# Respondents Brief — Milkovich v. Lorain Journal Co.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0686%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 1

## Text

REST AVAILARLE COPY

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS —.....................

STATEMENT OF THE CASE ....... —_

A. The Facts ........................
B. The Proceedings Below

SUMMARY OF ARGUMENT

ARGUMENT

I. THIS COURT SHOULD DISMISS THE WRIT

OF CERTIORARI AS IMPROVIDENTLY
GRANTED BECAUSE ANY RULING ON
THE SOLE ISSUE PRESENTED BY
MILKOVICH FOR REVIEW WOULD BE
ADVISORY ......................

A. The Lower Courts Held that Milkovich, a
Nationally Acclaimed Wrestling Coach and
Public School Teacher, Is Both a Public Fig-
ure and a Public Official—a Ruling Milkovich
Has Not Challenged

B. The Lower Courts Ruled that Milkovich Had
Failed to Prove Either Actual Malice or
Negligence, and Milkovich Has Not Chal-
lenged Such Rulings

C. Any Ruling on the Federal “Opinion” Issue
Would Be Advisory

THIS COURT SHOULD DISMISS THE WRIT
OF CERTIORARI AS IMPROVIDENTLY
GRANTED BECAUSE THE OHIO SUPREME
COURT EXPRESSLY BASED ITS CONCLU-
SION THAT THE COLUMN IS PROTECTED
\OPINION ON ADEQUATE AND INDEPEND-
ENT STATE LAW GROUNDS ..00......

10

11

ll

4

16

18

IV.

ii
TAPLE OF CONTENTS—Continued

EXPRESSIONS OF OPINION CONCERNING
PUBLIC FIGURES AND EVENTS ARE PRO-
TECTED UNDER THE FIRST AMEND-
MENT

THE NEWS-HERALD COLUMN WAS AN
EXPRESSION OF OPINION FULLY PRO-
TECTED UNDER THE FIRST AMEND-
MENT

A. The Views Expressed Were Unmistakably
Those of the Author

B. The Column Did Not Imply the Existence of
Undisclosed Defamatory Facts

1. The OHSSA Hearing
2. The Court Hearing

(. In Their Intrinsic and Extrinsic Contexts,
the Challenged Statements Would Clearly Be
Understood as Expressions of Opinion

THE DISTINCTION BETWEEN ACTION-
ABLE FACT AND CONSTITUTIONALLY
PROTECTED OPINION SHOULD REFLECT
THE CORE VALUES OF THE FIRST
AMENDMENT

A. Verifiability

B. The Second Restatement Approach

C. The Totality of Circumstances

CONCLUSION

Page

25

25

iii

TABLE OF AUTHORITIES

CASES

Aldoupolis v. Globe Newspaper Co., 398 Mass. 731,
500 N.E.2d 794 (1986)
Ambach v. Norwicl, 441 U.S. 68 (1979).

Avins v. White, 627 F.2d 637 (3d Cir.), cert. de-
nied, 449 U.S. 982 (19890) ;
Baker v. Lafayette College, 516 Pa. 291, 532 > A.2d

399 (1987) _. ” “1 SD
Baker v. Los Angeles Sevald Seaminer, 42 Cal. 3d
254, 228 Cal. Rptr. 206, 721 P.2d 87 (1986),
cert. denied, 479 U.S. 1032 (1987) am
Basarich v. Rodeghero, 24 Ill. App. 3d 889, 32]
N.E.2d 739 (1974)
Bernal v. Fainter, 467 U.S. 216 (1984)
Bigas v. Village of Dupo, 892 F.2d 1298 (7th Cir.
1990) 2 Oe - Se
Bland v. Verser, 299 Ark. 490, 774 S.W.2d 124
(1989) - 7

Board of License Comm'rs V. Pastore. “469 U. s. 238
Tene ee ns cuconncanccanceece

Bose Corp. v. Consumers Union of United States,
Inc., 466 U.S. 485 (1984) . a ,

Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239
(1979) eae

Burns v. MeGraw Hill Broadcasting Co. Inc., 659
P.2d 1351 (Colo. 1983).

Bussie v. Lowenthal, 535 So. 2d 378 (La. 1988)

Caron v. Bangor Pub. Co., 470 A.2d 782 (Me.
1984) . oe,

Carroll v. Times Printing Co. slip op. ns No. 596, n.1
(Tenn. App. May 5, 1987) (1987 W.L. 10332).

Casso v. Brand, 776 S.W.2d 551 (Tex. 1989)

Church of Scientology v. Cazares, 638 F.2d 1272
ED

Cianci v. New Times Publishing Co., 639 F.2d 54
Teen ee ceuncsseeecunececs

Cichos v. Indiana, 285 U S. 76 (1966)

Colorado v. Nunez, 465 U.S. 324 (1984)

Curtis Publishing Co. v. Ritts, 388 U.S. 130
a ee

24, 25

iv
TABLE OF AUTHORITIES—Continued

Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N..
125, 516 A.2d 220 (1966) ..........................0............
Deakins v. Monaghan, 484 U.S. 193 (1988) ...........
Diffenderfer v. Central Baptist Church, 404 U.S.
IEE SE UTIEIII ccnnnccocsenessinvsnctdacetunnteaemtanesntseatmbatdtetaiidcentdinbeeide
Edelman v. California, 344 U.S. 357 (1953)...
Edwards v. National Audubon Society, 556 F.2d
113 (2d Cir.), cert. denied, 434 U.S. 1002
(1977) —....... pabasnsianepspmasnnenedinettuenasiesataddentdlantstenstiadmeidiantans
EEOC v. Federal Labor Relations Authority, 476
ete, BP CID ececteccnenteneccersecntencnnssastusmabecmmmpmanenees
Federai Radio Comm’n v. General Elec. Co., 281
U.S. 464 (1930) 220... ec ecceeeeeeeeeeeeeeeeeeeee
Florida v. Casal, 462 U.S. 637 (1983) .0000-
Friqon v. Morrison-Maierle, 233 Mont. 113, 760
ae Ge CD ensnnitnnnstentitinimevineesmmesnsiaintiesiuiaatennian
Fudge v. Penthouse Internat’l, Ltd., 840 F.2d 1012
CE Ga. SIT sacccsccecoctnccnteevetenpintaniiiikdiditiess
Gernander v. Winona State Univ., 428 N.W.2d 473
CE MI TID sscneciinsittsnaitiideei tata a
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)...
Goodrich v. Waterbury Republican-American, Inc.,
188 Conn. 107, 448 A.2d 1317 (1982) 2.0000...
Grayson v. Curtis Pub. Co., 72 Wash. 2d 999, 436
a See ee neisinteinttdeaniinzeatinenniddibanitemineianae
Greenbelt Cooperative Publishing Association, Inc.
v. Bresler, 398 U.S. 6 (1970) ............................... -
Hall v. Beals, 396 U.S. 45 (1969) ......0000000 ee.
Havalunch, Inc. v. Mazza, 294 8.E.2d 70 (W. Va.
1981) ..... clei paaiicbabidantnsatbemmenatiadanmad Ant diienaela te
Healey v. New England Newspapers, Inc., 520
Te Ie Cis IE viccicccieieten edsteedbiiettedet eens
Hearst Corp. v. Hughes, 297 Md. 112, 466 A.2d
I scsi hci erica neta aie ed ee
Henry v. Halliburton, 690 S. W.2d 775 (Mo. 1985)...
Herb v. Pitcairn, 324 U.S. 117 (1945) .000000...
Hodges v. United States, 368 U.S. 139 (1961)...
Hoffman v. Washington Post Co., 433 F. Supp. 600
(D.D.C. 1977), aff'd, 578 F.2d 442 (D.C. Cir.
SITETIEE cnniicstenieninstpecnnndsiasianeleiaiiessiiias tau aeecimmieeiaetiane

Page

22
17

17
20
38
15

17
20

22
21

22

passim

22

14

34, 35

17

22
22

v

TABLE OF AUTHORITIES—Continued

Page
Hotchner v. Castillo-Puche, 551 F.2d 900 (2d Cir.
IN ae CC TITS ae Tere 46
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46
IIIT <i:.ih- ont ceichadiens eutibaitenaadereg inetaammeneiaammiedaniie 21, 24, 48
Information Control Corp. v. Genesis One Com-
puter Corp., 611 F.2d 781 (9th Cir. 1980)... 45
Jamerson v. Anderson Newspapers, Inc., 469
N.E.2d 1243 (Ind. App. 1984) ............................... 22
Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th
Cir.), cert. denied, 479 U.S. 883 (1986)... passim
Jankovich v. Indiana Toll Road Comm’n, 379 U.S.
"fl EGRESS FESRECERS oo 1 an renner Loner oI Oya 20
Johnson v. Delta-Democrat Pub. Co., 531 So. 2d
mn ESSERE REN ees em ce na 22
Johnston v. Corinthian Television Corp., 583 P.2d
I alia 14
Jones v. Board of Educ., 397 U.S. 31 (1970) ............ 18
Jones v. Palmer Communications, Inc., 440 N.W.2d
ne GU I nos cceheleeaessiaedinnanenss 22
Kapiloff v. Dunn, 27 Md. App. 514, 343 A.2d 251
(1975), cert. denied, 426 U.S. 907 (1976) _..... ane 14
Keller v. Miami Herald Pub. Co., 778 F.2d 711
I I a eaeeeneemneubeneh 21

Koch v. Goldway, 817 F.2d 507 (9th Cir. 1987)... 21, 44
Lauderback v. American Broadcasting Companies,

741 F.2d 193 (8th Cir. 1984) .........000000000 ee... ; 44
Lewis v. Time Inc., 710 F.2d 549 (9th Cir. 1983)... 21, 23,
42

Lorain Journal Co. v. Milkovich, 449 U.S. 966

(1980) ......... TL. SEN EV RE TN 7
Lorain Journal Co. v. Milkovich, 474 U.S. 953

ERD Re ns Lm SERED MoS REN, 8, 12, 13, 14
MacConnell v. Mitten, 131 Ariz. 22, 638 P.2d 689

EE CE eee ere ee es ee 21
Mahoney v. Adirondack Pub. Co., 71 N.Y.2d 31,

523 N.Y.S.2d 480, 517 N.E.2d 1365 (1987) ........ 14
Mashburn v. Collin, 355 So. 2d 879 (La. 1977)... 25
McCarthy v. Bruner, 323 U.S. 673 (1944) 0... 18
Michigan v. Long, 463 U.S. 1032 (1983) ........... pao 19

Milkovich v. Lorain Journal Co., 65 Ohio App. 2d
148, 416 N.E.2d 662 (1979) ..............200..cccccccceseeeees 7

vi
TABLE OF AUTHORITIES—Continued

Page
Milkovich v. News Herald, 15 Ohio St. 3d 292, 473
8k 8 | eee 8, 11, 12
Milkovich v. News Herald, 43 Ohio St. 3d 707, 540
IRIE WEY ETI o: coccucosacenoceensecenestbeceensreuenesiinconane 10, 15
Milkovich v. News-Herald, 46 Ohio App. 3d 20,
545 N.E.2d 1320 (1969) ................................. 9, 15, 16, 19
Miskovsky v. Oklahoma Pub. Co., 654 P.2d 587
(Okla.), cert. denied, 459 U.S. 923 (1982) .......... 22
Mittelman v. Witous, slip op., No. 67530 (Ill, Dee.
31, 1989) WL 154272 ........ ackiiesiideahsceaibhasetavaiaoaracaa 22
Moffat v. Brown, 751 P.2d 939 (Alaska 1988) ace 21
Mr. Chow of New York v. Ste. Jour Azur., S.A.,
759 F.2d 219 (2d Cir. 1985) .............. 0. 21, 37, 38
Nash v. Keene Pub. Corp., 127 N.H. 214, 498 A.2d
mE SES STC on te a See 22
Nevada Independent Broadcasting Corp. v. Allen,
99 Nev. 404, 664 P.2d 337 (1983) .....000000000... 22
New York Times v. Sullivan, 376 U.S. 254 (1964) .. 20, 24,
48
New York v. Uplinger, 467 U.S. 246 (1984)... . 18
Nolan v. Nolan, 11 Ohio St. 3d 1, 462 N.E.2d 410
a oe a Rea owe 9

Old Dominion Branch No. 496, Nat'l Ass'n of
Letter Carriers v. Austin, 418 U.S. 264 (1974). 34, 45
Oliman v. Evans, 750 F.2d 970 (D.C. Cir. 1984)
(en banc), cert. denied, 471 U.S. 1127 (1985) passim
Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir.
1978), cert. denied, 440 U.S. 960 (1979) . 21
Paschall v. Christie-Stewart, Inc., 414 U.S. 100

EE as ee eee aL NE ee 17
Pearson v. Fairbanks Pub. Co., 4183 Pp. 2d 711

LE SE a eke eR aa FT
Pease v. Telegraph Pub. Co., 121 N.H. 62, 426 A.2d

463 (1981) 0.0.00... 22
Peerless Elec. Co. v. Bowers, 164 Ohio St. 209, 129

N.E.2d 467 (1955) : 11
Philadelphia Newspapers, Ine. v. Hepps, 475 US

767 (1986) .................0000.00000 0... 15, 23, 46

Potomac Valve & Fitting, Ine. v. Crane ford Fitting

Co., 829 F.2d 1280 (4th Cir. 1987) ......... seaside passim

vii
TABLE OF AUTHORITIES—Continued

Renwick v. News And Observer Pub. Co., 63 N.C.
App. 200, 304 S.E.2d 593 (1983), reversed on
other grounds, 310 N.C. 312, 312 S.E.2d 405
(1984), cert. denied, 469 U.S. 858 (1984)...

