RYAN OLTHAUS v. JULIE NIESEN, JAMES NOE, TERHAS WHITE, and ALISSA GILLEY
APPEAL NO. C-230142
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
December 27, 2023
2023-Ohio-4710
BERGERON, Judge.
TRIAL NO. A-2002596.
Gottesman & Associates, LLC, and Zachary Gottesman, for Plaintiff-Appellant,
Laursen, Colliver & Mellott, LLC, and Erik W. Laursen, for Defendant-Appellee Julie Niesen.
Whittaker Law, LLC, and Justin Whittaker, for Defendant-Appellee James Noe,
Santen & Hughes, J. Robert Linneman and H. Louis Sirkin, for Defendants-Appellees Terhas White and Alissa Gilley.
BERGERON, Judge.
{1} Defamation law allows for the vindication of one‘s good name and for the redress of harm caused to one‘s reputation resulting from the publication of false and offensive statements of fact. Fundamentally, though, civil liability for speech exists in tension with protections for freedom of speech afforded by the U.S. Constitution and the Ohio Constitution. Under the Ohio Constitution, specifically, defendants enjoy constitutional protection for opinion speech, Scott v. News-Herald, 25 Ohio St.3d 243, 244-245, 496 N.E.2d 699 (1986), aligning with the principle that “[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, 418 U.S. 323, 339-340, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).
{2} Faced with public accusations that he is a “white supremacist” who flashed a “white power” hand sign at a demonstration, plaintiff-appellant Ryan Olthaus, a Cincinnati police officer, sought redress through defamation law and several related causes of action. But, as justifiably aggrieved by defendants’ assertions as he may feel, defamation law does not allow for recovery when the statements in question constitute opinions (rather than false statements of fact), nor without a showing of actual malice by a public official. Consequently, in line with established principles of defamation law and governing constitutional
I.
{3} During the wave of racial justice demonstrations that swelled in the summer of 2020, the Cincinnati City Council convened a series of open meetings. At an open forum before the council‘s budget and financе committee meeting in June 2020, Officer Olthaus was assigned to provide crowd control and security. During an interaction with defendant-appellee Terhas White, who was participating in a demonstration outside the council‘s chambers, Officer Olthaus flashed an “OK” symbol, pinching together his thumb and index finger. He maintains that he made this gesture in response to Ms. White asking him about the status of his fellow officer who had recently left the area after an interaction with demonstrators. She and the other defendants-appellees (collectively, “Defendants“), however, saw things very differently. In various ways, they publicly criticized Officer Olthaus and his gesture, describing him, primarily in social media posts, as a “white supremacist” and calling the gesture a “white power” hand sign.
{4} Officer Olthaus filed suit in July 2020 against five defendants and multiple John Does, but only four defendants remain for the purposes of this appeal. His complaint alleges defamation, false light invasion of privacy, negligence, and recklessness against all four defendants. Further, he claims defendants Ms. White and Alissa Gilley are liable for civil damages under
{5} Broadly, the complaint contends that Defendants spread various false and defamatory statements about Officer Olthaus. Specifically, he alleges that Ms. White published social media posts referring to him as a “white supremacist kkkop” and “white supremacist piece of shit,” and that Julie Niesen made posts in a similar vein. He also alleges that Ms. White knowingly submitted a false complaint with the city‘s Citizen Complaint Authority (“CCA“), accusing him of using a “white power” hand signal on the job. He accuses Ms. Gilley of filing a similar complaint with the CCA in which she asserts that he “[threw] up a white supremacy hand-signal towards citizens of color,” which she perceived as “a threat to me, my children and so many others.” Finally, he claims that James Noe postеd a profane insult about him on social media in the context of saying that he flashed “white power symbols to Black speakers,” and that Mr. Noe posted a “deceptively edited photograph” of Officer Olthaus designed to portray him as a “white supremacist.” He also claims Mr. Noe threatened to publicize his personal identifying information on social media.
{6} After various orders and appeals, Defendants moved to dismiss all claims under
{7} He now appeals, presenting a single assignment of error attacking the trial court‘s dismissal of his defamation, false light, and statutоry claims (he does not contest the dismissal of the negligence and recklessness claims).
II.
{8} In reviewing a trial court‘s grant of a motion to dismiss for failure to state a claim under
A.
