Young v. Gannett Satellite Information Network, Inc.

YOUNG, Plaintiff-Appellee, D. James INFOR- SATELLITE

GANNETT INC., NETWORK,

MATION

Defendant-Appellant.

No. 12-3999. Appeals, States Court

United

Sixth Circuit. 19, 2013.

Argued June 31, 2013.

Decided and Filed Oct. En Banc

Rehearing Rehearing

Denied Jan. 2014.*

* Judge grant rehearing Moore would for the reasons stated in her dissent.

OPINION ROGERS, Judge. Circuit In the Miami Township police de- partment Sergeant fired Police James Young for allegedly forcing sex on a wom- an he was said to be involved with. How- ever, the termination was overturned an arbitrator. The arbitrator stated that it happened was unclear what day on the in question police but that the department proven allegations. had not its The arbi- trator’s also mentioned that DNA samples from the scene did not match Young and found that complainant credibility. later, lacked years Thirteen Gannett newspaper published the state- ment ‘Young had sex with a woman while job” on the commenting an article on a local suspension debate about of a different officer. Young sued Gan- nett for defamation and obtained a $100,000verdict. Gannett appeals now judgment, arguing Young did not high establishing meet the threshold for involving public defamation claim official. There was sufficient evidence for a decide that Gannett’s editor knew that the probably accusation was false and that the published regardless. editor The dis- trict court therefore properly entered judgment jury’s on the verdict. Greiner, Graydon, ARGUED: John C. LLP, Cincinnati, OH, Ritchey Head & for Gannett’s Ad Milford-Miami Imm, Katz,

