recognition of an  opinion privilege, Brief for Respondent 18, but argue
that certain statements made by the court evidenced an intent to
independently rest the decision on state law grounds, see 25 Ohio St. 3d,
at 244, 496 N. E. 2d, at 701 ("We find the article to be an opinion,
protected by Section 11, Article I of the Ohio Constitution. . . ."); 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
. . ."), thereby precluding federal review under Michigan v. Long, 463 U.
S. 1032 (1983).  We similarly reject this contention.  In the Milkovich
proceedings below, the Court of Appeals relied completely on Scott in
concluding that Diadiun's article was privileged opinion.  See 46 Ohio App.
3d, at 23-25, 545 N. E. 2d, at 1324-1325.  Scott relied heavily on federal
decisions interpreting the scope of First Amendment protection accorded
defamation defendants, see, e. g., 25 Ohio St. 3d, at 244, 496 N. E. 2d, at
701 ("The federal Constitution has been construed to protect published
opinions ever since the United States Supreme Court's opinion in Gertz v.
Robert Welsh, Inc. [, supra] . . ."), and concluded that "[b]ased upon the
totality of circumstances it is our view that Diadiun's article was
constitutionally protected opinion both with respect to the federal
Constitution and under our state Constitution."  25 Ohio St. 3d, at 254,
496 N. E. 2d, at 709.  Thus, the Scott decision was at least "interwoven
with the federal law," was not clear on its face as to the court's intent
to rely on independent state grounds, yet failed to make a "plain statement
. . . that the federal cases . . . [did] not themselves compel the result
that the court . . . reached."  Long, supra, at 1040-1041.  Under Long,
then, federal review is not barred in this case.  We note that the Ohio
Supreme Court remains free, of course, to address all of the foregoing
issues on remand.

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.

7
    We note that the issue of falsity relates to the defamatory facts
implied by a statement.  For instance, the statement, "I think Jones lied,"
may be provable as false on two levels.  First, that the speaker really did
not think Jones had lied but said it anyway, and second that Jones really
had not lied.  It is, of course, the second level of falsity which would
ordinarily serve as the basis for a defamation action, though falsity at
the first level may serve to establish malice where that is required for
recovery.

8
    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.

9
    In their brief, amici Dow Jones, et al. 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."  Brief for Dow Jones et al. as Amici
Curiae 27.  We do not have the same certainty as do amici that people in a
"small town" view statements such as these differently from people in a
large city.  Be that as it may, however, amici err in their factual
assumption.  Maple Heights is located in Cuyahoga County, Ohio, and in the
1980 census had a population of 29,735.  Mentor is located in Lake County,
Ohio, and in the 1980 census had a population of 42,065.  Lake County
adjoins Cuyahoga County on the east, and in the 1980 census had a
population of 212,801.  Both Maple Heights and Mentor are included in the
Cleveland standard consolidated statistical area, which in 1980 had a
population of 2,834,062.  The high schools of both Mentor and Maple Heights
played in the Greater Cleveland Conference.





Subject: 89-645--DISSENT, MILKOVICH v. LORAIN JOURNAL CO.

 


    SUPREME COURT OF THE UNITED STATES


No. 89-645



MICHAEL MILKOVICH, Sr., PETITIONER v. LORAIN JOURNAL CO. et al.

on writ of certiorari to the court of appeals of ohio, lake county

[June 21, 1990]



