On petition for writ of certiorari to the Court of Appeals of
Ohio, Lake County.
The motion of Beacon Journal Publishing Company et al. for leave
to file a brief as amici curiae is granted. The motion of Ohio
Newspapers Association for leave to file a brief as amicus curiae
is granted.
The petition for a writ of certiorari is denied.
Justice BRENNAN, dissenting.
This petition for certiorari raises an important question
concerning limitations on the authority of trial courts to grant
dismissals, summary judgments, or judgments notwithstanding the
verdict 1 in favor of media defendants in libel actions, based on
the qualified privilege outlined in New York Times Co. v. Sullivan,
376 U.S. 254 (
1964).
On January 8, 1975, the News-Herald of Willoughby, Ohio,
published a column by sportswriter Ted Diadium criticizing
respondent Michael Milkovich, a wrestling coash at Maple Heights
High Schoo, who is treated as a 'public figure' for purposes of
this case. Headlined "Maple beat the law with the 'big lie,' " the
column accused Milkovich of lying about a fracas that occurred
during one of his team's wrestling matches.
On February 9, 1974, the Maple High School wrestling team,
coached by Milkovich, faced a team from Mentor High School. A brawl
involving both wrestlers and spectators erupted after a
controversial ruling by a referee . Several wrestlers were injured.
The Ohio High School Athletic Association (OHSAA) subsequently
conducted a hearing into the occurrence, censured Milkovich for his
conduct at the match,
Page 449 U.S.
966 , 967
placed his team on probation for the school year, and declared
the team ineligible to compete in the state wrestling tournament.
Diadiun attended and reported on both the match and the hearing, at
which Milkovich had defended his behavior. Thereafter, a group of
parents and high school wrestlers filed suit in Franklin County
Common Pleas Court, claiming that the OHSAA had denied the team due
process. Milkovich, not a party to that lawsuit, appeared as a
witness for the plaintiffs. On January 7, 1975, the court held that
due process had been denied, and enjoined the team's suspension.
Barrett v. Ohio High School Athletic Assn., No. 74CV-09-3390. 2
Justice STEWART would deny this petition for want of a final
judgment.
Diadiun did not attend the court hearing, review the transcript,
or read the court's opinion, but he wrote a column about the
decision based on his own recollection of the wrestling match and
ensuing OHSAA hearing and on a description of the court proceeding
given him by an OHSAA Commissioner. In the column, Diadiun stated
that Milkovich and others had " misrepresented" the occurrences at
the OHSAA hearing, and that Milkovich's testimony "had enough
contradictions and obvious untruths so that the six board members
were able to see through it." Diadiun went on to say, however, that
at the later court hearing Milkovich and a fellow witness "
apparently had their version of the incident polished and
reconstructed, and the judge apparently believed them." Diadiun
concluded 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."
Milkovich filed a libel action in state court against
petitioners Diadiun, the News-Herald, and the latter's parent
Page 449 U.S.
966 , 968
corporation. Petitioners moved for summary judgment. The court
held that Milkovich is a public figure for purposes of the New York
Times test,3 but denied summary judgment. The action was then tried
to a jury. After five days of trial, at the close of Milkovich's
evidence, petitioners moved for a directed verdict. They argued
that Milkovich had failed to proffer sufficient evidence from which
the jury could conclude that Diadiun's column had been published
with actual malice under the New York Times test . The court
granted the motion for directed verdict, stating that the evidence,
considered most strongly in favor of Milkovich, "fails to establish
by clear and convincing proof that the article . . . was published
with knowledge of its falsity or in reckless disregard of the
truth."
Milkovich appealed to the State Court of Appeals, which reversed
and remanded for trial. The court stated that Diadiun's column
conflicted with the factual determination reached in the earlier
Common Pleas Court injunctive action, and held that this conflict
alone constituted sufficient evidence of actual malice to withstand
petitioner's motion for directed verdict. [
Footnote 4] Petitioners appealed to the Ohio Supreme
Court,
Page 449 U.S.
966 , 969
and also sought review in the nature of certiorari. The Ohio
Supreme Court dismissed the appeal as raising "no substantial
constitutional question" and otherwise denied review. The court
also denied petitioners' motion for rehearing. [
Footnote 5]
The import of the Ohio appellate court's holding is plainly
that, even in the absence of proof of knowing falsehood or reckless
disregard for the truth, a newspaper forfeits its right to a
directed verdict, summary judgment, or judgment notwithstanding the
verdict on the issue of actual malice if it has published a
statement that conflicts, however tangentially, with a decision by
a court. This holding is clearly contrary to the First Amendment
and to the relevant precedents of this Court. I had supposed it was
settled that newspapers are privileged to publish their views of
the facts, so long as those views are not recklessly or knowingly
false. It matters not that such views may conflict with those of a
court, for the press is free to differ with judicial
determinations. In the libel area, neither a court nor any other
institution is the "recognized arbiter of the truth," as the court
below asserted. See Gertz v. Robert Welch, Inc.,
418 U.S. 323, 339-340,
3006-3007 (1974).6
Page 449 U.S.
