WAMPLER, APPELLANT, v. HIGGINS, APPELLEE.
No. 00-1273
Supreme Court of Ohio
Decided August 29, 2001.
93 Ohio St.3d 111 | 2001-Ohio-1293
Defamation—Ohio Constitution‘s separate and independent protection of opinions is not limited in its application to the allegedly defamatory statements made by media defendants—Nonmedia defendant whose allegedly defamatory statements appear in a letter to the editor may invoke the same protection—Section 11, Article I, Ohio Constitution, applied.
(No. 00-1273—Submitted April 4, 2001 at the Lawrence County Session—Decided August 29, 2001.)
APPEAL from the Court of Appeals for Pickaway County, No. 2000 CA 5.
SYLLABUS OF THE COURT
The Ohio Constitution‘s separate and independent protection for opinions, recognized in Scott v. News-Herald and reaffirmed in Vail v. Plain Dealer Publishing Co., is not limited in its application to the allegedly defamatory statements made by media defendants. A nonmedia defendant whose allegedly defamatory statements appear in a letter to the editor may invoke the same protection, which may or may not apply depending on the totality of the circumstances. (
{¶ 1} In Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 21, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1, 19, the United States Supreme Court rejected the notion that “an additional separate constitutional privilege for ‘opinion’ is required to ensure the freedom of expression guaranteed by the
{¶ 2} Now we are asked to determine whether the Ohio Constitution‘s separate and independent protection for opinions protects only those statements uttered by media defendants, such as the newspaper and columnist in Vail, or whether a private citizen unaffiliated with the media, such as the appellee here, may invoke the same independent constitutional protection. We agree with the court of appeals that nonmedia defendants may invoke the Ohio Constitution‘s independent protection for opinions and affirm its judgment.
I. Background
{¶ 3} On September 25, 1998, the Circleville Herald published a news article entitled “Cardinal Market to close doors.” According to the article, Linda McKee, the owner of Linda‘s Cardinal Market, a downtown grocery, had decided to liquidate the business due to declining sales, “a general degeneration in the downtown area, a proliferation of mini marts around town, and changing customer habits.” The article also stated that McKee had been unable to come to terms on a new lease with the owner of the building in which the market was located, appellant Isaac Wampler. McKee stated that she would be unable to afford additional rent that Wampler was seeking under the terms of a proposed new lease. The article quoted Wampler as saying, “I did not want [McKee] to leave,” and “I deeply regret
{¶ 4} Three days later, the Circleville Herald published a letter to the editоr signed by appellee, Wallace Higgins. The letter stated:
“Dear Editor:
“Downtown Circleville is about to suffer a serious loss. Linda‘s Cardinal Market, at the corner of Scioto and West Main streets, is being forced out of business by the exorbitant rent now being demanded by the present owner of the building. Most of us who live in the downtown area have depended on Linda and her predecessors, who have been in the grocery business on that site for the past 50 years.
“Ward Skinner and Linda have run a friendly and accommodating store. They knew, understood, and sympathized with their customers. Now, because of one man‘s self-centered greed, all of that is going to end.
“Too many downtown properties belong to people who care nothing for Circleville and who have no vision for the future. Circleville is a unique place, and everyone could profit from that uniqueness. Instead, some are trying to make it conform to the world for their own profit. They are willing to sell out to some faceless national corporation with no motive but profit and no interest in our history, our architecture, or our tradition. They cheerfully tаke the money and run and ‘let the public be damned!’
“The owner of the Cardinal Market building sold his own Watt Street property, for an astronomical figure, to a mindless corporation. Once he had a taste of the blood of easy money, he has apparently become a ruthless speculator. He would, I‘m sure, sell the whole town to heartless corporations so that they might turn it into one great, ugly, sprawling shopping mall. It is pathetic that the whole town must suffer because of the greed of a few uncaring people.”
{¶ 6} In his answer, Higgins admitted that he was the author of the allegedly defamatory letter, but asserted that every statement contained therein “was an honest and good faith expression of opinion.” Higgins later made the same contention in a motion for summary judgment. The trial court granted Higgins‘s motion for summary judgment and dismissed Wampler‘s complaint.
