OPINION and LIBEL by Mark Sableman

Home , Actual malice, Fair comment, Opinion

OPINION AND LIBEL by Mark Sableman

Fact and opinion seem to be two mutually Fair Comment and Criticism at exclusive categories. Accusations of fact, which Common Law are verifiable in their truth or falsity, can be actionable as defamation. Expressions of opin- English common law distinguished between ion, inherently unverifiable as true or false, are fact and opinion in libel law, and recognized protected speech. It is that simple. Or is it? an opinion defense under the name “fair comment and criticism.” The defense was designed For decades, defamation law (the law of libel to shield mere statements of good-faith belief and slander, though I will sometimes use “libel” and opinion from libel liability. The defense as shorthand) has struggled with the distinction is explained as follows in Peter Carter-Ruck’s treatise On Libel and Slander: between fact and opinion. It has never been as simple as it would seem at first blush, though Comment is statement of opinion: it is the simple fact-opinion distinction has many the inference which the writer or speaker adherents and refuses to die, even, it seems, draws from facts. Assertions of facts are not when the Supreme Court decrees that it must. protected by this defence. Comment must appear as comment; it must not be so mixed This article will examine the fact-opinion dis- up with statements of fact that the reader tinction in libel law over the years, and most or listener is unable to distinguish between especially since the Supreme Court’s dictum in report of facts and comment. “Any matter, Gertz v. Robert Welch, , Inc. 418 U.S. 323 (1974), therefore, which does not indicate with that “there is no such thing as a false idea” reasonable clearness that it purports to be seemed to provide an Olympian endorsement comment, and not statement of fact, cannot of everyone’s gut feeling that there really is be protected by the plea of fair comment.” a simple, black-and-white, fact-and-opinion The reason is apparent: to state accurately distinction. and clearly what a man has done and then to express an opinion is comment which cannot do any harm or work injustice.

1 The reader is then put in a position to judge S 769, 122 E.R. 288 (1863; opinion of Crompton, for himself whether the opinion expressed J.): “It is always to be left to a jury to say whether is well-founded or not. If there is any doubt the publication has gone beyond the limits of a whether the words are statements of fact or fair comment on the subject-matter discussed. comment the question is one to be decided A writer is not entitled to overstep those limits by the jury subject to the judge ruling that and impute base and sordid motives which are the words are reasonably capable of being not warranted by the facts, and I cannot for a comment. moment think that, because he has a bona fide belief that he is publishing what is true, that is For the defence of fair comment to succeed any answer to an action for libel.” This notion it must be proved that the subject matter of that an opinion can and should be expressed the comment is a matter of legitimate public without attacking one’s opponent’s motives, of interest; that the facts upon which the com- course, must seem quaint and foreign to many ment is based are true; and that the comment modern Americans. is fair in the sense that it is relevant to the facts and in the sense that it is the expression Next, fair comment in English law required the of the honest opinion of the writer or speaker. defendant to prove that his comment was based upon true facts or privileged reports. Finally, it This passage is revealing, for while it suggests required the defendant to prove, in Carter-Ruck’s a broad defense for “comment,” it also shows words, “that the comment in question is in the that English law imposed a number of qualifi- first place comment which an honest minded cations and hurdles for the comment defense man could make upon the facts, and secondly to be met.Initially, under the English test, the that the comment is the defendant’s honest opin- subject of the comment must have been a mat- ion.” The “first place” test, a purportedly objec- ter of “legitimate public interest,” which typi- tive measure of the protectability of the opinion, cally meant matters of government and public created a huge amount of uncertainty for any administration, and criticism in the fields of art, speaker. It meant, essentially, that a jury would literature, and entertainment. But the issue of second-guess whether the speaker’s opinion is the “legitimacy” of any comment injected an allowable. A leading judicial test, though meant unwelcome subjectivity into the defense. When to be permissive of many opinions, illustrates that is an aspect of the private life of someone, even ultimately the jury was allowed to rule based on one involved in government, a “legitimate” its after-the-fact determination of fairness: “The subject of commentary? Such matters were left question which the jury must consider is this: to the jury, which was free to conclude that, would any fair man, however prejudiced he may for example, a speaker went too far when he be, however exaggerated or obstinate his views, not only criticized another’s actions but also have said that which this criticism has said” expressed a good-faith skepticism of that per- (Broadway Approvals Limited v. Oldhams Press son’s motives. See Campbell v. Spottiswoode, 3 B & Limited, 2 All E.R. 904 [1964; emphasis added]).

2 The Fair Comment and Criticism when a car runs someone down, “it is by means Defense in America of a collision, through negligence, or accident,” as the court noted. So the court held that the The states of the United States inherited the newspaper’s editorial did not impute commis- British fair comment and criticism defense, and sion of a crime to Diener, and was not libelous made it a mainstay of their laws of libel and per se. But the court went on to address the fair slander for many years. In the late nineteenth comment privilege, as well. It summarized the and early twentieth centuries it was one of the defense as follows: privileges most often raised in defense of libel claims, and indeed it was described in one So long as a publication is not directed to memorable case as the “brightest jewel in the a public officer by charging corruption or crown of the law” for its role in protecting free- other criminal malfeasance or non-feasance, dom of discussion. so long as it is not directed to the defamation of a individual in his private character The Missouri case of Diener v. Star-Chronicle or business, but is directed to a matter of Publishing Co., 230 Mo. 613, 132 S.W. 1143 (1910; live public concern and is for an honest and Diener I), which applied and explained fair com- not a defamatory purpose, it is qualifiedly ment, illustrates its importance in American libel privileged. law at a time before the First Amendment was found to affect that body of law. In Diener I, the Within those lines, the court stated, everyone is plaintiff, a chauffeur for the city health commis- entitled to “comment fairly, freely, with vigor sioner, had sued a newspaper over an editorial and severity.” After reviewing the policy behind that implicitly criticized him and his boss for an the fair comment privilege, applauding it as incident in which the plaintiff (while driving his “the brightest jewel in the crown of the law,” the boss) negligently killed a small child. The edi- court explained the reasons why the privilege torial suggested that the chauffeur’s boss was applied in this case. First, the office of coroner responsible for having “run down and killed a and its business—particularly its inquiry into small child in the street,” and that the coroner the death of a child—were matters of public who exculpated the health commissioner had interest and concern. Second, the editorial was acquiesced in “the mangling of … little tots.” fair and had an honest purpose and was “in no wise earmarked with abuse and vituperative Automobiles were new at the time, and the indications of malice.” Hence, the editorial was ordinary reader of the day, who certainly privileged as a matter of law under the fair com- understood the dangerousness of autos and ment doctrine. how easily they could go out of control, would not have understood the phrase “killed a small If the secondary holding status of fair comment child,” or even the harsher “mangling of little in Diener I left any doubt as to the importance tots,” to refer to the crime of murder. Rather, of the doctrine, that doubt was resolved by a