Riley v. Moyed, 529 A.2d 248 (Del. 1987) —............

Rinsley v. Brandt, 700 F.2d 1304 (10th Cir. 1983) ..

Rosenblatt v. Baer, 383 U.S. 75 (1966)

Saenz v. Morris, 106 N.M. 530, 749 P.2d 159
I ik aa et

Scandinavian World Cruises (Bahemes) ‘Ltd. v.
Ergle, 525 So. 2d 1012 (Fla. App. 1988) _....... ;

Scott v. News Herald, 25 Ohio St. 3d 243, 496
rr re re csenennestnionianionss .

Sewell v. Brookbank, 119 Ariz. 422, 581 P.2d 267
EERE De So TEI De ee ae ane

Smith v. Butler, 366 U. S. 161 (1961)

State ex rel. Bosch v. Industrial Comm'n, 1 Ohio
St. 3d 94, 438 N.E.2d 415 (1982). .

Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N. Y.S
2d 901, 501 N.E.2d 550 (1986) —....0000000000......

Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988)

True v. Ladner, 513 A.2d 257 (Me. 1986)...

Turner v. Welliver, 226 Neb. 275, 411 N.W.2d 298
(1987)

Turrell v. District of Columbia, 243 U. S. ’ (1917).
Vandenburag v. Newsweek, Inc., 507 F.2d 1024 (5th
- SS. | aes
Wilson v. Loew’ 8, Ine. 355 US. ‘597 (1958) - A SO
Yancey v. Hamilton, slip op., No. 88-SC-693-DG

(Ky. 1989) | a

Zacchini v. Scrippe-Howard Broadcasting Co.. 433

U.S. 562 (1977)

CONSTITUTIONAL PROVISIONS

Ohio Const. art. I, $11. Ree re en 1, 10,

U.S. Const. amend. I
U.S. Const. art. ITT, § 2

OTHER AUTHORITIES
Restatement (Second) of Torts $566 (1977)

Page

passim

29

passim
99

18, 19
1
1,17

passim

BRIEF OF RESPONDENTS

CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I

Congress shall make no law . . . abridging the free-
dom of speech, or of the press . . .

U.S. Const. art. ITI, § 2

The judicial Power shall ex‘end in all Cases, in Law
and Equity, arising under this Constitution .. .

Ohio Const. art. I, § 11

Every citizen may freely speak, write, and publish
his sentiments on all subjects, being responsible for
the abuse of the right: and no law shall be passed
to restrain or abridge the liberty of speech, or of the
press. In all criminal prosecutions for libel, the truth
may be given in evidence to the jury, and if it shall
appear to the jury, that the matter charged as libel-
ous is true, and was published with good motives, and
for justifiable ends, the party shall be acquitted.

STATEMENT OF THE CASE
A. The Facts

The Petitioner, Michael Milkovich, Sr.. was a public
school teacher and head wrestiing coach at Maple Heights
High School, in Maple Heights, Ohio, from 1950 to 1977.
(.J.A. 193) During Milkovich’s tenure as wrestling coach
he compiled a record of 265 wins and 25 losses. (J.A.
211) He won 10 state titles, finished second in the State
of Ohio nine times, and placed third in the state twice.
(J.A. 199! He was responsible for coaching 480 cham-
pions and coached the world championship team against
the U.S.S.R. (J.A. 203)

By his own admission, Milkovich actively sought to
establish himself as one of America’s outstanding coaches
and a nationally acclaimed sports figure. Seeking na-
tional prominence as an educator and motivator of youth,

he advertised his family as the “Nation's Outstanding
Wrestling Family” (J.A. 277, 279, 281) and promoted
himself as “Ohio’s Number One High School Coach.”
(J.A. 211, 281) As a result of his public relations activi-
ties and the magnitude of his acomplishments, Milko-
vich was honored by civic groups, legislative bodies, and
sports organizations. At trial and during the proceedinzs
below, Milkovich and others summarized his extensive ac-
complishments and widespread notoriety as follows:

1. Received National Coach of the Year Award, Port-
land, Orezon, the number one wrestling coach in
the United States (J.A. 219)

Honored by the Maple Heights School Sys*em in

May. 1988 by naming a middle school the “Milko-

vich Middle School” ‘J.A. 272)

3. Received Congressional Record Citation in 1972
(J.A. 200)

4. Received the Distinguished Coaching Services

Award presented by the National Council of High

School Coaches (J.A. 200)

Inducted into the Helms Foundation | National]

Amateur Wrestling Hall of Fame ‘J.A. 218)

6. Received National Federation Award by the

Scholastic Wrestling News ‘J.A. 200)

Conducted wrestling clinics throughout the United

States sponsored by state associations and coaches
organizations (J.A. 213, 215, 216; R. 646, 647)

8. Appeared frequently as speaker at institutions
throughout the United States (R. 630, 631, 632)

%. Received United States Wrestling Federation
Award (J.A. 200)

10. Honored with a Resolution by the Ohio Senate
(J.A. 219)

11. Honored with a Resolution by the Ohio House of
Representatives (J.A. 218, 219)

12. Charter member, Ohio High School Hall of Fame
(J.A. 218)

Lo

.-
wt
.

13. Honored by the Cleveland City Co ncil ‘(J.A. 219)

14. Honored by City of Maple Heights: “Mike Milko-
vich Day” ‘J.A. 200)

15. Past President, Ohio Coaches Association (J.A.
201)

16. Conducted wrestling school at Baldwin-Wallace
College, Berea, Ohio | R. 630)

17. No other wrestling coach in the United States
achieved a comparable win-loss record (J.A. 211)

18. Received the Kent State University Athletic Hall
of Fame Award ‘J.A. 200)

On January 9, 1975, Milkovich’s conduct as a teacher
and wrestling coach was criticized in a sports column
written by J. Theodore Diadiun and published in the
News Herald. (J.A. 15-17) Under the headings “T.D.
says” and “Diadiun says,” the column commented on
Milkovich’s conduct during a wrestling meet in which
members and supporters of Milkovich’s team attacked
visiting wrestlers from Mentor High School. (J.A. 155,
156) Also addressed were Milkovich’s testimony before
the Ohio High School Athletic Association ‘OHSAA),
which “severely censured” Milkovich for failing to con-
trol himself and his team during the meet ‘J.A. 131,
132) and Milkovich’s subsequent testimony before a com-
mon pleas judze who overturned the OHSAA’s orders on
due process grounds. Writing for the Mentor community
whose wrestlers had been attacked at Maple lieights,
sportswriter Diadiun expressed the view that Milkovich
had misrepresented the events of the wrestling meet in
his testimony before the OHSAA and the court, attempt-
ing “incredibly, |to! shift the blame of the affair to
Mentor.” In the conclusion of his column Diadiun posed
and answered the question: Is that the kind of lesson we
want our young people learning from their high schoo!
administrators and coaches?” ‘(J.A. 15, 16, 17) The
events leading up to the News Herald column are as
follows:

d

On February 9, 1974, a wrestling meet was held at
Maple Heights High School before an audience of ap-
proximately 2000 spectators. (J.A. 159) The visting team
was from Mentor High School, a community served by
the News Herald. During one of the scheduled matches.
a Maple Heights wrestler, who had gone undefeated for
the year and was ahead on match points, fouled and ap-
parently injured a Mentor wrestler. (J.A. 151, 152, 255,
226) Milkovich believed that the Mentor wrestler could
continue the match (J.A. 224), and when meet officials
awarded the match to the injured Mentor wrestler by
forfeiture Milkovich became visibly upset. (J.A. 160, 225,
226; R. 226, 401, 434) He began makine hand cestures
to exemplify his disgust with the forfeiture. (J.A. 155.
158 225; R. 27, 31, 226, 243, 401, 440) Immediately
thereafter (R. 230, 283) two Maple Heights wrestlers
left their bench and attacked at least one Mentor wrestler,
(J.A. 155, 156) With this, the benches and stands cleared
and a melee began. (J.A. 156; R. 108, 231, 283. 436.
437)

Milkovich was in the middle of the melee at all times.
either attempting to separate fighting wrestlers or ob-
serving the confusion. (J.A, 156, 157: R. 197, 282. 439)
Four Mentor wrestlers were taken to the hospital for
treatment of injuries suffered. (R. 569) A movie camera
was present and captured the violence of the scene.

Diadiun witnessed the meet and the riot as a sports
reporter who had followed Milkovich’s coaching career
since 1967. (J.A. 185) Immediately followine the meet.
Diadiun wrote a column in the News-Herald describing
the incident and criticizing Milkovich and the entire
Maple Heichts coaching staff: Milkovich made no com-
plaint about this column. (J.A. 161: Milkovich Depo. R.
S80' In addition to attending the match, Diadiun read
accounts of the affray on the Associated Press wire serv-
ice and in other newspapers. (Diadiun Depo. R. 1028)
He also interviewed numerous other spectators regarding
their impressions of the incident. (J.A. 141-143)

5

On February 28, 1974, the Ohio High School Athletic
Association conducted an investigation into the conduct
of Milkovich and his team at the wrestling meet. Diadiun
attended the administrative hearing (J.A. 164) and
listened to Milkovich's testimony, as well as the testimony
of H. Don Scott, the Maple Heights superintendent of
schools. Based upon his first-hand observations at the
hearing, Diadiun believed that the Maple Heights repre-
sentatives presented a different picture of what had oc-
curred at the wrestling meet than what he himself had
observed. (J.A. 167) In fact, Diadiun believed that
Milkovich told several specific lies at the OHSAA hear-
ing. (J.A. 180)

After the February 28, 1974 hearing the OHSAA is-
sued a “severe censure” to Milkovich and his son, the
junior varsity coach, and placed the Maple Heivhts
wrestling team on probation from March 1, 1974 until
the end of the 1975-76 school year, declaring the team
ineligible for the 1975 state wrestling tournament. In
addition, the OHSAA ordered the principal of Maple
Heights High School to re-evaluate the entire wrestling
program to ensure the safety of participants and specta-
tors at all wrestling meets. (J.A. 131, 182) On March 5,
1974 the Ohio Athletic Commission issued the following
written censure to Milkovich:

From the reports studied by the State Board they
were of the unanimous opinion that you were derelict
in your responsibility to insure that members of your
wrestling team conducted themselves the way high
school athletes are expected to. There was a distinct
feeling that if you had taken proper precautions your
team would have not become involved with the Men-
tor High wrestlers. Coaches have a great responsi-
bility in crowd control and it all begins with, first of
all, controlling yourself and members of your team
and if this is done in a proper manner crowd control
then becomes a very minor problem.

(J.A. 130)

The OHSAA mailed thousands of copies of its censure
resolution throughout Ohio—to schools, newspapers. and
television stations. (J.A, 234, 235, 236, 238, 287) The
South East Sun (J.A. 287) and the Cleveland Plain
Dealer (R. 690) gave substantial publicity to Milkovich’s
censure,

Milkovich did not appeal the OHSAA censure. (J.A.
234) However, several wrestlers and their parents sub-

sequently filed suit in the Common Pleas Court of Frank- -

lin County, Ohio, challenging the OHSAA’s suspension
of the Maple Heights team. Milkovich was not a party-
litigant (J.A. 170), but he appeared voluntarily and gave
testimony. (R. 93,95) Though several photographs from
the wrestling meet depict him watching the melee (R.
804-808), Milkovich testified at the court hearing that
he saw no fighting or unruliness on the part of any
Maple Heights wrestler. (R. 94)

Sportswriter Diadiun did not attend the court hearing.
(J.A. 170, 171, 173) Four or five days after the hearing.
however, he had a number of conversations with Dr.
Harold Meyer, the Commissioner of the OHSAA, who
had attended the hearing. (J.A. 172, 173) Dr. Meyer
was angry and upset during his conversations with Dia-
diun; he felt that he had been blamed at the court hear-
ing for being negligent. (J.A. 172, 265) Although, dur-
ing the trial of the instant case, Dr. Meyer's recollection
of his conversations with Diadiun was hazy (J.A. 267),
Diadiun remembered the conversations clearly. Dr. Meyer
told Diadiun, “I can tell you this: some of the storie<
told to the judve sounded pretty darned unfamiliar.”
(J.A. 172) Dr. Meyer also told Diadiun, “I don’t know
what we're supposed to do in this judicial system. Just
tell your side and the hell with the truth.” (J.A. 180)

Diadiun had heard Milkovich tell what Diadiun be-
lieved to be several lies at the OHSAA hearing (J.A.
180), and he interpreted Dr. Meyer's agitated remarks
to mean that Milkovich had again misrepresented what
actually happened at the riot in order to put the Maple

7

Heights wrestlers in a favorable light before the judge.
(J.A. 177)

On January 8, 1975—the day after the common pleas
court issued its decision overturning the OHSAA orders
on due process grounds-the column at issue appeared in
the News Herald. Owned by the Lorain Journal Com-
pany, the News Herald is a local newspaper with a cir-
culation of about 27,000. (J.A. 188) Diadiun’s column
appeared in the sports section, on pages 35 and 39 of the
paper. (J.A. 15, 16, 17) The column is reproduced in
its entirety in Milkovich’s brief.

