State courts uphold 'opinion' decisions in post-Milkovich era.

* Recent cases protect letters to the editor even when hyperbole outruns the facts.

When the U.S. Supreme Court ruled seven years ago that the U.S. Constitution does not give separate carte blanche protection for "opinion" pieces, shock and confusion resulted in the realm of those who write and edit them. And with good cause.

In the infamous Milkovich v. Lorain Journal decision, the Court decided that a signed opinion column by a newspaper sports writer, questioning the conduct and veracity of a well-known high school wrestling coach, was not automatically immune from a libel suit merely because it could be labeled as "opinion."

Up to that point, it had been widely and justifiably assumed - both by jurists and journalists - that an "opinion" could not be libelous because by definition no such thing exists as a "false opinion." And provable falsity always has been a prerequisite for sustaining a defamation action.

Among the many questions raised, but not answered, by Chief Justice William Rehnquist's majority opinion in Milkovich was this: Would this signal an open litigation season on signed letters to the editor?

An admittedly tentative but encouraging "no" answer seems in order, based on a search of the law reports for post-Milkovich state and federal court decisions dealing with editorial page "opinion" content. Five decisions spanning 1991 to 1996 dealt specifically with published letters. And in four of them the courts found solid legal grounds to protect the letters from libel actions, despite Milkovich.

The five cases provide both instruction and reassurance in terms of how to handle even the most provocative letters - the type that can contribute so much to the "marketplace of ideas" long cherished in our heritage of free expression.

Interestingly, one of the five cases had been considered by the Supreme Court during the same 1989-1990 court term that produced Milkovich. It involved an appeal from a decision by New York's highest court, which had cloaked a letter to the editor with special First Amendment "opinion protection" - something Milkovich ruled did not exist.

The Rehnquist court, in a terse order with no explanation or written opinion, vacated the New York decision, and told the state's Court of Appeals to reconsider it in light of the Milkovich pronouncement.

The New York court dutifully reconsidered, as ordered. But it refused to change the results of its earlier decision. Moreover, it produced an opinion that criticized Milkovich and declared that letters do indeed deserve special protection from libel suits (at least in New York).

"The public forum function of letters to the editor is closely related in spirit to the 'marketplace of ideas,'" the New York court insisted. After giving lip-service deference to the Milkovich precedent, the court said that the offending statements in the letter could not be proved to be false, even if they were considered factual rather than opinionated. More importantly, the court said that state constitutions can provide additional rights not recognized by the U.S. Supreme Court's interpretations of the federal constitution. And the New York constitution does indeed give separate and special protection to opinion forums such as the letters columns published in the media, the court decided.

The New York case (Immuno v. Moor-Jankowski) originated in 1983 after the Journal of Medical Primatology published a letter criticizing an effort to establish a hepatitis research facility in Sierra Leone, using chimpanzees. The letter writer claimed the project's leaders were trying to avoid international laws and policies protecting endangered species.

The journal's editor had appended an "editorial note" to the letter, explaining that the targets of the criticism were offered an opportunity to reply before the letter was published, but had declined to do so.

After deciding in 1989 that the letter, with the rejected offer of reply, was a protected opinion forum under the Constitution and having its decision rejected by the U.S. Supreme Court a year later, the New York high court in 1991 held its ground, noting that letters foster debate - especially when the letter writer's identity and affiliation are published and when the publication invites rebuttal and further discussion from other potential letter writers. "Significantly, for many members of the public, a letter to the editor may be the only available opportunity to air concerns about issues affecting them. . . . It is often the only way to get things put right," the 1991 decision declared.

Even Chief Justice Rehnquist et al. submitted to that reasoning. The 1991 decision also was submitted to the Supreme Court for review, but this time the court declined to do so, without comment.

Three years later, the Colorado Supreme Court also found state constitutional protection for a letter to the editor. The case (Keohane v. Stewart) involved a weekly newspaper's 1988 publication of letters that suggested collusion and pay-offs between a judge and some doctors in connection with a sexual assault trial.

The court ruled in 1994 that even though some phrases in the letters were statements of fact that might be verifiably false, the letters in their overall context deserved both federal and state constitutional protection. The letters were laced with speculative conditional phrases (such as "it makes you wonder" and "if this could be proven" and "I guess") and rhetorical questions ("does anyone seriously think. . . ?" and "did anyone expect. . . ?") and hyperbole ("scum" and "the sickest").

