Most efforts to separate "fact" from "opinion" start with the belief that a "fact" is something verifiable, while an opinion is not. The branch of philosophy known as logical positivism is built on the proposition than only what is verifiable is worth debating (more rigorously, that "there are no synthetic a priori statements except this one"), but it has fallen on hard times not only because no one can separate the "verifiable" from the "non-verifiable" (was the statement "there are craters on the other side of the moon" an opinion that turned to fact when we gained the ability to put satellites in orbit around the moon?), but also because most philosophers believe that there are useful ways to debate even non-verifiable statements.
They may be derived from axioms (or from axiomatic arguments about the "state of nature"); if this treatment is impossible, their implied factual bases may be tested. Courts trying to find one formula to separate "fact" from "opinion" therefore are engaged in a snipe hunt, paralleling the debates between positivist and deontological thinkers in philosophy. Perhaps
the Constitution requires the search for this endangered species, but more likely the difference between "fact" and "opinion" in constitutional law responds to the pressure the threat of civil liability would place on kinds of speech that are harmless or useful, not on the ability to draw a line that has vexed philosophers for centuries. See Ollman, 750 F.2d at 995-1001 (Bork, J., concurring). It is the cost of searching for "truth" -- including the cost of error in condemning speech that is either harmless or in retrospect turns out to be useful, a cost both inevitable and high in our imprecise legal system -- that justifies the constitutional rule. Like other attempts to compare things that can be neither quantified nor reduced to a
common metric (how much does the value of free speech "weigh" compared with the value of reputational injury?), this will never yield a rule.
The potential for erroneous condemnation of harmless or beneficial speech should make courts reluctant to embrace unstructured, multi-factor "tests". For the first amendment is valuable only when the speech is threatening and unpopular -- for only then would juries condemn speech in the absence of a constitutional rule. If the Constitution protects only moderate speech, it protects nothing. Supercharged rhetoric is part of many political debates, as is the careless and inaccurate accusation; these inevitably injure, yet speech must be protected even when it injures, lest the scope of debate be curtailed. Hustler Magazine v. Falwell, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988). A "balancing test" readily yields to the impulse to stamp out speech "just this one time" in order to punish a particularly crude and unjustified sally; the felt necessities of the day overwhelm the general principle, and a balancing test has no resource to prevent it. The case seems the exceptional one; and the jury -- drawn from throughout northern Illinois -- may bring to the case sensibilities about "acceptable" speech very different from those prevailing in the Mollison school zone. The prospect of exceptions "for this day and train only" destroys the value of the rule, however. Before adopting a multi-factor approach we should consider, too, a powerful structural objection: the first amendment says that "Congress shall make no law ... abridging the freedom of speech", not that "Congress shall make no unwise law...". The State of Illinois is not Congress, but the first amendment applies (through the fourteenth) just the same, and so far as the federal courts are concerned a rule of common law is no different from a statute. Our court has so far refrained from deciding how to go about identifying protected "opinions", see Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d 1119, 1129 n.3 (7th Cir. 1987), and we are not anxious to settle that question now, unless that is essential.
Before attempting to compare the incomparable, we need to ask whether Illinois would treat the statements in question as defamatory. The first inquiry in any "constitutional case" is whether there is any need to declaim on the meaning of the Constitution. Unless Illinois would treat Tillman's statements as actionable, there is no constitutional defense to consider. The district court assumed that only the first amendment stood between Tillman (and friends) and civil liability. Our reading of Illinois law is different; we do not think the statements characterized as "opinions" are actionable independent of the factual propositions they imply--propositions that were in fact submitted to the jury.
Here is a sample of the statements that the district court found constitutionally-protected as "opinions".
She made numbers of very racist statements, so many that I would use all of my time to explain to you some of the statements that were made.
