Milkovich v. Lorain Journal Co.

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1990 United States Supreme Court case

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 . It was seen by legal commentators as the end of an era that began with _New York Times Co. v. Sullivan _ and continued with _Gertz v. Robert Welch, Inc. _, in which the court clarified and greatly expanded the range and scope of what could be said in the press without fear of litigation.

The case took a long time to come before the court, which twice declined to hear it. When it finally did, the justices suggested they would clarify once and for all the extent to which opinions could be expressed without fear of being held libellous. The actual decision, however, was regarded as having confused the issue somewhat instead. Several state courts have responded by recognizing an opinion privilege in some way as part of their state constitution.

Background of the case

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On February 8, 1974, a key high school wrestling match between teams from the Cleveland suburbs of Maple Heights and Mentor , fierce rivals at the time, degenerated into a brawl in which first the Maple Heights team, then its fans, attacked the Mentor squad. Several members were hospitalized as a result.

Allegedly, many present believed that Mike Milkovich, then the Maple Heights High School coach , had played a large part in causing the brawl by publicly criticizing decisions made by referees and inciting the crowd. At a hearing shortly afterwards, the Ohio High School Athletic Association (OHSAA) put the school on probation for a year and ruled Maple Heights ineligible for the next year's state tournament.

Several wrestlers and their parents filed suit in the Court of Common Pleas of Franklin County , where cases against the state are commonly heard. Petitioners argued that OHSAA had denied them due process . After a hearing that November in which both Milkovich and the school district 's superintendent , H. Donald Scott, testified again, the court granted a temporary injunction against OHSAA's ruling.

The following day, Ted Diadiun, a sports writer and columnist for the _News Herald _, Mentor's daily newspaper, wrote about the decision. He had been at the original wrestling match and the OHSAA hearing but not at the court hearing. He did, however, quote OHSAA commissioner Harold Meyer as saying that "some of the stories told to the judge sounded pretty darned unfamiliar ... It certainly sounded different from what they told us" but without citing any specific examples.

On that apparent basis, his column took it as a given that Milkovich and Scott had lied to the court and took them to task for demonstrating to their students that they could do so with impunity in order to avoid accountability for their actions. "Anyone who attended the meet," Diadiun wrote, "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."

Litigation history

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Milkovich filed suit, alleging that the suggestion that he had lied had defamed him. Since perjury is a felony in Ohio, the statements were found to be defamatory and Milkovich was ruled a private figure, both of which were helpful to his case. However, the trial court granted a directed verdict in favor of the newspaper since it found Diadiun's column to be a statement of opinion, which cannot be libelous, and that there was no actual malice, per Sullivan. Milkovich appealed to the Ohio Eleventh District Court of Appeals , which found that there was actual malice. In turn, the newspaper appealed to the state Supreme Court , which dismissed it on the grounds that there were no significant constitutional issues. In 1979 the U.S. Supreme Court denied _certiorari _.

On remand , the trial court issued summary judgment in favor of the respondents, this time citing Gertz in ruling the original column to be constitutionally protected opinion. In addition, it said, Milkovich had failed, as a public figure, to establish a _prima facie _ claim of actual malice . The appeals court upheld the trial court once again, only to be reversed by the Ohio Supreme Court. Another certiorari petition made its way to Washington in 1984, and met with the same fate as its predecessor.

In the interim, Scott had been pursuing a separate action which the Ohio Supreme Court considered in 1986. In ruling the column to be opinion, OSC applied a four-pronged test which had come out of _Ollman v. Evans _, a decision of the United States Court of Appeals for the District of Columbia Circuit , in determining whether Diadiun's column was opinion or fact for purposes of libel law. It announced also that it was reconsidering its decision in Milkovich. The trial court again granted summary judgment, the appeals court upheld and the state Supreme Court, as it had the first time around, dismissed the appeal. This time the U.S. Supreme Court granted certiorari.

The court's decision

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Observers and First Amendment law experts had expected that the Court would formalize its observation in Gertz that "there is no such thing as a false idea" into an opinion privilege against libel claims, expanding the traditional fair comment defense. They were taken aback when it declined to, instead suggesting that the constitutional safeguards it had already erected were enough to protect statements of opinion from being actionable.

Majority opinion

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After recounting the case history and the court's recent rulings in libel cases, Chief Justice Rehnquist wrote for the majority that the statement from Gertz was not "intended to create a wholesale defamation exemption for anything that might be labeled 'opinion'" since "expressions of 'opinion' may often imply an assertion of objective fact." Diadiun's column, it found, strongly suggested that Milkovich perjured himself and was not couched hyperbolically , figuratively or in any other way that would mean the writer didn't seriously mean it. And since that statement could easily be found true or false by comparing Milkovich's statements at the OHSAA hearing with his court testimony (which the column did not do), it was moot whether it was intended as opinion or not since it asserted a matter of objective fact. "The connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false," the Court concluded.

Dissent

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"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," wrote Justice Brennan in his dissent. He and [Justice Marshall](https://en.wikipedia.org

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