{¶ 7} In its decision and entry granting Higgins‘s motion for summary judgment, the trial court cited this court‘s decision in Vail for the proposition that “expressions of opinion are generally protected under
{¶ 8} Wampler appealed the trial court‘s decision to the Pickaway County Court of Appeals. In his first assignment of error, Wampler claimed that the trial court erred when it applied the Scott/Vail test to determine whether Higgins‘s statements were constitutionally protected opinions. Wampler argued that the Ohio Constitution‘s separate and independent protection for opinions applies only to those allegedly defamatory statements made by media defendants. In his second assignment of error, Wampler contended that the trial court should have concluded that the statements contained in Higgins‘s letter were actionable statements of fаct under the Scott/Vail test—not merely expressions of Higgins‘s opinions. The court of appeals, however, affirmed the trial court‘s decision granting summary judgment in Higgins‘s favor.
{¶ 9} Wampler moved the court of appeals to certify a conflict between its decision and that rendered by the First District Court of Appeals in Conese v. Nichols (1998), 131 Ohio App.3d 308, 722 N.E.2d 541. As Wampler noted, the Conese court had determined that Vail‘s “absolute privilege to [express opinions had] not yet been extended to all statements of opinion, by anyone, or to the media for the republication of the opinion of others.” Id. at 315-316, 722 N.E.2d at 546. The Pickaway County Court of Appeals denied Wampler‘s motion for certification, however, concluding that the Conese court‘s decision did not ultimately turn upon any distinction between media and nonmedia defendants and that any apparent conflict arose from obiter dicta.
II. Vail‘s Guarantee of Protection for Opinions
{¶ 11} To place the instant dispute in its proper context, we begin our analysis by briefly examining the historical development of what we described in Vail as Ohio‘s “separate and indepеndent guarantee of protection for opinion ancillary to freedom of the press.” Id., 72 Ohio St.3d at 281, 649 N.E.2d at 185.
{¶ 12} In 1964, the United States Supreme Court decided that the
{¶ 13} The United States Supreme Court later decided that the
{¶ 14} In Ollman v. Evans (C.A.D.C.1984), 750 F.2d 970, the United States Court of Appeals, District of Columbia Circuit, discussed in detail the import of this brief passage from Gertz: “The statement is clearly dicta. * * * Despite its status as dicta, a majority of federal circuit courts, including this one, have accepted the statement as controlling law.” (Emphasis sic.) Id. at 974, fn. 6. “By this statement, Gertz elevated to constitutional principle the distinction between fact and opinion, which at common law had formed the basis of the doctrine of fair comment. Gertz‘s implicit command thus imposes upon both state and federal courts the duty as a matter of constitutional adjudication to distinguish facts from opinions in order to provide opinions with the requisite, absolute First Amendment protection.” (Emphasis added; footnote omitted.) Id. at 975.
{¶ 15} Having decided that Gertz imposed this constitutional requirement on courts, the Ollman court adopted a four-part test1 designed to assist judges in distinguishing, under the totality of the circumstances, actionable statements of fact from nonactionable statements of opinion. Id. at 979-984. The United States Supreme Court declined to review Ollman, over then Justice Rehnquist‘s vigorous dissent. See Ollman v. Evans (1985), 471 U.S. 1127, 1129, 105 S.Ct. 2662, 2664, 86 L.Ed.2d 278, 280 (Rehnquist, J., dissenting from the denial of certiorari, argued that the lower courts were erroneously relying on the Gertz dicta to “solve with a meat axe a very subtle and difficult question“).
{¶ 16} Soon after the United States Supreme Court declined to review Ollman, this court, expressly relying on the Gertz dicta, adopted Ollman‘s four-part
test for distinguishing actionable factual statements from nonactionable opinions.
{¶ 17} Four years after Scott, the United States Supreme Court explained that lower courts had misinterpreted the passage from Gertz that had formed the basis for the Ollman/Scott test. Milkovich, 497 U.S. at 18, 110 S.Ct. at 2705, 111 L.Ed.2d at 17. In Milkovich, seven justices agreed that “we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled ‘opinion.’ * * * Not only would such an interpretation be contrary to the tenor and сontext of the passage, but it would also ignore the fact that expressions of ‘opinion’ may often imply an assertion of objective fact.” Id.
