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A Matter of Opinion: Milkovich Four Years Later Kathryn D University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 1994 A Matter of Opinion: Milkovich Four Years Later Kathryn D. Sowle University of Miami School of Law Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the First Amendment Commons Recommended Citation Kathryn D. Sowle, A Matter of Opinion: Milkovich Four Years Later, 3 Wm. & Mary Bill Rts. J. 467 (1994). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. A MATTER OF OPINION: MILKOVICH" FOUR YEARS LATER Kathryn Dix Sowle* TABLE OF CONTENTS I. INTRODUCTION .................................. 468 II. THE MILKOVICH CASE HISTORY ...................... 478 III. THE SUPREME COURT'S OPINION ..................... 480 A. The Court's Decision-An Expansion of ConstitutionalDoctrine ....................... 480 B. The Meaning of the Fact/OpinionDistinction in Milkovich ................................ 486 IV. THE LOWER COURTS' TREATMENT OF OPINION SINCE MILKOVIcH ..................................... 498 A. The Eight Categories of Lower Court Decisions Since M ilkovich ............................ 499 B. The Significance of the Treatment of Opinion in the Lower Courts Since Milkovich ............... 550 V. ISSUES GENERATED BY THE MILKOVICH OPINION .......... 552 A. What Kinds of Statements Are Provable as True or False on the Basis of Objective Evidence? ......... 552 B. Should Deductive as well as Evaluative Opinions Be Nonactionable? .......................... 575 C. Should "Point of View" Opinion Be Nonactionable? ............................ 579 D. The Problems Posed by Ambiguity ............... 589 VI. THE PRECARIOUS BALANCE-A MATTER OF OPINION ....... 612 A. Maximum ConstitutionalProtections for Speech ...... 613 B. Reform Proposals ........................... 618 VII. CONCLUSION .................................... 625 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). Professor of Law, University of Miami School of Law. B.A., 1953, Wellesley College; J.D., 1956, Northwestern University. The author gratefully acknowledges in- debtedness to the University of Miami School of Law for research grants to support this project, to Cheryl Jackman and Carlos Mustelier for their valuable research assistance, and to Professors Mary I. Coombs, Lili Levi, and Robert E. Rosen for their critical evaluations of the original manuscript. 468 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 3:2 I. INTRODUCTION 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. But there is no consti- tutional value in false statements of fact.' The Supreme Court uttered this dictum in 1974 in Gertz v. Robert Welch, Inc.2 For the next sixteen years, lower courts construed it as articu- lating a broad, First Amendment immunity for the expression of opinion,3 and the doctrine became "the fastest growing body of defamation law in the 1980s."4 Courts employed various analytical approaches to identify the types of language that qualify for immunity as opinion,5 but the approach adopted by the United States Court of Appeals for the District of Columbia Circuit in Oilman v. Evans6 predominated.7 Under that approach, the courts have Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974) (citation omitted). 2 418 U.S. 323, 339-40 (1974). 3 E.g., Ollman v. Evans, 750 F.2d 970, 974-75 n.6 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127 (1985). 4 David A. Anderson, Is Libel Law Worth Reforming?, 140 U. PA. L. REv. 487, 507 (1991). ' The United States Court of Appeals for the District of Columbia described several of these approaches: Some courts have, in effect, eschewed any effort to construct a theory and simply treated the distinction between fact and opinion as a judgment call. See, e.g., Shiver v. Apalachee Publishing Co., 425 So. 2d 1173 (Fla. Dist. Ct. App. 1983). Other courts have concentrated on a single factor, such as the verifiability vel non of the allegedly defamatory statement. See, e.g., Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.), cert. denied sub. nom. Hotchner v. Doubleday & Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977). Still others have adopted a multi-factor test, attempting to assess the allegedly defamatory proposition in the totality of the circumstances in which it appeared. See, e.g., Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781 (9th Cir. 1980). Oilman, 750 F.2d at 977 (footnote omitted). In addition, some courts have employed the analysis of the RESTATEMENT (SEC- OND) OF TORTS § 566 (1977). See, e.g., Hotchner, 551 F.2d at 913; Bums v. McGraw- Hill Broadcasting Co., 659 P.2d 1351, 1358-61 (Colo. 1983) (en banc); Yancey v. Hamilton, 786 