Amicus Curiae Brief — Milkovich v. Lorain Journal Co.

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ARGUMENT. ce tna C ——a

IN THE

Supreme Court of the United Stites ° *”

JOSEPH F. SAPNIOL, JR.

OCTOBER TERM, 1989 CLERK

MICHAEL MILKOVICH, SR.,

Petitioner,

—against —

THE LORAIN JOURNAL Co., THE NEWS HERALD and

THEODORE DIADIUN, Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO

BRIEF AMICI CURIAE OF DOW JONES & COMPANY, INC., THE

AMERICAN SOCIETY OF NEWSPAPER EDITORS, ASSOCIATED

PRESS, CABLE NEWS NETWORK, INC., CAPITAL CITIES/ABC,

INC., CBS INC., GANNETT CO., INC., THE HEARST CORPORA-

TION, MAGAZINE PUBLISHERS OF AMERICA, INC., McCLATCHY

NEWSPAPERS, INC., THE MIAMI HERALD PUBLISHING COM-

PANY, NATIONAL BROADCASTING COMPANY, INC., NEWSDAY,

INC., NEWSWEEK, INC., THE NEW YORK TIMES COMPANY, THE

REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, REU-

TERS INFORMATION SERVICES INC., SEATTLE TIMES COMPANY,

SCRIPPS HOWARD, INC., THE SOCIETY OF PROFESSIONAL JOUR-

NALISTS, TRIBUNE COMPANY, UNITED PRESS INTERNATIONAL,

INC., THE WASHINGTON POST AND WESTINGHOUSE BROAD-

CASTING COMPANY, INC., IN SUPPORT OF RESPONDENTS

Of Counsel: ROBERT D. SACK

LESTER E. GREENMAN GIBSON, DUNN & CRUTCHER

S. WHITNEY RAHMAN 200 Park Avenue

GIBSON, DUNN & CRUTCHER New York, New York 10166

200 Park Avenue (212) 351-4000

New York, New York 10166 Counsel of Record for

RICHARD J. TOFEL Amici Curiae

Dow Jones & Company, Inc.

Legal Department

200 Liberty Street, 11th Floor

New York, New York 10281

(Additional Counsel Listed on Inside Cover)

— Fae tae

Of Counsel:

RICHARD M. SCHMIDT, JR.

COHN AND MARKS

1333 New Hampshire Avenue, N.W.,

Suite 600

Washington, D.C. 20036

Attorneys for the American

Society of Newspaper Editors

RICHARD N. WINFIELD

ROGERS & WELLS

200 Park Avenue

New York, New York 10166

Attorneys for the Associated Press

STEVEN W. KORN

BENITA BAIRD

CELESTE PHILLIPS

Cable News Network, Inc.

One CNN Center

Box 105366

Atlanta, Georgia 30348

DEVEREUX CHATILLON

Capital Cities/ ABC, Inc.

47 West 66th Street

New York, New York 10023

DOUGLAS P. JacoBs

Associate General Counsel

CBS Inc.

51 West S2nd Street

New York, New York 10019

BARBARA L. WARTELLE

Senior Legal Counsel

Gannett Co., Inc.

1100 Wilson Boulevard

Arlington, Virginia 22234

HARVEY L. LIPTON

ROBERT J. HAWLEY

The Hearst Corporation

959 Eighth Avenue

New York, New York 10019

JOSEPH H. COOPER

The New Yorker

25 West 43rd Street

18th Floor

New York, New York 10036

LAURA R. HANDMAN

LANKENAU & BICKFORD

1740 Broadway

New York, New York 10019

SLADe R. METCALF

SQUADRON, ELLENOFF, PIESENT

& LEHRER

$51 Fifth Avenue

New York, New York 10176

Attorneys for Magazine Publishers

of America

RICHARD J. OVELMEN

BAKER & MCKENZIE

1600 Barnett Tower

701 Brickell Avenue

Miami, Florida 33131

Attorneys for the Miami Herald

Publishing Company

Desra O. FOUST

McClatchy Newspapers, Inc.

2100 Q Street

Sacramento, California 95816

SANDRA S. BARON

GAYLE C. SPROUL

National Broadcasting Company, Inc.

30 Rockefeller Plaza

New York, New York 10112

ALBERTO IBARGUEN

NANCY E. RICHMAN

Newsday, Inc.

235 Pinelawn Road

Melville, New York 11747

1735 Eye Street, N.W., Suite 504

Washington, D.C. 20006

CONSTANCE A. HEYMANN

NATALIE T. LEVY

Reuters Information Services Inc.

1700 Broadway

New York, New York 10019

Washington, D.C. 20071

New York, New York 10106

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...........cccesecccess

i ti SE cccsetcccscecsvcesvceessecce

POINT ONE—CONSTITUTIONAL DOCTRINE

HAS REPLACED THE COMMON LAW FAIR

COMMENT PRIVILEGE IN PROTECTING

EXPRESSIONS OF OPINION FROM DEFAMA-

Be OED ba cevecedcccccccescccecccos:

POINT TWO—IN DRAWING THE _ LINE

BETWEEN FACT AND OPINION, THE LODE-

STAR MUST BE THE PROTECTION OF THE

FREE FLOW OF IDEAS AND OPINIONS.......

POINT THREE—A STATEMENT OF OPINION

DISAGREEING WITH SWORN TESTIMONY

DOES NOT FORFEIT CONSTITUTIONAL PRO-

POINT FOUR—THE CHALLENGED STATE-

MENTS ARE CONSTITUTIONALLY PRO-

TECTED EXPRESSIONS OF OPINION..........

SET saceseconvetcecevevececcceuceceeces

TABLE OF AUTHORITIES

Cases: PAGE

A.S. Abell Co. v. Kirby, 227 Md. 267, 176 A.2d 340

GE ne vccccccccencqeasedduséceosncéecenseesess 6, 7

Action Repair, Inc. v. American Broadcasting Cos.,

776 F.2d 143 (7th Cir. 1985) ......... cc cece eee eee 12

Addington v. Texas, 441 U.S. 418 (1979)............ 23

Aldoupolis v. Globe Newspaper Co., 398 Mass. 731,

S00 N.E.2d 794 (1986) ....... ccc ccc c cece eee eeees 24

Amcor Investment Corp. v. Cox Arizona Publications,

Inc., 690 S.W.2d 775 (Mo. 1985) ...........00005- 12

Ault v. Hustler Magazine, Inc., 860 F.2d 877 (9th Cir.

1988), cert. denied, 109 S. Ct. 1532 (1989) ........ 14

Baker v. Los Angeles Herald Examiner, 42 Cal. 3d

254, 228 Cal. Rptr. 206, 721 P.2d 87 (1986), cert.

GG, Ge Gee Te Gc cc cccéccccccecececes 14

Bennett v. Transamerica Press, 298 F. Supp. 1013

Gees. GD Mand che cdcbdeceuoncuceseceusesees< 24

Bland v. Verser, 299 Ark. 490, 774 S.W.2d 124 (1989) 15

Bose Corp. v. Consumers Union of United States, Inc.,

GD Ue GED Gc ccccccccccocescceceed 4, 15, 16, 17

Bose Corp. v. Consumers Union of United States, Inc.,

692 F.2d 189 (ist Cir. 1982), aff'd, 466 U.S. 485

GRRE oc ccccndscccecececcesocecensceesnesesesées 15

Brewer v. Memphis Publishing Co., 626 F.2d 1238 (Sth

Cir. 1980), cert. denied, 452 U.S. 962 (1981) ...... 12, 13

Brooks v. Paige, 773 P.2d 1098 (Colo. App. 1989). ..26, 27

Brown v. Kelly Broadcasting Co., 48 Cal. 3d 711, 771

P.2d 406, 257 Cal. Rptr. 708 (1989) ..............

ili

PAGE

Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979). 14

Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), cert.

denied, 429 U.S. 1062 (1977) ......... ccc eee eeeees 21

Camer v. Seattle Post-Intelligencer, 45 Wash. App. 29,

723 P.2d 1195 (1986), cert. denied, 482 U.S. 916

| PEPE PPrrerrrrTiTrr rrr ir ririrriirrir Tee 12

Chaves v. Johnson, 230 Va. 112, 335 S.E.2d 97 (1985) 15

Cianci v. New Times Publishing Co., 639 F.2d 54 (2d

GE, FR ob cccedecccencecosccccccdveccceess 13, 23, 24

Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908) 10

Curtis Publishing Co. v. Birdsong, 360 F.2d 344 (Sth

Gs MD cnccccesececcadcsosbeecncnceseeceséuss 10

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).. 9, 17

Edmonds v. Delta Democrat Publishing Co., 230 Miss.

ee, Ge Be Oe I co ndcctécecccccooesesee 6

Edwards v. National Audubon Soc’y, 556 F.2d 113 (2d

Cir.), cert. denied, 434 U.S. 1002 (1977) .......... 24

Eikhoff v. Gilbert, 124 Mich. 353, 83 N.W. 110 (1900) 7

El Paso Times v. Kerr, 706 S.W.2d 797 (Tex. Ct. App.

1986), cert. denied, 480 U.S. 932 (1987)........... 15

Falls v. Sporting News Publishing Co., 834 F.2d 611

GE Gas FRG ac ccccccccccccecccccececscecesoeces 14

Ferguson v. Watkins, 448 So. 2d 271 (Miss. 1984) ... 1]

Finck v. City of Tea, 443 N.W.2d 632 (S.D. 1989)... 15

Friedman v. Boston Broadcasters, Inc., 402 Mass. 376,

S23 .B.3G GSD CIDER) . occ ccccccccccccccccccccess 14

Frigon v. Morrison-Maierle, Inc., 760 P.2d 57 (Mont.

SE, cuposseeedereuccoueesuescebcueasdensedeses 14

PAGE

From v. Tallahassee Democrat, Inc., 400 So. 2d 52

(Fla. Dist. Ct. App. 1981), petition denied, 412 So.