3 related case a few months later. At issue in Die- crown of the law” as it sought to “seek and ner v. Star-Chronicle Publishing Co., 232 Mo. 416, maintain the golden mean between defamation 135 S.W. 6 (1911; Diener II), was a second, some- on the one hand, and a healthy and robust right what-embellished petition filed by the plaintiff of free public discussion, on the other.” Before after his original petition had been dismissed by New York Times v. Sullivan, the fair comment the trial court. Among other things, the Diener defense was the crucial doctrine that permitted II petition pled that the editorial had effectively writers to “use a hammer, instead of a feather, branded Diener a “killer.” The court held that in fulminating argumentatively.” even the harshest invective would be protected if the fair comment doctrine otherwise fit: In the area of literary and artistic criticism, American courts generally readily accepted the Libel cannot hang on so slender a thread right of writers to criticize authors and artists as a mere matter of taste in the penman’s who offer their works to the public. The Iowa selection of one word instead of another Supreme Court’s ruling in Cherry v. Des Moines one, interchangeable as a synonym, or (by Leader, 114 Iowa 298, 86 N.W. 323 (1901), is a condensation) in using laconically one word landmark decision protecting criticism. The instead of expanding and diluting his idea Leader’s critic could hardly have been more harsh into a phrase, thereby toning and soften- in his review of the Cherry Sisters, a vaudeville ing it down. The use of a given word often singing and dancing team. The review included makes the stroke that of a feather. The use this classic passage: of another may make the stroke that of a hammer. When the purpose is honest, as Effie is an old jade of fifty summers, Jessiea gathered from the whole publication, when frisky filly of forty, and Addie, the flower of the the discussion is on a matter of live and family, a capering monstrosity of thirty-five. present public concern (as here) and there Their long, skinny arms, equipped with talons at are no earmarks of malice through invec- the extremities, swung mechanically, and anon tive, vituperation, or calumny, and where waved frantically at the suffering audience. the publication does not pertain to the pri- The mouths of their rancid features opened vate business and the private character of like caverns, and sounds like the wailings of an individual, or charge corruption or other damned souls issued therefrom. They pranced misdemeanor to one clothed with authority, around the stage with a motion that suggested in a defamatory way, we say, when such a cross between the danse du ventre and fox condition of things appears, then a writer trot—strange creatures with painted faces and may use a hammer, instead of a feather, in hideous mien. Effie is spavined, Addie is string- fulminating argumentatively. halt, and Jessie, the only one who showed her stockings, has legs with calves as classic in their No wonder the court in Diener I had identified outlines as the curves of a broomhandle. fair comment as “the brightest jewel in the

4 Yet the court, basing its opinion both on the of the Michigan Supreme Court for twenty-one entertainer’s solicitation of the public and the years, urged a broad view of fair comment in “manifest distinction between matters of fact which criticism of public officials would be lim- and comment on or criticism of undisputed facts ited only “by good faith and just intention.” In a or conduct,” held the review fully protected as prescient passage in his 1868 treatise, he argued, fair comment: for example, against the English law limitation of the fair comment privilege to comments about One who goes upon the stage to exhibit him- the public acts of officials and candidates. This self to the public, or who gives any kind of a rule, he noted, assumes “that the private char- performance to which the public is invited, acter of a public officer is something aside from, may be freely criticised. He may be held up and not entering into or influencing, his public to ridicule, and entire freedom of expression conduct, and that a thoroughly dishonest man is guaranteed dramatic critics, provided they may be a just minister, and that a judge who is are not actuated by malice or evil purpose in corrupt and debauched in private life may be what they write. Fitting strictures, sarcasm, pure and upright in his judgments; in other or ridicule, even may be used, if based on words, that an evil tree is as likely as any other facts, without liability, in the absence of mal- to bring forth good fruits.” That assumption, he ice or wicked purpose. asserted, “is false to human nature,” and thus The court ruled within the strictures of the fair Cooley concluded that the English fair comment comment defense, but, like the court in Diener doctrine, which limited criticism about private I and II, interpreted that defense as supportive matters, was not sufficiently comprehensive. of free expression. A dramatic critic, it wrote, “should be allowed considerable license” in Despite the efforts of Cooley and others, how- a situation like this, because of the value of ever, most American courts accepted all the informing the public of the character of the limitations on the fair comment defense found entertainment. in English law, and those limitations at times prevented the defense from applying to political The fair comment and criticism defense was a and other commentary that today most Ameri- mainstay of libel law throughout the nineteenth cans would view as well within the realm of free century and most of the twentieth century. It speech. Professor George Chase of Columbia was the means by which statements of opinion, Law School, for example, in reviewing one fair particularly in literary and artistic reviews, and comment decision, pooh-poohed the assertion in political discourse, were protected. that the fair comment defense established “a full and free right of criticism.” Professor Chase Legal reformers, at times, attempted to broaden called the Maryland Supreme Court’s decision the fair comment defense. Thomas Cooley, one in Nagley v. Farrow, upholding a judgment of the nineteenth century’s most widely read against a newspaper for criticizing a public offi- and cited legal commentators, and a member cial, “a mockery.”

