stating Ohio's categorical protection for opinions is also available to nonmedia defendants
How later courts described this case
- stating Ohio's categorical protection for opinions is also available to nonmedia defendants
Written by the judges who cited it.
The opinion
[This decision has been published in Ohio Official Reports at 93 Ohio St.3d 111.]
WAMPLER, APPELLANT, v. HIGGINS, APPELLEE.
[Cite as Wampler v. Higgins, 2001-Ohio-1293.]
Defamation—Ohio Constitution’s separate and independent protection of
opinions is not limited in its application to the allegedly defamatory
statements made by media defendants—Nonmedia defendant whose
allegedly defamatory statements appear in a letter to the editor may invoke
the same protection–Section 11, Article I, Ohio Constitution, applied.
(No. 00-1273—Submitted April 4, 2001 at the Lawrence County Session—
Decided August 29, 2001.)
APPEAL from the Court of Appeals for Pickaway County, No. 2000 CA 5.
__________________
SYLLABUS OF THE COURT
The Ohio Constitution’s separate and independent protection for opinions,
recognized in Scott v. News-Herald and reaffirmed in Vail v. Plain Dealer
Publishing Co., is not limited in its application to the allegedly defamatory
statements made by media defendants. A nonmedia defendant whose
allegedly defamatory statements appear in a letter to the editor may invoke
the same protection, which may or may not apply depending on the totality
of the circumstances. (Section 11, Article I, Ohio Constitution, applied;
Scott v. News-Herald [1986], 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d
699, and Vail v. Plain Dealer Publishing Co. [1995], 72 Ohio St.3d 279,
649 N.E.2d 182, explained and followed.)
__________________
SUPREME COURT OF OHIO
COOK, J.
{¶ 1} In Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 21, 110 S.Ct.
2695, 2707, 111 L.Ed.2d 1, 19, the United States Supreme Court rejected the notion
that “an additional separate constitutional privilege for ‘opinion’ is required to
ensure the freedom of expression guaranteed by the First Amendment” to the
United States Constitution. This court later decided, however, that “[r]egardless of
the outcome in Milkovich, * * * [t]he Ohio Constitution provides a separate and
independent guarantee of protection for opinion ancillary to freedom of the press.”
Vail v. Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279, 281, 649 N.E.2d
182, 185.
{¶ 2} Now we are asked to determine whether the Ohio Constitution’s
separate and independent protection for opinions protects only those statements
uttered by media defendants, such as the newspaper and columnist in Vail, or
whether a private citizen unaffiliated with the media, such as the appellee here, may
invoke the same independent constitutional protection. We agree with the court of
appeals that nonmedia defendants may invoke the Ohio Constitution’s independent
protection for opinions and affirm its judgment.
I. Background
{¶ 3} On September 25, 1998, the Circleville Herald published a news
article entitled “Cardinal Market to close doors.” According to the article, Linda
McKee, the owner of Linda’s Cardinal Market, a downtown grocery, had decided
to liquidate the business due to declining sales, “a general degeneration in the
downtown area, a proliferation of mini marts around town, and changing customer
habits.” The article also stated that McKee had been unable to come to terms on a
new lease with the owner of the building in which the market was located, appellant
Isaac Wampler. McKee stated that she would be unable to afford additional rent
that Wampler was seeking under the terms of a proposed new lease. The article
quoted Wampler as saying, “I did not want [McKee] to leave,” and “I deeply regret
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that she has made a decision to leave. My commitment was to her. She has been a
part of the community for 16 years.”
{¶ 4} Three days later, the Circleville Herald published a letter to the editor
signed by appellee, Wallace Higgins. The letter stated:
“Dear Editor:
“Downtown Circleville is about to suffer a serious loss. Linda’s Cardinal
Market, at the corner of Scioto and West Main streets, is being forced out of
business by the exorbitant rent now being demanded by the present owner of the
building. Most of us who live in the downtown area have depended on Linda and
her predecessors, who have been in the grocery business on that site for the past 50
years.
“Ward Skinner and Linda have run a friendly and accommodating store.
They knew, understood, and sympathized with their customers. Now, because of
one man’s self-centered greed, all of that is going to end.
“Too many downtown properties belong to people who care nothing for
Circleville and who have no vision for the future. Circleville is a unique place, and
everyone could profit from that uniqueness. Instead, some are trying to make it
conform to the world for their own profit. They are willing to sell out to some
faceless national corporation with no motive but profit and no interest in our
history, our architecture, or our tradition. They cheerfully take the money and run
and ‘let the public be damned!’
“The owner of the Cardinal Market building sold his own Watt Street
property, for an astronomical figure, to a mindless corporation. Once he had a taste
of the blood of easy money, he has apparently become a ruthless speculator. He
would, I’m sure, sell the whole town to heartless corporations so that they might
turn it into one great, ugly, sprawling shopping mall. It is pathetic that the whole
town must suffer because of the greed of a few uncaring people.”
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SUPREME COURT OF OHIO
{¶ 5} Wampler sued Higgins for defamation in the Common Pleas Court of
Pickaway County, alleging that Higgins had falsely stated in his letter that Wampler
had forced McKee out of business by charging exorbitant rent. Wampler also
claimed that Higgins had impugned his personal and professional integrity and
reputation by, among other things, falsely describing Wampler as a “ruthless
speculator.” According to Wampler, Higgins either knew that his statements were
untrue or negligently failed to make a reasonable inquiry into the truth of the
statements. Wampler asserted that as a result of Higgins’s statements, he had
suffered injury to his reputation and business, humiliation, stress, and other
unspecified pecuniary and nonpecuniary losses.
{¶ 6} In his answer, Higgins admitted that he was the author of the allegedly
defamatory letter, but asserted that every statement contained therein “was an
honest and good faith expression of opinion.” Higgins later made the same
contention in a motion for summary judgment. The trial court granted Higgins’s
motion for summary judgment and dismissed Wampler’s complaint.
{¶ 7} In its decision and entry granting Higgins’s motion for summary
judgment, the trial court cited this court’s decision in Vail for the proposition 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,” quoting 72 Ohio
St.3d at 280, 649 N.E.2d at 184. The trial court noted that “the Ohio Supreme Court
has extended this absolute privilege for opinion only to media defendants (ancillary
to ‘freedom of the press’), and only to statements made directly by, not to, the
media.” Despite Higgins’s status as a nonmedia defendant, however, the trial court
decided that it would determine whether the statements contained in Higgins’s letter
to the editor were opinions under the four-part test adopted by this court in Scott v.
News-Herald (1986), 25 Ohio St.3d 243, 25 OBR 302, 496 N.E.2d 699, and
reaffirmed in Vail. Applying this test, the trial court concluded that under the
totality of the circumstances, “the language used by defendant in his letter would
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January Term, 2001
be understood by the ordinary reader for just what it is—one person’s frustration
with the perceived plight of many small downtown areas due to small business
closures and large corporate takeovers. * * * [T]he average reader would believe
that statements contained in defendant’s letter are the opinions of the writer and not
facts.”
{¶ 8} Wampler appealed the trial court’s decision to the Pickaway County
Court of Appeals. In his first assignment of error, Wampler claimed that the trial
court erred when it applied the Scott/Vail test to determine whether Higgins’s
statements were constitutionally protected opinions. Wampler argued that the Ohio
Constitution’s separate and independent protection for opinions applies only to
those allegedly defamatory statements made by media defendants. In his second
assignment of error, Wampler contended that the trial court should have concluded
that the statements contained in Higgins’s letter were actionable statements of fact
under the Scott/Vail test—not merely expressions of Higgins’s opinions. The court
of appeals, however, affirmed the trial court’s decision granting summary judgment
in Higgins’s favor.
{¶ 9} Wampler moved the court of appeals to certify a conflict between its
decision and that rendered by the First District Court of Appeals in Conese v.
