Demystifying the law on opinion and embracing Milkovich

Milkovich sued for libel, alleging that the statements accused him of committing the crime of perjury. The trial court granted summary judgment to the newspaper on grounds that the statements were protected opinion. After a long and winding road, the U.S. Supreme Court granted certiorari "to consider the important questions raised by the Ohio courts' recognition of a constitutionally required 'opinion' exception to the application of its defamation laws."16 The Supreme Court reversed, declining to embrace a constitutionally mandated opinion exception to the application of state libel laws.17 Explaining that there are limits to the First Amendment protections for wholly private persons and that anything that could be labeled as a statement of opinion was not automatically protected, the Supreme Court stated: "we think the 'breathing space' which 'freedoms of expression require in order to survive,' is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between 'opinion' and fact."18 The problem with Justice [Brennan]'s view is the sports writer goes too far when he says anyone there, even an unbiased observer, "knows in his heart" that Milkovich and Scott lied at that hearing. By invoking the support of the "unbiased observer," the columnist does seem to imply knowledge with a strong degree of certainty that both the superintendent and coach were guilty of perjury. It is highly questionable that Justice Brennan's assertion that [Theodore Diadiun]'s "knows in his heart" statement was obvious hyperbole. Diadiun's assertion takes on a powerful connotation that there is no ambiguity as to what was observed at the meet and that any witness would know Milkovich and Scott had lied under oath. To the reader, it certainly "could" imply that Diadiun had additional personal knowledge of an unambiguous event. The column noted, in fact, that he had been the only uninvolved person at both the controversial meet and the administrative hearing, a fact that could have suggested to readers that he was uniquely situated with personal knowledge of additional facts that are not disclosed to the reader. Moreover, Diadiun did not offer a response from Milkovich, but instead quoted a commissioner who said that what the pair had said before the judge "sounded different" than what they had said to the board. 32. Id. at 19 (citations omitted). Of course, unlike the Court's hypothetical, the words "in my opinion" do not appear in Milk