Transcript

IN THE SUPREME COURT OF THE UNITED STATES

MICHAEL MILKOVICH, SR., Petitioner v. LORAIN JOURNAL CO., ET AL.

No. 89-645

April 24, 1990

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:10 a.m.

APPEARANCES:

BRENT LAWSON ENGLISH, ESQ., Cleveland, Ohio; on behalf of the Petitioner.

RICHARD D. PANZA, ESQ., Lorain, Ohio; on behalf of the Respondents.

PROCEEDINGS

11:10 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 89-645, Michael Milkovich v. the Lorain Journal Company.

Mr. English, you may proceed whenever you're ready.

ORAL ARGUMENT OF BRENT LAWSON ENGLISH ON BEHALF OF THE PETITIONER

MR. ENGLISH: Mr. Chief Justice, and may it please the Court:

The sole question before the Court this morning with respect to this case is whether false and defamatory statements published about the petitioner by the respondents are entitled to constitutional protection under the First Amendment.

This Court has repeatedly stated that there is no constitutional value in false statements of fact. Yet the Ohio courts below have afforded exactly that protection in this case. This Court has the opportunity to correct that error and to delineate finally how the opinion/fact distinction should be made in the context of defamation law.

QUESTION: Mr. English, do you think that this case involves a matter of public concern?

MR. ENGLISH: Your Honor, not a general matter of public concern, but certainly a matter of public concern as to the local communities involved.

QUESTION: Does it fall under the rubric of the Hepps case?

MR. ENGLISH: Your Honor, I believe it does fall under the rubric of the Hepps case, and had the Hepps case been properly followed by the trial court, clearly this case would have been actionable as opposed to absolutely privileged.

QUESTION: And if it's -- if Hepps applies, then the plaintiff below would have the burden of proving falsity?

MR. ENGLISH: Without a doubt, Your Honor, that is absolutely the case.

QUESTION: And are these statements capable of being proven false?

MR. ENGLISH: Your Honor, these statements are quite capable of being proven false. There are actually four statements unequivocally that could be proven false.

As the Supreme Court of Ohio in the Milkovich decision in late 1984 held, the primary impact of this article is to accuse the petitioner of committing the crime of perjury. The proceeding at which the alleged perjury occurred was of records, stenographically recorded, and clearly the testimony at that proceeding could easily be compared with the statements that Mr. Milkovich had made previously as to the same question. And thus, a reasonable jury could determine whether or not the statements in fact were false or whether they were true.

QUESTION: If that's true, it doesn't much matter whether you label it fact or opinion, does it?

MR. ENGLISH: Your Honor, I would agree with you.

QUESTION: The question is whether you can prove that it's false.

MR. ENGLISH: Clearly this Court in the Hepps case has indicated, at least with reference to private individuals on matters of public concern involving newspapers -- which is exactly the situation that we have here -- that it is the Plaintiff's burden to establish without resort to presumptions that a particular statement is false.

We believe that that can be demonstrated in this instance without difficulty and, therefore, the action should have been allowed to proceed and unquestionably it should not have been protected by the First Amendment.

QUESTION: So -- so you would -- would accept as a definition of opinion is something that cannot be proven true or false?

MR. ENGLISH: Your Honor, I would say that that is a fundamental aspect of the question of opinion. If something cannot be proved true or false, I would suggest to the Court that it could be properly labeled as opinion.

However, as Justice O'Connor has just mentioned, it may not be necessary in this area of the law to even adopt any kind of opinion privilege if we require a defamation plaintiff to affirmatively prove falsity.

But in this case, the allegation is that Mr. Milkovich lied under oath in a judicial proceeding. That is quintessentially an assertion of fact which, if false, should be actionable under the state law of defamation.

However, certain statements, which are very rhetorical or hyperbolic or polemical, which cannot be proved true or false, could easily be characterized as opinion. However, it is the petitioner's judgement that this Court need not reach that question in this case, since based on the Hepps case, Mr. Milkovich can demonstrate his entitlement to at least a jury determination on the question of whether or not this -- these statements were true or false, and unquestionably they were defamatory.

You Honors, as I have pointed out in my brief, there are many instances in the past twenty years, after this Court's decision in Gertz v. Robert Welch, were courts have presumed that there is a broad First Amendment based privilege in the law of defamation. As a result of that presumption, and this Court has never so held, there have been many courts that have developed a series of different formulations as to how that distinction should be made, whether something is an assertion of fact or whether something is a expression of opinion.

Most courts have relied first on the question of whether or not a statement is objectively verifiable. And as I have pointed out in this instance, this statement is unequivocally objectively verifiable.

This is not a situation like, for example, the case Buckley v. Littell decided by the Second Circuit where there was a statement that William F. Buckley was a, quote, "fellow fascist traveler." In that case, the Second Circuit looked at that language and said there is no way that that statement can be in fact verifiable. It is loosely defined words. It is polemical, it is political in nature. And as a result, that statement is not defamatory, or even if defamatory, is not actionable.

However, in the same case, Mr. Buckley was also accused to having committed plagiarism. And the Second Circuit analyzed that question and said that, very much like perjury or an allegation of perjury, is definitely empirically provable, clearly is defamatory, and therefore should be actionable.

So the Second Circuit has certainly recognized that there is an opinion privilege, but that opinion privilege only applies in the area where there is very polemical language, hyperbolae being utilized, and where in context the statement cannot be objectively verified.

