Scott v. News-Herald

Douglas, J.,

concurring. I enthusiastically concur in the result reached by the majority, but I wish to express my reasons for such conclusion separately.

Appellant, H. Don Scott, Superintendent of the Maple Heights Public Schools, attended a wrestling match between Maple Heights and Mentor High Schools, on February 8 or 9, 1974 (depending upon which part of the record you believe). Appellee, the News-Herald, published an article on January 8, 1975, written by appellee, Ted Diadiun, which gave an account of a fracas that occurred at the match. The article also told of the subse*255quent sanctioning by the Ohio High School Athletic Association of the Maple Heights team and coaches for their involvement in the disturbance. In addition, the article expressed the writer’s view that these sanctions were removed on January 7, 1975 because appellant and another, at a hearing in November 1984, misrepresented the events leading to their imposition.

I

Upon the occasion of this court’s first review of the content of the article in question, the court found “* * * that the statements in issue are factual assertions as a matter of law, and are not constitutionally protected as the opinions of the writer.” Milkovich v. News-Herald (1985), 15 Ohio St. 3d 292, 298-299. I emphatically disagree with that finding. Clearly, the sentiments expressed by the writer are opinion, and today the majority has rightfully recharacterized them as such. Accordingly, this opinion enjoys the protection afforded such speech by the First Amendment.

The First Amendment militates the protection of unrestricted and hearty debate on issues of concern to the public, including the protection of what “may well include vehement, caustic, and sometimes unpleasantly sharp attacks * * *.” New York Times Co. v. Sullivan (1964), 376 U.S. 254, 270. This constitutional protection does not depend for its vitality upon “the truth, popularity, or social utility of the ideas and beliefs which are offered,” N.A.A.C.P. v. Button (1963), 371 U.S. 415, 445; but, rather, “[f]ree speech concerning public affairs” is to be safeguarded because such speech “is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana (1964), 379 U.S. 64, 74-75.

Neither factual error nor defamatory content is sufficient to remove the constitutional shield from criticism of official conduct. New York Times Co., supra, at 273. Although the use of calculated falsehoods “[is] no essential part of any exposition of ideas * * *,” Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 572, the Supreme Court has recognized that “erroneous statement is inevitable in free debate, and * * * it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need * * * to survive’ * * *.” New York Times Co., supra, at 271-272, relying in part on N.A.A.C.P., supra, at 433. Thus, even if the author’s comments in this case contained half-truths and misinformation, such factual error “affords no * * * warrant for repressing speech that would otherwise be free * * *.” New York Times Co., supra, at 272. Accordingly, except in cases where the author acts with malice, we are obliged to “protect some falsehood in order to protect speech that matters.” Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 341. See, also, St. Amant v. Thompson (1968), 390 U.S. 727, 732.

The chilling effect that fear of libel suits places on the media is exacerbated in the case of local newspaper publishers who can least afford costly damage awards. It is in these cases, most particularly, that the antithetical *256relationship between free expression and the threat of liability is most evident. Accordingly, we would do well to remember that every concession to libel will most assuredly result in compromising freedom of the press. It is with these sentiments that I wholeheartedly concur in the majority’s overruling of this court’s decision in Milkovich, supra. Our decision today goes a long way in providing assurance to local media that they remain free to print the news we all need to know.

II

A decision favorable to the appellees in this case can rest solely on our determination that the complained-of article is constitutionally protected opinion. However, even if it were not, appellant, as a public official, would be required to prove that the article was published with actual malice in order to prevail. New York Times Co., supra; Dupler v. Mansfield Journal (1980), 64 Ohio St. 2d 116 [18 O.O.3d 354], In New York Times Co., the court did not determine “how far down into the lower ranks of government employees the ‘public official’ designation would extend for purposes of * * * [the actual malice] rule, or otherwise to specify categories of persons who would or would not be included.” Id. at 283, fn. 23. However, guidance was provided two years later in Rosenblatt v. Baer (1966), 383 U.S. 75, 85, where the court said:

“It is clear * * * that the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”

