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"`[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions.'" (Citation omitted.) New York Times at 269,84 S.Ct. at 720, 11 L.Ed.2d at 700.
"Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."Id. at 270, 84 S.Ct. at 721, 11 L.Ed.2d at 701.
"`[I]t is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages.'" Id. at 281, 84 S.Ct. at 726, 11 L.Ed.2d at 707, quoting Coleman v. MacLennan (1908), 78 Kan. 711, 724,98 P. 281, 286. *Page 314
The protected right to criticize includes and covers invective, hyperbole, and unpleasant epithets. See Gertz v. Robert Welch,Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789;Garrison v. Louisiana (1964), 379 U.S. 64, 85 S.Ct. 209,13 L.Ed.2d 125; Driscoll v. Block (1965), 3 Ohio App.2d 351, 32 O.O.2d 506, 210 N.E.2d 899. In short, New York Times v. Sullivan and all the cases that have followed it emphatically underscore the fact that in the public arena, where there are competing policy considerations of free speech and protection of reputation, the right to criticize public officials and official conduct is going to prevail over hurt feelings. See, e.g.,Garrison at 72-73, 85 S.Ct. at 215, 13 L.Ed.2d at 131-132.
In order for a public official to successfully prosecute a defamation suit relating to his official conduct, he must prove with convincing clarity that the statements were made with actual malice, meaning not just that the statements were false, but also that they were made with knowledge of their falsity or with reckless disregard for whether they were false. New York Times,376 U.S. at 279, 84 S.Ct. at 725, 11 L.Ed.2d at 706. An elected judge in the state of Ohio, in this case former Judge Conese, is unarguably (and apparently this is the single point on which all parties in this case agree) a public official.
Thus, under federal analysis, the privilege to criticize official conduct can only be defeated by proof of actual malice, and the burden of establishing actual malice is on the public official claiming to be defamed.
In Hahn v. Kotten, supra, the Ohio Supreme Court recognized the qualified privilege defense to a defamation action. A qualified privilege attaches where the publication is made in a reasonable manner and for a proper purpose. Implicit in this defense is a right and a duty to speak, on matters of concern to a particular interested audience (which could be the general public), and good faith in the publication. In the Hahn case, the court held that such a privilege attached to a letter from an insurance company to some of its policyholders informing them of the reasons why it was terminating agent Hahn. This privilege was cited with approval in Jacobs v. Frank, holding that the privilege protected a letter written by a physician to an out-of-state medical licensing board about the fitness of another physician to practice medicine. In sum, the Jacobs court held:
"The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement *Page 315 limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only." Id.,60 Ohio St.3d at 114, 573 N.E.2d at 612.
This privilege was extended once, more in A B-Abell ElevatorCo. v. Columbus/Cent. Ohio Bldg. Constr. Trades Council (1995),73 Ohio St.3d 1, 651 N.E.2d 1283, to those providing information to government officials about the qualifications of those bidding on public contracts. Again, the underpinning for the protection is speaking for a proper purpose, to proper parties, and in good faith.
The type of qualified privilege described in Hahn, Jacobs, andA B-Abell can be defeated only by a clear and convincing showing that the communication was made with actual malice, meaning with knowledge that the statements were false, or with reckless disregard thereof. Jacobs, paragraph two of the syllabus. The burden of showing knowledge of falsity or reckless disregard in such cases is on the plaintiff. Varanese v. Gall (1988),35 Ohio St.3d 78, 518 N.E.2d 1177. Further, as clearly articulated by Justice Douglas in Varanese, the focus of this determination is not on the defendant's attitude toward the plaintiff, "but rather on the defendant's attitude toward the truth or falsity of the statement alleged to be defamatory." (Emphasis sic.) Id. at 80, 518 N.E.2d at 1180.
Thus far, the Ohio Supreme Court has extended this absolute privilege to express opinions only to media defendants (ancillary to "freedom of the press"), and only to statements made directly by, not to, the media, such as the columns in Vail and Scott, the columns and editorials in Kilcoyne v. Plain Dealer PublishingCo. (May 16, 1996), Cuyahoga App. Nos. 68648 and 69345, unreported, and the political cartoon in Celebrezze v. DaytonNewspapers, Inc. (1988), 41 Ohio App.3d 343, 535 N.E.2d 755. This absolute privilege has not yet been extended *Page 316 to all statements of opinion, by anyone, or to the media for the republication of the opinion of others. Thus, we believe thatVail has no application in this case.
With this discussion of the law as a backdrop, we now turn to the claims of the parties.
"I don't want their stupid brand of cronyism sitting on the bench in Fairfield. It's a good thing for them they're both judges, because they couldn't make a living as lawyers."
"I've been involved in state and national meetings, and I've never seen one with as much violations of the rules of order. It was kind of like a Conese court."