In this case, Your Honors, the respondents have contended that this Court has no jurisdiction to decide this case on the grounds that the Ohio Supreme Court has determined that there is an opinion privilege under the Ohio constitution. They cite the case of Michigan v. Long, decided by this Court in 1983, for that proposition. I would like to address that question directly because I think it's important in the context.

The procedural history of this case is somewhat unique. It has had 15 years of litigation in Ohio's courts. There have been three attempts to bring this case to the attention of the United States Supreme Court, the latest and presumably only successful one, being the one sought be the petitioner.

In Michigan v. Long this Court held that where a state court has unequivocally determined an issue on separate adequate and independent state grounds, this Court does not have jurisdiction to decide the question. However, in this case, the decision from which the appeal is taken is from the Ohio Court of Appeals for the Eleventh Appellate District, and not from the Ohio Supreme Court. And the decision of the Ohio Court of Appeals from the Eleventh Appellate District relies nearly exclusively on Federal precedent and also relies on the decision of the Ohio Supreme Court in the accompanying Scott case.

As the Court is aware, the Ohio Supreme Court in -- in a period of yet -- just 15 months has determined, on one hand, that the statements in question in this case are constitutionally protected as opinion under the First Amendment, and then 15 months later determined that the very same statements under the very same facts, but with a different plaintiff, are in fact constitutionally protected or immunized by the First Amendment.

The Ohio Supreme Court did in fact mention on two occasions in its -- in its decision that it was relying in part on the Ohio constitution. However, any fair reading of the Scott case clearly indicates that the Ohio Supreme Court was primarily relying on this Court's decision on Gertz against Robert Welch, decided in 1974, and the veritable flood of cases that have been decided since, presuming that there is this broad First Amendment-based privilege. Therefore --

QUESTION: Is there -- are there any indication on the Ohio cases that state law and First Amendment Federal constitutional law are one and the same so far as the definition of opinion?

MR. ENGLISH: Yes, Your Honor. There are a number of old cases that hold that. However, there are no cases that hold that the --

QUESTION: I mean, how -- not -- not, pre-New York Times v. Sullivan, I assume?

MR. ENGLISH: They are -- they are pre-New York Times v. Sullivan, basically standing for the proposition that the Ohio constitution means essentially the same thing as the First Amendment with respect to freedom of the press.

The two provisions are roughly the same, alchough, ironically enough, the Ohio constitution expressly recognizes that there shall be free speech subject to the right of protection of your reputational interest if you are defamed. Whereas, obviously, the First Amendment says nothing about the state law of defamation.

The Ohio Supreme Court in this case -- in the Scott case, merely relied in part on the Ohio constitution, saying that it was a separate source of authority but quite clearly under the analysis provided in Michigan v. Long, which is frankly a very analogous to this one, this Court has jurisdiction to decide the question.

There are no Ohio cases known to the petitioner that specifically hold that the first -- that the section of the Ohio constitution, Article I, Section 11, provides more protection for freedom of the press than does the First Amendment to the Constitution.

QUESTION: Is the -- is the only language that the Ohio Supreme Court used in Long that -- that justifies the assertion of independent state grounds the phrase that the ideals of the First Amendment are independently reinforced in Section 11, Article I of the Ohio -- is there --

MR. ENGLISH: There is -- I'm -- I'm sorry, Your Honor. That is a statement, and then there is a statement in Justice Locher's opinion for the court that says that the Court is relying on the Ohio constitution as well as the Federal Constitution. There is no question that the Federal constitutional provision is very much interwoven with the Ohio constitutional provision. And thus, it's certainly Petitioner's view that this Court has jurisdiction to decide the scope of, or even the applicability of a First Amendment-based privilege.

Your Honors, if this Court adopts a First Amendment-based opinion privilege, the Petitioner would ask the Court to establish that privilege in a very narrow manner and look to two primary objective factors, as opposed to subjective factors on which the Ohio Supreme Court relied in --

QUESTION: Is this -- is this is -- is this your primary submission, Mr. English, or is your primary submission that there really is no -- no need for a separate First Amendment privilege for opinion?

MR. ENGLISH: Your Honor, I would say that under the Hepps case, after the -- after the Hepps was decided there is no need for a First Amendment-based privilege, period.

However, if the Court acknowledges that a First Amendment-based privilege is necessary in this area, primarily because of the breathing space requirement that the Court has recognized ever since New York Times v. Sullivan, then that privilege should be very narrowly drawn, and it should be objective factors.

Certainly one objective factor is whether or not the statement is objectively verifiable, as Justice O'Connor has pointed out, and certainly which is now a requirement, constitutional requirement, based on the Hepps case.

I would suggest --

QUESTION: Yeah, but Hepps -- in Hepps you still have to -- before you give the jury -- before you -- before a plaintiff can undertake to prove something is false it has to be provable, I guess.

MR. ENGLISH: That's correct, Your Honor.

QUESTION: So -- so you really don't solve much. You still have to figure out whether something is verifiable.

MR. ENGLISH: That's correct, Your Honor. That's a fact question. And, obviously, if something is not verifiable -- if the plaintiff cannot prove what the statement is, the plaintiff, as I read the Hepps case, cannot recover, period. And that's a requirement of the First Amendment --

QUESTION: Well, then --

MR. ENGLISH: -- on speech of public concern.

QUESTION: Well, then, if it isn't verifiable, it's opinion. So you get -- so you end up with the same --

MR. ENGLISH: Your Honor --

QUESTION: -- the same result.

MR. ENGLISH: Your Honor, that -- that is the position that I have advanced in the brief, and I believe that that would adequately protect the competing interest at stake.