The trial of Milkovich’s lawsuit began on April 19,
1978. Milkovich’s counsel presented evidence for five
days. At no time did any witness interpret the News
Herald column as an accusation of perjury. Diadiun
testified that he based his column on the knowledge he
had gained from attending the February 9, 1974 wrestl-
ing meet and the February 28, 1974 OHSAA hearing, as
well as his conversations with Dr. Harold Meyer about
the court hearing. ‘J.A. 175) He expressly denied that
the column accused Milkovich of perjury. (J.A. Ls0)

bB. The Proceedings Below

Milkovich filed this action on April 30, 1975 in the
Court of Common Pleas of Lake County, Ohio. After
five days of trial, and at the close of Milkovich’s case-
in-chief, the trial court ruled that Milkovich was a public
figure and granted Respondents’ motion for a directed
verdict on the ground that Milkovich had failed to prove
actual malice. ‘J.A. 21-22) The Court of Appeals,
Eleventh Judicial District, reversed and remanded for
further proceedings. Milkovich v. Lorain Journal Co.,
65 Ohio App. 2d 143, 416 N.E.2d 662 (1979). The Su-
preme Court of Ohio dismissed Respondents’ appeal.
(J.A. 38) This Court denied Respondents’ petition for
certiorari over Justice Brennan's dissent. Lorain Journa!
Co. v. Milkovich, 449 U.S. 966 (1980),

On remand, the trial court granted Respondents’ mo-
tion for summary judgment, holding that (1! Milkovich
was a public figure as a matter of law; (2) Milkovich
failed to produce sufficient evidence to raise a genuine
issue of material fact with regard to actual malice; and
(3) the column was constitutionally protected opinion.
(J.A. 47-59) This time the court of appeals affirmed.
(J.A. 62-70: The Supreme Court of Ohio reversed, hold-
ing that (1) Milkovich was not a public figure and (2)
the column was not protected opinion; the court made
no determination about, and did not discuss, the suffi-
ciency of the evidence to establish actual malice. Mi/ko-
vich v. News Herald, 15 Ohio St. 3d 292, 473 N.F.2d
1191 (1984), overruled in Scott v. News Herald, 25 Ohio
St. 3d 243, 496 N.E.2d 699 (1986). Once again, this
Court denied Respondents’ petition for certiorari over
the dissent of Justice Brennan (joined by Justice Mar-
shall', who stated that Milkovich was both a public offi-
cial and a public figure under established precedent of
this Court. Lorain Journal Co. v. Milkorich, 474 U.S.
953, 957-64 (1985) (Brennan, J., dissenting from the
denial of certiorari!. Justice Brennan also noted that
both the trial court and the court of appeals had found
insufficient evidence for a jury to conclude that the
column was published with actual malice. Jd. at 957.

On the second remand. the trial court stayed the pro-
ceedings pending the ruling of the Ohio Supreme Court
in a related case involving the same column, Scott r.
News-Herald, 25 Ohio St. 3d 243, 496 N.E.2d 699
(1986).

The Scott court expressly overruled its earlier Mi/ko-
vich decision as follows: (1) it concluded that the col-
umn at issue in both the Scott case and the instant case
was constitutionally protected as opinion, and (2) it con-
cluded that both Scott and Milkovich were public figures.
Quoting Justice Brennan's dissent from this Court's de-
nial of certiorari in Mi/kovich, the Scott court endorsed
the point “correctly adduced” by Justice Brennan that
“\tlo say that Milkovich . .. was not a public figure .. .

is simply nonsense,” a point found “equally applicable to
H. Don Scott in his capacity as superintendent.” Jd. at
247-48, 496 N.E.2d at 704 (emphasis added). The Scott
court expressly overruled the prior Milkovich decision “in
its restrictive view of public officials.” Jd. The court
also stated that “|t|he record herein . . . supports the
determination of the trial court that actual malice could
not be established.” /d. at 249, 496 N.E.2d at 705.
Scott’s subsequent petition to this Court for review was
rejected as untimely.

Following the ruling in Scott, Respondents moved for
summary judgment in Milkovich’s case on the ground
that Scott should control the outcome with regard to
Milkovich’s status as a public figure and public official,
the absence of evidence sufficient to establish actual
malice or negligence, and the nature of the column as
constitutionally protected opinion. Summary judgment
was granted and Milkovich appealed. Mi/kovich v. News-
Herald, 46 Ohio App. 3d 20, 545 N.E.2d 1320 (1989).
Milkovich listed four assignments of error: (1) that the
trial court erred in holding that the column was pro-
tected opinion, (2) that the earlier Ohio Supreme Court
decision in Milkovich should be the law of the case, not
the intervening Scot? decision, (3) that the constitutional
protection of the News Herald column as opinion de-
pended on the resolution of disputed factual contentions
and could not be resolved on summary judgment, and
(4) that “there is a genuine issue of fact in dispute as
to negligence and actual malice.” /d. at 22, 545 N.E.2d
at 1323. The court of appeals affirmed the grant of sum-
mary judgment and held all four assignments of error
to be “without merit.” /d. at 24, 545 N.E.2d at 1325.
The court of appeals also held that the Scott decision
controlled the outcome of Milkovich’s case under an ex-
ception to the law of the case doctrine enunciated by the
Ohio Supreme Court in Nolan v. Nolan, 11 Ohio St. 3d
1, 462 N.E.2d 410 11984). Jd.

In his appeal to the Ohio Supreme Court, Milkovich
appealed only the appellate court’s determination that

10

the column was constitutionally protected opinion. The

Ohio Supreme Court dismissed the appeal. Milkovich v.

News Herald, 43 Ohio St. 3d 707, 540 N.E.2d 724
(1989).

SUMMARY OF ARGUMENT

1. Petitioner Michael Milkovich, Sr., a nationally re-
nowned wrestling coach and public school teacher, was
held by the lower courts to be a public figure and a
public official. The lower courts also found that Milko-
vich had offered insufficient evidence to establish that the
News Herald column was published with actual malice
or negligence. Milkovich did not raise these issues in the
Ohio Supreme Court and has not presented them to this
Court for review: he has challenged only the lower
courts’ determination that the News Herald column was
constitutionally protected opinion. Because any ruling
on the sole issue presented by Milkovich for review would
have no impact on the underlying judgment but would
be merely advisory, the Court should dismiss the writ of
certiorari as improvidently granted.

2. The Ohio Supreme Court’s holding that the News
Herald column was protected opinion was based primar-
ily upon Article I, section 11 of the Ohio constitution——a
basis expressly stated to be independent of federal law.
Because the decision below was based on an adequate and
independent state law ground, this Court should dismiss
the writ of certiorari as improvidently granted.

3. The News Herald column was an_ emotionally
charged commentary by sportswriter Diadiun concerning
Milkovich’s conduct, as an educator and coach, in events
surrounding a riot at a high school wrestling meet—an
incident that had resulted in a “severe censure” of Mil-
kovich by the Ohio High School Athletic Association for
failing to control himself and his team. In light of the
heading of the column (“Diadiun says’), the frequent
use of words of apparency, and the moral judgments that
were the central theme, the column would certainly be
viewed by its readers to convey the subjective opinion

11

of its author on a matter of public controversy. For
these reasons, and the fact that the column does not im-
ply the existence of undisclosed defamatory facts, the
column was constitutionally protected under the First
Amendment. Gertz v. Robert Welch, Inc., 418 U.S. 325
(1974).

ARGUMENT

I. THIS COURT SHOULD DISMISS THE WRIT OF
CERTIORARI AS IMPROVIDENTLY GRANTED
BECAUSE ANY RULING ON THE SOLE ISSUE
PRESENTED BY MILKOVICH FOR’ REVIEW
WOULD BE ADVISORY.

A. The Lower Courts Held that Milkovich, a Nationally
Acclaimed Wrestling Coach and Public School
Teacher, Is Both a Public Figure and a Public
Official—a Ruling Milkovich Has Not Challenged.

Petitioner cites Milkovich v. News Herald for the prop-
osition that he is neither a public official nor public fig-
ure, see Brief of Petitioner at 18 n.6, but he fails to note
that Milkovich was expressly overruled “in its restrictive
view of public officials.” Scott v. News Hera'd, 25 Ohio
St. 3d 243, 245-48, 496 N.F.2d 700, 702-04 (1986)
(overruling Milkovich v. News Herald, 15 Ohio St. 3d
292, 473 N.E.2d 1191 (1984)).' Observing that “both
Milkovich and Scott were authority figures—individua's
with substantial impact on their community,” the Sco/t
court endorsed the point “correctly adduced” by Justice
Brennan that “|t|o say that Milkovich ... was not a
public figure for purposes of discussion about the con-
troversy is simp'y nonsense.” Scott, 25 Ohio St. 3d at
247, 496 N.E.2d at 703 (quoting Justice Brennan’s dis-

1 Milkovich’s assertion that the overruled Milkovich decision re-
mains authoritative is contrary to Ohio law. As the Ohio Supreme
Court has held, “a decision of a court of supreme jurisdiction over-
ruling a former decision is retrospective in its operation, and the
effect is not that the former was bad law, but that it nerer was the
law.” Peerless Elec. Co. v. Bowers, 164 Ohio St. 209, 210. 129
N.E.2d 467, 468 (1955), cited with approval in State ex rel. Bosch
v. Industrial Comm'n, 1 Ohio St. 3d 94, 438 N.E.2d 415 (1982).

12

sent from the denial of certiorari in Lorain Journal Co.
v. Milkovich, 474 U.S. 953, 964 (1985).

The Scott court’s reversal of Milkovich and its clarifi-
cation of Milkovich’s public figure status were entirely
consistent with this Court’s decision in Curtis Publishing
Co. v. Butts and Associated Press v. Walker, 388 U.S.
130 (1967). Like the former coach and athletic director
in Butts who had attained public figure status by rea-
son of his “position alone,” Milkovich’s outstanding
achievements and successful self-promotional efforts had
earned him widespread notoriety as one of the nation’s
preeminent wrestling coaches. 388 U.S. 130, 154-55
(1967). Indeed, Milkovich was selected to coach the
United States team against the Soviet Union.“ (J.A.
203)

Even closer parallels can be drawn to the plaintiff in
Walker, a retired military officer who became a limited
purpose public figure by his involvement in a public con-
troversy. Associated Press v. Walker, decided with
Butts, 388 U.S. 130 (1967). See also Gertz v. Robert
Welch, Ine., 418 U.S. 323, 351 (1974) (“in some instances

“Coach Milkovich was at least as “well-known and respected in
coaching ranks” as was Athletic Director Butts. Milkovich sought
and attained a national prominence and respect within the athletic
world that was unparalleled in high school coaching (J.A. 211).
He coached the world championship team against the U.S.S.R. (J.A.
203); was inducted into the National Helms Hall of Fame (J.A.
218); was given the National Coach of the Year Award for 1977 in
Portland, Oregon (J.A. 219); received the United States Wrestling
Federation Award (J.A. 200) ; was the President of the Ohio Coaches
Association (J.A. 201); received the National Council of High
School Coaches Award (J.A. 200, 201); and was given the National
Achievement Award by the Scholastic Wrestling News (J.A. 200).
See Milkovich v. News Hevald, 15 Ohio St. 3d 292, 296 n.1, 473
N.E.2d 1191 (1984). Milkovich’s prominence in coaching also
created a national recognition and respect outside of athletics. He
was honored by the Ohio Senate, the Ohio House of Representatives
and the City of Cleveland, Ohio (J.A. 218, 219): received citations
in the Congressional Record (J.A. 200), and was recognized with a
“Mike Milkovich Day” by the City of Maple Heights, Ohio (J.A.
200).

