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Sixth Circuit Affirms Dismissal of Cancer Researcher’s Libel Suit Against The New York Times

By Al-Amyn Sumar

On July 17, 2019, the Sixth Circuit Court of Appeals affirmed the dismissal of a libel suit brought against The New York Times Company ("The Times") by Dr. Carlo Croce, a prominent cancer researcher at Ohio State University. Croce v. The New York Times Co.

Importantly, the decision affirms the right of publishers to report on important public controversies without fear of liability, and it recognizes the innocent-construction rule as entrenched in Ohio law.

Background

Dr. Croce's lawsuit centered on a March 2017 article in The New York Times titled "Years of Ethics Charges, but Star Cancer Researcher Gets a Pass." The article described significant allegations of academic misconduct by Dr. Croce, including claims of falsified data and plagiarism, which had been advanced by others in the scientific community and had led several journals to issue notices about his papers. As the story noted, the University had not penalized Dr. Croce for any misconduct, and he strenuously denied any wrongdoing.

Two months later, Dr. Croce sued The Times and several of its employees in the Southern District of Ohio for defamation, false light, and intentional infliction of emotional distress. As the basis for his claims Dr. Croce cited the article and 21 of its statements, as well as related social media posts, a letter sent to OSU prior to publication by Times reporter James Glanz, and a subsequent radio interview with Glanz about the story.

In November of 2018, the district court granted The Times's motion to dismiss the lawsuit. The court noted that Ohio does not recognize the neutral report privilege, but nonetheless held that the statements in the article were not defamatory because they were no more than "an accurate and balanced report of the allegations made by others." The court also found various statements non-actionable on the grounds that they were subject to an innocent construction, protected opinion, or simply true. (The court held that one statement in the OSU letter survived The Times's motion, but Dr. Croce dropped his claim as to that statement in order to appeal the decision immediately.)

On appeal, Dr. Croce challenged the court's ruling only as to some statements in the article and on social media.

Sixth Circuit Affirms Dismissal

In a published opinion issued July 17, 2019 – less than four weeks after argument – the Sixth Circuit affirmed the district court's dismissal of the suit. Like the district court, it concluded that the Times story was not defamatory because it conveyed allegations made by others about Dr. Croce without adopting their truth. As the court put it, "a reasonable reader would construe the article as a standard piece of investigative journalism that presents newsworthy allegations made by others, with appropriate qualifying language." The court emphasized that the story did not say or suggest that Dr. Croce was actually guilty of the misconduct, and that it in fact contained statements favorable to Dr. Croce. In the court's words, a reasonable reader would understand the article to be "presenting two sides of [a] controversy."

Alternatively, and for similar reasons, the court held that the article and its statements were subject to the innocent construction rule. It did so despite Dr. Croce's contention that the innocent construction rule is not firmly established in Ohio law. The import of the rule, as the court explained, is that if a statement can be reasonably read as either defamatory or non-defamatory, the court must adopt the latter, "innocent" construction of the statement.

In this case, the court found that the article is "easily susceptible" to an innocent construction: "Yes, Dr. Croce has been the subject of criticisms and allegations, resulting in some corrections to his work, but no findings of deliberate misconduct have been made against him, he denies these allegations, and he is otherwise a successful cancer researcher." The court also found two specific challenged statements to be substantially true, and it dismissed Dr. Croce's tag-along claims for false light and intentional infliction of emotional distress.

The Sixth Circuit's decision is jurisprudentially significant for at least two reasons. First, building on Ohio and Sixth Circuit law, the decision recognizes that responsible investigative journalism on a matter of public concern cannot form the basis of a defamation claim. The decision makes space for journalists and publishers to inform their readers about the existence of important public controversies and allegations of wrongdoing without taking a side in the controversy or adopting the truth of the allegations. Second, the decision confirms the vitality of the innocent construction rule in Ohio law. The immediate benefit is to media litigants in Ohio, but the opinion could also prove useful to defendants in states where the status of the rule remains an open question.

Al-Amyn Sumar is the First Amendment Fellow at The New York Times. The Times was represented by Jay Ward Brown, Michael Sullivan, and Matthew Kelley of Ballard Spahr LLP.

 
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