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Ohio Court Considers Whether a “Suspect” Is a “Robber”

By Jack Greiner and Darren Ford

The Ohio Supreme Court recently granted relief (although perhaps only temporary) to a Columbus television station when it vacated a court of appeals decision that had revived defamation claims against the station. Anderson v. WBNS-TV, Inc., Slip Opinion No. 2019-Ohio-5196 (Dec. 18, 2019).

At issue in the case, was whether the television station, WBNS-TV, Inc. ("WBNS"), libeled three siblings by publishing law enforcement –provided surveillance camera images of them while stating that the two men depicted in the images (who were as-of-yet unidentified) had "robbed" an 8-year-old girl at gunpoint.

The majority found that the court of appeals had applied an erroneous standard in its decision reversing the trial court's grant of summary judgment, and sent the case back to the court of appeals, without passing on the merits of the plaintiffs' claims.  The decision to send the case back to the court of appeals drew criticism from a dissenting justice, who opined that the court should have resolved the case on the merits and affirmed the trial court's original decision disposing dismissing the case on summary judgment.

Background Facts

The events giving rise to this case are familiar to any regular consumer of local news broadcasts. According to the Ohio Supreme Court's opinion, on January 20, 2016, the Columbus Police Department sent an information sheet to WBNS, as well as other media outlets, describing a robbery of a hoverboard from an eight-year-old girl that took place in the parking lot of an indoor waterpark on November 26, 2015.

The information sheet stated that "suspects * * * put a gun to the eight-year-old's head and demanded the hoverboard." The police department's information sheet asked for help identifying three individuals depicted in one of two accompanying photographs, who the information sheet described as people "who may have been involved" in the robbery. The photograph that accompanied the information sheet (taken by a surveillance camera) showed plaintiffs Aaron, Aaronana, and Arron Anderson entering the waterpark where the robbery occurred shortly before the hoverboard robbery occurred, but the image at issue did not show them committing the robbery.

During its 5:00 a.m. broadcast the next day, WBNS aired a segment during which WBNS employees showed the image of Aaron, Aaronana, and Arron Anderson, while stating that "a 'girl was riding her hoverboard when robbers went up to her, put a gun to her head and took it. Columbus Police say suspects—seen here—took off in a PT cruiser.'" During the next broadcast at 6:00 a.m. the same day, WBNS again broadcast the surveillance camera photo of the three plaintiffs, and WBNS employees stated: "'Columbus Police hope you recognize these two men who robbed an 8-year-old girl at gunpoint!' WBNS also posted the image to their website with the caption: "The suspects put a gun to the 8-year-old girl's head * * *."

The plaintiffs' mother saw the report and immediately took her children to the Columbus police, who determined that none of the three plaintiffs was involved in the robbery. The police then promptly released a statement clearing the plaintiffs of any involvement in the robbery. Upon learning that the police had cleared the three plaintiffs, WBNS removed the photo of the three plaintiffs from their website, and made no additional statement about them.

The plaintiffs asserted several claims against WBNS, including defamation. The gist of the plaintiffs' defamation claims was that by posting the surveillance camera photograph of them, and describing them as the "robbers," rather than "suspects," WBNS libeled them. WBNS sought summary judgment on the defamation claims, arguing that plaintiffs could not establish the fault element of their claims. The trial court agreed, and granted summary judgment against the plaintiffs.

The plaintiffs appealed the trial court's dismissal of the defamation claims to the Ohio Tenth District Court of Appeals, which reversed and remanded those claims for further proceedings. In doing so, the court of appeals held that there was "no question that WBNS defamed some of the [Plaintiffs]" and that a genuine issue of material fact existed as to whether WBNS acted with the requisite degree of fault in publishing the statements at issue. The court of appeals framed the issue as to the fault element as whether

broadcasting an accusation that the [plaintiffs] were robbers without investigation by WBNS and based on a set of police documents which claimed only that some of the Andersons were suspects is sufficient proof of a violation of a duty of care to allow the lawsuit to survive a motion for summary judgment.

In reaching this holding, the court of appeals asserted that "merely publishing a false, defamatory statement is sufficient to establish a traditional defamation claim."

Ohio Supreme Court Decision

WBNS sought, and the Ohio Supreme Court granted, discretionary review of the court of appeals' decision. In its opinion, the majority confined its analysis to whether the court of appeals had correctly applied the fault standard set forth in the Ohio Supreme Court's 1987 decision in Landsowne v. Beacon Journal Publishing Co. for defamation claims brought by private figures based on a statement about a matter of public concern. Although the majority noted that the court of appeals correctly recited the Lansdowne standard, it held that the court of appeals had erred in applying it in two respects.

First, the majority held that the court of appeals' statement that "merely publishing a false defamatory statement is sufficient to establish a traditional defamation claim" was contrary to Landsowne, which requires a defamation plaintiff to demonstrate that the media defendant was at least negligent, and do so by clear and convincing evidence. Second, the majority took issue with the court of appeals' statement that "a media outlet has a stronger duty to research the facts in such cases than it did when the Landsowne case was decided," finding that the court of appeals improperly created a "new standard" and failed to "explain what constitutes compliance with the 'stronger duty.'"

