Press Opinions at Risk in Supreme Court
KEEP your fingers crossed that the United States Supreme Court does not rule against a small Ohio newspaper in a 15-year-old libel case that is now under review. Why should you worry about the case? If the court rules against the paper, we all could be losers, since opinion writing - the ``conscience'' of the newspaper - may lose some of its vigor. Newspapers are brimming with opinion writing. Count the ways: editorials, political cartoons, op-ed page articles, sports columns, political commentary, and movie, restaurant, architecture, theater, book and record reviews.
The court agreed to review Milkovich v. Lorain Journal Co. to provide clear guidelines for lower courts to follow in making the troublesome fact-opinion distinction. Opinion writing has enjoyed First Amendment protection, but nothing could be more harmful to the rich tradition of robust commentary than for the court to make too narrow a definition of what constitutes constitutionally protected opinion.
A narrow definition could silence opinion writers on small circulation publications fearful of the expense of a libel suit and turn opinion writing to milquetoast on larger publications where opinion has been relatively unfettered.
The dispute in the Milkovich case is over a column by a sports writer who alleged that a former school superintendent and a former high school wrestling coach lied at a public hearing. The hearing looked into events surrounding a fight at a wrestling match. Both teams and the crowd became involved in the melee following a controversial call. Several people were injured, the local team was placed on probation, the coach was censured.
The allegedly libelous statement read: ``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.'' Caustic as the commentary is, opinion writers are in deep trouble if they can't say freely that officials can misrepresent the truth. The sports columnist was present at the match and hearing.
In the absence of a US Supreme Court ruling, what many courts use to distinguish between fact and opinion is a four-factor test enunciated in Ollman v. Evans, a federal appeals case involving nationally syndicated columnists who wrote critically about a University of Maryland professor's status. Not all courts utilize the four-factor test, however. Since lower courts can't agree on what guidelines to follow, the Supreme Court has taken the Milkovich case.
It's possible the court will establish its own ``bright-line'' rule for making the distinction, since some lower courts have looked upon the four-factor test ``malleable and spongy as to permit any interpretations anyone wishes,'' ``vapid, meaningless,'' and a descent into a ``Serbian bog.''
Fortunately, the Ohio Supreme Court ruled that no one had been libeled in the Milkovich case, prompting one justice to note that the column appeared on the sports pages - ``a traditional haven for cajoling, invective and hyperbole.''
Let's hope that tradition is preserved by the court and that it patterns its definition of what constitutes protected expression of opinion after the views of an Ohio Supreme Court justice who wrote in Milkovich: ``Sharp criticism of a government official produces a far greater public good in a democracy than does artificial respect fostered by suppression of such opinion.'' Well said. But don't uncross your fingers yet.