Scott v. News-Herald

Celebrezze, C.J.,

concurring in judgment only, and dissenting in part. I wholeheartedly concur in the majority’s conclusion that appellant is a public official. Similarly, I support the majority’s determination that appellant failed to establish the requisite actual malice in the publication of the article at issue. With the resolution of these two issues and this court’s affirmance of the grant of summary judgment to appellee, the News-Herald is insulated from liability. But the majority plunges on. It needlessly overrules our prior decision in Milkovich v. News-Herald (1984), 15 Ohio St. 3d 292 , certiorari denied (1985), _ U.S. _, 88 L. Ed. 2d 305 , in which this court held that the statements in this same article were, as a matter of law, factual assertions. 6 The clarity of today’s majority opinion gives way to the amorphous “totality of the circumstances” test which is used to complete the Jekyll and Hyde transformation of this newspaper article from fact to opinion. 7 This test is not only unworkable, it is applied by the majority in self-contradictory fashion to reach an untenable result.

*264 The article culminates with the statement that appellant lied under oath while testifying at a court hearing, i.e., that appellant committed the crime of perjury. The majority admits that the truth or falsity of such a statement can be verified. (I must, however, question the majority’s implication that appellant should somehow cause a criminal prosecution against himself to do so.)

In its tortuous route to the preordained result that this denigrating statement is a constitutionally protected expression of opinion, the majority next searches for qualifying “language of apparency.” While first stating that terms such as “I think” or “in my opinion” are not dispositive, the majority then ignores its own logic by concluding that readers would assume this entire article was opinion merely because it was captioned “TD Says” and “Diadiun says.” This conclusion escapes me. Rather, I would have thought, as Justice Brown points out, that the purpose of a caption is to identify the writer.

The majority finally proceeds to the determination that readers would not construe the statement in this news article as fact because it appeared on the sports page.

Apparently, the majority feels that serious journalism and factual reporting are not likely to be found in the sports pages of a newspaper. I must disagree. Sports journalists are no less likely than other journalists to be informed about procedural due process or perjury, as recent lengthy accounts of legal proceedings involving drug abuse by professional athletes demonstrate. Sports writers are as accountable for the accuracy of their reporting as are their brother news journalists. The assumption that most readers view sports columnists as colorful and opinionated but innately lacking in credibility is, in my view, inaccurate, condescending, and cannot serve as the basis for the ridiculous conclusion that the statement in issue was “probably” opinion because it appeared on the sports page. Would the majority be forced to conclude that the statement in this article was “probably” fact had it appeared on the front page? If in doubt on the accuracy of an article, should editors run the news story in the sports or comic section to be on the safe side?

I am convinced that this court was right the first time, in Milkovich, supra. Although the column undeniably contained the writer’s opinion in certain respects, it also contained the specific factual assertion that appellant lied while under oath. This statement was verifiable. Its location on the sports page was not a reliable indication that this statement was to be taken as opinion. Finally, there was nothing in this article which would have alerted the reader that this statement was intended to be the writer’s opinion. To the contrary, Diadiun bolstered the assertion in part with a *265 quote from Dr. Harold Meyer to the effect that appellant had told some “pretty darned unfamiliar” stories to the judge. In essence, Diadiun was telling his readers this was not just his biased view, but rather the objective conclusion of an impartial observer at the hearing. From this followed Diadiun’s direct and factual assertion that, based on Dr. Meyer’s observations, appellant had lied under oath. Try as it may, the majority cannot drown this fact in a sea of opinion. 8

There is an additional pitfall in today’s conclusion that this alleged defamatory statement is not actionable. The majority acknowledges that the “clear impact” of this statement, as “commonly understood,” is that appellant committed the crime of perjury. Such criminal accusations, even if expressed as opinion, are not entitled to absolute constitutional protection.

In Rinaldi v. Holt, Rinehart & Winston, Inc. (1977), 42 N.Y. 2d 369 , 397 N.Y.Supp. 2d 943, 366 N.E. 2d 1299 , certiorari denied (1977), 434 U.S. 969 , a state court judge brought a libel action against the publishers of a book which described him as being corrupt. The New York Court of Appeals held at 382 that this statement was not protected as opinion.

“Accusations of criminal activity, even in the form of opinion, are not constitutionally protected. * * * While inquiry into motivation is within the scope of absolute privilege, outright charges of illegal conduct, if false, are protected solely by the actual malice test. As noted by the Supreme Court of California, there is a critical distinction between opinions which attribute improper motives to a public officer and accusations, in whatever form, that an individual has committed a crime or is personally dishonest. No First Amendment protection enfolds false charges of criminal behavior.” Accord Cianci v. New Times Publishing Co. (C.A. 2, 1980), 639 F. 2d 54, 64 ; Gregory v. McDonnell Douglas Corp. (1976), 17 Cal. 3d 596, 604 , 131 Cal. Rptr. 641 , 552 P. 2d 425 .

I am unable to see the qualitative difference between a charge that a public official is corrupt and the instant accusation that a public official committed the crime of perjury.

Thus, not only does the majority strain to label as opinion the factual assertion that appellant lied under oath, it also fails to recognize that such a statement, even if opinion, is not entitled to unqualified constitutional protection where criminal conduct is alleged. Therefore, the appellees in the instant cause are entitled to the protection of the rule in New York Times Co. v. Sullivan (1964), 376 U.S. 254 (plaintiff who is a public official *266 must prove with convincing clarity that defendant acted with actual malice), but no more.

Accordingly, since I agree that appellant is a public official and has not established actual malice in the publication of this article, I concur in the judgment. I respectfully dissent from my brothers’ unfortunate conclusion that the alleged defamatory statement in this article is an opinion entitled to absolute constitutional protection.

If our decision in Milkovich, supra, was so “plainly” in “error,” one wonders how the United States Supreme Court could have allowed the decision to stand.

The totality of the circumstances test adopted by the majority was enunciated in Ollman v. Evans (C.A. D.C. 1984), 750 F. 2d 970, 979 , in which the court stated, in pertinent part:

“We believe * * * that courts should analyze the totality of the circumstances in which the statements are made to decide whether they merit the absolute First Amendment protection enjoyed by opinion. * * * [W]e will evaluate four factors in assessing whether the average reader would view the statement as fact or, conversely, opinion. * * *

“First, we will analyze the common usage and meaning of the specific language of the *264 challenged statement itself. ^ * * Second, we will consider the statement’s verifiability * * *. Third, * * * we will consider the full context of the statement * * *. Finally, we will consider the broader context or setting in which the statement appears. * * *”

Under the elastic test adopted by today’s majority, the only thing which is clear is that a statement’s characterization as fact or opinion is truly in the eye of the individual judge. Rather than providing “predictability,” the cryptic totality of the circumstances test leaves those in search of stability with as much guidance as that provided by the newspaper’s daily horoscope.