What is most notable about the decision though is the majority's refusal to address the question whether the statements at issue were defamatory, despite the fact that both the trial court and court of appeals offered opinions appearing to address this issue. With respect to the trial court, the majority explained that although the trial judge opined in its decision that a reasonable reader or viewer would not interpret the three WBNS publications as defamatory, such language was merely dictum because the trial court had previously stated that its decision was based solely on the fault element of the claim. Likewise, the majority concluded that the court of appeals' statement that there was "no question that WBNS defamed some of the [plaintiffs]" was dictum, because the parties had "confined their arguments on appeal to the fault element."

To avoid any doubt about whether the majority intended to weigh in on the defamatory meaning issue, Justice Donnelly (the majority opinion's author) added that the court was expressing "no opinion on the merits of this case" in vacating the court of appeals' judgment and remanding for further consideration. Indeed, the majority's only instruction to the court of appeals on remand was to "apply the standard set forth in Landsowne," and offered no indication as to how the majority believed that standard should apply to the facts of the case.

Justice Sharon Kennedy filed a strongly worded dissenting opinion.  In her view, the court had

a holding by the trial court that as a matter of law the publications are not defamatory, an appellate-court decision overruling that holding, and a proposition of law calling on this court to address that determination. But the majority avoids issuing a dispositive decision by focusing on a nonissue— the appellate court's supposed tinkering with the standard of fault in defamation cases.

She explained that although the trial court did base its ruling on the fault element, and found that the plaintiffs failed to satisfy the Lansdowne standard, the Lansdowne standard necessarily required the trial court to address whether the statements were defamatory. Specifically, she opined that "[i]f there is no defamatory content in the publications, there is no reason to employ the Lansdowne test," which instructs a trier of fact "to determine whether the publisher of the material reasonably attempted to discover the defamatory character of the publication."

For Justice Kennedy, whether the statements were defamatory was central to the trial court's decision. In support, she pointed to the trial court's opinion, in which it reasoned:

It is true that the broadcast contained the word "robbers" and the internet story had "robbers" in the headline. However, the morning show used both the Parking Lot and Hall Photographs. It also characterized plaintiffs as suspects while showing the Hall Photograph. And, the posting also used "suspects" throughout the body of the story. Within this complete context, the Court cannot conclude that a reasonable reader or viewer would interpret the stories as defamatory."

Justice Kennedy also criticized the majority for focusing its opinion on the appellate court's comment about a "stronger duty." In her view, it was this portion of the court of appeals' decision that constituted dicta, deeming it "an incidental and collateral opinion."  In a harsh rebuke of the court of appeals, she referred to comments about WBNS's duties as "gavel-rattling" and "pontificating," and criticized the majority for attaching jurisprudential significance to "bloviation."

Ultimately, Justice Kennedy agreed with the trial court's apparent determination that the statements were not defamatory, and would have reversed the court of appeals and affirmed the trial court's decision on that ground. In her view:

[a] reasonable person reading the Web reports in their entirety and considering their context—crime-stoppers reports—would not interpret the publications to be defamatory. The overriding conclusion to be drawn from the story is that the two men were suspects. Viewing the entire publication—its plain text, its composition, its neutral thrust, its factual accuracy, its intent and purposes, and its implications and connotations—reasonable minds can come to but one conclusion and that conclusion is that the publication is not defamatory.

Justice Kennedy also expressed concern about the potential First Amendment issues raised by allowing the case to continue, arguing that that the majority's refusal to put an end to litigation that had gone on for three years would have a chilling effect on the media's use of "Crime Stopper" reports. She noted that since 1976, "crime-stoppers programs have aided in the arrest of more than one million criminals and the recovery of more than $2 billion in stolen property." She further noted that even the State of Ohio had filed an amicus brief in support of WBNS highlighting the "invaluable service" media organizations provide by publicizing law enforcement requests for tips—a view with which she agreed.

Although WBNS's win in the Supreme Court saved it from having to defend the case at trial in the immediate future, the ultimate outcome remains uncertain despite several years of litigation at all three levels of the Ohio court system. And although the majority's opinion did not offer any new guidance or clarification regarding Ohio defamation law, the court's unwillingness to follow Justice Kennedy's roadmap for resolving the case may provide some insight into those justices' views on the public policy and First Amendment concerns she raised in her dissent. But let's hope that's not the case.

Jack Greiner and Darren Ford are partners at Graydon Head & Ritchey LLP in Cincinnati, OH. Plaintiff was represented by the Calig Law Firm, L.L.C. and Sonia T. Walker; Jones Law Group, L.L.C. WBNS was represented by Marion H. Little Jr. and Kris Banvard, Zeiger, Tigges & Little, L.L.P.

 
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