Appellant. Stephen E. Green- published an vertiser article about a Mil Norton, LLP, Cincinnati, Ohio, berger & ford, Ohio officer named Russell Appellee. for BRIEF: ON John C. article, Kenney. According Kenney Greiner, Graydon, LLP, Ritchey Head & Cincinnati, OH, city’s mayor. had sex with the Appellant. Stephen Although for E. Imm, Katz, Norton, LLP, Greenberger & termination, chief recommended Cincinnati, OH, Appellee. for Kenney only a fifteen-day suspen received suggested city sion. The article SILER, MOORE, Before: suspension chose over termination so ROGERS, Judges. Circuit go through it would not have to the arbi ROGERS, J., opinion delivered the process. tration court, SILER, J., joined. in which Advertiser editor Theresa Herron decid- MOORE, 550-54), (pp. J. delivered a explain- ed that the article needed context separate dissenting opinion. engaged that he ever Young denied to avoid arbitra- city wanted why the ing February Phillips. conduct with On that, years sexual twelve remembered tion. She It 9, 1997, relationship went sour. Township had earlier, Miami neighboring that happened on remains unclear what having sex while allegedly Young for fired Young later accused day, Phillips but the overturned an arbitrator duty but on on him. perform to oral sex forcing her re- conducted some She termination. Dur- investigated. police department The ease, the rec- examining Young’s on search police the recovered investigation, the ing investigation, the arbi- the police ords of rug the sample from a human semen opinion and a state court report, trator’s act oc- alleged the sexual Phillips where She arbitrator’s decision. upholding the investigation, the the curred. Based on the paragraphs two to added these then recommended terminat- police department article: laboratory later de- Young. The local ing Township Miami trustees In did not match that semen termined Young for a vari- Sgt. James terminated Young’s DNA. unbe- including conduct ety charges officer, harass- a sexual coming of and, un- grievance filed a Young’s union behavior, ment, duty neglect immoral bargaining agreement, collective der the Young had sex misconduct. gross and The up took the matter. an arbitrator job. a woman while with Phil- Young found that both and arbitrator not- credibility. lacked The arbitrator saying lips the trustees violated Young sued Phillips that had a “well documented bargaining contract be- ed the collective union. ... behavior that seri- township history and the of histrionic tween the credibility,” ously her lied agreed Young, with but undermined An arbitrator men, lied being engaged to two township fought the decision. Cler- about cancer, and being diagnosed Pleas about with County Court of Common mont by being pursued or abused Ringland ruled: “While lied about Judge Robert Turning to the events of Feb- indicating agrees not with other men. this court is 9, 1997, the found that ruary or condones the conduct arbitrator the arbitrator occurred,” other accusation of forced oral sex was Phillips’s has based on which the evidence. He noted supported by set aside the similar cases he could not said, ‘he she said’ Young decision. cur- it was a “classic arbitrator’s that the “lack of truthfulness Township with the Miami scenario” and employee rent prevents any reason- parties both Department. Police happened.” able assessment what story complex was more than Young’s that “the evi- The arbitrator concluded suggested. Young article and issue, testimony create doubts as to ap- dence and Marcey Phillips, had woman beyond relationship went seeing each other since Phil- whether parently been rela- private what could be described as relationship Young’s with one of co- lips’s adults” tionship consenting between two Young during ended. admitted workers to township that he that the “failed establish department investigation personal conduct of body, nexus between the placed his hands on had job.” Phillips] and his iY'oung her. He with hugged had her and had kissed Young jokes in therefore ordered be presence made arbitrator had also However, the arbitrator also alleged or reinstated. police employees fellow about township proven had Phillips and found that the sexual behavior with desired However, by making had violated its rules Phillips called from work. had regarding editor, sexual remarks inappropriate Herron, Advertiser’s work, by Phil- Phillips failing leave reviewed the arbitrator’s report. She immediately upon receiv- therefore lips’s residence knew that there was no evidence call, ing failing to follow orders had forced sex investigation not to discuss the with oth- that it was unclear they whether had ever Young’s ers. The arbitrator ordered that at all. sex the definitive sixty-day be to a regarding termination converted case the sufficiency of a suspension required finding be verdict actual malice in the training press coverage attend sexual-harassment ses- of a figure, the Su preme explained sion. Court the standard to be applied by jury: township appealed The the arbitrator’s If a defamatory false and statement County of decision. The Clermont published with knowledge falsity of or a affirmed, noting Common Pleas that it was disregard truth, reckless for the “constrained the standards of review public figure may prevail. A “reckless permitted upholding in this arbitration de- disregard” truth, however, for the re- and, accordingly, engage cision” did not quires departure more than a from rea- independent fact-finding. its own sonably prudent conduct. “There must years alleged Thirteen after the incident be sufficient evidence permit to the con- occurred, Young saw Advertiser article clusion that the defendant fact enter- and sued Gannett for defamation. The tained serious doubts as to the truth of district court denied Gannett’s motion for publication.” his The standard is a sub- summary judgment. The case pre- was jective one—there must be sufficient ev- jury, jury sented to a and the was instruct- permit idence to the conclusion that the Young, they ed that to find for must “find actually defendant a “high degree had by clear convincing evidence ... that ... probable falsity.” awareness of ... ... acted [Gannett] with actual malice.” In a case involving such as this The court explained jury that actual reporting party’s allegations, of a third malice “occurs when the defendant makes may “recklessness be found where there a false statement either with the knowl- are obvious reasons to doubt the veraci- edge that it was false or with reckless ty of accuracy the informant or the disregard of whether or not it was false.” reports.” his Furthermore, jury the court instructed the Commc’ns, Harte-Hanks Inc. v. Con that the case of an ambiguous “[i]n docu- 657, 688, naughton, 491 U.S. ment, adoption of a rational interpreta- (1989) (citations 2678, 105 L.Ed.2d 562 tion, though arguably reflecting a miscon- omitted). There was sufficient evidence ception, does not constitute actual malice.” jury for the to conclude that Herron was liable, jury awarding The found Gannett well aware that the statement she added to $100,000 Young in compensatory damages. the article probably false. She none provide theless added the statement Gannett moved for judgment as a mat- story Kenney. context for the about Officer law, ter of but the district court denied disregard could find reckless well, that motion as anof convincing proof the truth and clear and ambiguous Second, document. Gannett actual malice. argues that the Young prove failed to reputation. harm to his argument properly Neither could have relied has merit. upon the inclusion in the arbitrator’s re- report that Herron ment of several statements