{¶ 18} The Milkovich court thus squarely rejected the notion that “in every defamation case the
{¶ 19} Though the Milkovich court, in no uncertain terms, determined that the Ollman/Scott approach was not required to satisfy the dictates of the
{¶ 21} After applying the Ollman/Scott test in Vail, we decided that the trial court had correctly dismissed the plaintiff‘s action for failure to state a claim under Civ.R. 12(B)(6), as “the ordinary reader would accept this column as opinion and not as fact. Therefore, the statements are protected under
{¶ 22} The instant dispute centers on the continuing validity, scope, and proper application of this court‘s decision in Vail. Both of the lower courts concluded that Higgins was entitled to summary judgment under the four-part Scott/Vail test because the allegedly defamatory statements contained in his letter to the editor were—as a matter of law—nonactionable expressions of Higgins‘s opinions. Wampler raises three interrelated arguments in support of reversal. First, he urges us to revisit Vail and “adopt the approach set forth in the Supreme Court‘s Milkovich decision.” In the alternative, Wampler urges us to refrain from extending Vail‘s rule to cases such as this, in which the defendant is a private citizen unaffiliated with the media. Finally, he contends that “[i]f the four-part test described in Scott and Vail does apply to this case, it was applied incorrectly by the courts below.” For the following reasons, however, wе reject each of Wampler‘s arguments.
A
{¶ 23} Wampler first urges us to revisit Vail, to abandon the Scott/Vail test, and to adopt the approach set forth by the United States Supreme Court in Milkovich. In support of this argument, Wampler relies on Justice Pfeifer‘s concurring opinion in Vail. As Justice Pfeifer correctly observed in that case,
{¶ 24} The qualifying language in
{¶ 25} In spite of these observations, however, a majority of this court expressly eschewed the Milkovich approach in Vail. Though the United States Supreme Court determined that still another safeguard for allegedly defamatory speech was unnecessary, Milkovich, 497 U.S. at 17, 110 S.Ct. at 2705, 111 L.Ed.2d at 17, this court decided that the Ohio Constitution requires a different analytical focus—a categorical determination of whether, under the totality of the circumstances, an ordinary reader of the allegedly defamatory statements would deem them to be statements of fact or opinion.2 Vail, 72 Ohio St.3d at 281, 649 N.E.2d at 185.
{¶ 27} In addition to the foregoing, the principles of stare decisis militate against accepting Wampler‘s invitation to reconsider Vail‘s six-year-old interpretation of
counterpart. In Humphrey v. Lane (2000), 89 Ohio St.3d 62, 68, 728 N.E.2d 1039, 1045, this court determined that the Free Exercise Clause contained in Section 7, Articlе I of the Ohio Constitution was broader than the parallel federal provision, necessitating divergence from the federal test for religiously neutral, evenly applied government actions.
{¶ 28} Wampler has advanced no compelling justification to revisit Vail and modify our interpretation of
B
{¶ 29} Wampler proposes that should we decide against reconsidering Vail, we should at least limit its application to media defendants. In his merit brief, Wampler notes, “To date, this Court has not expressly extended Vail and Scott to encompass situations in which the defendant is a private figure.” See, also, Conese v. Nichols, 131 Ohio App.3d at 315-316, 722 N.E.2d at 546. We are not persuaded, however, by Wampler‘s proposed distinction between media and nonmedia defendants.
