MILKOVICH v. LORAIN JOURNAL CO. ET AL.
No. 89-645
SUPREME COURT OF THE UNITED STATES
Argued April 24, 1990-Decided June 21, 1990
497 U.S. 1
Brent L. English argued the cause for petitioner. With him on the brief was John D. Brown.
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Respondent J. Theodore Diadiun authored an article in an Ohio newspaper implying that petitioner Michael Milkovich, a local high school wrestling coach, lied under oath in a judicial proceeding about an incident involving petitioner and his team which occurred at a wrestling match. Petitioner sued Diadiun and the newspaper for libel, and the Ohio Court of Appeals affirmed a lower court entry of summary judgment against petitioner. This judgment was based in part on the grounds that the article constituted an “opinion” protected from the reach of state defamation law by the First Amendment to the United States Constitution. We hold that the First Amendment does not prohibit the application of Ohio‘s libel laws to the alleged defamations contained in the article.
This lawsuit is before us for the third time in an odyssey of litigation spanning nearly 15 years.1 Petitioner Milkovich, now retired, was the wrestling coach at Maple Heights High
The day after the court rendered its decision, respondent Diadiun‘s column appeared in the News-Herald, a newspaper which circulates in Lake County, Ohio, and is owned by respondent Lorain Journal Co. The column bore the heading “Maple beat the law with the ‘big lie,‘” beneath which appeared Diadiun‘s photograph and the words “TD Says.” The carryover page headline announced “... Diadiun says Maple told a lie.” The column contained the following passages:
“... [A] lesson was learned (or relearned) yesterday by the student body of Maple Heights High School, and by anyone who attended the Maple-Mentor wrestling meet of last Feb. 8.
“A lesson which, sadly, in view of the events of the past year, is well they learned early.
“It is simply this: If you get in a jam, lie your way out.
“If you‘re successful enough, and powerful enough, and can sound sincere enough, you stand an excellent chance of making the lie stand up, regardless of what really happened.
“The teachers responsible were mainly head Maple wrestling coach, Mike Milkovich, and former superintendent of schools H. Donald Scott.
“Anyone who attended the meet, whether he be from Maple Heights, Mentor, or impartial observer, knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth.
“‘But they got away with it.
“Is that the kind of lesson we want our young people learning from their high school administrators and coaches?
“I think not.‘” Milkovich v. News-Herald, 46 Ohio App. 3d 20, 21, 545 N. E. 2d 1320, 1321-1322 (1989).2
On remand, relying in part on our decision in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), the trial court granted summary judgment to respondents on the grounds that the article was an opinion protected from a libel action by “constitutional law,” App. 55, and alternatively, as a public figure, petitioner had failed to make out a prima facie case of actual malice. Id., at 55-59. The Ohio Court of Appeals affirmed both determinations. Id., at, 62-70. On appeal, the Supreme Court of Ohio reversed and remanded. The court first decided that petitioner was neither a public figure nor a public official under the relevant decisions of this Court. See Milkovich v. News-Herald, 15 Ohio St. 3d 292, 294-299, 473 N. E. 2d 1191, 1193-1196 (1984). The court then found that “the statements in issue are factual assertions as a matter of law, and are not constitutionally protected as the opinions of the writer.... The plain import of the author‘s assertions is that Milkovich, inter alia, committed the crime of perjury in a court of law.” Id., at 298-299, 473 N. E. 2d, at 1196-1197. This Court again denied certiorari. 474 U. S. 953 (1985).
Meanwhile, Superintendent Scott had been pursuing a separate defamation action through the Ohio courts. Two years after its Milkovich decision, in considering Scott‘s appeal, the Ohio Supreme Court reversed its position on Diadiun‘s article, concluding that the column was “constitutionally protected opinion.” Scott v. News-Herald, 25 Ohio St. 3d 243, 254, 496 N. E. 2d 699, 709 (1986). Consequently, the court upheld a lower court‘s grant of summary judgment against Scott.
