Indiana appeals court reinstates former basketball scout’s defamation suit

Wednesday, June 2, 1999

The Indiana Court of Appeals has reinstated a slander suit filed by a former scout for a high school girls basketball team, saying that a lower court erred in ruling that opinions are automatically protected by the First Amendment.

Hayden McQueen, who served as a scout for Connersville High School's girls basketball team and coach at a local basketball camp, sued Fayette County School Corporation, the school superintendent and a teacher/coach at Connersville High School. McQueen claimed that Larry Miller, a teacher and coach at the school, stated: “You [McQueen] and your friends, including Joe 'Doc' Heavey, have destroyed and undermined the girls' [basketball] program and get out of here.”

A trial judge initially dismissed McQueen's suit, ruling that “the statement … is merely a statement of opinion and therefore not actionable. Such utterances are protected by the First Amendment.”

The trial judge relied on a 1986 Indiana Court of Appeals decision that said opinions are “absolutely protected under the First Amendment.”

In McQueen v. Fayette County School Corporation, the Indiana Court of Appeals, by a 2-1 vote, on May 25 reversed the lower court, finding that opinion is not automatically protected by the First Amendment.

The Indiana appeals court relied on the U.S. Supreme Court's 1990 decision in Milkovich v. Lorain Journal Co. for the determination that statements cast as opinions can be defamatory if they imply assertions of fact.

In Milkovich, the Supreme Court ruled that a high school wrestling coach's defamation suit against a reporter should not be dismissed just because the writer had couched the language in his column in the form of an opinion.

“'In my opinion Jones is a liar' can cause as much damage to reputation as the statement, 'Jones is a liar,'” the court wrote.

“We are not persuaded that … an additional separate constitutional privilege for 'opinion' is required to ensure the freedom of expression guaranteed by the First Amendment,” the high court wrote in Milkovich.

The crucial question, according to the Indiana court of appeals, is not whether a statement is worded as an opinion, but whether a jury could conclude that the statement implies facts which may be proven true or false.

The statements about McQueen imply “verifiable facts” concerning his “performance and conduct as a basketball scout and coach,” said the Indiana appeals court. For this reason, the court said that it must, at this “early stage of the litigation,” send the case back down to the trial court for further proceedings.

John P. Young, attorney for McQueen said the Indiana Court of Appeals correctly ruled that Milkovich was the controlling precedent, not a pre-Milkovich state court opinion.

“The Indiana courts are now in line with Supreme Court case law,” he said. “The law of defamation is sufficient to protect freedom of speech without the creation of artificial categories which will create further confusion.”

A call placed to the attorney for the defendants was not returned.