LORAIN JOURNAL CO. v. MILKOVICH, 474 U.S. 953 (1985)
U.S. Supreme Court
LORAIN JOURNAL CO. v. MILKOVICH , 474 U.S. 953 (1985)474 U.S. 953
The LORAIN JOURNAL CO. et al.
v.
Michael MILKOVICH, Sr.
No. 84-1731
Supreme Court of the United States
November 4, 1985
On Petition for Writ of Certiorari to the Supreme Court of Ohio.
The petition for writ of certiorari is denied.
Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.
Error and misstatement are inevitable in any scheme of truly free expression and debate. Because punishment of error may induce a cautious and restrained exercise of the freedoms of speech and press, the fruitful exercise of these essential freedoms requires a degree of "breathing space ." NAACP v. Button, 371 U.S. 415, 433, 338 ( 1963). Accordingly, "we protect some falsehood in order to protect speech that matters." Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 3007 (1974); see also St. Amant v. Thompson, 390 U.S. 727, 732, 1326 (1968). The New York Times actual malice
standard defines the level of constitutional protection appropriate in the context of defamation of a public official. It rests on our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 721 (1964). In Curtis Publishing Co. v. Butts, 388 U.S. 130 ( 1967), the New York Times standard was extended to statements criticizing " public figures" because we recognized that " 'public figures,' like 'public officials,' often play an influential role in ordering society" and that therefore "[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.' " 388 U.S., at 164 (Warren, C.J., concurring in result). In Gertz v. Robert Welch, Inc., supra, we limited the applicability of the New York Times standard by holding that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." 418 U.S., at 347 (footnote omitted).
In this case, the Ohio Supreme Court found Gertz rather than New
York Times applicable to respondent Milkovich's libel suit against
petitioners. Ostensibly, then, the issue presented in this petition
is simply the narrow one whether petitioners will be required to
pay damages upon a showing of negligence or actual malice. However,
by allowing damages to be awarded upon a showing of negligence,
thereby diminishing the " breathing space" allowed for free
expression in the New York Times case, the decision in Gertz
exacerbated the likelihood of self-censorship with respect to
reports concerning "private individuals." See 418 U.S., at 365-
368-3021 (BRENNAN, J., dissenting). Consequently, the rules we
adopt to determine an individual's status as "public" or "private"
powerfully affect the manner in which the press decides what to
publish and, more importantly, what not to publish. In finding New
York Times inapplicable, the Ohio Supreme Court read the "public
official" and " public figure" doctrines in an exceptionally narrow
way that is sure to restrict expression by the press in Ohio. Its
decision is especially unfortunate in that it most affects
reporting by local papers about the local controversies that
constitute their primary content. Moreover, it is these local
papers that are most coerced by the threat of libel damages
[474 U.S. 953 ,
955]
U.S. Supreme Court
LORAIN JOURNAL CO. v. MILKOVICH , 474 U.S. 953 (1985) 474 U.S. 953 The LORAIN JOURNAL CO. et al.v.
Michael MILKOVICH, Sr.
No. 84-1731 Supreme Court of the United States November 4, 1985 On Petition for Writ of Certiorari to the Supreme Court of Ohio. The petition for writ of certiorari is denied. Justice BRENNAN, with whom Justice MARSHALL joins, dissenting. Error and misstatement are inevitable in any scheme of truly free expression and debate. Because punishment of error may induce a cautious and restrained exercise of the freedoms of speech and press, the fruitful exercise of these essential freedoms requires a degree of "breathing space ." NAACP v. Button, 371 U.S. 415, 433, 338 ( 1963). Accordingly, "we protect some falsehood in order to protect speech that matters." Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 3007 (1974); see also St. Amant v. Thompson, 390 U.S. 727, 732, 1326 (1968). The New York Times actual malice Page 474 U.S. 953 , 954 standard defines the level of constitutional protection appropriate in the context of defamation of a public official. It rests on our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 721 (1964). In Curtis Publishing Co. v. Butts, 388 U.S. 130 ( 1967), the New York Times standard was extended to statements criticizing " public figures" because we recognized that " 'public figures,' like 'public officials,' often play an influential role in ordering society" and that therefore "[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.' " 388 U.S., at 164 (Warren, C.J., concurring in result). In Gertz v. Robert Welch, Inc., supra, we limited the applicability of the New York Times standard by holding that "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." 