966 , 970
One part of the "strategic protection" that decisions of this
Court have extended to the press in the libel area is the
insistence that a public figure can prevail "only on clear and
convincing proof that the defamatory falsehood was made with
knowledge of its falsity or with reckless disregard for the truth."
Gertz v. Robert Welch, Inc., supra, at 342; New York Times Co. v.
Sullivan, 376 U.S., at 285- 286-729. The court in a libel action
has a responsibility to ensure that sufficient evidence of actual
malice has been introduced to permit a jury finding under this
exacting standard. This protection must not be withdrawn merely
because the press account may have differed with the conclusions of
a court, lest the "uninhibited, robust, and wide-open," New York
Times Co. v. Sullivan, supra, at 270-721, discussion of judicial
proceedings be deterred. See Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 65
L. Ed. 2d 973 (1980).
The consequence of the erroneous ruling in this case is
particularly apparent on the facts: petitioners were denied a
directed verdict on the strength of a prior court opinion that did
not even discuss, let alone decide, what had happened at the
disrupted wrestling match or whether Milkovich had testified
truthfully. The court had merely ruled that the Maple High School
wrestling team was denied certain procedural safeguards required
under due process. Thus, it is abundantly apparent that the state
court's conclusion that Diadiun wrote his column "knowing that it
conflicts with a judicial determination of the truth" is
unpersuasive even on its own terms.
Because in my view the decision of the Ohio appellate court in
this case seriously contravenes the principles of the First
Amendment as interpreted by this Court, and threatens to chill the
freedom of newspapers in Ohio to publish their view of the facts
where they differ with the view of the courts, I dissent and would
grant certiorari to review this important question of
constitutional law.
Footnotes
Footnote 1 Although the
decision below concerned directed verdicts, its holding would
affect the courts' treatment of summary judgments and judgments
notwithstanding the verdict as well. In each of these situations,
the court is called upon to answer the same question: whether there
is sufficient evidence for the jury to find actual malice under the
applicable "clear and convincing evidence" burden of proof.
Footnote 2 The court ruled
that the wrestling team was denied its right to cross-examine
witnesses and to call witnesses on its behalf. The court did not
make any factual findings concerning the underlying occurrences,
nor did it comment on those occurrences.
Footnote 3 The ruling that
Milkovich is a public figure is unchallenged.
Footnote 4 The court
stated:
"In the instant case, a court of law,
based on the evidence before it, and having the right to determine
where the truth lay, even though on a due process question,
determined the truth in favor of the plaintiff and the wrestling
team he coached. Thus he had his day in court and was, at that time
at least, exonerated by the only recognized arbiter of the truth in
our American judicial system, but thereafter was still called a
liar for the testimony he allegedly gave during that trial. . . .
It would appear that, though the press might be at liberty to
criticize the judicial process and the results of a given case,
unless and until the judgment of the Court is overturned on appeal,
the determination of what constitutes the truth has been made. Thus
any news article written either as fact as a news item, or as
opinion, that is published knowing that it conflicts with a
judicial determination of the truth, may, in our opinion, be
regarded as a reckless disregard of the truth so as to constitute
'actual malice' so as to be actionable libel of a public person.
Whether, in a given case, it constitutes a reckless disregard of
the truth, is not, in our opinion, a question of law, but a
question of fact based on the evidence before the Court." 65 Ohio
App.2d 143, 148, 416 N.E.2d 662, 666 ( 1979).
Footnote 5 Although the
appellate court below remanded the case for retrial, including a
jury determination on the actual-malice issue, the decision was
nonetheless a final judgment for purposes of 28 U.S.C. 1257. A
decision in favor of petitioners would terminate the litigation,
while a failure to decide the question now would leave the press in
Ohio " operating in the shadow of . . . a rule of law . . . the
constitutionality of which is in serious doubt." Cox Broadcasting
Corp. v. Cohn,
420 U.S.
469, 486, 1042 (1975); Miami Herald Publishing Co. v. Tornillo,
418 U.S. 241,
246-247, 2834 (1974).
Footnote 6 Indeed, at common
law, a factual finding embodied in the judgment in another cause
could not even be used as evidence of that fact in court. 5 J.
Wigmore, Evidence 1671a, pp. 806-807 (Chadbourn rev. 1974).
Comments
Be the first to comment
Leave a Comment