This Court has long recognized that there's a -- there's certainly need for a vigorous robust free press. But, however, there is also a need for an individual to be able to recover for reputational damage. And in this case, Mr. Milkovich has been attempting to do so for 15 years and has virtually every constitutional impediment put in his way, and now we have the Supreme Court of Ohio making a decision that on the basis that -- of essentially misconstruing this Article and the specific allocations in it, that this is somehow constitutionally protected opinion.

You need only look at the article to determine what in fact they alleged. The headline is Maple Beat the Law with the "Big Lie." On the inside Diadiun says, "Maple told a lie." Specifically, and I quote, "Anyone who attended the meet, whether he be from Maple Heights, Mentor, or impartial observer," those are the schools involved, "knows in his heart that Milkovich and Scott lied at the hearing after each having given his solemn oath to tell the truth."

This is, Your Honors, quintessentially an assertion of fact which, if false, is the proper subject for a defamation claim.

QUESTION: May I ask you on that point, Mr. English, you say it's quintessentially a question of fact, but isn't it obvious that the author of the statement could not possibly know as a matter of fact what everyone who attended the meet knew in his heart? I mean, isn't this like saying that I was at the meet, and I talked to a lot of people and it's my opinion that everyone at the meet must have had the same view that I had?

MR. ENGLISH: Your Honor, that's a very different statement than what was said in here.

QUESTION: You think he saying as a matter of fact he knows that everyone there knew in his heart that he -- he --

MR. ENGLISH: No, I'm saying --

QUESTION: -- that's verifiable.

MR. ENGLISH: No, I'm not saying that. I think that would be a misconstruction of the article. What Mr. Diadiun has said is that everyone knows in his heart -- he's making this very fundamental thing -- everybody knows that this man lied under oath, and he's specifically asserting that. If you get yourself in a difficult --

QUESTION: Well, there are two different things I'm suggesting. One is the difference between saying the man lied under oath, and the second statement is that the third party who was at the meet knows he lied under oath.

MR. ENGLISH: I agree. I agree. Except --

QUESTION: As to -- that's -- the latter half, was that fact or opinion?

MR. ENGLISH: I would say that it depends on how the article is written. But it could potentially be opinion.

QUESTION: Well, I don't understand why you say it depends on how -- it was written in English, I guess.

(Laughter.)

MR. ENGLISH: Well, I -- I'm not suggesting it was written in Japanese, Your Honor, but --

QUESTION: (Inaudible) says that everyone knows in his heart, that includes the speaker.

MR. ENGLISH: Yes, sir.

QUESTION: That includes the person.

MR. ENGLISH: No -- no question about that.

QUESTION: So that -- that general statement subsumes a statement that I think he lied.

MR. ENGLISH: And that's exactly the gist or the sting of the statement, that Mr. Milkovich lied under oath. You can't read the headlines in this article and the specific allegations --

QUESTION: So the statement that you're relying on is -- is the portion of it which in substance says, I, the author, know he lied.

MR. ENGLISH: That's correct.

QUESTION: And you -- you can disregard the fact that everyone else thought he lied.

MR. ENGLISH: That's correct. What we really have is sort of a mixed assertion of fact and commentary. Part of the article is commentary, no question.

QUESTION: Would it be libelous if he'd said, I believe he lied?

MR. ENGLISH: I don't believe so, Your Honor, Justice -- Judge Friendly in Second Circuit noted in a case that I call the Court's attention to -- it's Cianci v. New Times Publishing -- a very capable analysis of how it is that someone might be able to avoid this opinion/fact distinction by saying, I think, I believe, it's my constitutionally protected opinion that someone lied under oath.

QUESTION: Wait. I'm sorry. You said --

QUESTION: And you'd agreed with that?

QUESTION: -- it would be libelous or it wouldn't be libelous if he said I believe he lied?

MR. ENGLISH: It would be clearly libelous if he said that. That would just be a ruse. It's just an attempt to avoid what is quite obvious.

QUESTION: But you can't avoid it by saying in my opinion he is a liar? I mean, that's the same thing as saying he is a liar.

MR. ENGLISH: I think that is correct, Your Honor.

QUESTION: Oh, I -- I thought you said the opposite.

QUESTION: I think you did say the opposite. Yeah, you had me going there.

MR. ENGLISH: I certainly didn't mean to do so.

(Laughter.)

QUESTION: Supposing he said this, I attended the meeting and I saw these facts and I saw -- then somebody else told me these facts; on the basis of these facts, I think he lied?

MR. ENGLISH: Your Honor, that's a much closer call. That would -- that would raise the opinion/fact formulation at the restatement of tort second as to what --

QUESTION: Well, what -- what do you do with that case? He sets out all the facts on which he bases the opinion and then he expresses -- he says, I think he lied deliberately and committed perjury, which is a felony in Ohio, and my reason for saying that is A, B, C and D, which are all -- A, B, C and D are all accurate. Actionable or not?

MR. ENGLISH: Actionable. I believe it would be actionable. And obviously truth is a defense. If in fact he relied on these individuals, and in fact Mr. Milkovich lied under oath, then he obviously has nothing to worry about. But if he didn't --

QUESTION: You don't agree with the restatement second?

MR. ENGLISH: I do not agree with the restatement second. I think it's way too narrow, and way too --

QUESTION: You have to right not only about the facts, but also about the assessment of the facts --

MR. ENGLISH: That's correct.

QUESTION: -- unless you can -- and the burden's on you. But if you can prove to a jury that that assessment of the facts is -- is not correct, it's libel.