The statements made by Timmer and Crothers fall classically into the privilege to criticize public officials and their conduct in office, and as such, they are *Page 317 qualifiedly privileged under the standard of New York Times v.Sullivan. As stated by the court in Driscoll supra:
"Criticism of public officials and their conduct in office is privileged under the First Amendment to the Constitution of the United States unless such publication was made with actual malice, that is, with knowledge' that the published matter was false or published with a reckless disregard of whether it was false or not." Driscoll, 3 Ohio App.2d at 362, 32 O.O.2d at 513,210 N.E.2d at 906.
The endorsement of political candidates by groups such as the F.O.P. and the Professional Firefighters Association is taken very seriously by members, and endorsement meetings can be hurly-burly affairs. The comments made in this case were nothing more than hyperbole, sarcasm, and invective, which public officials are obliged to bear with a tin ear. The only allegation Conese brought forth in his deposition in response to these defendants' motion for summary judgment was to contend that the statements were false. This is not enough, because false statements alone will not make a case of defamation such as this. The speaker must know they are false or exhibit reckless disregard for their truth. To put it simply, Conese failed in his burden as to statements made by Timmer and Crothers, and summary judgment was properly granted by the trial court to these defendants.
"The court's arrogant attitude of `I am the Judge and do what I say with no questions asked' is unacceptable. People must feel they can use the Court without intimidation by a Judge. This must and will change."
Conese was particularly critical of the use of quotation marks in this paragraph, arguing it gave the false impression that he was being directly quoted. He also criticized other parts of the letter as containing false facts.
The holdings of New York Times, Hahn, and Jacobs come into play here. The letter was written to a particular audience — those supporting or whose support was being sought for Conese's opponent — and for an appropriate purpose — to urge voters to vote for Rosmarin rather than for Conese. As such, it was qualifiedly privileged. While the quotation marks should not have been used in the letter, they were not misleading. It is obvious from a reading of the entire letter, in the context of urging a vote for Rosmarin, that the remark was not a direct quote from Conese, but merely the impression that Conese apparently *Page 318 gave to others while on the bench. Thus, we consider the quotation marks in this context to be prosopopeia, a form of campaign literary license. What was in the quotation marks was really the impression others had of Conese in the view of Rosmarin's supporters; it was used as a description, not as a quotation.3
Once again, Conese had the burden of proving actual malice, and again he simply failed to meet his burden. Thus, summary judgment was, properly granted to Nichting and Sanders.
"[T]he court had a prior incident in which fine money was stolen, an embezzler identified and no criminal charge filed. * * * [T]he court has hired convicted criminals for bailiff or probation officer positions. * * * [T]he court has made the check and related records unavailable even to attorney Michael Shanks, the acting judge October 19 when the incident came to court."
First, we disagree with the argument made on behalf of Roberts that his statements were absolutely privileged because they were made during a local legislative hearing. In Ohio, state senators and state representatives are provided with an absolute privilege by Section 12, Article II of the Ohio Constitution, for statements made in session. In Costanzo v. Gaul (1980), 62 Ohio St.2d 106, 16 O.O.3d 134, 403 N.E.2d 979, the Supreme Court extended this rule of absolute privilege to "utterances made during the course of official proceedings by members of localgoverning bodies, at least where the statements relate to a matter under consideration, discussion or debate." (Emphasis added.) Id. at 110, 16 O.O.3d at 136, 403 N.E.2d at 983. We are not prepared today, in this case, to extend this absolute privilege to everyone who speaks before a local governing body.
We do, however, believe Roberts's statements fall squarely within the qualified privilege in Hahn and Jacobs. Roberts attended the council meeting to represent the interests of the Hamilton F.O.P. Lodge 38. His statements were *Page 319 clearly made in a reasonable manner, for a proper purpose, on a proper occasion, and to an appropriate audience. At least one of the members of council was seeking a probe of the operations of the Hamilton Municipal Court. Roberts's remarks were part of a work, session on this topic. The police shared the building with the court at the time and had their own concerns about court personnel, practices, and security. Roberts's remarks were based on his perception of his duty to speak. Thus we hold that his remarks were qualifiedly privileged.
Once again, Conese failed to meet his burden to defeat this qualified privilege. From the material, presented, it is readily apparent that Roberts and Conese did not care for each other. But, as Justice Douglas wrote in Varanese, it is not Roberts's attitude toward Conese, but rather Roberts's attitude toward the truth or falsity of the statements alleged to be defamatory that controls. Varanese at paragraph one of the syllabus. The United States Supreme Court has stated that "[d]ebate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth."Garrison, 379 U.S. at 73, 85 S.Ct. at 215, 13 L.Ed.2d at 132.
Conese failed to prove that Roberts knew that the statements he made were false, that Roberts was reckless in regard thereof, or that he in any way exceeded the qualified privilege of Hahn andJacobs. Therefore, summary judgment was properly granted below to Roberts.