Nichols (1998), 131 Ohio App.3d 308, 722 N.E.2d 541. As Wampler noted, the
Conese court had determined that Vail’s “absolute privilege to [express opinions
had] not yet been extended to all statements of opinion, by anyone, or to the media
for the republication of the opinion of others.” Id. at 315-316, 722 N.E.2d at 546.
The Pickaway County Court of Appeals denied Wampler’s motion for certification,
however, concluding that the Conese court’s decision did not ultimately turn upon
any distinction between media and nonmedia defendants and that any apparent
conflict arose from obiter dicta.
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SUPREME COURT OF OHIO
{¶ 10} Wampler appealed to this court, and the cause is now before us upon
the allowance of a discretionary appeal. Wampler v. Higgins (2000), 90 Ohio St.3d
1430, 736 N.E.2d 26.
II. Vail’s Guarantee of Protection for Opinions
{¶ 11} To place the instant dispute in its proper context, we begin our
analysis by briefly examining the historical development of what we described in
Vail as Ohio’s “separate and independent guarantee of protection for opinion
ancillary to freedom of the press.” Id., 72 Ohio St.3d at 281, 649 N.E.2d at 185.
{¶ 12} In 1964, the United States Supreme Court decided that the First
Amendment to the United States Constitution restricts state defamation law,
holding that a public official may not recover damages for a defamatory falsehood
concerning his or her official conduct unless he or she proves “actual malice,” i.e.,
that the statement was made with knowledge that it was false or with reckless
disregard of whether it was false. New York Times Co. v. Sullivan (1964), 376 U.S.
254, 279-280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706.
{¶ 13} The United States Supreme Court later decided that the First
Amendment does not impose the same strict limitations on the states in suits by
private persons alleging defamation on matters of public interest. See Gertz v.
Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. The Gertz
court determined that some degree of constitutional protection nevertheless applies,
holding that (1) states may not permit liability to attach in such cases without
requiring some showing of fault, and (2) states may not permit recovery of
presumed or punitive damages without a showing of the New York Times brand of
malice. Id. at 347-350, 94 S.Ct. at 3010-3012, 41 L.Ed.2d at 809-811. The Gertz
court also stated, “Under the First Amendment there is no such thing as a false idea.
However pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries but on the competition of other ideas. But there is
no constitutional value in false statements of fact.” Id., 418 U.S. at 339-340, 94
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January Term, 2001
S.Ct. at 3007, 41 L.Ed.2d at 805. This passage from Gertz eventually became “the
opening salvo in all arguments for protection from defamation actions on the
ground of opinion.” Cianci v. New Times Publishing Co. (C.A.2, 1980), 639 F.2d
54, 61.
{¶ 14} In Ollman v. Evans (C.A.D.C.1984), 750 F.2d 970, the United States
Court of Appeals, District of Columbia Circuit, discussed in detail the import of
this brief passage from Gertz: “The statement is clearly dicta. * * * Despite its status
as dicta, a majority of federal circuit courts, including this one, have accepted the
statement as controlling law.” (Emphasis sic.) Id. at 974, fn. 6. “By this statement,
Gertz elevated to constitutional principle the distinction between fact and opinion,
which at common law had formed the basis of the doctrine of fair comment. Gertz’s
implicit command thus imposes upon both state and federal courts the duty as a
matter of constitutional adjudication to distinguish facts from opinions in order to
provide opinions with the requisite, absolute First Amendment protection.”
(Emphasis added; footnote omitted.) Id. at 975.
{¶ 15} Having decided that Gertz imposed this constitutional requirement
on courts, the Ollman court adopted a four-part test1 designed to assist judges in
distinguishing, under the totality of the circumstances, actionable statements of fact
from nonactionable statements of opinion. Id. at 979-984. The United States
Supreme Court declined to review Ollman, over then Justice Rehnquist’s vigorous
dissent. See Ollman v. Evans (1985), 471 U.S. 1127, 1129, 105 S.Ct. 2662, 2664,
86 L.Ed.2d 278, 280 (Rehnquist, J., dissenting from the denial of certiorari, argued
that the lower courts were erroneously relying on the Gertz dicta to “solve with a
meat axe a very subtle and difficult question”).
{¶ 16} Soon after the United States Supreme Court declined to review
Ollman, this court, expressly relying on the Gertz dicta, adopted Ollman’s four-part
1. For a detailed discussion of the four-part Ollman test, see Part IV below.
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SUPREME COURT OF OHIO
test for distinguishing actionable factual statements from nonactionable opinions.
Scott, 25 Ohio St.3d at 245, 25 OBR at 303, 496 N.E.2d at 701 (quoting the Gertz
dicta); see, also, id. at 250, 25 OBR at 308, 496 N.E.2d at 705-706 (citing Ollman,
750 F.2d at 979, and adopting Ollman’s four-part test). In Scott, a school
superintendent alleged that a column published on the sports pages of the News-
Herald had falsely accused him of committing perjury at a hearing conducted by
the Ohio High School Athletic Association. This court decided, however, that the
trial court had correctly granted summary judgment in favor of the newspaper
because, under the totality of the circumstances, the article was “an opinion,
protected by Section 11, Article I of the Ohio Constitution as a proper exercise of
freedom of the press.” Id. at 244, 25 OBR at 303, 496 N.E.2d at 701.
{¶ 17} Four years after Scott, the United States Supreme Court explained
that lower courts had misinterpreted the passage from Gertz that had formed the
basis for the Ollman/Scott test. Milkovich, 497 U.S. at 18, 110 S.Ct. at 2705, 111
L.Ed.2d at 17. In Milkovich, seven justices agreed that “we do not think this
passage from Gertz was intended to create a wholesale defamation exemption for
anything that might be labeled ‘opinion.’ * * * Not only would such an
interpretation be contrary to the tenor and context of the passage, but it would also
ignore the fact that expressions of ‘opinion’ may often imply an assertion of
objective fact.” Id.
{¶ 18} The Milkovich court thus squarely rejected the notion that “in every
defamation case the First Amendment mandates an inquiry into whether a statement
is ‘opinion’ or ‘fact.’ ” Id. at 19, 110 S.Ct. at 2706, 111 L.Ed.2d at 18. As the court
noted, the common law already incorporated a speech-protective privilege of “fair
comment” as an affirmative defense to an action for defamation. Id. at 13, 110
S.Ct. at 2703, 111 L.Ed.2d at 14. The privilege of fair comment “ ‘afford[ed] legal
immunity for the honest expression of opinion on matters of legitimate public
interest when based upon a true or privileged statement of
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January Term, 2001
fact.’ ” (Emphasis added.) Id., quoting 1 Harper & James, Law of Torts (1956)
456, Section 5.28. Given this, and the other “established safeguards” already
recognized under the First Amendment, the United States Supreme Court expressly
declined to recognize “still another * * * protection for defamatory statements
which are categorized as ‘opinion’ as opposed to ‘fact.’ ” Milkovich, 497 U.S. at
17, 110 S.Ct. at 2705, 111 L.Ed.2d at 17. The court determined that the “breathing
space” essential for the survival of free expression was “adequately secured by
existing constitutional doctrine without the creation of an artificial dichotomy
between ‘opinion’ and ‘fact.’ ” Id. at 19, 110 S.Ct. at 2706, 111 L.Ed.2d at 18.