port First, time, any she flags. Phillips red sex with have seen as should found on Phil- the semen investigated noted that further. As should have Harte-Hanks, Young’s DNA. match carpet did not lips’s explained Supreme Court Second, report cast serious doubts “[although investigate failure to will not Third, it mentioned credibility. Phillips’s malice, support finding of actual alone occurred while incident that only single the truth is in avoidance of purposeful incident, As to that duty. Young was category.” 491 a different U.S. accusa- noted the arbitrator omitted). (citation ar- Gannett S.Ct. 2678 oral perform forced her tion that the arbitrator’s statement gues by the evidence” supported “is not sex somewhere in the middle” is “the truth is truthfulness both lack of “[t]he However, a definitive statement. such any as- reasonable parties prevents ground” rape between a “middle while Finally, the happened.” sessment of what inti- imply degrees no sex could various that, if even concluded arbitrator contact, imply logically mate it does not relationship, did have a sexual duty, jury or at least the sex while on a department “failed to establish could so find. Since the administrator’s personal [of conduct nexus between say anything does not about job.” involving Phillips] and his duty, is a Young’s having sex while on this knowledge, Her Armed with Harte-Hanks, in much like that situation published statement ron nevertheless likely newspaper’s “it is where while on the ‘Young had sex with a woman product inaction a of a deliberate deci- fact. This is reckless job” as if it were acquire knowledge not to of facts that sion best, truth at and is suffi disregard of the probably falsity might [the] confirm jury to found that Gan cient for the have charges.” Id. with actual published nett the statement reports reviewed the same publish cannot an newspaper malice. A did, and determined that the state- Herron it has no evidence accusation that knows ‘Young had sex with a woman while story fit its desired ment behind it as fact to in the First job” line and then cloak itself on the was false. The was also Amendment.1 adoption that “the of a rational instructed ambiguous docu- [of failing in Herron was also reckless ment], though arguably reflecting mis- any investigation beyond the rec- conduct mal- conception, does not constitute actual original case. She did not seek ords of the jury found that Gannett ice.” Since the comment, nor did she talk to out for malice, it have exhibited actual must also case, though anyone involved in his even re- concluded either that the arbitrator’s report provided obvious ambiguous not an document or port was veracity to doubt the reasons interpretation was not ra- that Herron’s police investigation. complaints and tional. Herron found no definitive state- When which, er, evidence when Supreme explained that "a “circumstantial

1. The Court has evidence, may amount publishing story combined with other newspaper’s motive in Ass'n, Digest finding v. Reader's provide for to malice.” See Perk cannot a sufficient basis 408, Harte-Hanks, Inc., (6th Cir.1991). F.2d 411 Fur- 491 U.S. at 931 actual malice.” thermore, 665, rely provides context to the otherwise We do 109 S.Ct. 2678. story Young's story inexplicable fit decision to rewrite Gannett’s desire to make is, long forgotten. Kenney’s actual It howev- an event to find malice.

549 of basic fact utory liability. These conclusions See United States v. Han- na, (9th subject 1080, Cir.2002). are to some deference the con 293 F.3d 1088 case, particular this notwithstand Indeed, text of the Supreme Court relied on such ing requires the First Amendment jury-found in reaching facts its decision independent that we conduct an review to 690-91, Harte-Hanks. See 491 U.S. at whether the in the record “decide evidence 109 S.Ct. 2678. is sufficient cross constitutional Moreover, not conceded the entry any judg threshold that bars the issue it would not even be clear that actual supported by ment that is not clear and ” proper malice is the apply standard to convincing proof of ‘actual malice.’ Bose this case. Supreme Gannett cites the Ohio U.S., Inc., v. Corp. Consumers Union of Dealer, Court case of Soke v. Plain 69 485, 510-11, 466 U.S. Ohio St.3d 632 N.E.2d (1984). Supreme L.Ed.2d 502 As the (1994), which held that officers are Harte-Hanks, “only cautioned in public purposes. officials for defamation through case-by-case adjudi the course of However, may misinterpreted Soke have give cation can we content to these other federal law the issue. Soke noted that

