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Subject: 89-645--OPINION, MILKOVICH v. LORAIN JOURNAL CO.




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-645



MICHAEL MILKOVICH, Sr., PETITIONER v. LORAIN JOURNAL CO. et al.

on writ of certiorari to the court of appeals of ohio, lake county

[June 21, 1990]



    Chief Justice Rehnquist delivered the opinion of the Court.

    Respondent J. Theodore Diadiun authored an article in an Ohio newspaper
implying that petitioner Michael Milkovich, a local high school wrestling
coach, lied under oath in a judicial proceeding about an incident involving
petitioner and his team which occurred at a wrestling match.  Petitioner
sued Diadiun and the newspaper for libel, and the Ohio Court of Appeals
affirmed a lower court entry of summary judgment against petitioner.  This
judgment was based in part on the grounds that the article constituted an
"opinion" protected from the reach of state defamation law by the First
Amendment to the United States Constitution.  We hold that the First
Amendment does not prohibit the application of Ohio's libel laws to the
alleged defamations contained in the article.   This case is before us for
the third time in an odyssey of litigation spanning nearly 15 years. {1}
Petitioner Milkovich, now retired, was the wrestling coach at Maple Heights
High School in Maple Heights, Ohio.  In 1974, his team was involved in an
altercation at a home wrestling match with a team from Mentor High School.
Several people were injured.  In response to the incident, the Ohio High
School Athletic Association (OHSAA) held a hearing at which Milkovich and
H. Don Scott, the Superintendent of Maple Heights Public Schools,
testified.  Following the hearing, OHSAA placed the Maple Heights team on
probation for a year and declared the team ineligible for the 1975 state
tournament.  OSHAA also censored Milkovich for his actions during the
altercation.  Thereafter, several parents and wrestlers sued OHSAA in the
Court of Common Pleas of Franklin County, Ohio, seeking a restraining order
against OHSAA's ruling on the grounds that they had been denied due process
in the OHSAA proceeding.  Both Milkovich and Scott testified in that
proceeding.  The court overturned OHSAA's probation and ineligibility
orders on due process grounds.
    The day after the court rendered its decision, respondent Diadiun's
column appeared in the News-Herald, a newspaper which circulates in Lake
County, Ohio, and is owned by respondent Lorain Journal Co.  The column
bore the heading "Maple beat the law with the `big lie,' " beneath which
appeared Diadun's photograph and the words "TD Says."  The carryover page
headline announced " . . .  Diadiun says Maple told a lie."  The column
contained the following passages:

    " `. . .  a lesson was learned (or relearned) yesterday by the student
body of Maple Heights High School, and by anyone who attended the
Maple-Mentor wrestling meet of last Feb. 8.
    " `A lesson which, sadly, in view of the events of the past year, is
well they learned early.
    " `It is simply this: If you get in a jam, lie your way out.
    " `If you're successful enough, and powerful enough, and can sound
sincere enough, you stand an excellent chance of making the lie stand up,
regardless of what really happened.
    " `The teachers responsible were mainly Maple wrestling coach, Mike
Milkovich, and former superintendent of schools, H. Donald Scott.


    " `Anyone who attended the meet, whether he be from Maple Heights,
Mentor, or impartial observer, knows in his heart that Milkovich and Scott
lied at the hearing after each having given his solemn oath to tell the
truth.   " `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."  See Milkovich v. The News-Herald, 46 Ohio App. 3d 20,
21, 545 N. E. 2d 1320, 1321-1322 (1989). {2}


