Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)

In Milkovich v. Lorain Journal Co., the Supreme Court clarified how the First Amendment affects state defamation law as relates to opinions. Milkovich, a high school wrestling coach, sued the Lorain Journal for libel after a sports writer for its newspaper wrote a column implying the coach committed perjury at a public hearing. The Ohio Court of Appeals upheld the dismissal of the suit because the article constituted an ‘‘opinion’’ protected by the First Amendment. In an eight-to-two decision, the U.S. Supreme Court reversed, holding the First Amendment did not create a special constitutional privilege for opinion.

The controversy over whether such a constitutional privilege exists is traceable to a dictum in an earlier Supreme Court opinion, Gertz v. Robert Welch, 418 U.S. 323 (1974). The Court in Milkovich decided Gertz did not create such a privilege. Otherwise, a person could escape liability by couching defamatory statements as opinion. The Court decided that opinion is defamatory if it is based on provably false facts. Because the connotation that Milkovich committed perjury was sufficiently susceptible to being proved true or false, it remanded the case to the Ohio courts for resolution.

The chief significance of Milkovich is that the Court found it unnecessary to create a new constitutional privilege to protect free speech. The Court noted that opinions not containing a provably false factual connotation enjoy full constitutional protection.

PHILIP L. MERKEL

References and Further Reading

• Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech, vol. 2, St. Paul, MN: Thomson West, 2005, sections 23-100–23-115.

Cases and Statutes Cited

• Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)