VAIL, APPELLEE, v. THE PLAIN DEALER PUBLISHING COMPANY ET. AL., APPELLANTS.
No. 93-1959
Supreme Court of Ohio
May 31, 1995
72 Ohio St.3d 279 | 1995-Ohio-187
Submitted January 11, 1995. APPEAL from the Court of Appeals for Cuyahoga County, No. 63223.
When determining whether speech is protected opinion a court must consider the totality of the circumstances. Specifically, a court should consider: the specific language at issue, whether the statement is verifiable, the general context of the statement, and the broader context in which the statement appeared. (Scott v. News-Herald [1986], 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699, approved and followed;
{¶ 1} Appellee, Loren Loving Vail, instituted her action after appellant The Plain Dealer Publishing Company (“Plain Dealer“) published a column authored by appellant Joe Dirck, concerning Vail‘s 1990 campaign for the Ohio Senate. Vail‘s complaint advanced causes of action sounding in defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. Attached to and incorporated by reference in her complaint were a copy of the Dirck column and a copy of a press release issued by Vail‘s campaign office that allegedly prompted the column.
{¶ 2} The article appeared in the Forum section of the October 19, 1990 edition of The Plain Dealer. Immediately preceding the article, at the top of the column, appeared a picture of Dirck bearing his name and the caption
{¶ 3} Upon motion of Dirck and The Plain Dealer, the trial court dismissed the action for failure to state a claim. The court of appeals reversed, holding that the terms “gay-basher,” “neo-numbskull,” “bigot,” “hate-mongering,” and the inference of dishonesty cited in Vail‘s complaint were not actionable, but that Dirck‘s description of Vail as “dislik[ing] homosexuals,” of “engag[ing] in an ‘anti-homosexual diatribe,‘” and of “foster[ing] homophobia” in an attempt to be elected did state actionable claims of defamation and intentional infliction of emotional distress. The court of appeals reasoned that because the statements were capable of being proven false, Vail had asserted a valid cause of action.
{¶ 4} The cause is now before this court pursuant to the allowance of a motion to certify the record.
Baker & Hostetler, David L. Marburger and Beth A. Brandon, for appellants.
MOYER, C.J.
{¶ 6} The issue in this case is whether the trial court properly dismissed Vail‘s complaint because the averred defamatory statements are constitutionally protected as opinion. The resolution of this question requires us to revisit our decision in Scott v. News-Herald, supra.
{¶ 7}
{¶ 8} Subsequent to our announcement in Scott, the United States Supreme Court decided the related case of Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1. Milkovich, the wrestling team coach, was also involved in the due process hearing that generated the Scott case, supra. The column at issue in Scott also addressed Milkovich‘s alleged untruthfulness. The Supreme Court held that “opinion” is afforded no additional protection under the
{¶ 9} Regardless of the outcome in Milkovich, the law in this state is that embodied in Scott. The Ohio Constitution provides a separate and independent guarantee of protection for opinion ancillary to freedom of the press. However, we do not perceive this distinction to be as great as it may appear. As Justice Brennan
{¶ 10} In Scott we adopted a totality of the circumstances test to be used when determining whether a statement is fact or opinion. 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. Scott, supra, at 250, 25 OBR at 308, 496 N.E.2d at 706. This analysis is not a bright-line test, but does establish parameters within which each statement or utterance may stand on its own merits rather than be subjected to a mechanistic standard. As Justice Locher, writing for the court, cautioned in Scott, “the totality of the circumstances test can only be used as a compass to show general direction and not a map to set rigid boundaries.” Id.
{¶ 11} Furthermore, the standard must be fluid. Every case will present facts that must be analyzed in the context of the general test. Each of the four factors should be addressed, but the weight given to any one will conceivably vary depending on the circumstances presented.
{¶ 12} We begin by analyzing the context in which Dirck‘s statements appear. There can be no question that the general context in which the columnist‘s statements were made is opinion. The column appears on the Forum page of the newspaper, and is titled “Commentary.” The words “forum” and “commentary” convey a message that the reader of columns so designated will be exposed to the
{¶ 13} Assuming the general context of the Dirck column is opinion, that conclusion does not dispose of the legal issue. Second, we must consider the full context of the statements. Is the column characterized as statements of objective facts or subjective hyperbole? The general tenor of the column is sarcastic, more typical of persuasive speech than factual reporting. The column is prefaced with the author‘s name appearing above his picture and the word “commentary” appearing below it. The author‘s reputation as an opinionated columnist should also be considered.