wise elusive constitutional standards.” 491 Supreme “United States Court has Supreme U.S. at 109 S.Ct. 2678. The repeatedly recognized officers upheld jury Court Harte-Hanks find officials,” are and cited New York ing though of actual malice even the case Sullivan, Times Co. v. 376 U.S. story qualifications involved about the (1964), S.Ct. Henry L.Ed.2d 686 a candidate in an election. The Collins, 356, 992, 380 U.S. 85 S.Ct. 13 acknowledged Court that such a situation (1965), L.Ed.2d 892 Thomp- St. Amant v. presents “probably strongest possible son, 727, 1323, 390 U.S. 88 S.Ct. 20 application case for of the York New (1968), Time, L.Ed.2d 262 and Inc. v. rule, strongest possible Times and the case Pape, 279, 633, 401 U.S. 91 S.Ct. 28 686-87, for independent review.” Id. at (1971), authority. However, L.Ed.2d 45 as (internal quotation 109 S.Ct. 2678 marks none of those cases involved officers in omitted). contrast, citation and In this Young’s position. New York Times Co. v. case, requiring independent while still re city police Sullivan involved a commission- view to ensure that the actual malice stan er, 256, an position. elected 376 at U.S. 84 met, presents stronger dard has been Henry S.Ct. 710. v. Collins involved deferring jury’s case for to findings. police. chief of at 380 U.S. personnel This was a involving matter Amant, 992. St. “accepted] Court alleged actions of one officer in a non- the determinations of the Louisiana courts leadership position over a decade in the that Thompson public was a official.” past. Young political did not enter the 390 U.S. at 88 1323. The arena, S.Ct. Louisi- and knowledge of what someone ana had concluded that alleged years he had done thirteen before Thompson story was official because he necessary was not for members responsibility had “substantial for or con- the electorate to exercise their constitu Thus, governmental tional trol over the conduct rights. while af- we must make independent (quot- fairs.” Id. at 88 S.Ct. 1323 n.2 regarding determination Amant, ing Thompson whether there is sufficient v. St. 250 La. evidence of the (1967)). malice, existence of actual we can properly Finally, So.2d Pape facts, jury defer to the on historical Chicago Deputy credi involved the Chief of De- determinations, bility 280-81, and elements of stat- tectives. 401 at U.S. 91 S.Ct. 633. injury element of a defamation key public meet the officers All of these FM, 142 Young not. Of action. See Gilbert WNIR did leadership positions. 1263, 1277 756 N.E.2d course, Young argue App.3d that Ohio does because (2001). Young may not have Although in this apply should standard different standard, reputation, present- harm to his he malice shown case, the actual apply we of emotional harm. This evi- necessarily it is ed evidence deciding whether without testimony Young’s from a rank- dence included apply to to proper standard upset and wife that he became withdrawn officer. and-file sleeping. had trouble It also he to in this case is sufficient The evidence at testimony from included threshold. The ar- constitutional cross the Young’s emo- least one fellow officer about not even consider report did bitrator’s reading state after the article. The tional Phillips Young had sex with while whether damages valued jury accepted these only mentioned one duty. report $100,000. provides no them Gannett Phillips’s where was instance jury’s con- challenging valid basis for duty. Semen found on house while on point. clusion on this day match rug on that did not Phillips’s There sufficient evidence this The arbitrator also found was Young’s DNA. that Gan- story happened jury about what case for the to conclude employees credible. The nett’s knew that the statement on that date was not “Young had sex with a woman while could find that Herron’s false, say Young job” probably but nonetheless to day published was irration- further and it. had sex failed research actual mal- accordingly al. could find judgment ice. The district court’s therefore affirmed. argues the alternative Gannett that he suffered prove failed that, any reputation harm his there MOORE, KAREN NELSON Circuit fore, defamation. The prove he failed to Judge, dissenting. un publisher argument bases this “[hjarm An that on Febru- arbitrator determined to repu statement that supported 9, 1997, ary Sergeant Police James of the tort.” tation is an element Marcey Phillips, a woman with visited a having whom he was consensual adult misstates Ohio law. Gannett relationship, duty while on as a offi- claim injury The element to a defamation report, explored cer. his arbitrator plaintiff “that only requires Ohio during have that vis- might what occurred injury a result of the proximate suffered as it, but could not reach a conclusive deter- Soc’y v. Lead publication.” Am. Chem. credibility Inc., 366, given mination the total lack of Ohio St.3d 978 N.E.2d scope, (2012). repu Phillips. of both Thirteen person’s Harm to incident, just injury; years alleged is not after this Theresa possible tation is one Pain, in the required of the tort. suf Herron relied on the details arbitra- element humiliation, story in when she edited a fering, anguish, embar tor’s that do not Advertiser and inserted personal rassment are harms Milford-Miami change that included the sentence necessarily require paragraphs others to their two a woman while on the plaintiff, “Young views of the but are sufficient to sex with quires I believe that at job.” Because Herron’s a minimum that the statements interpretation a rational statement reflects were made with a disregard reckless for report, of the contents of arbitrator’s the truth. And although concept document, ambiguous disregard an and that de reckless upon fully cannot be encom passed definition, novo review there was insufficient evidence in one infallible we have support in the record to a conclusion oth- made clear that the defendant must have erwise, I would hold that Herron did not made the publication false high with a degree act with actual malice as a matter of law. probable of awareness of falsity, or respectfully I therefore dissent. must have entertained serious doubts as to publication.” the truth of his Id. at matter, disagree As an initial I with the (internal citations, 109 S.Ct. 2678 quotation majori- of review set forth standard marks, omitted). and alteration In other ty. When reaches verdict favor words, subjective this is a standard. For claim, plaintiff of a on a defamation we example, “failure investigate before pub duty “have a constitutional to exercise in- lishing, even when a reasonably prudent dependent judgment and determine wheth- so, person would have done is not suffi er the record establishes actual malice cient to disregard.” establish reckless Id. convincing clarity.” with Harte-Hanks 688, 109 at S.Ct. 2678. Commc’ns, Connaughton, Inc. v. 491 U.S. 657, 659, 109 S.Ct. 105 L.Ed.2d 562 The district court chose to instruct the (1989). explained jury Court has on the issue of actual malice based in Time, part use of the de novo standard is based language Pape, Inc. v. unique “on the character of the interest 401 U.S. 28 L.Ed.2d 45 (1971). protected the actual malice standard.” Specifically, the district court in- 685-86, pro- Id. 109 S.Ct. 2678. “Our structed the adoption that “the of a found national commitment to the free ex- rational ambiguous [of ideas, change document], as enshrined in the First though arguably reflecting Amendment, demands that the law of misconception, libel does not constitute actual breathing space carve out an area of so malice.” Pape Court discussed this protected speech discouraged.” issue as follows: “Time’s omission of the (internal quota- ‘alleged’ adoption Id. S.Ct. 2678 word amounted to the omitted). tion marks I therefore cannot one of a possible number of rational inter- agree majority’s hedge pretations with the decision to of a document that bristled with by making unsup- ambiguities. this de novo review The deliberate choice of such that ported type interpretation, though arguably contention this of case an reflect- requires greater jury’s ing misconception, deference to the not enough was findings type than the examined in Harte- create a issue of ‘malice’ under New Maj. Op. Supreme Hanks. at 549-50. The York Times.” 401 at U.S. limitations, resolve, imposed then, Court has no such nor 633. The issue we must is any unmitigated can be inferred from its that “Young whether Herron’s assertion independent job” defense of review. had sex with woman while on the ambigu- was a rational of an protected Because value must be “[t]his ous document. special vigilance,” with plaintiff issue, demands much of a who seeks to The document at Harte-Hanks, report, undoubtedly ambiguous show actual malice. 491 is as to 687, 109 question “Young U.S. at S.Ct. 2678. The Court has of whether had sex with a explained job,” that malice re- woman while on the as the arbitrator “[a]ctual for, Importantly, also deter- and therefore did arbitrator responsible

