State Courts Uphold 'Opinion' Decisions in Post-Milkovich Era

Article excerpt

* Recent cases protect letters to the editor even when hyperbole outruns the facts.

When the U.S. Supreme Court ruled seven years ago that the U.S. Constitution does not give separate carte blanche protection for "opinion" pieces, shock and confusion resulted in the realm of those who write and edit them. And with good cause.

In the infamous Milkovich v. Lorain Journal decision, the Court decided that a signed opinion column by a newspaper sports writer, questioning the conduct and veracity of a well-known high school wrestling coach, was not automatically immune from a libel suit merely because it could be labeled as "opinion."

Up to that point, it had been widely and justifiably assumed - both by jurists and journalists - that an "opinion" could not be libelous because by definition no such thing exists as a "false opinion." And provable falsity always has been a prerequisite for sustaining a defamation action.

Among the many questions raised, but not answered, by Chief Justice William Rehnquist's majority opinion in Milkovich was this: Would this signal an open litigation season on signed letters to the editor?

An admittedly tentative but encouraging "no" answer seems in order, based on a search of the law reports for post-Milkovich state and federal court decisions dealing with editorial page "opinion" content. Five decisions spanning 1991 to 1996 dealt specifically with published letters. And in four of them the courts found solid legal grounds to protect the letters from libel actions, despite Milkovich.

The five cases provide both instruction and reassurance in terms of how to handle even the most provocative letters - the type that can contribute so much to the "marketplace of ideas" long cherished in our heritage of free expression.

Interestingly, one of the five cases had been considered by the Supreme Court during the same 1989-1990 court term that produced Milkovich. It involved an appeal from a decision by New York's highest court, which had cloaked a letter to the editor with special First Amendment "opinion protection" - something Milkovich ruled did not exist.

The Rehnquist court, in a terse order with no explanation or written opinion, vacated the New York decision, and told the state's Court of Appeals to reconsider it in light of the Milkovich pronouncement.

The New York court dutifully reconsidered, as ordered. But it refused to change the results of its earlier decision. Moreover, it produced an opinion that criticized Milkovich and declared that letters do indeed deserve special protection from libel suits (at least in New York).

"The public forum function of letters to the editor is closely related in spirit to the 'marketplace of ideas,'" the New York court insisted. After giving lip-service deference to the Milkovich precedent, the court said that the offending statements in the letter could not be proved to be false, even if they were considered factual rather than opinionated. More importantly, the court said that state constitutions can provide additional rights not recognized by the U.S. Supreme Court's interpretations of the federal constitution. And the New York constitution does indeed give separate and special protection to opinion forums such as the letters columns published in the media, the court decided.

The New York case (Immuno v. Moor-Jankowski) originated in 1983 after the Journal of Medical Primatology published a letter criticizing an effort to establish a hepatitis research facility in Sierra Leone, using chimpanzees. The letter writer claimed the project's leaders were trying to avoid international laws and policies protecting endangered species.

The journal's editor had appended an "editorial note" to the letter, explaining that the targets of the criticism were offered an opportunity to reply before the letter was published, but had declined to do so.

After deciding in 1989 that the letter, with the rejected offer of reply, was a protected opinion forum under the Constitution and having its decision rejected by the U. …