MR. ENGLISH: That's correct. That is exactly correct.

Your Honors, unless the Court has further questions, I would like to reserve the remainder of my time for rebuttal.

QUESTION: Very well, Mr. English.

Mr. Panza, we'll hear now from you.

ORAL ARGUMENT OF RICHARD D. PANZA ON BEHALF OF THE RESPONDENTS

MR. PANZA: Mr. Chief Justice, and may it please the Court:

I'd like to direct the Court's attention to what Respondents initially believe to be an improvident grant of the writ of certiorari. It is hard to imagine a -- absent a verbatim recitation of the language of Michigan v. Long a clearer, more precise statement of independent state law than set forth by the Ohio Supreme Court in the Scott case.

QUESTION: In which opinion, Mr. Panza?

MR. PANZA: Scott case, 1986, Your Honor.

QUESTION: No. Which of the opinion of the Supreme Court of Ohio?

MR. PANZA: There are only -- Your Honor, the Scott case reversed the Milkovich case. Pursuant to Ohio law, the Milkovich case, as a result of that reversal, has a result of having never having existed. It has no legal effect whatsoever.

QUESTION: But as I recall reading the Scott case (inaudible), there wasn't just one opinion, there were a number of different opinions by the justices of the Supreme Court of Ohio.

MR. PANZA: Majority opinion, Your Honor.

QUESTION: The majority opinion?

MR. PANZA: Written by Judge Locher, who was speaking for the majority.

QUESTION: But that's not the case we have before us.

MR. PANZA: I beg your pardon?

QUESTION: That isn't -- that isn't the opinion that is -- that is on appeal here.

MR. PANZA: That's absolutely correct, Your Honor. But what was done by the Scott court, is to find an independent adequate state remedy for --

QUESTION: Well, we -- we don't make an independent inquiry into state law whenever we're reviewing the judgment of a state court to determine whether even though this state judge didn't rely on state law, he could have --

MR. PANZA: Your Honor --

QUESTION: -- because, in fact, it is a matter of state law. And that's what you're -- isn't that what you're arguing about?

MR. PANZA: Not at all, Your Honor. The motion for summary judgment -- the third motion for summary judgment cited Scott for the proposition that there was a state constitutional protection. And the Court --

QUESTION: I don't care what the motion for summary judgment cited. I care what the opinion of the court --

MR. PANZA: The court of appeals said the very same thing, Your Honor.

QUESTION: What did the court of appeal say? It cited Federal cases --

MR. PANZA: The court of -- the court of appeals, in citing the Scott case, cited the proposition that there is a -- a constitutional protection for -- for this exact column pursuant to Article I, Section 11 of the Ohio constitution.

QUESTION: It cited Federal cases and Scott. Is that right? It cited both Federal cases and Scott. And while Scott also relied on a state ground, Scott also relied on a Federal ground, didn't it?

MR. PANZA: Your Honor, I believe exactly that there was a separate paragraph that the court of appeals made citing Article I, Section 11, and then the next paragraph on cited the Gertz case.

QUESTION: Well, there might be a constitutional rule in the state protecting this sort of thing, but if the state just follows the Federal rule in applying -- in construing its own constitution, I'm not sure that that is an adequate independent state ground.

MR. PANZA: Well, I agree with you. It is not. But that's not what was done in the Scott case.

In the Scott case, Your Honor, in the initial summary conclusion of the Scott case where the -- the -- the critical opinion is set forth by the Ohio Supreme Court, it holds quite clearly, without reference to the First Amendment, that there is a constitutional protection for opinion under Article I, Section 11.

It then goes three paragraphs down and finds that the ideals of free press and free speech are at the core values of Article I, Section 11. And then it uses the word "independently of" or independently of the First Amendment of the United States.

QUESTION: Is there any case precedent in the State of Ohio which undertakes to analyze defamation issues separately under state law and reject contrary to result to what the Federal Law reaches?

MR. PANZA: Not since the Scott case, Your Honor, but I might point out to you that the Ohio Supreme Court one year later in the case of Lansdown once again reiterated that the -- there was a constitutional protection, a state constitutional protection, for opinion independent of the Federal Constitution. One year later.

QUESTION: Mr. Panza --

MR. PANZA: Yes, Your Honor.

QUESTION: Mr. Panza, would you help me on one matter. I can't find it right now, there's so darned many opinions in these two volumes here, I can't find it. But the Scott Supreme Opinion -- maybe you'll give me the page of it if it's handy -- but the syllabus of the Scott opinion, as I remember it, does not differentiate between the Federal and the state constitution.

MR. PANZA: Doesn't say it either.

QUESTION: And isn't it the syllabus that's the law in Ohio, rather than the opinion?

MR. PANZA: That's absolutely correct.

QUESTION: So if the syllabus does not contain an independent adequate statement they're relying on a state ground rather than Federal, isn't that the end of the ball game?

MR. PANZA: Well, I don't believe so, Your Honor, because the syllabus doesn't say -- doesn't cite to the Federal Constitution, nor does it cite to the Ohio --

QUESTION: Right.

MR. PANZA: -- Supreme Court. So you must go into the heart of opinion to try to make a determination as to -- as to whether or not there's independent adequate state grounds. Actually, you must go into the opinion to try and determine what the Ohio Supreme Court meant by making that citation.

QUESTION: There is --

MR. PANZA: But there is no reference, one way or another. You're quite correct.

QUESTION: All right.

QUESTION: Could -- could you tell me which is the opinion of the court of appeals that we're reviewing here in your appendix? In the joint appendix? Just give me a page.

