A sharply divided U.S. Court of Appeals here ruled yesterday that a Marxist professor seeking a job at the University of Maryland could not sue syndicated columnists Rowland Evans and Robert Novak for disparaging statements they made about him in 1978 because those statements were "entitled to absolute First Amendment protection as expressions of opinion."
The 6-to-5 ruling could have significant implications for other columnists and commentators. The case involves the legal standards that should apply in treating statements of opinion and statements of fact.
Published expressions of opinion generally have been protected from libel suits, while statements of fact have no such privilege. But the courts, including the U.S. Supreme Court, have not precisely defined what is "fact" and what is "opinion."
The majority opinion, written by Judge Kenneth W. Starr, establishes a four-point test for making that distinction and for balancing freedom of expression with the individual's interest in protecting his reputation. Starr's test -- and a variant proposed by Judge Robert H. Bork in a concurring opinion -- gives opinion writers enhanced protections, particularly when discussing political issues.
Under that test, the columnists did not libel Bertell Ollman, a New York University professor and a Marxist who had been nominated to head the University of Maryland's political science department, even when they wrote that he "has no status within the profession, but is a pure and simple activist."
Ollman sued a year later, claiming he was denied the chairmanship because of that column.
The dissenters said the majority's approach went too far in its protections. The statement about Ollman's professional status was "a classic and coolly crafted libel," Judge Antonin Scalia said in his dissent.
Judge Patricia M. Wald, who dissented along with Scalia and Judge Harry T. Edwards, said the majority view means that "even assuming that the statement was utterly false, that it was made with knowledge of its falsity, and that it precipitated Ollman's loss of an important academic position . . . the statement's authors cannot be made to answer in a suit for libel. I do not believe that the First Amendment requires this result."
Starr's test for distinguishing fact and opinion would include asking whether the words used have a "precise meaning," if the statements be verified and whether the words, taken in context, will be read as opinion or fact.
Bork called for a more flexible, case-by-case approach. Bork said he was concerned that forcing the columnists to go to trial "would have a heavily inhibiting effect upon the journalism of opinion."
Bork said the statement Evans and Novak made about Ollman's reputation was "the kind of hyperbole that must be accepted in the rough and tumble of political argument" and that people "who place themselves in a political arena must accept a degree of derogation that others need not."
Chief Judge Spottswood W. Robinson III, whose opinion last year was overruled yesterday, dissented along with Judge J. Skelly Wright. Robinson adhered to his earlier view that the authors' column was not "pure opinion," but more like factual statements for a jury to consider to determine truth or falsity.
The vote split the court's political lineup, with Reagan appointee Scalia joining the generally liberal wing and Judge Ruth Bader Ginsburg, a Carter appointee, joining Judges Malcolm R. Wilkey, Edward A. Tamm and Senior Judge George E. MacKinnon in favoring Evans and Novak. Judge Abner J. Mikva did not participate.