The conclusion that the appellant meets the Rosenblatt criteria by virtue of his position as superintendent of schools is undeniable. There is no doubt that as a superintendent, appellant had responsibility for and control over the administration of the school system. R.C. 3313.47 and 3319.01.3 In addition, “the public has an interest in the qualifications and performance of” appellant as superintendent, “beyond the general public interest in the qualifications and performance of all government employees * * Rosenblatt, supra, at 86. Furthermore, appellant’s position was “one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.” Id. at 87, fn. 13. Public scrutiny of appellant’s official conduct, as well as those aspects of his private life which relate to his suitability for his position, was an inconvenience which *257he no doubt endured. Finally, the decision of the majority herein regarding appellant’s designation as a public official is consistent with the holdings of other courts. See Palm Beach Newspapers, Inc. v. Early (Fla. App. 1976), 334 So. 2d 50, certiorari denied (1977), 354 So. 2d 351; Cone v. Phipps Broadcasting Stations (D. Ga. 1979), 5 Media L. Rep. (BNA) 1972; State v. Defley (La. 1981), 395 So. 2d 759. Accord Pickerington v. Bd. of Edn. of Twp. H.S. Dist. 205 (1967), 36 Ill. 2d 568, 225 N.E. 2d 1.

Assuming arguendo that appellant was not a public official, then alternatively, as a public figure, appellant would also be required to prove that the article in this case was published with actual malice. In Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, the court decided two separate cases, consolidated for review.4 The first case involved Butts, the athletic director at the University of Georgia, and the second case involved Walker, a retired career army officer who was prominent in the local community. The court held that both men were public figures, indicating two ways in which an individual may become so classified. The court elaborated on those alternatives in Gertz, supra, at 351:

“* * * That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.”

Although it may be debatable whether appellant was so famous or notorious “that he [became] a public figure for all purposes,” it is clear that as superintendent of schools, and thus the person who bears ultimate responsibility for the melee, appellant was undisputably a central figure in this particular controversy. As such, he was clearly a public figure for purposes of this case.

As stated above, a public official or public figure must show actual malice in the publication of a defamatory article in order to prevail. Actual malice is explained as the publication of a statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co., supra, at 280. See, also, Dupler, supra, at 118-119. Actual malice must be shown by clear and convincing evidence. Gertz, supra, at 342. A showing of reckless conduct requires “sufficient evidence to permit the conclusion that the * * * [publisher] in fact entertained serious doubts as to the truth of his publication.” St. Amant, supra, at 731. In the recent case of Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, 512-513, the court held that to demonstrate actual malice, a *258public figure must produce evidence that the defendant realized the inaccuracy of the statement at the time of publication.

The record in this case does not contain any proof that appellees had knowledge of the falsity of the publication if, in fact, any part of the article was false. Even though it is apparent from the record that appellee Diadiun did not verify the information he allegedly got from Dr. Meyer, this court stated in Dupler, supra, at 119, that “[s]ince reckless disregard is not measured by lack of reasonable belief or of ordinary care, even evidence of negligence in failing to investigate the facts is insufficient to establish actual malice.” Accordingly, appellant could not prevail in this defamation action.

Ill

Assuming, for the sake of argument, that the appellant in this case was not a public official or public figure and that the statements concerning him were not protected opinion, the question then arises as to what should be the standard applied in cases involving defamation of private persons. In Gertz, the court retreated from its holding in Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, that libelous statements about a private person involved in a matter of public concern were privileged. The court held that liability would result where actual malice was established. Indicating, in the opinion of the plurality of that court, that the balance between free speech and private reputation had tipped too far toward free speech, the Gertz plurality at 346 concluded that Rosenbloom transgressed the states' legitimate interest in compensating injury to the reputation of private individuals. Additionally, the court indicated that private individuals were more deserving of recovery because they had not sought the attention, typically have less opportunity for rebuttal and are, therefore, more vulnerable to defamatory injury. Gertz, supra, at 344-345. Consequently, the Gertz court held that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347. However, at the same time, the court also eliminated the common-law doctrine of presumed damages and restricted recovery to compensation for actual injury. Id. at 349.

In Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co. (1984), 9 Ohio St. 3d 22, 25, this court adopted an ordinary negligence standard for Ohio, stating:

“We are persuaded that the negligence standard of review is appropriate in this area. In cases involving defamation of private persons, where a prima facie showing of defamation is made by the plaintiff, the question which a jury must determine by a preponderance of evidence is whether the defendant acted reasonably in attempting to discover the truth or falsity or defamatory character of the publication.” (Emphasis added.)

*259It is my belief that the Embers decision was ill-considered and that a simple negligence standard is inappropriate. Any standard that punishes certain speech is likely to encourage self-censorship. Thus, the validity of any judicially contrived scheme which leads to such a result requires an identifiable state interest that is an appropriate counterweight for our constitutionally protected interest in unfettered speech. Rules, impervious to constitutional attack when applied to ordinary human behavior (Le., one must exercise reasonable care in conduct), have to be altered or discarded when used to regulate speech. Although I would not require proof of actual malice, where private persons are involved, some intermediate standard is needed. This standard would require some showing of recklessness on the part of the defendant. Alternatively, a showing of negligence should require a greater quantum of proof.