    Justice Brennan, with whom Justice Marshall joins, dissenting.
    Since this Court first hinted that the First Amendment provides some
manner of protection for statements of opinion, {1} notwithstanding any
common-law protection, courts and commentators have struggled with the
contours of this protection and its relationship to other doctrines within
our First Amendment jurisprudence.  Today, for the first time, the Court
addresses this question directly and, to my mind, does so cogently and
almost entirely correctly.  I agree with the Court that under our line of
cases culminating in Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767,
777 (1986), only defamatory statements that are capable of being proved
false are subject to liability under state libel law.  See ante, at 14. {2}
I also agree with the Court that the "statement" that the plaintiff must
prove false under Hepps is not invariably the literal phrase published but
rather what a reasonable reader would have understood the author to have
said.  See ante, at 14-15 (discussing Greenbelt Cooperative Publishing
Assn., Inc. v. Bresler, 398 U. S. 6 (1970); Letter Carriers v. Austin, 418
U. S. 264 (1974); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988)).
    In other words, while the Court today dispels any misimpression that
there is a so-called opinion privilege wholly in addition to the
protections we have already found to be guaranteed by the First Amendment,
it determines that a protection for statements of pure opinion is dictated
by existing First Amendment doctrine.  As the Court explains, "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."  Ante, at 18.  Among the circumstances to be
scrutinized by a court in ascertaining whether a statement purports to
state or imply "actual facts about an individual," as shown by the Court's
analysis of the statements at issue here, see ante, at 19 and n. 9, are the
same indicia that lower courts have been relying on for the past decade or
so to distinguish between statements of fact and statements of opinion: the
type of language used, the meaning of the statement in context, whether the
statement is verifiable, and the broader social circumstances in which the
statement was made.  See, e. g., Potomac Valve & Fitting Inc. v. Crawford
Fitting Co., 829 F. 2d 1280 (CA4 1987); Janklow v. Newsweek, Inc., 788 F.
2d 1300 (CA8 1986); Ollman v. Evans, 242 U. S. App. D. C. 301, 750 F. 2d
970 (1984), cert. denied, 471 U. S. 1127 (1985).
    With all of the above, I am essentially in agreement.  I part company
with the Court at the point where it applies these general rules to the
statements at issue in this case because I find that the challenged
statements cannot reasonably be interpreted as either stating or implying
defamatory facts about petitioner.  Under the rule articulated in the
majority opinion, therefore, the statements are due "full constitutional
protection."  I respectfully dissent.

I
    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.  In such cases, this Court has rejected
claims to the contrary and found that liability may not attach "as a matter
of constitutional law."  Ante, at 14.  See, e. g., Bresler, supra
(metaphor); Letter Carriers, supra (hyperbole); Falwell, supra (parody).
In Bresler, for example, we found that Bresler could not recover for being
accused of "blackmail" because the readers of the article would have
understood the author to mean only that Bresler was manipulative and
extremely unreasonable.  See ante, at 14.  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.
See ante, at 15.
    Statements of belief or opinion are like hyperbole, as the majority
agrees, in that they are not understood as actual assertions of fact about
an individual, but they may be actionable if they imply the existence of
false and defamatory facts.  See ante, at 16.  The majority provides some
general guidance for identifying when statements of opinion imply
assertions of fact.  But it is a matter worthy of further attention in
order "to confine the perimeters of [an] unprotected category within
acceptably narrow limits in an effort to ensure that protected expression
will not be inhibited."  Bose Corp. v. Consumers Union of United States,
Inc., 466 U. S. 485, 505 (1984).  Although statements of opinion may imply
an assertion of a false and defamatory fact, they do not invariably do so.
Distinguishing which statements do imply an assertion of a false and
defamatory fact requires the same solicitous and thorough evaluation that
this Court has engaged in when determining whether particular exaggerated
or satirical statements could reasonably be understood to have asserted
such facts.  See Bresler, supra; Letter Carriers, supra, Falwell, supra.
As Justice Holmes observed long ago: "A word is not a crystal, transparent
and unchanged, it is the skin of a living thought and may vary greatly in
color and content according to the circumstances and time in which it is
used."  Towne v. Eisner, 245 U. S. 418, 425 (1918).
    For instance, the statement that "Jones is a liar," or the example
given by the majority, "In my opinion John Jones is a liar"--standing
alone--can reasonably be interpreted as implying that there are facts known
to the speaker to cause him to form such an opinion.  See ante, at 16.  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."  In the latter case, there are at least six statements, two of
which may arguably be actionable.  The first such statement is factual and
defamatory and may support a defamation action by Jones' brother.  The
second statement, however, that "I think Jones lied about his age just
now," can be reasonably interpreted in context only as a statement that the
speaker infers, from the facts stated, that Jones told a particular lie.
It is clear to the listener that the speaker does not actually know whether
Jones lied and does not have any other reasons for thinking he did. {3}
Thus, the only fact implied by the second statement is that the speaker
drew this inference.  If the inference is sincere or nondefamatory, the
speaker is not liable for damages. {4}