{9} Before turning to the substance of the trial court‘s grants of dismissal, we first address the manner in which Officer Olthaus contests the trial court‘s decision on appeal. Faced with the trial court‘s dismissal of his defamation and related claims on the basis that Defendants’ statements were either true or matters of opinion, Officer Olthaus fails to directly address the trial court‘s reasoning on appeal. Instead, he emphasizes the notice-pleading standard and the harm that Defendants’ statements occasioned, responding to the trial court‘s reasoning only to assert that “[i]n the political atmosphere that existed at the time of the incident, Appellees’ statements rose above mere opinion when they were designed to personally attack and cause harm.” But this statement does not reflect the standard for recovery under Ohio defamation law. Tellingly, Officer Olthaus cites no case law to support this argument, does not suggest the trial court used the wrong legal standard in its decision, and does not assert that it misapplied any relevant case law. Rather, he broadly asserts that the trial court got it wrong and assures us that he could prove his point later in the litigation. Such an argument does not provide us with any basis for reversal. It is incumbent upon an appellant to explain to us, with citations to authority and the record, how the trial court erred.
{10} Likewise, he advances no substantive argument responding to the trial court‘s conclusion that he failed to plead actual malice and that “[a]ctual malice cannot be established in this case.” He merely
{11} Officer Olthaus’ “failure to develop an authority-based argument provides sufficient grounds to” reject his appeаl and to affirm the judgment of the trial court. Ohiotelnet.com, Inc. v. Windstream Ohio, Inc., 137 Ohio St.3d 339, 2013-Ohio- 4721, 999 N.E.2d 586, ¶ 16-17; see
B.
{12} Generally, “[t]o establish defamation, the plaintiff must show (1) that a false statement of fact 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; аnd (5) that the defendant acted with the requisite degree of fault in publishing the statement.” Mann v. Cincinnati Enquirer, 1st Dist. Hamilton No. C-090747, 2010-Ohio-3963, ¶ 12. All defamation is either defamatory per quod (in the interpretation of the listener) or defamatory per se (on its face). Williams v. Gannett Satellite Information Network, Inc., 162 Ohio App.3d 596, 2005-Ohio-4141, 834 N.E.2d 397, ¶ 7 (1st Dist.); Carr v. Educational Theatre Assn., 2023-Ohio-1681, 215 N.E.3d 584, ¶ 12-13 (1st Dist.).
{13} Additionally, the First Amendment of the U.S. Constitution requires that plaintiffs who are public figures or officials, like police officers, show that the defendant‘s statement was made with “actual malice,” which is “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); see Soke v. The Plain Dealer, 69 Ohio St.3d 395, 397, 632 N.E.2d 1282 (1994). “Actual malice” in this context is a legal term of art distinct from traditional, common-law malice, which generally “connotes ill will, hatred, [or] a spirit of revenge.” Varanese v. Gall, 35 Ohio St.3d 78, 79, 518 N.E.2d 1177 (1988), citing Preston v. Murty, 32 Ohio St.3d 334, 512 N.E.2d 1174 (1987), syllabus. “Evidence of hatred, spite, vengefulness, or deliberate intention to harm can never, standing alone, warrant a verdict for the plaintiff” in public official defamation cases. Id. at 79-80, citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 119, 413 N.E.2d 1187 (1980).
{14} As we consider the threshold element of defamation (a false statement of fact), the U.S. and Ohio Supreme Courts describe this inquiry slightly differently, although they essentially arrive at the same place. The U.S. Supreme Court recognizes that federal defamation law bars claims “for statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual,” but it has declined to embrace “an additional separate constitutional privilege for ‘opinion.‘” (Emphasis added.) Milkovich v. Lorain Journal Co., 497 U.S. 1, 20-21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), quoting Sullivan at 270. Notwithstanding Milkovich,
{15} Ohio courts apply a fluid, four-part, totality of the circumstances test to distinguish between fact and opinion, focusing on the interpretation of an ordinary rеader. Scott v. News-Herald, 25 Ohio St.3d 243, 250, 496 N.E.2d 699 (1986). “Specifically, the court should consider: the specific language used, whether the statement is verifiable, the general context of the statement, and finally, the broader context in which the statement appeared.” Vail at 282. Officer Olthaus fails to discuss this test on appeal or to apply it to the facts alleged in the complaint.
