Case Information
*1
[Cite as
Corso Ventures, L.L.C. v. Paye
,
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Corso Ventures LLC et al., :
Plaintiffs-Appellants, :
(C.P.C. No. 20CV-3762) v. :
(REGULAR CALENDAR) Ricardo Paye et al., :
Defendants-Appellees. :
D E C I S I O N
Rendered on January 17, 2023 On brief: Law Offices of James P. Connors , and James P.
Connors , for appellants. Argued: James P. Connors.
On brief: Frost Brown Todd LLC , Kevin T. Shook , Zackary L. Stillings , and J. Maxwell Williams , for appellees.
Argued: Kevin T. Shook .
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J. Plaintiffs-appellants, Corso Ventures LLC ("Corso Ventures") and
Christopher J. Corso, appeal from a decision and entry of the Franklin County Court of Common Pleas granting the motion for summary judgment of defendants-appellees, Ricardo Paye, also known as Gere Jordan, and Subvertical Limited LLC ("Subvertical Limited"). For the following reasons, we affirm.
I. Facts and Procedural History The pertinent facts are not in dispute. Jordan is the sole member of
Subvertical Limited, the entity that publishes the website DelawareOhioNews.com. Jordan writes articles and other content published on the website, often using the pen name *2 Ricardo Paye. Jordan characterizes the website as a "satirical website" that publishes fictional stories to "poke fun" at issues of local or national interest. (Jordan Aff. at ¶ 4.) The website contains an "about us" section that states:
Delaware Ohio News is an online news and content source dedicated to Delaware, Ohio. Founded in the year 1808, we strive to be Delaware's premier news source, second only to the illustrious Delaware Gazette. Although we were the first Delaware, Ohio newspaper, they remain the lords of Delaware news media. That's why we're suicidal and on so many drugs.
With all of that said, everything on this website is made up. Do not rely on anything said here.
Don't believe us? Read our Legal Statements. (Jordan Aff. at ¶ 5.) The Legal Statement section of the website contains the following statement:
All stories herein are parodies (satire, fiction, fake, not real) of people and/or actual events. All names are made up (unless used in a parody of public figures) and any similarity is purely coincidental.
DelawareOhioNews.com is not affiliated with Ohio Wesleyan University or any other publication.
DelawareOhioNews.com is intended for use by those age 18 and older. If you think your child can handle this humor, it is up to you. We are not role models.
(Jordan Aff. at ¶ 5.) In January 2020, Jordan saw a story on the local news that Short North Food
Hall, a restaurant in Columbus, had established a dress code prohibiting certain articles of clothing and accessories. Jordan described the dress code as prohibiting numerous articles of clothing associated with Black culture. The news report identified Corso Ventures as the parent company of Short North Food Hall and stated that Christopher Corso owned the restaurant. In response to the local news report, Jordan wrote and published three articles on his website with the following titles: "Corso Ventures' Newest Bar, Nigghers, Coming to Short North This Fall," "Short North Food Hall Literally Just Googled 'How to Keep Black People Out of Bars,' " and "White Wednesdays at Short North Food Hall." (Jordan Aff. at *3 ¶ 15-17.) Those articles appeared on the website surrounded by other headlines that Jordan characterizes as satirical, including "Socially Distanced July 4th Parade Will be 86 Miles Long, Last 40 Hours," "Health Department: Please Cover Your Dog's Anus to Prevent Spread of Coronavirus," "VA Patients to Share Prosthetics After Kasich Denies Funds," and "Ohio Gov. John Kasich Legalizes Exhumation of Confederate Soldiers Statewide." (Jordan Aff. at ¶ 6.) In response to the publications of the articles, appellants, through counsel,
wrote a May 17, 2020 letter to Paye and Subvertical Limited seeking to have the articles removed from the website. When appellees did not respond to the letter, appellants filed a complaint on June 11, 2020 alleging the articles were defamatory. Appellants described the articles as "highly offensive, outrageous, malicious, and hateful racist articles and publications about [appellants]." (Compl. at ¶ 7.) The complaint contained eight causes of action: (1) defamation, (2) slander, slander per se, and libel, (3) false light/invasion of privacy, (4) declaratory and injunctive relief, (5) negligence, (6) tortious interference with business relationships and contracts, (7) fraud and/or negligent misrepresentation, and (8) civil conspiracy. Appellants sought compensatory and punitive damages in an amount exceeding $2,000,000 as to each claim in Counts 1, 2, 3, 5, 6, 7, and 8 as well as removal of all defamatory posts and statements from all websites and publications. Appellees filed a motion for summary judgment on March 18, 2021 arguing