The Scott court decided that the proper analysis for determining whether utterances are fact or opinion was set forth in the decision of the United States Court of Appeals for the District of Columbia Circuit in Ollman v. Evans, 242 U. S. App. D. C. 301, 750 F. 2d 970 (1984), cert. denied, 471 U. S.
“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash;
‘Tis something, nothing;
‘Twas mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.” Act III, scene 3.
Defamation law developed not only as a means of allowing an individual to vindicate his good name, but also for the purpose of obtaining redress for harm caused by such statements. Eldredge, supra, at 5. As the common law developed in this country, apart from the issue of damages, one usually needed only allege an unprivileged publication of false and defamatory matter to state a cause of action for defamation. See, e. g., Restatement of Torts § 558 (1938); Gertz
“Under the law of defamation, an expression of opinion could be defamatory if the expression was sufficiently derogatory of another as to cause harm to his reputation, so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. ... The expression of opinion was also actionable in a suit for defamation, despite the normal requirement that the communication be false as well as defamatory. ... This position was maintained even though the truth or falsity of an opinion-as distinguished from a statement of fact-is not a matter that can be objectively determined and truth is a complete defense to a suit for defamation.”
However, due to concerns that unduly burdensome defamation laws could stifle valuable public debate, the privilege of “fair comment” was incorporated into the common law as an affirmative defense to an action for defamation. “The principle of ‘fair comment’ afford[ed] legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact.” 1 F. Harper & F. James, Law of Torts § 5.28, p. 456 (1956) (footnote omitted). As this statement implies, comment was generally privileged when it concerned a matter of public concern, was upon true or privileged facts, represented the actual opinion of the speaker, and was not made
In 1964, we decided in New York Times Co. v. Sullivan, 376 U. S. 254, that the First Amendment to the United States Constitution placed limits on the application of the state law of defamation. There the Court recognized the need for “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice‘-that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. This rule was prompted by a concern that, with respect to the criticism of public officials in their conduct of governmental affairs, a state-law “‘rule compelling the critic of official conduct to guarantee the truth of all his factual assertions’ would deter protected speech.” Gertz v. Robert Welch, Inc., supra, at 334 (quoting New York Times, supra, at 279).
Three years later, in Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), a majority of the Court determined “that the New York Times test should apply to criticism of ‘public figures’ as well as ‘public officials.‘” The Court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons “who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.” Gertz, supra, at 336-337
The next step in this constitutional evolution was the Court‘s consideration of a private individual‘s defamation actions involving statements of public concern. Although the issue was intially in doubt, see Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), the Court ultimately concluded that the New York Times malice standard was inappropriate for a private person attempting to prove he was defamed on matters of public interest. Gertz v. Robert Welch, Inc., supra. As we explained:
“Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.
“[More important,] public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual.” Id., at 344-345 (footnote omitted).
Nonetheless, the Court believed that certain significant constitutional protections were warranted in this area. First, we held that the States could not impose liability without requiring some showing of fault. See id., at 347-348 (“This approach ... recognizes the strength of the legitimate state interest in compensating private individuals for wrongful in-
Still later, in Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986), we held that “the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern.” Id., at 777. In other words, the Court fashioned “a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.” Id., at 776. Although recognizing that “requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so,” the Court believed that this result was justified on the grounds that “placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result.” Id., at 777-778.
We have also recognized constitutional limits on the type of speech which may be the subject of state defamation actions. In Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970), a real estate developer had engaged in negotiations with a local city council for a zoning variance on certain of his land, while simultaneously negotiating with the city on other land the city wished to purchase from him. A local newspaper published certain articles stating that some people had characterized the developer‘s negotiating position as “blackmail,” and the developer sued for libel. Rejecting a contention that liability could be premised on the notion that the word “blackmail” implied the developer had committed the actual crime of blackmail, we held that “the imposition of
The Court has also determined that “in cases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.‘” Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984) (quoting New York Times, 376 U. S., at 284-286). “The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657, 685 (1989).