5 Rhetorical Hyperbole Supreme Court readily concluded that the word blackmail in the context of the news reports of What would eventually become one of the the real estate negotiations and its public debate most important aspects of the opinion defense carried a quite different meaning than the accu- in American libel law entered Supreme Court sation of the crime of blackmail: jurisprudence through a back door in 1970. In the years following the constitutionalization of It is simply impossible to believe that a libel law brought about by New York Times Co. v. reader who reached the word “blackmail” Sullivan, 376 U.S. 254 (1964), the Supreme Court in either article would not have understood took a number of libel cases to clarify, apply, exactly what was meant: It was Bresler’s and, in some cases, expand the Sullivan rule. public and wholly legal negotiating pro- Greenbelt Cooperative Publishing Association v. posals that were being criticized. No reader Bresler, 398 U.S. 6 (1970), was one such case. In could have thought that either the speakers that public official libel case, the trial court had at the meetings or the newspaper articles instructed the jury that it could find Sullivan reporting their words were charging Bresler “actual malice” simply by examining the alleged with the commission of a criminal offense. defamatory language coupled with evidence of On the contrary, even the most careless the defendant’s hostility to the plaintiff. reader must have perceived that the word was no more than rhetorical hyperbole, a The Supreme Court found the trial court’s vigorous epithet used by those who consid- instruction to be “error of constitutional mag- ered Bresler’s negotiating position extremely nitude” because of its misinterpretation of the unreasonable. Sullivan “actual malice” standard. In so doing, the Court addressed the plaintiff’s contention Thus the Court interpreted the use of the word that because the newspaper repeatedly used blackmail in the context of the newspaper’s the word blackmail, and it was obvious that reports of the public debate as “rhetorical hyper- the plaintiff had committed no such crime, an bole,” in contradistinction to an accusation of the inference of knowledge of falsehood was per- crime of blackmail. This passage would become missible. The Court noted that in the circum- one of the crucial precedents of the libel opinion stances at issue, the word blackmail could not doctrine as it developed. reasonably be interpreted as referring to the crime of blackmail. Bresler, the plaintiff, was a The Gertz Dicta real estate developer who was negotiating with the Greenbelt City Council to obtain zoning The law of comment and opinion took a dra- variances. During certain city council and com- matic turn in 1974 when the Supreme Court munity meetings, various persons characterized issued its decision in Gertz v. Robert Welch, Inc. Bresler’s negotiating position as blackmail, and The issue there was the application and extent the newspaper reported those accusations. The of the constitutional protection first recognized

6 in New York Times Co. v. Sullivan—specifically, by the social interest in order and morality” did it cover statements made about persons (Chaplinsky v. New Hampshire, 315 U.S. 568, who were neither public officials nor public 572 [1942]). figures, and, if so, what fault standard applied? It was not a case about a statement of opinion; These statements about “no such thing as a the core alleged libelous statements, accusing false idea” and about opinions depending “on Elmer Gertz, an esteemed civil rights attorney, the competition of other ideas,” not “the con- of various misdeeds and unsavory associations, science of judges and juries,” were all dicta— were clearly factual assertions that Gertz had observations not essential to the case at hand, proven at trial to be false. and hence not binding on other courts. But they came from the Supreme Court. They seemed Nonetheless, in the course of the Court’s deci- to express legal truisms. They confirmed what sion, perhaps hoping to better frame the consti- many judges, attorneys, and ordinary Amer- tutional status of false factual assertions, Justice icans believe: that the First Amendment gives Lewis Powell waxed eloquent about the oppo- free reign to expressions of opinion. And, most site of factual statements—namely, statements appealingly, they offered an easy out for courts of opinion. He began Section III of the Gertz in deciding many of the borderline libel and decision with this paean to the place of opinion slander cases that came before them. in discourse, and the sharp distinction between protected opinion and actionable fact: Letter Carriers: More Rhetorical Hyperbole We begin with the common ground. Under the First Amendment there is no such thing On the same day that Gertz was decided, the as a false idea. However pernicious an opin- Supreme Court also decided a labordispute ion may seem, we depend for its correction case involving alleged libelous statements made not on the conscience of judges and juries but during the course of a unionorganizing cam- on the competition of other ideas. But there paign, Old Dominion Branch No. 496, National is no constitutional value in false statements Association of Letter Carriers, AFL-CIO v. Austin, of fact. Neither the intentional lie nor the 418 U.S. 264 (1974). Replacement workers sued careless error materially advances society’s a union for publishing a “List of Scabs” in its interest in “uninhibited, robust, and wide- newsletter. Right above the list, the newslet- open” debate on public issues (New York ter, among other things, published a lengthy, Times Co. v. Sullivan, 376 U.S., at 270). They highly disparaging essay, attributed to Jack belong to that category of utterances which London, describing a scab as a rattlesnake, toad, “are no essential part of any exposition of and traitor. Plaintiffs, pointing to that essay, ideas, and are of such slight social value as asserted that identifying them as “scabs” was a step to truth that any benefit that may be tantamount to accusing them of being traitors. derived from them is clearly outweighed

