Vail v. Plain Dealer Publishing Co.

Moyer, C.J.

Our standard of review when presented with a motion to dismiss predicated on Civ.R. 12(B)(6) is well established. The factual allegations of the complaint and items properly incorporated therein must be accepted as true. Furthermore, the plaintiff must be afforded all reasonable inferences possibly derived therefrom. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756. It must appear beyond doubt that plaintiff can prove no set of facts entitling her to relief. O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. However, the determination of whether allegedly defamatory language is opinion or fact is a question of law to be decided by the court. Scott v. News-Herald (1986), 25 Ohio St.3d 243, 250, 25 OBR 302, 308, 496 N.E.2d 699, 705.

The issue in this case is whether the trial court properly dismissed Vail’s complaint because the averred defamatory statements are constitutionally protected as opinion. The resolution of this question requires us to revisit our decision in Scott v. News-Herald, supra.

Section 11, Article I of the Ohio Constitution provides in relevant part: “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.” In Scott we stated in effect that expressions of opinion are generally protected under Section 11, Article I of the Ohio Constitution as a valid exercise of freedom of the press. Scott v. News-Herald, supra, at 244-245, 25 OBR at 303-304, 496 N.E.2d at 701-702. We held as constitutionally protected opinion a columnist’s inference that a school superin*281tendent was less than truthful. Superintendent Scott was involved in the events that led to the imposition of sanctions against the school’s wrestling team. The News Herald columnist insinuated that Scott lied at a subsequent hearing convened to determine whether the school was afforded due process prior to the suspension. Notwithstanding dicta stating the article was protected opinion under the First Amendment to the United States Constitution, our holding was premised on Section 11, Article I of the Ohio Constitution. Scott, supra, at 244, 25 OBR at 303, 496 N.E.2d at 701.

Subsequent to our announcement in Scott, the United States Supreme Court decided the related case of Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1. Milkovich, the wrestling team coach, was also involved in the due process hearing that generated the Scott case, supra. The column at issue in Scott also addressed Milkovich’s alleged untruthfulness. The Supreme Court held that “opinion” is afforded no additional protection under the United States Constitution, id. at 21, 110 S.Ct. at 2707, 111 L.Ed.2d at 19, and that the actual malice standard of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, strikes the proper balance between freedom of the press and the protection of one’s reputation as applied to public officials and public figures, id. at 14-17, 110 S.Ct. at 2703-2705, 111 L.Ed.2d at 14-17. The Milkovich court determined that the language was actionable because a reasonable fact-finder could conclude that an implication of perjury was made in the column. Id. at 21, 110 S.Ct. at 2707, 111 L.Ed.2d at 19. The court also held that perjury was a factual allegation that could be proven to be true or untrue. Id. Citing Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783, the court reasoned that a statement on matters of public concern must be provable as false before there can be liability under the law of defamation. Id. at 16, 110 S.Ct. at 2704, 111 L.Ed.2d at 16. As such, the United States Supreme Court reached a different conclusion from an application of the First Amendment to the United States Constitution than we had reached in Scott applying the Ohio Constitution.

Regardless of the outcome in Milkovich, the law in this state is that embodied in Scott. The Ohio Constitution provides a separate and independent guarantee of protection for opinion ancillary to freedom of the press. However, we do not perceive this distinction to be as great as it may appear. As Justice Brennan observed in his dissent to Milkovich, the factors used to determine whether a statement implies actual facts “are the same indicia that lower courts have been relying on * * * to distinguish between statements of fact and statements of opinion: the type of language used, the meaning of the statement in context, whether the statement is verifiable, and the broader social circumstances in which the statement was made.” Id. at 24,110 S.Ct. at 2709, 111 L.Ed.2d at 21. While it may be considered a distinction without a difference, it does alter the method of *282analysis. The focus shifts to whether the language under question is to be categorized as fact or opinion.