Respondents would have us recognize, in addition to the established safeguards discussed above, still another First-Amendment-based protection for defamatory statements which are categorized as “opinion” as opposed to “fact.” For
“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 constitutional value in false statements of fact.” 418 U. S., at 339-340 (footnote omitted).
Judge Friendly appropriately observed that this passage “has become the opening salvo in all arguments for protection from defamation actions on the ground of opinion, even though the case did not remotely concern the question.” Cianci v. New Times Publishing Co., 639 F. 2d 54, 61 (CA2 1980). Read in context, though, the fair meaning of the passage is to equate the word “opinion” in the second sentence with the word “idea” in the first sentence. Under this view, the language was merely a reiteration of Justice Holmes’ classic “marketplace of ideas” concept. See Abrams v. United States, 250 U. S. 616, 630 (1919) (dissenting opinion) (“[T]he ultimate good desired is better reached by free trade in ideas-the best test of truth is the power of the thought to get itself accepted in the competition of the market“).
Thus, we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled “opinion.” See Cianci, supra, at 62, n. 10 (The “marketplace of ideas” origin of this passage “points strongly to the view that the ‘opinions’ held to be constitutionally protected were the sort of thing that could be corrected by discussion“). Not only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of “opinion” may often imply an assertion of objective fact.
If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts
Apart from their reliance on the Gertz dictum, respondents do not really contend that a statement such as, “In my opinion John Jones is a liar,” should be protected by a separate privilege for “opinion” under the First Amendment. But they do contend that in every defamation case the First Amendment mandates an inquiry into whether a statement is “opinion” or “fact,” and that only the latter statements may be actionable. They propose that a number of factors developed by the lower courts (in what we hold was a mistaken reliance on the Gertz dictum) be considered in deciding which is which. But we think the “‘breathing space‘” which “‘[f]reedoms of expression require in order to survive,‘” Hepps, 475 U. S., at 772 (quoting New York Times, supra, at 272), is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between “opinion” and fact.
Foremost, we think Hepps stands for the proposition that a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defend-
Next, the Bresler-Letter Carriers-Falwell line of cases provides protection for statements that cannot “reasonably [be] interpreted as stating actual facts” about an individual. Falwell, 485 U. S., at 50. This provides assurance that public debate will not suffer for lack of “imaginative expression” or the “rhetorical hyperbole” which has traditionally added much to the discourse of our Nation. See id., at 53-55.
The New York Times-Butts-Gertz culpability requirements further ensure that debate on public issues remains “uninhibited, robust, and wide-open.” New York Times, 376 U. S., at 270. Thus, where a statement of “opinion” on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth. Similarly, where such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault
as required by Gertz.8 Finally, the enhanced appellate review required by Bose Corp. provides assurance that the foregoing determinations will be made in a manner so as not to “constitute a forbidden intrusion of the field of free expression.” Bose Corp., 466 U. S., at 499 (quotation omitted).
We are not persuaded that, in addition to these protections, an additional separate constitutional privilege for “opinion” is required to ensure the freedom of expression guaranteed by the
We also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false. A determination whether petitioner lied in this instance can be made on a core of objective evidence by comparing, inter alia, petitioner‘s testimony before the OHSAA board with his subsequent testimony before the trial court. As the Scott court noted regarding the plaintiff in that case: “[W]hether or not H. Don Scott did indeed perjure himself is certainly verifiable by a perjury action with evidence adduced from the transcripts and witnesses present at
The numerous decisions discussed above establishing
“The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.
“The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to re-
deem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.” Id., at 92-93 (concurring opinion).
We believe our decision in the present case holds the balance true. The judgment of the Ohio Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Reversed.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Since this Court first hinted that the
ment” that the plaintiff must prove false under Hepps is not invariably the literal phrase published but rather what a reasonable reader would have understood the author to have said. See ante, at 16-17 (discussing Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970); Letter Carriers v. Austin, 418 U. S. 264 (1974); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988)).