MR. PANZA: Page 108.

QUESTION: 108. Thank you.

MR. PANZA: I'd like to address myself now to Justice O'Connor's comments concerning why Respondent believes that Hepps in no way is sufficient to protect opinion if the purpose of the protected speech is to advance public debate. And I believe what Mr. English has been talking about for 15 minutes is -- is a test known as the verifiability test.

The problem with the verifiability test and because, of course, we know Hepps doesn't direct us to any test whatsoever -- I'm not sure it was intended to do that -- but implicitly, by shifting the burden to the plaintiff, it necessitates the verifiability test.

The problem with the verifiability test is that it protects only speech which is figurative and so hyperbolic that it is absolutely false. This is speech which does very little to advance public debate. The problem with the verifiability test is that it tends to eliminate as -- it tends to eliminate the vast body of opinion that may be based on certain facts, which may or may not be -- be proven true.

It is that -- that debate, it is that opinion, such as the opinion in this case, that advances public debate. By allowing Hepps to stand without any other constitutional protection you are in effect excluding a substantial amount of opinion.

QUESTION: Well, supposing in this case Mr. Diadiun had said, in my opinion Milkovich perjured himself. Do you think that should be actionable if it can be proved false?

MR. PANZA: I don't think Mr. Diadiun's intentions have -- are relevant.

QUESTION: Well, can you answer my question?

MR. PANZA: Yes, I can.

QUESTION: Why don't you?

MR. PANZA: I will. If -- if the article can be perceived as the opinion of the speaker -- in this case the opinion --

QUESTION: Well, I'm -- I'm asking you hypothetical question, Mr. Panza, that doesn't necessarily depend on the article. Do you want me to repeat my question?

MR. PANZA: I think what you're asking me, Your Honor, if I'm -- if -- is if Mr. Diadiun merely said, I think, and then referred to a certain set of factual scenarios.

QUESTION: If he said, in my opinion Milkovich committed perjury, is that -- should that be -- should there be no action because the First Amendment -- even if -- even if Milkovich cannot prove he did not commit perjury?

MR. PANZA: If it is opinion, and if it concerns --

QUESTION: Well, answer -- can you answer my question yes or no?

MR. PANZA: Yes, it should be protected, Your Honor.

QUESTION: That should be protected?

MR. PANZA: Absolutely, Your Honor.

QUESTION: And suppose that the words, "in my opinion," were left out? He just says, Mr. Milkovich lied under oath?

MR. PANZA: No, then that would sound like a -- an objective factual dissertation of the legal effect of Mr. Milkovich's testimony.

QUESTION: And that would be actionable in your view?

MR. PANZA: If it was perceived as an objectionable -- or, excuse me, an objective recitation of the facts, yes.

QUESTION: Do you -- do you then --

MR. PANZA: That's not the case here.

QUESTION: Is it -- is it good reporting, therefore, to -- in your view -- under your view of the case, to preface statements of fact with the words "in my opinion" in order to immunize yourself --

MR. PANZA: Absolutely not.

QUESTION: -- from responsibility?

MR. PANZA: Absolutely not, and that's not what was done here. Absolutely -- and that is not good reporting.

QUESTION: So that would be bad reporting?

MR. PANZA: I would absolutely say so.

QUESTION: Well, but that -- that's a very handy device. I assume that all book publishers can just put on the first page everything contained in this book is, of course, the opinion of the writer. And then you can go on and say anything you like.

MR. PANZA: Justice Scalia --

QUESTION: And there's no liability for libel at all. And all newspapers can have on their masthead, everything here is the opinion of the people who write it.

MR. PANZA: Justice Scalia --

QUESTION: And there's no such thing as libel.

MR. PANZA: I'm not -- I'm not a proponent of that.

QUESTION: I thought you were.

MR. PANZA Not at all.

QUESTION: In your response to the --

MR. PANZA: Not at all.

QUESTION: -- to the Chief --

MR. PANZA: Not at all. Not at all. I believe what is or is not opinion has to be analyzed by the context of what was said, not by two or three or maybe four facts in the statement upon which the context is based. By the entire context.

I think the restatement of tort second solves the problem of saying I think, and then going through a recitation of facts. And I don't -- and I am not up here asking the Court to -- to agree that merely by putting some mystical words "I think" and then reciting objective fact you can protect all that fact. Absolutely not.

QUESTION: Well, then, you're qualifying the answer you gave to the Chief Justice earlier?

MR. PANZA: No, I'm not qualifying at all. I had to be --

QUESTION: I mean, it's not clear --

MR. PANZA: I couldn't explain --

QUESTION: -- to me what your position is. So suppose that's all the statement. It's just the one sentence in the big headline, in my view, in my opinion, Milkovich committed perjury. That's all.

MR. PANZA: If the reader perceives that as opinion, then -- then that is protected. And to the extent that it -- that it is engaged in public debate, it is protected. That is -- that is the answer to the Chief Justice. Or in -- in --

QUESTION: Well, shouldn't that be a jury question?

MR. PANZA: Absolutely not.

QUESTION: When you say -- when you say if the reader perceives it as opinion, is that a question that a -- that a court decides without -- as a matter of law?

MR. PANZA: Yes, it is. I'm sorry.

QUESTION: Why?

MR. PANZA: Why?

QUESTION: I mean, why shouldn't it be a question of fact if you're talking about the perception of a reader?