The Colorado court noted that even Rehnquist's Milkovich opinion conceded First Amendment libel immunity for loose and imaginative language - if the topic is one of public concern or debate. Because the sexual assault trial and "other recent scandals concerning doctors and public officials" qualified as public issues, the court cloaked the letters in constitutional protection. It recognized that letters customarily appear "in the editorial sections of the paper, a traditional forum for debate, where intemperate and highly biased opinions are frequently presented. . . ."

Similar reasoning by the Montana Supreme Court in 1996 granted both federal and state protection to a letter printed in a local paper. The letter suggested that an alderman used public funds to finance a "personal vendetta." It also included the phrase, "How to make friends and influence an alderman."

The court (in LeFerer v. Great Falls Tribune) ruled that such "colorful, opinionative phrasing" considered in the overall context of a public controversy merits both First Amendment and state law protection. The letter was declared a non-libelous "loose, figurative" expression.

The fourth favorable court opinion (Rudnick v. McMillan) came in 1994 from a California Court of Appeals. A 1992 letter in a San Luis Obispo newspaper charged that a ranch owner and a columnist for the paper both advocated a "land use philosophy that has converted vast areas of our public domain to barren wastelands." The writer added that when he visited the owner's ranch two years earlier, "cattle dung was all that remained to protect the soil, and the only wildlife species were those that lived underground."

The ranch owner (but not the columnist!) sued. The appeals court said the letter, taken as a whole, contributed to public debate on a controversial issue, and that readers would recognize the letter as expressing the writer's opinion rather than facts.

Phraseology throughout the letter (such as "barren wastelands" and "cycle of depletion") read "more like ornate phrases and rhetorical hyperbole" than defamatory statements of fact, the court held. As such, the letter was constitutionally protected as clear opinion.

But in the fifth case, a letter written by a lawyer and published in a law journal was held potentially libelous and not deserving of constitutional protection. That decision came from the federal district court for Arizona.

In a letter published in the National Law Journal in 1993, an attorney complained about a trial judge's decision during litigation involving Lincoln Savings and Loan. The letter-writing attorney's law firm had represented one of the parties in the litigation.

The judge sued, claiming the letter inaccurately reported the judge's decision. The offending phrases were clearly misstatements of facts, and easily could be proven false by comparing them to the trial judge's written opinion. No topic of public controversy or debate was present in the letter, and its language was matter-of-fact rather than conjectural, hyperbolic, figurative, or conditional. So the federal court (in In Re American Continental/Lincoln Savings and Loan) decided the statements were not opinions, and that the judge's defamation suit could proceed.

All five cases suggest to me that when handling letters to the editor in the post-Milkovich era editors are wise to consider the following:

1. Do the tone and phrasing of the letter clearly indicate the writer is stating his or her viewpoints or interpretations of facts - rather than merely what readers might construe as factual reporting?

2. If the letter does include factual statements that might harm reputation or livelihood - especially if it suggests possible criminal activity or professional incompetence - what are the chances that the accused party can meet the burden of proving those statements false?

3. Might the writer re-cast the letter into more conditional, conjectural, or figurative language?

4. Is the topic one of public concern or controversy for the publication's overall audience, as opposed to a narrow or personal interest on the part of the writer?

5. Are letters of reply and rebuttal openly encouraged as part of the publication's policy of providing a "public forum" for opinion and debate?

Those considerations might help paint a clear picture for letters columns: an open, even flew, platform for exchanging ideas. They made a difference to the courts in the cases discussed above.

The California Court of Appeals put it this way in its Rudnick 1994 opinion: "Letters written to the editor of a magazine or a newspaper are often like elaborate costume parties. Fact and opinion disguise their identities and pose as one another. Like the invitees at such affairs, the average reader is seldom deceived by the masquerade."

Courts probably won't be deceived either.

Case citations

Immuno AG v. Moor-Jankowski, 566 N.Y. S.2d906, 567N.E.2d1270 (1991), cert. den, 500 U.S. 954 (1991).

In Re American Continental/Lincoln Savings and Loan, 884F.Supp.1388 (1995).

Keohanne v. Stewart, 882 P.2d 1293(1994).

LeFever v. Great Falls Tribune, reported in King & Ballow, First Amendment Comment, Vol. 9, No. 10 (October 1996).

Rudnick v. McMillan, 31 Cap.Rptr.2d 193 (1994).

NCEW associate member Michael J. Petrick is professor of journalism at Central Michigan University in Mount Pleasant.