Ge Gee Ee boddecés dacdsbasdadbboosescees< 12

Fudge v. Penthouse Int’l, Ltd., 840 F.2d 1012 (lst

Cir.), cert. denied, 109 S. Ct. 65 (1988)........... 12, 13

Garrison v. Louisiana, 379 U.S. 64 (1964)........... 4

Gernander v. Winona State University, 428 N.W.2d

oe Gee Gs SS Be cdvccveceseecccscscecs 14

Gertz v. Robert Welch, Inc., 418 U.S. 323

Se b600 6h ne nceateucdededecaeesel 2, 4, 5, 10, 11, 12,

13, 14, 15, 16, 17,

18, 19, 20, passim

Goodrich v. Waterbury Republican-American, Inc.,

188 Conn. 107, 448 A.2d 1317 (1982)............. 14

Greenbelt Cooperative Publishing Ass’n v. Bresler, 398

ee © Gee ohn ccacccesstenccuceucasctésacesedés 10

Haas v. Painter, 62 Or. App. 719, 662 P.2d 768,

review denied, 295 Or. 297, 668 P.2d 381 (1983)... 15

Harte-Hanks Communications, Inc. v. Connaughton,

ff EE re ee ne 18

Havalunch, Inc. v. Mazza, 294 §S.E.2d 70 (W. Va.

sé cnkdéecddadbbeskanedesebenssedeéechicetes 15

Healey v. New England Newspapers, Inc., 520 A.2d

147 (R.1. 1987), cert. denied, 110 S. Ct. 63 (1989) . 15

Henderson v. Times Mirror Co., 669 F. Supp. 356 (D.

Colo. 1987), aff’d, 876 F.2d 108 (10th Cir.

Henry v. Halliburton, 690 S.W.2d 775 (Mo. 1985)... 14

Hodgins v. Times Herald Co., 169 Mich. App. 245,

Gp See Se GD bo cbse bccbesseccesscvcocss 14

PAGE

Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95, 172

Des Be Gee oc cccccccceccccceccccccccccecocces 27

Hoffman Co. v. E.I. Du Pont de Nemours and Co.,

202 Cal. App. 3d 390, 248 Cal. Rptr. 484 (1988) .. 11

Hoffman v. Washington Post Co., 433 F. Supp. 600

(D.D.C. 1977), aff’d, 578 F.2d 442 (D.C. Cir. 1978) 12

Hotchner v. Castillo-Puche, 551 F.2d 910 (2d Cir.

1976), cert. denied, 434 U.S. 834 (1977)........... 21

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46

GEE Scccceccceccces: ceccecesocecoocescecess 4, 9, 16

Immuno AG v. Moor-Jankowski, 74 N.Y. 548, 549

N.Y.S.2d 938, 549 N.E.2d 129 (1989)...... 10, 12, 14, 15

Information Control Corp. v. Genesis One Computer

Corp., 611 F.2d 781 (9th Cir. 1980) .............. 20

Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d

1243 (Ind. Ct. App. 1984) ........ ccc cece cee ees 14

Janklow v. Newsweek, Inc., 788 F.2d 1300 (8th Cir.

SD OE GED 005 n00500606es6eeesecoeesooseses 12

Jenkins v. KYW, A Division of Group W, Wes-

tinghouse Broadcasting & Cable, Inc., 829 F.2d 403

dL ETOP PPTTTTT TTT ITT TTT TT TTT 13

Jones v. Palmer Communications, Inc., 440 N.W.2d

BBS GOW FRE s cc cccccccccccccccccccccccccccces 15

Julian v. American Business Consultants, Inc., 2

N.Y.2d 1, 155 N.Y.S.2d 1, 137 N.E.2d 1 (1956)... 6

Kapiloff v. Dunn, 27 Md. App. 514, 343 A.2d 251 (Ct.

Spec. App. 1975), cert. denied, 426 U.S. 907 (1976) 14

Keller v. Miami Herald Publishing Co., 778 F.2d 711

(hithe Cie. 96S) oc cccccccccccccccccsccseccces 10, 13, 14

PAGE

Koch v. Goldway, 817 F.2d 507 (9th Cir.

Fe Peccenccesseveovesseoseséberseebessosocoes 11, 12, 13

Kotlikoff v. Community News, 89 N.J. 62, 444 A.2d

Fee Ge cdbsccndssecscesecscocccsscdedecovcs 11, 14

Lauderback v. American Broadcasting Cos., 741 F.2d

193 (8th Cir.), cert. denied, 464 U.S. 1190 (1985).. 24

Letter Carriers v. Austin, 418 U.S. 264 (1974)....... 10

Lindsey v. Board of Regents of the University System

of Georgia, 607 F.2d 672 (Sth Cir. 1979).......... 13, 14

MacConnell v. Mitten, 131 Ariz. 22, 638 P.2d 689

Pe evektievcdebacdscdsndsdsnddabbibedadiésiecs 14

Maidman v. Jewish Publications, Inc., 54 Cal. 2d 643,

355 P.2d 265, 7 Cal. Rptr. 617 (1960) ............ 7

Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462

> Bee ecvbscctcecdscddebsbeddiisdededs adésoecen< 14

Marchiondo v. New Mexico State Tribune Co., 98

N.M. 282, 648 P.2d 321 (Ct. App. 1981).......... 11

Mashburn v. Collin, 355 So. 2d 879 (La. 1977)...... 12, 14

Meridian Star, Inc. v. Williams, 549 So. 2d 1332 (Miss.

i tdes ieadedssonncdteabedibbendaddbeubieses 14

Miskovsky v. Tulsa Tribune Co., 678 P.2d 242 (Okla.

1983), cert. denied, 465 U.S. 1006 (1984).......... 15

Mittelman v. Witous, 1989 lil. Lexis 172, 1989 Westlaw

DE Gy EE caectesecnsondeoesestoeeooroces 11, 14

Moffatt v. Brown, 751 P.2d 939 (Alaska 1988) ...... 14

Mr. Chow of New York v. Ste. Jour Azur S.A., 759

eee ee Ge > Edbccccsecedetecosceccece: 13, 19

PAGE

Myers v. Plan Takoma, Inc., 472 A.2d 44 (D.C. 1983) 14

Nanavati v. Burdette Tomlin Memorial Hospital, 857

F.2d 711 (3d Cir. 1988), cert. denied, 109 S. Ct. 1527

EPPO POPTTTTT TTT TTITTTTTT TTT TTT Le 13

Nash v. Keene Publishing Co., 127 N.H. 214, 498 A.2d

BED GFE co cccdcdecocescccscosocccccoccccccecoes 14

Nevada Independent Broadcasting Corp. v. Allen, 99

Nev. 404, 664 P.2d 337 (1983) ........ 0c ee eceeee 11, 14

New York Times Co. v. Sullivan, 376 U.S. 254

CR oc occccccece cccccccoccoscccccoess 2, 4, 6, 8, 9, 10,

19, 23, 26

Oliman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en

banc), cert. denied, 471 U.S. 1127

Gs coseeeeoessccedoes 3, 6, 10, 12, 14, 19, 20, 21, 26

Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir. 1978),

cert. denied, 440 U.S. 960 (1979) ...... 6.6 ccc ceues 12, 13

Palm Beach Newspapers, Inc. v. Early, 334 So. 2d 50

(Fla. Dist. Ct. App. 1976), petition denied, 354 So.

2d 351 (Fla. 1977), cert. denied, 439 U.S. 910 (1978) =14

Parks v. Steinbrenner, 131 A.D.2d 60, 520 N.Y.S.2d

BIB CITED cc ccccccceccccccccccccccccccceceoccoes 27

Pearce v. E.F. Hutton Group, Inc., 664 F. Supp. 1490

GB. TGR cccccccccccccccccccccccccccccceses 11

Pearson v. Fairbanks Publishing Co., 413 P.2d 711

(Abadke 1966) 2. occ cccccccccccccccccccccccccecess 6

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767

GED coccccsoccccccccccccceesecces 3, 4, 16, 17, 22, 23

Potomac Valve & Fitting, Inc. v. Crawford Fitting

Co., 829 F.2d 1280 (4th Cir. 1987)......... tel Ea

20, 21, 22, 26

PAGE

Renwick v. News & Observer Pub., 63 N.C. App. 200,

304 S.E.2d 593 (1983), rev’d on other grounds, 310

N.C. 312, 312 S.E.2d 405, cert. denied, 469 U.S. 858

GO vccccccccccecesecsncecessescecadeoocesocces 15

“ey «olica v. Oswald, | Dall. 319 (Pa. 1788)........ 9

Riley v. Moyed, $29 A.2d 248 (Del. 1987)........... 14

Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d

369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert.

Go, Ge Ws Ee enc cdccnsscoceceesesscex 24

Rinsley v. Brandt, 700 F.2d 1304 (10th Cir. 1983).... 14

Roth v. United States, 354 U.S. 476 (1957).......... 9

Ryan v. Herald Ass’n, Inc., 566 A.2d 1316 (Vt.

Seessbebbsnnccesecdésustibnedibledanteckeccces 11, 15

S&W Seafoods Co. v. Jacor Broadcasting, 17 Media L.

Rep. (BNA) 1105 (Ga. Ct. App. 1989)............ 14

Scott v. News-Herald, 25 Ohio St. 3d 243, 496 N.E.2d

Geer Ge ectcnnckcansocdsadsssdBbbbessencctoves 15

Secrist v. Harkin, 874 F.2d 1244 (8th Cir.), cert.

CBee ee > SD whbcccedsébdésotecces 14

Smith v. Levitt, 227 F.2d 855 (9th Cir. 1955)........ 24

Southern Air Transport v. American Broadcasting

Cos., 877 F.2d 1010 (D.C. Cir. 1989)............. 24

Stepien v. Franklin, 39 Ohio App. 3d 47, 528 N.E.2d

Se GE ndenudscasadbudsocscesssessseeeesedse 24, 27

Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988)..... 13, 19

Stones River Motors, Inc. v. Mid-South Publishing

Co., 651 S.W.2d 713 (Tenn. Ct. App. 1983)....... 15

PAGE

Sweeney v. Schenectady Union Pub. Co., 122 F.2d 288

(2d Cir. 1941), aff'd, 316 U.S. 642 (1942)......... .

Triggs v. Sun Printing & Pub. Ass’n, 179 N.Y. 144, 71

DE, FED Gc ceccccecccccccceccccccceccececes 7

True v. Ladner, 513 A.2d 257 (Me. 1986)........... 14

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

ED ccccceccesencccescocenseccsccccccescecoces 14

Walker v. Associated Press, 388 U.S. 130 (1967)..... s

Walker v. Pulitzer Publishing Co., 394 F.2d 800 (8th

Ge, BD dccccccccdcccscceocececococesceeccsoss &

Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157

GIFTED cc ccccdecccetcesscoccccceccoscececcevesose 12

Woods v. Evansville Press, 791 F.2d 480 (7th Cir.

BEE. ccccccsdcccoccesecccccesoccosecocesececcss 14

Yancey v. Hamilton, 17 Media L. Rep. (BNA) 1012

Gi. BGEBD . cccccccccccccccccccccccecccsccccccees 14

Yerkie v. Post-Newsweek Stations, 470 F. Supp. 91 (D.