In other words, while the Court today dispels any misimpression that there is a so-called opinion privilege wholly in addition to the protections we have already found to be guaranteed by the
With all of the above, I am essentially in agreement. I part company with the Court at the point where it applies
I
As the majority recognizes, the kind of language used and the context in which it is used may signal readers that an author is not purporting to state or imply actual, known facts. In such cases, this Court has rejected claims to the contrary and found that liability may not attach “as a matter of constitutional law.” Ante, at 17. See, e. g., Bresler, supra (metaphor); Letter Carriers, supra (hyperbole); Falwell, supra (parody). In Bresler, for example, we found that Bresler could not recover for being accused of “blackmail” because the readers of the article would have understood the author to mean only that Bresler was manipulative and extremely unreasonable. See ante, at 16-17. In Letter Carriers, we found that plaintiffs could not recover for being accused of being “traitor[s]” because the newsletter‘s readers would have understood that the author meant that plaintiffs’ accurately reported actions were reprehensible and destructive to the social fabric, not that plaintiffs committed treason. See ante, at 17.
Statements of belief or opinion are like hyperbole, as the majority agrees, in that they are not understood as actual assertions of fact about an individual, but they may be actionable if they imply the existence of false and defamatory facts. See ante, at 18-19. The majority provides some general guidance for identifying when statements of opinion imply assertions of fact. But it is a matter worthy of further attention
For instance, the statement that “Jones is a liar,” or the example given by the majority, “In my opinion John Jones is a liar“—standing alone—can reasonably be interpreted as implying that there are facts known to the speaker to cause him to form such an opinion. See ante, at 18-19. But a different result must obtain if the speaker‘s comments had instead been as follows: “Jones’ brother once lied to me; Jones just told me he was 25; I‘ve never met Jones before and I don‘t actually know how old he is or anything else about him, but he looks 16; I think Jones lied about his age just now.” In the latter case, there are at least six statements, two of which may arguably be actionable. The first such statement is factual and defamatory and may support a defamation action by Jones’ brother. The second statement, however, that “I think Jones lied about his age just now,” can be reasonably interpreted in context only as a statement that the speaker infers, from the facts stated, that Jones told a particular lie. It is clear to the listener that the speaker does
II
The majority does not rest its decision today on any finding that the statements at issue explicitly state a false and defamatory fact. Nor could it. Diadiun‘s assumption that Milkovich must have lied at the court hearing is patently conjecture.5 The majority finds Diadiun‘s statements actionable, however, because it concludes that these statements imply a factual assertion that Milkovich perjured himself at the judicial proceeding. I disagree. Diadiun not only reveals the facts upon which he is relying but he makes it clear at which point he runs out of facts and is simply guessing. Read in context, the statements cannot reasonably be interpreted as implying such an assertion as fact. See ante, at 5-7, n. 2 (reproducing the column).
