Update: On December 18, 2019, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
“Don’t you think there is a difference between saying ‘these men who robbed’ as opposed to ‘these men who are suspected of robbing?’”
Justice Stewart, to counsel for WBNS
“Would you require them (WBNS) to just reprint word for word what the police sent them?”
Justice Fischer, to counsel for the Andersons
On April 24, 2019, the Supreme Court of Ohio head oral argument in Aaron Anderson, et al, v. WBNS-TV, Inc., 2018-0792. At issue in the case is the requisite degree of fault required in this internet era in private figure defamation cases where the media publish stories about matters of public concern in reliance on information provided by official sources. The case was argued at Geneva High School in Ashtabula County as part of the Court’s off-site program.
Case Background
The Columbus Police Department (“CPD”) emailed a Media Information Sheet to news organizations detailing a robbery on November 26, 2015 at a Columbus waterpark in which suspects pointed a gun at an 8-year-old girl and stole her hoverboard. The Media Information Sheet was accompanied by two photographs. One, called the “Parking Lot Photograph” shows an empty parking lot with several grainy images standing together. The other, known as the “Hall Photograph” clearly shows two males and a female, later identified as the Andersons, walking down a hall. The CPD Media Information Sheet refers to the persons in the photographs only as persons who may have been involved in the crime.
On January 20, 2016, WBNS-TV (“WBNS”) put together a news broadcast and a web-based story about this incident. WBNS relied on the Media Information Sheet in preparing its broadcast, but rewrote the story. The broadcast showed the photographs and referred to those involved at different points as robbers and suspects. The web story and Facebook post included the photographs and a bold-font headline, “Robbers Put Gun To Child’s Head And Steal Hoverboard.”
Nanita Anderson saw the broadcast and recognized her children. She and her husband immediately went with the children to police headquarters, where they were cleared of the accusations. CPD informed WBNS that the Andersons were no longer considered suspects. WBNS then removed the photos from its broadcast, Facebook page, and website. However, WBNS refused to provide a retraction of any sort. Aaron, Aaronana, and Arron Anderson (“the Andersons”) brought suit against WBNS for defamation in the Franklin County Court of Common Pleas. WBNS filed a motion for summary judgment which was granted by the trial court. The Andersons appealed.
On appeal, the Tenth District, in a unanimous opinion, reversed the grant of summary judgment on the defamation claim, finding that there were genuine issues of material fact as to whether broadcasting an accusation that the Andersons were robbers without investigation, and based a set of police documents which claimed only that some of the Andersons were suspects, is sufficient to establish a violation of the requisite duty of care. “Frankly, a media outlet has a stronger duty to research the facts in such cases than it did when the Landsdowne case was decided,” wrote opinion author Judge Gary Tyack, noting that “false stories on the internet do not just disappear because the truth is later discovered.” Summary judgment on the remaining claims for intentional infliction of emotional distress, loss of consortium, and publishing newspaper corrections pursuant to R.C. 2739.14 was upheld. WBNS appealed.
Read the oral argument preview of the case here.
Key Statutes and Precedent
U.S. Constitution, Amendment I (“Congress shall make no law . . . abridging the freedom of speech or of the press; . . .”)
Ohio Constitution Article I, Section 11 (“Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. . . .”)
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (States have wide discretion to establish standards for defamation and may establish any standard so long as the standard does not impose liability without fault.)
LeBoeuf v. Times Picayune Pub. Corp., 327 So.2d 430 (La.App.1976) (A publisher is not liable for publishing false information if that information was obtained from reliable sources in accordance with established methods and processes.)
Lansdowne v. Beacon Journal Publishing Company, 32 Ohio St.3d 176 (1987) (In private-figure defamation actions, where a prima facie showing of defamation is made by a plaintiff, the plaintiff must prove by clear and convincing evidence that the defendant failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication.)
Gosden v. Louis, 116 Ohio App.3d 195 (9th Dist.1996) (Written matter is libelous per se if, on its face, it reflects upon a person’s character in a manner that will cause him to be ridiculed, hated, or held in contempt, or in a manner that will injure him in his trade or profession.)
Am. Chemical Soc. v. Leadscope Inc., 2012-Ohio-4193 (When determining whether a statement is defamatory as a matter of law, a court must review the totality of the circumstances which includes reading the statement in the context of the entire publication to determine whether a reasonable reader would interpret it as defamatory.)
Sullins v. Raycom Media, Inc., 2013-Ohio-4697 (8th Dist.) ( Mere reliance on credible source information alone is insufficient to demonstrate reasonableness.)
At Oral Argument
WBNS shared oral argument with amicus State of Ohio.
Arguing Counsel
Marion H. Little, Zeiger, Tiggs & Little LLP Columbus, for Appellant WBNS-TV
Jason Manion, Deputy Solicitor, Office of the Ohio Attorney General, for Amicus State of Ohio in Support of Appellant WBNS-TV
Sonia T. Walker, Calig Law Firm LLC, Columbus, for Appellees Aaron, Aaronana, and Arron Anderson
WBNS’ Argument
The court of appeals seeks to hold the media strictly liable for the reporting of what the police have done or disclose. In this situation, the station could have simply skipped the story entirely. But WBNS felt it was necessary to report it.