OE, Bee ccccccccccecescececcecescesececeeseces 11

Other:

36 C.J. Libel and Slander (1924) .... 2.26.66 eeeene 5

L. Eldredge, The Law of Defamation (1978)......... 5, 25

Franklin & Bussel, The Plaintiff’s Burden in Defama-

tion: Awareness and Falsity, 25 Wm. & Mary L.

Rev. GBS CIGBG...ccccccccccccccccccccccces 9, 18, 21, 23

Hill, Defamation and Privacy Under the First Amend-

ment, 76 Colum. L. Rev. 1205 (1976)...........++- 5, 6

Keeton, Defamation and Freedom of the Press, 54 Tex.

L. Rev. 1221 (IDI) 2. ccccccccccccccccccccccccees 6

PAGE

W. Lippman, Public Opinion (MacMillan paperback

OE Tee weecccccckcnccssdetobsesbousscoscecotes 18

Note, 62 Harv. L. Rev. 1207 (1949) ..............4.. 5

Note, Fact and Opinion After Gertz v. Robert Weich,

Inc.: The Evolution of a Privilege, 34 Rutgers L.

Pe, GS Gee Cv cesececcctcccccesesecescscoseese 8, 11

Petition for Writ of Certiorari, New England Newspa-

pers, Inc. v. Healey, No. 88-1939............6645. 22

W. Prosser, Handbook of the Law of Torts (2d ed.

Sn co sceccecccecesesoesoocecoeoceceoosoesosees 5

R. Sack, Libel, Slander, and Related Problems (1980) 19

Restatement (Second) of Torts, § 566 (1977) ...... 2, 11, 22

Restatement of Torts, § 606(1) (1938) ............... 5

Titus, Statement of Fact Versus Statement of

Opinion—A Spurious Dispute in Fair Comment, 15

We Be ER, Ee Ge cccccccsesecceseccesse 5

- = en

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-645

MICHAEL MILKOVICH, SR.,

Petitioner,

—against—

THE LORAIN JOURNAL CO., THE NEWS HERALD and

THEODORE DIADIUN,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO

BRIEF AMICI CURIAE OF

DOW JONES & COMPANY, INC., ET AL.,

IN SUPPORT OF RESPONDENTS

This brief is respectfully submitted, with the consent of the

parties, pursuant to Rule 37 of the Rules of this Court, urg-

ing affirmance of the decision below of the Supreme Court

of Ohio on the grounds that the matter alleged herein to be

libelous constitutes opinion and that the First and Fourteenth

Amendments to the Constitution of the United States there-

fore bar Petitioner's action.

INTEREST OF AMICI

Amici include writers, editors and publishers of newspa-

pers, magazines and newswires, and owners of radio and tele-

vision stations and networks, involved in communicating

news, information and opinion to the American public, and

organizations of persons or entities involved in such com-

munication. Each of the amici is more fully described in the

Appendix annexed hereto. From time to time, amici or their

members are targets of libel actions in which the question of

legal protection for expression of opinion is an issue. The

question presented in this case is therefore a matter of contin-

uing and critical concern to amici. They and their constitu-

ents will be directly affected by the Court's resolution of the

question now before it.

SUMMARY OF ARGUMENT

At common law, opinion was protected from defamation

judgments under the doctrine of fair comment. Designed to

preserve freedom of debate, fair comment became so entan-

gled in caveats and qualifications differing from jurisdiction

to jurisdiction that it did not adequately serve that goal. As

subject to the laws of many jurisdictions, there arose serious

danger, similar to that confronted in New York Times Co. v.

Sullivan, 376 U.S. 254 (1964), of unpopular opinion being

punished by unsympathetic local juries employing vague legal

standards. Against this backdrop, this Court observed in

Gertz v. Robert Weich, Inc., 418 U.S. 323, 339 (1974), that

non-actionable, (ii) emphatically repeating the Gertz state-

ment in defamation-related cases, (iii) implying that the cross-

ing of ‘‘the line between fact and opinion’’ by a

communication has constitutional ramifications, and (iv)

holding that, at least im cases treating media publications

about matters of public concern, the plaintiff has the burden

of proving falsity, so that an opinion in such a case, which is

incapable of being proved false, is necessarily non-actionable.

ing fact from opinion. See Potomac Valve & Fitting, Inc. v.

Crawford Fitting Co., 829 F.2d 1280 (4th Cir. 1987). Finally,

as suggested by the logic of Philadelphia Newspapers, Inc. v.

Hepps, 475 U.S. 767 (1986), because of the importance of

assuring free debate, in cases where the balance is close,

questionable statements should be treated as protected opin-

jon rather than actionable assertions of fact. (Point Two.)

An opinion should not forfeit constitutional protection

solely because it implies an accusation of criminal activity.

This is particularly true with respect to statements contradict-

ing sworn testimony. Such expression is often simply a state-

general test of whether it conveys information

about the outside world or the author's attitude toward such

information. It is within the First Amendment protections for

doctrine of fair comment. The Court's statement in Gertz v.

Robert Weich, Inc., 418 U.S. 323 (1974), that “‘fujnder the

First Amendment there is no such thing as a false idea,” id.

at 339, however, has given rise to law that has replaced the

fair comment privilege. Opinion is now protected directly by

the First and Fourteenth Amendments to the United States

Constitution. All the federal circuits and courts in more than

two-thirds of the states adhere to this position. It is rooted in

the principles enunciated in New York Times Co. v. Sullivan,

376 U.S. 254 (1964), and receives support from the Court’s

opinions in Bose v. Consumers Union of United States, Inc.,

466 U.S. 485 (1984), Philadelphia Newspapers, Inc. v.

Hepps, 475 U.S. 767 (1986), and Hustler Magazine, Inc. v.

Falwell, 485 U.S. 46 (1988), as well as Gertz.

Under the common law, to recover for defamation a plain-

tiff was ordinarily required to prove only that a defamatory

statement had been published about him. See L. Eldredge,

The Law of Defamation §5 at 15-16 (1978). In order to

escape liability, the defendant had to establish either that the

statement was true (‘‘justification’’) or that it fell within the

protection of one of several specific privileges, of which ‘‘fair

comment’’ was the most prominent.

A defendant’s fair comment plea required that he first

prove that his statement was indeed comment or opinion,’

precisely the issue that, in the constitutional context, troubled

and divided the court below. See, e.g., W. Prosser, Hand-

book of the Law of Torts 622 (2d ed. 1955); Titus, Statement

of Fact Versus Statement of Opinion—A Spurious Dispute in

Fair Comment, 15 Vand. L. Rev. 1203, 1204 (1962) (‘‘the

availability of the defense of fair comment oftentimes turns

upon whether or not a particular statement will be placed

into one cubbyhole called ‘fact’ or in another called

‘opinion’ *’); Note, 62 Harv. L. Rev. 1207, 1212 (1949) (‘‘the

distinction, more often announced than defined, between

comments and statements of fact is often crucial to the out-

come of fair comment litigation’’). A defendant relying on

the common law privilege was also required to establish that

his communication was about a matter of public concern;

that it was based upon a true or privileged statement of fact

or on facts otherwise known or available to the public; that it

represented his actual opinion; and that it was not made

solely for the purpose of causing harm to the target of the

opinion. Restatement of Torts, § 606(1) (1938).

Additionally, from court to court and state to state, the

privilege was hedged about with caveats and qualifications.

Courts variously required, for example, that the communica-

tion at issue ‘‘not be ‘unreasonably violent or vehement’ or

1 **The terms comment and opinion are used interchangeably in the

cases. . ."” Hill, Defamation and Privacy Under the First Amendment, 76

Colum. L. Rev. 1205, 1227 (1976). Cf. Gertz v. Robert Weich, Inc., 418 1).S.

323, 339-40 (1974) apparently treating the words as synonyms; 36 C.J. Libel

and Slander § 285 (1924).

‘excessively vituperative’; that it . . . ‘be a reasonable infer-

ence from facts truly stated’; that it . . . be presented in a

‘proper manner’ and be ‘based upon reasonable or probable

cause’; and especially that it. . . ‘be fair.’ ’’ Hill, Defama-

tion and Privacy under the First Amendment, 76 Colum. L.

Rev. 1205, 1229-30 (1976) (footnotes omitted). Typically,

“courts [were] content with general statements that the fair-

ness or reasonableness of the comment [was] for the jury.’’

Id. at 1233 (footnote omitted).

The purpose served by the common law protection for

comment was essentially the same as that which later

impelled the Court to establish constitutional limitations on

defamation judgments: to insure that ‘‘debate on public

issues [be] uninhibited, robust and wide-open. .. .”’ New

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).? While

the common law tradition was, as members of this Court

have recognized, ‘‘rich and complex,’’ see, e.g., Ollman v.

Evans, 471 U.S. 1127, 1129 (1985) (Rehnquist, J., dissenting

from denial of certiorari, quoting Hill, supra, at 1239), its

very richness and complexity rendered the fair comment priv-

ilege inadequate to fulfill its purpose of protecting free

expression.

Thus, under the common law privilege:

¢ A publisher suffered a substantial libel judgment

for publishing an editorial referring to the plaintiff—

who had accused the city police commissioner of

incompetence—as ‘‘infamous’’ and harboring ‘‘a

motive.’’ The grounds: that the apparently ample facts

2 See, e.g., Pearson v. Fairbanks Publishing Co., 413 P.2d 711, 714

(Alaska 1966) (‘‘freedom of discussion and debate on public issues’’);

Edmonds v. Delta Democrat Publishing Co., 230 Miss. 583, 591, 93 So. 2d

171, 173 (1957) (that “‘matters of a public nature may be freely discussed’’);

Julian v. American Business Consultants, Inc., 2 N.Y.2d 1, 7, 185 N.Y.S.2d

1, 7, 137 N.E.2d 1, $ (1956) (“‘{iJmn furtherance of . . . the right to write

freely’’). See also Keeton, Defamation and Freedom of the Press, 54 Tex. L.

Rev. 1221, 1222-23 (1976).

supporting the characterization, none of which the jury

was permitted to learn, were not set forth in the edito-

rial. A.S. Abell Co. v. Kirby, 227 Md. 267, 271, 176

A.2d 340, 341, 342 (1961).

° A “good government’’ group’s recommendation

against a candidate for public office ‘‘because in the last

legislature he championed measures opposed to the

moral interests of the community’’ was held to be

unprotected because the facts—that the plaintiff had

voted for anti-temperence legislation—were not stated.