7 The union initially sought a ruling that federal doctrine. Two months later, a district court in labor law preempted state libel law in cases Holodnak v. Avco Corp., Avco-Lycoming Division, arising from labor disputes, but the court Stratford, Connecticut, 381 F.Supp. 191 (D. Conn. found that this dispute was not preempted. 1974), resolved a labor dispute by finding an The Supreme Court, however, went on to apply employee’s expression of opinion protected, the Sullivan/Gertz “actual malice” standard to relying in large part on the Gertz dictum. Within non-preempted labor libel cases. The Court also a few years, the dictum was becoming more went on, much as it did in Greenbelt, to deter- frequently cited, often as key authority, in libel mine that the language in question was rhetoric cases. See, for example, Pierce v. Capital Cities and comment, not factual assertion. The Court Communications, Inc., 427 F.Supp. 180 (E.D. found that the mere use of the word scab, even Pa. 1977), in which a statement the plaintiff together with the Jack London definition, “can- described as “immoral” was held to be consti- not be construed as representations of fact.” tutionally protected opinion; Steaks Unlimited, Citing an earlier labor case, Linn v. United Plant Inc. v. Deaner, 468 F.Supp. 779 (W.D. Pa. 1979), Guard Workers of America, Local 114, 383 U.S. 53 which suggested that if the statements at issue (1966), the Court held that in the course of union in the case had been ones of opinion, they then picketing, use of “loose language or undefined could not have been defamatory; Church of Sci- slogans that are part of the conventional give- entology of California v. Siegelman, 475 F.Supp. 950 and- take in our economic and political contro- (S.D.N.Y. 1979), which dismissed libel claims versies” is allowable. Citing Greenbelt as well, based on various statements as non-actionable the Court held that the word scab was obviously opinion, or as “a mix of opinion and unflatter- used “in a loose figurative sense to demonstrate ing, but nondefamatory, factual statements.” the union’s strong disagreement with the views of those workers who opposed unionization.” Ollman v. Evans, 479 F.Supp. 292 (D.D.C. 1979), Expressions of such opinions “even in those was a key step in the development of a new pejorative terms” are protected. The Court even opinion defense based on the Gertz dictum. It cited its own “no such thing as a false idea” dic- involved a professor of political science, as tum the same day in Gertz. Letter Carriers thus plaintiff, who sued the well-known newspaper lined up with Greenbelt, and Linn, in immuniz- columnists Rowland Evans and Robert Novak. ing “exaggerated rhetoric” from libel law. Evans and Novak wrote a scathing column about the plaintiff, an admitted Marxist, who The Post-Gertz Definitional had been nominated to serve as chairman of Opinion Defense the Department of Government and Econom- ics of the University of Maryland. After their Soon after the Gertz ruling, lower courts began column appeared, the plaintiff was denied the citing Justice Powell’s “no such thing as a false nomination. He claimed that the column dam- idea” dictum as if it had laid down or discovered aged his reputation as a scholar. In particular, a new libel defense or a new First Amendment the plaintiff claimed the article was defamatory

8 because it portrayed him as a political activist context of social, political, or philosophical rather than a scholar, and because it contended debate, those statements are opinion. By con- that he desired to use the classroom as a tool for trast, “statements imputing objective reality, preparing for “the revolution.” uncolored by possible interpretation or bias, are statements of fact.” The district court began its analysis of the defendant’s motion for summary judgment Applying that analysis, the court concluded that with a flat-out statement that “the First Amend- the newspaper column in question, while based ment precludes liability based on the utterance on a selective reporting of the plaintiff’s posi- of defamatory opinions.” It cited the famous tions, reported merely the defendant’s opinions. Gertz dictum for that proposition. It then noted, Accordingly, the court found that under “Gertz however, that common law drew a distinction and its progeny,” the opinions of the defendants between pure opinion and an opinion that were fully constitutionally protected unless includes an implied statement of facts. For this they implied defamatory facts. Finding no such the court relied on Section 566 of the Restatement implied defamation facts, and finding that the (Second) of Torts, which noted that an opinion defendants sufficiently disclosed the basis for can be actionable “only if it implies the allega- their opinions, the court granted the summary tion of undisclosed defamatory facts as a basis judgment. of the opinion.” Accordingly, the court held that if an author bases his opinion on disclosed Ollman v. Evans was not the only libel case in facts, the opinion itself does not give rise to a which the Gertz opinion defense was being cause of action. But if the author supplies no asserted or used as a basis for decision. By the such facts, but utters a defamatory opinion, early 1980s, the Gertz dictum was being asserted a claim arises, not because of the opinion but in scores of cases across the country, and was because of the libelous underlying facts that generally received approvingly by courts, many are implied. The court found this distinction of which were eager to dismiss borderline libel between pure opinion, and opinions implying claims rather than permit them to move ahead defamatory facts, to strike an appropriate bal- through extensive pretrial proceedings, includ- ance “between competing legitimate needs.” ing intrusive discovery. Nonetheless, Ollman, Specifically, “it encourages unfettered inquiry, which occurred and was decided in the nation’s contemplation, and communication, yet does capital, a news center, became the focus of not preclude redress to individuals for dam- much of the attention concerning the opinion age to their reputation.” The court went on to defense. The long and rocky course of the case distinguish between statements of opinion and on appeal, and the differing opinions reached assertions of fact, admitting that the difference by many distinguished appellate judges, only “may be hazy at times” but concluding that at added to the case’s interest and focus. least in the case of loosely defined or variously interpretable statements that are made in the The District of Columbia Circuit first ruled on