In New York Times Co., the court held that an act of recklessness was sufficient to prove malice. Thus, a defamatory statement published recklessly could render the publisher liable. My problem with this equation is that malice is intent-based and recklessness is not. Black’s Law Dictionary (5 Ed. Rev. 1979) 862, defines “malice” as:

“The intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent. A condition of mind which prompts a person to do a wrongful act willfully, that is, on purpose, to the injury of another, or to do intentionally a wrongful act toward another without justification or excuse. A conscious violation of the law (or prompting of the mind to commit it) which operates to the prejudice of another person. A condition of the mind showing a heart regardless of social duty and fatally bent on mischief. * * *” (Citations deleted.)
“Recklessness” is defined in Black’s, supra, at 1142-1143, as:
“Rashness; heedlessness; wanton conduct. The state of mind accompanying an act, which either pays no regard to its probably or possibly injurious consequences, or which, though forseeing [sic] such consequences, persists in spite of such knowledge. Recklessness is a stronger term than mere or ordinary negligence, and to be reckless, the conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended. * * *” (Citation deleted, emphasis added.)

Thus, the knowledge and appreciation of a risk, short of substantial certainty, are not the equivalent of intent. A publisher who acts in the belief or consciousness that the publication of an article involves the potential loss of reputation or harm to a private individual may be negligent and if the risk is great, his conduct may be characterized as reckless or wanton, but it should not be classed as an intentional wrong. Accordingly, actual malice should lie only upon a showing of the intentional publication of false statement. Where private individuals are involved, rather than a showing of mere negligence, I would require a showing of recklessness or gross negligence, in derogation of accepted journalistic standards.

*260This approach was taken in the case of Chapadeau v. Utica Observer-Dispatch, Inc. (1975), 38 N.Y. 2d 196, 341 N.E. 2d 569. The New York Court of Appeals held at 199 that:

“* * * party defamed may recover * * * [once he establishes] by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.”

The application of such a standard strikes a more appropriate balance between the First Amendment freedoms guaranteed the press and the individual’s right to privacy.

Alternatively, if an ordinary negligence standard is to be applied, the quantum of proof required should be more than a preponderance of evidence. Although the “beyond a reasonable doubt” standard is exclusively applied in criminal cases, it is my opinion that a showing of its functional equivalent should be required in private person libel suits. Operationally, this would require a plaintiff to prove that no reasonable doubt exists as to a publisher’s failure to exercise due care under the circumstances.

Regardless of the nature of the harm, states have a legitimate interest in providing their citizens with a remedy. However, the presence of our First Amendment values requires states to use finer, more discriminating instruments to regulate speech in order to protect those values. I would overrule Embers in favor of a standard or quantum of proof which accommodates both protection of speech and press and the state’s interest in redressing harm to its citizens.

IY

In conclusion, the First Amendment guarantee of freedom of speech provides us with the right to think as we will and to speak as we think. Whitney v. California (1927), 274 U.S. 357, 375, Brandeis, J., concurring. When we are tempted, in any way, to move to restrict these precious rights, it is well to remember the historical consequences of the formulation of the First Amendment. When the Constitution was adopted, a number of people strongly opposed it on the basis that the document contained no Bill of Rights to safeguard certain freedoms. See 1 Annals of Congress (1834) 448 et seq. One of the greatest fears was that new powers granted to a central government might be used to curtail freedom of religion, press, assembly and speech. In answer to these concerns, James Madison suggested a series of amendments which, if adopted, would assure that these great liberties would remain safe and beyond the power of any branch of government to abridge. It is my judgment that in preserving the freedoms of speech and press, guaranteed by the First Amendment, we must accord protection to the expression of ideas we abhor or sooner or later such protection of expression will be denied to the ideas we cherish.

*261The First Amendment gives a special protection to the press from the chilling effect of defamation litigation. This is a protection we must preserve at any and all cost and, accordingly, as far as the majority’s decision today reinforces this protection, I heartily concur.

R.C. 3313.47 states in pertinent part:

“Each city, exempted village, or local board of education shall have the management and control of all of the public schools of whatever name or character in its respective district. * * * f)

R.C. 3319.01 states in pertinent part:

“The superintendent of a school district shall be the executive officer for the board.

Butts was decided together with Associated Press v. Walker, on certiorari to the Court of Civil Appeals of Texas, Second Supreme Judicial District.