II
    The majority does not rest its decision today on any finding that the
statements at issue explicitly state a false and defamatory fact.  Nor
could it.  Diadiun's assumption that Milkovich must have lied at the court
hearing is patently conjecture. {5}  The majority finds Diadiun's
statements actionable, however, because it concludes that these statements
imply a factual assertion that Milkovich perjured himself at the judicial
proceeding.  I disagree.  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.  Read in context, the statements cannot reasonably be
interpreted as implying such an assertion as fact.  See ante, at 3-5, n. 2
(reproducing the column).
    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.  He adds that the reversal was based on due
process grounds.  Diadiun emphasizes to the audience that he was present at
the wrestling meet where the brawl that led to the team's suspension took
place and that he was present at the hearing before the OHSAA.  He
attributes the brawl to Maple Heights coach Milkovich's wild gestures,
ranting and egging the crowd on against the competing team from Mentor.  He
then describes Milkovich's testimony before the OHSAA, characterizing it as
deliberate misrepresentation "attempting not only to convince the board of
[his] own innocence, but, incredibly, shift the blame of the affair to
Mentor."  Diadiun then quotes statements allegedly made by Milkovich to the
commissioners to the effect that his wrestlers had not been involved in the
fight and his gestures had been mere shrugs.
    At that point in the article, the author openly begins to surmise.
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 "probably" the OHSAA's suspension of
the Maple Heights team reflected displeasure as much at the testimony as at
the melee.  Ibid. (emphasis added).  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."  Ibid. (emphasis added).  For the first time, the column quotes a
third party's version of events.  The source, an OHSAA commissioner, is
described--in evident contrast to Diadiun--as having attended the
proceeding.  The column does not quote any testimony from the court
proceeding, nor does it describe what Milkovich said in court.  There is
only a vague statement from the OHSAA commissioner that the testimony
"sounded pretty darned unfamiliar."  {6}  For the first time, Diadiun fails
to claim any firsthand knowledge, after stressing that he had personally
attended both the meet and the OHSAA hearing.  After noting again that the
judge ruled in Milkovich's and Maple Heights' favor, Diadiun proclaims:
"Anyone who attended the meet, whether he be from Maple Heights, Mentor, or
impartial observer, knows in his heart that Milkovich and Scott lied at the
hearing after each having given his solemn oath to tell the truth."  Ibid.
    No reasonable reader could understand Diadiun to be impliedly
asserting--as fact--that Milkovich had perjured himself.  Nor could such a
reader infer that Diadiun had further information about Milkovich's court
testimony on which his belief was based.  It is plain from the column that
Diadiun did not attend the court hearing.  Diadiun also clearly had no
detailed second-hand information about what Milkovich had said in court.
Instead, what suffices for "detail" and "color" are quotations from the
OHSAA hearing-- old news compared to the court decision which prompted the
column--and a vague quotation from an OHSAA commissioner.  Readers could
see that Diadiun was focused on the court's reversal of the OHSAA's
decision and was angrily supposing what must have led to it. {7}
    Even the insinuation that Milkovich had repeated, in court, a more
plausible version of the misrepresentations he had made at the OHSAA
hearing is preceded by the cautionary term "apparently"--an unmistakable
sign that Diadiun did not know what Milkovich had actually said in court.
"[C]autionary language or interrogatories put the reader on notice that
what is being read is opinion and thus weaken any inference that the author
possesses knowledge of damaging, undisclosed facts. . . .  In a word, when
the reasonable reader encounters cautionary language, he tends to `discount
that which follows.' "  Ollman v. Evans, 750 F. 2d, at 983, quoting Burns
v. McGraw-Hill Broadcasting Co., 659 P. 2d 1351, 1360 (Colo. 1983).  See
also B. Sanford, Libel and Privacy: The Prevention and Defense of
Litigation 145 (1987) (explaining that many courts have found that words
like "apparent" reveal "that the assertion is qualified or speculative and
is not to be understood as a declaration of fact"); Information Control
Corp. v. Genesis One Computer Corp., 611 F. 2d 781, 784 (CA9 1980)
(explaining that a statement phrased in language of apparency "is less
likely to be understood as a statement of fact rather than as a statement
of opinion"); Gregory v. McDonnell Douglas Corp., 17 Cal. 3d 596, 603, 552
P. 2d 425, 429, (1976) (finding a letter "cautiously phrased in terms of
apparency" did not imply factual assertions); Stewart v. Chicago Title Ins.
Co., 151 Ill. App. 3d 888, 894, 503 N. E. 2d 580, 583 (1987) (finding a
letter "couched in language of opinion rather than firsthand knowledge" did
not imply factual assertions).  Thus, it is evident from what Diadiun
actually wrote that he had no unstated reasons for concluding that
Milkovich perjured himself.
    Furthermore, the tone and format of the piece notify readers to expect
speculation and personal judgment.  The tone is pointed, exaggerated and
heavily laden with emotional rhetoric and moral outrage.  Diadiun never
says, for instance, that Milkovich committed perjury.  He says that
"[a]nyone who attended the meet . . . 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.
    The format of the piece is a signed editorial column with a photograph
of the columnist and the logo "TD Says."  Even the headline on the page
where the column is continued-- "Diadiun says Maple told a lie," ante, at
2--reminds readers that they are reading one man's commentary.  While
signed columns may certainly include statements of fact, they are also the
"well recognized home of opinion and comment."  Mr. Chow of New York v.
Ste. Jour Azur S. A., 759 F. 2d 219, 227 (CA2 1985).  Certain
formats--editorials, reviews, political cartoons, letters to the
editor--signal the reader to anticipate a departure from what is actually
known by the author as fact.  See Ollman v. Evans, supra, at 986 ("The
reasonable reader who peruses [a] column on the editorial or Op- Ed page is
fully aware that the statements found there are not `hard' news like those
printed on the front page or elsewhere in the news sections of the
newspaper"); R. Smolla, Law of Defamation MDRV 6.12(4), n. 252 (1990)
(collecting cases); Zimmerman, Curbing the High Price of Loose Talk, 18 U.
C. D. L. Rev. 359, 442 (1985) (stressing the need to take into account "the
cultural common sense of the ordinary listener or reader"). {8}

