William J. Brennan, Jr.

“ Readers of Diadiun's column are signaled repeatedly that the author does not actually know what Milkovich said at the court hearing and that the author is surmising, from factual premises made explicit in the column, that Milkovich must have lied in court. [9] Like the "imaginative expression" and the "rhetorical hyperbole" which the Court finds have "traditionally added much to the discourse of our Nation," ante, at 18, conjecture is intrinsic to "the free flow of ideas and opinions on matters of public interest and concern" that is at "the heart of the First Amendment." ”

“ Thus, the commissioner's alleged assertion that the testimony in court was different is quite nebulous. It might indicate that the officials told the truth in court, in contrast to the version given to the commissioners, or that the officials discussed entirely different issues, rather than that they told a new lie.↑ Both state and federal courts have found that audiences can recognize conjecture that neither states nor implies any assertions of fact, just as they can recognize hyperbole. ”

“ However, I would think that documentary or eyewitness testimony that the speaker did not believe his own professed opinion would be required before a court would be permitted to decide that there was sufficient evidence to find that the statement was false and submit the question to a jury. Without such objective evidence, a jury's judgment might be too influenced by its view of what was said. ”

“ But often only some of the facts are known, and solely through insistent prodding through conjecture as well as research-can important public questions be subjected to the "uninhibited, robust, and wide-open" debate to which this country is profoundly committed. ”

“ Diadiun emphasizes to the audience that he was present at the wrestling meet where the brawl that led to the team's suspension took place and that he was present at the hearing before the OHSAA. He attributes the brawl to Maple Heights coach Milkovich's wild gestures, ranting and egging the crowd on against the competing team from Mentor. He then describes Milkovich's testimony before the OHSAA, characterizing it as deliberate misrepresentation "attempting not only to convince the board of [his] own innocence, but, incredibly, shift the blame of the affair to Mentor." ”

“ As we have long recognized, a jury "is unlikely to be neutral with respect to the content of speech and holds a real danger of becoming an instrument for the suppression of those 'vehement, caustic, and sometimes unpleasantly sharp attacks,' . ”

“ No reasonable reader could understand Diadiun to be impliedly asserting-as fact-that Milkovich had perjured himself. Nor could such a reader infer that Diadiun had further information about Milkovich's court testimony on which his belief was based. It is plain from the column that Diadiun did not attend the court hearing. Diadiun also clearly had no detailed second hand information about what Milkovich had said in court. ”

“ Where readers know that an author represents one side in a controversy, they are properly warned to expect that the opinions expressed may rest on passion rather than factual foundation. See, e.g., Potomac Valve & Fitting Inc. ”

“ Falwell, supra. As Justice Holmes observed long ago: "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918) .
For instance, the statement that "Jones is a liar," or the example given by the majority, "In my opinion John Jones is a liar"-standing alone-can reasonably be interpreted as implying that there are facts known to the speaker to cause him to form such an opinion. ”

“ The assertion Jones must prove false is that the speaker had, in fact, drawn the inference that Jones lied.↑ Conjecture, when recognizable as such, alerts the audience that the statement is one of belief, not fact. The audience understands that the speaker is merely putting forward a hypothesis. ”

“ Falwell, 485 U.S., at 50, 108 S.Ct., at 879. The public and press regularly examine the activities of those who affect our lives. "One of the perogatives of American citizenship is the right to criticize men and measures." ”

“ The premises are explicit, and the reader is by no means required to share [the author's] conclusion." For the same reason, the court in Dunlap v. Wayne, 105 Wash.2d 529, 540, 716 P.2d 842, 849 (1986) , concluded: "Arguments for actionability disappear when the audience members know the facts underlying an assertion and can judge the truthfulness of the allegedly defamatory statement themselves." ”