13

an individual may achieve such fame or notoriety that
he becomes a public figure for all purposes and in all
contexts,” while “|m/ore commonly, an individual in-
jects himself or is drawn into a particular controversy
and thereby becomes a public figure for a limited range
of issues’). Like Walker, Milkovich was inextricably
drawn into an important public controversy by allega-
tions that he had encouraged a riot. In both cases the
publication complained of was inspired by a brawl at a
school that resulted in injuries to a number of students,
and the subject of the publication was in the middle of
the affray. (J.A. 156)

Indeed, Milkovich’s case is even more compelling than
that of Walker: unlike Walker, Milkovich had actually
been censured by a governing body for faili ¢ to control
his own conduct during the wrestling meet—-an unap-
pealed ruling that lay at the heart of sportswriter Dia-
diun’s criticisms. As Justice Brennan wrote in his dis-
sent from the denial of certiorari in Milkovich, “|\t\he
conclusion that Milkovich was a limited purpose public
figure therefore seems quite straightforward.” 474 U.S.
at 963.

The investigations and hearings resulting from the
unprovoked attack on Mentor High School’s wrestlers
were unquestionably of significant concern to the local
community, and it was primarily in that community that
the News Herald column was circulated. (J.A. 188) As
this Court held in Rosenblatt v. Baer, “{t)he subject
matter may have been only of local interest, but at least
here, where publication was addressed primarily to the
interested community, that fact is constitutionally irrele-
vant.” 383 U.S. 75, 83 (1966). This point was echoed
by the Scott court in its comment that “|b|ecause the
newspaper in which the alleged libelous statements were
contained is of a local circulation, a finding of public
official status is particularly strengthened.” * 25 Ohio St.
3d at 246, 496 N.E.2d at 702 (1986).

2The Scott court also implicitly recognized Milkovich to be a
public official by virtue of his position as a public school teacher and

14

The Scott court was clearly correct in finding Milko-
vich to be a public figure. Indeed, Milkovich has not even
challenged that finding in his appeal to this Court or in
his appeal to the Ohio Supreme Court below.

B. The Lower Courts Ruled that Milkovich Had Failed
to Prove Either Actual Malice or Negligence, and
Milkovich Has Not Challenged Such Rulings.

Presenting only the federal “opinion” issue to this
Court, Milkovich has also ignored the lower courts’ hold-

coach. As this Court held in Rosenblatt, a public official is one who
holds a position in government of “such apparent import that the
public has an independent interest in the qualifications and per form-
ance of the person who holds it, beyond the general publie interest
in the qualifications and performance of a!] government employees.”
383 U.S. at 86. Justice Brennan concluded that “the status of a
public school teacher as a ‘public official’ . . . follows a fortiori
from the reasoning of the Court in Rosenblatt.” Lovain Jo-rnal Co.
v. Milkovich, 474 U.S at 958 (Brennan, J., dissenting from denial!
of certiorari). Noting this Court’s decision in Ambach +. Norwick,
411 U.S. 68, 75-76, 78 (1979), that “public school teachers may be
regarded as performing a task ‘that goles! to the heart of repre-
sentative government’ [and] ‘a teacher serves as a role model for his
students,’” Justice Brennan stated:
Diadiun’s column challenged Milkovich’s qualifications to teach
young students in light of his conduct in connection with the
Maple Heights Mentor High School incident. It is precisely this
type of discussion that New York Times and its progeny seek to

protect.
474 U.S. at 960. See also Bernal v. Fainter, 467 US. 216. 220
(1984) (“teachers .. . possess a high degree of responsibility and

discretion in the fulfillment of a basic governmental obligation”).
Lower courts have consistently held teachers and coaches to be
public officials or public figures in defamation actions. See Sterens
v. Tillman, 855 F.2d 394, 403 (7th Cir. 1988): Vande nbura +.
Newsweek, Inc., 507 F.2d 1024 (5th Cir. 1975): Hofiman v. Wash-
ington Post Co., 433 F. Supp. 600 (D.D.C. 1977). aff'd, 578 F.2d
442 (D.C. Cir. 1978) ; Mahoney v. Adirondack Pub. Co., 71 N.Y 24 31,
523 N.Y.S.2d 480, 517 N.E.2d 1365 (1987); Johnston v. Co,inthian
Television Corp., 583 P.2d 1101 (Okla. 1978); Sewell v. Brookbank,
119 Ariz. 422, 581 P.2d 267 (1978): Grayson v. Curtis Pub. Co., 72
Wash. 2d 999, 436 P.2d 756 (1967): Kapiloff v. Duan, 27 Md. App.
514, 343 A.2d 251 (1975), cert. denied, 426 US. 907 (1976):
Basarich v. Rodeghero, 24 Ill. App. 3d 889, 321 N.E.2d 729 (1974).

15

ing that he had failed to raise a genuine issue of ma-
terial fact on whether Diadiun’s column was published
with actual malice or negligence. Milkovich’s most recent
appeal to the court of appeals asserted as a “fourth as-
signment of error” that “there is a genuine issue of fact
in dispute as to negligence and actual malice.” Milkovi-h
v. News Herald, 46 Ohio App. 3d 20, 22, 545 N.E.2d
1320. 1323. Finding the fourth assignment of error to
be “without merit,” the court of appeals expressly held
that “{a|s a matter of law, the instant cause does not
present any material issue of fact as to negligence or
‘actual malice.’ * 46 Ohio App. 3d at 24, 545 N.E.2d at
1325. Because the Ohio Supreme Court dismissed Milko-
vich’s appeal, Milkovich v. News Herald, 43 Ohio St. 2d
707, 540 N.E.2d 724 (1989), the court of appeals’ hold-
ing stands unreversed (and unchallenged) .*

The lower courts were clearly correct in finding that
Milkovich had failed to establish actual malice or ne7li-
gence. 46 Ohio App. 3d at 22, 545 N.E.2d at 1323.
Diadiun was present at the wrestling meet on February

‘The court of appeals’ holding was consistent with earlier de-
cisions in Milkovich’s case; every time they have considered the
issue, Ohio courts have found Milkovich’s evidence insufficient to
establish actual malice. (R. 771 (trial court, 1978): J.A. 58-59
(trial court, 1981)); J.A. 65-66 (court of appeals, 198%). Ser Scott,
25 Ohio St. 3d at 250, 496 N.E.2d at 705. In fact. the trial court
in its initial ruling—granting a directed verdict after five days of
trial—was unconvinced that the column was false (R. 771): despite
photographs depicting him watching the attack ( R. 804-808), Milko-
vich had testified in the 1974 court hearing discussed in Diadiun’s
column that he saw no fighting or unruliness on the part of any
Maple Heights wrestler (R. 94). Thus, Milkovich cannot even estal-
lish the falsity of the alleged libel. Philadelphia Newspapers, Inc. v-
Hepps, 475 U.S. 767, 776 (1986).

* Infact, Milkovich appealed only the “opinion” issue to the Ohio
Supreme Court and thus has failed to preserve for review by this
Court the other determinations by the court of appeals that Milko-
vich is a public figure who has failed to prove actual malice or
negligence. See, ¢e.4., EEOC rv. Federal Labor Relations Authority,
476 U.S. 19 (1986); Tyrrell v. District of Columbia, 243 U.S. 1
(1917).

16

9. 1974. (J.A. 185). Diadiun also attended and testified
at the OHSAA hearing (J.A. 164) where he heard
Milkovich tell what Diadiun believed to be several lies.
(J.A. 180) After the November 8, 1974 court hearing
Diadiun spoke with Dr. Harold Meyer, the OHSAA
commissioner, who described the testimony Milkovich
and Scott had offered to the court. Upset by what he
perceived to be an attempt te cast blame on to him,
Dr. Meyer told Diadiun: ©" .© say that some of the
stories told to the judge soundea pretty darned unfamil-
iar. It certainly sounded different from what they told
us [the OHSAA].” (J.A. 171, 172, 178) Thus, Dia-
diun’s comments in the News Herald column were sup-
ported by his own observations during the wrestling meet
and at the OHSAA hearing, as well as by his conversa-
tions with Dr. Meyer, a most credible source. ‘J.A. 175)

There is no evidence that Diadiun entertained any
doubt about the truth of the column at the time of its
publication. His comments were based on personal ob-
servations and other reliable information, all of which he
believed to be true. (J.A. 141)

Cc. Any Ruling on the Federal “Opinion” Issue Would
Be Advisory.

Because Milkovich has been heid to be a public figure
who has failed to prove actual malice, he is prevented
from recovering against Respondents on grounds com-
pletely independent of the “opinion” issue he presented
to the Ohio Supreme Court and to this Court for review.
See. eq., Curtis Publishing Co. v. Butts. 388 U.S. 1390
(1966): Gertz v. Robert Welch, Inc., 418 U.S. 323, 351-
52 (1974) ‘the First Amendment requires a public fig-
ure plaintiff to prove actual malice in order to impose
liability in a defamation action).

Even if he were merely a private figure. Milkovich’s
suit would still be precluded by the court of appeals’ rul-
ing that he has produced insufficient evidence to establish
nealiqence. See Milkerich v. News Herald, 46 Ohio App.
3d at 22, 24, 545 N.E.2d at 1323, 1325. See 418 US. at

17

347 (the First Amendment prevents states from impos-
ing liability without fault in defamation cases, even if
the plaintiff is neither a public figure nor a public offi-
cial). Milkovich’s inability to prove negligence is a
second independent basis for the decisions below—a basis
he has not challenged either in this Court or in the Ohio
Supreme Court.

This Court has long recognized that it has no jurisdic-
tion to issue “advisory opinions,” no matter how com-
pelling the issue of law. See, e.g., Deakins v. Monaghan,
484 U.S. 193, 199 (1988) (“Article III of the Constitution
limits federal courts to the adjudication of actual, ongoing
controversies between litigants.” ) ; Federal Radio Comm'n
v. General Elec. Co., 281 U.S. 464. 469 (1930) ‘Article
III does not vest the Court with jurisdiction to “give de-
cisions which are merely advisory” )” Diffenderfer v. Cen-
tral Baptist Church, 404 U.S. 412, 414 (1972) (the Court
must “ ‘avoid advisory opinions on abstract propositions
of law’” ‘quoting Hall v. Beals, 396 U.S. 45, 48 (1969) ).

An opinion is “advisory” if, among other things, the
Court's decision on the issue will not affect the disposition
of the case by the courts below. See, e.g., Board of Li-
cense Comm'rs v. Pastore, 469 U.S. 238, 239-40 (1985)
‘dismissing the writ of certiorari because “no decision
on the merits can have an effect” on the underlying judg-
ment!; Paschall v. Christie-Stewart, Inc., 414 U.S. 100,
101 (1973) ‘after the Court heard oral argument and
reviewed the record, it discovered an unchallenged and
independent ground for the appealed judgment and stated
that any decision it might render on the appealed issue
would be “advisory and beyond our jurisdiction”).

This Court’s decision on the sole issue presented by
Milkovich for its review would have no impact on the
underlying judgment. Even if the Court were to decide
that the News Herald column is not protected as opinion,
Milkevich’s suit would still be precluded by the Ohio
courts’ unchallenged finding that neither actual malice
ner negligence was shown. Thus, any consideration of

18

the “opinion” issue would offend the jurisdictional pro-
hibition on the rendering of advisory rulings, and the writ
of certiorari should be dismissed."

Because Milkovich has not sought review of the lower
court holdings on the independent, alternative, and ulti-
mately dispositive issues, Respondents submit that it is
unnecessary for this Court to reach those issues. Should
this Court conclude that such holdings are not dispositive,
however, Respondents would urge the Court to affirm the
correctness of the alternative holdings to the extent neces-
sary to ensure that Respondents’ First Amendment rights
will continue to be protected.

Il. THIS COURT SHOULD DISMISS THE WRIT OF
CERTIORARI AS IMPROVIDENTLY GRANTED
BECAUSE THE OHIO SUPREME COURT EX-
PRESSLY BASED ITS CONCLUSION THAT THE
COLUMN IS PROTECTED OPINION ON ADE-
QUATE AND INDEPENDENT STATE LAW
GROUNDs.

In holding the News Herald column to be constitution-
ally protected opinion, the Scoft court relied not on'y on
the United States Constitution but also on Article I, sec-
tion 11 of the Ohio Constitution. In fact, the Scott court's
primary holding was based solely on the state constitu-
tional ground:

In Milkovich v. News-Herald, .. . this court recently
dealt with the same article we examine today. For
reasons to be expressed herein, we now overrule the
holding in Mi/kovich with respect to the characteriza-
tion of the article. We find the article to be an opin-
ion, protected by Section 11, Article I of the Ohio
Constitution as a proper exercise of freedom of the
press.

