Opinion Protected, Not Immune, Lawyer Warns p. 9

By: M.L. Stein

OP-ED PAGE EDITORS comfortable in the belief that trafficking an opinion makes them immune from libel suits ought to worry, according to a legal expert.
"You should not let down your guard because it's an opinion piece," said Robert D. Richards, a lawyer and associate professor of law and journalism at Penn State University.
In an address to the recent annual conference of the Association of Opinion Page Editors (AOPE) in Los Angeles, Richards warned that opinion articles have been vulnerable to defamation suits since the U.S. Supreme Court ruled in favor of the plaintiff in Milkovich vs. Lorain Journal in 1990.
In that case, a wrestling coach sued the paper for a sports column in which the writer opined that the coach had lied to a committee investigating about an altercation at a wrestling match.
Richards, the founding director of the Pennsylvania Center for the First Amendment at Penn State, said the decision meant "there is no automatic constitutional protection for statements of opinion. Accordingly, there is a need to take a closer look to see if there are trouble spots to avoid when editing your paper."
Statements that could be reasonably understood as "declaring or implying a provable assertion of fact" could pose legal problems, he pointed out. Opinion or not, Richards said, danger lurks if readers assume the writer had some facts as a basis for his opinion.
Milkovich notwithstanding, "pure opinion" remains pretty much as well protected as it was before the ruling, Richards said.
The question, he said, turns on the difference between pure opinion and opinion based on wrong information, incomplete facts or an "erroneous assessment of the facts."
"There is nothing we can do that will stop someone from suing you," he said, "but we can look at how to reduce the chances that a lawsuit filed against you will not be successful."