418 U.S., at 347 (footnote omitted). In this case, the Ohio Supreme Court found Gertz rather than New York Times applicable to respondent Milkovich's libel suit against petitioners. Ostensibly, then, the issue presented in this petition is simply the narrow one whether petitioners will be required to pay damages upon a showing of negligence or actual malice. However, by allowing damages to be awarded upon a showing of negligence, thereby diminishing the " breathing space" allowed for free expression in the New York Times case, the decision in Gertz exacerbated the likelihood of self-censorship with respect to reports concerning "private individuals." See 418 U.S., at 365- 368-3021 (BRENNAN, J., dissenting). Consequently, the rules we adopt to determine an individual's status as "public" or "private" powerfully affect the manner in which the press decides what to publish and, more importantly, what not to publish. In finding New York Times inapplicable, the Ohio Supreme Court read the "public official" and " public figure" doctrines in an exceptionally narrow way that is sure to restrict expression by the press in Ohio. Its decision is especially unfortunate in that it most affects reporting by local papers about the local controversies that constitute their primary content. Moreover, it is these local papers that are most coerced by the threat of libel damages Page 474 U.S. 953 , 955 since they can least afford the expense of damages awards. I therefore dissent and would grant certiorari in order to review this important constitutional question. I On February 9, 1974, a melee occurred at a high school wrestling match between Maple Heights and Mentor High Schools; several wrestlers were injured, four of them requiring treatment at a hospital. The Ohio High School Athletic Association (OHSAA) conducted a hearing into the occurrence and censured Michael Milkovich, the Maple Heights coach and a teacher at the high school, for his conduct in encouraging the brawl. In addition, the OHSAA placed the Maple Heights team on probation for the school year and declared it ineligible to compete in the state wrestling tournament. Ted Diadiun, a sports columnist for the News-Herald of Willoughby, Ohio, attended and reported on both the match and the hearing. A group of parents and wrestlers subsequently filed suit in Franklin County Common Pleas Court, alleging that the OHSAA had denied the team due process and seeking to reverse the declaration of ineligibility. Milkovich, though not a party to this lawsuit, appeared as a witness for the plaintiffs. On January 7, 1975, the court held that the wrestling team had been denied due process and enjoined the team's suspension. The next day, Diadiun wrote another column entitled "Maple beat the law with the 'big lie.' " Diadiun, who had not attended the court hearing, based the story on a description of the judicial proceedings given him by an OHSAA Commissioner and on his own recollection of the wrestling match and ensuing OHSAA hearing. After reporting the result of the lawsuit, the column stated "[b]ut there is something much more important involved here than whether Maple was denied due process by the OHSAA": "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 ob- Page 474 U.S. 953 , 956 servations 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." Diadiun stated that Milkovich and others had "misrepresented" the occurrences at the OHSAA hearing but that Milkovich's testimony "had enough contradictions and obvious untruths so that the six [OHSAA] board members were able to see through it." Diadiun then asserted that by the time the court hearing was held, Milkovich and a fellow witness " apparently had their version of the incident polished and reconstructed, and the judge apparently believed them." Diadiun opined that anyone who had attended the match "knows in his heart that Milkovich . . . lied at the hearing after . . . having given his solemn oath to tell the truth. But [he] got away with it." The column concluded: "Is that the kind of lesson we want our young people learning from their high school administrators and coaches? "I think not." Milkovich filed a libel action in state court against Diadiun, the News-Herald, and the latter's parent, the Lorain Journal Company ( petitioners). The court denied petitioners' motion for summary judgment, but held that Milkovich was a public figure and, as such, was required to meet the standards established in New York Times. After five days of trial, at the close of Milkovich's case, petitioners moved for a directed verdict. The court granted this motion, finding that Milkovich's evidence failed to establish actual malice as a matter of law. The Ohio Court of Appeals reversed and remanded. Milkovich v. Lorain Journal Co., 65 Ohio App.2d 143, 416 N.E.2d 662 (1979). It noted that the Common Pleas Court had accepted Milkovich's testimony, and ruled that this alone constituted sufficient evidence of actual malice to survive a motion for a directed verdict. The Ohio Supreme Court dismissed the appeal as raising no substantial constitutional question. This Court denied certiorari; I dissented. Lorain Journal Co. v. Milkovich, 449 U.S. 966 (1980). Page 474 U.S. 953 , 957 On remand and before a new judge in the Common Pleas Court, petitioners filed a second motion for summary judgment. The court reaffirmed the earlier holding that Milkovich was a public figure for purposes of the