Diadiun begins the column by noting that, on the day before, a Court of Common Pleas had overturned the decision by the Ohio High School Athletic Association (OHSAA) to suspend the Maple Heights wrestling team from that year‘s state tournament. He adds that the reversal was based on due process grounds. Diadiun emphasizes to the audience that he was present at the wrestling meet where the brawl that led to the team‘s suspension took place and that he was present at the hearing before the OHSAA. He attributes the brawl to Maple Heights coach Milkovich‘s wild gestures, ranting and egging the crowd on against the competing team from Mentor. He then describes Milkovich‘s testimony before the OHSAA, characterizing it as deliberate misrepresen-
At that point in the article, the author openly begins to surmise. Diadiun says that it “seemed” that Milkovich‘s and another official‘s story contained enough contradictions and obvious untruths that the OHSAA board was able to see through it and that “[p]robably” the OHSAA‘s suspension of the Maple Heights team reflected displeasure as much at the testimony as at the melee. Ante, at 7, n. 2 (emphasis added). Then Diadiun guesses that by the time of the court hearing, the two officials “apparently had their version of the incident polished and reconstructed, and the judge apparently believed them.” Ibid. (emphasis added). For the first time, the column quotes a third party‘s version of events. The source, an OHSAA commissioner, is described—in evident contrast to Diadiun—as having attended the proceeding. The column does not quote any testimony from the court proceeding, nor does it describe what Milkovich said in court. There is only a vague statement from the OHSAA commissioner that the testimony “sounded pretty darned unfamiliar.”6 For the first time, Diadiun fails
No reasonable reader could understand Diadiun to be impliedly asserting—as fact—that Milkovich had perjured himself. Nor could such a reader infer that Diadiun had further information about Milkovich‘s court testimony on which his belief was based. It is plain from the column that Diadiun did not attend the court hearing. Diadiun also clearly had no detailed secondhand information about what Milkovich had said in court. Instead, what suffices for “detail” and “color” are quotations from the OHSAA hearing—old news compared to the court decision which prompted the column—and a vague quotation from an OHSAA commissioner. Readers could see that Diadiun was focused on the court‘s reversal of the OHSAA‘s decision and was angrily supposing what must have led to it.7
Furthermore, the tone and format of the piece notify readers to expect speculation and personal judgment. The tone is pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage. Diadiun never says, for instance, that Milkovich committed perjury. He says that “[a]nyone who attended the meet . . . knows in his heart” that Milkovich lied—obvious hyperbole as Diadiun does not purport to have researched what everyone who attended the meet knows in his heart.
The format of the piece is a signed editorial column with a photograph of the columnist and the logo “TD Says.” Even the headline on the page where the column is continued—“Diadiun says Maple told a lie,” ante, at 4—reminds readers that they are reading one man‘s commentary. While signed columns may certainly include statements of fact, they are also the “well recognized home of opinion and comment.” Mr. Chow of New York v. Ste. Jour Azur S. A., 759 F. 2d 219, 227 (CA2 1985). Certain formats—editorials, reviews, political cartoons, letters to the editor—signal the reader to anticipate a departure from what is actually known by the author as fact. See Ollman v. Evans, supra, at 317, 750 F. 2d, at 986 (“The reasonable reader who peruses [a] column on the editorial or Op-Ed page is fully aware that the statements found there are not ‘hard’ news like those printed on the front page or elsewhere in the news sections of the newspaper“); R. Smolla, Law of Defamation § 6.12(4), n. 252 (1990) (col-
III
Although I agree with the majority that statements must be scrutinized for implicit factual assertions, the majority‘s scrutiny in this case does not “hol[d] the balance true,” ante, at 23, between protection of individual reputation and freedom of speech. The statements complained of neither state nor imply a false assertion of fact, and, under the rule the Court reconfirms today, they should be found not libel ““as a matter of constitutional law.“” Ante, at 17, quoting Bresler, 398 U. S., at 13. Readers of Diadiun‘s column are signaled repeatedly that the author does not actually know what Milkovich said at the court hearing and that the author is surmising, from factual premises made explicit in the column, that Milkovich must have lied in court.9
Did NASA officials ignore sound warnings that the Challenger Space Shuttle would explode? Did Cuban-American
What may be more disturbing to some about Diadiun‘s conjecture than, say, an editorial in 1960 speculating that Francis Gary Powers was in fact a spy, despite the Government‘s initial assurances that he was not, is the naiveté of Diadiun‘s conclusion. The basis of the court decision that is the subject of Diadiun‘s column was that Maple Heights had been denied its right to due process by the OHSAA. Diadiun, as it happens, not only knew this but included it in his column. But to anyone who knows what “due process” means, it does not follow that the court must have believed some lie about what happened at the wrestling meet, because what happened at the meet would not have been germane to the questions at issue. There may have been testimony about what happened, and that testimony may have been perjured, but to anyone who understands the patois of the legal profession there is no reason to assume—from the court‘s decision—that such testimony must have been given.