Under this Court’s precedent in Landsdowne, in private-figure defamation cases, each news story must be read in its entirety. Photos, headlines, and text cannot be viewed in isolation. In their entirety, the stories each express that the police identified the individuals as suspects, and that is how WBNS identified them. The headline does not implicate any of the plaintiffs in the case. The photograph does not say anything. In the article they are specifically identified as suspects. The police Media Information Sheet specifically identifies the three individuals in the photographs as suspects. So WBNS accurately reported the information that was communicated to them by the Columbus Police Department.
Words cannot be cherry-picked from an article to create liability. Journalists are not expected to have the same word precision as an attorney. The article must be viewed in its totality to determine whether a reasonable reader would reach the conclusion that the media was describing these individuals as suspects.
The standard that was announced in Landsdowne some 30 years ago is the standard across the country. Virtually every state has adopted a negligence standard. To the extent they have not adopted a negligence standard, courts have adopted an actual malice test. So the proposed enhanced standard proposed by the Tenth District would be one of the first in the country, and would run afoul of U.S. Supreme Court precedent that our constitutional rights do not change with changes in technology.
In this case, there was a two month delay between the hoverboard robbery and the issuance of the media alert by the police. There had been an impasse in the police investigation; the police were looking for help. Once the police issued their alert, the plaintiffs came forward and were able to absolve themselves. Once there was a subsequent release by the Columbus Police Department exonerating the plaintiffs, and the station learned of this, it immediately took down the photographs and removed the article. There was no retraction because the station had not made an error.
It is WBNS’ position that the trial court properly granted its motion for summary judgment. The station offered evidence to substantiate its process, and why it acted appropriately. The Andersons offered nothing in response. There was no expert testimony that somehow the station had deviated from the standard of care. The Andersons failed to produce evidence of fault. The Andersons do not succeed in this case under Landsdowne. They offered absolutely no evidence of negligence in response to the station’s motion for summary judgment. This is not a case in which WBNS asks the Court to remand the case to the Court of Appeals for further review because it applied the wrong standard. Rather, the station asks for the reinstatement of summary judgment because of a complete failure of proof by the plaintiffs.
State’s Argument
It is essential that law enforcement be able to communicate quickly and freely to the public through the news media about ongoing criminal investigations. But the new and undefined higher duty standard created by the Tenth District, and its unwillingness to let this case be resolved at the summary judgment stage, jeopardize that.
Criminal investigations should be left to the police. Media organizations have no independent duty to investigate the facts surrounding a crime or the identity of the criminals. The media may rightly convey to the public the information that law enforcement provides them. Here, all WBNS had available was a description of the robbery and a photo of persons unknown to them or to law enforcement. So in this context there was no investigation that could be done.
Falsity alone cannot satisfy the negligence standard. As this Court has made clear, any allegedly defamatory statement must be read in the context of the story as a whole. Media organizations are free to make journalistic choices in their presentation of information so long as what they convey is substantially accurate. The state asks the Court to make clear that in a context like this, where no investigation would be possible, there is no duty for a news media organization to do some kind of independent investigation into the identity of the suspects or the facts of the crime.
Summary procedures are especially appropriate in the First Amendment arena because the threat of lawsuits, and the cost of defending them, may be just as chilling to the exercise of First Amendment rights as fear of the outcome of the lawsuit itself.
Andersons’ Argument
WBNS falsely accused the Andersons of committing the armed robbery of a child at gunpoint. They took the one surveillance image of the Andersons, broadcast it, and stated Columbus police hope you recognize these 2 men who robbed an 8-year-old girl at gunpoint.
The Andersons cannot and do not attempt to explain what the Tenth District meant by its “stronger duty” language, nor is it the Andersons’ position that there is any stronger duty required here. While the Tenth District was expressing some frustration when it used those “stronger duty” words, recognizing the reality that information spreads faster on the internet and stays there forever, it made its decision strictly on the negligence standard set forth in Lansdowne. The Tenth District’s language does not change the existing negligence standard, nor should this Court have to do that in order to find evidence of negligence by WBNS on the facts of this case, namely the station’s bolstering the potential of the Andersons’ involvement, directly accusing them of guilt in the crime, and then failing to investigate its facts.
Lansdowne strikes the proper balance here. There are 2 competing state interests-freedom of speech and the interest of an individual to be compensated for damage to his or her reputation. There is no more defamatory statement than accusing someone of an armed robbery of a child. This was a false accusation directly about the Andersons.
The Columbus Police were not wrong here. They accurately reported the information they had at the time. They accurately described the Andersons as persons who may have been involved. Anybody at the waterpark on that evening potentially could have been involved. The police did not describe the level of involvement. The Andersons could have been witnesses. It was WBNS which created the defamatory accusation of guilt, not the Media Information Sheet.