{¶ 14} Thirdly the specific language used must be reviewed, focusing on the common meaning ascribed to the words by an ordinary reader. We must determine whether a reasonable reader would view the words used to be language that normally conveys information of a factual nature or hype and opinion; whether the language has a readily ascertainable meaning or is ambiguous. We believe the language cited by Vail to be actionable lacks precise meaning and would be understood by the ordinary reader for just what it is—one person‘s attempt to persuade public opinion. The same is true of the passages cited by the court of appeals in support of its conclusion. Engaging in “an anti-homosexual diatribe” and fostering “homophobia” can hardly be defined with crystal clarity. Each term congers a vast array of highly emotional responses that will vary from reader to reader. None is similar to the typical examples of punishable criminal or disciplinary conduct cited as actionable language. Dirck‘s veiled characterization of Vail as a liar could be construed as an objective statement. The average reader could construe this language as communicating a fact. This is particularly relevant given that under
{¶ 15} The final question is whether the statements are verifiable. Does the author imply that he has first-hand knowledge that substantiates the opinions he asserts? Where the “‘*** statement lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content.‘” Scott at 251-252, 25 OBR at 309, 496 N.E.2d at 707, citing Ollman v. Evans (C.A.D.C. 1984), 750 B.2d 970, 979. Again, only the references to Vail‘s honesty are possibly verifiable facts and we do not find them, in the context in which they were written, to support a cause of action. The language used by Dirck is value laden and represents a point of view that is obviously subjective.
{¶ 16} Based upon the totality of the circumstances, we are convinced that the ordinary reader would accept this column as opinion and not as fact. Therefore, the statements are protected under
{¶ 17} Since we have concluded that the statements at issue are constitutionally protected speech, Vail‘s claims for intentional infliction of emotional distress must also fail.
{¶ 18} For the foregoing reasons, the judgment of the court of appeals is reversed.
Judgment reversed.
F.E. SWEENEY and COOK, JJ., concur separately.
DOUGLAS and WRIGHT, JJ., concur separately.
PFEIFER, J., concurs in judgment only.
DOUGLAS, J., concurring.
{¶ 19} There are a number of reasons the decision in this case should be reversed. I do not reach additional reasons, given that the column in question is
{¶ 20} The well-reasoned majority opinion relies, and properly so, on Scott v. News-Herald (1986), 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699. I concurred in Scott and indicated, in part, that speech that is “opinion enjoys the protection afforded such speech by the
{¶ 21} What I said in Scott bears, I believe, repeating. In “preserving the freedoms of speech and press, guaranteed by the
WRIGHT, J., concurring.
{¶ 22} I write separately not out of disagreement with some aspect of the Chief Justice‘s opinion, but to stress its stated underpinnings --
PFEIFER, J., concurring in judgment only.
{¶ 24} In reversing this court in Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 19, 110 S.Ct. 2695, 2706, 111 L.Ed. 2d 1, 18, the United States Supreme Court rejected the idea developed by this court in Scott v. News-Herald (1986), 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699, that an additional separate constitutional privilege for “opinion” is required to ensure the freedom of
{¶ 25} Today‘s opinion, then, relies completely on the naked assertion that
“Congress shall make no law * * * abridging the freedom of speech, or of the press * * * .”
{¶ 26}
“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.” (Emphasis added.)
{¶ 27} Thus, on its face the Ohio Constitution is more restrictive as to speech than the federal Constitution. While protecting speech from government interference on the one hand, the Ohio Constitution also, however, establishes
{¶ 28} The Ohio Constitution, unlike the federal Constitution, facially limits the breadth of free speech, and establishes rights for persons libeled. To hold that the Ohio Constitution provides more expansive protection for free speech than the federal Constitution is to ignore the obvious. Unfortunately, the majority provides us with no constitutional analysis to support its claim.
{¶ 29} The majority attempts to minimize the import of its decision by claiming that its break from federal law yields a “distinction without a difference,” as if the irrelevance of today‘s holding should make it more palatable. The fact is that no distinction is necessary. To disagree with the majority in this case does not mean that pure opinion is unprotected. “[T]he ‘“breathing space“’ which ‘“[f]reedoms of expression require in order to survive“’ * * * is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between ‘opinion’ and fact.” Milkovich, 497 U.S. at 19, 110 S.Ct. at 2706, 111 L.Ed.2d at 18.
{¶ 30} Under federal law, where a media defendant is involved, “a statement on matters of public concern must be provable as false before there can be liability under state defamation law * * * .” Milkovich, 497 U.S. at 19, 110 S.Ct. at 2706, 111 L.Ed.2d at 18. Second, “statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual” are constitutionally protected. Milkovich, 497 U.S. at 20, 110 S.Ct. at 2706, 111 L.Ed.2d at 19. Finally, “where a statement of ‘opinion’ on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth.” Id. at 20, 110 S.Ct. at 2706-2707, 111 L.Ed.2d at 19.
{¶ 32} The majority opinion delves into context, and thus unnecessarily enters treacherous territory. Columnists should not enjoy any greater First Amendment protection than anyone else if they publish provably false statements concerning an individual, when the statements are made with knowledge of their falsity or with reckless disregard of their truth. Newspapers should not be shielded from liability for printing lies by labeling them as commentary.
{¶ 33} Especially in Ohio, where there is a constitutionally recognized balance between the rights of the publisher of a statement and the rights of the subject of that statement, we should adopt the federal standard enunciated in Milkovich. This court in Scott meant to bring Ohio in line with federal law, but got lost along the way. The majority in this case squanders the opportunity to get back on track.