{¶ 19} Though the Milkovich court, in no uncertain terms, determined that
the Ollman/Scott approach was not required to satisfy the dictates of the First
Amendment, and that such an approach had, in fact, been predicated upon a
misinterpretation of the Gertz dicta, this court expressly declined to follow
Milkovich on independent state law grounds in Vail, 72 Ohio St.3d at 281, 649
N.E.2d at 185. In Vail, a candidate for political office sued the Plain Dealer and a
columnist after an allegedly defamatory article about the candidate appeared in the
newspaper’s Forum section. The article, entitled “Gay-basher takes refuge in the
closet,” stated that Vail “doesn’t like gay people” and that she “added gay-bashing
to the repertoire of right-wing, neo-numbskull tactics she is employing
* * * in her increasingly distasteful campaign.” Other statements in the article
accused Vail of engaging in “anti-homosexual diatribe,” and stated, among other
things, that “Vail wouldn’t be the first candidate to latch onto homophobia as a
ticket to Columbus.” The trial court dismissed Vail’s complaint on the basis that
the averred defamatory statements were constitutionally protected opinions. The
court of appeals reversed, and Vail’s appeal provided our court with the opportunity
“to revisit our decision in Scott” and assess the continuing validity of the
fact/opinion dichotomy we had adopted in that case. Vail, 72 Ohio St.3d at 280,
649 N.E.2d at 184.
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SUPREME COURT OF OHIO
{¶ 20} In Vail, we expressly conceded that, in the interval since Scott, the
United States Supreme Court had decided that “ ‘opinion’ is afforded no additional
protection under the United States Constitution.” Id. at 281, 649 N.E.2d at 185,
citing Milkovich, 497 U.S. at 21, 110 S.Ct. at 2707, 111 L.Ed.2d at 19. Even so,
we determined that “[r]egardless 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.”
Id. Though we downplayed the significance of our divergence from the United
States Supreme Court in Vail, suggesting that “it may be considered a distinction
without a difference,” we also expressly noted that “it does alter the method of
analysis. The focus shifts to whether the language under question is to be
categorized as fact or opinion.” Id. at 281-282, 649 N.E.2d at 185.
{¶ 21} After applying the Ollman/Scott test in Vail, we decided that the trial
court had correctly dismissed the plaintiff’s action for failure to state a claim under
Civ.R. 12(B)(6), as “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.” Id., 72 Ohio St.3d at 283, 649 N.E.2d at 186. Vail’s
syllabus reaffirms Scott’s proposition: “When determining whether speech is
protected opinion a court must consider the totality of the circumstances.
Specifically, a court should consider: the specific language at issue, whether the
statement is verifiable, the general context of the statement, and the broader context
in which the statement appeared.” Id., syllabus, citing Scott, 25 Ohio St.3d 243, 25
OBR 302, 496 N.E.2d 699. Compare Ollman, 750 F.2d at 979-984.
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January Term, 2001
III. Wampler v. Higgins
{¶ 22} The instant dispute centers on the continuing validity, scope, and
proper application of this court’s decision in Vail. Both of the lower courts
concluded that Higgins was entitled to summary judgment under the four-part
Scott/Vail test because the allegedly defamatory statements contained in his letter
to the editor were—as a matter of law—nonactionable expressions of Higgins’s
opinions. Wampler raises three interrelated arguments in support of reversal. First,
he urges us to revisit Vail and “adopt the approach set forth in the Supreme Court’s
Milkovich decision.” In the alternative, Wampler urges us to refrain from extending
Vail’s rule to cases such as this, in which the defendant is a private citizen
unaffiliated with the media. Finally, he contends that “[i]f the four-part test
described in Scott and Vail does apply to this case, it was applied incorrectly by the
courts below.” For the following reasons, however, we reject each of Wampler’s
arguments.
A
{¶ 23} Wampler first urges us to revisit Vail, to abandon the Scott/Vail test,
and to adopt the approach set forth by the United States Supreme Court in
Milkovich. In support of this argument, Wampler relies on Justice Pfeifer’s
concurring opinion in Vail. As Justice Pfeifer correctly observed in that case,
Section 11, Article I of the Ohio Constitution not only guarantees that every citizen
of our state may freely speak, write, and publish his or her sentiments on all
subjects, it also expressly provides that every citizen is “responsible for the abuse
of the right.” Vail, 72 Ohio St.3d at 285, 649 N.E.2d at 188 (Pfeifer, J., concurring,
citing Section 11, Article I, Ohio Constitution). In his merit brief to this court,
Wampler refers to this observation in Justice Pfeifer’s concurring opinion and asks
us to reconsider our decision in Vail on the basis that the Ohio Constitution “is not
broader than the First Amendment to the United States Constitution. To the
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contrary, it appears to be narrower.” For the following reasons, however, we
disagree.
{¶ 24} The qualifying language in Section 11, Article I to which Wampler
refers could indeed be interpreted as militating against this court’s recognition of
any additional speech-protective safeguards under the Ohio Constitution beyond
those that are absolutely required by the United States Supreme Court’s
interpretation of the First Amendment. See Vail, 72 Ohio St.3d at 286, 649 N.E.2d
at 188 (Pfeifer, J., concurring). At least one commentator has suggested that
jurisdictions governed by constitutions explicitly recognizing liability for the abuse
of free expression should not extend “supraconstitutional” protections to purely
private defamations for which there are no binding federal constitutional
requirements. See Elder, Defamation: A Lawyer’s Guide (1993) 59, Section 8.7.
Each constitutional restriction on the tort of defamation is in derogation of the
common law, under which “defamatory communications were deemed actionable
regardless of whether they were deemed to be statements of fact or opinion.”
Milkovich, 497 U.S. at 12-13, 110 S.Ct. at 2702, 111 L.Ed.2d at 14, citing
Restatement of Torts (1938), Sections 558, 565-567.
{¶ 25} In spite of these observations, however, a majority of this court
expressly eschewed the Milkovich approach in Vail. Though the United States
Supreme Court determined that still another safeguard for allegedly defamatory
speech was unnecessary, Milkovich, 497 U.S. at 17, 110 S.Ct. at 2705, 111 L.Ed.2d
at 17, this court decided that the Ohio Constitution requires a different analytical
focus—a categorical determination of whether, under the totality of the
circumstances, an ordinary reader of the allegedly defamatory statements would
deem them to be statements of fact or opinion.2 Vail, 72 Ohio St.3d at 281, 649
N.E.2d at 185.
2. Vail is not the only case in which a majority of this court has interpreted language in Article I of
the Ohio Constitution differently than the United States Supreme Court has interpreted its federal
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January Term, 2001
{¶ 26} The categorical approach that we reaffirmed in Vail does not conflict
with the explicit constitutional qualification noted by Justice Pfeifer in his
concurring opinion—that Ohio’s citizens are responsible for the abuse of their right
to free speech. Vail’s “separate and independent guarantee of protection” for
opinions will apply to the benefit of a defamation defendant only when his or her
allegedly defamatory statements constitute, as a matter of law, statements of
opinion under Scott’s four-part test. Citizens who abuse their constitutional right
to freely express their sentiments by uttering defamatory statements of fact will fail
Scott’s test and remain liable for the abuse of that right.3 See, e.g., McKimm v. Ohio
Elections Comm. (2000), 89 Ohio St.3d 139, 145, 729 N.E.2d 364, 371, fn. 2 (citing
the four-part test from Vail and Scott, and deciding that the average reader of a
campaign brochure would view a cartoon contained therein as “a false factual
assertion” that the incumbent candidate had accepted cash in exchange for a vote
to award a construction contract).
{¶ 27} In addition to the foregoing, the principles of stare decisis militate
against accepting Wampler’s invitation to reconsider Vail’s six-year-old
interpretation of Section 11, Article I. As the United States Supreme Court has
noted, “ ‘the doctrine of stare decisis is of fundamental importance to the rule of
law.’ ” Patterson v. McLean Credit Union (1989), 491 U.S. 164, 172, 109 S.Ct.