{¶ 30}
{¶ 31} Just as the plain language of
{¶ 32} In Scott and Vail, the plaintiff sued a newspaper and its columnist. Given that each of the defendants in Scott and Vail was affiliated with the print media, it is not surprising that this court announced its holdings in those cases with reference to freedom of the press. In neither case, however, did this court suggest
{¶ 33} Wampler claims that in McKimm, we “tacitly acknowledged” that Ohio‘s Scott/Vail test is “unwieldy,” and attempted “to bring Ohio closer to the federal test,” under which no categorical protection for opinions applies. As noted above, McKimm concerned an allegedly defamatory cartoon that had been disseminated as part of a campaign brochure. In that case, we reaffirmed Vail‘s principle that the freedoms of speech and press are “independently recognized by the United States and Ohio Constitutions.” (Emphasis added.) McKimm, 89 Ohio St.3d at 142, 729 N.E.2d at 369, citing Vail. We analogized federal and state defamation law in McKimm to underscore the fact that under both of these independent systems, when the meaning of an allegedly defamatory statement is in question, courts apply an objective “ordinary reader” test to determine whether an
{¶ 34} Courts in several other states have declined to recognize the sort of distinction between media and nonmedia defendants that Wampler proposes here, and we find their reasoning persuasive.6 In addition to these courts, the authors of the Restatement of the Law 2d, Torts, have discouraged courts from distinguishing between media and nonmedia defendants for purposes of access to a constitutional
{¶ 35} We recognize that some state courts have declined to extend the same constitutional protections to nonmedia defendants that are available to media defendants. See, e.g., Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc. (1983), 143 Vt. 66, 74, 461 A.2d 414, 418, affirmed on other grounds (1985), 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593. In Dun & Bradstreet, the Supreme Court of Vermont relied principally on a case from the Supreme Court of Oregon to support its decision distinguishing between media and nonmedia defendants. Id. at 74, 461 A.2d at 418, citing Harley-Davidson Motorsports, Inc. v. Markley (1977), 279 Ore. 361, 366, 568 P.2d 1359, 1362-1363.
{¶ 36} In Harley-Davidson Motorsports, the Supreme Court of Oregon decided that in defamation actions against nonmedia defendants, “[t]he crucial elements * * * which brought the United States Supreme Court into the field of defamation law are missing. There is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press.” Id., 279 Ore. at 366, 568 P.2d at 1362-1363. For these reasons, the Supremе Court of Oregon rejected the idea that a private plaintiff‘s avenue for recovery against a nonmedia defendant “should be made more difficult in situations in which no such constitutional values are involved merely
{¶ 37} These cases that disfavor nonmedia defendants are unpersuasive for a number of reasons. First, as we have already noted, the language of our state‘s Constitution requires the “symmetry of treatment of defendants” deemed unnecessary by the Supreme Court of Oregon, for
{¶ 38} In addition, the courts that decided both Harley-Davidson and Dun & Bradstreet later questioned the analysis contained in those cases. As the Supreme Court of Oregon itself later admitted, its opinion in Harley-Davidson
{¶ 39} Finally, several members of the United States Supreme Court have agreed that distinguishing between media and nonmedia defendants for purposes of access to constitutional protections would be improper. When the United States Supreme Court reviewed Vermont‘s Dun & Bradstreet case, at least five justices agreed in separate opinions that the rights of the media in the context of defamation law are no greater than those enjoyed by other speakers. See Dun & Bradstreet, 472 U.S. at 773, 105 S.Ct. at 2952-2953, 86 L.Ed.2d at 611-612 (White, J., concurring); id. at 782-783, 105 S.Ct. at 2957-2958, 86 L.Ed.2d at 617-618 (Brennan, J., dissenting). In his concurring opinion, Justice White stated: “Wisely, in my view, Justice Powell does not rest his application of a different rule here on a distinction drawn between media and nonmedia defendants. On that issue, I agree with Justice Brennan that the
{¶ 40} Justice Brennan, joined by Justices Marshall, Blackmun, and Stevens, similarly stated: “Relying on the analysis of the Vermont Supreme Court, respondent urged that [we restrict] the applicability of Gertz to cases in which the defendant is a “media” entity. Such a distinction is irreconcilable with the fundamental First Amendment principle that “[t]he inherent worth of * * * speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.“” Id. at 781, 105 S.Ct. at 2957, 86 L.Ed.2d at 617 (Brennan, J., dissenting), quoting First Natl. Bank of Boston v. Bellotti (1978), 435 U.S. 765, 777, 98 S.Ct. 1407, 1416, 55 L.Ed.2d 707, 718.7 Though we diverged in Vail from the United States Supreme Court‘s defamation jurisprudence in order to reaffirm the existence of the Ohio Constitution‘s separate and independent protection for opinions, we find persuasive reasoning within the high court‘s jurisprudence to support our rejection of Wampler‘s proposed distinction between media and nonmedia defendants.
