Milkovich and Beyond

A few thoughts about Milkovich v. Lorain Journal and cases since then:

The standard developed by the Supreme Court in Milkovich didn't thrill the lower courts; they believed that it was far too conservative to evaluate a statement of opinion on the basis of whether it was true or false.

This standard denies 1st Amendment protection to statements that an author or reporter intended as opinion, and that the reader assumed would be opinion.

With the line between fact and opinion so blurry these days, however, it seems fair to argue that the reader either can't tell the difference, or chooses not to.

The high court based its ruling in part on society's "pervasive and strong interest in preventing and redressing attacks upon reputation." There is no separate opinion privilege in the 1st Amendment.

We also don't need one, the court said, especially one that limits the use of state defamation laws.

The Constitution gives all the "breathing space" we need for freedom of expression, thank you very much.

For example, in Hepps, if you write something on a matter of public concern, a private figure must prove it was false before liability is assessed. That, the Court in Milkovich said, ensures protection for opinions that lack provably false factual connotations.

If you can't reasonably interpret a statement as stemming from actual facts, it's protected. We just don't need a special exemption for opinion.

Just adding, "in my opinion," doesn't dispel the factual implications. These statements can still cause as much damage to a reputation as a factual statement.

Can't escape liability for defamation simply by writing "I think..." if you imply that something happened, or someone did something.

William Brennan and Thurgood Marshall dissent - the Journal columnist was not trying to state actual facts. It's clear that he doesn't (or didn't) actually know whether the coach was lying.

His column was "patently conjecture."

So: how do columnists today navigate around the Milkovich ruling? Was the Court too broad - did it reach too far? Would this have a chilling effect on commentary?

A couple of last cases:

Dorsey v. National Enquirer, 973 F. 2d 1431 (1992)

Remember that qualified privilege does not typically extend to cover reporters when they report on parts of the judicial process that are closed to the public.

Here, Arnold Dorsey, better know to the world as Engelbert Humperdinck (ask your mother or father), sues the National Enquirer for defamation. In 1980, Kathy Jetter established that Dorsey was the father of her child. A court in NY orders him to pay child support. Eight years later, she seeks an increase in the payments.

Dorsey refuses. In an affidavit taken as part of the case, Jetter reveals that Dorsey had been treated for AIDS. The Enquirer runs an article based solely on the affidavit, but does include Dorsey's denial of the claim.

The lower court grants the Enquirer's motion for summary judgment, ruling that the article was a fair and true report of allegations made in a judicial proceeding.

Dorsey appeals, arguing that the privilege extends only to coverage of proceedings open to the public.

The Ninth Circuit rejects Dorsey's claim, noting that numerous courts have extended the privilege to a variety of proceedings usually not open to the public, including internal reports by state agencies and secret grand jury proceedings.

The court also said that journalists must make sure that the "gist" of a story is accurate. Dorsey challenged the truthfulness of the Enquirer story.


Wright v. Grove Sun Newspaper Co., 873 P. 2d 983 (1994)

Remember that privilege only protects journalists when they are reporting about official acts - acts of state.

The District Attorney for Delaware County, OK holds a press conference to talk about a drug investigation. He distributes a transcript of a conversation between two undercover law enforcement agents.

The local newspaper, owned by Grove Sun, publishes the statement verbatim. The statement includes information about Ace Wright, a local resident. He sues.

The OK Supreme Court rules that publication was privileged - DA's have historically used press conferences to disseminate information to the public about what they are up to. Thus, it was part of the DA's official duties.


Finally, remember the last two defenses - CONSENT and RIGHT OF REPLY?

A couple of thoughts:

Both of these are old; they're used with some success, but they're not universally accepted by the courts.

So: if you CONSENT to the publication of defamatory material, you can't turn around later and sue.

Let's say you hear a rumor that the local animal control officer has ties to organized crime. You dutifully visit the official - we'll call him Sandy "Out of His Tree" Becker, and tell her that you heard the rumor. You ask if she cares that you run it in the story.

If the person says yes - no problem. It's rare, of course, that it happens this way.

Courts require a reporter to show that the plaintiff knew or had good reason to know about the full extent of the defamatory statement BEFORE it was published in order to establish consent.

Then there's IMPLIED CONSENT...

A person gives it when he or she comments on a defamatory charge and allegation and then that response is published with the charge in a story. You can also give implied consent if the person has told others about the charge - let's say Becker visits an animal control chat room and vows to fight the allegations against her.

That's IMPLIED CONSENT.

Bottom line: you have to give someone a chance to reply to an allegation AND print it.

Finally, RIGHT OF REPLY:

Think of it as self-defense, or giving as good as you get.

If you have been defamed, you can answer with a libelous comment of your own and NOT lose your libel suit.

Your statement has to be similar in magnitude to the original libel - it can't exceed the original provocation.

Reynolds v. Pegler (1955)

Two reporters, Quentin Reynolds and Westbrook Pegler, went after each other. Reynolds wrote that Pegler wrote that Heywood Broun, another reporter from the mid 20th Century, was a liar.

Broun was so bothered by the statement that he couldn't sleep, according to Reynolds. Broun later fell ill, and died.

Pegler became angry - he believed that Reynolds was suggesting that he (Pegler) caused Broun's death. SO...he attacked Reynolds, calling him sloppy, a coward, a liar, and a four flusher.

He also accused him of being a war profiteer and of public nudism.

Reynolds sues. Pegler's defense? RIGHT OF REPLY.

But the court ruled that Pegler went too far in his attack on Reynolds. It really didn't resemble a reply. Reynolds ended up winning $175,000.

So you can't go over the top in responding to a libelous statement.

That's it from here - enjoy your weekend.