2363, 2370, 105 L.Ed.2d 132, 147, quoting Welch v. Texas Dept. of Highways &
Pub. Transp. (1987), 483 U.S. 468, 494, 107 S.Ct. 2941, 2957, 97 L.Ed.2d 389,
410. Like the United States Supreme Court, we recognize that “[o]ur precedents
counterpart. In Humphrey v. Lane (2000), 89 Ohio St.3d 62, 68, 728 N.E.2d 1039, 1045, this court
determined that the Free Exercise Clause contained in Section 7, Article I of the Ohio Constitution
was broader than the parallel federal provision, necessitating divergence from the federal test for
religiously neutral, evenly applied government actions.
3. Accordingly, Wampler’s first proposition of law—“Libelous statements published by a non-
media defendant about a private individual are not constitutionally protected under Section 11,
Article I of the Ohio Constitution”—may indeed be an accurate statement of the law in those cases
where the allegedly libelous statements are statements of fact under the Scott/Vail test.
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are not sacrosanct, for we have overruled prior decisions where the necessity and
propriety of doing so has been established.” Patterson, 491 U.S. at 172, 109 S.Ct.
at 2370, 105 L.Ed.2d at 148. But “any departure from the doctrine of stare decisis
demands special justification.” Id., citing Arizona v. Rumsey (1984), 467 U.S. 203,
212, 104 S.Ct. 2305, 2311, 81 L.Ed.2d 164, 172. This is true even in cases of
constitutional interpretation—an area in which the United States Supreme Court
has determined that the doctrine of stare decisis is less compelling. See Dickerson
v. United States (2000), 530 U.S. 428, 443, 120 S.Ct. 2326, 2336, 147 L.Ed.2d 405,
419 (requiring “special justification,” even in constitutional cases).
{¶ 28} Wampler has advanced no compelling justification to revisit Vail
and modify our interpretation of Section 11, Article 1. He claims that the Scott/Vail
test “creates confusion and ambiguity” in defamation law and has “skewed the
balance” between the preservation of free expression and the maintenance of an
individual’s right to guard his reputation, but he cites only the lower court opinions
in this very case as support for this contention. Even if we were to agree with
Wampler that the lower courts here misapplied Vail’s four-part test—which we do
not—we would not abandon Vail’s test on that basis alone.
B
{¶ 29} Wampler proposes that should we decide against reconsidering Vail,
we should at least limit its application to media defendants. In his merit brief,
Wampler notes, “To date, this Court has not expressly extended Vail and Scott to
encompass situations in which the defendant is a private figure.” See, also, Conese
v. Nichols, 131 Ohio App.3d at 315-316, 722 N.E.2d at 546. We are not persuaded,
however, by Wampler’s proposed distinction between media and nonmedia
defendants.
{¶ 30} Section 11, Article I is the source of the “separate and independent”
protection for opinions that this court recognized in Scott and later reaffirmed in
Vail. See Scott, 25 Ohio St.3d at 244, 25 OBR at 303, 496 N.E.2d at 701; Vail, 72
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January Term, 2001
Ohio St.3d at 281, 649 N.E.2d at 185. It guarantees to “[e]very citizen” the right to
publish freely his or her sentiments on all subjects, regardless of that citizen’s
association or nonassociation with the press. See Sovchik v. Roberts (May 9, 2001),
Medina App. No. 3090-M, unreported, 2001 WL 490015, *3, fn. 1 (“the plain
language of the constitutional provision ‘[e]very citizen’ cannot reasonably be
construed as applying only to members of the media. * * * This court must give
effect to the words used in the Ohio Constitution, and the term ‘[e]very citizen,’
should mean just that”).
{¶ 31} Just as the plain language of Section 11, Article I of the Ohio
Constitution fails to support Wampler’s proposed distinction between media and
nonmedia defendants, our prior cases interpreting that language likewise endorse
no such distinction. It is true, as Wampler notes, that in both Scott and Vail, when
this court recognized and reaffirmed the Ohio Constitution’s independent
protection for opinions, we did so by explicitly referring to the freedom of the press.
See Scott, 25 Ohio St.3d at 244, 25 OBR at 303, 496 N.E.2d at 701 (“We find the
article to be an opinion, protected by Section 11, Article I of the Ohio Constitution
as a proper exercise of freedom of the press”); Vail, 72 Ohio St.3d at 281, 649
N.E.2d at 185 (“The Ohio Constitution provides a separate and independent
guarantee of protection for opinion ancillary to freedom of the press”). Wampler
contends that because these cases described Ohio’s independent protection for
opinions with explicit reference to freedom of the press, we should decline to
recognize that protection in cases such as the one at bar, in which the defendant is
a private citizen unaffiliated with the media. We disagree, however, with
Wampler’s narrow reading of Scott and Vail.
{¶ 32} In Scott and Vail, the plaintiff sued a newspaper and its columnist.
Given that each of the defendants in Scott and Vail was affiliated with the print
media, it is not surprising that this court announced its holdings in those cases with
reference to freedom of the press. In neither case, however, did this court suggest
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that Ohio’s categorical protection for opinions would not be available to nonmedia
defendants such as Higgins who, though personally unaffiliated with the media,
utilize a media forum to comment on a matter of public concern. 4 See Sovchik,
2001 WL 490015, at *3, fn. 1. This court’s prior express reference to the press,
shaped by the status of the parties appearing before the court in those cases,
“implies no endorsement of the principle that speakers other than the press deserve
lesser First Amendment protection.” Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc. (1985), 472 U.S. 749, 783, 105 S.Ct. 2939, 2958, 86 L.Ed.2d 593,
618 (Brennan, J., dissenting).
{¶ 33} Wampler claims that in McKimm, we “tacitly acknowledged” that
Ohio’s Scott/Vail test is “unwieldy,” and attempted “to bring Ohio closer to the
federal test,” under which no categorical protection for opinions applies. As noted
above, McKimm concerned an allegedly defamatory cartoon that had been
disseminated as part of a campaign brochure. In that case, we reaffirmed Vail’s
principle that the freedoms of speech and press are “independently recognized by
the United States and Ohio Constitutions.” (Emphasis added.) McKimm, 89 Ohio
St.3d at 142, 729 N.E.2d at 369, citing Vail. We analogized federal and state
defamation law in McKimm to underscore the fact that under both of these
independent systems, when the meaning of an allegedly defamatory statement is in
question, courts apply an objective “ordinary reader” test to determine whether an
4. Indeed, in Scott, this court noted that “[e]xpressions of opinion are generally accorded absolute
immunity from liability under the First Amendment” without qualification based on the status of the
defendant. Scott, 25 Ohio St.3d at 250, 25 OBR at 307, 496 N.E.2d at 705, citing, inter alia, Chaves
v. Johnson (1985), 230 Va. 112, 119, 335 S.E.2d 97, 102. The Chaves court had decided that an
architect’s statements about a competitor were nonactionable statements of his opinions—the
architect’s nonaffiliation with the media notwithstanding. Chaves, 230 Va. at 118-119, 335 S.E.2d
at 101. Vail’s syllabus and opinion similarly contain no status-based distinction concerning
defamation defendants, providing simply that “[w]hen determining whether speech is protected
opinion a court must consider the totality of the circumstances” by applying Scott’s test. (Emphasis
added.) Vail, 72 Ohio St.3d 279, 649 N.E.2d 182, syllabus. The “speech” referred to in Vail’s
syllabus is not qualified by the status of the defendant who utters it. Accordingly, neither Scott nor
Vail supports the distinction between media and nonmedia defendants that Wampler invites us to
adopt here.
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January Term, 2001
allegedly libelous statement is a false statement of fact. Id. at 144, 729 N.E.2d at
371. Such an analogy need not be read to imply that the threshold Scott test required
under the Ohio Constitution is “unwieldy” or unduly speech-protective.5 McKimm
actually undermines Wampler’s claim that Scott and Vail “skewed the balance” in
favor of defamation defendants, for in McKimm we upheld the Ohio Election
Commission’s decision to reprimand the candidate who disseminated the
defamatory cartoon in his campaign brochure. Id. at 150, 729 N.E.2d at 375.