IV. Application of the Ollman/Scott/Vail Test
{¶ 41} In his second and third propositions of law, Wampler claims that, even if the Ohio Constitution‘s independent protection for opinion speech may be invoked by nonmedia defendants, the trial court erred when it decided, as a matter of law, that Higgins successfully invoked it in this case. We disagree.
{¶ 42} As the trial court noted, we examine the totality of the circumstances in order to determine whether a published statement constitutes an opinion
{¶ 43} The weight given to any one factor under this inquiry will vary depending on the circumstances of each case. Vail, 72 Ohio St.3d at 282, 649 N.E.2d at 185. “While necessarily imperfect, these factors * * * assist in discerning as systematically as possible what constitutes an assertion of fact and what is, in contrast, an expression of opinion.” Ollman, 750 F.2d at 979. Application of the four-factor test allows courts to assess, with some degree of predictability, the actionability of those statements that fall on the spectrum somewhere between paradigmatic statements of fact (such as “Mr. Jones had ten drinks at his office party and sideswiped two vehicles on his way home“) and paradigmatic statements of opinion (such as “Mr. Jones is a despicable politician“). Id. at 978.
{¶ 44} In his second proposition of law, Wampler submits that the task of distinguishing between statements of fact and opinion “should remain the province of the jury, subject only to the condition (as in any case) that there must be sufficient evidence to enable a jury to conclude that the challenged statements are false and defamatory.” As Judge Starr noted for thе court in Ollman, however, “the overwhelming weight of post-Gertz authority [holds] that the distinction between opinion and fact is a matter of law. Although the Supreme Court has never directly addressed this issue, the Court has clearly ruled that questions as to other privileges
{¶ 45} The trial court in this case decided, as a matter of law, that the statements contained in Higgins‘s letter to the editor were expressions of his opinions, as opposed to statements of fact, and granted summary judgment in favor of Higgins on this basis. We review the trial court‘s decision granting summary
1. The Specific Language Used
{¶ 46} As Judge Starr noted in Ollman, it is often appropriate to begin an assessment of the totality of the circumstances by analyzing “the common usage or meaning of the allegedly defamatory words themselves. We seek in this branch of our analysis to determine whether the allegedly defamatory statement has a precise meaning and thus is likely to give rise to clear factual implications. A classic example of a statement with a well-defined meaning is an accusation of a crime” (footnotes omitted), Ollman, 750 F.2d at 979-980, whereas “statements that are “loosely definable” or “variously interpretable” cannot in most contexts support an action for defamation.” Id. at 980. “Readers are * * * considerably less likely to infer facts from an indefinite or ambiguous statement than one with a commonly understood meaning.” Id. at 979.
{¶ 47} In Scott, assessing an allegedly defamatory newspaper column concerning a school superintendent‘s testimony at a hearing, we found that this factor weighed in favor of actionability. Scott, 25 Ohio St.3d at 251, 25 OBR at 309, 496 N.E.2d at 707. Though the column contained no express statement that the superintendent committed perjury at the hearing, we concluded that “the clear impact in some nine sentences and a caption [was] that appellant “lied at the hearing after * * * having given his solemn oath to tell the truth.“” Id. Though we decided in Scott that the specific language in the column weighed in favor of actionability, we found this factor outweighed by other factors under the totality of the circumstances. Id. at 254, 25 OBR at 311, 496 N.E.2d at 709.