III
    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 21, between protection of
individual reputation and freedom of speech.  The statements complained of
neither state nor imply a false assertion of fact and, under the rule the
Court reconfirms today, they should be found not libel "as a matter of
constitutional law."  Ante, at 14.  Bresler, 398 U. S., at 13.  Readers of
Diadiun's column are signaled repeatedly that the author does not actually
know what Milkovich said at the court hearing and that the author is
surmising, from factual premises made explicit in the column, that
Milkovich must have lied in court. {9}
    Like the "imaginative expression" and the "rhetorical hyperbole" which
the Court finds "has traditionally added much to the discourse of our
Nation," ante, at 18, conjecture is intrinsic to "the free flow of ideas
and opinions on matters of public interest and concern" that is at "the
heart of the First Amendment."  Falwell, 485 U. S., at 50.  The public and
press regularly examine the activities of those who affect our lives.  "One
of the perogatives of American citizenship is the right to criticize men
and measures."  Id., at 51 (quoting Baumgartner v. United States, 322 U. S.
665, 673-674 (1944)).  But often only some of the facts are known, and
solely through insistent prodding--through conjecture as well as
research--can important public questions be subjected to the "uninhibited,
robust, and wide-open" debate to which this country is profoundly
committed.  New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).
    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 assume--from the court's decision--that 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 50-51 (quoting Bose Corp., 466 U. S., at
503-504).  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.  "In a society
which takes seriously the principle that government rests upon the consent
of the governed, freedom of the press must be the most cherished tenet."
Edwards v. National Audubon Society, Inc., 556 F. 2d 113, 115 (CA2) cert.
denied sub. nom. Edwards v. New York Times Co., 434 U. S. 1002 (1977).
    It is, therefore, imperative that we take the most particular care
where freedom of speech is at risk, not only in articulating the rules
mandated by the First Amendment, but also in applying them.  "Whatever is
added to the field of libel is taken from the field of free debate."  New
York Times, supra, at 272 (quoting Sweeney v. Patterson, 76 U. S. App. D.
C. 23, 24, 128 F. 2d 457, 458, cert. denied, 317 U. S. 678 (1942)).
Because I would affirm the Ohio Court of Appeals' grant of summary judgment
to respondents, albeit on somewhat different reasoning, I respectfully
dissent.