was not neglect duty Young mined that was on make, determination express not fact, In he con- night question. on the Rather, the arbitrator was that issue. neglect duty Young cluded that Young determining whether with tasked Phillips’s because he was at residence: harassment that rise[s] engaged in “sexual February 1997 he did not leave the “[o]n “Neglect of rape” and to the level of immediately Marcey Phillips residence (Arbi- 52-4 things. R. Duty,” among other (Page at 20 ID upon receiving call.” Id. 20) (Page ID # Report trator #2161). The arbitrator also noted that 2161). is no direct resolu- Because there Young this was not the first time that with Phil- Young had sex tion of whether he had Phillips’s apartment; been at duty, was on night while he lips that by Phillips’ apartment Ms. on 6 “stopped ambiguous. document January or occasions between ID February (Page 1997.” Id. at 4 and Nonetheless, arbitrator did make 2145). # The arbitrator went into consid- analy- our findings that can inform certain regarding detail as well the evolu- erable issue. rational-interpretation sis on the relationship, explaining tion of their that rape charge, for exam- respect to the With relationship seemingly began this after concluded that because ple, the arbitrator Phillips relationship had ended a with an- credible, Young not Phillips both were man, seeking other and “was solace and prove beyond failed “to Employer has (Page more.” at 15 ID possibly Id. Young Mr. en- doubt that reasonable #2156). According report, “Mr. that was uninvit- gaged in sexual behavior possibly offered that solace Phillips.” Id. at ed and unwanted Ms. more.” Id. #2159); ID see also id. at 16 (Page totality of the statements made #2157) (“The of truthful- (Page ID lack report support this lend for Herron’s as- pre- in this matter parties ness both ‘Young sertion that had sex with a woman any assessment of what vents reasonable job.” easy while on the It is to infer from 9th.”). reaching happened February that were conclusion, the arbitrator noted that this in a engaged weeks-long relationship of a testimony create “the evidence and doubts it expressly sexual nature and was found relationship went be- as to whether the had been at house yond private as a what could be described duty during period. while on time consenting two relationship between Although it cannot be for certain that said ID (Page #2159- adults.” Id. 18-19 they duty, did have sex while he was 60). parts report, In other of his is not irrational to reach that conclusion arbitrator that he “do[es] asserted based on the statements made in the arbi- physical [Phillips’s doubt saw son] words, report. trator’s In other I believe mother and Mr. touching between his that Herron’s statement “amounted to the Young” evidence and again “[t]he adoption possible of one number testimony plausibly support more a con- interpretations rational of a document senting relationship between Mr. ambiguities.” 401 Pape, bristled with U.S. 15, (Page at 17 ID Phillips.” and Ms. Id. 290, at 91 “The S.Ct. 633. deliberate 2158) 2156, # in- I believe that a rational interpretation, though choice of such an statements is gleaned ference from these arguably reflecting misconception, was relationship had a enough” support finding not of actual during that was sexual in nature the time Although malice. Id. Herron’s statement period certainly parsing issue. did not reflect careful