MR. PANZA: If you will -- I'm -- thank you, Your Honor. If you allow a jury to decide that question, you will be promoting self-censorship and not public debate. If, in fact, newspapers will be left to the uncertainty of jury conclusions in regards to an analysis of whether or not their opinion may contain certain facts which can or cannot be proven true or false out of context, they won't write the opinion. And, as a result, public debate will suffer.

QUESTION: So -- so the question of how this -- how the statement is perceived is not a question of fact, but it's a question of law that's decided by the court?

MR. PANZA: Yes, Your Honor.

QUESTION: And how -- how does the court go about deciding that?

MR. PANZA: Well, it has to use a test and it has to adopt a test. And there are many tests that we set forth in our brief.

The one we are a proponent of is pretty much the test used in the Scott Court in 1986. And that is, the Ollman test, as modified by the Seventh Circuit in the Potomac Valve case. It takes into consideration the meaning of the words, it takes into consideration whether or not the particular factual assertion is verifiable, if it is a factual assertion. It takes into consideration the internal and external context of the entire opinion.

And the entire opinion is important here, Your Honor, because the speaker, Diadiun, never said Mike Milkovich committed perjury. It had nothing to do with his opinion. It is a statement totally taken out of context which -- the point I'm trying to make in regards to verifiability -- doesn't do justice to his opinion.

QUESTION: Well, it -- it's one thing to say he never said it, and it's another thing to say -- to say that he said it, that was taken out of context. Do you mean literally he never said it?

MR. PANZA: He never said he committed perjury. What he said was, I think, is what Mr. English read to you. And, that is, everyone who was in attendance at the meet, be he a partial or impartial observer, knows in his heart that Mr. Milkovich lied after having given his solemn oath to tell the truth.

QUESTION: That's not saying he committed perjury.

MR. PANZA: I think -- I think -- I think if you isolate that and if you have a lawyer look at it, he will conclude it constitutes perjury. I think if you review that statement in the entire context of the article, you will understand that it has very little to do with an accusation of perjury.

Your Honor, I submit to you, if Ted Diadiun wanted to accuse Michael Milkovich of perjury, he would have published this article after the OHSAA hearing because, if you'll remember, in the article he said he believed that Mr. Milkovich misrepresented the facts in that hearing.

If he wanted to accuse him of perjury, Your Honor, I submit he would have published an article on November 9th, 1974 after he had his conversation with Harold Meyer because it was at that time that he believed Milkovich had lied under oath.

The reason why he waited two months later, Your Honor, is because the point -- the very point that Mr. Diadiun is making in the article, and that is, educators, motivators of youth who refuse to accept responsibility for their action, that's what constitutes a lie. And if they get away with it, that sets a poor example for the students they teach. That is what Ted Diadiun is saying, Your Honor.

QUESTION: Mr. Panza, let me -- let me understand your position. It is perfectly all right, I take it, if I say, in my opinion so and so is a child abuser; I don't have a whole lot of facts to go on but that's my opinion. I can say that and that is not libelous?

MR. PANZA: Well, I can imagine that there are scurrilous forms of opinion that this Court may not choose to extend constitutional protection to. And that's not my case. And I -- I can understand that.

QUESTION: Oh, the difference is between calling someone a -- a child abuser and a perjurer? Is that -- we're going to --

MR. PANZA: No, no.

QUESTION: -- different classifications of -- of libel?

MR. PANZA: No. It still may be opinion, Your Honor. It still may be opinion, but whether or not you want to extend constitutional protection for that particular form of opinion --

QUESTION: You're -- you're -- you're suggesting to us that we have different categories of subjects, some of which are protected and some of which are not? That's the position of your newspaper?

MR. PANZA: No. What I'm -- what I am proposing to you, Justice Kennedy, is that since the New York Times case you have chosen to protect certain forms of speech which -- which promote public debate. This should be no exception to that rule. That's what I'm proposing.

QUESTION: Are -- are you seeking to distinguish between an acquisition that someone is a perjurer and someone is a child abuser?

MR. PANZA: Gee, I don't think so, Your Honor. I'm -- I'm -- I'm telling you -- the way I'm answering the question is that I could imagine, with facts unrelated to my own, that there may be certain forms of private opinion submitted in situations that do not concern social controversy that this Court may choose not to protect. Not because --

QUESTION: Well, this --.

MR. PANZA: Not because --

QUESTION: This man -- this man was an educator. I -- I would think that Justice Scalia's hypothetical -- if a statement like that had been made by an educator, I can hear some newspaper arguing that this is very, very relevant for social purposes.

MR. PANZA: Oh, and it absolutely is, if that's the scenario.

QUESTION: It -- it would be all right? I mean, that was just -- that was just a lead in.

MR. PANZA: If a man --

QUESTION: I thought you were going to say for sure yes to that.

MR. PANZA: If a man is an educator --

QUESTION: That wasn't a real question.

(Laughter.)

QUESTION: I'm getting to the real question. I assume if you can say that, you can also say -- if you can prove it to be true -- 90 percent of the people in his office think that he's a child abuser. So long as you can prove that it is indeed the fact that is the opinion of 90 percent of the people in his office that he's a child abuser, I assume that you could say that as well.

MR. PANZA: Well, if it goes to his qualifications --

QUESTION: Doesn't it trouble you that people's reputations without any ability to defend it can be destroyed this way?

MR. PANZA: Well, of course, it does. Of course it does.

QUESTION: Well, what's your solution?

MR. PANZA: Well, first, I think you have to analyze what is being said. I think that's the first thing you have to do. And -- and if it is -- if what is being said is opinion, then the -- then you next must determine whether or not it is in a public or social controversy.