the publications were satire and, therefore, protected speech under the First Amendment and Ohio law. Because all of appellants' claims depended on a finding that the publications are defamatory, appellees argued the claims fail as a matter of law as the publications are protected satire and thus could not constitute defamation. In support of their motion for summary judgment, appellees relied on Jordan's affidavit, copies of the three articles that were the subject of the complaint, copies of the website's about us section and legal disclaimer, and images from the website showing the headlines of the other articles surrounding the articles related to appellants. Additionally, appellants filed copies of local news reports related to the dress code at Short North Food Hall from the websites for WBNS 10TV, The Columbus Dispatch, NBC 4 WCMH-TV, and Columbus Alive. Some of the articles related to Short North Food Hall issuing an apology for the dress code after backlash on social media. The article from NBC 4 WCMH-TV quoted a joint statement *4 from Corso Ventures, NAACP Columbus, the Columbus Community Relations Commission, and the Columbus Urban League that stated " '[t]he dress code was clearly a mistake. Sadly it raised a number of concerns about racism and bigotry that, while never intended, are clearly understandable. Chris Corso and his entire team are truly sorry for the error.' " (Appellees' Mot. for Summ. Jgmt., Ex. A-7.)
{¶ 6} Appellants filed a memorandum contra to the motion for summary judgment on May 27, 2021, arguing summary judgment was inappropriate because the statements were defamatory and neither Corso nor Corso Ventures is the owner of Short North Food Hall. Appellants argued the articles were defamation per se because they falsely claim Corso is racist. That same day, appellants also filed a motion to strike appellees' motion for summary judgment and accompanying affidavits and exhibits as exceeding the page limits set in the local rules and as relying on improper Civ.R. 56(C) evidence. In a September 7, 2021 decision and entry, the trial court granted appellees'
motion for summary judgment and denied appellants' motion to strike. More specifically, the trial court determined the publications are protected satire and cannot be labeled as defamatory. Thus, the trial court concluded the defamation claim must fail as a matter of law, and all the remaining claims additionally fail because they all depend upon a finding that the speech was not protected speech and are derivative of the defamation claim. Accordingly, the trial court entered judgment in favor of appellees as to all causes of action in the complaint. Appellants timely appeal.
II. Assignments of Error Appellants assign the following errors for our review:
1. The trial court erred by granting defendants' motion for summary judgment.
2. The trial court erred by deciding defendants' motion for summary judgment as a matter of law rather than as a question of fact for the jury.
3. The trial court erred by failing to find that there were both defamatory and non-defamatory interpretations of defendants' slanderous publications about plaintiffs which are questions of fact for the jury.
4. The trial court erred by deciding as a matter of law that a reasonable reader would not believe the statements in the articles at issue were actual statements of fact about plaintiffs rather than a satirical spoof.
5. The trial court erred by finding that "the offending articles at issue in the Complaint, when read in the proper context, can only be viewed as jokes, parodies, or satirical criticisms." 6. The trial court erred by failing to consider whether the defendants acted with the requisite degree of fault in publishing false defamatory statements about plaintiffs.
7. The trial court erred by denying plaintiffs' motion to strike defendants' affidavits and exhibits, and motion for summary judgment.
III. First, Second, Third, Fourth, Fifth, and Sixth Assignments of Error –
Defamation
{¶ 9} Appellants' first, second, third, fourth, fifth, and sixth assignments of error are interrelated, and we address them jointly. Taken together, these six assignments of error stand for the proposition that the trial court erred in concluding the publications are protected speech that do not constitute defamation and granting summary judgment in favor of appellees on that basis. An appellate court reviews summary judgment under a de novo standard.
Estate of Sample v. Xenos Christian Fellowship Inc.
, 10th Dist. No. 20AP-563, 2021-Ohio-
3898, ¶ 9. Summary judgment is appropriate only when the moving party demonstrates:
(1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as
a matter of law, and (3) reasonable minds could come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is made,
that party being entitled to have the evidence most strongly construed in its favor. Civ.R.