 
 
 
 
------------------------------------------------------------------------------
1
    See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254, 292, n. 30
(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 (1974) ("Under the First
Amendment there is no such thing as a false idea.  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").

2
    The defendant in the Hepps case was a major daily newspaper and, as the
majority notes, see ante, at 14, the Court declined to decide whether the
rule it applied to the newspaper would also apply to a nonmedia defendant.
See 475 U. S., at 779, n. 4.  I continue to believe that "such a
distinction is `irreconcilable with the fundamental First Amendment
principle that "[t]he inherent worth of . . . 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." ' "
Hepps, 475 U. S., at 780 (Brennan, J., concurring) (citations omitted).

3
    The Restatement (Second) of Torts MDRV 566, Comment c (1977) makes a
similar observation.  It explains that a statement that "I think C must be
an alcoholic" is potentially libelous because a jury might find that it
implies the speaker knew undisclosed facts to justify the statement.  In
contrast, it finds that the following statement could not be found to imply
any defamatory facts:
    "A writes to B about his neighbor C: `He moved in six months ago.  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.  I think he must be an
alcoholic."
    Yet even though clear disclosure of a comment's factual predicate
precludes a finding that the comment implies other defamatory facts, this
does not signify that a statement, preceded by only a partial factual
predicate or none at all, necessarily implies other facts.  The operative
question remains whether reasonable readers would have actually interpreted
the statement as implying defamatory facts.  See ante, at 18; see generally
Note, 13 Wm. Mitchell L. Rev. 545 (1987); Comment, 74 Calif. L. Rev. 1001
(1986); Zimmerman, Curbing the High Price of Loose Talk, 18 U. C. D. L.
Rev. 359 (1985).

4
    See ante, at 18, n. 7 (noting that under Philadelphia Newspapers, Inc.
v. Hepps, 475 U. S. 767 (1986), "the issue of falsity relates to the
defamatory facts implied by a statement" (emphasis changed)).  Hepps
mandates protection for speech that does not actually state or imply false
and defamatory facts--independently of the Bresler-Letter Carriers-Falwell
line of cases.  Implicit in the constitutional rule that a plaintiff must
prove a statement false to recover damages is a requirement to determine
first what statement was actually made.  The proof that Hepps requires from
the plaintiff hinges on what the statement can reasonably be interpreted to
mean.  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.  Likewise, in the example in text, Jones cannot recover
for defamation for the statement "I think Jones lied about his age just
now" by producing proof that he did not lie about his age because, like
Smith, he would have proved the wrong assertion false.  The assertion Jones
must prove false is that the speaker had, in fact, drawn the inference that
Jones lied.

5
    Conjecture, when recognizable as such, alerts the audience that the
statement is one of belief, not fact.  The audience understands that the
speaker is merely putting forward a hypothesis.  Although the hypothesis
involves a factual question, it is understood as the author's "best guess."
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.  But the speculative conclusion itself is
actionable only if it implies the existence of another false and defamatory
fact.

