497 U.S. 1 (1990)
In 1974 Michael Milkovich served as head wrestling coach at Maple Heights High School in Ohio.1 During a match against Mentor High School a fight broke out between the teams.2 Several wrestlers were injured and one opposing coach was struck in the face.3 Milkovich and Maple Heights superintendent H. Don Scott testified before the Ohio High School Athletic Association that Milkovich had not been involved in the altercation.4 The OHSAA censured Milkovich and placed the Maple Heights team on probation for one year.5
Several wrestlers and their parents sued the OHSAA in the Court of Common Pleas of Franklin County, Ohio, alleging denial of due process.6 Both Milkovich and Scott testified in that proceeding.7 The court overturned the OHSAA sanctions on due process grounds.8 The day after the decision the News-Herald published a column by J. Theodore Diadiun.9 The column bore the heading "Maple beat the law with the `big lie.'"10
It stated that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth.11 It further stated that 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.12
Milkovich filed a defamation action against Diadiun and the newspaper’s owner, Lorain Journal Co., in the Court of Common Pleas of Lake County, Ohio.13 He alleged that the column accused him of committing perjury.14 The trial court granted a directed verdict for the defendants.15 The Ohio Court of Appeals reversed and remanded for trial.16 On remand the trial court granted summary judgment to the defendants and the Ohio Court of Appeals affirmed.17
In a parallel action brought by Superintendent Scott the Ohio Supreme Court held that the same column constituted protected opinion.18 Relying on that decision the Ohio Court of Appeals in Milkovich’s case affirmed summary judgment for the defendants.19 The Ohio Supreme Court dismissed Milkovich’s appeal for want of a substantial constitutional question.20 The United States Supreme Court granted certiorari.21
Whether the First Amendment prohibits the application of Ohio’s libel laws to the statements at issue?22
The First Amendment does not prohibit the application of state defamation laws to statements that imply an assertion of objective fact about an individual.23
No. The column published by the News-Herald stated that Milkovich and Scott lied under oath at the hearing after giving their solemn oath to tell the truth.24 This language implies an assertion of objective fact that Milkovich committed perjury.25 A determination whether Milkovich lied can be made by comparing his testimony before the OHSAA board with his subsequent testimony before the trial court.26 The facts establish that the column was not loose, figurative, or hyperbolic language that would negate the impression the writer was seriously maintaining Milkovich committed perjury.27
Existing constitutional doctrine therefore permits Ohio to apply its libel laws to the statements.28
The First Amendment does not prohibit the application of Ohio’s libel laws to the statements at issue.29
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan dissented. He agreed that statements must be scrutinized for implicit factual assertions but concluded that the challenged statements could not reasonably be interpreted as stating or implying defamatory facts about Milkovich.30 Diadiun revealed he had not attended the court hearing, used cautionary terms such as "apparently," and made clear he was guessing from the OHSAA hearing testimony rather than asserting a known fact about the court testimony.31
The tone and format of the signed sports column signaled readers to expect speculation.32 Brennan reasoned that conjecture recognizable as such is intrinsic to robust public debate and that the majority’s decision would chill essential public discourse without advancing any cognizable interest in reputation.33 He would have affirmed the judgment below.34
Whether a reasonable factfinder could conclude that the statements in the column imply an assertion that petitioner perjured himself?35
A statement is actionable if a reasonable factfinder could conclude that it implies an assertion sufficiently factual to be proved true or false.36
Yes. The column stated that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth.37 It added that by the time of the court hearing they apparently had their version polished and reconstructed and the judge apparently believed them.38 These statements imply the factual assertion that Milkovich committed perjury in the judicial proceeding.39
The connotation is sufficiently factual because a determination whether Milkovich lied can be made on a core of objective evidence by comparing the transcripts of the OHSAA hearing and the court proceeding.40 A reasonable factfinder could therefore conclude that the statements were accusations of perjury that were sufficiently factual to be proved false.41
A reasonable factfinder could conclude that the statements in the column imply an assertion that petitioner perjured himself.42
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan dissented on this issue as well.43 He concluded that no reasonable reader could understand Diadiun to be impliedly asserting as fact that Milkovich had perjured himself. Diadiun openly began to surmise with words such as "seemed" and "probably," stressed that he had not attended the court hearing, and relied on a vague quotation from an OHSAA commissioner.44
The column’s pointed, exaggerated tone and its placement as a signed editorial column on the sports page notified readers to expect personal judgment rather than a factual assertion of perjury.45 Brennan argued that the majority’s application of the rule failed to hold the balance true between reputation and free speech and would punish conjecture that fuels public debate.46
Whether the First Amendment requires courts to distinguish between statements of fact and statements of opinion before applying state defamation law?47
The First Amendment does not require courts to distinguish between statements of fact and statements of opinion as a separate constitutional privilege because existing doctrine adequately secures the breathing space needed for free expression.48
No. The Court held that the Hepps requirement that a plaintiff prove falsity for speech of public concern, the Bresler-Letter Carriers-Falwell line protecting statements that cannot reasonably be interpreted as stating actual facts, and the New York Times culpability standards together provide sufficient protection without creating an artificial dichotomy between opinion and fact.49 The facts show that the column’s statements were provably false assertions of perjury rather than pure opinion.50 No additional separate constitutional privilege for opinion is required.51
The First Amendment does not require courts to distinguish between statements of fact and statements of opinion before applying state defamation law.52