Aftermath of the Milkovich Case: Pure Opinion Still Protected

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Aftermath of the Milkovich case: Pure opinion still protected

Opinion, conjecture and sarcasm extend far beyond the editorial page.

Writers and columnists, from sports to society, have long challenged and even ridiculed the individuals and institutions they cover.

Confrontational journalism has even been known to produce celebrity status for some well-meaning editors and reporters, encouraging them to be yet more forceful in presenting their opinions.

For more than a decade the legal challenges to comments or characterizations by journalists were rebuffed with general success under the developing concept of a constitutional "opinion privilege."

All this changed last spring.

In one of the longest-running libel cases on record, the Supreme Court in June sent a 15-year-old libel claim by high school wrestling coach Michael Milkovich back for still further proceedings. On its third trip to the Supreme Court, summary judgment entered in the case in favor of an Ohio newspaper was reversed because that judgment was premised on an opinion privilege, a privilege the Supreme Court declared not to exist.

The Milkovich ruling rejected any distinct federal constitutional privilege for statements of opinion. The Court held that statements which reasonably can be interpreted as asserting a fact are actionable, regardless of the label applied.

In doing so, however, the Court emphasized that existing safeguards for free speech clearly extend to opinions. These protections include the requirements that a libel plaintiff must bear the burden of proving that a challenged statement contains a factual assertion (rather than, for example, hyperbole, satire, parody or pure opinion), that the fact asserted is actually false, and that the misrepresentaion was made with some level of fault.

Pure opinion

remains protected

As Chief Justice Rehnquist put it, the existing protection already "ensures that a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive constitutional protection."

Moreover, Milkovich in no way alters existing safeguards for opinion contained in state constitutions and in the common law "fair comment" privilege, and to this extent does not dramatically alter the protection for statements of pure opinion.

Nonetheless, Milkovich does complicate the determination over which statements can and cannot be actionable. This is because having an opinion about someone necessarily means that aspects of his or her personality, beliefs and actions - in other words, facts - are being considered. Under the Supreme Court's approach, any of these characteristics might be capable of being proven false.

For example, the statement, "In my opinion, Smith is an alcoholic," may be subject to a libel claim since it is not pure opinion, even though physicians may differ whether Smith does indeed suffer from alcoholism. For this purpose, alcoholism may be a fact that the plaintiff can disprove to the satisfaction of a jury.

In another example, "In my opinion, Smith is not qualified for the job," may be cause for libel action, while the phrase, "In my opinion, Smith is far from an ideal role model for schoolchildren," is more likely to be labeled pure opinion. While both statements cast doubt on Smith's qualifications, only the latter cannot be disproved.

Tiptoeing through

the minefield

By stressing the distinction between provable facts and other statements, the Milkovich opinion underscores the importance of careful prepublication review and also suggests certain guidelines to reduce the risk of liability. These include:

(1) Factual disclosure. …