Our children are afraid of her. I think discipline is fine. The child must respect the principal; he or she must respect the teachers. But I mean there is no sense--and our children feel as though they are on a plantation. And there is no reason in 1981 why we should have a principal making such racist statements. The teachers of the school have brought to most of our attention that it has been run as a dictatorship, and we do not need a dictatorship in our children's school.... They're being degraded and put down, and it's all because of a dictatorship with Miss Stevens.
We have exposed the Mollison pollution. . . . Since 1975, the quality of education has gone down at Mollison School and Miss Stevens has sat and watched it. She did nothing about it.... Miss Stevens is insensitive to the children, the parents and the community. We can no longer allow her to destroy our children's minds.
Tillman and her confederates disclosed the principal bases of their condemnations. The students were doing poorly at math; Stevens employed a method of testing that her witnesses at trial conceded was improper; the students were forced to walk home and back again at lunch; Stevens was a strict disciplinarian; Stevens thought poorly of the pupils ("welfare children") and their prospects (they needed "psychologicals"); and on and on. Most of these factual averments were submitted to the jury, which found several false but not intentionally so; others were found true (or were not pressed by Stevens). All that remained was the characterization, which under Illinois law is not actionable apart from the underlying statements of fact.
One subject was removed from the jury's purview without any (evident) submission of underlying fact: the repeated claim that Stevens is a "racist". This was offered as a body blow, an attack on fitness and integrity. Stevens argues that it is libel per se under Illinois law. Tillman also declared that Stevens "made numbers of very racist statements, so many that I would use all of my time to explain to you some of the statements that were made." Stevens either did or did not make repugnant statements; Tillman said that she had, yet offered no examples. One is entitled to wonder how such an assertion can be "opinion." Perhaps Tillman meant only to characterize statements of the "welfare-mother" variety; this interpretation would be an opinion rather than a declaration of fact. The words also might have implied something like: "Stevens made to me statements similar to those that Gov. Ross Barnett made while standing in the schoolhouse door, and she holds the same views about black people that Barnett did." That would be a statement of fact, and could be quite wrong.
Curiously, Stevens does not contend that the jury should have been allowed to consider whether Tillman's oratory implied to listeners that Stevens had made the kind of statements that all ears find repellant. Stevens contends that the epithet "racist" is itself actionable because it marks her as unfit to be principal of a public school and because Tillman used the term (in conjunction with the claim that she had conducted an "investigation") to imply possession of derogatory information. The results of the "investigation", such as it was, were spread before the jury. We do not think a court of Illinois would agree that the term itself is actionable, so again we do not consider any constitutional argument.
Illinois has competing doctrines: first, that statements impugning one's professional competence are actionable without further proof of injury; second, that "mere name-calling" is not actionable. Compare Costello v. Capital Cities Media, Inc., 111 Ill. App. 3d 1009, 445 N.E.2d 13, 67 Ill. Dec. 721 (5th Dist. 1982) ("lying leadership" is actionable per se), affirmed in relevant part after later appeal, 153 Ill. App. 3d 956, 505 N.E.2d 701, 708, 106 Ill. Dec. 154 (1987); Erickson v. Aetna Life & Casualty Co., 127 Ill. App. 3d 753, 469 N.E.2d 679, 83 Ill. Dec. 72 (2d Dist. 1984) (calling chiropractor's treatment "unreasonable & unnecessary" is actionable per se); with, e.g., Horowitz ("sleazy" and "rip-off' are name-calling); Valentine v. North American Co. for Life & Health Insurance., 60 Ill. 2d 168, 328 N.E.2d 265 (1974) ("lousy agent" is name-calling); and Skolnick v. Nudelman, 95 Ill. App. 2d 293, 305, 237 N.E.2d 804, 810 (1st Dist. 1968) ("nut", "mishuginer", and "screwball" are name-calling). We shall not pretend to be able to harmonize these cases. "Liar" and "unnecessary medical treatment" imply a greater degree of certainty than does "lousy agent" or "rip-off" and therefore, we suppose, imply access to additional supporting facts, but there is hardly a bright line. We do not think it necessary to wrestle with the subject in light of Owen v. Carr, the most recent word from the Supreme Court of Illinois, which held that "language to be considered defamatory must be so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary." 497 N.E.2d at 1147. Owen ruled that, as a matter of law, an accusation that an attorney filed a complaint "deliberately to intimidate" the defendants was not actionable, although the comment implied professional wrongdoing.