————

®* This Court has not hesitated to dismiss writs of certiorari when
it appears on review of the merits that certiorari was improvidently
granted. See, ¢.¢., Jones v. Board of Educ, 2997 U.S. 31 (1970);
McCarthy v. Bruner, 323 U.S. 673 (1944). See also New York rv.
Uplinger, 467 U.S. 246, 248 (1984); Cichos + Indiana, 385 U.S. 76
(1966): Hedges v. United States, 368 U.S. 139 (1961); Smith rv.
Butler, 366 U.S. 161 (1961).

19

Scott, 25 Ohio St. 3d at 244, 496 N.E.2d at 701. That
the state constitutional basis was intended to be independ-
ent of federal law was expressly stated:
These ideals are not only an integral part of First
Amendment freedoms under the Federal Constitution
but are independently reinforced in Sect‘on 11,
Article I of the Ohio Constitution ....
Scott, 25 Ohio St. 3d at 245, 496 N.E. 2d at 702 ‘emphasis
added). When, in the aftermath of Scoft, the opinion
content of the News Herald column was revisited in
Milkovich’s case, the court of appeals correctly held that
the Scott decision—overruling the prior Milkovich hold-
ing on the opinion issue—was the controlling authority.
Milkovich v. News Herald, 46 Ohio App. 3d at 23, 545
N.E.2d at 1324.

In Michigan v. Long, 463 U.S. 1032, 1042 (1983), this
Court announced that it has jurisdiction to review a case
“in the absence of a plain statement that the decision
below rested on an adequate and independent state
ground.” Jd. at 1044. When a case does rest on an
adequate and independent state law ground, however, a
jurisdictional principle precludes review:

The jurisdictional concern is that we not “render an
advisory opinion, and if the same judgment would be
rendered by the state court after we corrected its
views of the federal laws, our review could amount
to nothing more than an advisory opinion.”
Id. at 1042 (quoting Herb v. Pitcairn, 324 U.S. 117, 125
(1945)). Thus, the impact of Michigan v. Long is not
that this Court has jurisdiction whenever the decision
below is based on both federal and state grounds: rather,
the Court may review such a case only if the lower court
failed to state plainly that its decision was based on an
independent state law ground.

As quoted above, the Ohio Supreme Court plainly stated
in Scott that the constitutional protection of the News
Herald column was based not only on the federal consti-
tution, but also “independently” on the Ohio Constitution.
Inasmuch as the decision below rests on an adequate and

independent state law ground, this Court lacks jurisdic-
tion to decide the instant case and should dismiss the
writ.’

Ill. EXPRESSIONS OF OPINION CONCERNING PUB-

LIC FIGURES AND EVENTS ARE PROTECTED
UNDER THE FIRST AMENDMENT.

In New York Times v. Sullivan, this Court recognized
“a profound national commitment to the principle that
debate on public issues should be uninhibited, robust and
wide-open,” even though it may include attacks on public
officials that are vehement, caustic, and unpleasant. 376
U.S. 254, 269 (1964). This Court further recognized that
absent constitutional protection for these forms of speech,
the threat of libel suits would result in media self-censor-
ship. /d. at 279. Consequently, free expression would be
inhibited and the truth necessary for self-government
would be impaired.

The constitutional tenets expressed in New York Times
concerning the need to preserve robust debate about mat-
ters of public importance apply to expressions of opinion
no less than to assertions of fact. Indeed, the rationale
for extending First Amendment protections to expressions
of opinion concerning matters of public importance is
more compelling than the need for protection of factual
assertions. As Judge Wisdom wrote in Potomac Valve &
Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th
Cir. 1987):

Ideas and opinions bear the personal imprint of the
men and women who hold them. It is therefore par-
ticularly important to protect their unfettered ex-
™ This Court has on several occasions dismissed a writ of certio-
rari as improvidently granted after determining that the decision
below was based on an independent state ground. Ser, «.¢., Colorado
v. Nenez, 465 U.S. 324 (1984) (decided after Michigan v. Long):
Florida v. Casal, 462 U.S. 637 (1983). See also Zacchini v. Seripps-
Howard Broadcasting Co., 423 U.S. 562 (1977); Cichos v. Indiana,
385 U.S. 76 (1966); Jankorich v. Indiana Toll Read Comm'n, 379
U.S. 487 (1965); Wilson v. Loew's, Inc, 355 U.S. 597 (1958);
Edelman v. California, 344 U.S. 357 (1953).

21

pression, and a rule that chills statements of fact
may be acceptable where a rule chilling opinions
would not.

Id. at 1286. The “free flow of ideas and opinions on mat-
ters of public interest and concern” lies at the heart of
the First Amendment. Hustler Magazine, luc. v. Falwell,
485 U.S. 46, 50 (1988).

The constitutional distinction between expressions of
opinion and assertions of fact was most clearly identified
in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
Finding the distinction to be inherent in the First Amend-
ment, Justice Powell wrote:

We begin with the common ground. 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. Neither the intentional lie nor the careless er-
ror materially advances society’s interest in “unin-
hibited, robust, and wide-open” debate on public
issues.

418 U.S. at 339-340. Relying principally on Gertz, the
courts in every federal circuit* and at least 36 states”

®* Fudge v. Penthouse latern., Ltd., 840 F 2d 1012, 1016 (Ist Cir.
1988); Mr. Chow of New York v. Ste. Jour Azur., S.A., 759 F 2d 219,
224 (2d Cir. 1985): Avins v. White, 627 F.2d 637, 642 (3d Cir.),
cert. denied, 449 U S. 982 (1980); Potomac Valve, 829 F.2d at 1285;
Church of Scientology v. Cazares, 638 F.2d 1272, 1286 (5th Cir.
1981); Orr v. Arqus-Press Co., 586 F.2d 1108, 1114 (6th Cir. 1978),
cert. denied, 440 U.S. 960 (1979); Biggs v. Village of Dupo, 892 F.2d
1298 (7th Cir. 1990): Janklow v. Newsweek, Inc., 788 F.2d 1500
(Sth Cir.), cert. denied, 479 U.S. 883 (1986); Lewis v. Time, Ine.,
710 F.2d 549 (9th Cir. 1983); Koch v. Goldway, 817 F.2d 507, 508
(9th Cir. 1987): Rinslew v. Brandt, 700 F.2d 1204, 1907 (16th Cir.
1983); Keller v. Miami Herald Pub. Co.. 778 F.2d 711 (11th Cir.
1985): Ollman v. Evans, 750 F 2d 970, 978 (D.C. Cir, 1984) Cen
bane), cert. denied, 471 U.S. 1127 (1985).

* Moffat v. Brown, 751 P.2d 939, 944 ( Alaska 1988); MecConn
v. Mitten, 131 Ariz. 22, 638 P.2d G89 (1981); Bland v. Verses, 299
Ark. 490, 774 S.W.2d 124, 125-26 (1989); Baker v. Los Angeles

have held expressions of opinion to be protected under the
First Amendment.

Milkovich argues that Gertz and its progeny are mani-
festly wrong—that independent constitutional protection
of opinions has never been recognized by this Court and

Herald Examiner, 42 Cal. 3d 254, 228 Cal. Rptr. 206, 721 P.2d #7
(1986), cert. denied, 479 U.S. 1032 (1987): Burns vc. Metirew-Hill
Broadcasting Co. Inc., 659 P.2d 1351, 1258 (Cole. 1983); Bucher
v. Roberts, 198 Colo. 1, 3-5, 595 P.2d 239, 241-42 (1979): Goodrich
vr. Waterbury Republicon-American Inc., 188 Conn. 107, 448 A.2d
1317, 1324 (1982); Rilew v. Mowed, 529 A2d 248 (Del. 1987):
Scandinavian World Cruises (Bahamas) Ltd. +. Evale, 525 Se. 2d
1012 (Fla. App. 198%); Mittelman vr. Witows, slip op. No. 67550
(Til, Dee. 21, 1989) WL 154272: Jamerson vr. Anderson Newspapers,
Inc., 469 N.E.2d 1243, 1252 (Ind. App. 1984); Jones ¢. Palmer Com-
munications, lac., 440 N.W.2d 884 (lowa 1989); Yercy vr. Hamilton,
slip op.. No. 88&-SC-693-DG (Ky. 1989); Bussie +. Lowenthal, 555
Se. 2d 378, 380-81 (La. 1988); Caron vr. Bangor Prb. Co. 470 A2d
782, 784 (Me. 1984); Trwe oe. Ladner, 513 A2d 257, Wl ‘Me.
1986); Hearst Corp. v. Hughes, 297 Md. 112. 466 A.2d 486 (1987);
Aldo polis vr. Globe Newspaper Co., 398 Mass. 731, 500 N.E.2d 794.
796 (1986): Gernander v. Winona State University, 428 N.W2d
473, 475 (Minn. App. 1988); Johnson oc. Delia-Democrat Pub. Co.
531 Se. 2d 811 (Miss. 1988): Henry vc. Halliburton, G0 SW 2d
775 (Mo. 1985) (ca banc): Frigon vr. Morrison-Maierle, 2 Mont.
113, 760 P.2d 57 (1988): Terner vc. Welliver, 226 Neb. 275. 411
N.W.2d 298, 2309-10 (1987); Neveda Indspendsnt BRroadcost ng
Corp. v. Allen, 99 Nev. 404, 664 P.2d 337 (1983); Nesh o. Keow
Pub. Corp... 127 NH. 214, 498 A2d 348, 351 (1985): Pees rv.
Telegraph Pub. Co. 121 NW. 62. 65, 426 A2d 465, 465 (1981);
Dairy Stores, Inc. ¢. Sentinel Pub. Co.. 104 NJ. 125, 516 A.2d 220.
231 (1986): Saenz vc. Morris, 1066 NOI. 530, 746 P.2d 159 (1987):
Steinhilber vc. Alphonse, GR N.Y2d 283, SOR N.Y S 2d 961, 51
N.E.2d 559 (1986): Renwick vc. News And Observer Pub. Co, &
Ni. App 200, 304 S.E.2d 599. G04 (1985), reevverd on ofhey
grounds, 310 NA. 322, 392 S.E.2d 405 (1984), cert. devird, 469
U.S. 858 (1984): Seett, 25 Ohie St. 3d 243, 496 N.E.2d 399 ( 19R6):
Miskorvsky v. Oklahoma Pub. Co.. 654 P 2d 587 \ Okla.). cert. denied,
459 U.S. 923 (1982): Baker cv. Lafawtte Colle ae, 516 Pa. 291, 2
A.2d 399 (1987): Healew «. New Englend Newspapers, Ive, 520
A.2d 147, 150-51 + RL. 1987); Correll «. Times Printing Co., slip op.
No. 596, n.1 (Tenn. App. May 5. 1987) (1987 W.L. 12); Coase
vr. Brend, 776 S.W2d 551 ‘Tex. 1989): Ha:aleweh, Inc. & Maze,
294 S.E.2d 70, 75 (W. Va. 1981).

is in fact unnecessary in light of the Court’s decision in
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767
(1986). Milkovich is wrong on both scores. Hepps im-
poses upon the plaintiff the burden of establishing the
falsity of the alleged defamation, a burden that pre-
supposes a determination by the trial court on whether
the challenged statement is an assertion of fact or an ex-
pression of opinion. Yet Hepps alone would afford the
trial court little guidance on how that determination is
to be made. The difficulty encountered by the lower courts
has not been on whether to protect opinion, but rather
on what basis or criteria an expression of opinion should
be distinguished from an assertion of fact. Hepps re-
quires the distinction but begs the underlying issue.

Without the careful analyses prompted by Gertz, the
fact opinion distinction under Hepps would turn solely
on whether the challenged statement is “verifiable” —
that is, capable of being proven true or false. Yet the
circuit courts have found that verifiability, though useful
in identifying purely subjective statements of emotion or
sentiment, does not adequately resolve the more difficult
cases."” The Seventh Circuit has cautioned against rigid
adherence to any “test,” pointing out that “[e] very state-
ment of opinion contains or implies some proposition of
fact, just as every statement of fact has or implies an
evaluative component.” Stevens v. Tillman, 855 F.2d 394,
398-99 (7th Cir. 1988). Verifiability, if used as a sole
criterion, would not provide clear guidance to judges,
much less to the writers and speakers whose statements
must be evaluated. See Pearson v. Fairbanks Pub. Co.,
413 P.2d 711, 714 (Alaska 1966) (“One should not be
deterred from speaking out through the fear that what
he gives as his opinion will be construed by a court as

” See, e.g., Potomac Valve, 829 F.2d at 1288; Janklow v. News-
week, Inc., 788 F.2d 1300, 1302-04 (Rth Cir.) (en bane), cert.
denied, 479 U.S. 883 (1986); Lewis v. Time, Inc., 710 F.2d 549, 553-
55 (9th Cir. 1983): Ollman v. Evans, 750 F.2d 970, 979 (DC.
Cir. 1984) (en banc), cert. denied, 471 U.S. 1127 (1985). See also
notes 17 through 19 infra and accompanying text.