9 the case in 1983 with a per curiam judgment of accurately set forth. With respect to one of the reversal and three separate opinions (Ollman statements, “that Ollman lacks a reputation in v. Evans, 713 F.2d 838 [D.C. Cir. 1983]). Judge his field as a scholar,” he concluded that the Spottswood W. Robinson III, who wrote the statement had factual elements and that its ulti- longest separate opinion, began with recog- mate analysis depended upon the background nition of the “special solicitude for unfettered facts and whether they were true or not. The expression of opinion” that he understood Gertz two other judges on the panel took different compelled. But while he accepted the Gertz approaches, but agreed to send the case back dictum as a binding pronouncement of a new for more analysis. absolute opinion defense, he noted that neither Gertz nor any other Supreme Court decision Eventually the D.C. Circuit en banc ruled on “has provided much guidance for recognizing Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984). statements that are ‘opinion’ for First Amend- The majority decision was written by Judge ment purposes.” He acknowledged that both Kenneth Starr (who later became well-known Greenbelt and Letter Carriers suggested that rhe- as the special prosecutor whose report led to torical hyperbole qualified as opinion. the Clinton impeachment). At the outset, Judge Starr noted that the court faced the “delicate Judge Robinson concluded that statements of and sensitive task” of reconciling First Amend- opinion could not be neatly divided from statement rights with the plaintiff’s interest in his ments of fact: “Fact is the germ of opinion, and reputation. He noted the common law fair com- the transition from assertion of fact to expres- ment defense, but viewed the Gertz dicta (which sion of opinion is progression on a continuum.” he acknowledged as such) as “fundamentally” Nonetheless, he attempted to classify statements changing the law—“elevating” the fact-opinion of opinion and fact in a range, including (1) pure distinction to constitutional dimension. Like opinion, relating to matters of “personal taste, Judge Robinson, he identified the problem as aesthetics, literary criticism, religious beliefs, distinguishing between fact and opinion. In this moral convictions, political views, and social regard, he first found guidance from Greenbelt theories,” (2) loosely definable various interpre- and Letter Carriers: they squarely put rhetorical table remarks that are often “flung about in col- hyperbole in the opinion camp. And he looked loquial argument and debate,” (3) metaphorical to how other lower courts had navigated the language that clearly could not be proven true “largely uncharted seas” left by Gertz. Some or false, and (4) “hybrid opinions”—statements treated the fact-opinion distinction as a judg- that are neither pure fact nor pure opinion but ment call; some focused almost exclusively on often evaluations and conclusions “laden with the verifiability of the assertions; others applied factual contents.” He viewed the statements multi-factor analyses. at issue in Ollman as hybrid facts and thus analyzed each of the assertions to determine Creating any test for distinguishing fact from whether the background facts were fully and opinion was difficult, Judge Starr noted,

10 In formulating a test to distinguish between the existence of undisclosed facts. In the Ollman fact and opinion, courts are admittedly case, for example, he concluded that even if all faced with a dilemma. Because of the rich- underlying facts had not been disclosed, read- ness and diversity of language, as evidenced ers would understand the Evans and Novak by the capacity of the same words to convey column, an opinion column appearing on the different meanings in different contexts, it is opinion page, to be offering only opinions, and quite impossible to lay down a bright-line not making implied assertions of fact. or mechanical distinction. Judicial deci- sions, however, that represent mere ad hoc Applying the totality of the circumstances judgments or which, in contrast, lay down approach, Judge Starr found the Evans and rules of excessive complexity may deter Novak column to be one of opinion and not fact, publication of the very opinions which the and hence totally nonactionable as libel. Even Gertz-mandated distinction is designed to with respect to the most troublesome state- protect, inasmuch as potential speakers or ment, the suggestion that Ollman did not have writers would, under such regimes, be at a a reputation in his field as a scholar, Judge Starr loss to predict what courts will ultimately concluded that the opinion-column context deem to be opinion. While this dilemma signaled to the reader that this assertion was admits of no easy resolution, we think it meant as opinion, not fact. Judge Robert Bork obliges us to state plainly the factors that concurred in the result (in partnership with, guide us in distinguishing fact from opinion among others, Judge Ruth Bader Ginsburg), and to demonstrate how these factors lead to with a somewhat different analysis, relying on a proper accommodation between the com- both contextual and intuitive signals and policy peting interests in free expression of opinion principles (including deference to free speech and in an individual’s reputation. when language falls in a gray area, particularly in the public arena). Three dissents were filed, Ultimately, Judge Starr concluded that a “total- including one by Judge Antonin Scalia, which ity of the circumstances” approach was best, sharply criticized Judge Bork’s policy-informed considering (1) the common usage or meaning approach. of the language of the challenged statement, (2) the statement’s verifiability, (3) the full context Despite the many differing approaches dis- of the statement, and (4) the broader context played in the Ollman en banc opinions, Judge or setting in which the statement appears. He Starr’s “totality of the circumstances” approach, rejected applying the analysis of Section 566 of with its four clear factors to be analyzed, was the Restatement (Second) of Torts (the search for subsequently adopted or applied by many implied factual assertions within a statement in other courts. But even as Ollman went on to the form of an opinion) on top of the multifactor become a leading precedent for the post-Gertz test, on the grounds that the multi-factor analysis opinion defense, a disquieting concern about it sufficiently tests whether the statement implies lingered, because of an unusual written opinion