Diadiun, therefore, is guilty. He is guilty of jumping to conclusions, of benightedly assuming that court decisions are always based on the merits, and of looking foolish to lawyers. He is not, however, liable for defamation. Ignorance, without more, has never served to defeat freedom of speech. “The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are
I appreciate this Court‘s concern with redressing injuries to an individual‘s reputation. But as long as it is clear to the reader that he is being offered conjecture and not solid information, the danger to reputation is one we have chosen to tolerate in pursuit of ““individual liberty [and] the common quest for truth and the vitality of society as a whole.“” Falwell, supra, at 50-51 (quoting Bose Corp., 466 U. S., at 503-504). Readers are as capable of independently evaluating the merits of such speculative conclusions as they are of evaluating the merits of pure opprobrium. Punishing such conjecture protects reputation only at the cost of expunging a genuinely useful mechanism for public debate. “In a society which takes seriously the principle that government rests upon the consent of the governed, freedom of the press must be the most cherished tenet.” Edwards v. National Audubon Society, Inc., 556 F. 2d 113, 115 (CA2), cert. denied sub nom. Edwards v. New York Times Co., 434 U. S. 1002 (1977).
It is, therefore, imperative that we take the most particular care where freedom of speech is at risk, not only in articulating the rules mandated by the
Notes
“Yesterday in the Franklin County Common Pleas Court, judge Paul Martin overturned an Ohio High School Athletic Assn. decision to suspend the Maple Heights wrestling team from this year‘s state tournament.
“It‘s not final yet-the judge granted Maple only a temporary injunction against the ruling-but unless the judge acts much more quickly than he did in this decision (he has been deliberating since a Nov. 8 hearing) the temporary injunction will allow Maple to compete in the tournament and make any further discussion meaningless.
“But there is something much more important involved here than whether Maple was denied due process by the OHSAA, the basis of the temporary injunction.
“When a person takes on a job in a school, whether it be as a teacher, coach, administrator or even maintenance worker, it is well to remember that his primary job is that of educator.
“There is scarcely a person concerned with school who doesn‘t leave his mark in some way on the young people who pass his way-many are the lessons taken away from school by students which weren‘t learned from a lesson plan or out of a book. They come from personal experiences with
and observations of their superiors and peers, from watching actions and reactions.“Such a lesson was learned (or relearned) yesterday by the student body of Maple Heights High School, and by anyone who attended the Maple-Mentor wrestling meet of last Feb. 8.
“A lesson which, sadly, in view of the events of the past year, is well they learned early.
“It is simply this: If you get in a jam, lie your way out.
“If you‘re successful enough, and powerful enough, and can sound sincere enough, you stand an excellent chance of making the lie stand up, regardless of what really happened.
“The teachers responsible were mainly head Maple wrestling coach, Mike Milkovich, and former superintendent of schools H. Donald Scott.
“Last winter they were faced with a difficult situation. Milkovich‘s ranting from the side of the mat and egging the crowd on against the meet official and the opposing team backfired during a meet with Greater Cleveland Conference rival Metor [sic], and resulted in first the Maple Heights team, then many of the partisan crowd attacking the Mentor squad in a brawl which sent four Mentor wrestlers to the hospital.
“Naturally, when Mentor protested to the governing body of high school sports, the OHSAA, the two men were called on the carpet to account for the incident.
“But they declined to walk into the hearing and face up to their responsibilities, as one would hope a coach of Milkovich‘s accomplishments and reputation would do, and one would certainly expect from a man with the responsible poisition [sic] of superintendent of schools.
“Instead they chose to come to the hearing and misrepresent the things that happened to the OHSAA Board of Control, attempting not only to convince the board of their own innocence, but, incredibly, shift the blame of the affair to Mentor.
“I was among the 2,000-plus witnesses of the meet at which the trouble broke out, and I also attended the hearing before the OHSAA, so I was in a unique position of being the only non-involved party to observe both the meet itself and the Milkovich-Scott version presented to the board.
“Any resemblance between the two occurrances [sic] is purely coincidental.