The case was remanded for trial as to the ‘‘truth’’ of the

opinion. Eikhoff v. Gilbert, 124 Mich. 353, 354, 83

N.W. 110, 111, 113 (1900).

a widely known English professor—‘*We cannot boast

of having discovered Triggs, for he was born great, dis-

covered himself early and has a just appreciation of the

value of this discovery’’—was held not, as a matter of

law, to be fair comment. “‘[T]he question whether the

criticism was fair and just or willfully assailed the repu-

tation of the plaintiff, would be for the jury.”’ 7riggs v.

Sun Printing & Pub. Ass’n, 179 N.Y. 144, 147, 154, 71

N.E. 739, 740, 742 (1904).

¢ An editorial im a Jewish newspaper, mocking the

conduct of a prominent Jewish lawyer affiliated with a

competing newspaper for arguing against adjourning a

case for the Jewish New Year, saying his behavior made

‘‘all of us Jews look ridiculous,’’ was held actionable

subject to a jury determination as to whether an alleged

**long-standing feud’’ between the newspapers was ‘‘suf-

ficient to rebut the existence of the defense of fair com-

ment.’ Maidman vy. Jewish Publications, Inc., 54 Cal.

2d 643, 647, 653, 654, 355 P.2d 265, 267, 270, 271, 7

Cal. Rptr. 617, 619, 622, 623 (1960), overruled on other

grounds, Brown v. Kelly Broadcasting Co., 48 Cal. 3d

711, 771 P.2d 406, 257 Cal. Rptr. 708 (1989).

Strongly held views, even on matters of obvious public

concern, thus could not be aired with any assurance of

safety. A decision to speak out required first a prediction as

to what state’s law would govern any ensuing litigation, then

a guess as to how a jury would determine issues as vague and

subjective as whether the views were the speaker's ‘‘actual

opinion,”’’ or were ‘‘excessively vituperative’’ or ‘‘unfair.’’

While the very process of submitting unpopular opinion to

scrutiny by courts and juries endangers freedom of speech,

the hazard increased dramatically as technology gave birth to

publications and broadcasts disseminated widely, often

nationally. There arose the threat of six- and seven-figure

libel judgments resting on local juries’ findings as subjective

and ephemeral as that the criticism was ‘‘unfair’’ or ‘‘unrea-

sonable.’”?

The danger to press freedom posed by the application of

local defamation law to unpopular publications provided the

stark backdrop for New York Times Co. v. Sullivan, 376

U.S. 254 (1964). That decision, of course, concerned defama-

tory false statements of fact, not assertions of opinion. In the

context of a series of massive libel suits brought by local pub-

lic officials against locally unpopular publishers and broad-

casters from other parts of the country, id. at 278, n.18 and

295 (Black, J., concurring), the Court held, inter alia, that

the common law rule requiring a defendant to prove truth in

order to escape liability in such a case was constitutionally

insufficient. ‘‘The rule . . . dampens the vigor and limits the

variety of public debate. It is inconsistent with the First and

3 With respect to wire copy or syndicated material, an aggrieved per-

son could bring separate actions in many jurisdictions, each applying its own

common law standards. See, e.g., Note, Fact and Opinion Afier Gertz v.

Robert Weich, Inc.: The Evolution of a Privilege, 34 Rutgers L. Rev. 81, 87-

88 (1981), describing a series of suits brought by a Congressman against

newspapers carrying a syndicated column that allegedly accused him of anti-

Semitic behavior. Most of the courts held the column to be non-libelous; one

held it to be actionable and unprotected by the fair comment doctrine. Swee-

ney v. Schenectady Union Pub. Co., 122 F.2d 288 (2d Cir. 1941), aff'd, 316

U.S. 642 (1942). Cf. Walker v. Associated Press, 388 U.S. 130 (1967). The

Associated Press dispatch in Walker resulted in at least 15 different lawsuits

by the plaintiff against various defendants throughout the United States.

Walker v. Pulitzer Publishing Co., 394 F.2d 800, 806-07 (8th Cir. 1968) (col-

lecting cases).

Fourteenth Amendments.’’ Jd. at 279. The antidote: the

Court’s holding that a public-official plaintiff must prove

“actual malice’ with convincing clarity subject to indepen-

dent appellate review before a libel judgment in his favor will

be permitted to stand.

Had the Sullivan case involved an unpopular editorial

rather than an unpopular advertisement—opinion and fair

comment rather than fact and ‘“‘justification’’—the result

would necessarily have been the same. Large verdicts directed

against New York Times editorials critical of public officials

in another region of the country, based solely on a pub-

lisher’s failure to prove to a local jury’s satisfaction that the

article was ‘‘fair’’ or ‘“‘presented in a proper manner’’ or con-

stituted ‘‘a reasonable inference,’’ would certainly and in

equal measure have undermined the ‘‘unfettered interchange

of ideas for the bringing about of political and social changes

... . Sullivan, 376 U.S. at 269 (quoting Roth v. United

States, 354 U.S. 476, 484 (1957)).* Had such judgments thus

threatened to impede the ‘‘free flow of ideas and opinions,”’

which are ‘‘{a}t the heart of the First Amendment,’’ Hustler

Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988), the Court

would doubtless have interceded to ensure protection beyond

that offered by each state’s law of fair comment.’ It was not

called upon to do so.*

4 The Founders “firmly adhered to the proposition that the ‘true lib-

erty of the press’ permitted ‘every man to publish his opinion.’ "’ Curtis Pub-

lishing Co. v. Butts, 388 U.S. 130, 149-50 (1967) (opinion of Harlan, J.),

quoting Respublica v. Oswald, | Dall. 319, 325 (Pa. 1788).

5 New York Times Co. v. Sullivan, supra, itself had implications for

protection of opinion. First, it required plaintiff to prove “‘actual malice.”’

Id. at 280. Insofar as that implies that it is a public official's burden to prove

falsity, see Garrison v. Louisiana, 379 U.S. 64, 74 (1964), such a plaintiff

cannot prevail if the communication is an opinion that can be proved neither

true nor false. See Franklin & Busse!, The Plaintiff's Burden in Defamation:

Awareness and Falsity, 25 Wm. & Mary L. Rev. 825, 855-56 (1984).

Second, at footnote 30, the Court observed: ‘‘[A] defense of fair comment

must [as a matter of constitutional law] be afforded for honest expression of

(footnote 6 appears on next page)

Against this legal landscape, in 1974, the Court made its

provocative observation in Gertz:

We begin with the common ground. Under the First

Amendment there is no such thing as a false idea. How-

ever 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.

Gertz v. Robert Weich, Inc., 418 U.S. 323, 339-40 (1974).

That statement has often been referred to as dictum.’ What-

ever the words’ precise force as precedent, however, they

have had an extraordinary impact on the law of defamation.

On the day the Court rendered its opinion in Gertz, it also

decided Letter Carriers v. Austin, 418 U.S. 264 (1974). The

Court held that the use of vigorous epithets in the context of

a labor dispute could not support a defamation judgment,

basing its holding, at least in part, on the Gertz principle that

“there is no such thing as a false idea.”’ Jd. at 284. The epi-

opinion based upon privileged, as well as true, statements of fact.’ 376 U.S.

at 292. Indeed, the holding in Sullivan was based on the minority fair com-

ment rule that misstatements of fact as well as comment about public figures

were protected. Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908).

6 Before Gertz, the Court decided Greenbelt Cooperative Publishing

Ass'n v. Bresier, 398 U.S. 6 (1970), holding that use of the term ‘“blackmail”’

as an epithet directed at a public figure “‘was not slander when spoken and

not libel when [published].’" Jd. at 13. It is not clear from the Court's opin-

ion whether it was suggesting that the statement was constitutionally pro-

tected because it was opinion, non-actionable because the plaintiff-public

figure could not carry the New York Times burden of proving falsity, or pro-

tected as a matter of law under an ancient (although uncited) line of author-

ity that mere insults are not defamatory (see, e.g., Curtis Publishing Co. v.

Birdsong, 360 F.2d 344, 348 (Sth Cir. 1966)), or otherwise.

7 See, e.g., Oliman v. Evans, 750 F.2d 970, 974 n.6 (D.C. Cir. 1984)

(en banc), cert. denied, 471 U.S. 1127 (1985); Keller v. Miami Herald Pub-

lishing Co., 778 F.2d 711, 715 n.11 (1ith Cir. 1985); Immuno, A.G. v.

Moor-Jankowski, 74 N.Y.2d 548, , 549 N.Y.S.2d 938, 941, $49 N_E.2d

129, 132 (1989).

thets were opinion, as such unprovable, and therefore non-

actionable. Although the Gertz language when stated was dic-

tum, it was thus treated as authoritative by the Court on the

same day it was first uttered.

Meanwhile, the American Law Institute was considering a

revision of the Restatement of Torts. Note, Fact and Opinion

After Gertz v. Robert Weich, Inc.: The Evolution of a Privi-

lege, 34 Rutgers L. Rev. 81, 97-99 (1981). When it published

the Second Restatement, three years after Gertz, the Institute

abandoned the common law defense of fair comment

reflected in the 1938 version of the Restatement. *‘The com-

mon law rule that an expression of opinion of the . . . pure

. . . type may be the basis of an action for defamation now

appears to have been rendered unconstitutional by U-S.

Supreme Court decisions.’’ Restatement (Second) of Torts,

§ 566 comment c (1977).

Jurisdiction by jurisdiction, an avalanche followed. Per-

haps attracted by the protection that Gertz offered to full

and free public discussion and the relative simplicity of the

doctrine, court after court employed the Gertz language as a

mandate for a constitutionally based rule providing immunity

for expressions of opinion. The fair comment privilege was,

simultaneously, al] but abandoned.

Some courts explicitly held that Gertz had rendered the fair

comment privilege obsolete.’ Some implied as much by refer-

ring to the fair comment privilege but then deciding the case

8 Koch v. Goldway, 817 F.2d $07, $09 (9h Cir. 1987); Pearce v. EF.

Hutton Group, Inc., 664 F. Supp. 1490, 1503 (D.D.C. 1987); Yerkie v. Post-

Newsweek Stations, 470 F. Supp. 91, 94 (D. Md. 1979); Mittelman v. Wir-

ous, 1989 Ill. Lexis 172 at 18, 1989 Westlaw 154272 at 7 (IN. 1989); Ryan v.

Herald Ass’n, Inc., $66 A.2d 1316, 1321-22 (Vt. 1989); Hoffman Co. v. E.1.

Du Pont de Nemours and Co., 202 Cal. App. 3d 390, 407 n.10, 248 Cal.

Rptr. 384, 395 n.10 (1988); Ferguson v. Watkins, 448 So. 2d 271, 278 (Miss.

1984); Nevada Independent Broadcasting Corp. v. Allen, 99 Nev. 404, 413

n.6, 664 P.2d 337, 343 n.6 (1983); Kotlikoff v. Community News, 89 N_J.