11 by Justice William Rehnquist in 1985 when the damage his reputation and feelings. The ques- Supreme Court denied certiorari (Ollman v. tion presented to the Supreme Court, thus, was Evans, 471 U.S. 1127 [1985; Rehnquist, J., dis- whether this intentional infliction of emotional senting from denial of certiorari]). The Ollman distress tort could be applied to publication that case was untested under New York Times Co. v was clearly meant to express a political opinion, Sullivan, Justice Rehnquist noted, suggesting albeit a mean and hurtful one. that First Amendment protection depended solely upon the Sullivan doctrine. He charac- Before the U.S. Supreme Court, a group of terized the appeals court’s ruling based on the editorial cartoonists and political parodists, in opinion defense as “nothing less than extraordi- an amicus brief, strongly asserted that the tort nary.” As law students are taught, dissents are of intentional infliction of emotional distress worth reading. At times, the dissenter’s views should not be allowed to chill and punish many can become the majority rule. legitimate political commentaries. They gave as illustrations many important historical politi- Hustler v. Falwell: The Missing cal cartoons and other political commentaries, Opinion Defense which often employed ridicule, caricature, and other techniques similar to those used by Hus- In 1988, the Supreme Court issued a landmark tler magazine. They requested, essentially, rec- ruling with respect to expressions of opinion, ognition of constitutional immunity for political Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 opinion. (1988). It is an odd-fitting, almost inexplicable decision, however. The Supreme Court could have found a First Amendment exemption from tort liability when Hustler v. Falwell came to the U.S. Supreme the liability is deposited on such statements of Court with its libel claims already resolved. A opinion expressed in artistic and other forms. In jury verdict rejected libel claims of the Rever- Falwell, rather, the Court, in a unanimous deci- end Jerry Falwell, because the parody ad that sion written by Chief Justice William Rehnquist, he complained of, published by Hustler maga- held that expressive content must be judged by zine, clearly did not make any factual assertion the standard of New York Times v. Sullivan. Thus, about Falwell. It was a mean, nasty publication the Hustler parody ad in issue was evaluated (it portrayed Falwell boasting of having raped by the Court under the Sullivan standard: had his mother in an outhouse) that no one could it been published with knowledge of falsity or reasonably interpret as an assertion of fact. reckless disregard of truth or falsity? The Court But the jury did enter a judgment on Falwell’s concluded there was no such knowledge of intentional infliction of emotional distress falsity or reckless disregard of truth, and hence claim, based on the outrageous nature of the the plaintiff could not succeed. It was a victory publication and the evidence that Hustler’s pub- for opinion and the right to express political lisher, Larry Flynt, intended to hurt Falwell and commentary, but an odd one analytically. The

12 Sullivan standard, meant solely to be applied to recognize any new constitutional protection where the truth or falsity of a statement was at for opinion, and his use of the Sullivan standard issue, was applied to an admittedly nonfactual as the sole protection of free speech. commentary that clearly could not be judged true or false. The ultimate ruling in Falwell affirmed the right to critically comment through artistic and other The problems with this analysis may arise from means, and upheld that right not only against Chief Justice Rehnquist’s First Amendment libel claims, but also against tort claims, in this position. Whereas Sullivan’s author, Justice case intentional infliction of emotional distress. William J. Brennan Jr., worked hard to expand Though odd in its analysis and particular hold- Sullivan’s reach in various ways, Rehnquist ing, the Falwell decision nonetheless stands as regularly resisted any such extensions of the another affirmation of the constitutional right to Sullivan rule. Some lower courts took the consti- express opinions. tutional deference to free expression articulated by Sullivan as a reason to narrowly construe Milkovich and Its Foundations foreign jurisdiction over publishers and broad- casters. Rehnquist, by contrast, opposed any For more than a decade after Gertz, most federal special deference on summary judgment or and state courts treated the Gertz dicta, as Oll- de novo appellate review in libel cases, or any man v. Evans did, as a clear doctrine of constitu- special jurisdictional rules protecting speakers tional law—namely, a definitive direction that from libel lawsuits in foreign states. See Law- opinion was automatically exempt from libel rence v. Bauer Pub. & Printing Ltd., 459 U.S. 999 law. The only question—the one that bedev- (1982; Rehnquist, J., dissenting from denial of iled the many judges of Ollman v. Evans—was certiorari); Keeton v. Hustler Magazine, Inc., 465 how to distinguish protected opinion from U.S. 770, 781 n.12 (1984); Calder v. Jones, 465 U.S. unprotected fact. The comfortable certainty of 783 (1984). Logically and analytically, one could the absolute opinion defense came to an end, easily make a case for the policy behind Sulli- however, when the U.S. Supreme Court ruled van requiring new limits on libel claims based directly on opinion as a defense in libel law, in on opinion, or tort claims based on expression. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). Rehnquist responded, however, that the “actual malice” defense of Sullivan was sufficient protec- The plaintiff, Michael Milkovich, had been a tion for the press, and all activities of the media high school wrestling coach whose team had should be subject to laws of general application. been declared ineligible for a state tournament (This position also seemed to explain his dissent because of a fight at a wrestling match. A sports from the denial of certiorari in Ollman.) This columnist, Theodore Diadiun, covered the hear- feeling that Sullivan sufficiently protects the ing at which Milkovich and his school superin- media, and that common law should otherwise tendent testified. The writer did not believe the apply, may underlie his reluctance in Milkovich two officials’ testimony and said so, writing in

