Supreme Court Strips Away ‘Opinion’ as Libel Defense

The Supreme Court Thursday unanimously stripped away a widely used media defense against libel suits, ruling that a writer or speaker may be sued for statements that express “opinion.”

The previous standard--that a person could be sued only for false statements of fact--has been one of the most frequently used defenses in libel cases since the high court first suggested the distinction more than a decade ago. The new standard will affect a broad range of expression, from restaurant criticism to statements by civic activists.

In overturning the “opinion defense,” Chief Justice William H. Rehnquist wrote: “The statement, ‘In my opinion Jones is a liar,’ can cause as much damage to reputation as the statement ‘Jones is a liar.’ ” The legal distinction between statements of fact and statements of opinion is an “artificial dichotomy,” Rehnquist wrote.

Opinions that are clear statements of “rhetorical hyperbole” still will be outside the reach of libel law because no reasonable reader would take them literally, Rehnquist wrote. But the routine expression of opinion by columnists, commentators, cartoonists, critics, writers of letters to the editor and others will no longer be immune.

In addition, although libel suits usually are thought of mostly as an issue for the media, the decision is likely to increase the number of suits filed against individuals who harshly attack prominent people in public forums, several legal experts suggested.

The ruling was issued in a case that pitted a former high school wrestling coach against a newspaper sports columnist. The decision will reopen the case, which already has wound its way through the courts for 15 years without ever going to a jury.

The high court split, 7 to 2, over reopening the case, with Justices William J. Brennan Jr. and Thurgood Marshall dissenting. All nine justices, however, agreed on the new set of legal rules.

Libel-law experts, both those who defend the media and those who sue them, agreed that the ruling will have a major impact, increasing both the number of suits filed and the number that end up going to trial. Over the last several years, the number of libel suits has declined after reaching a peak in the mid-1980s. That trend is now likely to be reversed, experts said.

“Today’s decision will open up the door” to an increased number of suits, said John Walsh, a New York lawyer who has represented several prominent people in cases against newspapers. The decision, he said, is “an extremely important clarification.”

“It’s a disaster,” said Jane Kirtley, of the Washington-based Reporters Committee for Freedom of the Press. In the past, many libel suits could be dismissed before they ever reached a jury. Now, “every time a book reviewer or a commentator or cartoonist is subjected to a lawsuit, you’re going to have to go to trial,” she said.

Plaintiffs will still have to prove that what was said about them was false, which in the case of a challenged opinion may be impossible. So, defendants may in the end win as many cases as before. But the fact that the cases will need to go to trial will greatly increase the cost of the suits, Kirtley noted.

Because Rehnquist did not define “hyperbole” when saying it will still be protected, unlike other statements of opinion, Thursday’s ruling is likely to lead to a widespread new round of litigation, several lawyers predicted.

“They have gone from solid ground onto ice. It will take a lot of cases until we see how thin that ice is,” said Robert D. Sack, who represented a large group of newspapers, magazines and broadcast companies that filed a brief urging the justices to uphold the opinion defense.

Thursday’s case began in 1974 with a fight during a wrestling match between two high schools outside Cleveland, Ohio. Because of the fight, the state high school athletic association suspended Michael Milkovich, coach of the Maple Heights high school team.

When Milkovich went to Ohio’s Common Pleas Court and got his suspension overturned, Ted Diadiun, sports columnist for the local paper, sharply criticized Milkovich in a column under the headline “Maple beat the law with the ‘big lie.’ ” Milkovich, the columnist wrote, had taught his students a lesson: “If you get in a jam, lie your way out.”

Milkovich sued, saying that the writer implied he had committed perjury before the Common Pleas Court. The newspaper mounted several defenses, including an argument that the article was an opinion column and that the statements in it were simply Diadiun’s opinions, not assertions of fact.

The resulting case has bounced around the courts ever since on a series of issues. Eventually, the Ohio Supreme Court, noting that the sports pages are “the traditional haven for cajoling, invective and hyperbole,” decided the newspaper’s argument was correct. A lower court then dismissed Milkovich’s suit.

But the federal high court disagreed. A series of decisions beginning in 1964 has offered numerous constitutional protections to defendants in libel cases, Rehnquist wrote. “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,” he wrote.

The sorts of statements of opinion affected by Thursday’s decision generally come to court in three separate forms.

First are cases like Diadiun’s, in which columnists, cartoonists or other commentators make a statement that mixes fact and opinion. In the past, lawyers’ usual advice “has been to pat them on the head and say, ‘Don’t fret it, you’re protected.’ ” said P. Cameron DeVore, a Seattle attorney who represented Diadiun. “You can’t say that any more.”

The second sort of case involves not media defendants but individuals, for example civic activists, who attack prominent individuals in public forums and are then sued. In many cases in the past, the statements involved--”So and so is a shady operator,” for example--have been shielded by the opinion defense.

Those defendants may be particularly hard hit by the court’s decision because the prospect of a long and expensive trial may be far more difficult for them than for a large media company, said Bruce Sanford, a Washington, D.C., lawyer who represents defendants in libel cases.

A third type of case begins when a newspaper or broadcaster quotes what such a civic activist has said and is then sued for having repeated the statement. In some states, including California, courts have ruled that the media generally have the right to quote such statements in a “neutral report” of the news. Other states have recognized no such right and hold the media liable for the truth of statements they quote.