56(C);
State ex rel. Grady v. State Emp. Relations Bd
.,
{¶ 12}
Appellants' complaint alleged claims of: (1) defamation, (2) slander, slander
per se, and libel, (3) false light/invasion of privacy, (4) declaratory and injunctive relief,
(5) negligence, (6) tortious interference with business relationships and contracts, (7) fraud
and/or negligent misrepresentation, and (8) civil conspiracy. All the causes of action stem
from appellees' publications of the allegedly defamatory articles on the website. " 'Defamation, which includes both libel and slander, is a false publication
causing injury to a person's reputation, exposing the person to public hatred, contempt,
ridicule, shame or disgrace, or affecting the person adversely in his or her trade or
business.' "
Webber v. Ohio Dept. of Pub. Safety
, 10th Dist. No. 17AP-323,
a false statement was made, (2) that the statement was defamatory, (3) that the statement
was published, (4) that the plaintiff suffered injury as a proximate result of the publication,
and (5) that the defendant acted with the required degree of fault in publishing the
statement." ' "
Pratt v. Univ. of Cincinnati
, 10th Dist. No. 17AP-729,
{¶ 15}
The dispute here focuses on the second element of a defamation claim:
whether the statements were defamatory. Appellees assert, and the trial court agreed, that
all of appellants' claims must fail because the publications were protected speech in the
form of parody or satire and therefore could not constitute defamation. "Whether certain
statements alleged to be defamatory are actionable or not is a matter for the court to decide
as a matter of law."
Webber
at ¶ 37, citing
Am. Chem. Soc. v. Leadscope Inc
., 133 Ohio
St.3d 366,
all speech is protected other than 'in a few limited areas.' "
Novak v. Parma
,
read in context, could not reasonably have been interpreted as stating actual facts. See Webber at ¶ 37 (a court must review the totality of the circumstances and consider the statement within its context to determine whether a reasonable person would interpret the statement as defamatory); Novak at 427. This case involves three articles published on Jordan's website. The first is entitled "White Wednesdays at Short North Food Hall," and is formatted as a flyer advertising the supposed event. (Mot. for Summ. Jgmt., Ex. B-3.) The flyer further states "where white is right each and every Wednesday [night]," "no melanin, no cover," "all you can drink white wine," and "free grilled chicken nuggets and land line phones." (Mot. for Summ. Jgmt., Ex. B-3.) The next article is entitled "Corso Ventures' Newest Bar, Nigghers, Coming to Short North This Fall." (Mot. for Summ. Jgmt., Ex. B-3.) The article describes the opening of a new bar and nightclub "that will cater primarily to African Americans," and it uses a misspelling of a racial slur as the supposed name of the business. (Mot. for Summ. Jgmt., Ex. B-3.) This article also attributes quotes to "Principal partner Crisp Corso," including the following:
Principal partner Crisp Corso says he is excited to finally open a location where black people can give him money without getting in the way of the white people giving him money.
"I have wanted to do a project like this for awhile because I feel like I have a good sense for what those people want and need," Corso said, referring to black people. "I know they haven't felt welcome at our other spots, because they aren't, so Nigghers is an opportunity for us to give them a nightlife experience that is all their own. Hopefully the more urban ones that make us uncomfortable will choose to spend their time here instead of walking up and down high street looking for a white establishment that will let them inside."
(Sic passim.) (Mot. for Summ. Jgmt., Ex. B-3.) The third article is entitled "Short North Food Hall Literally Just Googled 'How to Keep Black People Out of Bars.' " (Mot. for Summ. Jgmt., Ex. B-3.) The first line of this article states "[c]urious how Short North Food Hall came up with their racist dress code? Simple: They Googled it." (Mot. for Summ. Jgmt., *9 Ex. B-3.) The rest of the article is a comparison between Short North Food Hall's dress code and the results of the supposed Google search. Under the reasonable reader test, the tone of all three articles indicates the statements are satirical, aimed at skewering the public news coverage of Short North Food Hall's implementation of the dress code, the ensuing public backlash, and the subsequent apology from Corso and Corso Ventures. The reasonable reader would not interpret the articles as stating actual facts. Additionally, the articles appeared on a website that clearly and expressly states that the contents of the website are fictitious and not to be construed as true by the reader. The other articles on the website are similarly satirical in nature, providing further context that the contents should not be construed as fact. In light of both the tone of the articles and the express disclaimer on the website that the contents are parody or satire and not to be construed as stating actual fact, we agree with the trial court that the reasonable reader would understand the statements to be parody or satire. Despite the satirical tone of the articles and the website more generally, as
well as the express disclaimer on the website, appellants argue the statements should not
be protected as parody because the accusation of racism is so patently offensive as to
constitute defamation per se. A statement can be defamation "per se," in which both
damages and the requisite degree of fault are presumed, where the statement " 'tends to
injure a person in his or her trade, profession, or occupation.' "
Webber
at ¶ 36, quoting
Knowles
at ¶ 24. As appellants note, "Ohio courts have determined that 'being referred to
as racist may, at times, constitute defamation per se.' "
Id
., quoting
Lennon v. Cuyahoga
Cty. Juvenile Court
, 8th Dist. No. 86651,
should not be protected as parody, all of which are unpersuasive. First, appellants assert
the website disclaimer should not provide protection to appellees because if a reader were
to conduct an internet search for Corso and find the articles through an outside link, the
reader may not see the website's disclaimer. As we stated above, however, the disclaimer
and the entire website provide the context in which the statements appear. Appellants
cannot divorce the statements from their context.
