The proper balance:

...All that the decision in the Oilman case did was to reaffirm that one who would attack another who is already in a socially and politically disfavored position (and that is putting it mildly) will have to show in court either truth or some other justification for the smear...

...The decisiona unanimous finding that the case, originally dismissed long before trial, should proceed is a sophisticated and successful attempt to strike a balance between twin, often incompatible "goods," the right to reputation and freedom of the press...

...Public figures and political officials had to meet higher standards of proof before they could prevail, so that it became almost impossible for them to harass the media by often unfounded (indeed, on occasion, even well-founded) actions...

...It has been a constant lament by students of the subject that, often, "undeserving" plaintiffs arbitrarily win while those most damaged arbitrarily lose libel cases...

...Ironically, a mere opinion which could both be devastating to reputation and solely and clearly a reflection of a dyspeptic or idiosyncratic judgment was generally not actionable...

...Damages in all cases (not only those involving public officials or figures) had to proven and could no longer be "presumed...

...Such attacks go far beyond opinion...

...Even after Oilman v Evans, there is considerable room for journalistic "opinion'' for instance, to claim that a ' 'reputation,'' in the judgment of the writer, is "unwarranted" or "excessive" would be unexceptional...

...Oilman v. Evans THE PROPER BALANCE IN CASE OF LIBEL ON AUGUST 5, 1983, a panel of the United States Court of Appeals for the District of Columbia Circuit, in a widely noted decision, held that a Marxist professor of political science had a prima facie case of libel against two national newspaper columnists who had charged, among other things, that he desired to use the classroom for "indoctrination," that he was not a scholar but a "political activist," and that he had "no status within the [academic] profession...

...ISIDORE SILVER (Isidore Silver is a professor of constitutional law and history at John Jay College of Criminal Justice in New York City...

...Again, quite simply, to call a professor an indoctrinator and to attach other invidious and damaging labels to his academic intentions and performance is not protected speech...

...But there is nothing in the theory or practice of the First Amendment which dictates or requires that the traditional tort of libel, when private persons have been maligned (note that no newspaper which carried the attack involved herein was sued), should be abolished...

...rather, it vindicates individual dignity, and from this we can all take heart...

...But, at this early juncture, to decide that a vitriolic attack on a choice target (I assume that Marxist professors are always or at least generally in America such targets) is not even potentially libelous was simply wrong (indeed, the lower court even admitted that' 'biased journalism'' may have been involved and it blithely refused to decide whether plaintiff was a public figure...

...Libel law was unquestionably harsh too harsh for the defendant since, for instance, it punished "pure" speech and "presumed" damages to reputation even where none could be proved, permitted high monetary awards by juries (including "punitive damages" which are exactly what the term implies, damages that "punish" a wrongdoer in addition to restoring the good name of the libel victim), and required the media defendant to prove rather than the plaintiff to disprove literal and complete truth...

...When language, cast either in the form of fact or what may be a "hybrid'' of fact and opinion (as at least one judge held), tends to stigmatize an individual, especially in his chosen profession, it should, quite simply, be legally actionable...

...The problem with libel law is that its' 'neutral principles'' at present insufficiently distinguish between those who attempt to use the law as a "shield" (to protect a damaged reputation) and a'' sword'' (to clobber and silence media critics...

...In the " good old days,"before judicial intervention into the ability of the states to broadly define and heavily punish (often, by excessive monetary awards) libel, the question was simple...

...The configuration of the terrain of plaintiff s happy hunting ground against the media provided for by traditional libel rules and practices was changed by the United States Supreme Court in a series of decisions commencing in 1964...

...Pure "opinion," at least where the performance of public officials and figures was concerned, gained even greater protection...

...That has been the problem throughout the ages, and it was the problem only partially addressed by the Supreme Court's "liberalizing" decisions of the last two decades...

...Ordinarily, the judge would decide, usually before trial,whether the writing could be libelous...

...That harshness, in turn, led to litigational witch-hunts by politicians and other public figures who could afford the enormous costs of suing their media critics...

...Did a writer cast another into' 'hatred, ridicule, or contempt,'' and, if he did, was what was written "true...

...There is no real threat to freedom of the press in this decision...

...The appeals court forthrightly recognized the wrong and permitted the action to continue there will be other formidable obstacles in plaintiffs path...

...the jury, after hearing both sides, would determine whether the "average reader" could reasonably believe that the writing was both libelous and damaged reputation...

...Of course, other defenses, both traditional (truth, fair comment on matters of public interest) and new (if plaintiff is a public figure) are available as the Oilman case proceeds...

...Numerous and conflicting sub-rules developed over many centuries to reflect the great strains of libel law prompted by the conflict between reputation and free press mentioned above...

...Since I was attorney for the winning party and since perfunctory newspaper reports do not fully capture the nuances of this important decision, I believe that a careful explanation is owed both the public (which is probably totally confused by the present state of American libel law) and the media (which may regard Oilman v. Evanswrongly, I thinkas yet another "conservative" retreat from recent Supreme Court holdings which have gone far to insulate the press from liability for libel...

...This is as it should be and nothing in Oilman v Evans is to the contrary...