    Petitioner commenced a defamation action against respondents in the
Court of Common Pleas of Lake County, Ohio, alleging that the headline of
Diadiun's article and the 9 passages quoted above "accused plaintiff of
committing the crime of perjury, an indictable offense in the State of
Ohio, and damaged plaintiff directly in his life-time occupation of coach
and teacher, and constituted libel per se."  App. 12.  The action proceeded
to trial, and the court granted a directed verdict to respondents on the
grounds that the evidence failed to establish the article was published
with "actual malice" as required by New York Times Co. v. Sullivan, 376 U.
S. 254 (1964).  See App. 21-22.  The Ohio Court of Appeals for the Eleventh
Appellate District reversed and remanded, holding that there was sufficient
evidence of actual malice to go to the jury.  See Milkovich v. The Lorain
Journal, 65 Ohio App. 2d 143, 416 N. E. 2d 662 (1979).  The Ohio Supreme
Court dismissed the ensuing appeal for want of a substantial constitutional
question, and this Court denied certiorari.  449 U. S. 966 (1980).
    On remand, relying in part on our decision in Gertz v. Robert Welch,
Inc., 418 U. S. 323 (1974), the trial court granted summary judgment to
respondents on the grounds that the article was an opinion protected from a
libel action by "constitutional law," App. 55, and alternatively, as a
public figure, petitioner had failed to make out a prima facie case of
actual malice.  App. 55-59.  The Ohio Court of Appeals affirmed both
determinations.  Id., at, 62-70.  On appeal, the Supreme Court of Ohio
reversed and remanded.  The court first decided that petitioner was neither
a public figure nor a public official under the relevant decisions of this
Court.  See Milkovich v. News-Herald, 15 Ohio St. 3d 292, 294-299, 473 N.
E. 2d 1191, 1193-1196 (1984).  The court then found that "the statements in
issue are factual assertions as a matter of law, and are not
constitutionally protected as the opinions of the writer. . . . The plain
import of the author's assertions is that Milkovich, inter alia, committed
the crime of perjury in a court of law."  Id., at 298-299, 473 N. E. 2d, at
1196-1197.  This Court again denied certiorari.  474 U. S. 953 (1985).
    Meanwhile, Superintendent Scott had been pursuing a separate defamation
action through the Ohio courts.  Two years after its Milkovich decision, in
considering Scott's appeal, the Ohio Supreme Court reversed its position on
Diadiun's article, concluding that the column was "constitutionally
protected opinion."  Scott v. News-Herald, 25 Ohio St. 3d 243, 254, 496 N.
E. 2d 699, 709 (1986).  Consequently, the court upheld a lower court's
grant of summary judgment against Scott.
    The Scott court decided that the proper analysis for determining
whether utterances are fact or opinion was set forth in the decision of the
United States Court of Appeals for the D. C. Circuit in Ollman v. Evans,
242 U. S. App. D. C. 301, 750 F. 2d 970 (1984), cert. denied, 471 U. S.
1127 (1985).  See Scott, 25 Ohio St. 3d, at 250, 496 N. E. 2d, at 706.
Under that analysis, four factors are considered to ascertain whether,
under the "totality of circumstances," a statement is fact or opinion.
These factors are: (1) "the specific language used"; (2) "whether the
statement is verifiable"; (3) "the general context of the statement"; and
(4) "the broader context in which the statement appeared."  Id., at 706.
The court found that application of the first two factors to the column
militated in favor of deeming the challenged passages actionable assertions
of fact.  Id., at 250-252, 496 N. E. 2d, at 706-707.  That potential
outcome was trumped, however, by the court's consideration of the third and
fourth factors.  With respect to the third factor, the general context, the
court explained that "the large caption `TD Says' . . . would indicate to
even the most gullible reader that the article was, in fact, opinion."
Id., at 252, 496 N. E. 2d, at 707. {3}  As for the fourth factor, the
"broader context," the court reasoned that because the article appeared on
a sports page--"a traditional haven for cajoling, invective, and
hyperbole"--the article would probably be construed as opinion.  Id., at
253-254, 496 N. E. 2d, at 708. {4}
    Subsequently, considering itself bound by the Ohio Supreme Court's
decision in Scott, the Ohio Court of Appeals in the instant proceedings
affirmed a trial court's grant of summary judgment in favor of respondents,
concluding that "it has been decided, as a matter of law, that the article
in question was constitutionally protected opinion."  Milkovich v.
News-Herald, 46 Ohio App. 3d 20, at 23, 545 N. E. 2d at, 1324.  The Supreme
Court of Ohio dismissed petitioner's ensuing appeal for want of a
substantial constitutional question.  App. 119.  We granted certiorari, 493
U. S. ---- (1990), to consider the important questions raised by the Ohio
courts' recognition of a constitutionally-required "opinion" exception to
the application of its defamation laws.  We now reverse. {5}   Since the
latter half of the 16th century, the common law has afforded a cause of
action for damage to a person's reputation by the publication of false and
defamatory statements.  See L. Eldredge, Law of Defamation 5 (1978).
    In Shakespeare's Othello, Iago says to Othello:

"Good name in man and woman, dear my lord.
Is the immediate jewel of their souls.
Who steals my purse steals trash;
`Tis something, nothing;
`Twas mine, `tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed."  Act III, scene 3.