62, 65, 444 A.2d 1086, 1087 (1982); Marchiondo v. New Mexico State Trib-

une Co., 98 N.M. 282, 295, 648 P.2d 321, 334 (Ct. App. 1981).

solely on the basis of the Constitution.’ Others considered the

constitutional privilege first and then declared that the consti-

tutional analysis had rendered superfluous any consideration

of defendant's claim of fair comment.” As one court that did

first consider fair comment felicitously put it, “‘Much of

what we find it necessary to write in this opinion may be lik-

ened unto deciding whether or not a base runner touched

third when it is clear that he was thrown out at home plate."

Brewer v. Memphis Publishing Co., 626 F.2d 1238, 1241-42,

n.4 (Sth Cir. 1980), cert. denied, 452 U.S. 962 (1981).

In adopting the Gertz-based rule, many courts seemed to

bypass the principle that constitutional questions are to be

addressed only after a review of state law demonstrates that

constitutional consideration is necessary.’ Several circuit

courts explicitly stated that the constitutional privilege is to

be analyzed before any consideration of state fair comment

law.” Other circuits simply considered the constitutional

9 Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 820 F.2d

1280, 1285 n.13 (4th Cir. 1987); Action Repair, Inc. v. American Broadcast-

ing Cos., 776 F.2d 143, 146-47 (7th Cir. 1985); Oliman v. Evans, 750 F.2d

970, 975 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1127 (1985); Orr

v. Argus-Press Co, $86 F.2d 1108, 1114 (6th Cir. 1978), cert. denied, 440

U.S. 960 (1979); Henderson v. Times Mirror Co., 669 F. Supp. 356, 358-59

(D. Colo. 1987), aff'd, 876 F.2d 108 (10th Cir. 1989); Immuno A.C. v.

Moor-Jankowski, 74 N.Y 2d $48, 549 N.Y.S.2d 938, 549 N.E.2d 129 (1989);

Amcor Investment Corp. v. Cox Arizona Publications, Inc., 690 $.W 2d

775, 780-83 (Mo. 1985); From v. Tallahassee Democrat, Inc., 400 So. 2d 52,

54, 57 (Fla. Dist. Ct. App. 1981), petition denied, 412 So. 2d 465 (Fla. 1982).

10 Hoffman v. Washington Post Co., 433 F. Supp. 600, 603 (D.D.C.

1977), aff'd, $78 F.2d 442 (D.C. Cir. 1978); Camer v. Seattle Post-

Intelligencer, 45 Wash. App. 29, 41 n.3, 723 P.2d 1195, 1202 n.3 (1986), cert.

denied, 482 U.S. 916 (1987); Mashburn v. Collin, 355 So. 2d 879, 886 (La

1977).

11 See, e.g., Wolston v. Reader's Digest Ass'n, Inc., 443 U.S. 157, 160

n.2 (1979), referring in a libel case to “the general principle that dispositive

issues of statutory and local law are to be treated before reaching constitu-

tional issues.”’

12 Fudge v. Penthouse Int'l, Lid., 840 F.2d 1012, 1016 (ist Cir.), cert.

denied, 109 S. Ct. 65 (1988); Koch v. Goldway, 817 F.2d 507, 508-09 (Hh

Cir. 1987); Janklow v. Newsweek, Inc., 768 F.2d 1300, 1302 (8th Cir.) (en

banc), cert. denied, 479 U.S. 883 (1986); Oliman v. Evans, 750 F.2d 970, 975

n.8 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1127 (1985).

question directly, without explaining the departure from ordi-

nary procedure.’ In some jurisdictions, indeed, the rule

extracted from Gertz, that statements of opinion are never

false and can therefore never be actionable, seems to have

been adopted as the State’s new common law of fair com-

ment. See, e.g., Koch v. Goldway, 817 F.2d 507, 508 (9th

Cir. 1987) (‘California . . . tends to conflate common law

principles and constitutional doctrine on the definition of

opinion’’); Keller v. Miami Herald Publishing Co., 778 F.2d

7i1, 716 (ilth Cir. 1985) (following Florida law which fol-

lows the Gertz-based rule).

Now, 15 years afver Gertz, every Federal Circuit," and the

courts of at least 36 States and the District of Colum-*

13 Stevens v. Tillman, 855 F.2d 394, 398 (7th Cir. 1988), cert. denied,

109 S. Ct. 1339 (1989); Cianci v. New Times Publishing Co., 639 F.2d 54, 61

(2d Cir. 1980).

Some circuits follow the traditional rule of considering the non-

constitutional fair comment privilege first. Naneveti v. Burdette Tomlin

Memorial Hospital, 857 F.2d 96, 106 n.11 (3d Cir. 1988), cert. denied, 109 S.

Ct. 1528 (1989); Keller v. Miami Herald Publishing Co., 778 F.2d 711, 717

(11th Cir. 1985); Brewer v. Memphis Publishing Co., 626 F 2d 1238, 1241-42

& n.4 (Sth Cir. 1980), cert. denied, 452 U.S. 962 (1981); Orr v. Argus-Press

Co., 586 F.2d 1108, 1111-14 (6th Cir. 1978), cert. denied, 440 U.S. 960

(1979). Several in the latter group have criticized the formalistic necessity of

considering the obsolete fair comment privilege before resolving the case

under the dispositive constitutional privilege. Brewer, 626 F.2d at 1241-42

n.4; Orr, $86 F.2d at 1114.

In Koch v. Goldway, 817 F.2d 507, 508-09 (9th Cir. 1987), then-Judge

Kennedy cited two reasons underlying the Ninth Circuit's policy of proceed-

ing directly to the constitutional issue. First, the very state law that would be

applied, California's, itself has rejected fair comment analysis in favor of the

constitutional privilege. Second, he noted the significant number of federal

appellate courts that decide fact/opinion issues in diversity cases under the

federal constitutional standard.

14 FIRST CIRCUIT: Fudge v. Penthouse Int'l, Lid., 840 F.2d 1012 (ist

Cir.), cert. denied, 109 S. Ct. 65 (1988); SECOND CIRCUIT: Mr. Chow of

New York v. Ste. Jour Azur $.A., 759 F.2d 219 Q2d Cir. 1985); THIRD Cir-

CUITT: Jenkins v. KYW, A Division of Group W, Westinghouse Broadcasting

4& Cable, Inc., 829 F.2d 403 (3d Cir. 1987); FOURTH CIRCUTT: Potomac

Valve & Fitting, Inc. v. Crawford Fitting Co. , 829 F.2d 1280 (4th Cir. 1987);

FIFTH CIRCUIT: Lindsey v. Board of Regents of the University System of

bia,’ have held that opinion is constitutionally protected

because “‘[uJnder the First Amendment there is no such

Georgia, 607 F.2d 672 (Sth Cir. 1979); SIXTH CIRCUIT: Fails v. Sporting

News Publishing Co., 834 F.2d 611 (6th Cir. 1987); SEVENTH CIRCUIT:

Woods v. Evansville Press, 791 F.2d 480 (7th Cir. 1986); EIGHTH CIRCUTT:

Secrist v. Harkin, 874 F.2d 1244 (8th Cir.), cert. denied, 110 S. Ct. 324

(1989); NINTH CIRCUIT: Ault v. Hustler Magazine, Inc., 860 F.2d 877 (Kh

Cir. 1988), cert. denied, 109 S. Ct. 1532 (1989); TENTH CIRCUTT: Rinsiey v.

Brandt, 700 F.2d 1304 (10th Cir. 1983) (false light action); ELEVENTH CiR-

CUIT: Keller v. Miami Herald Publishing Co., 778 F.2d 711 (11th Cir. 1985)

(looking to Florida law); D.C. CIRCUIT: Oliman v. Evans, 750 F.2d 970

(D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1127 (1985).

1S ALASKA: Moffatt v. Brown, 751 P.2d 939 (Alaska 1988);

ARIZONA: MacConnell v. Mitten, 131 Ariz. 22, 638 P.2d 689 (1981); CALI

FORNIA: Baker v. Los Angeles Herald Examiner, 42 Cal. 34 254, 228 Cal.

Rptr. 206, 721 P.2d 87 (1986), cert. denied, 479 U.S. 1032 (1987); COLo-

RADO: Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979); CONNECT.

CUT: Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107,

448 A.2d 1317 (1982); DELAWARE: Riley v. Moyed, $29 A.2d 248 (Del.

1987), DISTRICT OF COLUMBIA: Myers v. Plan Takoma, Inc., 472 A.2d 44

(D.C. 1983); FLORIDA: Palm Beach Newspapers, Inc. v. Early, 334 So. 2d

50 (Fla. Dist. Ct. App. 1976), petition denied, 354 So. 2d 351 (Fla. 1977),

cert. denied, 439 U.S. 910 (1978); GBORGIA: S4W Seafoods Co. v. Jacor

Broadcasting, 17 Media L. Rep. (BNA) 1105 (Ga. Ct. App. 1989); ILLINONS:

Mitteiman v. Witous, 1989 Ill. Lexis 172, 1989 Westlaw 1°4272 (Ill. 1989);

INDIANA: Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243 (Ind.

Ct. App. I ; KENTUCKY: Yancey v. Hamilton, 17 Media L. Rep. (BNA)

1012 (Ky. 1989); LOUISIANA: Mashburn v. Collin, 355 So. 2d 879 (La.

1977); MAINE: True v. Ladner, 513 A.2d 257 (Me. 1986); MARYLAND:

Kapiloff v. Dunn, 27 Md. App. $14, 343 A.2d 251 (Ct. Spec. App. 1975),

cert. denied, 426 U.S. 907 (1976) (recognizing a constitutionally based fair

comment privilege); MASSACHUSETTS: Friedman v. Boston Broadcasters,

Inc., 402 Mass. 376, $22 N.EB.2d 959 (1988); MICHIGAN: Hodgins v. Times

Herald Co., 169 Mich. App. 245, 425 N.W.2d $22 (Ct. App. 1988); MINNE-

SOTA: Gernander v. Winona State University, 428 N.W.2d 473 (Minn. Ct.

App. 1988); MISSISSIPPI: Meridian Siar, Inc v. Williams, $49 So. 2d 1332

(Miss. 1989); MISSOURI: Henry v. Halliburton, 690 $.W.2d 775 (Mo. 1985);

MONTANA: Frigon v. Morrison-Maierie, Inc., -50 P.2d $7 (Mont. 1988);

NEBRASKA: Turner v. Welliver, 226 Neb. 275, 4.1 N.W.2d 298 (1987);

NEVADA: Neveda Independent Broedcasting Corp. v. Allen, ® Nev. 404,

664 P.2d 337 (1983); NEW HAMP*TIRE: Nash v. Keene Publishing Co., 127

N.H. 214, 498 A.ld 348) __.,, NEW JERSEY: Kotlikoff v. Community

News, 89 N.J. 62, 444 A.2d 1086 (1982); NEW MEXICO: Marchiondo v.