{¶ 49} We agree with the trial court that the specific language employed by Higgins in his letter weighs against actionability. Each of the allegedly defamatory statements at issue here resembles the sort of “loosely definable,” “variously interpretable,” “indefinite,” and “ambiguous” statements discussed in Ollman, 750 F.2d at 979-980. Though plainly pejorative in tone, with Higgins describing Wampler as a “ruthless speculator” possessed of “self-centered greed” charging “exorbitant rent,” these phrases are all inherently imprecise and subject to myriad subjective interpretations. See Vail, 72 Ohio St.3d at 283, 649 N.E.2d at 186 (deciding that a columnist‘s accusations that a candidate engaged in “anti-homosexual diatribe” and fostered homophobia “can hardly be defined with crystal clarity,” and were “value-laden” and “subjective“). Accord Cole v. Westinghouse Broadcasting Co., Inc. (1982), 386 Mass. 303, 435 N.E.2d 1021 (Supreme Judicial Court of Massachusetts holding that a statement that a reporter had engaged in
2. Verifiability
{¶ 50} Under Scott‘s test, we also assess whether an allegedly defamatory statement is verifiable. Scott, 25 Ohio St.3d at 251, 25 OBR at 309, 496 N.E.2d at 707. We seek to determine whether the allegedly defamatory statements are objectively capable of proof or disproof, for “a reader cannot rationally view an unverifiable statement as conveying actual facts.” Ollman, 750 F.2d at 981. “An obvious potential for quashing or muting First Amendment activity looms large when juries attempt to assess the truth of a statement that admits of no method of verification.” Id. at 981-982.
{¶ 51} In Scott, this court decided that this factor, like the first, weighed in favor of the plaintiff, for an accusation of perjury was “an articulation of an objectively verifiable event” that could be proven “with evidence adduced from the transcripts and witnesses present at the hearing.” Scott, 25 Ohio St.3d at 252, 25 OBR at 309, 496 N.E.2d at 707. Unlike an accusation of perjury, however, which may be subject to proof or disproof upon the application of facts to an accepted legal standard, the allegedly defamatory statements contained in Higgins‘s letter to the editor are simply not amenable to verification. Had Higgins falsely stated that Wampler sought to double or triple McKee‘s rent, instead of simply describing Wampler‘s proposal as “exorbitant,” this factor may have weighed more in Wampler‘s favor. Such a statement, after all, might be verified with reference to McKee‘s most recent lease agreement, compared with a proposed lease agreement containing a specific price term. But Higgins‘s description of Wampler‘s proposed rent as “exorbitant,” much like his characterization of Wampler as “ruthless,” and his distaste for Wampler‘s “faceless,” “mindless,” or “heartless” corporate vendee,
3. General Context
{¶ 52} Scott‘s totality-of-the-circumstances inquiry also includes two distinct “contextual” assessments. Scott, 25 Ohio St.3d at 252, 25 OBR at 309, 496 N.E.2d at 707. One of these is a consideration of the “immediate context” in which the allegedly defamatory statement appears. Ollman, 750 F.2d at 983. We examine more than simply the alleged defamatory statements in isolation, because the language surrounding the averred defamatory remarks may place the reasonable reader on notice that what is being read is the opinion of the writer. Scott at 252, 25 OBR at 309, 496 N.E.2d at 707. Put another way, as Judge Starr explained in Ollman, courts should assess “the entire article or column” because “unchallenged language surrounding thе allegedly defamatory statement will influence the average reader‘s readiness to infer that a particular statement has factual content.” Ollman, 750 F.2d at 979. In Ollman, the court examined an allegedly defamatory column by Rowland Evans and Robert Novak in its entirety. The court decided—with particular emphasis on hypothetical questions contained in the penultimate paragraph—that the columnists “meant to ventilate what in their view constituted the central questions” raised by the plaintiff‘s possible appointment as chair of a faculty department. (Emphasis added.) Id. at 987.
{¶ 53} Considering Higgins‘s allegedly defamatory statements in the context of the entire letter, we find that the average reader of the Circleville Herald would be unlikely to infer that those statements were factual. The gist of Higgins‘s
4. Broader Social Context—Genre
{¶ 54} In addition to examining the allegedly defamatory statements as they appear in context, we also examine “the broader social context into which the statement fits. Some types of writing or speech by custom or convention signal to readers or listeners that what is being read or heard is likely to be opinion, not fact.” (Emphasis added.) Ollman, 750 F.2d at 983. This fourth factor focuses, then, not merely on the intеrnal context within which a particular written statement appears, but on the unmistakable influence that certain “well established genres of writing will have on the average reader.” (Emphasis sic.) Id. at 984.
