Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co.

Holmes, J.,

dissenting. I must dissent for a number of reasons. At the outset, I seriously question whether the words and phrases utilized by the defendant in its news reports were defamatory as to this plaintiff. The publications, it would seem to me, did not assert the commission of an offense by the plaintiff corporation but, rather, that a raid was conducted on the premises, and that certain gambling paraphernalia and equipment had been seized. The law generally applied in this regard is that a report or commentary of illegal activity at a place of business is not a libel against the owner of the business, unless the owner itself is charged with initiating, encouraging or acquiescing in the misconduct. See El Meson Espanol v. NYM Corp. (C.A. 2, 1975), 521 F. 2d 737, and Gwinn v. Washington Post Co. (C.A.D.C. 1954), 211 F. 2d 641.

Secondly, I believe that the trial court and the court of appeals were correct in concluding that the complained of reports were basically true. There is ample case law and legal commentary to the effect that in a defamation action the plaintiff has the burden of proving that the publication was not true, and if the evidence does not substantiate the falseness of the publication, the plaintiff cannot prevail. Wilson v. Scripps-Howard Broadcasting Co. (C.A. 6, 1981), 642 F. 2d 371, certiorari dismissed (1981), 454 U.S. 1130; Cox Broadcasting Corp. v. Cohn (1975), 420 U.S. 469; Restatement of the Law, Torts 2d (1977), Section 580B, Comment j. Additionally, Ohio has provided by statutory enactment, in R.C. 2739.02, that:

“In an action for a libel or a slander, the defendant may allege and prove the truth of the matter charged as defamatory. Proof of the truth thereof shall be a complete defense. * * *”

Here, the evidence revealed that the newscasts were substantiated by testimony adduced during the plaintiff’s case that the police raid resulted in the seizure of the Daily Racing Form; the Kentucky Sports bulletin, a trade publication of entries and scratches at racetracks; a “Handy Pocket *27Calculator for Two and Three Horse Parlays and Memo Book”; and a sheet of cardboard with handwritten figures on it, as well as numerous papers with entries thereon. I can see no substantial deviation from the truth in a publication which asserts the police seizure of “* * * racing forms, betting slips, and other gambling paraphernalia * * *” or “* * * betting slips and equipment i * * *,” in view of what had actually been confiscated. In that truth is a complete defense in a defamation action alleging libel or slander, this case upon the facts could reasonably have been directed out on such issue.

Even if the above considerations are not deemed dispositive, the existence of the privilege accorded by R.C. 2317.05 provides protection to the defendant in this case. Here, the publications are a substantially accurate rephrasing of the information contained in the official police report and, since the record is absent any evidence of malice on the part of defendant, one must conclude that the publications were privileged.

Finally, I note the absence in the record of anything from which reasonable minds could have concluded fault on the part of defendant. While plaintiff argues that there was an inadequate verification by defendant of the facts of the case, and accordingly acted negligently — upon the evidence adduced, I cannot agree. The actual testimony received at trial substantiated the truth of the publication, so that it is difficult to understand how additional efforts at verification would have altered the tenor of the publication.

Based upon all of the evidence presented to the jury, the trial court did not abuse its discretion in directing a verdict for Scripps-Howard. Therefore,

I would affirm the court of appeals.

W. Brown and Locher, JJ., concur in the foregoing dissenting opinion.