Defamation law developed not only as a means of allowing an individual to
vindicate his good name, but also for the purpose of obtaining redress for
harm caused by such statements.  Eldredge, supra, at 5.  As the common law
developed in this country, apart from the issue of damages, one usually
needed only allege an unprivileged publication of false and defamatory
matter to state a cause of action for defamation.  See, e. g., Restatement
of Torts MDRV 558 (1938); Gertz v. Robert Welch, Inc., 418 U. S., at 370
(White, J., dissenting) ("Under typical state defamation law, the defamed
private citizen had to prove only a false publication that would subject
him to hatred, contempt, or ridicule").  The common law generally did not
place any additional restrictions on the type of statement that could be
actionable.  Indeed, defamatory communications were deemed actionable
regardless of whether they were deemed to be statements of fact or opinion.
See, e. g., Restatement of Torts, supra, 15 565-567.  As noted in the 1977
Restatement (Second) of Torts MDRV 566, Comment a:

"Under the law of defamation, an expression of opinion could be defamatory
if the expression was sufficiently derogatory of another as to cause harm
to his reputation, so as to lower him in the estimation of the community or
to deter third persons from associating or dealing with him. . . .  The
expression of opinion was also actionable in a suit for defamation, despite
the normal requirement that the communication be false as well as
defamatory. . . .  This position was maintained even though the truth or
falsity of an opinion--as distinguished from a statement of fact--is not a
matter that can be objectively determined and truth is a complete defense
to a suit for defamation."


    However, due to concerns that unduly burdensome defamation laws could
stifle valuable public debate, the privilege of "fair comment" was
incorporated into the common law as an affirmative defense to an action for
defamation.  "The principle of `fair comment' afford[ed] legal immunity for
the honest expression of opinion on matters of legitimate public interest
when based upon a true or privileged statement of fact."  1 F. Harper & F.
James, Law of Torts MDRV 5.28, p. 456 (1956) (footnote omitted).  As this
statement implies, comment was generally privileged when it concerned a
matter of public concern, was upon true or privileged facts, represented
the actual opinion of the speaker, and was not made solely for the purpose
of causing harm.  See Restatement of Torts, supra, MDRV 606.  "According to
the majority rule, the privilege of fair comment applied only to an
expression of opinion and not to a false statement of fact, whether it was
expressly stated or implied from an expression of opinion."  Restatement
(Second) of Torts, supra, MDRV 566 Comment a.  Thus under the common law,
the privilege of "fair comment" was the device employed to strike the
appropriate balance between the need for vigorous public discourse and the
need to redress injury to citizens wrought by invidious or irresponsible
speech.
    In 1964, we decided in New York Times Co. v. Sullivan, 376 U. S. 254,
that the First Amendment to the United States Constitution placed limits on
the application of the state law of defamation.  There the Court recognized
the need for "a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made with `actual
malice'--that is, with knowledge that it was false or with reckless
disregard of whether it was false or not."  376 U. S., at 279-280.  This
rule was prompted by a concern that, with respect to the criticism of
public officials in their conduct of governmental affairs, a state law "
`rule compelling the critic of official conduct to guarantee the truth of
all his factual assertions' would deter protected speech."  Gertz v. Robert
Welch, Inc., 418 U. S., at 334 (quoting New York Times, supra, at 279).
    Three years later, in Curtis Publishing Co. v. Butts, 388 U. S. 130
(1967), a majority of the Court determined "that the New York Times test
should apply to criticism of `public figures' as well as `public
officials.'  The Court extended the constitutional privilege announced in
that case to protect defamatory critcism of nonpublic persons `who are
nevertheless intimately involved in the resolution of important public
questions or, by reason of their fame, shape events in areas of concern to
society at large.' "  Gertz, supra, at 336-337 (quoting Butts, 388 U. S.,
at 164 (Warren, C. J., concurring in result)).  As Chief Justice Warren
noted in concurrence, "[o]ur citizenry has a legitimate and substantial
interest in the conduct of such persons, and freedom of the press to engage
in uninhibited debate about their involvement in public issues and events
is as crucial as it is in the case of `public officials.' "  Butts, supra,
at 164.  The Court has also determined that both for public officials and
public figures, a showing of New York Times malice is subject to a clear
and convincing standard of proof.  Gertz, supra, at 342.
    The next step in this constitutional evolution was the Court's
consideration of a private individual's defamation actions involving
statements of public concern.  Although the issue was intially in doubt,
see Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), the Court
ultimately concluded that the New York Times malice standard was
inappropriate for a private person attempting to prove he was defamed on
matters of public interest.  Gertz v. Robert Welch, Inc., supra.  As we
explained:

"Public officials and public figures usually enjoy significantly greater
access to the channels of effective communication and hence have a more
realistic opportunity to counteract false statements than private
individuals normally enjoy.



    "[More important,] public officials and public figures have voluntarily
exposed themselves to increased risk of injury from defamatory falsehood
concerning them.  No such assumption is justified with respect to a private
individual."  Id., at 344-345 (footnote omitted).