Brown, 98 N.M. 394, 649 P.2d 462 (1982); NEW YORK: /mmwno AC v.

thing as a false idea.’ And while the Court has not explicitly

ruled on the application of the Gertz language to protection

for opinion, three decisions have been significant.

In Bose Corp. v. Consumers Union of United States, Inc.,

466 U.S. 485 (1984) (product disparagement), the Court

quoted Gertz in relation to the First Amendment ‘‘freedom

to speak one’s mind,’’ contrasting the ‘‘ideas’’ and ‘‘opin-

ions”’ referred to in Gertz with speech “‘to which the majestic

protection of the First Amendment does not extend .

Id. at 503-04. Notably, the Circuit Court in Bose, 692 F.2d

189 (ist Cir. 1982), had considered whether the defendant's

published review of the performance of the plaintiff's audio

equipment was opinion protected under the Gertz statement

or fact subject to the ‘‘actual malice’’ rule. Finding the fact/

opinion distinction peculiarly difficult ia that case, id. at 193-

94, the Court of Appeals assumed the statement was factual

and, exercising independent appellate review, held that

“‘actual malice’’ had not been proved. Jd. at 194-97.

Moor-Jankowski, 74 N.Y. 548, $49 N.Y¥.S 2d 938, 549 N.E.2d 129 (1989);

OHNO: Scott v. News-Herald, 25 Ohio St. 3d 243, 496 N.E.2d 699 (1986);

OKLABKOMA: Miskovsky v. Tulsa Tribune Co., 678 P.2d 242 (Okla. 1983),

cert. denied, 465 U.S. 1006 (1984); OREGON: Haas v. Painter, 62 Or. App.

719, 662 P.2d 768, review denied, 295 Or. 297, 668 P.2d 381 (1983) (finding

constitutional protection for opinion about public officials); RHODE

ISLAND: Healey v. New England Newspapers, Inc., $20 A.2d 147 (R.1.

1987), cert. denied, 110 S. Ct. 63 (1989); SOUTH DAKOTA: Finck v. City of

Tea, 443 N.W. (632 (S.D. 1989); TENNESSEE: Siones River Motors, Inc. v.

Mid-South Publishing Co., 651 S.W.2d 713 (Tenn. Ct. App. 1983); TEXAS:

El Paso Times v. Kerr, 706 S.W.2d 797 (Tex. Ct. App. 1986), cert. denied,

480 U.S. 932 (1987); VERMONT: Ryan v. Herald Ass'n, Inc., 566 A.2d 1316

(Vt. 1989); VIRGINIA: Cheves v. Johnson, 230 Va. 112, 335 S.B.2d 97

(1985); WEST VIRGINIA: Hevelunch, Inc. v. Mazza, 294 §.E.2d 70 (W. Va.

1981). Cases in other states indicate that those states are likely to hold that

opimon is constitutionally provected. See ARKANSAS: Bland v. Verser, 299

Ark. 490, 774 S.W.2d 124 (1989) (finding that statements were factual, not

constitutionally protected opinion); OWA: Jones v. Palmer Communica-

tions, Inc, 440 NW 2d 884 (Lowa 1989) (stating in dictum that opinion is

constitutionally protected), NORTH CAROLINA: Renwick v. News &

Observer Pub. 63 \ C. App. 200 304 §.B.2d 593 (1983), rev'd on other

grounds, S1O NC 312, 312 § E.2d 405, cert. denied, 469 U.S. 858 (1984).

—

must bear the burden of proving truth—must fall

|. . t© & Constitutional requirement thet the plaintiff

bear the burden of showing falsity . . . before recover-

ing damages.

475 U.S. at 776.

our political system and an open society.’ * Curtis Publishing Co. v. Burts,

388 U.S. 130, 149 (1967) (opinion of Harlan, J.) (citation omitted).

18 «If a defendani is found liable for defamation wuhout amy awareness

that what he has written might be understood as a statement of fact, he has

been held hable without fault, a result not permitted by Gerrz See Franklin

& Busse, The Plawnn//'s Burden in Defamation Awereness end Falsity, 25

Wm. & Mary L. Rew. 825, 834-5! (1984).

1? 86<Cy. W. Lippman, Public Opinion 18 (MacMillan paperback ed.

1965): “Those features of the world outside which have to do with the behav-

simple question around which the constitutional protection

revolves—‘‘is it opinion?’’—has provided them with depend-

able guidance about what can be said with safety. The practi-

cal result of the safe harbor” created by the Gertz-based

protections has been comprehensive editorial freedom, fulfill-

ing the constitutional mandate to protect ‘‘uninhibited,

robust and wide-open’’ debate.

It has been argued that the dividing line between fact and

opinion is not only elusive, it is logically impossible to draw.

See, e.g., Stevens v. Tillman, 855 F.2d 394, 398-400 (7th Cir.

1988) (every statement contains elements of both). But, as

one of the authors of this brief has argued,

[T}he law does not separate assertions of fact and opin-

ion from one another by logical mandate. It treats them

differently both under the common law and constitu-

tional principles as means to an end, to protect discus-

sion about public people, issues and events.

. . . Since in the interest of maintaining adequate lib-

erty of expression the law has embraced what is essen-

tially a fiction, the separability of fact from opinion, it

is necessary to attempt to apply it from case to case,

however difficult the application sometimes may be.

R. Sack, Libel, Slander, and Related Problems 156 (1980).

in order to make the fact/opinion determination in a man-

ner that addresses the statement as a whole, consistent with

the overall constitutional purposes for which the distinction is

being made, courts have developed sets of criteria to be used

in making the judgment. In Ollman v. Evans, 750 F.2d 970,

977 (D.C. Cir. 1984) (en banc), cert. denied, 471 U.S. 1127

20 Petitioner suggests that in “‘fairly debatable’’ cases, the fact/opinion

question should be resolved by the jury. (Br. at 30.) Although a small! minor-

ity of state courts apparently agree, the Federal Circuits are in unanimous

opposition. See, e.g., Mr. Chow of New York v. Ste. Jour Azur, S.A., 759

F.2d 219, 224 (2d Cir. 1985). Adoption of Petitioner’s view would rob the

constitutional protection of its virtue of creating a safe harbor for opinion.

The expense of routinely having to litigate through trial in order to determine

whether a statement is fact or opinion, and the resulting inhibition of expres-

sion, militate against any such rule. See Sullivan, 376 U.S. at 279.

(1985), the court, after referring to previous attempts to fash-

ion such tests,”’ proffered and applied comprehensive criteria

to which reference has frequently since been made. They are:

first, “‘the common usage or meaning of the specific language

of the challenged statement itself;’’ second, ‘‘verifiability;”’

third, ‘‘the full context of the statement—the entire article or

column, for example—inasmuch as other, unchallenged lan-

guage surrounding the allegedly defamatory statement wil!

influence the average reader’s readiness to infer that a partic-

ular statement has factual content;’’ and fourth, ‘‘the

broader context or setting in which the statement appears.

Different types of writing have . . . widely varying social

conventions which signal to the reader the likelihood of a

Statement being either fact or opinion.”’ Jd. at 979.

In a thoughtful and compelling opinion, Senior Circuit

Judge Wisdom, sitting by designation on a panel of the

Fourth Circuit in Potomac Valve & Fitting, Inc. v. Crawford

Fitting Co., 829 F.2d 1280 (4th Cir. 1987), reviewed the

Ollman criteria. The court was considering a libel suit about

an article in a newsletter distributed by the defendant busi-

ness about results of supposedly ‘‘independent’’ testing of a

product sold by the plaintiff, a competitor. After a detailed

review of the testing, the article concluded: ‘‘This was a (pur-

poms very poor test designed to snow the customer.”’ Jd. at

, n.4.

Judge Wisdom, writing for the court, said that that state-

ment standing alone was, indeed, verifiable. But the verifi-

ability criterion, he said, was ‘‘a minimum threshold issue

. .”"” If a statement is not verifiable, it is not actionable.

But,

21 —‘ In Information Control Corp. v. Genesis One Computer Corp., 611

F.2d 781, 784 (Mh Cir. 1980), for example, the court employed three criteria:

the words’ understanding in context, the circumstances under which they

were uttered, and the phrasing of the statement—is it phrased, for example,

** ‘in terms of apparency.’ "’ See Ollman, 750 F.2d at 977 n. 12.

22 Inasmuch as the spare language of the Gertz dictum focuses on the

impossibility of proving an idea to be false, some courts and commentators

have focused on “‘disprovability’’ or ‘‘verifiability’’ as the sole criterion for

je]ven when a statement is subject to verification. . .

it may still be protected if it can best be understood

from its language and context to represent the personal

view of the author or speaker who made it. Thus we

reject the suggestion . . . that any “‘question of fact’’

which can be decided by a jury can be actionable as def-

amation. 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. (Emphasis supplied.)

Judge Wisdom pointed out that, while Ol/man set forth

criteria valuable in making the fact/opinion distinction, it did

not teach how to apply them when the Ol//man factors were

not all pointing in the same direction.

We hold that a verifiable statement, a statement that

has failed the second Ollman factor, nevertheless quali-

fies as an ‘‘opinion’”’ if it is clear from any of the three

remaining Ollman factors, individually or in conjunc-

tion, that a reasonable reader or listener would recognize

its' weakly substantiated or subjective character—and

discount it accordingly.

Id. (Emphasis in the original.)

protection of opinion. See, e.g., Franklin & Bussel, The Plaintiff's Burden in

Defamation: Awareness and Falsity, 25 Wm. & Mary L. Rev. 825, 878

(1984); Hotchner v. Castillo-Puche, $51 F.2d 910 (2d Cir. 1976), cert.

denied, 434 U.S. 834 (1977); Buckley v. Littell, $39 F.2d 882 (2d Cir. 1976),

cert. denied, 429 U.S. 1062 (1977).

If this test is applied mechanically by searching for some derogatory alle-

gation that may be characterized as ‘‘false,’’ as Judge Wisdom points out in

Potomac Valve, 829 F.2d at 1288, it underprotects opinion. Opinion often

contains factual contentions that, in an overall reading of the statement, nei-

ther carry the defamatory sting nor detract from the statement’s subjective

import as a whole. If, on the other hand, a single-factor verifiability test is

applied thoughtfully with a view toward protection of free debate, it will

yield results like those that are produced by the multi-criteria approaches.

