Matters Of Fact

By ELLIS COSE

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.

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?"

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.

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.

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.

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.

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.

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.