“To anyone who was at the meet, it need only be said that the Maple coach‘s wild gestures during the events leading up to the brawl were
passed off by the two as ‘shrugs,’ and that Milkovich claimed he was ‘Powerless to control the crowd’ before the melee.“Fortunately, it seemed at the time, the Milkovich-Scott version of the incident presented to the board of control had enough contradictions and obvious untruths so that the six board members were able to see through it.
“Probably as much in distasteful reaction to the chicanery of the two officials as in displeasure over the actual incident, the board then voted to suspend Maple from this year‘s tournament and to put Maple Heights, and both Milkovich and his son, Mike Jr. (the Maple Jaycee coach), on two-year probation.
“But unfortunately, by the time the hearing before Judge Martin rolled around, Milkovich and Scott apparently had their version of the incident polished and reconstructed, and the judge apparently believed them.
“‘I can say that some of the stories told to the judge sounded pretty darned unfamiliar,’ said Dr. Harold Meyer, commissioner of the OHSAA, who attended the hearing. ‘It certainly sounded different from what they told us.’
“Nevertheless, the judge bought their story, and ruled in their favor.
“Anyone who attended the meet, whether he be from Maple Heights, Mentor, or impartial observer, knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth.
“‘But they got away with it.
“Is that the kind of lesson we want our young people learning from their high school administrators and coaches?
“I think not.” App. to Pet. for Cert. A138-A139.
The defendant in the Hepps case was a major daily newspaper and, as the majority notes, see ante, at 16, the Court declined to decide whether the rule it applied to the newspaper would also apply to a nonmedia defendant. See 475 U. S., at 779, n. 4. I continue to believe that “such a distinction is ‘irreconcilable with the fundamental“This position is borne out by the second headline on the continuation of the article which states: ‘... Diadiun says Maple told a lie.’ ... The issue, in context, was not the statement that there was a legal hearing and Milkovich and Scott lied. Rather, based upon Diadiun‘s having witnessed the original altercation and OHSAA hearing, it was his view that any position represented by Milkovich and Scott less than a full admission of culpability was, in his view, a lie.... A review of the context of the statements in question demonstrates that Diadiun is not making an attempt to be impartial and no secret is made of his bias.... While Diadiun‘s mind is certainly made up, the average reader viewing the words in their internal context would be hard pressed to accept Diadiun‘s statements as an impartial reporting of perjury.” Scott, 25 Ohio St. 3d, at 252-253, 496 N. E. 2d, at 707-708 (emphasis in original).
The Restatement (Second) of Torts § 566, Comment c (1977), makes a similar observation. It explains that a statement that “I think C must be an alcoholic” is potentially libelous because a jury might find that it implies the speaker knew undisclosed facts to justify the statement. In contrast, it finds that the following statement could not be found to imply any defamatory facts:“A writes to B about his neighbor C: ‘He moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic.‘”
Yet even though clear disclosure of a comment‘s factual predicate precludes a finding that the comment implies other defamatory facts, this does not signify that a statement, preceded by only a partial factual predicate or none at all, necessarily implies other facts. The operative question remains whether reasonable readers would have actually interpreted the statement as implying defamatory facts. See ante, at 20, n. 7; see generally Note, 13 Wm. Mitchell L. Rev. 545 (1987); Comment, 74 Calif. L. Rev. 1001 (1986); Zimmerman, Curbing the High Price of Loose Talk, 18 U. C. D. L. Rev. 359 (1985).“It is important to recognize that Diadiun‘s article appeared on the sports page-a traditional haven for cajoling, invective, and hyperbole.... In this broader context we doubt that a reader would assign the same