Nonetheless, the Court believed that certain significant constitutional
protections were warranted in this area.  First, we held that the States
could not impose liability without requiring some showing of fault.  See
id., at 347-348 ("This approach . . . recognizes the strength of the
legitimate state interest in compensating private individuals for wrongful
injury to reputation, yet shields the press and broadcast media from the
rigors of strict liability for defamation").  Second, we held that the
States could not permit recovery of presumed or punitive damages on less
than a showing of New York Times malice.  See id., at 350 ("Like the
doctrine of presumed damages, jury discretion to award punitive damages
unnecessarily exacerbates the danger of media self- censorship . . .").
    Still later, in Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767
(1986), we held "that the common-law presumption that defamatory speech is
false cannot stand when a plaintiff seeks damages against a media defendant
for speech of public concern."  475 U. S., at 777.  In other words, the
Court fashioned "a constitutional requirement that the plaintiff bear the
burden of showing falsity, as well as fault, before recovering damages."
Id., at 776.  Although recognizing that "requiring the plaintiff to show
falsity will insulate from liability some speech that is false, but
unprovably so," the Court believed that this result was justified on the
grounds that "placement by state law of the burden of proving truth upon
media defendants who publish speech of public concern deters such speech
because of the fear that liability will unjustifiably result."  Id., at
777-778.
    We have also recognized constitutional limits on the type of speech
which may be the subject of state defamation actions.  In Greenbelt
Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970), a real
estate developer had engaged in negotiations with a local city council for
a zoning variance on certain of his land, while simultaneously negotiating
with the city on other land the city wished to purchase from him.  A local
newspaper published certain articles stating that some people had
characterized the developer's negotiating position as "blackmail," and the
developer sued for libel.  Rejecting a contention that liability could be
premised on the notion that the word "blackmail" implied the developer had
committed the actual crime of blackmail, we held that "the imposition of
liability on such a basis was constitutionally impermissible-- that as a
matter of constitutional law, the word `blackmail' in these circumstances
was not slander when spoken, and not libel when reported in the Greenbelt
News Review."  Id., at 13.  Noting that the published reports "were
accurate and full," the Court reasoned that "even the most careless reader
must have perceived that the word was no more than rhetorical hyperbole, a
vigorous epithet used by those who considered [the developer's] negotiating
position extremely unreasonable."  Id., at 13-14.  See also Hustler
Magazine, Inc. v. Falwell, 485 U. S. 46, 50 (1988) (First Amendment
precluded recovery under state emotional distress action for ad parody
which "could not reasonably have been interpreted as stating actual facts
about the public figure involved"); Letter Carriers v. Austin, 418 U. S.
264, 284-286 (1974) (use of the word "traitor" in literary definition of a
union "scab" not basis for a defamation action under federal labor law
since used "in a loose, figurative sense" and was "merely rhetorical
hyperbole, a lusty and imaginative expression of the contempt felt by union
members").
    The Court has also determined "that in cases raising First Amendment
issues . . . an appellate court has an obligation to `make an independent
examination of the whole record' in order to make sure that `the judgment
does not constitute a forbidden intrusion on the field of free expression.'
"  Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499
(1984) (quoting New York Times, 376 U. S., at 284-286).  "The question
whether the evidence in the record in a defamation case is sufficient to
support a finding of actual malice is a question of law."  Harte-Hanks
Communications, Inc. v. Connaughton, 491 U. S., ----, ---- (1989).
    Respondents would have us recognize, in addition to the established
safeguards discussed above, still another First Amendment-based protection
for defamatory statements which are categorized as "opinion" as opposed to
"fact."  For this proposition they rely principally on the following dictum
from our opinion in Gertz:
"Under the First Amendment there is no such thing as a false idea.  However
pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries but on the competition of other ideas.  But
there is no constitutional value in false statements of fact."  418 U. S.,
at 339-340 (footnote omitted).