Accusations of "racism" no longer are "obviously and naturally harmful". The word has been watered down by overuse, becoming common coin in political discourse. Tillman called Stevens a racist; Stevens issued a press release calling Tillman a "racist" and her supporters "bigots". Formerly a "racist" was a believer in the superiority of one's own race, often a supporter of slavery or segregation, or a fomenter of hatred among the races. Stevens, the principal of a largely-black school in a large city, obviously does not believe that blacks should be enslaved or that Jim Crow should come to Illinois; no one would have inferred these things from the accusation. Politicians sometimes use the term much more loosely, as referring to anyone (not of the speaker's race) who opposes the speaker's political goals -- on the "rationale" that the speaker espouses only what is good for the jurisdiction (or the audience), and since one's opponents have no cause to oppose what is beneficial, their opposition must be based on race. The term used this way means only: "He is neither for me nor of our race; and I invite you to vote your race." When Stevens called Tillman a "racist", Stevens was accusing Tillman of playing racial politics in this way rather than of believing in segregation or racial superiority. That may be an unfortunate brand of politics, but it also drains the term of its former, decidedly opprobrious, meaning. The term has acquired intermediate meanings too. The speaker may use "she is a racist" to mean "she is condescending to me, which must be because of my race because there is no other reason to condescend" -- a reaction that attaches racial connotations to what may be an inflated opinion of one's self -- or to mean "she thinks all black mothers are on welfare, which is stereotypical". Meanings of this sort fit comfortably within the immunity for name-calling.
Language is subject to levelling forces. When a word acquires a strong meaning it becomes useful in rhetoric. A single word conveys a powerful image. When plantation owners held blacks in chattel slavery, when 100 years later governors declared "segregation now, segregation forever", everyone knew what a "racist" was. The strength of the image invites use. To obtain emotional impact, orators employed the term without the strong justification, shading its meaning just a little. So long as any part of the old meaning lingers, there is a tendency to invoke the word for its impact rather than to convey a precise meaning. We may regret that the language is losing the meaning of a word, especially when there is no ready substitute. But we serve in a court of law rather than of language and cannot insist that speakers cling to older meanings. In daily life "racist" is hurled about so indiscriminately that it is no more than a verbal slap in the face; the target can slap back (as Stevens did). It is not actionable unless it implies the existence of undisclosed, defamatory facts, and Stevens has not relied on any such implication.
The district court instructed the jury that it could return a verdict for Stevens only if it found by clear and convincing evidence that any falsehood had been uttered with knowledge of the lie or recklessness toward the truth. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); New York Times Co. v. Sullivan, 376 U.S. 254, 279-86, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). It did so on two grounds: that Stevens is a public official, and that the speakers were exercising their right to petition the government for redress of grievances.
Stevens relies on Hutchinson v. Proxmire, 443 U.S. 111, 133-36, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979), for the proposition that public criticism does not transmute the target into a "public figure". Granted. But Stevens was a public official -- just like the commissioner who supervised the police department in New York Times v. Sullivan -- whether or not she was a public figure. Her performance as a public official was open to public comment. Rosenblatt v. Baer, 383 U.S. 75, 85-86, 15 L. Ed. 2d 597, 86 S. Ct. 669 (1966). Stevens was not an elected public official, but as principal she possessed great discretion over the operation of Mollison School. How she used that discretion was the subject of legitimate public debate. Perhaps there should be a "limited-purpose public official" just as there is a "limited-purpose public figure", see O'Donnell v. CBS, Inc., 782 F.2d 1414, 1417 (7th Cir. 1986), for even senior bureaucrats such as Stevens should not be required to forego all privacy interests in order to render public service just because those running for public office do. If there be such a doctrine, however, it would not assist Stevens. The statements at issue here dealt with the way Stevens ran Mollison School, not with her private life.