McKimm illustrates that, even after Vail’s reaffirmation of Scott’s fact/opinion
dichotomy, Ohio’s citizens remain responsible for the abuse of their constitutional
right to freely publish their sentiments.
{¶ 34} Courts in several other states have declined to recognize the sort of
distinction between media and nonmedia defendants that Wampler proposes here,
and we find their reasoning persuasive.6 In addition to these courts, the authors of
the Restatement of the Law 2d, Torts, have discouraged courts from distinguishing
between media and nonmedia defendants for purposes of access to a constitutional
5. This court expressly noted in McKimm that the objective tests applied under both federal and
Ohio law prevent publishers of false statements of fact from “escap[ing] liability for their harmful
and false assertions simply by advancing a harmless, subjective interpretation of those statements.”
Id. at 145, 729 N.E.2d at 371.
6. See, e.g., Jacron Sales, Inc. v. Sindorf (1976), 276 Md. 580, 592, 350 A.2d 688, 695 (Court of
Appeals of Maryland stating, “Nor do we discern any persuasive basis for distinguishing media and
non-media cases. * * * Issues of public interest may equally be discussed in media and non-media
contexts, and the need for a constitutional privilege, therefore, obtains in either case”); Kotlikoff v.
Community News (1982), 89 N.J. 62, 73, 444 A.2d 1086, 1092 (Supreme Court of New Jersey
applying fact/opinion test in suit concerning private citizen’s allegedly defamatory letter to the
editor, noting that the nonmedia defendant had exercised his right to free speech “in one of the last
remaining public forums”); Culliton v. Mize (Minn.App.1987), 403 N.W.2d 853, 856 (Court of
Appeals of Minnesota deciding that “no distinction should be drawn between media and non-media
defendants [because] the first amendment gives no more protection to the press in defamation suits
than it does to others exercising their freedom of speech”); Sall v. Barber (Colo.App.1989), 782
P.2d 1216 (Colorado Court of Appeals applying fact/opinion test in suit against author of letter to
the editor, affirming summary judgment for the nonmedia defendant); Gilbert v. Bernard (1995), 4
Mass.L.Rptr. 143, 1995 WL 809550 (Superior Court of Massachusetts declining to impose different
fault standards in cases concerning media and nonmedia defendants, noting that “[t]he media is not
omniscient; the media’s views on the important issues of the day * * * have no inherently greater
worth than the views of any other speaker in society”).
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privilege: “[T]he protection of the First Amendment extends to freedom of speech
as well as to freedom of the press, and the interests that must be balanced to obtain
a proper accommodation are similar. It would seem strange to hold that the press,
composed of professionals and causing much greater damage because of the wider
distribution of the communication, can constitutionally be held liable only for
negligence, but that a private person, engaged in a casual private conversation with
a single person, can be held liable at his peril if the statement turns out to be false,
without any regard to his lack of fault.” 3 Restatement of the Law 2d, Torts (1977),
Section 580B, Comment e.
{¶ 35} We recognize that some state courts have declined to extend the
same constitutional protections to nonmedia defendants that are available to media
defendants. See, e.g., Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc. (1983),
143 Vt. 66, 461 A.2d 414, affirmed on other grounds (1985), 472 U.S. 749, 105
S.Ct. 2939, 86 L.Ed.2d 593. In Dun & Bradstreet, the Supreme Court of Vermont
relied principally on a case from the Supreme Court of Oregon to support its
decision distinguishing between media and nonmedia defendants. Id. at 74, 461
A.2d at 418, citing Harley-Davidson Motorsports, Inc. v. Markley (1977), 279 Ore.
361, 366, 568 P.2d 1359, 1362-1363.
{¶ 36} In Harley-Davidson Motorsports, the Supreme Court of Oregon
decided that in defamation actions against nonmedia defendants, “[t]he crucial
elements * * * which brought the United States Supreme Court into the field of
defamation law are missing. There is no threat to the free and robust debate of
public issues; there is no potential interference with a meaningful dialogue of ideas
concerning self-government; and there is no threat of liability causing a reaction of
self-censorship by the press.” Id., 279 Ore. at 366, 568 P.2d at 1362-1363. For
these reasons, the Supreme Court of Oregon rejected the idea that a private
plaintiff’s avenue for recovery against a nonmedia defendant “should be made more
difficult in situations in which no such constitutional values are involved merely
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January Term, 2001
for the sake of securing symmetry of treatment of defendants.” Id. at 370-371, 568
P.2d at 1365. The Supreme Court of Vermont found the Oregon court’s reasoning
“persuasive and compelling” in Dun & Bradstreet, 143 Vt. at 74, 461 A.2d at 418,
but we do not.
{¶ 37} These cases that disfavor nonmedia defendants are unpersuasive for
a number of reasons. First, as we have already noted, the language of our state’s
Constitution requires the “symmetry of treatment of defendants” deemed
unnecessary by the Supreme Court of Oregon, for Section 11, Article I
independently protects the sentiments uttered by “[e]very citizen” regardless of that
citizen’s affiliation or nonaffiliation with the media. Moreover, the Supreme Court
of Oregon’s rationale in Harley-Davidson—adopted by the Supreme Court of
Vermont in Dun & Bradstreet—rests on the stated premise that restricting
nonmedia defendants’ access to constitutional privileges poses no threat to
meaningful debate on public issues, and no threat of self-censorship by the press.
Harley-Davidson, 279 Ore. at 366, 568 P.2d at 1362-1363. The shortcomings of
this premise are particularly evident in cases such as the one at bar, concerning a
suit against the author of a letter to the editor published in a local newspaper.
Constitutionally significant debate on matters of public concern is not the sole
province of the media. See Gilbert v. Bernard (Mass.Super.1995), 4 Mass.L.Rptr.
143, 1995 WL 809550. The robust exchange of ideas that occurs each day on the
editorial pages of our state’s newspapers could indeed suffer if the nonmedia
authors of letters to the editor published in these forums were denied the same
constitutional protections enjoyed by the editors themselves. Accord Jacron Sales,
Inc. v. Sindorf (1976), 276 Md. 580, 350 A.2d 688; Kotlikoff v. Community News
(1982), 89 N.J. 62, 444 A.2d 1086.
{¶ 38} In addition, the courts that decided both Harley-Davidson and Dun
& Bradstreet later questioned the analysis contained in those cases. As the
Supreme Court of Oregon itself later admitted, its opinion in Harley-Davidson
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rested in part upon an incorrect assessment of the United States Supreme Court’s
defamation jurisprudence. See Wheeler v. Green (1979), 286 Ore. 99, 107, 593
P.2d 777, 783, fn. 5 (conceding that “[i]n Harley-Davidson * * * we erroneously
stated that all of the United States Supreme Court cases limiting actions for libel
under the First Amendment involved media defendants. That was true of the cases
cited to us on this issue and discussed in the opinion. There were, however, no
media defendants in [those cases]”). Similarly, the Supreme Court of Vermont’s
decision in Dun & Bradstreet was later called into doubt by Ryan v. Herald Assn.
Inc. (1989), 152 Vt. 275, 279, 566 A.2d 1316, 1319, fn. 1 (conceding that “[t]he
United States Supreme Court’s rejection of this court’s rationale in Dun &
Bradstreet * * * casts doubt on the vitality of the distinction for constitutional
purposes”).