Judge Friendly appropriately observed that this passage "has become the
opening salvo in all arguments for protection from defamation actions on
the ground of opinion, even though the case did not remotely concern the
question."  Cianci v. New Times Publishing Co., 639 F. 2d 54, 61 (CA 2
1980).  Read in context, though, the fair meaning of the passage is to
equate the word "opinion" in the second sentence with the word "idea" in
the first sentence.  Under this view, the language was merely a reiteration
of Justice Holmes' classic "marketplace of ideas" concept.  See Abrams v.
United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting) ("[T]he
ultimate good desired is better reached by free trade in ideas . . . the
best test of truth is the power of the thought to get itself accepted in
the competition of the market").
    Thus we do not think this passage from Gertz was intended to create a
wholesale defamation exemption for anything that might be labeled
"opinion."  See Cianci, supra, at 62, n. 10 (The "marketplace of ideas"
origin of this passage "points strongly to the view that the `opinions'
held to be constitutionally protected were the sort of thing that could be
corrected by discussion").  Not only would such an interpretation be
contrary to the tenor and context of the passage, but it would also ignore
the fact that expressions of "opinion" may often imply an assertion of
objective fact.
    If a speaker says, "In my opinion John Jones is a liar," he implies a
knowledge of facts which lead to the conclusion that Jones told an untruth.
Even if the speaker states the facts upon which he bases his opinion, if
those facts are either incorrect or incomplete, or if his assessment of
them is erroneous, the statement may still imply a false assertion of fact.
Simply couching such statements in terms of opinion does not dispel these
implications; and the statement, "In my opinion Jones is a liar," can cause
as much damage to reputation as the statement, "Jones is a liar."  As Judge
Friendly aptly stated: "[It] would be destructive of the law of libel if a
writer could escape liability for accusations of [defamatory conduct]
simply by using, explicitly or implicitly, the words `I think.' "  See
Cianci, supra, at 64.  It is worthy of note that at common law, even the
privilege of fair comment did not extend to "a false statement of fact,
whether it was expressly stated or implied from an expression of opinion."
Restatement (Second) of Torts, supra, MDRV 566 Comment a.
    Apart from their reliance on the Gertz dictum, respondents do not
really contend that a statement such as, "In my opinion John Jones is a
liar," should be protected by a separate privilege for "opinion" under the
First Amendment.  But they do contend that in every defamation case the
First Amendment mandates an inquiry into whether a statement is "opinion"
or "fact," and that only the latter statements may be actionable.  They
propose that a number of factors developed by the lower courts (in what we
hold was a mistaken reliance on the Gertz dictum) be considered in deciding
which is which.  But we think the " `breathing space' " which " `freedoms
of expression require in order to survive,' " Hepps, 475 U. S., at 772
(quoting New York Times, 376 U. S., at 272), is adequately secured by
existing constitutional doctrine without the creation of an artificial
dichotomy between "opinion" and fact.
    Foremost, we think Hepps stands for the proposition that a statement on
matters of public concern must be provable as false before there can be
liability under state defamation law, at least in situations, like the
present, where a media defendant is involved. {6}  Thus, unlike the
statement, "In my opinion Mayor Jones is a liar," the statement, "In my
opinion Mayor Jones shows his abysmal ignorance by accepting the teachings
of Marx and Lenin," would not be actionable.  Hepps ensures that a
statement of opinion relating to matters of public concern which does not
contain a provably false factual connotation will receive full
constitutional protection. {7}
    Next, the Bresler-Letter Carriers-Falwell line of cases provide
protection for statements that cannot "reasonably [be] interpreted as
stating actual facts" about an individual.  Falwell, 485 U. S., at 50.
This provides assurance that public debate will not suffer for lack of
"imaginative expression" or the "rhetorical hyperbole" which has
traditionally added much to the discourse of our Nation.  See id., at
53-55.
    The New York Times-Butts and Gertz culpability requirements further
ensure that debate on public issues remains "uninhibited, robust, and
wide-open," New York Times, 376 U. S., at 270.  Thus, where a statement of
"opinion" on a matter of public concern reasonably implies false and
defamatory facts regarding public figures or officials, those individuals
must show that such statements were made with knowledge of their false
implications or with reckless disregard of their truth.  Similarly, where
such a statement involves a private figure on a matter of public concern, a
plaintiff must show that the false connotations were made with some level
of fault as required by Gertz. {8}  Finally, the enhanced appellate review
required by Bose Corp., provides assurance that the foregoing
determinations will be made in a manner so as not to "constitute a
forbidden intrusion of the field of free expression."  Bose, 466 U. S., at
499 (quotation omitted).
    We are not persuaded that, in addition to these protections, an
additional separate constitutional privilege for "opinion" is required to
ensure the freedom of expression guaranteed by the First Amendment.  The
dispositive question in the present case then becomes whether or not a
reasonable factfinder could conclude that the statements in the Diadiun
column imply an assertion that petitioner Milkovich perjured himself in a
judicial proceeding.  We think this question must be answered in the
affirmative.  As the Ohio Supreme Court itself observed, "the clear impact
in some nine sentences and a caption is that [Milkovich] `lied at the
hearing after . . . having given his solemn oath to tell the truth.' "
Scott, 25 Ohio St. 3d, at 251, 496 N. E. 2d, at 707.  This is not the sort
of loose, figurative or hyperbolic language which would negate the
impression that the writer was seriously maintaining petitioner committed
the crime of perjury.  Nor does the general tenor of the article negate
this impression.
    We also think the connotation that petitioner committed perjury is
sufficiently factual to be susceptible of being proved true or false.  A
determination of whether petitioner lied in this instance can be made on a
core of objective evidence by comparing, inter alia, petitioner's testimony
before the OSHAA board with his subsequent testimony before the trial
court.  As the Scott court noted regarding the plaintiff in that case,
"[w]hether or not H. Don Scott did indeed perjure himself is certainly
verifiable by a perjury action with evidence adduced from the transcripts
and witnesses present at the hearing.  Unlike a subjective assertion the
averred defamatory language is an articulation of an objectively verifiable
event."  25 Ohio St. 3d, at 252, 496 N. E. 2d, at 707.  So too with
petitioner Milkovich. {9}
    The numerous decisions discussed above establishing First Amendment
protection for defendants in defamation actions surely demonstrate the
Court's recognition of the Amendment's vital guarantee of free and
uninhibited discussion of public issues.  But there is also another side to
the equation; we have regularly acknowledged the "important social values
which underlie the law of defamation," and recognize that "[s]ociety has a
pervasive and strong interest in preventing and redressing attacks upon
reputation."  Rosenblatt v. Baer, 383 U. S. 75, 86 (1966).  Justice Stewart
in that case put it with his customary clarity:

"The right of a man to the protection of his own reputation from
unjustified invasion and wrongful hurt reflects no more than our basic
concept of the essential dignity and worth of every human being--a concept
at the root of any decent system of ordered liberty.




"The destruction that defamatory falsehood can bring is, to be sure, often
beyond the capacity of the law to redeem.  Yet, imperfect though it is, an
action for damages is the only hope for vindication or redress the law
gives to a man whose reputation has been falsely dishonored."  Id., at
92-93 (Stewart, J., concurring).


    We believe our decision in the present case holds the balance true.
The judgment of the Ohio Court of Appeals is reversed and the case remanded
for further proceedings not inconsistent with this opinion.
Reversed.







------------------------------------------------------------------------------
1
    The Court has previously denied certiorari twice in this case on
various judgments rendered by the Ohio courts.  See 474 U. S. 953 (1985);
449 U. S. 966 (1980).

2
    In its entirety, the article reads as follows:
    "Yesterday in the Franklin County Common Pleas Court, judge Paul Martin
overturned an Ohio High School Athletic Assn. decision to suspend the Maple
Heights wrestling team from this year's state tournament.
    "It's not final yet--the judge granted Maple only a temporary
injunction against the ruling--but unless the judge acts much more quickly
than he did in this decision (he has been deliberating since a Nov. 8
hearing) the temporary injunction will allow Maple to compete in the
tournament and make any further discussion meaningless.
    "But there is something much more important involved here than whether
Maple was denied due process by the OHSAA, the basis of the temporary
injunction.
    "When a person takes on a job in a school, whether it be as a teacher,
coach, administrator or even maintenance worker, it is well to remember
that his primary job is that of educator.
    "There is scarcely a person concerned with school who doesn't leave his
mark in some way on the young people who pass his way--many are the lessons
taken away from school by students which weren't learned from a lesson plan
or out of a book.  They come from personal experiences with and
observations of their superiors and peers, from watching actions and
reactions.
    "Such a lesson was learned (or relearned) yesterday by the student body
of Maple Heights High School, and by anyone who attended the Maple- Mentor
wrestling meet of last Feb. 8.
    "A lesson which, sadly, in view of the events of the past year, is well
they learned early.
    "It is simply this: If you get in a jam, lie your way out.
    "If you're successful enough, and powerful enough, and can sound
sincere enough, you stand an excellent chance of making the lie stand up,
regardless of what really happened.
    "The teachers responsible were mainly head Maple wrestling coach Mike
Milkovich and former superintendent of schools H. Donald Scott.
    "Last winter they were faced with a difficult situation.  Milkovich's
ranting from the side of the mat and egging the crowd on against the meet
official and the opposing team backfired during a meet with Greater
Cleveland Conference rival Metor [sic], and resulted in first the Maple
Heights team, then many of the partisan crowd attacking the Mentor squad in
a brawl which sent four Mentor wrestlers to the hospital.
    "Naturally, when Mentor protested to the governing body of high school
sports, the OHSAA, the two men were called on the carpet to account for the
incident.
    "But they declined to walk into the hearing and face up to their
responsibilities, as one would hope a coach of Milkovich's accomplishments
and reputation would do, and one would certainly expect from a man with the
responsible poisition [sic] of superintendent of schools.
    "Instead they chose to come to the hearing and misrepresent the things
that happened to the OHSAA Board of Control, attempting not only to
convince the board of their own innocence, but, incredibly, shift the blame
of the affair to Mentor.
    "I was among the 2,000-plus witnesses of the meet at which the trouble
broke out, and I also attended the hearing before the OHSAA, so I was in a
unique position of being the only non-involved party to observe both the
meet itself and the Milkovich-Scott version presented to the board.
    "Any resemblance between the two occurrances [sic] is purely
coincidental.
    "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 two as `shrugs,' and that Milkovich claimed he was `Powerless to
control the crowd' before the melee.
    "Fortunately, it seemed at the time, the Milkovich-Scott version of the
incident presented to the board of control had enough contradictions and
obvious untruths so that the six board members were able to see through
it.
    "Probably as much in distasteful reaction to the chicanery of the two
officials as in displeasure over the actual incident, the board then voted
to suspend Maple from this year's tournament and to put Maple Heights, and
both Milkovich and his son, Mike Jr. (the Maple Jaycee coach), on two-year
probation.
    "But unfortunately, by the time the hearing before Judge Martin rolled
around, Milkovich and Scott apparently had their version of the incident
polished and reconstructed, and the judge apparently believed them.
    " `I can say that some of the stories told to the judge sounded pretty
darned unfamiliar,' said Dr. Harold Meyer, commissioner of the OHSAA, who
attended the hearing.  `It certainly sounded different from what they told
us.'
    "Nevertheless, the judge bought their story, and ruled in their favor.
    Anyone who attended the meet, whether he be from Maple Heights, Mentor,
or impartial observer, knows in his heart that Milkovich and Scott lied at
the 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."