If it concerns a teacher who teaches children, then I think it may be relevant. And if it is truly opinion, yes, it may be protected. If it is an educator who teaches children how to wrestle and his qualifications are called into question because the -- the people that he coached beat other people, then I think, yes, his qualifications may be in question.

QUESTION: Your answer to my question is, yes, you could publish in your paper 90 percent of the teachers in so and so school think that he's a child abuser and that is not libelous?

MR. PANZA: With the qualifications as I've answered the Court's question.

QUESTION: Mr. Panza, do you agree with the petitioner that this case is governed -- falls within the Hepps' holding? That it's speech about a matter of public concern?

MR. PANZA: Oh, without question. I do agree with that.

QUESTION: All right. And why is it that you think that the allegation that someone lied under oath isn't something that the plaintiff could try to prove is false? It would seem to me that's -- that's a statement that can be proven true or false.

MR. PANZA: Absolutely right, it can be proven true or false. But --

QUESTION: And why shouldn't we let that go to the jury and let them have their chance?

MR. PANZA: Well, if you're dealing with this article, that's not what Mr. Diadiun said. That isn't his opinion. The point I'm trying to make is that --

QUESTION: What if the conclusion of the jury is that the reasonable average reader would have understood this article as saying the plaintiff lied under oath?

MR. PANZA: Well, if the Court has ruled that it -- it has to go to the jury, but I'm not a proponent of submitting it to the jury for the reasons I've -- I've outlined to the Court. And I'm certainly --

First of all, this case is impossible to submit to a jury. There is no transcript of the Ohio High School Athletic Association. You would probably literally be required to call virtually every witness who attended it in order to -- to give his or her opinion as to whether or not Milkovich lied under oath.

QUESTION: Well, the plaintiff says they're not interested in the statement about what other people think. They're only interested in the allegation that the plaintiff lied under oath.

MR. PANZA: Well, I think -- I think the Plaintiff is very interested in -- in -- in fostering onto the Court that that is the opinion of Mr. Diadiun when he wrote the article. But it isn't.

It may be a fact upon which he relied. I mean, there is absolutely -- there is absolutely no doubt that -- that statement is in the article, but --

QUESTION: Shouldn't it turn on what the average reasonable reader of the article would think was being said?

MR. PANZA: Absolutely, yes.

QUESTION: Yes.

MR. PANZA: Absolutely, yes.

QUESTION: Okay.

QUESTION: May I give you a hard hypothetical? Supposing in this case the fact of the matter was that Mr. Milkovich never even testified at the hearing and that the author of the article knew that and nevertheless wrote the same article?

MR. PANZA: I would submit to you, Justice Stevens, that, as I pointed out before, I do not see that the speaker's intention is in any way relevant.

QUESTION: Well, just under --

MR. PANZA: What is relevant --

QUESTION: -- under the actual malice standard he knew the statement was false when he made it. That's all.

MR. PANZA: Well --

QUESTION: But -- but that would be irrelevant? But it -- it's so clearly provable that he -- that he did make -- you'd still say that protected in my hypothetical, in other words?

MR. PANZA: Yes, sir.

QUESTION: Yeah.

QUESTION: Could I ask you another --

MR. PANZA: Sure.

QUESTION: Your response earlier to Justice Kennedy and me said that -- the -- suggested that the fact/opinion dichotomy only applies if it's a matter of -- of public concern. I -- I hadn't understood your position to be that. I thought that the -- and the courts that have applied that reasoning, I thought they apply it to all -- all defamation actions, not just those that relate to matters of public concern. Is that right or wrong?

MR. PANZA: First of all, you're absolutely correct. The -- the lower courts that -- that apply this principle generally apply that it applies to individuals engaged in private situations or --

QUESTION: Right. So if I said somebody was -- in my opinion he's a lousy carpenter, that -- that would also be immune because he --

MR. PANZA: Under that -- under that principle. But that's not the principle that I'm -- that I'm requesting from the Court. Those aren't the facts of my case.

My case concerns a -- a public controversy, a social controversy. These are real communities. Mentor, a neighboring community 23 miles away, had four of its wrestlers beaten up. They were concerned about the safety of their children. They went demanding an answer to the OHSAA.

These -- these things that Mr. Diadiun discusses were of major concern to that local community. There was tremendous disagreement after the OHSAA resolution and the imposition of a severe censorship. When --

QUESTION: Let's see what this proves. It proves that you want to get to the truth. And the issue is whether you're likely to get to the truth in a society when you allow the most outrageous version of things to be published so long as it's somebody's opinion.

Do you really think that it's going to help the search for truth to allow the most false things to be said so long as they're said as opinions without any recourse?

MR. PANZA: Well, I guess there's the problem. The most false things probably, if they can be proven false in their factual assertions -- and I know it's a difficult concept because -- because what I think you first must do is analyze whether or not under the proper test is fact or opinion. Not just simply with are there some facts in it which I can prove true or false but what is the speaker saying? Is it -- and does the reader perceive it as the speakers attitudes?

And if he does, and if it concerns a matter of public controversy, then it should be protected. Why? Because it promotes social and public debate. Will you inevitably, as a result of that rule, protect some speech that shouldn't be protected? Quite probably.

QUESTION: If the speaker goes on, or the writer goes on for 10 or 12 column inches, isn't it conceivable he may be saying several different things?

MR. PANZA: Sure, it is.

QUESTION: And might not one of them in this case be that Mr. Milkovich perjured himself?

MR. PANZA: Well, it might be, but I don't believe that in this case you can separate that particular statement from the rest of what Mr. Diadiun is saying.