{¶ 39} Finally, several members of the United States Supreme Court have
agreed that distinguishing between media and nonmedia defendants for purposes of
access to constitutional protections would be improper. When the United States
Supreme Court reviewed Vermont’s Dun & Bradstreet case, at least five justices
agreed in separate opinions that the rights of the media in the context of defamation
law are no greater than those enjoyed by other speakers. See Dun & Bradstreet,
472 U.S. at 773, 105 S.Ct. at 2952-2953, 86 L.Ed.2d at 611-612 (White, J.,
concurring); id. at 782-783, 105 S.Ct. at 2957-2958, 86 L.Ed.2d at 617-618
(Brennan, J., dissenting). In his concurring opinion, Justice White stated: “Wisely,
in my view, Justice Powell does not rest his application of a different rule here on
a distinction drawn between media and nonmedia defendants. On that issue, I agree
with Justice Brennan that the First Amendment gives no more protection to the
press in defamation suits than it does to others exercising their freedom of speech.
None of our cases affords such a distinction; to the contrary, the Court has rejected
it at every turn. It should be rejected again, particularly in this context, since it
makes no sense to give the most protection to those publishers who reach the most
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January Term, 2001
readers and therefore pollute the channels of communication with the most
misinformation and do the most damage to private reputation.” (Footnote omitted.)
Id. at 773, 105 S.Ct. at 2952-2953, 86 L.Ed.2d at 611-612.
{¶ 40} Justice Brennan, joined by Justices Marshall, Blackmun, and
Stevens, similarly stated: “Relying on the analysis of the Vermont Supreme Court,
respondent urged that [we restrict] the applicability of Gertz to cases in which the
defendant is a ‘media’ entity. Such a distinction is irreconcilable with the
fundamental First Amendment principle that ‘[t]he inherent worth of * * * speech
in terms of its capacity for informing the public does not depend upon the identity
of its source, whether corporation, association, union, or individual.’ ” Id. at 781,
105 S.Ct. at 2957, 86 L.Ed.2d at 617 (Brennan, J., dissenting), quoting First Natl.
Bank of Boston v. Bellotti (1978), 435 U.S. 765, 777, 98 S.Ct. 1407, 1416, 55
L.Ed.2d 707, 718.7 Though we diverged in Vail from the United States Supreme
Court’s defamation jurisprudence in order to reaffirm the existence of the Ohio
Constitution’s separate and independent protection for opinions, we find persuasive
reasoning within the high court’s jurisprudence to support our rejection of
Wampler’s proposed distinction between media and nonmedia defendants.
IV. Application of the Ollman/Scott/Vail Test
{¶ 41} In his second and third propositions of law, Wampler claims that,
even if the Ohio Constitution’s independent protection for opinion speech may be
invoked by nonmedia defendants, the trial court erred when it decided, as a matter
of law, that Higgins successfully invoked it in this case. We disagree.
{¶ 42} As the trial court noted, we examine the totality of the circumstances
in order to determine whether a published statement constitutes an opinion
7. In a later case, Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. 767, 780, 106 S.Ct.
1558, 1565, 89 L.Ed.2d 783, 795, Justice Brennan noted that while the majority reserved the
question whether the rule it announced applied to nonmedia defendants, he adhered to his previously
expressed view that such a distinction would be improper, citing Dun & Bradstreet, 472 U.S. at 781,
105 S.Ct. at 2957, 86 L.Ed.2d at 617 (Brennan, J., dissenting).
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protected by the Ohio Constitution. “Consideration of the totality of [the]
circumstances * * * involves at least four factors. First is the specific language
used, second is whether the statement is verifiable, third is the general context of
the statement and fourth is the broader context in which the statement appeared.”
Scott, 25 Ohio St.3d at 250, 25 OBR at 308, 496 N.E.2d at 706. “This analysis is
not a bright-line test * * *. ‘[T]he totality of the circumstances test * * * can only
be used as a compass to show general direction and not a map to set rigid
boundaries.’ ” Vail, 72 Ohio St.3d at 282, 649 N.E.2d at 185, quoting Scott, 25
Ohio St.3d at 250, 25 OBR at 308, 496 N.E.2d at 706. See, also, Ollman, 750 F.2d
970, 979-984.
{¶ 43} The weight given to any one factor under this inquiry will vary
depending on the circumstances of each case. Vail, 72 Ohio St.3d at 282, 649
N.E.2d at 185. “While necessarily imperfect, these factors * * * assist in discerning
as systematically as possible what constitutes an assertion of fact and what is, in
contrast, an expression of opinion.” Ollman, 750 F.2d at 979. Application of the
four-factor test allows courts to assess, with some degree of predictability, the
actionability of those statements that fall on the spectrum somewhere between
paradigmatic statements of fact (such as “Mr. Jones had ten drinks at his office
party and sideswiped two vehicles on his way home”) and paradigmatic statements
of opinion (such as “Mr. Jones is a despicable politician”). Id. at 978.
{¶ 44} In his second proposition of law, Wampler submits that the task of
distinguishing between statements of fact and opinion “should remain the province
of the jury, subject only to the condition (as in any case) that there must be sufficient
evidence to enable a jury to conclude that the challenged statements are false and
defamatory.” As Judge Starr noted for the court in Ollman, however, “the
overwhelming weight of post-Gertz authority [holds] that the distinction between
opinion and fact is a matter of law. Although the Supreme Court has never directly
addressed this issue, the Court has clearly ruled that questions as to other privileges
22
January Term, 2001
derived from the First Amendment, such as the qualified privilege as to public
officials and public figures, are to be decided as matters of law. Moreover, the
predictability of decisions, which is of crucial importance in an area of law touching
upon First Amendment values, is enhanced when the determination is made
according to announced legal standards and when a body of public case law
furnishes published examples of the manner in which these standards are to be
applied.” (Citations omitted.) Id. at 978. We agree with the Ollman court that the
applicability of the Ollman/Scott/Vail “opinion privilege” in a given case is a
question of law for the court.8
{¶ 45} The trial court in this case decided, as a matter of law, that the
statements contained in Higgins’s letter to the editor were expressions of his
opinions, as opposed to statements of fact, and granted summary judgment in favor
of Higgins on this basis. We review the trial court’s decision granting summary
8. By referring here to the “other privileges derived from the First Amendment” (emphasis added),
the Ollman court suggests that what it had previously referred to as “protection” for opinions, see
id. at 975 (“absolute First Amendment protection”), id., 750 F.2d at 975, fn. 7 (“absolute,
constitutionally based protection”) operates, procedurally, as a privilege. See, also, id. at 984 (again
referring to the “First Amendment’s opinion privilege”). Our majority opinion in Vail never
expressly describes the Ohio Constitution’s “separate and independent guarantee of protection for
opinion” as a privilege, though some appellate courts, including the court below, subsequently
described it as such. See, e.g., Conese, 131 Ohio App.3d at 315-316, 722 N.E.2d at 546; Wampler
v. Higgins (May 31, 2000), Pickaway App. No. 2000 CA 5, unreported, 2000 WL 730218, *6;
Sovchik v. Roberts (May 9, 2001), Medina App. No. 3090-M, unreported, 2001 WL 490015, *3, fn.
1. The term “privilege” commonly encompasses affirmative defenses by which a defendant
“acknowledges at least part of the conduct complained of but asserts that the defendant’s conduct
was authorized or sanctioned by law.” Black’s Law Dictionary (7 Ed. 1999) 1215. In this sense, a
privilege operates as a legal justification or excuse for admittedly tortious conduct. Id. For the sake
of clarity, however, we note that a defendant’s attempt to invoke Ohio’s “separate and independent
guarantee of protection” for opinions may also be proper in the context of a motion to dismiss for
failure to state a claim under Civ.R. 12(B)(6), as was the procedural context in Vail, 72 Ohio St.3d
at 283, 649 N.E.2d at 186 (noting the necessity of construing, under Civ.R. 12[B][6], all inferences
in the plaintiff’s favor). This approach is justified because one of the elements of a private figure’s
cause of action in defamation is a false statement, Davis v. Jacobs (1998), 126 Ohio App.3d 580,
710 N.E.2d 1185, and a statement deemed to be an opinion as a matter of law cannot be proven
false. See Ollman, 750 F.2d at 976. And though words that are defamatory per se normally carry
a presumption of falsity, damages, and malice, this is so “unless published on a privileged occasion.”