weight to Diadiun‘s statement as if it had appeared under the byline ‘Law Correspondent’ on page one of the newspaper.... On balance ... a reader would not expect a sports writer on the sports page to be particularly knowledgeable about procedural due process and perjury. It is our belief that ‘legal conclusions’ in such a context would probably be construed as the writer‘s opinion.” Id., at 253-254, 496 N. E. 2d, at 708. See ante, at 20, n. 7 (noting that under Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986), “the issue of falsity relates to the defamatory facts implied by a statement” (emphasis changed)). Hepps mandates protection for speech that does not actually state or imply false and defamatory facts—independently of the Bresler-Letter Carriers-Falwell line of cases. Implicit in the constitutional rule that a plaintiff must prove a statement false to recover damages is a requirement to determine first what statement was actually made. The proof that Hepps requires from the plaintiff hinges on what the statement can reasonably be interpreted to mean. For instance, if Riley tells his friends that Smith cheats at cards and Smith then proves that he did not rob a convenience store, Smith cannot recover damages for libel on that basis because he has proved the wrong assertion false. Likewise, in the example in text, Jones cannot recover for defamation for the statement “I think Jones lied about his age just now” by producing proof that he did not lie about his age because, like Smith, he would have proved the wrong assertion false. The assertion Jones must prove false is that the speaker had, in fact, drawn the inference that Jones lied.Nor is there any merit to respondents’ contention that the Court of Appeals below alternatively decided there was no negligence in this case even if petitioner were regarded as a private figure, and thus the action is precluded by our decision in Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974). Although the appellate court noted that “the instant cause does not present any material issue of fact as to negligence or ‘actual malice,‘” Milkovich v. News-Herald, 46 Ohio App. 3d 20, 24, 545 N. E. 2d 1320, 1325 (1989), this statement was immediately explained by the court‘s following statement that the Scott ruling on the opinion issue had accorded respondents absolute immunity from liability. See 46 Ohio App. 3d, at 24, 545 N. E. 2d, at 1325. The court never made an evidentiary determination on the issue of respondents’ negligence.
Next, respondents concede that the Scott court relied on the United States Constitution as well as the Ohio Constitution in its recognition of an opinion privilege, Brief for Respondents 18, but argue that certain statements made by the court evidenced an intent to independently rest the decision on state-law grounds, see 25 Ohio St. 3d, at 244, 496 N. E. 2d, at 701 (“We find the article to be an opinion, protected by Section 11, Article I of the Ohio Constitution...“); id., at 245, 496 N. E. 2d, at 702 (“These ideals are not only an integral part of First Amendment freedoms under the federal Constitution but are independently reinforced in Section 11, Article I
of the Ohio Constitution...“), thereby precluding federal review under Michigan v. Long, 463 U. S. 1032 (1983). We similarly reject this contention. In the Milkovich proceedings below, the Court of Appeals relied completely on Scott in concluding that Diadiun‘s article was privileged opinion. See 46 Ohio App. 3d, at 23-25, 545 N. E. 2d, at 1324-1325. Scott relied heavily on federal decisions interpreting the scope of First Amendment protection accorded defamation defendants, see, e. g., 25 Ohio St. 3d, at 244, 496 N. E. 2d, at 701 (“The federal Constitution has been construed to protect published opinions ever since the United States Supreme Court‘s opinion in Gertz v. Robert Welch, Inc....“), and concluded that “[b]ased upon the totality of circumstances it is our view that Diadiun‘s article was constitutionally protected opinion both with respect to the federal Constitution and under our state Constitution.” Id., at 254, 496 N. E. 2d, at 709. Thus, the Scott decision was at least “interwoven with the federal law,” and was not clear on its face as to the court‘s intent to rely on independent state grounds, yet failed to make a “plain statement ... that the federal cases ... [did] not themselves compel the result that the court ... reached.” Long, supra, at 1040-1041. Under Long, then, federal review is not barred in this case. We note that the Ohio Supreme Court remains free, of course, to address all of the foregoing issues on remand. Conjecture, when recognizable as such, alerts the audience that the statement is one of belief, not fact. The audience understands that the speaker is merely putting forward a hypothesis. Although the hypothesis involves a factual question, it is understood as the author‘s “best guess.” Of course, if the speculative conclusion is preceded by stated factual premises, and one or more of them is false and defamatory, an action for libel may lie as to them. But the speculative conclusion itself is actionable only if it implies the existence of another false and defamatory fact.