On October 26, 1995, shortly before, the election, Conese held a press conference at which he stated that a search warrant had been issued to search Roberts's personal residence for drugs and laundered money derived from gambling. There was in fact a 1991 search warrant on file with the county clerk referring to income tax documents, but no warrant for drugs or money. As a result, Roberts filed a defamation suit against Conese and his campaign manager *Page 320 Rex Richardson. Green was quoted in the Journal-News, in a story under Nichols's by-line, as follows:
"The behavior displayed in this case is 100 percent unbelievable. Not only were the allegations against Gary Roberts untrue, but when confronted with the evidence, both defendants (Conese and Richardson) admitted that they were untrue."
Green's deposition established that his client, Gary Roberts, was in Nichols's office at the Journal-News, with Nichols's speakerphone on, while Richardson called to complain about the lack of press coverage for Conese. During this conversation, Richardson admitted to Nichols that neither he nor Conese had seen the search warrant for Roberts's house, which Conese had referred to in his press conference. Roberts conveyed this information to Green. Nichols confirmed this.
As Roberts's long-time lawyer, Green actually had a copy of the search warrant for tax papers and knew there was no other investigation. Although Green did not talk to Conese before he made his remarks in the press, Green had been told of Richardson's admission before he spoke. Richardson was clearly acting as Conese's agent when he admitted that neither one had seen the "drug and money" search warrant. Thus, Green was not reckless in regard to what he said about his client's defamation suit, and Conese's claim again failed. The comment that "the behavior was 100% unbelievable" was not defamatory and thus needs no further analysis.
We agree with the Journal-News that the easiest and cleanest way to resolve this claim would be to hold that the statements were protected under the neutral-reportage doctrine. This is a privilege that protects accurate reporting of accusations which might be defamatory, but which are newsworthy and concern a matter of legitimate public interest. In other words, the message and the messenger are separated in analyzing the defamatory nature of the statements. *Page 321 Despite the fact that this case presents an excellent example of an appropriate application of the neutral-reportage doctrine — the court and its judges are certainly a matter of public concern — because the Supreme Court of Ohio declined as recently as 1996 to adopt this doctrine,5 we instead apply the test of New York Times v. Sullivan to the claims against the Journal-News and Nichols.
Once again, the burden was on Conese to prove that the newspaper and its reporter published the stories with knowledge of their falsity or with reckless disregard for their truth. Mere failure to investigate the accuracy of a news story cannot, without more, establish liability. St. Amant v. Thompson (1968),390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262; Varanese, 35 Ohio St.3d at 84, 518 N.E.2d at 1183. In New York Times, although what was at issue was an advertisement, the court held that no checking at all did not rise to the level of reckless conduct because of the justifiable reliance on the reputation of the sponsors of the ad. In the words of St. Amant, "[r]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant at 731, 88 S.Ct. at 1325,20 L.Ed.2d at 267. In this case, Conese presented no evidence of actual malice, and therefore, summary judgment was appropriately entered in favor of the Journal-News and Nichols.
As discussed previously, Timmer was sued based upon the following comment: "I've been involved in state and national meetings, and I've never seen one with as much violations of the rules of order. It was kind of like a Conese court." *Page 322
Before denying Timmer's motion, the court held a hearing, although a transcript "of "this hearing has not been made a part of the record on appeal. The hearing apparently consisted solely of the arguments of counsel.
A denial of attorney fees as a sanction will not be reversed absent an abuse of discretion. Riley v. Langer (1994), 95 Ohio App.3d 151,642 N.E.2d 1. Timmer's motion raises a close question in this case. However, ultimately, we agree with the observation in Ceol v. Zion Indus., Inc. (1992), 81 Ohio App.3d 286, 292,610 N.E.2d 1076, 1079, that because the trial court had the benefit of observing the, entire course of the proceedings and was most familiar with the parties and counsel, the court's finding on the issue of frivolous conduct is entitled to substantial deference on review. Thus, we decline to disturb the trial court's denial of Timmer's motion for sanctions in this matter. Accordingly, this assignment of error is overruled.
The judgments of the court of common pleas are affirmed.
Judgments affirmed.
SUNDERMANN, P.J., and SHANNON, J., concur.
RAYMOND E. SHANNON, J., retired, of the First Appellate District, sitting by assignment.
1 Conese actually filed a notice of appeal from the summary judgment entered in favor of Crank, but has not pursued that appeal.
2 A qualified privilege, unlike an absolute privilege, can be defeated.
3 Judicial campaign conduct, a subject entirely separate from defamation, is governed by Canon 7 of the Code of Judicial Conduct. The accountability of a judge or judicial candidate for the content of campaign materials is clearly set forth in this canon. There is also a process to address accusations of false statements. We venture no opinion in this case about the literature of either candidate in this regard.
4 The conduct of lawyers, both in regard to trial publicity and statements concerning judges, are governed by the Ohio Code of Professional Responsibility. We express no opinion about Green's statements in this context.
5 Young v. Morning Journal (1996), 76 Ohio St.3d 627,669 N.E.2d 1136.
6 The only parties to this appeal are Timmer (appellant) and Conese (appellee).