{16} Ultimately, the plainly subjective, value-based language and non-verifiability of Defendants’ various statements dominate our assessment. Considering “the common meaning of the allegedly defamatory statement,” Scott at 250, an ordinary reader would understand the terms “white supremacist” and “kkkcop” to “lack[] precise meaning.” Vail at 282. They are inherently value-laden labels and “conjure[] a vast array of highly emotional responses that will vary from reader to reader.” Id. at 282-283. The same applies for Defendants’ interpretation of Officer Olthaus’ “OK” hand gesture, which they imbue with a racist meaning, because an ordinary reader would undеrstand that a speaker and interpreter might have different views on what the hand gesture means—a matter on vivid display in this litigation. Additionally, because labels like “white supremacist” ” lack[] a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content.” Scott at 251-252, quoting Ollman v. Evans, 750 F.2d 970, 979 (D.C. Cir.1984). Whether a statement is verifiable depends upon whether it is “objectively capable of proof or disproof,” Wampler, 93 Ohio St.3d at 129, 752 N.E.2d 962, but Officer Olthaus musters no argument for how someone would plausibly go about proving or disproving one‘s white supremacist bona fides. Similarly, Defendants’ assertions that Officer Olthaus flashed a “white power” hand sign is not susceptible to reasoned methods of verification. It is undisputed that he made a particular hand gesture—what is disputed turns on the subjective meaning of the gesture, with both the officer and Defendants offering competing interpretations.
{17} Under the totality of the circumstances, the statements featured in the complaint represent opinions, rather than facts that can be tested to determine their veracity. Therefore, we agree with the trial court‘s reasoning, substantively unchallenged on appeal, that the Ohio Constitution insulates Defendants’ opinion speech from Officer Olthaus’ defamation claims. We further agree with the trial court that Mr. Noe‘s alleged threat to release his personal information is not a false
{18} Our conclusion aligns with federal and state case law establishing that accusations of bigotry similar to those present here are not actionable in defamation because such language “is value-laden and represents a point of view that is obviously subjective.” Vail, 72 Ohio St.3d at 283, 649 N.E.2d 182 (commentary published in newspaper calling public-figure plaintiff a “gay-basher” and a “bigot” who “foster[s] homophobia” protected under Ohio Constitution); Lennon v. Cuyahoga Cty. Juvenile Court, 8th Dist. Cuyahoga No. 86651, 2006-Ohio-2587, ¶ 31 (coworker‘s workplace accusation that plaintiff was a “racist” constitutionally protected); Condit v. Clermont Cty. Rev., 110 Ohio App.3d 755, 760, 675 N.E.2d 475 (12th Dist.1996) (accusations that plaintiff was a ” ‘fascist,’ and an ‘anti-Semite,’ contain elements of hyperbole and ambiguity” and thus are opinion and not actionable as defamation; collecting federal case law establishing that “accusations of ethnic bigotry are not actionable as defamation“). Applying the Scott test, reiterated in Vail, we reach the same conclusion here and find that Officer Olthaus failed to allege an actionable claim. Accordingly, the trial court did not err in dismissing his defamation claims.
{19} Though the above conclusion suffices to affirm the trial court‘s dismissal of the defamation claims, we further agree with the trial court that Officer Olthaus failed to sufficiently plead actual malice. In his complaint, he refers only to Defendants’ “malicious” conduct and “false” statements, avoiding both the phrase “actual malice” and the critical test from New York Times Co. v. Sullivan for public official defamation plaintiffs: that the defendant acted with “knowledge that [the statеment] was false or with reckless disregard of whether it was false or not.” Sullivan, 376 U.S. at 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686. Rather, he merely alleges a state of mind resembling negligence—that Defendants “made statements that they knew or should have known were false.”