13 his column that anyone who attended the meet of fact. Simply couching such statements in at which the fight occurred “knows in his heart terms of opinion does not dispel these impli- that Milkovich and Scott lied at the hearing cations; and the statement, “In my opinion after each having given his solemn oath to tell Jones is a liar,” can cause as much damage to the truth.” Scott (the school superintendent) a reputation as the statement, “Jones is a liar.” and Milkovich, the wrestling coach, sued for … It is worthy of note that, at common law, libel. The Ohio Supreme Court, applying what even the privilege of fair comment did not it understood as Gertz absolute protection for extend to “a false statement of fact, whether opinion and assessing the column under a total- it was expressly stated or implied from an ity of the circumstances approach, concluded expression of opinion” Restatement (Second) the statements in issue were assertions of opin- of Torts, supra § 566 comment a (1977). ion, not fact, and not actionable. Thus, there being no automatic exemption for When the case reached the U.S. Supreme Court, opinion, the dispositive question in the Milkov- the Court (again in a decision by Chief Justice ich case became whether or not a reasonable Rehnquist) examined the Gertz dicta, and labeled fact finder could conclude that the statements it as just that—statements not binding on itself in the newspaper column “imply an assertion or other courts. The Court rejected a pure textual that petitioner Milkovich perjured himself in analysis of whether a statement appeared to be a judicial proceeding.” The Court determined opinion or fact, noting that such a simplistic dis- that a reasonable fact finder could so conclude. tinction could lead to abuses. If someone labels Indeed, the Court distinguished the columnist’s a statement as one opinion but it nonetheless statement from the kind of language used in asserts facts or implies defamatory facts, it Greenbelt: “This is not the sort of loose, figurative, should not be protected as opinion. Essentially, or hyperbolic language which would negate the the Supreme Court returned to the distinction impression that the writer was seriously main- made by the Restatement (Second) of Torts that taining that the petitioner committed the crime one must look at not only the statement itself but of perjury.” also whether it implies or could be seen to imply defamatory facts: In his dissent in Milkovich, Justice William J. Bren- nan Jr. described the Court’s theoretical analysis If a speaker says, “In my opinion John Jones as “almost entirely correct.” He acknowledged is a liar,” he implies a knowledge of facts the appropriateness of an analysis looking to which lead to the conclusion that Jones told whether implied factual assertions are made an untruth. Even if the speaker states the within the scope of a reported opinion. He parted facts upon which he bases his opinion, if company with the majority, however, as to the those facts are either incorrect or incomplete, application of that rule. In the context of the or if his assessment of them is erroneous, the Milkovich newspaper column, Justice Brennan statement may still imply a false assertion stated, “no reasonable reader could understand

14 Diadiun to be impliedly asserting—as fact—that style and content, the more likely they are to Milkovich had perjured himself.” be protected. After Milkovich, commentary that uses concrete words and facts and under- Stressing that contextual analysis used in Green- stated expression—the kind that really makes belt, Letter Carriers, and Falwell, Justice Brennan you think—could for the most part subject the stated that the context of the newspaper sports speaker to full libel liability. But overstated and column in issue, and the columnist’s own grossly exaggerated rhetoric—even when it language of surmise, sufficiently conveyed to used highly charged words like blackmail and readers that the columnist was asserting only treason—would be fully protected. opinions and not facts. Such a complete contextual analysis was essential, Justice Brennan One can question the advisability of this distinc- emphasized: “Distinguishing which statements tion as a matter of policy. Participants in today’s do imply an assertion of a false and defamatory information-based society need the ability to fact requires the same solicitous and thorough communicate freely and effectively to influence evaluation that this Court has engaged in when a resolution of important issues, and decision determining whether particular exaggerated or makers need low-key, thoughtful, and fact-based satirical statements could reasonably be under- opinions and analyses to rely upon. Commen- stood to have asserted such facts.” He quoted tators in the media need to be able to express as well Justice Oliver Wendell Holmes’s famous opinions in such understated language in order statement in Towne v. Eisner, 245 U.S. 418, 425 to give readers what Walter Lippmann described (1918), about the importance of context in lan- as “a picture of reality on which men can act.” guage interpretation: “A word is not a crystal, On the other side, we hardly need to encourage transparent and unchanged, it is a skin of a liv- sensationalized, hyped, and exaggerated com- ing thought and may vary greatly in color and mentary. Such commentary is commonplace content according to the circumstances and time and the source of major criticisms of “the media” in which it is used.” today, and the extreme political division that it supports is viewed as one of the biggest problems The end result of Milkovich was an odd one. in the political arena. Yet Milkovich immunizes Milkovich had directly referred to the Greenbelt rhetorical hyperbole, while leaving less extreme “rhetorical hyperbole” doctrine, thus formally statements of opinion to potential trials. placing Greenbelt’s conclusion that “rhetorical hyperbole” was not actionable within the clar- The Opinion Defense after ified opinion defense. Yet Milkovich had held Milkovich that a newspaper columnist’s admittedly opinion-based column about public officials was not The opinion defense did not die after Milkovich, protected by the opinion defense. It thus left the which, technically analyzed, merely tweaked opinion defense in a somewhat-counterintuitive it by requiring careful analysis of whether any position: the more outrageous your opinions, in purported opinion implied defamatory facts.

15 But if the Supreme Court in Milkovich also sought the sports column there did not really imply to slow down, or discourage, recognition of an any defamatory facts. opinion defense, it has failed in that respect. The response from most courts after Milkovich Yet another possible approach for those who has not been a retreat from recognition of the seek a broader opinion privilege would be to opinion defense, but rather an intellectual effort encourage courts to recraft the fair comment to keep that defense alive. and privilege defense for modern times. Only a few tweaks to that privilege could adapt it After Milkovich, several state courts explicitly into a broader opinion privilege. Its “matter of recognized state constitutional privileges for public interest” element, for example, could be opinion. For example, the Oklahoma Supreme adapted to the twenty-first century with the rec- Court recognized in Magnusson v. New York ognition that today’s public sphere is occupied Times Co., 98 P.3d 1070 (Ok. 2004), that the not only by government officials and politicians common law fair comment privilege, and the but also by businesses, nonprofit and nongov- pre-Milkovich cases on opinion, together afford ernmental entities, and even entertainment and “individuals the opportunity for honest expres- sports celebrities. The limitation of the privilege sions of opinion on matters of legitimate public to comment can be addressed through the pop- interest based on true or privileged statements ular totality of the circumstances test. And the of facts, to defend against a defamation cause concern with the speaker’s motive embodied filed by a private person.” Other states that have in the third element of the common law doc- adopted opinion privileges as a matter of state trine could be handled through application of constitutional law include New York, Ohio, the Milkovich “implied facts” analysis, which and Utah. See Immuno AG v. Moor-Jankowski, 77 prevents a speaker from using a comment as a N.Y.2d 235, 567 N.E.2d 1270 (1991); Vail v. The disguise for a malicious attack. Such updates to Plain Dealer Publishing Co., 649 N.E.2d 182 (Ohio the fair comment common law defense could 1995); West v. Thomson Newspapers, 872 P.2d 999 revive that defense and make it more meaning- (Utah 1994). See also Lyons v. Globe Newspaper ful today. Co., 415 Mass. 258, 612 N.E.2d 1158 (1993), which suggested state constitutional privilege The Progress of the Opinion would be recognized in appropriate cases. Defense