New York Times test and granted the motion. The court held that Milkovich had failed to proffer sufficient evidence for a jury to conclude that Diadiun's column was published with actual malice. Alternatively, the court found that the column constituted a privileged expression of opinion. This time the Ohio Court of Appeals affirmed, holding that the law of the case did not bar a second motion for summary judgment and agreeing with both of the trial court's particular holdings. The Ohio Supreme Court reversed. Milkovich v. News-Herald, 15 Ohio St.3d 292, 473 N.E.2d 1191 (1984). Concluding "upon a careful review of the record" that Milkovich had not waived the right to challenge the earlier determination of his status as a public figure, the court held that Milkovich was neither a "public official" nor a "public figure," and that the contents of the challenged article were facts which, if false, are not protected by the First Amendment. Id., at 294-297, 473 N.E.2d, at 1193-1196. This petition followed. II A. In New York Times, we had no occasion "to determine how far down into the lower ranks of government employees the 'public official' designation would extend. . . ." 376 U.S., at 283, n. 23, n. 23. That question was addressed two Terms later in Rosenblatt v. Baer, 383 U.S. 75 (1966). Consistent with the premise of New York Times that "[c]riticism of those responsible for government operations must be free, lest criticism of government itself be penalized," the Court in Rosenblatt held that "[i]t is clear . . . that the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs." 383 U.S., at 85. We recognized there, however, that First Amendment protection cannot turn on formalistic tests of how "high" up the ladder a particular government employee stands. Rather, we determined, the focus must be on the nature of the public employee's function and the public's particular concern with his work. Accordingly, we held: Page 474 U.S. 953 , 958 "Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, . . . the New York Times malice standards apply." Id., at 86 (emphasis added). In Rosenblatt itself, we found this standard satisfied with respect to Baer, a supervisor of a county ski resort employed by and responsible to county commissioners. The Ohio court apparently read the language in Rosenblatt referring to government employees having "substantial responsibility for or control over the conduct of government affairs" as restricting the public official designation to officials who set governmental policy. This interpretation led it to conclude that finding a public employee like Milkovich to be a " public official" for purposes of defamation law "would unduly exaggerate the 'public official' designation beyond its original intendment." 15 Ohio St.3d, at 297, 473 N.E.2d, at 1195-1196. The Ohio court has seriously misapprehended our decision in Rosenblatt. Indeed, the status of a public school teacher as a "public official" for purposes of applying the New York Times rule follows a fortiori from the reasoning of the Court in Rosenblatt. As this Court noted in holding that the Equal Protection Clause does not bar a State from excluding aliens from teaching positions in the public schools, " public school teachers may be regarded as performing a task 'that go[es] to the heart of representative government.' " Ambach v. Norwick, 441 U.S. 68, 75-76, 1593-1594 (1979) (quoting Sugarman v. Dougall, 413 U.S. 634, 647, 2850 (1973)). We have repeatedly recognized public schools as the Nation's most important institution "in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests." 441 U.S., at 76-77-1595. See also San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29-30, 93 S. Ct. 1278, 1294-1295 (1973); Wisconsin v. Yoder, 406 U.S. 205, 213, 1532 (1972); Brown v. Board of Education, 347 U.S. 483, 493, 691 (1954). The public school teacher is unquestionably the central figure in this institution: "Within the public school system, teachers play a critical part in developing students' attitude toward government and understanding of the role of citizens in our society. Alone among employees of the system, teachers are in direct, day- Page 474 U.S. 953 , 959 to-day contact with students both in the classrooms and in the other varied activities of a modern school. In shaping the students' experience to achieve educational goals, teachers by necessity have wide discretion over the way course material is communicated to students. They are responsible for presenting and explaining the subject matter in a way that is both comprehensible and inspiring. No amount of standardization of teaching materials or lesson plans can eliminate the personal qualities a teacher brings to bear in achieving these goals. Further, a teacher serves as a role model for his students, exerting a subtle but important influence over their perceptions and values. Thus, through both the presentation of course materials and the example he sets, a teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizen's social responsibilities. This influence is crucial to the continued good health of a democracy." Ambach, supra, 441 U.S., at 78-79 (footnotes omitted).1