Becker v. Toulmin (1956), 165 Ohio St. 549, 557, 60 O.O. 502, 506, 138 N.E.2d 391, 397, citing 53
Corpus Juris Secundum, 43, Libel and Slander, Section 8.
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judgment de novo, Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d
1243, 1245, citing Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671
N.E.2d 241, 245, and apply Scott’s test below. We emphasize that, although we
have chosen to assess the four Scott factors in the order they were enumerated in
that case, “[w]e do not * * * suggest that the four-factor analysis is to be undertaken
in a rigid lock-step fashion.” Ollman, 750 F.2d at 980, fn. 17.
1. The Specific Language Used
{¶ 46} As Judge Starr noted in Ollman, it is often appropriate to begin an
assessment of the totality of the circumstances by analyzing “the common usage or
meaning of the allegedly defamatory words themselves. We seek in this branch of
our analysis to determine whether the allegedly defamatory statement has a precise
meaning and thus is likely to give rise to clear factual implications. A classic
example of a statement with a well-defined meaning is an accusation of a crime”
(footnotes omitted), Ollman, 750 F.2d at 979-980, whereas “statements that are
‘loosely definable’ or ‘variously interpretable’ cannot in most contexts support an
action for defamation.” Id. at 980. “Readers are * * * considerably less likely to
infer facts from an indefinite or ambiguous statement than one with a commonly
understood meaning.” Id. at 979.
{¶ 47} In Scott, assessing an allegedly defamatory newspaper column
concerning a school superintendent’s testimony at a hearing, we found that this
factor weighed in favor of actionability. Scott, 25 Ohio St.3d at 251, 25 OBR at
309, 496 N.E.2d at 707. Though the column contained no express statement that
the superintendent committed perjury at the hearing, we concluded that “the clear
impact in some nine sentences and a caption [was] that appellant ‘lied at the hearing
after * * * having given his solemn oath to tell the truth.” Id. Though we decided
in Scott that the specific language in the column weighed in favor of actionability,
we found this factor outweighed by other factors under the totality of the
circumstances. Id. at 254, 25 OBR at 311, 496 N.E.2d at 709.
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January Term, 2001
{¶ 48} Wampler alleged in his complaint that Higgins’s letter to the editor
contained two defamatory statements: (1) that Wampler “forced Ms. McKee out of
business by charging her an exorbitant rent” and (2) that Wampler was a “ruthless
speculator.” In Wampler’s memorandum in opposition to summary judgment, he
specifically discussed additional statements contained in Higgins’s letter: (1) that
Wampler was possessed of “self-centered greed” and (2) that Wampler sold his
property “for an astronomical sum, to a mindless corporation.” The trial court
assessed all of these statements in its opinion and order granting summary
judgment, deciding that “the language used by defendant in his letter would be
understood by the ordinary reader for just what it is—one person’s frustration with
the perceived plight of many small downtown areas due to small business closures
and large corporate takeovers. The letter 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
* * *.” (quoting Vail, 72 Ohio St.3d at 283, 649 N.E.2d at 186, without attribution).
{¶ 49} We agree with the trial court that the specific language employed by
Higgins in his letter weighs against actionability. Each of the allegedly defamatory
statements at issue here resembles the sort of “loosely definable,” “variously
interpretable,” “indefinite,” and “ambiguous” statements discussed in Ollman, 750
F.2d at 979-980. Though plainly pejorative in tone, with Higgins describing
Wampler as a “ruthless speculator” possessed of “self-centered greed” charging
“exorbitant rent,” these phrases are all inherently imprecise and subject to myriad
subjective interpretations. See Vail, 72 Ohio St.3d at 283, 649 N.E.2d at 186
(deciding that a columnist’s accusations that a candidate engaged in “anti-
homosexual diatribe” and fostered homophobia “can hardly be defined with crystal
clarity,” and were “value-laden” and “subjective”). Accord Cole v. Westinghouse
Broadcasting Co., Inc. (1982), 386 Mass. 303, 435 N.E.2d 1021 (Supreme Judicial
Court of Massachusetts holding that a statement that a reporter had engaged in
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“sloppy and irresponsible reporting” was too imprecise to support a defamation
action); Buckley v. Littell (C.A.2, 1976), 539 F.2d 882 (holding that an accusation
that a columnist was a “fellow traveler” of “fascists” was susceptible of widely
different interpretations).
2. Verifiability
{¶ 50} Under Scott’s test, we also assess whether an allegedly defamatory
statement is verifiable. Scott, 25 Ohio St.3d at 251, 25 OBR at 309, 496 N.E.2d at
707. We seek to determine whether the allegedly defamatory statements are
objectively capable of proof or disproof, for “a reader cannot rationally view an
unverifiable statement as conveying actual facts.” Ollman, 750 F.2d at 981. “An
obvious potential for quashing or muting First Amendment activity looms large
when juries attempt to assess the truth of a statement that admits of no method of
verification.” Id. at 981-982.
{¶ 51} In Scott, this court decided that this factor, like the first, weighed in
favor of the plaintiff, for an accusation of perjury was “an articulation of an
objectively verifiable event” that could be proven “with evidence adduced from the
transcripts and witnesses present at the hearing.” Scott, 25 Ohio St.3d at 252, 25
OBR at 309, 496 N.E.2d at 707. Unlike an accusation of perjury, however, which
may be subject to proof or disproof upon the application of facts to an accepted
legal standard, the allegedly defamatory statements contained in Higgins’s letter to
the editor are simply not amenable to verification. Had Higgins falsely stated that
Wampler sought to double or triple McKee’s rent, instead of simply describing
Wampler’s proposal as “exorbitant,” this factor may have weighed more in
Wampler’s favor. Such a statement, after all, might be verified with reference to
McKee’s most recent lease agreement, compared with a proposed lease agreement
containing a specific price term. But Higgins’s description of Wampler’s proposed
rent as “exorbitant,” much like his characterization of Wampler as “ruthless,” and
his distaste for Wampler’s “faceless,” “mindless,” or “heartless” corporate vendee,
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January Term, 2001
are standardless statements not amenable to objective proof or disproof. See Vail,
72 Ohio St.3d at 283, 649 N.E.2d at 186 (finding only the columnist’s references
to Vail’s honesty to be objectively verifiable). Moreover, unlike the defendant in
McKimm, who indicated to readers that “research documentation” was available in
support of the claims made in his campaign brochure, Higgins provided no
supporting references in his letter for any of the disparaging remarks he directed at
Wampler. See McKimm, 89 Ohio St.3d at 140, 729 N.E.2d at 367.
3. General Context
{¶ 52} Scott’s totality-of-the-circumstances inquiry also includes two
distinct “contextual” assessments. Scott, 25 Ohio St.3d at 252, 25 OBR at 309, 496
N.E.2d at 707. One of these is a consideration of the “immediate context” in which
the allegedly defamatory statement appears. Ollman, 750 F.2d at 983. We examine
more than simply the alleged defamatory statements in isolation, because the
language surrounding the averred defamatory remarks may place the reasonable
reader on notice that what is being read is the opinion of the writer. Scott at 252,
25 OBR at 309, 496 N.E.2d at 707. Put another way, as Judge Starr explained in
Ollman, courts should assess “the entire article or column” because “unchallenged
language surrounding the allegedly defamatory statement will influence the
average reader’s readiness to infer that a particular statement has factual content.”
Ollman, 750 F.2d at 979. In Ollman, the court examined an allegedly defamatory
column by Rowland Evans and Robert Novak in its entirety. The court decided—
with particular emphasis on hypothetical questions contained in the penultimate
paragraph—that the columnists “meant to ventilate what in their view constituted
the central questions” raised by the plaintiff’s possible appointment as chair of a
faculty department. (Emphasis added.) Id. at 987.
