In a story yesterday on the Supreme Court's libel decision, the newspaper involved was misidentified. It is the Lake County News-Herald. (Published 6/23/90)

The Supreme Court ruled yesterday that expressions of opinion can be the subject of libel suits if they contain "false and defamatory" facts.

In an opinion by Chief Justice William H. Rehnquist, the court rejected "creation of an artificial dichotomy" between fact and opinion and said a number of lower courts had been wrong when they assumed that statements of opinion were automatically shielded from libel suits.

Rehnquist said the "breathing space" necessary to ensure freedom of expression was provided by other limits on libel suits.

He emphasized a 1986 decision in which the court said the burden of proof is on those asserting they were libeled to prove that a statement on a matter of public concern is false.

The court, voting 7 to 2, reinstated a 15-year-old suit brought by an Ohio wrestling coach. The coach, Michael Milkovich, claimed he was libeled by a newspaper sports columnist who accused him of lying under oath about his role in a melee that erupted between his wrestlers and those from a rival team.

Quoting from Iago's famous lines in Othello about the damage inflicted by "he that filches from me my good name," the court said columnists and others who make factual statements that defame people cannot insulate themselves from liability simply by "couching such statements" as their opinion.

"The statement, 'In my opinion Jones is a liar,' can cause as much damage to reputation as the statement, 'Jones is a liar,'" Rehnquist said.

On the other hand, he said, "the statement, 'In my opinion Mayor Jones shows his abysmal ignorance by accepting the teaching of Marx and Lenin,' " would be entitled to full constitutional protection from libel suits because it "does not contain a provably false factual connotation."

Justices William J. Brennan Jr. and Thurgood Marshall issued an uncharacteristically mild dissent, saying that the court's first direct discussion of the fact-opinion distinction was "almost entirely" correct.

Although the decision in Milkovich v. Lorain Journal Co. "dispels any misimpression that there is a so-called opinion privilege" in addition to other constitutional protections for the press, Brennan said, it also makes clear "that a protection for statements of pure opinion is dictated by existing First Amendment doctrine."

The 1975 column by Lake County (Ohio) News-Journal sportswriter J. Theodore Diadiun concerned a state court decision reinstating the eligibility of Milkovich's Maple Heights High School wrestling team to compete in the state tournament.

"Anyone who attended the meet" at which the brawl erupted that resulted in the team's disqualification "knows in his heart that Milkovich and {another school official} lied at the hearing after each having given his solemn oath to tell the truth," Diadiun wrote in his column, headlined, "Maple Beat the Law with the 'Big Lie.' "

Libel law experts said they were disappointed by the ruling but said its impact will depend on how lower courts apply it.

They warned that the ruling could encourage more plaintiffs to bring libel suits and prompt lower court judges to allow more cases to go to the jury to determine whether articles contain assertions of fact. Currently, many libel cases are dismissed before they go to trial.

"Protection for opinion will be cut back in the lower courts, but won't be cut back to zero," said Robert D. Sack, who wrote a friend-of-the-court brief in the case for a number of press groups and newspapers, including The Washington Post. "There may be a chill coming from the offices of counsel that may hit the editorial officers."

Bruce Sanford, a media law expert here, agreed. "Columnists might tend to look for the potential plaintiff before writing a column, and avoid people they feel will be litigious," he said.

He said the decision could also affect regular news coverage as editors afraid of lawsuits excise colorful quotations that might be libelous.

But George R. Kaufman of the Libel Defense Resource Center said the ruling was "not an unmitigated disaster. There's a lot there that still provides First Amendment protection."

The "big battle ground" in future cases, he said, will be whether "lower courts will read this as freeing them to send more cases to the jury" rather than dismiss them at an early stage of the litigation.

Rehnquist said the issue in the case was whether a "reasonable factfinder" would conclude that the column implied that Milkovich "perjured himself in a judicial proceeding."

He said a reader would draw that conclusion. "This is not the sort of loose, figurative or hyperbolic language which would negate the impression that the writer was seriously maintaining {Milkovich} committed the crime or perjury . . .We also think the connotation that {he} committed perjury is sufficiently factual to be susceptible of being proved true or false."

Brennan and Marshall disagreed with that interpretation of the column, saying it was "patently conjecture" about Milkovich's testimony at the hearing rather than a factual assertion that he perjured himself.

"Punishing such conjecture protects reputation only at the cost of expunging a genuinely useful mechanism for public debate," Brennan said.

In other action yesterday, the court ruled 6 to 3 that evidence seized by police who search a home without a warrant can be used at trial if the police were admitted by someone they reasonably believed had the authority to consent to the search -- even if it turns out later that they were wrong. The case is Illinois v. Rodriguez.

Dividing 5 to 4, the court refused to apply retroactively a 1985 ruling that prosecutors in death penalty cases cannot make comments that encourage juries to believe they do not shoulder the responsibility for imposing capital punishment. The decision is Sawyer v. Smith.

Excerpts from column by J. Theodore Diadiun in the Lake County News-Journal:

"To anyone who was at the meet, it need only be said that the Maple coach's wild gestures during the events leading up to the brawl were passed off by the {Coach Michael Milkovich and H. Donald Scott, the school superintendent} as 'shrugs,' and that Milkovich claimed he was 'Powerless to control the crowd' before the melee . . .

". . . by the time the hearing before Judge Martin rolled around, Milkovich and Scott apparently had their own version of the incident polished and reconstructed, and the judge apparently believed them . . .

"Anyone who attended the meet, whether he be from Maple Heights, Mentor, or an impartial observer, knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth.

"But they got away with it.

"Is that the kind of lesson we want our young people learning from their high school administrators and coaches?

"I think not."