A number of federal courts, though bound by Beyond the analytical ups and downs charted Milkovich, have continued to apply Ollman-like above, one can detect significant progress in totality-of-the-circumstances approaches in judicial treatment of opinion. The fair comment analyzing whether the statements in issue defense in English and early American law was express opinions or facts. This was, of course, limited—to matters of legitimate public interest the means by which Justice Brennan in his (whatever that was), and to some kind of sub- Milkovich dissent reached the conclusion that jective good-faith fairness in the origin of the

16 opinion. Perhaps in an era when written and perhaps Chief Justice Rehnquist and the Milkov- memorable expressions were largely the prod- ich Court were correct to remind lower courts ucts of elites who played by the same rules and that absolute doctrines often lead courts astray, had relatively equal access to the judicial sys- and that wellestablished cautions about defam- tem, these rules worked. But in modern times, atory factual assertions hidden in the form of as speech was democratized and extended to all opinion must not be forgotten. Milkovich was areas of life, as we came to recognize the value not a reversal of the recognition of opinion, but of robust debate on all issues, and as broader a caution and a reminder that in law, simplistic recognition of First Amendment rights spawned litmus tests often lead us astray. Even as states a social ethos of free expression, those common like New York constitutionalize an opinion law limitations became too restrictive. Reform- protection, and even as other states rediscover ers like Thomas Cooley fought for broader rules fair comment and reapply that doctrine to mod- of the right to express comment, and landmarks ern circumstances, the Milkovich reminder that like Diener and the Cherry Sisters case recognized opinions cannot be used to hide assertions of broad rights of commentary, even within the defamatory facts is a necessary element of opin- general outlines of the fair comment defense. ion law.

By the post-Sullivan era, the time was ripe for Fact and opinion are indeed mutually exclu- shedding the fair comment limitations. If indeed sive, as libel law, in its choppy course, has public debate was designed to be “uninhibited, recognized. But the law has also recognized robust, and wide-open,” as Sullivan held, and that separating out facts from opinion cannot if even factual misstatements and some harm be done simplistically, and requires at times a to reputation were inevitable and acceptable complex analysis, including a gimlet eye for fac- consequences of the right of free expression, tual assertions hidden or implicit in statements then some broader protection for comment framed as opinions. Statements of opinion are now more protected in American law than they and opinion seemed appropriate. When the ever have been before. There is indeed no such Supreme Court gave an opening in Gertz, lower thing as a false idea. But there also is not—and courts readily overlooked its status as dicta and never was—any such thing as a simple, magical applied it as if it were the most carefully divide between assertions of opinion thought-out rendition of new law. The opinion and of fact. defense, unburdened by the limitations of the common law fair comment doctrine, offered a wonderful new technique for sending disputes out of the courtroom and back into the arena of public debate.

Considering this enthusiasm (and perhaps over-enthusiasm) for a new absolute defense,

17 Further Reading

Carter-Ruck, Peter F. On Libel and Slander. London: Butterworths, 1973.

Chase, George. “Criticism of Public Officers and Candidates for Office.” American Law Review 23 (1889): 346, 353.

Cooley, Thomas. A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Powers of the States of the American Union. 1868.

Levine, Lee, and Stephen Wermiel. The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan. Chicago: ABA Publishing, 2014.

Lippmann, Walter. Public Opinion. New York: Harcourt, Brace & Co., 1922.

Rosenberg, Norman L. Protecting the Best Men: An Interpretative History of the Law of Libel. Chapel Hill: University of North Carolina Press, 1986.

Sableman, Mark. “Fair Comment, the Brightest Jewel in the Crown of the Law: As Protection for Free Speech and against Abusive SLAPP Suits.” Journal of the Missouri Bar 61 (2005): 132. http://dx.doi.org/10.4135/9781483346540.n41

18 Reprinted from The SAGE Guide to Key Issues in Mass Media Ethics and Law

Mark Sableman

Mark Sableman is a partner with Thompson Coburn LLP. He practices in intellectual property, media, and information technology law. He helps clients gather and publish news, build brands, fight infringement and false advertising, protect and use information technology, and conduct business in the online world. He has been listed in The Best Lawyers in America® since 1996 and is currently listed for Advertising, Copyright, Trademark and Media Law, and for First Amendment and Intellectual Property Litigation.

Chicago Los Angeles St. Louis Southern Illinois Washington, D.C. 55 East Monroe Street 2029 Century Park East One US Bank Plaza 525 West Main Street 1909 K Street, N.W. 37th Floor 19th Floor St. Louis, MO 63101 Belleville, IL 62220 Suite 600 Chicago, IL 60603 Los Angeles, CA 90067 314.552.6000 618.277.4700 Washington, D.C. 20006 312.346.7500 310.282.2500 202.585.6900