See Ferreri v. Plain Dealer Publishing
Co
.,
a private individual rather than a public figure. However, appellants misconstrue the trial
court's decision. The difference in a defamation claim brought by a private individual
versus a public figure lies not in the nature of the allegedly defamatory statement but rather
in the degree of fault required to prove the claim.
Woods v. Capital Univ.
, 10th Dist. No.
09AP-166,
parody or satire because the publications wrongly suggest that appellants are the owners of
Short North Food Hall and, thus, they dispute whether they were the creators of the dress
code. As appellants note, Short North Food Hall is owned by an entity known as 1112 Short
North LLC, not by Corso or Corso Ventures. However, we agree with the trial court that it
is immaterial whether appellants actually own Short North Food Hall or were the entities
responsible for creating the dress code. Parody and satire, by definition, do not contain
assertions of fact.
See Milkovich v. Lorain Journal Co
., 497 U.S. 1, 20 (1990), quoting
Hustler Magazine
at 50 ("the [
Greenbelt Coop. Publishing Inc. v. Bresler
, 398 U.S. 6
(1970) -
Old Dominion Branch No. 496
,
Natl. Assn. of Letter Carriers
,
AFL-CIO v. Austin
,
case will create a loophole in defamation law extending an absolute privilege to any person who makes a defamatory statement so long as the person claims the statement was satire or parody. Again, we emphasize that where a statement, under the totality of the circumstances and read in its context rather than isolation, could only be understood as parody or satire by the reasonable reader, the statement does not constitute defamation. Webber at ¶ 37; Novak at 427. Adding a disclaimer that the statement is satire or parody may help provide the particular context, but it does not end the inquiry as to whether the statement is parody or whether it is defamatory. These cases must be considered on their individual unique facts. Ferreri at 639 ("[i]n determining whether an allegedly defamatory statement is fact or opinion, a court must consider the totality of the circumstances" including "the specific language used, whether the statement is verifiable, the general *12 context of the statement, and finally, the broader context in which the statement appeared," but "the weight given to any one [factor] will conceivably vary depending on the circumstances presented"). In the instant matter, considering the totality of the circumstances and the context in which the statements appear, we agree with the trial court that the publications are protected speech and cannot be labeled as defamatory. Having determined the trial court did not err in concluding the statements are parody and/or satire and, thus, not defamatory, appellees are entitled to summary judgment on the defamation claim. Because the remaining claims in the complaint all depend on a finding that the publications were defamatory, those claims similarly fail. A & B-Abell Elevator Co. , Inc. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council , 73 Ohio St.3d 1, 15 (holding that "where claims such as tortious interferences and disparagement are based on statements that are qualifiedly privileged under defamation law, the protection afforded those statements * * * must also apply in the derivative claims"). Accordingly, we agree with the trial court that appellees were entitled to summary judgment on all of appellants' claims. Thus, we overrule appellants' first, second, third, fourth, fifth, and sixth assignments of error.
IV. Seventh Assignment of Error – Motion to Strike In their seventh and final assignment of error, appellants assert the trial court
erred in denying their motion to strike appellees' affidavits, exhibits, and motion for
summary judgment. Although appellants assign the denial of their motion to strike as
error, appellants do not separately argue this assignment of error in the body of their brief.
As a result, appellants' brief violates App.R. 16(A)(7).
Taneff v. Lipka
, 10th Dist. No. 18AP-
291,
V. Disposition Based on the foregoing reasons, the trial court did not err in granting
appellees' motion for summary judgment on appellants' claim of defamation and the additional claims derived from the defamation claim as the publications are protected speech in the form of parody or satire. Having overruled appellants' seven assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.