S.W.2d 854, 856-57 (Ky. 1989); Kotlikoff v. Community News, 444 A.2d 1086, 1089 (N.J. 1982); see also Eileen Finan, Note, The Fact-Opinion Determi- nation in Defamation, 88 COLUM. L. REV. 809, 817-18 (1988). For a description of the Restatement approach, see infra notes 30-33 and accompanying text. 6 750 F.2d 970 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127 (1985). ' See, e.g., Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1286-90 (4th Cir. 1987); Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1129-31 (7th Cir. 1987), cert. denied, 485 U.S. 993 (1988); McCabe v. Rattiner, 1994] A MATTER OF OPINION 469 considered four factors to determine whether, in the totality of the circum- stances in which the statement was made, the average recipient of the com- munication would view the statement as fact or opinion.8 The four factors are (1) "the common usage or meaning of the specific language of the chal- lenged statement itself," (2) "the statement's verifiability-is the statement capable of being objectively characterized as true or false?," (3) "the full context of the statement-the entire article or column, for example," and (4) "the broader context or setting in which the statement appears." 9 Although the Olman approach gained wide adherence, it failed to pro- duce predictable outcomes.'" Its major flaw is the absence of a definition of opinion that might guide the courts in weighing the factors." One judge has observed that courts "have come up with buckets full of factors to consider but no useful guidance on what to do when they look in opposite directions, as they always do."' 2 Judges have vehemently disagreed on the results of applying the Olman analysis to the facts of particular cases, 3 and some 814 F.2d 839, 840-42 (1st Cir. 1987); Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302-05 (8th Cir.) (en banc), cert. denied, 479 U.S. 883 (1986); Dodson v. Dicker, 812 S.W.2d 97 (Ark. 1991); Sigal Constr. Corp. v. Stanbury, 586 A.2d 1204, 1209 (D.C. 1991); Immuno AG. v. Moor-Jankowski, 549 N.E.2d 129, 132-33 (N.Y. 1989), recons. denied, 552 N.E.2d 179 (N.Y.), vacated, 497 U.S. 1021 (1990), adhered to, 567 N.E.2d 1270 (N.Y.) (employing, under state law, the same standard used in the court's previous opinion), cert. denied, 500 U.S. 954 (1991); Scott v. News-Herald, 496 N.E.2d 699, 705-08 (Ohio 1986). ' Oilman, 750 F.2d at 979. 9 Id. 0 One analysis of decisions following the Oilman approach concluded: Two approaches, both relying on Oilman, disagree about the relative emphasis that should be granted to the first set of factors (precision and verifiability) or to the second set (literary and social context). Courts stressing precision and verifi- ability tend to examine the statement for these factors first, and then turn to con- text as a possible exculpatory factor. Conversely, courts that treat context as for- mative rarely make an initial finding of factuality. Instead, they emphasize the literary and social setting, and often declare the statement an opinion despite its abstract precision or verifiability. Rodney W. Ott, Note, Fact and Opinion in Defamation: Recognizing the Formative Power of Context, 58 FORDHAM L. REv. 761, 781 (1990) (footnotes omitted); see also Finan, supra note 5, at 826-30 (regarding the patterns of decisions using the Oilman approach). " Professor Post has stated that "[s]uch tests fail to specify in any theoretically use- ful manner exactly what a court should look for in the 'words' or 'medium' employed." Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 HARV. L. REv. 601, 650 (1990). Professor Phillips has stated that "the contextual approach appears capable of being manipulated in an infinite number of ways." Jerry J. Phillips, Opinion and Defamation: The Camel in the Tent, 57 TENN. L. REv. 647, 661 (1990). 12 Stevens v. Tillman, 855 F.2d 394, 398 (7th Cir. 1988) (Easterbrook, J.). "3Oilman itself is a prime example. In that case, heard en banc, three judges who 470 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 3:2 judges have been caustic in their criticisms of the malleability of the analy- sis. ' Complicating the opinion issue are the related matters of vituperation and rhetoric.15 Vituperation, or verbal abuse, is not considered defamato- ry.'6 Rhetorical hyperbole is not actionable when the plaintiff relies on the literal meaning of the language as defamatory, but the language is not rea- sonably susceptible to a literal construction.'" Opinion, vituperation, and accepted the four-factor analysis disagreed with the court's conclusion that the statement "[Professor] Olman has no status within the profession" was opinion.
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