Is It Opinion or Is It Fact? : * Libel Ruling Is a Huge Setback for Speech

The U.S. Supreme Court acted with astonishing recklessness Thursday, when it overturned nearly two decades of precedent and ruled that the First Amendment does not automatically protect expressions of opinion from being found libelous.

In the case at issue, Milkovich vs. Lorain Journal, the court reinstated a libel action brought by a high school coach, who felt a sportswriter had defamed him in a column. Lower courts had held the writer’s comments were protected, since they appeared in a column. However, Chief Justice William H. Rehnquist, writing for the majority, held that columns and other forms of commentary may be deemed defamatory if they “imply an assertion of objective fact” that can be proven false. The court, Rehnquist wrote, never had “intended to create a wholesale defamation exemption for anything that might be labeled ‘opinion’.” Opinions without “factual connotation” are entitled to protection, the Chief Justice said, as is “loose, figurative or hyperbolic language.”

To reach this conclusion Rehnquist first had to assert that in a case dating from 1974, Gertz vs. Robert Welch, the Supreme Court had not meant what every federal appellate court has since understood it to mean. In that decision, the court held that “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.” Judges subsequently have interpreted that passage as having acknowledged a constitutional protection for expressions of opinion that does not extend to reports of fact.

Rehnquist, who as associate justice dissented from the Gertz ruling, denied the existence of such protection in his ruling Thursday. Further, he ignored the standard for distinguishing opinion from fact set down by the U.S. Court of Appeals’ D.C. circuit in its landmark 1984 decision in Ollman vs. Evans and Novak. That decision said an opinion could be recognized as such by, among other things, its context and the setting in which it was spoken or published. In other words, anything that appears in a newspaper column is an opinion because it is commonly accepted as such.

In place of this common-sense test, the court now proposes to protect only something it calls “pure opinion” and hyperbole, simply leaving it to lower jurisdictions to imagine for themselves what that might be. The result will be a dramatic increase in libel litigation, a chilling of precisely the sort of serious speech the First Amendment was intended to protect, and chaos and contradiction in the state courts. However doubtful the outcome, large newspapers and other publications will have the means to defend their rights, but ordinary citizens whose only avenue of expression is the public platform are now encouraged by this decision to keep their opinions to themselves.