{20} Apart from failing to recite the required language, Officer Olthaus also fails to allege any facts showing that Defendants acted with actual malice. The closest he comes is in accusing Ms. White and Ms. Gilley of “falsely” accusing him of using a “white power” hand signal in their citizens’ сomplaints. Even generously construing his assertions as invoking the standard of “actual malice” and taking them as true, we agree with the trial court that this “fact” cannot suffice as pleading “actual malice” because the assertions are either true or statements of opinion. Officer Olthaus admits to making the gesture, so that fact is true, but he vigorously contests its meaning. But, as we indicated above, Defendants’ various assertions that Officer Olthaus is a “white supremacist” and that his gesture carried a racist meaning are fundamentally statements of opinion. Accordingly, Officer Olthaus could plead no set of facts that, even taken as true, would legally suffice to accuse Defendants of making these accusations with “knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” See id.
{21} We recognize and appreciate Officer Olthaus’ point that the allegations of white supremacy were incredibly damaging to him, persоnally and professionally. Social media has the capacity to ruin lives with the click of a button, but courts do not exist to referee debates on those platforms, nor could we do so consistent with the First Amendment and the Ohio Constitution. Indeed, “[t]he First Amendment militates the protection of unrestricted
{22} On the record at hand, because Officer Olthaus failed to plead any set of facts that would entitle him to relief, the trial court did not err in dismissing the defamation claims.
C.
{23} We now turn to the trial court‘s dismissal of Officer Olthaus’ claims for false light invasion of privacy, a cause of action officially recognized in Ohio since 2007:
In Ohio, one who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to thе other for invasion of his privacy if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Welling v. Weinfeld, 113 Ohio St.3d 464, 2007-Ohio-2451, 866 N.E.2d 1051, ¶ 61, citing Restatement of the Law 2d, Torts, Section 652E (1977). Although this cause of action bears similarities to defamation, a plaintiff need not be defamed to pursue such a claim. Id. at ¶ 52-53 (noting that false light claims require the information be “publicized,” which is distinct from and less stringent than “published,” as required for defamation claims); see Dudee v. Philpot, 2019-Ohio-3939, 133 N.E.3d 590, ¶ 82 (1st Dist.) (“False-light claims are separate and distinct from defamation because they protect a different interest—harm to character, reputation, or trade (defamation) vs. publicity of false information (false light)).”
{24} Even so, “[f]alse-light defendants enjoy protections at least as extensive as defamation defendants.” Welling at ¶ 58. For example, for a statement to be actionable in false light, just like in defamation, “the statement made must be untrue.” Id. at ¶ 48, 52 (“The right to privacy naturally extends to the ability to control false statements made about oneself.” (Emphasis added.)). Accordingly, because statements of opinion are inherently not even capable of being “untrue,” and because a defendant therefore cannot have “had knowledge or acted in reckless disregard as to the falsity” of such statements, opinions cannot suрport false light invasion of privacy just as they cannot establish defamation. Id. at ¶ 52, 58, 61; see
{25} Applying our analysis above, we conclude that Defendants’ opinion speech is constitutionally protected from false light claims. Additionally, the false light requirement that the defendant “had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed” mirrors the “actual
D.
{26} We next address the trial court‘s dismissal of Officer Olthaus’ claims against Ms. White and Ms. Gilley under
E.
{27} Finally, we briefly address Officer Olthaus’ argument that the trial court should have allowed him leave to amend his complaint to fix any defects rather than granting the motions to dismiss. The trial court granted the motions, rather than sua sponte granting leave to amend, because the latter “would [have been] futile as there simply are no additional facts to аllege.” See Hensley v. Durrani, 1st Dist. Hamilton No. C-130005, 2013-Ohio-4711, ¶ 14 (“a trial court properly refuses to grant leave to amend when amendment would be futile.“). Generally, we review a trial court‘s denial of leave to amend for an abuse of discretion, Elliot v. Durrani, 2021-Ohio-3055, 178 N.E.3d 977, ¶ 62 (1st Dist.), but in this case Officer Olthaus never moved for leave to amend, tendered an amended complaint for the court‘s consideration, or explained in the trial court or on appeal
{28} Moreover, as discussed above, Officer Olthaus fails to challenge the trial court‘s underlying legal conclusion motivating the dismissals—that Defendants’ statements were constitutionally protected. Without a recognition of that point, any imagined request for amendment would be wholly futile. Thus, he fails to present any substantive argument for how the trial court erred in failing to grant leave to amend.
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{29} Ultimately, we conclude that the trial court did not err in dismissing Officer Olthaus’ claims. We overrule his sole assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
CROUSE, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.