{¶ 55} In Scott, we noted that the allegedly defamatory column about the wrestling coach “appeared on the sports page—a traditional haven for cajoling, invective, and hyperbole.” Scott, 25 Ohio St.3d at 253, 25 OBR at 311, 496 N.E.2d at 708. In both Vail and Ollman, as here, the allegedly defamatory statements appeared in a forum even more traditionally linked to vigorous expressions of opinion regarding matters of public concern—the newspapers’ opinion pages. See Vail, 72 Ohio St.3d at 282, 649 N.E.2d at 185 (noting that the column appeared on the Forum page of the newspaper, and that the words “forum” and “commentary” “convey a message that the reader of columns so designated will be exposed to the personal opinions of the writer“); Ollman, 750 F.2d at 984 (“it is well understood that editorial writers and commentators frequently “resort to the type of caustic bombast traditionally used in editorial writing to stimulate public reaction,” ” quoting Natl. Rifle Assn. v. Dayton Newspapers, Inc. [S.D. Ohio 1983], 555 F.Supp. 1299, 1309).
{¶ 56} We agree with the court of appeals that because Higgins‘s allegedly defamatory statements appearеd in a letter to the editor, “a common forum for citizens of the community to express viewpoints on a wide variety of subjects,” this fourth factor also weighs in Higgins‘s favor. Letters to the editor, though at times intemperately worded, are integral to the “robust and uninhibited commentary on public issues that is part of our national heritage.” Kotlikoff, 89 N.J. at 73, 444 A.2d at 1092. The “vituperative wording” of these letters serves to warn readers that, in contrast to the factual news articles appearing elsewhere in the paper, the letters are part of a “social forum for personal opinion.” Sall v. Barber (Colo.App.1989), 782 P.2d 1216, 1219. As the Court of Appeals of New York has noted, “[t]he public forum function of letters to the editor is closely related in spirit to the “marketplace of ideas” * * * that compelled recognition of the privileges of fair comment, fair report and the immunity accorded expression of opinion. These values are best effectuated by according defendant some latitude to publish a letter to the editor on a matter of legitimate public concern * * * free of defamation litigation.” Immuno AG. v. Moor-Jankowski (1991), 77 N.Y.2d 235, 255, 566 N.Y.S.2d 906, 917, 567 N.E.2d 1270, 1281.
V. Conclusion
{¶ 58} For the foregoing reasons, we hold that the Ohio Constitution‘s separate and independent protection for opinions, recognized in Scott v. News-Herald and reaffirmed in Vail v. Plain Dealer Publishing Co., is not limited in its application to allegedly defamatory stаtements made by media defendants. A nonmedia defendant whose allegedly defamatory statements appear in a letter to the editor may invoke the same protection, which may or may not apply depending on the totality of the circumstances. Because we agree with the court of appeals that Higgins could invoke the Scott/Vail test, and that the statements contained in his letter to the editor were, as a matter of law, nonactionable expressions of his opinions, we affirm the court of appeals’ judgment.
Judgment affirmed.
MOYER, C.J., F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, J., dissents.
PFEIFER, J., dissents.
PFEIFER, J., dissenting.
{¶ 59} Circleville is still a small town, small enough, at least, that anyone who truly cared could quickly learn whether what Higgins wrote about Wampler was true. Also, most people are smart enough to look at who‘s doing the squawking before they draw any conclusions about the person being squawked about. That‘s part of the beauty of small-town life.
{¶ 60} But this case has implications beyond the corner of Scioto and West Main. Thus, I dissent and reiterate my statements in Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279, 285-287, 649 N.E.2d 182, 187-189 (Pfeifer, J., concurring in judgment only), that the Ohio Constitution does not create an additional, separate constitutional privilege for opinion. Instead we should look at whether the statements made are provably false or whether the statements can be reasonably interpreted as stating actual facts about an individual. Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 19-20, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1, 18-19. In this case, I believe that there are enough statements within Higgins‘s hyperbole that either are provable as false or could be interpreted as stating actual facts about Wampler that Wampler should have survived summary judgment.
{¶ 61} In the end, Wampler may have suffered a few dollars worth of damages—or whatever the going rate is for an apology.
Cooper & Elliot, Charles H. Cooper, Jr., Rex H. Elliot and Aaron D. Epstein, for appellant.
McGrath & Breitfeller, L.L.P., and Thomas R. McGrath; and James K. Hill, for appellee.