Too, as the district court held, the statements in question either were made at meetings of the Board of Education or were part of a campaign to influence the Board. The statements made directly to the Board are governed by the New York Times standard under the holding of McDonald v. Smith, 472 U.S. 479, 86 L. Ed. 2d 384, 105 S. Ct. 2787 (1985). Those made as part of the campaign to whip up public support in order to put pressure on the Board to remove Stevens are equally protected. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-12, 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982); cf. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961); Premier Electrical Construction Co. v. National Electrical Contractors Ass'n, Inc., 814 F.2d 358, 371-76 (7th Cir. 1987). The first amendment prohibits efforts to ensure "laboratory conditions" in politics; speech rather than damages is the right response to distorted presentations and overblown rhetoric. A campaign to influence the Board of Education is classic political speech; it is direct involvement in governance, and only the most extraordinary showing would permit an award of damages on its account. The district court did not err in instructing the jury that only evidence satisfying the New York Times standard would permit an award of damages.
We come at last to the claim under section 1985(3), which was the basis of federal jurisdiction in this case. The statute provides:
As we understand the Supreme Court's contemporary cases, section 1985(3) reaches three kinds of conduct:
2. Racially-motivated private conspiracies to deprive persons of rights secured to all by state law, where the deprivation interferes with the exercise of a federally-protected right. A cross-burning (trespass and assault) by the Klan is an example to the extent the threat of violence induces the targets to refrain from exercising federally-assured rights, such as the rights to travel, to associate or speak, and to vote.
3. Racially-motivated conspiracies to deprive persons of rights secured only against governmental action (such as the right of free speech), provided the defendants are either "state actors" or seeking to influence the state to act in a prohibited way. Scott, 463 U.S. at 831-34; Cohen v. Illinois Institute of Technology, 524 F.2d 818, 828-30 (7th Cir. 1975) (Stevens, J.).
Stevens does not argue that the defendants' efforts to induce the Board to get rid of her "aim[ed] at a deprivation of the equal enjoyment of rights secured by the law to all" (Griffin, 403 U.S. at 102). The standard federally-secured rights -- to speak, worship, travel, and so on -- are not at stake. Stevens' position as principal was put at risk, but neither state nor federal law creates a "property" interest in a principalship. The Board of Education was free to transfer Stevens if it chose, and under Bigby v. City of Chicago, 766 F.2d 1053 (7th Cir. 1985), there is no independent federal right in having an especially desirable public job. There may well be a federal right in ability to practice the common occupations of the community, see Truax v. Raich, 239 U.S. 33, 38-42, 60 L. Ed. 131, 36 S. Ct. 7 (1915); Scott v. Village of Kewaskum, 786 F.2d 338, 340 (7th Cir. 1986), but that right was not in jeopardy. Moreover, Stevens does not contend that Tillman violated any of her rights under state law (such as the right to be free from assault) for the purpose or with the effect of inducing her to surrender or refrain from exercising rights secured by federal law.
The claim under method (3) is more plausible: Stevens argues that Tillman and supporters plotted to get rid of her on racial grounds; and although this is a right secured against state rather than private action, Stevens was trying to influence the Board of Education, a state actor. We very much doubt that section 1985(3) properly may be used to penalize racially-motivated political campaigns, any more than the antitrust laws may be used to penalize deceitful campaigns to obtain protection from competition. See Noerr and related cases discussed in Premier. We need not pursue this, however, because the Board of Education took no action; Stevens did not suffer injury at official hands; since she was not "deprived" by the Board of any entitlement, she may not recover on the line of reasoning approved in Scott.