553 case, messy cer present Sergeant of the nuances this such as public is a official not an irrational for defamation interpretation purposes was of is that the Ohio Supreme “may Court have misinter- report. preted issue,” id., federal law on the majority The that “while we asserts detective, finding a “being police officer, make an independent must determination official,” Soke, public is a 632 N.E.2d at regarding whether there is sufficient evi- 1284. malice, the of dence of existence actual we Supreme Court, however, The Ohio is properly jury can defer to the on historical in its interpretation alone of federal facts, determinations, credibility and ele- precedent. The First Circuit has con- statutory liability.” Maj. Op. ments of police firmed that a serving officer as a independent 549. It fails to such an make resource officer at a middle school is a Rather, determination. majority the relies public official under Massachusetts law. potentially finding the that Her- Dixon v. Int’l Bhd. Officers, Police 504 the ron’s arbitrator’s re- (1st Cir.2007). 73, F.3d 88 The Third Cir- irrational, port 550, was id. but Harte- cuit patrol held that rookie officer is a against precisely type Hanks cautions this public Coughlin official. v. Westinghouse unequivocally of reliance. Harte-Hanks Inc., (3d 340, Broad. & Cable F.2d 780 342 holds that the court must “make inde- Cir.1986). The Fifth Circuit concluded pendent de novo review the entire rec- patrol that a a public officer is official. Harte-Hanks, 664, ord.” 491 U.S. at 109 Baden, 1017, McKinley v. 777 F.2d 1021 majority’s S.Ct. 2678. The deference to (5th Cir.1985). The Seventh Circuit held regarding whether Herron’s inter- that federal agents law-enforcement are pretation of the rational “incor- public Moriarity, officials. v. Meiners 563 rectly subsidiary relied on implicitly facts (7th Cir.1977). F.2d Eighth 352 The jury’s established verdict instead of acknowledged Circuit a police officer drawing its own inferences from the evi- patrolling public a demonstration was a I agree dence.” Id. therefore cannot with official for purposes. defamation v. Speer either majority’s jury’s reliance on the Ottaway Newspapers, 828 F.2d finding majority’s or with the conclusion. (8th Cir.1987). The Ninth Circuit found Furthermore, providing any without le- city that a public officer was a offi gal support for position, majority its proof cial requiring of actual malice in a opinion argues Rattray that it “not ... clear that case. City defamation v. Nat’l (9th Cir.1994). proper City, actual malice is the standard to 36 F.3d apply Maj. Finally, in this in a Op. widely opinion, case.” at 549. cited Tenth investiga Circuit held that the chief majority acknowledges that Ohio Su- county tor for Dealer, attorney public was a preme Soke The Plain figure in pressing his claim defamation 69 Ohio St.3d 632 N.E.2d alleged regarding his acts when he was a (1994), has “held that officers are patrolman.” “normal Gray street v. Udev public officials for purposes.” defamation itz, Cir.1981). (10th 656 F.2d I Maj. atOp. 549. Despite highest court have been unable to find a court circuit of the state clearly holding holding contrary. public officers are officials for purposes law, majority state defamation ques- The overwhelming entirely one-sid- tions whether such should be the case. ed our no decisions sister circuits leave justification only ques- advanced for doubt that are offi- police officers tioning whether a offi- police purposes. rank-and-file cials for defamation Courts actual malice uniformly the applied