What is non-verifiable?—any statement whose thrust is to express the

author’s attitude toward the world rather than describing events occurring in

it, Le., any statement of opinion.

The court held that, in context, it was clear that the state-

ment before it was merely the author’s conclusion based on

specific facts referred to in the article, and therefore opinion

protected by the Constitution. Jd. at 1290.

The most crucial insight in Judge Wisdom’s opinion is that

identifying somewhere in a statement some derogatory asser-

tion or implication that is not an ‘‘idea’’ cannot be the begin-

ning and the end of the inquiry. Statements of opinion often

contain within them assertions that, standing alone, sound

like statements of fact. 829 F.2d at 1288. Moreover, by its

sensitivity to the underlying task of separating the essentially

‘objective’ from the essentially ‘‘subjective,’’ by examining

questionable statements in their entirety, by abjuring a

mechanical approach, Potomac Valve addressed the identifi-

cation of opinion broadly enough to assure the necessary lati-

tude to allow people to ‘‘speak their minds,"’ to give voice to

the “‘pictures inside their heads.’’ The Potomac Valve meth-

odology, amici believe, is fundamentally sound, worthy of

scrutiny, respect, and, ultimately, adoption by the Court in

the context of this case.”

Finally, the question arises as to what courts should do

when, after completing the process of attempting to separate

fact from opinion, they remain unable to characterize the

statement as either. Amici would urge a rule of construction

suggested by the Court's reasoning in Hepps. 475 U.S. at

376. The Court was concerned that, in close cases, where the

jury’s verdict as to truth or falsity depends on who has the

burden of proof, permitting the burden to be placed on the

23. The question of whether a statement is an opinion implying the

existence of undisclosed defamatory facts, see Restatement (Second) of

Torts, § 566 (1977), does not appear to be at issue in this case. Amici note,

nonetheless, their agreement with the view of the Ol/man court that, if the

proper criteria are employed to determine whether a statement is opinion, the

search for implied facts under § 566 becomes unnecessary. 750 F.2d at 984-

85. Amici submit that the Restatement approach threatens to turn the

attempt to distinguish fact from opinion wrongly into a mechanical search

for some implication somewhere that can be said to be verifiable. See n.22,

supra, and Petition for Writ of Certiorari, New England Newspapers, Inc. v.

Healey, No. 88-1939 (cert. denied, 110 S. Ct. 63 (1989)).

defendant would result in the constitutionally unacceptable

punishment of some speech that ought to be protected.

In a case presenting a configuration of speech and

plaintiff like the one we face here, and where the scales

are in such an uncertain balance, we believe that the

Constitution requires us to tip them in favor of protect-

ing true speech.

Id.

Amici submit that a similar rule ought to apply to the dis-

tinction between fact and opinion. If, after careful applica-

tion of appropriate criteria, the balance of the scales remain

in doubt, ‘“‘the Constitution requires [a court] to tip them in

favor of protecting’’ speech, so that all who would express

their views may do so with a margin of safety.

{[Cjourts should not find a statement to be disprovable if

serious doubt on the issue exists. The danger to free

expression and the danger to the judiciary of trying to

resolve the unresolvable both require that a court not

undertake a search for falsity unless the statement

clearly is susceptible to such a determination. .. .

Franklin & Bussel, The Plaintiff's Burden in Defamation:

Awareness and Falsity, 23 Wm. & Mary L. Rev. 825, 888

(1984).™

POINT THREE

A STATEMENT OF OPINION DISAGREEING WITH

” SWORN TESTIMONY DOES NOT FORFEIT

CONSTITUTIONAL PROTECTION.

There is a thread of authority that “‘[a}ccusations of crimi-

nal activity, even in the form of opinion, are not constitu-

24 Such a rule would be roughly analogous to the requirement that a

public official or public figure prove ‘‘actual malice”’ in fact-based cases with

“convincing clarity."’ Sullivan, 376 U.S. at 279. The heightened standard is

employed to assure that close cases do not result in silencing protected

expression and to signal the value placed by society on the interest at risk in

the litigation. See Addington v. Texas, 441 U.S. 418, 425 (1979).

tionally protected."’ Cianci v. New Times Publishing Co., 639

F.2d 54, 63 (2d Cir. 1980) (citations omitted). While the rea-

soning is not clear, the “‘rule’’ may result from a perception

that such charges, even when framed as opinion, are too

“‘heavily laden with factual content,”’ id., to be within the

constitutional safeguard.

If the dictum is meant to imply more than that a factual

allegation of criminality does not become immune simply by

Stating it in the form of an opinion, it is mistaken. There are

surely cases where an opinion that suggests criminality is pro-

tected. If an observer at a trial concludes that the judge or

jury wrongfully acquitted a defendant by overlooking or mis-

construing evidence, for example, expression of those misgiv-

ings must be permitted. See, e.g., Southern Air Transport v.

American Broadcasting Cos., 877 F.2d 1010, 1016-17 (D.C.

Cir. 1989) (statement that plaintiff's operation was illegal was

opinion); Aldoupolis v. Globe Newspaper Co., 398 Mass.

731, 500 N.E.2d 794 (1986) (implication in op-ed column that

accused were wrongly acquitted of rape was opinion).

This is particularly true with respect to perjury. An accusa-

tion of a crime typically involves an allegation about physical

behavior—rape (Cianci), bribe-taking (cf. Rinaldi v. Holt,

Rinehart & Winston, Inc., 42 N.¥.2d 369, 397 N.Y.S.2d

1299, cert. denied, 434 U.S. 969 (1977))—that did or did not

happen. But an accusation of perjury is an assertion of false

speech. To say that a person testifying under oath spoke

falsely may be nothing more than to state one’s strong dis-

agreement with what has been said. lt is often a quintessen-

tial expression of opinion.”

It is common for the most provocative charges to be made

under oath—in verified complaints, in affidavits filed in

court, during deposition testimony, and in the course of the

25 Calling someone a “‘liar’’ can be a statement of opinion. See, e.¢.,

Lauderback v. American Broadcasting Cos., 741 F.2d 193 (8th Cir.), cert.

denied, 464 U.S. 1190 (1985); Edwards v. National Audubon Soc’y, $56 F.2d

113 (2d Cir.), cert. denied, 434 U.S. 1002 (1977); Smith v. Levitt, 227 F.2d

855 (Mh Cir. 1955S); Bennett v. Transamerica Press, 298 F. Supp. 1013, 1015

(S.D. lowa 1969); Stepien v. Franklin, 39 Ohio App. 3d 47, $28 N.E.2d 1324

(1988).

widest variety of hearings or trials. Such sworn statements

are ordinarily absolutely privileged when made, L. Eldredge,

The Law of Defamation, § 73{k), (s) (1978), and condition-

ally privileged when publicly disseminated by the press. /d. at

§ 79. Extra-judicial denials of such charges are also common.

It would be anomalous, at best, to strip legal protection from

responses to such privileged charges solely because the origi-

nal allegations were sworn and the plaintiff may therefore

claim that he has been accused of “‘perjury.”’

Testimony, moreover, frequently bears on a matter of

intense public concern. Sworn statements in a variety of

forums as to who knew what, when—about the Iran/Contra

operation or the break-in at the Watergate, for examples—

have been the subject of vigorous public dispute. If there is

to be full discussion of public issues, testimonial speech, like

all other kinds, must be subject to free, even fierce, debate.

POINT FOUR

THE CHALLENGED STATEMENTS ARE CONSTITU-

TIONALLY PROTECTED EXPRESSIONS OF OPINION.

Respondents argue that the column at issue, under applica-

ble constitutional principles, was a statement of opinion, not

an allegation of fact. Akhough emici do not wish to repeat

Respondents’ arguments here, they respectfully offer several

observations. Amici submit that the overall thrust of the

column is clear—and it is not that Petitioner committed per-

jury at the Ohio court's due process hearing.

Respondent Diadiun, a sports columnist, was at a wrestling

tioner Milkovich, the widely renowned coach of the

team, described the altercation and defended his role

Milkovich’s testimony differed sharply from what Diadi

of Oliman and Potomac Valve, amici submit, it was. It was

phrased repeatedly in “terms of apparency.”’ The words

““seemed,”’ “‘probably,"’ and “‘apparently"’ (twice) appear in

three successive crucial paragraphs toward the

sometimes unpleasantly sharp’’ opinions, New York Times

Co. v. Sullivan, 376 U.S. 254, 270 (1964), are routine: “The

rookie can’t hit a major-league curve;"’ “‘the owners are out

to fleece the fans;"’ ‘“‘the referee stole the game.’’”

26 §6See, e.¢ Henderson v. Times Mirror Co., 669 F. Supp. 356, 359-41

(D. Colo. 1987), aff'd, 876 F.2d 108 (10th Cir. 1989); Brooks v. Paige, 773

the meet ‘“‘know in [their] heart[s] that Milkovich ...

lied. . . .”” All of these factors point toward a proper char-

acterization of the column as opinion, not fact.

The statements in the column should be understood as they

roust have been when read in the sports pages in Mentor,

Ohio, not as they appear in the appendix of a brief 15 years

trative hearings and disputed testimony; a resulting probation

of the rival wrestling team and censure for the coach; a law-

suit by the parents of the suspended wrestlers; and then a

of the team and the coach on what

violation.

Against the background of a high profile controversy in a

smal] community, what was Diadiun’s column meant and

perceived to do? To convey facts about the events in ques-

to any one of the ‘‘2000 plus”’ others who also knew them

first-hand—‘“‘anyone who was at the meet."’ Factual allega-

tions one way and another were doubtless reported, known

throughout the town and heatedly debated. Indeed, they were

available such that readers, as Diadiun asked, could make up

their own minds.

P.2d 1098, 1101 (Colo. App. 1989); Stepien v. Franklin, 39 Ohio App. 34 47,

$1, $28 N.E.2d 1324, 1329 (1988); Parks v. Steinbrenner, 131 A.D.2d 60, 62-

66, $20 N. ¥.S.2d 374, 375-78 (1987); Hoeppner v. Dunkirk Printing Co., 254

N.Y. 95, 98-99, 172 N.E. 139, (1930) (under common law, vigorous criticism

of high school coach protected because of the ‘‘safety valve’ nature of sports

and related public criticism, except in cases where proof of personal ill will

defeats the fair comment privilege).