24

inferring, if not actually amounting to, a misstatement of
fact.”). See also New York Times, 376 U.S. at 278-79
(finding the truth defense to be inadequate to protect con-
stitutional rights because uncertainties in application and
result would promote self-censorship).

More importantly, the traditional determinant of veri-
fiability—whether the challenged statement can be framed
as an issue of fact for a jury—fails to encompass con-
textual factors that may place the challenged statement
squarely within the scope of protection afforded by the
First Amendment. See Potomac Valve, 829 F.2d at 1288;
Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302-03 (8th
Cir.) (en bane), cert. denied, 479 U.S. 883 (1986). Stand-
ing alone, Hepps would require a distinction between fact
and opinion under the First Amendment, but would allow
the distinction to turn on a criterion unresponsive to
First Amendment interests.

Milkovich is flatly wrong in his suggestion that the
wealth of authority inspired by Gertz should be discarded
through a retraction from the constitutional principle
Justice Powell identified. Where, as here, the opinion in
question concerns a public figure in the midst of ongoing
controversy, “the freedom to speak one’s mind is not only
an aspect of individual liberty—and thus a good unto
itself—but also is essential to the common quest for truth
and the vitality of society as a whole.” Bose Corp. v. Con-
sumers Union of United States, Inc., 466 U.S. 485, 503-04

(1984).

The Court’s commitment to the protection of opinion in
the context of public figures and public controversies was
reiterated as recently as 1988, in the unanimous decision
in Hustler. Noting that “the free flow of ideas and opin-
ions on matters of public interest” lies at the heart of the
First Amendment, Chief Justice Rehnquist wrote: “We
have therefore been particularly vigilant to ensure that
individual expressions of ideas remain free from govern-
mentally imposed sanctions. The First Amendment recog-
nizes no such thing as a ‘false’ idea.” 485 U.S. at 50-51

25

(citing Gertz, 418 U.S. at 339, and Bose, 466 U.S. at
503-04).

. As discussed below, the instant case presents no occas-
ion for a retreat from these sound principles.

IV. THE NEWS-HERALD COLUMN WAS AN EXPRES-
SION OF OPINION FULLY PROTECTED UNDER
THE FIRST AMENDMENT.

In the second and third subsections below, the News-
Herald column is analyzed in terms of its factual con-
tent and contextual framework, an analysis that clearly
qualifies it for protection under the First Amendment.
Yet the language at issue is not an isolated reference in
an otherwise unrelated discussion, but rather an integral
part of a cohesive essay with a single subject and an iden-
tifiable thesis. Whether its content is an assertion of fact
or an expression of opinion is most readily demonstrated
by the column as a whole.

A. The Views Expressed Were Unmistakably Those of
the Author.

Though the focuses of perspective have varied, every
upproach to the fact opinion distinction has attempted to
answer an underlying dispositive question: whether read-
ers would view the statement as an assertion of fact or,
conversely, an expression of opinion. See, e.g., Ollman v.
E'vans, 750 F.2d 970 (D.C. Cir. 1984) (en banc), cert.
denied, 471 U.S. 1127 (1985); Mashburn v. Collin, 355
So. 2d 879 (La. 1977). In the present case, no one who
read the News-Herald column could have taken it as an
impartial reporting of objective fact. Rather, the views
expressed were unmistakably those of sportswriter Di-
adiun, heavily laden with emotional reaction and moral
judgment.

The events surrounding the altercation at the Mentor-
Maple Heights wrestling meet had been the subject of
ongoing controversy throughout Ohio, and particularly
so in the two communities whose wrestling teams were
involved. In the News-Herald, which serves the Mentor

26

community, Diadiun had written a series of articles on
Milkovich’s active involvement in the altercation. (J.A.
161) The matter had apparently been settled by the Ohio
High School Athletic Association ‘(OHSAA)}, which dis-
qualified the Maple Heights team from the state tourna-
ment and censured Milkovich, the Maple Heights coach,
for his actions during the meet. (J.A. 131, 132) All of
this was apparently undone, however, when the Franklin
County Court of Common Pleas overturned the OHSAA
orders on due process grounds.

Commenting on the court decision the very next day,
Diadiun’s purpose was not to explain the legal technicali-
ties of the due process issue or the legal effect of Milko-
vich’s testimony. Rather, his stated concern was with the
moral dilemma that arises when persons responsible for
the education of children are “called on the carpet” for
their own conduct. In Diadiun’s words:

[T]}here 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 main-
tenance worker, it is well to remember that his pri-
mary 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 re-
actions.

Milkovich, the wrestling coach, and Scott, the superin-
tendent of schools, were faced with just such a dilemma
when the events surrounding the wrestling meet were in-
vestigated by the OHSAA. Maple Heights wrestlers and
hometown partisans had reacted to the disqualification of
a Maple Heights wrestler by physically attacking the
Mentor team, “in a brawl which sent four Mentor wrest-

27

lers to the hospital.” Testifying before the OHSAA, Mil-
kovich and Scott had a difficult choice. Seeking to excul-
pate Maple Heights would exemplify avoidance of re-
sponsibility instead of acceptance of it—precisely the
opposite of the lesson educators are supposed to teach.
Failing to do so, on the other hand, could lead to the dis-
qualification of Maple Heights from the state wrestling
rr (the result ultimately ordered by the OHSAA).
(J.A. 287)

In Diadiun’s view, the two men made the wrong choice,
thereby setting a poor example for the students. (J.A.
287) Here again, Diadiun’s point was not the specific con-
tent or legal effect of the testimony before the OHSAA,
but rather the moral overtones of the situation:

[T|hey 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 position of superintendent of
schools.

Instead they chose to come to the hearing and mis-
represent 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.

Morality had been vindicated, in Diadiun’s view, by the
OHSAA decision to censure Milkovich and disqualify the
team notwithstanding the attempted exculpation:

Fortunately, it seemed at the time, the Milkovich-
Scott version of the incident presented to the board
of control had enough contradictions and obvious un-
truths so that the six board members were able to
see through it.

Probably as much in distasteful reaction to the chi-
canery 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 (sic) coach), on two-year proba-
tion.

The moral vindication Diadiun saw in the OHSAA de-
cision turned out to be short-lived, however, in that the
court of common pleas overturned the OHSAA ruling
and lifted the sanctions that had been imposed on the
Maple Heights team. (J.A. 175) Commenting on the les-
son young people would learn from this turn of events,
Diadium was critical of Milkovich and Scott for what he
perceived to be their continued and ultimately successful
effort to shift the blame:

[T\he 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 hear-
ing 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.
In both its specific content and its overall tenor, Diadiun’s
column was not an impartial report of objective fact but
rather an essay on the moral responsibilities of high school
educators. He was concerned not so much with what had

happened but why it had happened, and with the broader
ramifications of the situation in the minds of the young
people it would influence. Emotionally charged and jucg-
mental in its tone, the column could not conceivably be
understood as anything other than the personal and sub-
jective views of the writer.

B. The Column Did Not Imply the Existence of Undis-
closed Defamatory Facts.

The concern expressed by the Restatement (Second) of

Torts is whether a writing, though phrased as opinion,

implies the existence of undisclosed defamatory facts.”
The rationale is that the reader will assume the exis-
tence of the undisclosed facts and give more credence to
the writer’s opinion than it would otherwise receive. The
present case involves no such concern.

As discussed above, Diadiun’s comments were unmis-
takably opinionated and judgmental in their overall con-
tent and tone; except for the opening paragraph that re-
ported the outcome of the court decision, there is nothing
that a reader could interpret as something other than
Diadiun’s personal views. For purposes of analysis, how-
ever, two conclusions or inferences on Diadiun’s part
can be identified:

(a) that Milkovich and Scott had misrepresented the
facts in their testimony before the OHSAA: and,

(b) that “by the time the hearing before Judge Martin
rolled around, Milkovich and Scott apparently had
their version of the incident polished and recon-
structed,” such that “{a]myone who attended the
meet, whether he be from Maple Heights, Mentor
or impartial observer, knows in his heart that Mil-
kovich and Scott lied at the hearing after each
having given his solemn oath to tell the truth.”

The basis for each of these opinions is fully disclosed
in the column.

1. The OHSAA Hearing.

Diadiun had attended both the wrestling meet and the
OHSAA investigation (J.A. 164, 185): he had personally
witnessed Milkovich’s conduct during the meet, and he
had heard Milkovich’s description of those events before
the OHSAA. (J.A. 167) His conclusion that Milkovich
misrepresented the facts before the OHSAA was based

"! Restatement (Second) of Torts § 566 (1977) (discussed infra at
41-43), which provides that: “A defamatory communication may con-
sist of a statement in the form of an opinion, but a statement of this
nature is actionable only if it implies the allegation of undisclosed
defamatory facts as the basis for the opinion.”

upon two factors, both of which he disclosed to the
reader :

he inconsistency between Milkovich’s OHSAA tes-
tas and the actual events of the meet, As Diadiun
saw it. Milkovich had made “wild gestures during the
events leading up to the brawl,” “ranting from the side
of the mat and egging the crowd on against the meet
official and the opposing team.” In his OHSAA testi-
mony, however, Milkovich characterized the gestures as
“shrugs” and claimed that he was “(plowerless to con-
trol the crowd.” (J.A. 16, 17; Diadiun Depo., R. 1042,
ee he actual ts. As

ikovich’s motive to deny the val events.
nutaah ta the column, Milkovich had been “called on
the carpet to account for the incident” by the OHSAA.
The consequences he faced were both disclosed in the col-
umn and well-known to Diadiun’s readers: both Milko-
vich and his son, the junior varsity coach, had been
placed on “two-year probation” for their conduct during
the meet, and the Maple Heights team had been sus-
pended from the state tournament. (J.A. 131, 132)

sed on these observations, two inferences were pos-
Png 4 the one hand, Milkovich could have been hon-
estly mistaken in his OHSAA testimony. He might have
believed, as implausible as such a belief might have been,
that he had not even seen a fight. or that his words and
gestures had nothing to do with its outbreak. Or he could
have intentionally misrepresented the events in an at-
tempt to exculpate himself and his team and “shift the
blame of the affair to Mentor.”

Diadium drew the latter inference, disclosing his rea-
sons to the reader. (J.A. 175)

12 assuming that Diadiun’s characterization of Milkovich’s
seanas the conaiiion meet was a factual assertion ultimately
provable to be inaccurate, the inaccuracy of this supporting basis
would not make Diadiun’s opinion concerning the OSHAA testimony
any less an opinion; it would not convert the opinion itself into an
assertion of fact. Only the characterization of the conduct during the

31

2. The Court Hearing.

Diadiun had not been present at the subsequent court
hearing and claimed no personal knowledge of it. His
only basis for commenting on what had occurred at the
hearing was the information he had acquired from others
(J.A. 173-175), all fully disclosed in his column:

a. The result of the OHSAA hearing. As discussed in
the column, the OHSAA had not been persuaded by the
attempted exculpatory testimony. Notwithstanding the
Milkovich-Scott version of the meet, they had voted to
suspend the Maple Heights team from the state tourna-

ment and to censure Milkovich and his son for their own
conduct. ‘J.A. 131, 132)

b. Dr. Meyer's description of Milkovich’s testimony be-
fore the court. Dr. Harold Meyer, the OHSAA Commis-
sioner, had attended the court hearing and had com-

mented to Diadiun on Milkovich’s testimony. As reported
in the column:

“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 had at-
tended the hearing. “It certainly sounded different
from what they told us.” (R. 51)

ce. The result of the court hearing. After a hearing
in which Milkovich and Scott testified, the common pleas

court entered a temporary injunction that lifted the sane-
tions imposed by the OHSAA.

As noted above, Diadiun believed that Milkovich and
Scott had misrepresented the facts during the OHSAA
investigation. ‘J.A. 175) Though their attempt at ex-
wrestling meet would be actionable. Restatement (Second) of Torts
§ 566, at Comment c(1) (1977) (“If the defendant bases his expres-
sion of a derovatory opinion ... on his own statement of false and
defamatory facts, he is subject to liability for the factual statement
but not for the expression of opinion.”). See also Stevens v. Tillman,
855 F.2d 394, 400 (7th Cir. 1988) (discussing Illinois law) (“When
a statement in the form of an opinion discloses the defamatory
facts .. .. it is not actionable apart from those facts.”’).

culpating Maple Heights had been unsuccessful before
the OHSAA, their court testimony had resulted, as Dia-
diun understood the sequence of events, in a ruling “in
their favor.”"* From Dr. Meyer’s advice that the two
men had changed their testimony from one appearance
to the other, Diadiun reasonably inferred 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 ap-
parently believed them.”

