This site has been visited Hit Counter times since June 20, 1999

Roger Townsend's  Legal Resources Criminal Libel


From the Legal Information Institute and Project Hermes





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.


No. 89645




[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. [n.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, 13211322 (1989). [n.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. 2122.

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. 5559.

The Ohio Court of Appeals affirmed both determinations. Id., at, 6270. 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, 294299, 473 N.E. 2d 1191, 11931196 (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 298299, 473 N.E. 2d, at 11961197. 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 250252, 496 N.E. 2d, at 706707.

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. [n.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 253254, 496 N.E. 2d, at 708. [n.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. [n.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 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, 565567. As noted in the 1977 Restatement (Second) of Torts 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 opinionas distinguished from a statement of factis 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 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, 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, 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 279280.

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 336337 (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 344345 (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 347348 ("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 777778.

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 1314. 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, 284286 (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 284286). "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 339340 (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.

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. [n.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. [n.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 5355.

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. [n.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. [n.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 beinga 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 9293 (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.






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 yetthe judge granted Maple only a temporary injunction against the rulingbut 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 waymany 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 252253, 496 N.E. 2d, at 707708 (emphasis in original).

4 Specifically, the court reasoned as follows:


"It is important to recognize that Diadiun's article appeared on the sports pagea 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 253254, 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 2325, 545 N.E. 2d, at 13241325. 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 10401041. 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.



This archive is a service of the Legal Information Institute.