Was it designed and understood to communicate the

author's attitude toward these widely known events? Pre-

cisely. In Diadiun’s view, through foul play, the bad guys

had won. And Diadiun was furious. Can this expression of

his outrage be meaningfully judged to be true or false? Amici

submit that it cannot. His outcry was a statement of deeply

held, angry opinion about a matter of serious community

concern.

Memories of Ebbets Field and the Brooklyn Dodgers evoke

the old refrain: ‘‘We wuz robbed!"’ “We wuz robbed” is not

so different from what sports columnist Diadiun was saying.

It cannot be put to a true/false test without endangering the

ability of reporters and fans to get mad, to participate fully

assurance that, under the Constitution, full and free debate is

guaranteed. Amici respectfully urge that the judgment of the

Supreme Court of Ohio be affirmed.

Dated: April 6, 1990

Respectfully submitted,

Ropert D. SAcKk

GIBSON, DUNN & CRUTCHER

200 Park Avenue

New York, New York 10166

j (212) 351-4000

Counsel for Record for

Amici Curiae

Of Counsel:

Lester E. GREENMAN

S. WHITNEY RAHMAN

GIBSON, DUNN & CRUTCHER

200 Park Avenue

New York, New York 10166

RICHARD J. TOFEL

Dow Jones & Company, Inc.

Legal Department

200 Liberty Street, llth Floor

New York, New York 10281!

RICHARD M. SCHMIDT, Jr.

COHN AND M».RKS

1333 New Hampshire Avenue, N.W.,

Suite 600

Washington, D.C. 20036

Attorneys for the American

Society of Newspaper Editors

RICHARD N. WINFIELD

Rocers & WELLS

200 Park Avenue

New York, New York 10166

Attorneys for the Associated Press

STEVEN W. KORN

BENITA BAIRD

CELESTE PHILLIPS

Cable News Network, Inc.

One CNN Center

Box 105366

Atlanta, Georgia 30348

DEVEREUX GHATILLON

Capital Cities/ ABC, Inc.

47 West 66th Street

New York, New York 10023

DOUGLAS P. Jacons

Associate General Counsel

CBS Inc.

51 West S2nd Street

New York, New York 10019

BARBARA L. WARTELIE

Senior Legal Counsel

Gannett Co., Inc.

1100 Wilson Boulevard

Arlington, Virginia 22234

HARVEY L. LIPTON

Ropert J. HAWLEY

The Hearst Corporation

959 Eighth Avenue

New York, New York 10019

Josern H. Cooper

The New Yorker

25 West 43rd Street

18th Floor

New York, New York 10036

LAURA R. HANDMAN

LANKENAU & BICKFORD

1740 Broadway

New York, New York 1°19

SLADE R. METCALF

SQUADRON, ELLENOFF, PI ESENT

& Lenrer

$51 Fifth Avenue

New York, New York 10176

Attorneys for Magazine

Publishers of America

Desra O. Foust

McClatchy Newspapers, Inc.

2100 Q Street

Sacramento, California 95816

RICHARD J. OVELMEN

BAKER & MCKENZIE

1600 Barnett Tower

701 Brickell Avenue

Miami, Florida 33131

Attorneys for the Miami Herald

Publishing Company

SANDRA S. BARON

GAYLE C. SPROUL

National Broadcasting

Company, Inc.

30 Rockefeller Plaza

New York, New York 10112

ALBERTO IBARGUEN

NANCY E. RICHMAN

Newsday, Inc.

235 Pinelawn Road

Melville, New York 11747

TINA A. RAVITZ

Vice President and Chief Counsel

Newsweek, Inc.

444 Madison Avenue

New York, New York 10022

DEBORAH R. LINFIELD

GEORGE FREEMAN

Senior Attorneys

The New York Times Company

Legal Department

229 West 43rd Street

New York, New York 10036

JANe E. KIRTLEY

Executive Director

Reporters Committee for

Freedom of the Press

1735 Eye Street, N.W., Suite 504

Washington, D.C. 20006

CONSTANCE A. HEYMANN

NATALIE T. Levy

Reuters Information Services Inc.

1700 Broadway

New York, New York 10019

Bruce W. SANFORD

BAKER & HOSTETLER

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Scripps Howard, Inc.

and The Society of Professional

435 North Michigan Avenue

Chicago, Illinois 60611

JAMES L. ARNOLD

General Counsel

United Press International, Inc.

9990 Lee Highway

Third Floor

Fairfax, Virginia 22030

BARBARA P. PERCIVAL

The Washington Post

1150 15th Street, N.W.

Washington, D.C. 2007)

MARTIN P. MBESSINGER

MARK H. CHARLES

Westinghouse Broadcasting

Company, Inc.

888 Seventh Avenue, 39th Floor

New York, New York 10106

DESCRIPTION OF AMICI CURIAE

The American Society of Newspaper Editors is a nation-

wide, professional organization of more than 1,000 persons

who hold positions as directing editors of daily newspapers

throughout the United States. The purposes of the Society,

which was founded over 50 years ago, include the ongoing

responsibility to improve the manner in which the journalism

profession carries out its responsibilities in providing an

unfettered and effective press in the service of the American

people.

Associated Press, the world’s largest newsgathering organi-

zation, is a mutual news cooperative organized under the

Not-for-Profit Corporation Law of the State of New York,

and engages in the gathering and distribution of news of

local, national and international importance to its member

newspapers and broadcast stations across the United States

and throughout the World.

Cable News Network, Inc. provides the nation with two

24-hour television news services, CNN and Headline News.

Its news and information programming reaches more than 51

million households in the United States. Its programming is

also carried worldwide.

Capital Cities/ABC, Inc., through its subsidiaries, operates

the ABC radio and television networks, which produce sev-

eral daily and weekly news broadcasts. Capital Cities/ABC,

Inc. is also the owner of television and radio stations located

in major cities throughout the United States. In addition,

Capital Cities/ABC, Inc. owns several daily and weekly

newspapers located throughout the country and many special

interest and trade publications.

CBS Inc. is the owner of television and radio broadcasting

stations and the operator of national television and radio net-

works.

Dow Jones & Company, Inc. publishes, inter alia, The

Wall Sereet Journal, the largest circulation daily newspaper in

the country. es well as Barron’s National Business and Finan-

cial Weekly, the Dow Jones News Services and, through its

Ottaway Newspapers, Inc. subsidiary, newspapers in 29 com-

munities in 13 states.

Gannett Co., Inc. publishes 83 daily newspapers, including

USA Today, 52 non-daily publications, and a newspaper

magazine. It operates 10 television stations, 16 radio stations

and a national news service.

The Hearst Corporation is a diversified privately held com-

munications company. It publishes numerous nationally dis-

tributed consumer magazines, daily and non-daily

newspapers, business publications and hard-cover and soft-

cover books. It also owns and operates a leading features

syndicate and several television and radio broadcast stations.

Magazine Publishers of America, Inc. (“MPA”) is a

national trade association including in its present membership

218 domestic magazine publishers who publish 756 magazines

sold at newsstands and by subscription. MPA members pro-

vide broad coverage of domestic and international news in

weekly and biweekly publications, and publish weekly,

biweekly and monthly publications covering literature, reli-

gion, law, political affairs, science, agriculture, industry and

many Other interests, avocations and pastimes of the Ameri-

can people.

McClatchy Newspapers, Inc. owns and operates The Sacra-

mento Ree and 15 other newspapers in California, Washing-

ton, Alaska and South Carolina, with a total circulation of

approximately one million.

The Miami Herald Publishing Company is a division of

Knight-Ridder, Inc., a Florida corporation, and publishes

The Miami Herald, a daily newspaper in Miami, Florida,

which is distributed throughout the State of Florida.

National Broadcasting Company, Inc. owns and operates a

national television network. NBC itself and its subsidiaries

operate television stations, all of which are engaged in the

gathering and dissemination of news to the public.

Newsday, Inc. publishes Newsday and New York Newsday

and is a wholly-owned subsidiary of The Times Mirror Com-

pany.

Newsweek, Inc., a subsidiary of The Washington Post

Company, publishes Newsweek magazine, a weekly interna-

tional newsmagazine with a U.S. readership in excess of 19

million

The New York Times Company owns and publishes The

New York Times, a daily newspaper with a national circula-

tion of 1.1 million and over 1.65 million on Sunday. The

Company also owns five TV stations, 2 radio stations, 35

regional newspapers and seventeen national magazines.

The Reporters Committee for Freedom of the Press is a

voluntary, unincorporated association of news reporters and

editors dedicated to protecting the First Amendment interests

of the news media. The Reporters Committee has appeared in

virtually every recent case in this Court involving the First

Amendment rights of reporters to gather and disseminate

news and information.

Reuters Information Services Inc. is the primary North

American operating company of Reuters Holdings PLC, the

international news and financial information organization.

Reuters supplies information to both business subscribers and

to the news media. It obtains its information from approxi-

mately 162 exchanges and over-the-counter markets, from

data contributed directly by more than 3,715 subscribers in

82 countries and from a network of 1,268 journalists, pho-

tographers and cameramen.

Seattle Times Company publishes The Seattle Times, the

largest daily and Sunday circulation newspaper in the Pacific

Northwest, and also publishes the Walla Walla Union-

Bulletin.

Scripps Howard, Inc. is one of the largest communications

companies in the country. Scripps Howard owns newspapers,

including The Cincinnati Post, television and radio stations,

including stations WEWS-TV (Cleveland) and WCPO-TV

(Cincinnati), and a variety of other media enterprises across

the United States. One out of nine Americans is a Scripps

Howard reader, viewer or listener.

The Society of Professional Journalists is a voluntary, not-

for-profit organization of nearly 20,000 members. The Soci-

ety is the largest and oldest organization of journalists in the

United States, representing every branch and rank of print

and broadcast journalism.

Tribune Company is the nation’s fourth largest newspaper

publisher, with seven daily and Sunday papers, including Chi-

cago Tribune and New York Daily News. Other Tribune sub-

sidiaries own and operate television and radio stations in six

major markets.

United Press International, Inc. generates and compiles

news and information reports and produces photographs on a

worldwide basis, all of which are transmitted for sale primar-

ily to media industry subscribers such as newspapers and

radio and television broadcasters. It maintains 200 offices

and bureaus in 90 countries, staffed by 1,150 full-time

employees and 4,000 contributory correspondents.

The Washington Post, a division of The Washington Post

Company, is a daily newspaper circulated in Washington,

D.C., Maryland and Virginia, with a daily circulation of

773,000 and a Sunday circulation of 1,12¢ ,000.

Westinghouse Broadcasting Company, Inc. through its sub-

sidiaries owns and operates five network affiliated television

stations and 20 radio stations, including four all-news radio

stations. It is also a producer and distributor of broadcast

and cable programming.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.