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

By Petrick, Michael J. | The Masthead, Fall 1997 | Go to article overview

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


Petrick, Michael J., The Masthead


* 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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.