3
    The court continued:

"This position is borne out by the second headline on the continuation of
the article which states: `. . .  Diadiun says Maple told a lie.' . . . The
issue, in context, was not the statement that there was a legal hearing and
Milko vich and Scott lied.  Rather, based upon Diadiun's having witnessed
the original altercation and OHSAA hearing, it was his view that any
position represented by Milkovich and Scott less than a full admission of
culpability was, in his view, a lie. . . . A review of the context of the
statements in question demonstrates that Diadiun is not making an attempt
to be impartial and no secret is made of his bias. . . .  While Diadiun's
mind is certainly made up, the average reader viewing the words in their
internal context would be hard pressed to accept Diadiun's statements as an
impartial reporting of perjury."  Scott, 25 Ohio St. 3d, at 252-253, 496 N.
E. 2d, at 707-708 (emphasis in original).

4
    Specifically, the court reasoned as follows:

"It is important to recognize that Diadiun's article appeared on the sports
page--a traditional haven for cajoling, invective, and hyperbole. . . . In
this broader context we doubt that a reader would assign the same weight to
Diadiun's statement as if it had appeared under the byline `Law
Correspondent' on page one of the newspaper. . . . On balance . . . a
reader would not expect a sports writer on the sports page to be
particularly knowledgeable about procedural due process and perjury.  It is
our belief that `legal conclusions' in such a context would probably be
construed as the writer's opinion."  Scott, 25 Ohio St. 3d, at 253-254, 496
N. E. 2d, at 708.


