In Milkovich v. Lorain Journal Co., the Supreme Court held that there is no separate constitutional protection for statements of opinion. It also held that an accusation that an individual lied is a statement of fact actionable in defamation. Lower courts have, correctly in our view, essentially ignored both holdings. In Part I we discuss Milkovich and the infirmities in its reasoning. In Part II we discuss the complex nature of lies and accusations of lies and argue that Milkovich failed to account for that complexity. In Part III we discuss the strategies the lower courts have used to steer around the problematic Milkovich decision. And in Part IV we offer suggestions for the future direction of jurisprudence in this complicated area of the law.
Leonard Niehoff & Ashley Messenger,
Milkovich v. Lorain Journal Twenty-Five Years Later: The Slow, Quiet, and Troubled Demise of Liar Libel,
U. Mich. J. L. Reform
Available at: http://repository.law.umich.edu/mjlr/vol49/iss2/4