Diadiun’s personal reaction was summed up in the
following words, heavily laden with subjective, emotional
content:

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 hear-
ing after each having given his solemn oath to tell

the truth.

Whether Diadiun’s impression was accurate or inac-
curate is known only to Milkovich and Scott, and may
well be subject to honest disagreement on the part of
others who attended the meet. In terms of the column.
however, it would be unfair to characterize Diadiun’s
statement as anything other than an expression of his
own opinion—an inference drawn from reasons fully dis-
closed to the reader.

C. In Their Intrinsic and Extrinsic Contexts, the Chal-
lenged Statements Would Clearly Be Understood

as Expressions of Opinion.
As discussed below. most courts have not limited them-

selves to the mechanical and often artificial methodology
of the Second Restatement. Rather, they have considered

13 Diadiun, a sportswriter, did not understand the legal technicali-
ties of the due process isswe. He believed that the judge's ruling
involved “fault-finding” with reyard to Milkovich’s co ° at the
wrestling meet. (J.A. 170)

the “totality of the circumstances” to determine whether
the challenged statements, in their intrinsic and extrinsic
contexts, would be taken by readers as assertions of fact
or expressions of opinion. See, e.g., Ollman, 750 F.2d at
979. Applying the “totality of circumstances” test to the
News Herald column, the Ohio Supreme Court concluded
that the column’s readers would interpret its content as
an expression of the heart-felt opinion of the author, and
not as an impartial reporting of objective fact.’ See
Scott, 25 Ohio St. 3d at 2538-54, 496 N.E.2d at 708-09.

In reference to the first factor in the Scott
analysis, the Ohio Supreme Court found that = to
mon meaning” of part of the column was that Milkovich
had lied under oath. The court recognized that such
statements will often constitute actionable libel, notwith-
standing the constitutional protection of opinions. 25
Ohio St. 3d at 250-51, 496 N.E.2d at 706-07.

The court also sided with Milkovich under the second
factor—i.e., “whether the statement is verifiable.” In
the court’s view, the implication that Milkovich had lied
under oath could be objectively verified, albeit through
a pervery action with evidence adduced from the tran-
Scripts and witnesses present at the hearing.” ™ i
St. 3d at 252, 496 N.F..2d at 707. - —

Consistent with federal precedent, however. the Scott
court recognized that contextual analysis is also impor-

'* Milkovich complains that the Scott decision resents a “vapi
meaningless test” that “make[s| every Gutement fact os tation
in every case.” Brief of Petitioner at 32. Yet Milkovich agrees that
the fact opinion distinction requires “a reasonable contextual analy-
sis considered from the perspective of the average reader.” Jd at
28. Applying just such an analysis, the Scott court evaluated the
News-Herald Column in a balanced and narrowly-drawn opinion.

In light of these findings, the Scott decision will hardly encour-
ave the news media to believe that defamation allegations will be
taken lightly by Ohio courts. Scott's four-part standard will prompt
wre hon courts to evaluate such allegations with careful scrutiny
giving appropriate weight to the “common meaning” and “verifiabil-
ity” of allegedly defamatory statements. .

tant, because a statement appearing factual and verifi-
able in one context will clearly be taken as an expression
of opinion in another. Scott, 25 Ohio St. 3d at 250, 496
N.E.2d at 706. See Ollman, 750 F.2d at 978-79; Green-
belt Coop. Pub. Ass’n, Inc. v. Bressler, 398 U.S. 6, 13
(1970): Old Dominion Branch No. 496, Nat'l Ass'n of
Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974).
Considering the third factor—i.e., “the larger objective
and subjective context of the statement”—the Scoft
court noted that “{o]bjective cautionary terms, or ‘lan-
guage of apparency’ places a reader on notice that what
is being read is the opinion of the writer.” 25 Ohio St.
3d at 252, 496 N.E.2¢ at 707.

Here again, though, the Scott court made no sweeping
pronouncements and left no gaping doors. In the court's
view, such terms as “in my opinion” or “I think.”
though strongly suggestive of opinion, “are not disposi-
tive, particularly in view of the potential for abuse.” 25
Ohio St. 3d at 252, 496 N.E.2d at 707. Echoing the
Oliman case and Judge Friendly’s opinion in Cianci rv.
New Times Publishing Co., 639 F.2d 54, 64 (2d Cir.
1980), the court observed that no “bright-line rule of
labeling a piece of writing ‘opinion’ can be a dispositive
method of avoiding judicial scrutiny.” 25 Ohio St. 3d at
252, 496 N.E.2d at 707. The cautionary language of the
Scott opinion underscored the narrowness of its holding.

Though the labeling was “not dispositive” in the
court's view, Diadiun’s column was clearly identified as
commentary. The large caption contained, in bold letters,
the phrase “TD says,” and this advice was repeated in
the second headline of the column (“Diadiun says’.
More importantly, the obvious purpose of the column was
not to accuse Milkovich of perjury, but rather to express
the author's outrage that persons responsible for the edu-
cation of children would attempt to avoid responsibility for
their own conduct. Having personally witnessed the al-
tercation at the wrestling meet and having heard the
original testimony before the Ohio High School Athletic

Association, Diadiun believed that Milkovich and Scott
should have admitted their culpability, and thus that
their successful attempt to avoid responsibility at the
later court hearing was disingenuous and irresponsible.
in the Ohio Supreme Court's words:

The article goes on to reinforce this {Diadiun’s} con-
cern that those in positions of authority, at any level,
also occupy positions of responsibility requiring can-
dor should that authority be called into question. 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.

Scott, 25 Ohio St. 3d at 252, 496 N.E.2d at 707-08.

Indeed, the entire thrust of the column was not an ob-
jective reporting of facts but rather a subjective reac-
tion to the turn of events. That the reader would under-
stand its content in these terms was recognized by the
Ohio Supreme Court as follows:

The strongest statement maie in the article, “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” ‘emphasis added), further indicates that the
question of whether or not a lie was actually made
is ultimately a subjective determination. While Dia-
diun’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.

25 Ohio St. 3d at 253, 496 N.E.2d at 708 ‘emphasis by
the court)."*

The Scott court was also influenced by the fact that Diadiun’s
column appeared in the sports section, “a traditional haven for

Implicit in the court's reasoning was a recognition that
the central theme of Diadiun’s criticisms did not involve
a matter of objectively verifiable fact. The day before
the column appeared, Maple Heights team members and
their parents—supported by the testimony of Milkovich
and Scott—had succeeded in reversing the sanctions pre-

ne
i
85
ue
3
vite
if
ral

ciation as a result of the fight. Diadiun’s objection did
not concern the specific content of the testimony. but
rather the degree to which Milkovich and Scott had ad-
mitted responsibility or sought to avoid it, and the
broader ramifications of their conduct in light of their
positions at the high school. This was inherently a sub-
jective judgment. It was, in fact, a subject of ongoing
controversy in both the public forum and the media, a
controversy on which Diadiun—and the Mentor commu-
nity in general—had strong opinions.

Against this background, the Ohio Supreme Court rea-
sonably concluded that Diadiun’s readers would not ac-
cept specific statements in the column as objective fact.
but rather would evaluate them in the rhetorical context
in which they were made. 25 Ohio St. 3d at 252-54, 496
N.E.2d at 707-709.

V. THE DISTINCTION BETWEEN ACTIONABLE
FACT AND CONSTITUTIONALLY PROTECTED
OPINION SHOULD REFLECT THE CORE VALUES
OF THE FIRST AMENDMENT.

In light of the constitutional foundation on which the
fact opinion distinction rests, its objective should be to
determine whether the challenged statement “implicates
core values of the First Amendment.” Janklow, 788 F.2d
at 1304. First Amendment considerations are absent
from some of the recognized tests and only implicitly rec-
ornized in others. Indeed, some courts have cautioned

caioling, invective, and hyperbole.” 25 Ohio St. 3d at 253, 496 N_ FE 2d
at 708. See Jenklew, 788 F.2d at 190% (“social context . focuses
en the category of publication, its style of writing and intended
audience” ).

37

that no single test can incorporate all of the constitu-
tional considerations implicit in the fact opinion distinc-
tion, noting that “|t]he potential for erroneous condem-
nation of harmless or beneficial speech should make courts
reluctant to embrace unstructured, multi-factor ‘tests.’ ”
Stevens, 855 F.2d at 399. Still, each of the recognized
tests has at least limited usefulness in identifying con-
stitutionally protected opinion.

A. Verifiability.

One approach is the test of “verifiability.” Verifiabil-
ity attempts to separate fact from opinion on the basis
of whether the challenged statement is capable of being
proven true or false.

The verifiability test readily identifies those opinions
that spring solely from emotion or sentiment. Whether a
work of art is beautiful or appealing is a concept having
no single definition; it is meaningless to speak of such
statements as being true or false. See, e.g., Mr. Chow of
New York, 759 F.2d at 219 (judgments based on personal
tastes are not capable of being proven true or false).

When applied to a statement having both subjective
and objective components, however, verifiability pro-
motes artificial categorization and disregards contextual
factors that may firmly establish the “opinion” character
of the statement in the mind of the reader. A critical
commentary may speak about actions or events, though
the critique as a whole may reflect only the inference or
judgment of the commentator. Stevens, 855 F.2d at 398
(“Every statement of opinion contains or implies some
proposition of fact, just as every statement of fact has
or implies an evaluative component.”). A commentator’s
conclusion, if viewed in isolation, may seem to be provable
or disprovable on the basis of objective evidence. Taken
in context, however, the conclusion may be readily under-
stood to represent only the personal view of the com-
mentator with which the reader is free to agree or dis-
agree. To make such a statement out of context and eval-

uate it solely on the basis of verifiability would ignore
the subjective, opinionated aspect of its source and effect.
See Potomac Valve, 829 F.2d at 1289-90.

Recognizing the inadequacy of the verifiability test in
such instances, some courts have attempted to solve the
problem within the concept of verifiability itself.'’ Other
courts have been unwilling to tinker with the traditional
determinant of verifiability—i.e., whether the challenged
statement can be framed as an issue of fact for a jury.”
—and instead have confronted head-on the inherent in-

17 For example, some courts have drawn a distinction between
accusations of physical misconduct and statements concerning verac-
ity, motive, or state of mind, finding the latter to be nonverifiable.
See, e.g., Janklow, 788 F.2d at 1304 (“the singling out of impermis-
sible motive is a subtle and slippery enterprise, particularly when
the activities of public officials are involved”). See also Mr. Chow
of New York, 759 F.2d 219 (2d Cir. 1985). Comparing its own deci-
sions in Edwards v. National Audvbon Society, 556 F.2d 11% (2d
Cir.), cert. denied, 434 U.S. 1002 (1977), and Cianci, 639 F.2d 54
(2d Cir. 1980), the Second Circuit observed that in Cianci “we held
that direct accusations of criminal misconduct . . . are not protected
as opinion,” while in Edwards “we held that [the epithet ‘liar’ |
‘merely expressed the opinion that anyone who persisted in misusing
Audubon statistics after being forewarned could not be intellectually
honest.’ 759 F.2d at 225 (emphasis by the court).

18 Subtle refinements of the verifiability concept were suggested
by Judge Bork in his concurring opinion in Ollman, 750 F.2d at
1005-08. He acknowledged that the statement there at issue—
“( Professor] Ollman has no status within the profession”— was
capable of being framed as a jury issue. Yet the evidence that
would be offered to prove or disprove the statement would itself
reflect the subjective judgments of those who were called to testify,
such that “the jury would be left with contradictory opinions about
opinions.” 750 F.2d at 1008. Judge Bork’s conclusion that the
statement at issue was not truly verifiable has much to say about
the adequacy of verifiability as a criterion for identifying constitu-
tionally protected opinion: “[T|he opinion-fact division serves a
purpose by confining the category of actionable statements to those
which lend themselves to competent judicial resolution of the truth-
fulness of their content. Viewed from that juridical perspective, the
statement in question here is qualitatively more like an opinion than
a fact. It is simply not fit for jury determination.” 750 F.2d at 1006
(Bork, J., concurring).

adequacy of verifiability as a sole criterion for identifying
constitutionally protected opinion. In Potomac Valve, for
example, Judge Wisdom rejected the proposition that
“statements of intention or motive are inherently un-
verifiable” :

The question of verifiability is ultimately relevant
only insofar as it preserves the truth defense and
protects statements which the ordinary reader or lis-
tener would recognize as incapable of positive proof.
These purposes are not served by considering psycho-
logical and epistemological doubts that would ulti-
mately threaten the entire concept of defamation.

