IT WAS BOUND to happen, and it didn't take long. The first in what will likely become a flood of libel suits arising from negative opinions has been filed in a Washington, D.C., federal court.
Opinions were once immune, for the most part, from libel suits. Their protected status changed last June in a U.S. Supreme Court case, Milkovich v. Lorain Journal Co., centered on a negative opinion expressed in an Ohio sports column.
In that case, the court ruled that opinions which imply underlying false and defamatory facts are actionable in libel. The ruling made clear that journalists could not rely on a "wholesale defamation exemption for anything that might be labeled 'opinion.' "
The decision jolted journalists across the country, for it meant that editorial and opposite-editorial pages were no longer sacrosanct. Opinion writers could become subject to a flurry of defamation suits.
Fears of this type of litigation have now been realized. The first such lawsuit stems from a negative book review by the New York Times. The $10 million suit alleges that a Times sportswriter "falsely portrayed [author Dan E. Moldea] as a sloppy and incompetent journalist" in a review last year of Moldea's book, "Interference: How Organized Crime Influences Professional Football."
Although media law experts are split over the outcome of opinion-based defamation suits, the chilling effect of the Milkovich case in particular will intensify as such litigation becomes more prevalent. Author Moldea was quoted in the Washington Post as calling the decision a "godsend" for his lawsuit.
News organizations should brace themselves for this type of litigation in the wake of this case. Whatever the result, merely defending the suits will be costly. The price will be paid not only in dollars, but also in journalistic freedom.
It would certainly be tragic if the media toned down their columns and reviews as a result of this latest Supreme Court pronouncement. Yet that scenario is inevitable if courts allow the Milkovich decision to run its intimidating course, as in the case of an author suing for a negative book review.
Surely the Supreme Court must have envisioned such a result -- one which does not bode well for judicial economy. It is now incumbent upon trial court judges to set up a dike against the oncoming deluge of cases by narrowly construing Milkovich and summarily dismissing all but the most legitimately actionable opinion-based lawsuits.
Robert D. Richards is a lawyer and assistant professor of = communications at Penn State University.