have SELBY, Plaintiff-Appellant, is because there Charles J. police to officers standard protecting in ex- interest strong societal law enforcement that criticizes pression (“The Meiners, F.2d at 352 officers. CARUSO, Director of L. former Patricia impor- in an certainly interested public is Department Michigan of Correc- qualifications way in the special tant and MacMeekin, Re- tions, former James agents federal performance and Administrator, gional Jeri-Ann Prison and arrest search to decisions to

whose Sherry, Regional Prison Administra- affect individual personally directly Hofbauer, tor, former and Gerald freedoms.”). grant police we polity, As a Prison, Warden, Marquette Branch extraordinary power: to arrest officers capacities, personal and their official liberty, curtailing citizens’ suspects Defendants-Appellees. invading individual areas private search and, circumstances re- privacy, when No. 13-1248. it, deadly light force. quire even use criticism of extraordinary power, of this Appeals, States Court of United or lack performance, officers Sixth Circuit. duties, thereof, ought their receive First of the Amendment protection full 2013. Decided Filed Oct. are the chiefs of those officers whether detectives, or rank-and-file captains, police, Gray, 656 F.2d at walking a beat.

officers (“The possesses cop on the beat.... ability to exer- authority and

both the can authority of his force. Misuse

cise of constitu- significant deprivation

result personal freedoms.... rights

tional ensuring strong public interest qualifi- discussion and criticism his

open job performance warrant[s]

cations official.”). public conclusion that he is holding highest

Given clear officers are

court of Ohio that law, con- under its defamation

figures conclusions of our

firmed uniform by strong supported circuits and

sister rationales, I am left with no doubt

policy claim, defamation Sergeant Young’s he a rank-and-file though is

even

officer, subject actual stan- malice

dard. reasons, respectfully I dissent.

For these

Case Details

Case Name: Young v. Gannett Satellite Information Network, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 31, 2013

Citation: 734 F.3d 544

Docket Number: 12-3999

Court Abbreviation: 6th Cir.