829 F.2d at 1289 (emphasis by the court).

Yet the statement at issue in Potomac Valve was
readily identifiable as opinion notwithstanding its facial
“verifiability.” 829 F.2d at 1289-90. In Judge Wisdom’s
view, verifiability is useful in identifying wholly subjec-
tive statements incapable of objective proof, but cannot
alone encompass the full breadth of expression protected
by the First Amendment:

Even when a statement is subject to verification, . . .
it may still be protected if it can best be understood
from its language and content to represent the per-
sonal view of the author or speaker who made it.
Thus, we reject the suggestion .. . that any “ques-
tion of fact” which can be decided by a jury can
be actionable as defamation. Such a test ignores the
underlying purposes of the fact ‘opinion distinction,
and would lead to results that could not be reconciled
with the developing case law in other circuits.

829 F.2d at 1288."" Under Potomac Valve, verifiability
finds its proper place in the fact, opinion dichotomy; it is

’” Judge Wisdom referred specifically to the Eighth Circuit's deci-
sion in Janklow, 728 F.2d 1300. Troubled by the recognition that
questions of motive or intent are frequently determined by a jury,
the Eighth Circuit cautioned that merely categorizing a statement as
involving an “issue of fact” inadequately responds to the First
Amendment interests on which the fact opinion distinction is con-

40

not the sole criterion for identifying constitutionally pro-
tected opinion, but rather “a minimum threshold issue.”

829 F.2d at 1288.

The present case illustrates the difficulty of distinguish-
ing fact from opinion on the basis of verifiability alone.
Milkovich cites the following statement from the News-
Herald column as the one most injurious to him:

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.

If the statement were to be viewed as simply a factual
assertion that Milkovich lied under oath, its truth or
falsity could be framed as an issue of fact for a jury.
Yet the issue, thus framed, would be narrower than the
one raised by sportswriter Diadiun in his commentary.
In its actual context, Diadiun’s statement was heavily
laden with subjective, emotional content (“[a]nyone who
attended the meet . . . knows in his heart’). Even this
does not encompass the central point Diadiun was at-
temptine to make, which concerned the moral lessons of
the situation for the students it would influence.

At worst. Diadiun’s words contained a factual com-
ponent deeply buried in the emotional framework of pure
opinion. To take the factual component out of context
and subject it to the test of truth or falsity would ignore
both the opinion character of the framework and the
subjective judgment that was its central theme. Such an
approach would give no consideration to whether the

stitutionally based: “There is a sense in which one’s intention or
motive in performing a certain act is properly categorized as ‘fact.’
But the term ‘fact’ need not have the same meaning in every
legal context. The meaning we give to it should depend on the
purposes of the law being applied. Here, that law is the First
Amendment, which in the most uncompromising terms (‘Concress
shall make no law . . .’) seeks to protect freedom of speech.” 788
F.2d at 1302.

41

column’s readers would accept Diadiun’s comments as an
objective reporting of known fact, or discount them for
the opinionated essay they rather obviously were.

More importantly, using verifiability as a sole criterion
would leave First Amendment interests entirely out of
the equation ; no consideration would be given to whether
Diadiun’s comments fell within the realm of legitimate
debate on what was unquestionably a matter of public

concern. As the Supreme Court of Alaska red i
Pearson v. Fairbanks Publishing Co.: —s

The basis for [the protection of opinion] i i
is in the public interest that there . tls Pag dng
dom of debate and discussion on public issues. One
should not be deterred from speaking out through the
fear that what he gives as his opinion will be con-
strued by a court as inferring, if not actually
amounting to, a misstatement of fact.

413 P.2d 711, 714 (Alaska 1966) (quoted by Judge Bork

aay concurring opinion in Ol/man, 750 F.2d at 1001
n.6).

B. The Second Restatement Approach.

The recognition that verifiability is of little usefulness
beyond the identification of purely subjective statements
has prompted the courts and commentators to examine
other bases that distinguish fact from opinion in the mind
of the reader. One answer was proposed in section 566
- Restatement (Second) of Torts, which provides

at:

A defamatory communication may consist of a state-
ment in the form of an opinion, but a statement of
this nature is actionable only if it implies the allega-
tion of undisclosed defamatory facts as the basis for
the opinion.

Restatement (Second) of Torts § 566 (1977).

The Second Restatement attempts to measure the likeli
ikeli-
hood that the reader would accept the statement in ques-

42

tion as a representation of objective fact. As the Ninth
Cireuit has observed in reference to section 566:

The rule derives from the statement’s effect on the
reader. If an expression of opinion follows from non-
defamatory facts that are either stated or assumed,
the reader is likely to take the opinion for what it is.
Indeed, the reader is free to form another, perhaps
contradictory opinion from the same facts. But when
the opinion derives from unstated or unassumed
facts, the reader can only presume that the publisher
of the statement is asserting the facts to support the
opinion as well. Thus, the effect is the same as if the

unstated facts were specified . . .
Lewis v. Time Inc., 710 F.2d 549, 555 (9th Cir. 1983).

The Second Restatement achieves a certain degree of
simplicity and workability. It answers the problem of
factual assertions preceded by “I think” or “I will;” mere
labelling would not ensure protection, for in many in-
stances the resulting “opinion” would strongly imply the
existence of undisclosed defamatory facts. At the other
end of the spectrum, the Second Restatement would af-
ford a commentator appropriate latitude to draw infer-
ences or conclusions from stated or generally known prem-
ises. Unless unstated (and unknown) facts are implied,
the conclusions themselves would be protected, though the
stated premises may be actionable if defama.ory. Re-
statement (Second) of Torts § 566, at Comment ¢ (“If
the defendant bases his expression of a derogatory opin-
ion . . . on his own statement of false and defamatory
facts, he is subject to liability for the factual statement
but not for the expression of opinion.” }.

Despite its facial simplicity, the Second Restatement is
subject to justifiable criticisms. Identifying inferences
and supporting premises entails a mechanical dissection
of a statement into its component parts. The result of
this analysis may only artificially reflect the substance of
the statement—an after-the-fact representation indirectly
correlated with the thought processes of the speaker or
writer. .

More importantly, the Second Restatement may under-
protect opinion in many instances. Focusing on whether
an expression of opinion implies the existence of un-
stated facts, the Second Restatement ignores other con-
textual factors, both intrinsic and extrinsic, that may
signal to the reader that the statement in question is
merely the personal view of the author. See Ollman, 750
F.2d at 985 (“disclosure of facts in the surrounding text

is not the only signal that hard facts cannot reasonably
be inferred from a statement”).

In the present case, as discussed above, the News-
Herald column fully satisfies the Second Restatement.
Diadiun’s view that Milkovich misrepresented the events
of the wrestling meet before the OHSAA was based on
reasons fully disclosed to the reader, most particularly
the observation that Milkovich’s “wild gestures” were
passed off as “shrugs.” Similarly supported were
Diadiun’s comments about the subsequent court hearing,
which were based almost entirely on the statement of
Dr. Meyer, the OHSAA commissioner, that “some of the
stories told to the judge sounded pretty darned unfami-
liar.” There is no implication that Diadiun’s views were
based upon additional factors unstated in the column.
ae Diadiun himself had not even attended the court

ring.

That the column would be taken as opinion by its read-
ers is most clearly evident, however, from factors other

_ than the disclosure of supporting facts. The labelling of

the column, its frequent use of words of apparency, its
judgmental tone and moral commentary—all of ‘these
would signal to the reader that Diadiun’s views were sub-
jective and emotional (and not necessarily right). The
reader would also be strongly influenced by the knowledge
that Diadiun’s views concerned a matter of ongoing con-
troversy in the public forum—a First Amendment con-
sideration only implicitly recognized under the Second
Restatement.

46

in evaluating whether the statement is fact or opinion.
The controversial context of a writing strongly influences
the reader’s perception of it, as Judze Bork observed in
his concurring opinion in Ollman: “When we read
charges and countercharges about a person in the midst
of . . . controversy we read them as hyperbolic, as part
of the combat, and not as factual allegations whose truth
we may assume.” 750 F.2d at 1002 ‘Bork, J., concur-

ring}.

Failing to consider this aspect of context would leave
the underlying values of the First Amendment out of the
equation. In Janklow, for example, the Fighth Cireuit
spoke of “the publie or political arena” as an essential
aspect of context, to be considered as a fifth factor in the
Ollman analysis:

It is true that the distinction between public and pri-
vate figures which bears so heavily in many libel
cases has no direct relevance here; no opinion is ac-
tionable, whether it concerns a private person or a
public figure. However, when determining initially
whether a statement is fact or opinion, it does a dis-

+ service to the First Amendment not to consider the
public or political arena in which the statement is
made and whether the statement implicates core
values of the First Amendment.

788 F.2d at 1303 (citations omitted).

The “public context” of a statement should be accorded
great weight in identifying constitu‘ionally protected
opinion, commensurate with the importance of such con-
siderations in other First Amendment contexts. See Ster-
ene, 855 F.2d at 999-400; Hotchner v. Castillo-Puche, 551
F.2d 900, 913 (2d Cir. 1977). As Justice O'Connor wrote
in Hepps, “where the seales are in. . . an uncertain bal-
ance, we believe that the constitution requires us to tip
them in favor of protecting true speech... |t]o ensure
that true speech on matters of public concern is not de-
terved.” 475 U.S. at 776.

47

In Scott, the intrinsic and extrinsic contexts of the
News Herald column were examined exhaustively by the
Ohio Supreme Court. Every contextual factor supported
the court’s conclusion that the column would be viewed
as opinion by the average reader. The caption of the
column (“Diadiun says”), its placement on the sports
page, the frequent use of words of apparency, the moral
judgment of its central theme—these points and others
convinced the court that “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.” Even the suggestion that Milkovich had lied at
nes court henry | was os in subjective, emotional

rms—a heart-felt conviction as jectiv
at Miheitanennyand:

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.

Scott, 25 Ohio St. 3d at 252, 496 N.E.2d at 707-08,

Though not discussed explicitly in Scott, the broader
context of the column demonstrates that its protection
as opinion was consistent with the “core values of the
First Amendment.” See Janklow, 788 F.2d at 1303. Mil-
kovieh, a nationally known coach, was the central figure
in a controversy that had raged for almost a year. He
had been roundly criticized for his conduct during the
wrestling meet, and had indeed been “called on the car-
pet” by the OHSAA. Its written censure of Milkovich

left no doubt as to his personal responsibility for the
incident:

From the reports studied by the State Board they
were of the unanimous opinion that you were derelict
in your responsibility to insure that members of your
wrestling team conducted themselves the way high

school athletes are expected to. There was a distinct
feeling that if you had taken proper precautions your
team would not have become involved with the Men-
tor High wrestlers. Coaches have a great responsi-
bility in crowd control and it all begins with, first
of all, controlling yourself and members of your team
and if this is done in a proper manner crowd control
then becomes a very minor problem.

J.A. 130 ‘emphasis added).

Against this background—all widely reported—the re-
versal of the OHSAA's orders by the common pleas court
came as a shock to sportswriter Diadiun. Writing for the
Mentor community whose wrestlers had been attacked at
Maple Heights, Diadiun reacted strongly and emotionally
to what he perceived as a successful effort on the part of
Milkevich and Scott to avoid the consequences of the
OHSAA's findings. In Diadiun's view, Milkovich and
S.ott had acted irrespofsibly as educators, setting a poor
example for the students.

That his views were expressed in strong terms was a
natural consequence of heated debate—an understandable
manifestation of his own emotions. As Chief Justice
Rehnquist wrote in Hustler, “criticism, inevitably, will
not always be reasoned or moderate; public figures as well
as public officiais will be subject to ‘vehement, caustic,
and sometimes unpleasantly sharp attacks.” 485 U.S. at
46 ‘quoting New York Times, 376 U.S. at 270). Such
latitude must be tolerated in a free society, lest “the free
flow of ideas and opinions on matters of public interest”—
the cornerstone of the fact opinion distinction—be re-
duced to bland generalities. Hustler, 485 U.S. at 50,

CONCLUSION

For the foregoing reasons, Respondents respectfu
sequent Chat Gis Come domino Ge aut of catlant o
the ground that it was improvidently granted or, in the
alternative, affirm the decisions of the courts below.

Respectfully submitted,
Of Counsel: RIcHarD D. Panza *
P. CAMERON DeVore WILLIAM G. WIcKENs
MARSHALL J. NELSON Davin L. Herver
DONALD 8S. KUNZE RIcHARD A. NAPGELE
Davis WRIGHT TREMAINE THomas A. Downte
2600 Century Square Wickens, Herver & Panza
1501 Fourth Avenue A Legal Professional
Seattle, Washington 98101-1688 Association
(206) 622-3150 1144 West Erie Avenue
P.O. Box 840
Lorain, Ohio 44052-0840
(216) 246-5268
* Counsel of Record Counsel for Respondents

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0686%3A07. Public record. Not legal advice.