{¶ 53} Considering Higgins’s allegedly defamatory statements in the
context of the entire letter, we find that the average reader of the Circleville Herald
would be unlikely to infer that those statements were factual. The gist of Higgins’s
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letter as a whole is that in his opinion, Wampler forced McKee out of business by
charging her too much rent, and that Wampler should have negotiated a lower lease
agreement with McKee instead of “sell[ing] out” to a corporation with no direct
link to Circleville’s unique history. As in Ollman, the letter’s concluding
paragraphs, in particular, place the reader on notice that Higgins sought to
“ventilate” his personal frustrations and opinions concerning the loss of a valued
downtown business—not to set forth any verifiable statements of fact. See Ollman,
750 F.2d at 987. Higgins’s penultimate paragraph is a vague polemic, attacking a
hypothetical “some” who “cheerfully take the money and run and ‘let the public be
damned!’ ” The final paragraph, though addressed specifically to Wampler,
implausibly suggests that Wampler would “sell the whole town to heartless
corporations so that they might turn it into one great, ugly, sprawling shopping
mall.” As in Scott, “[w]hile [the defendant’s] mind is certainly made up, the
average reader viewing the words in their internal context would be hard pressed to
accept [his] statements as * * * impartial reporting.” Scott, 25 Ohio St.3d at 253,
25 OBR at 310-311, 496 N.E.2d at 708.
4. Broader Social Context—Genre
{¶ 54} In addition to examining the allegedly defamatory statements as they
appear in context, we also examine “the broader social context into which the
statement fits. Some types of writing or speech by custom or convention signal to
readers or listeners that what is being read or heard is likely to be opinion, not fact.”
(Emphasis added.) Ollman, 750 F.2d at 983. This fourth factor focuses, then, not
merely on the internal context within which a particular written statement appears,
but on the unmistakable influence that certain “well established genres of writing
will have on the average reader.” (Emphasis sic.) Id. at 984.
{¶ 55} In Scott, we noted that the allegedly defamatory column about the
wrestling coach “appeared on the sports page—a traditional haven for cajoling,
invective, and hyperbole.” Scott, 25 Ohio St.3d at 253, 25 OBR at 311, 496 N.E.2d
28
January Term, 2001
at 708. In both Vail and Ollman, as here, the allegedly defamatory statements
appeared in a forum even more traditionally linked to vigorous expressions of
opinion regarding matters of public concern—the newspapers’ opinion pages. See
Vail, 72 Ohio St.3d at 282, 649 N.E.2d at 185 (noting that the column appeared on
the Forum page of the newspaper, and that 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”); Ollman, 750 F.2d at 984 (“it is well understood
that editorial writers and commentators frequently ‘resort to the type of caustic
bombast traditionally used in editorial writing to stimulate public reaction,’ ”
quoting Natl. Rifle Assn. v. Dayton Newspapers, Inc. [S.D. Ohio 1983], 555 F.Supp.
1299, 1309).
{¶ 56} We agree with the court of appeals that because Higgins’s allegedly
defamatory statements appeared in a letter to the editor, “a common forum for
citizens of the community to express viewpoints on a wide variety of subjects,” this
fourth factor also weighs in Higgins’s favor. Letters to the editor, though at times
intemperately worded, are integral to the “robust and uninhibited commentary on
public issues that is part of our national heritage.” Kotlikoff, 89 N.J. at 73, 444 A.2d
at 1092. The “vituperative wording” of these letters serves to warn readers that, in
contrast to the factual news articles appearing elsewhere in the paper, the letters are
part of a “social forum for personal opinion.” Sall v. Barber (Colo.App.1989), 782
P.2d 1216, 1219. As the Court of Appeals of New York has noted, “[t]he public
forum function of letters to the editor is closely related in spirit to the ‘marketplace
of ideas’ * * * that compelled recognition of the privileges of fair comment, fair
report and the immunity accorded expression of opinion. These values are best
effectuated by according defendant some latitude to publish a letter to the editor on
a matter of legitimate public concern
* * * free of defamation litigation.” Immuno AG. v. Moor-Jankowski (1991), 77
N.Y.2d 235, 255, 566 N.Y.S.2d 906, 917, 567 N.E.2d 1270, 1281.
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{¶ 57} We do not suggest here that publication of defamatory statements in
a letter to the editor will insulate the author from liability in every case. See Scott,
25 Ohio St.3d at 252-254, 25 OBR at 309-311, 496 N.E.2d at 707-708 (“we are not
persuaded that a bright-line rule of labeling a piece of writing ‘opinion’ can be a
dispositive method of avoiding judicial scrutiny”). See, also, Annotation,
Defamation: Publication of “Letter to Editor” in Newspaper as Actionable (1980),
99 A.L.R.3d 573, Section 4. We merely note that it is commonly known that the
authors of letters to the editor are normally not engaged in the business of factual
reporting or news dissemination, and that their letters qualify as what the Ollman
court described as a “well established genre” of opinionated speech. See Ollman,
750 F.2d at 984. For these reasons, like the first three factors of the Scott test, the
fourth factor weighs in Higgins’s favor. Under the totality of the circumstances,
therefore, we agree with the court of appeals that the allegedly libelous statements
contained in Higgins’s letter to the editor are, as a matter of law, nonactionable
expressions of Higgins’s opinion.
V. Conclusion
{¶ 58} For the foregoing reasons, we hold that the Ohio Constitution’s
separate and independent protection for opinions, recognized in Scott v. News-
Herald and reaffirmed in Vail v. Plain Dealer Publishing Co., is not limited in its
application to allegedly defamatory statements made by media defendants. A
nonmedia defendant whose allegedly defamatory statements appear in a letter to
the editor may invoke the same protection, which may or may not apply depending
on the totality of the circumstances. Because we agree with the court of appeals
that Higgins could invoke the Scott/Vail test, and that the statements contained in
his letter to the editor were, as a matter of law, nonactionable expressions of his
opinions, we affirm the court of appeals’ judgment.
Judgment affirmed.
MOYER, C.J., F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
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January Term, 2001
RESNICK, J., concurs in syllabus and judgment.
DOUGLAS, J., dissents.
PFEIFER, J., dissents.
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PFEIFER, J., dissenting.
{¶ 59} Circleville is still a small town, small enough, at least, that anyone
who truly cared could quickly learn whether what Higgins wrote about Wampler
was true. Also, most people are smart enough to look at who’s doing the squawking
before they draw any conclusions about the person being squawked about. That’s
part of the beauty of small-town life.
{¶ 60} But this case has implications beyond the corner of Scioto and West
Main. Thus, I dissent and reiterate my statements in Vail v. Plain Dealer Publishing
Co. (1995), 72 Ohio St.3d 279, 285-287, 649 N.E.2d 182, 187-189 (Pfeifer, J.,
concurring in judgment only), that the Ohio Constitution does not create an
additional, separate constitutional privilege for opinion. Instead we should look at
whether the statements made are provably false or whether the statements can be
reasonably interpreted as stating actual facts about an individual. Milkovich v.
Lorain Journal Co. (1990), 497 U.S. 1, 19-20, 110 S.Ct. 2695, 2706, 111 L.Ed.2d
1, 18-19. In this case, I believe that there are enough statements within Higgins’s
hyperbole that either are provable as false or could be interpreted as stating actual
facts about Wampler that Wampler should have survived summary judgment.
{¶ 61} In the end, Wampler may have suffered a few dollars worth of
damages—or whatever the going rate is for an apology.
__________________
Cooper & Elliot, Charles H. Cooper, Jr., Rex H. Elliot and Aaron D.
Epstein, for appellant.
McGrath & Breitfeller, L.L.P., and Thomas R. McGrath; and James K. Hill,
for appellee.
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SUPREME COURT OF OHIO
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