dissenting in part and concurring in part.
*237I
The majority’s rejection of the jury verdict regarding the fines levied by the Union is fascinating exercise. The reasoning and result are reminiscent of Marshall v. Gibson (1985), 19 Ohio St. 3d 10. The leitmotif of both Marshall and the instant case appears to be: Where there’s a will, there’s a way. The “way” traversed by the majority is a path untrod by a court of last resort. I say this because a careful review of the reported case law throughout the United States reveals not a single case where any court, anywhere, has invoked the doctrine of passion and prejudice to set aside a defense verdict in the type of context we have at bar. I suspect counsel for both sides will be shocked to discover that, like Athena springing from the head of Zeus, this doctrine miraculously appears upon the scene. At no time during the course of the trial was there an objection to the massive amount of testimony the majority has now found so prejudicial. At no time was this argument even suggested to the trial court. At no time was it briefed or argued in the court of appeals. At no time was it briefed or argued before this court. It almost goes without saying that the majority has usurped the function of the trial court, the jury and the litigants and deprived appellees of due process of law in its rush toward this incredible result. This record contains page after page of conflicting testimony that the union membership applications signed by appellees were obtained through misrepresentation and/or coercion and duress. A unanimous court of appeals held that the issue of whether appellees were voluntary members or whether they had been coerced into joining the Union was clearly a jury issue and that the record disclosed evidence that, if believed, would support the jury’s verdict.
Local 1297’s lawsuit to collect these fines raises mixed questions of federal labor law and Ohio voluntary association and contract law. In NLRB v. Allis-Chalmers Mfg. Co. (1967), 388 U.S. 175, the United States Supreme Court upheld a union’s right to impose disciplinary fines upon its voluntary members and to sue upon that debt. That holding was refined in Scofield v. NLRB (1969), 394 U.S. 423, which approved of union lawsuits to collect disciplinary fines only when the members are “free to leave the union and escape the [union] rules” and where their membership in the union is voluntary. Id. at 430.
In Ohio, unions and other unincorporated associations can sue their voluntary members to collect debts or enforce discipline. See, e.g., State, ex rel. Ohio High School Athletic Assn., v. Judges (1962), 173 Ohio St. 239 [19 O.O.2d 52] {“OHSAA”)) Hennekes v. Maupin (1963), 119 Ohio App. 9 [26 O.O.2d 97]; Lough v. Varsity Bowl, Inc. (1968), 16 Ohio St. 2d 153 [45 O.O.2d 483]. These Ohio cases, however, recognize that only voluntary members, with full knowledge of the association’s rules, can be bound by the association’s discipline. In OHSAA this court in essence upheld the discipline meted out by a voluntary association’s tribunal because the offending member had willfully signed its membership contracts “with full *238knowledge of and subject to the rules of the association * * (Emphasis added.) Id. at 250. See, also, Scofield v. NLRB, supra, at 430.
This court’s ruling in OHSAA should be contrasted with the disputed facts of the instant case. Here, there was a substantial amount of testimony to support the following points:
1. None of the appellees ever sought membership in the Union.
2. All appellees were told by the Union that they would be fired if they did not formally join the Union and sign a membership card.3
3. The Union’s officers admitted that they enforced a “requirement” of formal membership.
4. None of the appellees ever received copies of the Union’s rules, governing laws or constitution, despite the fact that two of them made specific requests for these governing documents.
5. Contrary to the majority’s assertion that appellees had copies of the collective bargaining agreement, nothing in the record shows that ap-pellees actually received a copy of the collective bargaining agreement prior to the time that they were required by union officials, upon pain of discharge, to “join” the Union. What the record does indicate is that at some unspecified time, perhaps years later, some of the appellees may have obtained copies of the collective bargaining agreement.
The court of appeals was absolutely right in holding that the jury was clearly entitled, under both Ohio and federal law, to hear appellees’ evidence on the alleged fraudulent and involuntary nature of their union “membership” and to render a verdict based upon that evidence.
The trial court properly and carefully charged the jury on the issues and received an accolade with respect to same from counsel for appellants. While I can understand the majority’s dissatisfaction with the result, I cannot accept its method of expressing its disapproval, and must dissent.
II
I quite agree with Justice Brown’s and Justice Douglas’ analysis of the free speech issue. Tort actions based upon theories of libel, slander or intentional infliction of emotional distress cannot survive when premised upon constitutionally protected speech. However, it must be noted that appellants made no request for any sort of jury instruction on this very complex issue.
Appellants complain that the trial court erred in failing to sustain their motion for post-verdict relief. I must agree with the court of appeals when it stated that:
“Notwithstanding the parties have regaled us with an extensive recitation of the evidentiary support (or lack thereof) for this claim, we *239overrule the assignment of error for several reasons, most of which relate to what was not done by Local 1297 to either protect the record, demonstrate the error, or give the trial court the opportunity to correct its own error. [Emphasis sic.]
<< * * *
“Local 1297 filed no motion for directed verdict on either of the claims of this counterclaim; nor did it move to withdraw one of the issues from the consideration of the jury. See Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369.
“No error is assigned to the trial court’s pre-trial overruling of Local 1297’s motion for summary judgment.
“Numerous verdict forms of this counterclaim cause of action were painstakingly prepared by the trial court and submitted to the jury without objection by the Local 1297.
“Prior to charging the jury, counsel were given the opportunity for specific input.
((‡ ‡ ‡
“[After the jury was charged], counsel were given an opportunity to make specific objections to the charge * * *.
“Finally, Local 1297 did not avail itself of the opportunity to test and challenge the verdicts of the jury by special interrogatories. Civ. R. 49(B).”
Finally, and perhaps most importantly, appellants concede that at no time did they ever argue the free speech issue in either the trial court or before the court of appeals. If one thing is crystal clear in the law, it is that “* * * questions not raised or passed upon by the lower courts will not be ruled upon by the Supreme Court. * * *” Mills-Jennings, Inc. v. Dept, of Liquor Control (1982), 70 Ohio St. 2d 95, 99 [24 O.O.3d 181]; see, also, Zakany v. Zakany (1984), 9 Ohio St. 3d 192, 193; Moats v. Metropolitan Bank of Lima (1974), 40 Ohio St. 2d 47, 49-50 [69 O.O.2d 323].
The majority opinion “cures” the problem by invoking the doctrine of plain error. This is judicial legerdemain at its worst. Perhaps this novel manner of reaching a preordained result would be a bit more palatable if the majority had deigned to grant appellees the opportunity for a jury trial. Thus I must dissent.
The Union’s statements were apparently made despite the fact that formal membership in a union cannot be required as a condition of employment. NLRB v. General Motors Corp. (1963), 373 U.S. 734.