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- PRESS, Page 62Matters of Fact
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- The court considers whether untrue opinions are libelous
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- Is calling someone a liar nothing more than a statement of
- opinion? And if so, is that opinion protected by the
- Constitution -- even if rooted in falsehood? These questions
- are central to a pending Supreme Court decision that may
- establish the extent to which journalists and others are
- accountable for airing their most passionate beliefs.
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- The case revolves around a 1974 brawl at a high school
- wrestling match in Lake County, Ohio. As a result of that
- fracas, former wrestling coach Michael Milkovich was officially
- censured and his team put on probation. The penalties, however,
- were set aside after a court hearing. That led indignant sports
- columnist J. Theodore Diadiun to write in the Lake County
- News-Herald: "Anyone who attended the meet . . . knows in his
- heart that Milkovich and [school superintendent H. Donald]
- 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?"
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- Milkovich read Diadiun's article as an accusation of
- perjury. Diadiun argues that it is not about perjury but about
- the responsibility of an educator to set a moral example and
- to take responsibility for his actions. Even the basic facts
- remain in dispute. The coach says he shrugged at a decision
- disqualifying one of his wrestlers; the writer claims the coach
- made "wild gestures," thereby precipitating the melee.
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- If the Supreme Court decides that Diadiun's column was
- essentially a statement of opinion, the facts will become moot.
- Harmful opinions, said the court in a famous 1974 decision,
- could not be corrected by judges and juries, but only through
- "the competition of other ideas." At the same time, however,
- the Justices found no redeeming value in "false statements of
- fact," implying that fact and opinion are quite separable, even
- though the court did not say how.
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- For Milkovich's side, the legal issue is straightforward.
- "If the language is defamatory and may be proved false, it is
- plainly actionable," insists Milkovich's attorney, Brent
- English. Diadiun's supporters argue that making isolated facts
- in an article of opinion vulnerable to defamation damages would
- inhibit editorialists from arguing that a crook was wrongly
- found innocent, or sportswriters from criticizing questionable
- calls by umpires and referees. However, the Supreme Court --
- reluctant to resolve the opinion-fact dilemma in the past --
- could decide the case in a way that once again sidesteps the
- issue.
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- Lawyers and philosophers thrive on legal puzzles. Most
- journalists wish they would go away. But with publications
- increasingly mixing reportage and commentary, and with juries
- eager to reward those skewered by the press -- as evidenced by
- the $34 million awarded last month to a lawyer who sued the
- Philadelphia Inquirer, even though that award may well be
- reduced or overturned on appeal -- libel threats are not a
- matter that news organizations can ignore.
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- The issues in this case, though, have less to do with legal
- hairsplitting than with basic sentiments about the value of
- free expression and the press. A belief in the virtue of an
- unshackled and vigorous press means recognizing that the leeway
- demanded by free debate will sometimes allow writers to
- overreach their knowledge, or even to trample the truth.
- However, if one believes that uninhibited speech is dangerous
- or that the press too frequently serves up sensationalistic
- trash, one takes the opposite view.
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- Nonetheless, anyone who has ever endured a public insult can
- understand why juries act as they do. Words hurt. Juries cannot
- alleviate pain, but they can, for vengeance's sake, exact a
- pound of flesh. Their motivation for doing so is reinforced by
- the perceived indifference of the press to individuals' rights
- and sensibilities. Though many newspapers have established
- corrections policies, few offer the aggrieved a hearing before
- an impartial arbiter. No arbitration process will stave off all
- lawsuits, of course. But until more news organizations create
- other remedies for the aggrieved, they and their attorneys will
- constantly be in court, hoping for a sympathetic hearing from
- judges and juries who are far from convinced that the press
- is really on the side of the angels.
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- By Ellis Cose.
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