5
    Preliminarily, respondents contend that our review of the "opinion"
question in this case is precluded by the Ohio Supreme Court's decision in
Scott, supra.  First, respondents claim that the determination by the Ohio
Supreme Court in Milkovich v. News-Herald, 15 Ohio St. 3d 292, 298, 473 N.
E. 2d 1191, 1196 (1984), that petitioner is not a public official or figure
was overruled in Scott.  Thus, since petitioner has failed to establish
actual malice, his action is precluded under New York Times Co. v.
Sullivan, 376 U. S. 254 (1964) and Curtis Publishing Co. v. Butts, 388 U.
S. 130 (1967).  This contention is meritless.  Respondents rely on the
following statements made by the Ohio Supreme Court in its discussion of
Scott's status as a public official: " `To say that Milkovich nevertheless
was not a public figure for purposes of discussion about the controversy is
simply nonsense,' " Scott, 25 Ohio St. 3d, at 247, 496 N. E. 2d, at 704
(quoting Milkovich v. Lorain Journal Co., et al., 474 U. S. 953, 964 (1985)
(Brennan, J., dissenting from the denial of certiorari)), and "we overrule
Milkovich in its restrictive view of public officials and hold a public
school superintendent is a public official for purposes of defamation law."
Scott, 25 Ohio St. 3d, at 248, 496 N. E. 2d, at 704.  However, it is clear
from the context in which these statements were made that the court was
simply supporting its determination that Scott was a public official, and
that as relates to petitioner Milkovich, these statements were pure dicta.
But more importantly, petitioner Milkovich was not a party to the
proceedings in Scott and thus would not be bound by anything in that ruling
under Ohio law.  See Hainbuchner v. Miner, 31 Ohio St. 3d 133, 137, 509 N.
E. 2d 424, 427 (1987) ("It is universally recognized that a former
judgment, in order to be res judicata in a subsequent action, must have
been rendered in an action in which the parties to the subsequent action
were adverse parties") (quotation omitted).  Since the Ohio Court of
Appeals did not address the public-private figure question on remand from
the Ohio Supreme Court in Milkovich (because it decided against petitioner
on the basis of the opinion ruling in Scott), the ruling of the Ohio
Supreme Court in Milkovich presumably continues to be law of the case on
that issue.  See Hawley v. Ritley, 35 Ohio St. 3d 157, 160, 519 N. E. 2d
390, 393 (1988) ("[T]he decision of a reviewing court in a case remains the
law of that case on the legal questions involved for all subsequent
proceedings in the case at both the trial and reviewing levels").
    Nor is there any merit to respondents' contention that the Court of
Appeals below alternatively decided there was no negligence in this case
even if petitioner were regarded as a private figure, and thus the action
is precluded by our decision in Gertz v. Robert Welch, Inc., 418 U. S. 323
(1974).  Although the appellate court noted that "the instant cause does
not present any material issue of fact as to negligence or `actual malice,'
" Milkovich v. News-Herald, 46 Ohio App. 3d 20, 24, 545 N. E. 2d 1320, 1325
(1989), this statement was immediately explained by the court's following
statement that the Scott ruling on the opinion issue had accorded
respondents' absolute immunity from liability.  See Ibid.  The court never
made an evidentiary determination on the issue of respondents' negligence.
    Next, respondents concede that the Scott court relied on both the
United States Constitution as well as the Ohio Constitution in its
recognition of an  opinion privilege, Brief for Respondent 18, but argue
that certain statements made by the court evidenced an intent to
independently rest the decision on state law grounds, see 25 Ohio St. 3d,
at 244, 496 N. E. 2d, at 701 ("We find the article to be an opinion,
protected by Section 11, Article I of the Ohio Constitution. . . ."); id.,
at 245, 496 N. E. 2d, at 702 ("These ideals are not only an integral part
of First Amendment freedoms under the federal Constitution but are
independently reinforced in Section 11, Article I of the Ohio Constitution
. . ."), thereby precluding federal review under Michigan v. Long, 463 U.
S. 1032 (1983).  We similarly reject this contention.  In the Milkovich
proceedings below, the Court of Appeals relied completely on Scott in
concluding that Diadiun's article was privileged opinion.  See 46 Ohio App.
3d, at 23-25, 545 N. E. 2d, at 1324-1325.  Scott relied heavily on federal
decisions interpreting the scope of First Amendment protection accorded
defamation defendants, see, e. g., 25 Ohio St. 3d, at 244, 496 N. E. 2d, at
701 ("The federal Constitution has been construed to protect published
opinions ever since the United States Supreme Court's opinion in Gertz v.
Robert Welsh, Inc. [, supra] . . ."), and concluded that "[b]ased upon the
totality of circumstances it is our view that Diadiun's article was
constitutionally protected opinion both with respect to the federal
Constitution and under our state Constitution."  25 Ohio St. 3d, at 254,
496 N. E. 2d, at 709.  Thus, the Scott decision was at least "interwoven
with the federal law," was not clear on its face as to the court's intent
to rely on independent state grounds, yet failed to make a "plain statement
. . . that the federal cases . . . [did] not themselves compel the result
that the court . . . reached."  Long, supra, at 1040-1041.  Under Long,
then, federal review is not barred in this case.  We note that the Ohio
Supreme Court remains free, of course, to address all of the foregoing
issues on remand.

6
    In Hepps the Court reserved judgment on cases involving nonmedia
defendants, see 475 U. S., at 779, n. 4, and accordingly we do the same.
Prior to Hepps, of course, where public-official or public-figure
plaintiffs were involved, the New York Times rule already required a
showing of falsity before liability could result.  Id., at 775.

7
    We note that the issue of falsity relates to the defamatory facts
implied by a statement.  For instance, the statement, "I think Jones lied,"
may be provable as false on two levels.  First, that the speaker really did
not think Jones had lied but said it anyway, and second that Jones really
had not lied.  It is, of course, the second level of falsity which would
ordinarily serve as the basis for a defamation action, though falsity at
the first level may serve to establish malice where that is required for
recovery.

8
    Of course, the limitations on presumed or punitive damages established
by New York Times and Gertz also apply to the type of statements at issue
here.

9
    In their brief, amici Dow Jones, et al. urge us to view the disputed
statements "[a]gainst the background of a high profile controversy in a
small community," and says that "[t]hey related to a matter of pressing
public concern in a small town."  Brief for Dow Jones et al. as Amici
Curiae 27.  We do not have the same certainty as do amici that people in a
"small town" view statements such as these differently from people in a
large city.  Be that as it may, however, amici err in their factual
assumption.  Maple Heights is located in Cuyahoga County, Ohio, and in the
1980 census had a population of 29,735.  Mentor is located in Lake County,
Ohio, and in the 1980 census had a population of 42,065.  Lake County
adjoins Cuyahoga County on the east, and in the 1980 census had a
population of 212,801.  Both Maple Heights and Mentor are included in the
Cleveland standard consolidated statistical area, which in 1980 had a
population of 2,834,062.  The high schools of both Mentor and Maple Heights
played in the Greater Cleveland Conference.