6
    The commissioner is quoted as having said: " `I can say that some of
the stories told to the judge sounded pretty darned unfamiliar. . . .  It
certainly sounded different from what they told us.' "  This quotation
might also be regarded as a stated factual premise on which Diadiun's
speculation is based.  However, Milkovich did not complain of the quotation
in his pleadings.  In any event, it is unlikely that it would be found
defamatory.  Diadiun had already characterized the testimony of the two
officials before the OHSAA as "obvious untruths."  Thus, the commissioner's
alleged assertion that the testimony in court was different is quite
nebulous.  It might indicate that the officials told the truth in court, in
contrast to the version given to the commissioners, or that the officials
discussed entirely different issues, rather than that they told a new lie.

7
    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.  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.  The premises are explicit, and
the reader is by no means required to share [the author's] conclusion."
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."  See also National Assn. of Government Employees, Inc. v.
Central Broadcasting Corp., 379 Mass. 220, 226, 396 N. E. 2d 996, 1000
(1979) (finding that, as listeners were told the facts upon which the 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]").
    The common-law doctrine of fair comment was also premised on such an
observation.  Where the reader knew or was told the factual foundation for
a comment and could therefore independently judge whether the comment was
reasonable, a defendant's unreasonable comment was held to defame "
`himself rather than the subject of his remarks.' "  Hill, Defamation and
Privacy Under the First Amendment, 76 Colum. L. Rev. 1205, 1229 (1976)
(quoting Popham v. Pickburn, 158 Eng. Rep. 730, 733 (Ex. 1862) (Wilde,
B.)).  "As Thomas Jefferson observed in his first Inaugural Address . . .
error of opinion need not and ought not be corrected by the courts `where
reason is left free to combat it.' "  Potomac, supra, at 1288-1289, quoting
Thomas Jefferson's first Inaugural Address (The Complete Jefferson 385 (S.
Padover ed. 1943)).

8
    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.  Where readers know that an author represents one side in
a controversy, they are properly warned to expect that the opinions
expressed may rest on passion rather than factual foundation.  See, e. g.,
Potomac Valve & Fitting Inc. v. Crawford Fitting Co., 829 F. 2d, at 1290
(explaining that the contents of a company's newsletter would be understood
as reflecting the professional interests of the company rather than as "a
dispassionate and impartial assessment" of a test of a competitor's
product); Information Control Corp. v. Genesis One Computer Corp., 611 F.
2d 781, 784 (CA9 1980) (recognizing that statements in the early weeks of
litigation by one side about the other were likely to include
unsubstantiated charges, but that these "are highly unlikely to be
understood by their audience as statements of fact").

9
    Milkovich does not challenge the accuracy of any of Diadiun's stated
premises.  Nor does he complain or proffer proof that Diadiun had not, in
fact, concluded from the stated premises that Milkovich must have lied in
court.  There is, therefore, no call to consider under what circumstances
an insincere speculation would constitute a false and defamatory statement
under Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986).
However, I would think that documentary or eyewitness testimony that the
speaker did not believe his own professed opinion would be required before
a court would be permitted to decide that there was sufficient evidence to
find that the statement was false and submit the question to a jury.
Without such objective evidence, a jury's judgment might be too influenced
by its view of what was said.  As we have long recognized, a jury "is
unlikely to be neutral with respect to the content of speech and holds a
real danger of becoming an instrument for the suppression of those
`vehement, caustic, and sometimes unpleasantly sharp attacks,' which must
be protected if the guarantees of the First and Fourteenth Amendments are
to prevail."  Monitor Patriot Co. v. Roy, 401 U. S. 265, 277 (1971)
(quoting New York Times, 376 U. S., at 270).  See also Bose Corp. v.
Consumers Union of United States, Inc., 466 U. S. 485, 510-511, and n. 29
(1984) (discussing the risks of submitting various questions to juries
where freedom of speech is at stake); Gertz, 418 U. S., at 349 (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 MDRV 6.05(3)(a)-(c) (1990); Zimmerman, 18 U. C.
D. L. Rev., at 430.
