Can `Opinion' Be Libelous?

FOR more than 25 years - since standards for proving press defamation were fashioned in New York Times Co. v. Sullivan (1964) and expanded on in later cases - newspaper editorial writers and columnists have been considered immune from libel actions by public or private parties. Opinion was protected by the First Amendment and given even wider latitude than reporting of fact under the premise that, in a free society, fair comments or honest expression of views in the news media were important to inform the public.

Editorialists could be sued for slander, but their accusers were usually unsuccessful under constitutionally protected free-speech standards.

All this hasn't changed. But a recent United States Supreme Court ruling against an Ohio newspaper and one of its columnists raises the issue of whether opinion writers have free rein in expressing themselves in print.

The high court in Milkovich v. Lorain Journal Co. seemed not so much to be changing the standard for challenging opinion but to be castigating press commentators whose personal views might be perceived by the public as actual fact.

Chief Justice William Rehnquist, writing for a 7-to-2 majority, reassured a worried journalistic community by asserting that a statement of opinion ``relating to matters of public concern which does not contain a provable false factual connotation will receive full constitutional protection.'' But the chief justice heightened press anxieties by stating that comments that might be viewed by readers as flat accusations against a person or organization could face a libel test.

Mr. Rehnquist further alarmed the media community by asserting that ``an additional separate constitutional privilege for `opinion''' is not required by the US Constitution.

Predictably, many who hold high the flaming sword of press freedoms said this ruling will have a chilling effect on columnists as well as publishers who now fear a whole new class of lawsuits. An official of the Society of Professional Journalists predicted that public debate would take a more cautious turn in the press. And a spokesman for a Reporters' Committee for Freedom of the Press suggested that commentary could ironically become more irresponsible since the high court has implied that hyperbole is protected by the First Amendment because the public will easily perceive it as exaggeration rather than fact.

The libel case in point was taken to court by a former high school wrestling coach, who claimed that a sportswriter for a local newspaper had defamed him by accusing him of lying in front of an athletic association board investigating an incident during a match. Probation for the team and suspension of the coach resulted from the probe but was later rescinded. The columnist interpreted the events as sending a message to students: ``If you get in a jam, lie your way out.''

Chief Justice Rehnquist and the majority of his colleagues read the column as establishing fact and thus vulnerable to libel action. Rehnquist also said that the coach was not a public figure, but a private individual, and according to First Amendment law had more flexibility in his efforts to prove libel.

Associate Justices William Brennan and Thurgood Marshall dissented, finding the column speculative rather than factual and therefore not libelous. Justice Brennan pointed out that readers were clearly alerted that it was opinion since its format included a photograph of the columnist and a logo ``T.D. Says.'' He also said that a ``reasonable reader'' would easily be able to distinguish between this opinion, or conjecture, and a news presentation.

What is the lesson here? If this decision does indeed have a chilling effect on newspaper opinion, as some in the media suggest, it would be a disservice to the public, which has a right to know not only the facts but also the broader background of situations, particularly controversial ones.

Libel threat or not, columnists, editorialists, and other conveyors of opinion have a basic responsibility to their readers, viewers, and listeners to be accurate about the facts they are interpreting and to make sure that their conjectures are molded by enlightened observation, not by vendettas or vested interest.

The future of a free press will not ultimately be determined by the courts but by the responsibility of the media itself.