QUESTION: Why can't you?

MR. PANZA: Well, because it is part and parcel of -- of the general opinion that failing to take responsibility is in fact a lie. There's no doubt he -- Mr. Diadiun said Mr. Milkovich was lying. But he never meant to say that -- he never meant to make a legal commentary on the -- or objective analysis of the legal effect of Michael Milkovich's testimony in his sports column.

QUESTION: So in a sports column, unless you really mean to say that someone perjured themselves, it -- it's okay?

MR. PANZA: No. No. In a sports column people read -- when people read sports columns, they read it understanding that they're going in many instances to read opinion. That is different --

QUESTION: I gave up reading the sport column because it had nothing but legal news, antitrust, contract breach --

(Laughter.)

MR. PANZA: Sports columnists tend to be very opinionated, Justice Kennedy, and when you read them, you read them -- when you read what they say, you read what they say with the understanding that they are opinionated. That's all I mean to say.

Respondent believes that this article is constitutionally protected opinion. If this Court concludes that it is fact, I would ask you to note that three separate trial courts have found Mr. Milkovich to be a public figure, and/or a public official. No court has ever found any clear and convincing evidence of actual malice.

I would ask you, then, to put an end to 15 years of litigation and affirm.

Thank you.

QUESTION: Thank you, Mr. Panza.

Mr. English, you have 12 minutes remaining.

REBUTTAL ARGUMENT OF BRENT LAWSON ENGLISH ON BEHALF OF THE PETITIONER

MR. ENGLISH: Thank you, Your Honor.

I'd like to address the last point that Mr. Panza just made because I think it is a complete misstatement of the facts and the law in this case.

The Ohio Supreme Court on December 31, 1984 made a determination in this case that Mike Milkovich was not a public figure and not a public official and that this statement was not constitutionally protected as opinion. That is the law of this case.

There has not been a determination by any other court since that time that Mike Milkovich is not a public figure and not a public official. The respondents would have this Court believe that somehow the Ohio Supreme Court, by deciding the Scott case, has somehow sub silentio overruled it's prior decision with respect to Mr. Milkovich.

Mr. Milkovich's status --

QUESTION: But it did -- it did come out a different way in Scott on some issues than it did in the Milkovich case, didn't it?

MR. ENGLISH: Without a doubt. With respect to the opinion question, there has been a complete flip-flop. The decision was four to three in the Milkovich case in favor of making the article actionable, i.e., an assertion of fact, and it was four to three in the Scott case just 15 months later after two judges on the Ohio Supreme Court left the Court and two new judges joined the Court.

There have been now new judges elected to the Ohio Supreme Court, and it's unclear, certainly, as to what might happen with this question unless this Court definitively decides that this article is not constitutionally protected as opinion.

QUESTION: We couldn't decide it for the -- under the -- we couldn't decide what the Ohio Constitution requires or not.

MR. ENGLISH: That is correct, Your Honor, you could not. However, going to that question with the Michigan v. Long analysis of separate adequate independent state grounds, as Justice Scalia pointed out, the decision from which the appeal is being taken is from the Ohio Court of Appeals, and there is a specific determination there that the court is relying on Federal precedent.

Clearly, the Ohio Supreme Court, again, as Justice Stevens pointed out, depends on the syllabus in the opinion, and the syllabus no way mentions that the case is grounded either in whole or in part on the Ohio constitution.

Every justice of the Ohio Supreme Court wrote on the Scott case, and all but one of the concurring judges in the majority cited the Federal Constitution as being the source for the opinion privilege.

QUESTION: Mr. English, unless there are further questions from the Court on that point, I think -- I think you can consider that we -- we have it.

MR. ENGLISH: Fine. Thank you, Your Honor.

I have one last question, or one last point on rebuttal. Mr. Panza has continued to note here that the issue is not what Mr. Diadiun intended but, rather, what the average reasonable newspaper reader perceived. And I would agree with that point.

However, in his next breath he says Mr. Diadiun really didn't intend to say that Mike Milkovich committed the crime of perjury. The relevant constitutional inquiry should be how is an average reader perceiving the article, as Justice O'Connor pointed out. And on that score, a reasonable construction of the article in this case can lead to but no other reasonable conclusion than that Mr. Milkovich was accused of a crime under Ohio law.

QUESTION: But do you think that's the test rather than verifiability?

MR. ENGLISH: No, Your Honor. I think that verifiability obviously will -- will get us past that problem. But if, for instance, there is a reasonable dispute as to whether verifiability is in question -- in other words, we have a mixed question of opinion and fact -- then the relevant inquiry should be how does the average reader perceive the question.

QUESTION: Is that an issue that's submitted to the jury, the perception of the average reader? Or is that for the court --

MR. ENGLISH: Your Honor, I believe it is a question reasonably left to the jury. There is no reasonable justification for making it a legal question.

It's not like the determination of whether an individuals a public figure or public official. But, rather, it goes to how did a reasonable reader perceive this. And what better group to make that decision then a jury.

And I would submit to the Court that, in this, case since there was a jury demand, the jury could easily make that determination and decide whether or not Mr. Diadiun's intent or the average perception of the newspaper -- or the newspaper audience, was whether he accused Mr. Milkovich of perjury or merely was stating this as his alleged opinion.

For all of the reasons I've mentioned, Petitioner respectfully requests that the Court reverse the decision of the Ohio Court of Appeals and return this case for trial.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. English.

The case is submitted.

(Whereupon, at 11:59 a.m., the case in the above-entitled matter was submitted.)