In Scott we adopted a totality of the circumstances test to be used when determining whether a statement is fact or opinion. Specifically, the court should consider: the specific language used, whether the statement is verifiable, the general context of the statement, and finally, the broader context in which the statement appeared. Scott, supra, at 250, 25 OBR at 308, 496 N.E.2d at 706. This analysis is not a bright-line test, but does establish parameters within which each statement or utterance may stand on its own merits rather than be subjected to a mechanistic standard. As Justice Locher, writing for the court, cautioned in Scott, “the totality of the circumstances test * * * can only be used as a compass to show general direction and not a map to set rigid boundaries.” Id.

Furthermore, the standard must be fluid. Every case will present facts that must be analyzed in the context of the general test. Each of the four factors should be addressed, but the weight given to any one will conceivably vary depending on the circumstances presented.

We begin by analyzing the context in which Dirck’s statements appear. There can be no question that the general context in which the columnist’s statements were made is opinion. The column appears on the Forum page of the newspaper, and is titled “Commentary.” 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. Such a column is distinguished from a news story which should contain only statements of fact or quotes of others, but not the opinion of the writer of the story. Furthermore, the Dirck column appeared in the midst of a political campaign, which provided the subject for the column.

Assuming the general context of the Dirck column is opinion, that conclusion does not dispose of the legal issue. Second, we must consider the full context of the statements. Is the column characterized as statements of objective facts or subjective hyperbole? The general tenor of the column is sarcastic, more typical of persuasive speech than factual reporting. The column is prefaced with the author’s name appearing above his picture and the word “Commentary” appearing below it. The author’s reputation as an opinionated columnist should also be considered.

Third, the specific language used must be reviewed, focusing on the common meaning ascribed to the words by an ordinary reader. We must determine whether a reasonable reader would view the words used to be language that normally conveys information of a factual nature or hype and opinion; whether the language has a readily ascertainable meaning or is ambiguous. We believe the language cited by Vail to be actionable lacks precise meaning and would be *283understood by the ordinary reader for just what it is — one person’s attempt to persuade public opinion. The same is true of the passages cited by the court of appeals in support of its conclusion. Engaging in “an anti-homosexual diatribe”, and fostering “homophobia” can hardly be defined with crystal clarity. Each term conjures a vast array of highly emotional responses that will vary from reader to reader. None is similar to the typical examples of punishable criminal or disciplinary conduct cited as actionable language. Dirck’s veiled characterization of Vail as a liar could be construed as an objective statement. The average reader could construe this language as communicating a fact. This is particularly relevant given that under Civ.R. 12(B)(6) we must construe all inferences in favor of Vail. However, we conclude this single phrase is insufficient to overcome the conclusion that an ordinary reader would believe that statement, just as the others, to be the opinion of the writer.

The final question is whether the statements are verifiable. Does the author imply that he has first-hand knowledge that substantiates the opinions he asserts? Where the “ ‘ * * * statement lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content.’ ” Scott at 251-252, 25 OBR at 309, 496 N.E.2d at 707, citing Ollman v. Evans (C.A.D.C.1984), 750 F.2d 970, 979. Again, only the references to Vail’s honesty are possibly verifiable facts and we do not find them, in the context in which they were written, to support a cause of action. The language used by Dirck is value-laden and represents a point of view that is obviously subjective.

Based upon the totality of the circumstances, we are convinced that the ordinary reader would accept this column as opinion and not as fact. Therefore, the statements are protected under Section 11, Article I of the Ohio Constitution.

Since we have concluded that the statements at issue are constitutionally protected speech, Vail’s claims for intentional infliction of emotional distress must also fail.

For the foregoing reasons, the judgment of the court of appeals is reversed.

Judgment reversed.

Douglas, Wright, Resnick, F.E. Sweeney and Cook, JJ., concur. Douglas and Wright, JJ., concur separately. Pfeifer, J., concurs in judgment only.