Contrary to the station’s argument, it is not necessary to read the entire article to find defamation here. When statements or TV broadcasts falsely accuse persons of committing a crime, they are defamatory per se. And while the station argues reliance on the Media Information Sheet, the Columbus police never mention a female in the photograph or make reference to a female. They actually don’t mention how many people committed the crime, nor their gender. WBNS makes that up. WBNS claims in its web post that it spoke to investigators and they are unsure how the woman was involved. That implies they are sure about how the men were involved. And WBNS never spoke to investigators. The station made up facts and did nothing to investigate its newly created false facts accusing the Andersons of armed robbery.
This case isn’t about strict liability. It is about recognizing that the media has some responsibility to accurately report credible source information. And to allow a jury to decide if there is sufficient evidence of negligence when a TV station changed the information it received from its credible source, bolstered it, and made it a straight accusation of guilt. A potential for involvement is transformed into an accusation of guilt. That is more than permissible journalistic embellishment.
What Was On Their Minds
A Stronger Duty?
Is there a different standard, an enhanced standard because of the introduction in the media of the internet and it immediacy, asked Chief Justice O’Connor? In a key question of the day, she asked if what the appeals court found is based on a stronger duty, and there is no stronger duty, where does that leave us?
The 10th district added a “stronger duty” requirement, noted Justice Fischer. Where is that from? What precedent or statute? And what does that mean?
Since we don’t know where this stronger duty language from the 10th district comes from, at a minimum don’t we have to send this back to the 10th district to say you used the wrong standard and require them to do a do-over, asked Justice French? To say you’ve got to at least review this in an accurate way? Duty is a negligence term, she noted. So if the 10th district held WBNS to a stronger duty, aren’t we in a completely different standard of review of the negligence standard?
Lansdowne
Are the Andersons ok with Lansdowne, asked Justice Fischer? (answer: yes) Later, he asked the station’s lawyer if he agreed with the Andersons’ lawyer that a stronger duty is not a requirement, and they still succeed under Lansdowne? (he did not agree)
Reliance on Media Information Sheet
Is it problematic at all that the station listed the pictures of the men as robbers when the police report did not say that, asked Justice Stewart? It’s not like the station took exactly what the police report said, because the police report always called them suspects, she noted. Do they at least have the obligation to print what the police or law enforcement gives them?
Isn’t the question that when the media is going to print something different than what the police release said, whether the media has any duty to verify not what they get from the police, but something they print that is different from what the police said, asked Justice DeWine, noting that it seems pretty clear when you have a broadcast that says, “Columbus police hope that you recognize these two men” and there’s a picture of two men who robbed an 8-year-old girl at gunpoint, that’s not what police said in their press release. The gist of the story seems to be that these 2 men were robbers, not suspects, he added.
Robber? Suspects? Publication Taken as a Whole Or in Isolated Parts?
Technically isn’t everybody a suspect until they are actually charged and prosecuted asked Justice Stewart? Isn’t the problem here that when the media reported it they actually called the people in the pictures robbers—these people robbed an 8 year old at gunpoint? As opposed to suspected robbers? While the article says “suspects” further down, it also says Columbus police hope you can recognize these men who robbed an 8-year-old. Is there a difference between suspected robbers and robbers? Later she added that the fact that they were identified as “the robbers” was inaccurate. Doesn’t that show a lack or disregard for accuracy?
The Reporting by the Station
Couldn’t the station have said, Columbus police are looking for suspects, asked Justice DeWine? Or that these men are suspects in the robbery? One of the statements is Columbus police hope you recognize these three men who robbed an 8-year-old girl at gunpoint. With the pictures of those three men isn’t saying “these three men” a little different than saying they are suspects?
How quickly was the incorrect information reacted to by WBNS, asked Chief Justice O’Connor? Did they use the names? At any time? And didn’t they show the photos because no one knew who they were? (answer from Ms. Walker: except the Andersons).
Once the station took down the photos, why was there no retraction, asked Justice Fischer? Nothing even like the photo was incorrect?
Is it problematic that the station made a statement that called them “robbers” or “men who robbed,” asked Justice Stewart? Why isn’t it problematic that the station identified them at all at any time as robbers when the police didn’t identify them as robbers? (Justice Stewart got into a sustained back and forth with Mr. Little about this. When he insisted you couldn’t take a single sentence out of the story in the aggregate, she asked, why not?)
What if the station had just used the term “persons of interest” asked Justice Donnelly? (answer from Ms. Walker: “then we wouldn’t be here today.”) But wouldn’t the implications create the same consequence? Is that really going a step further?
How it Looks From the Bleachers
To Professor Emerita Bettman
Before I get into how it looks, I want to compliment both counsel for a beautifully argued case.
The media gets a lot of breathing room in defamation cases, but less with private figures than with public figures. I think the outcome here depends on whether a majority buys Mr. Little’s argument that the stories must be viewed in their entirety, and that while both “suspects” and “robbers” were used in the posts and broadcasts, the overall context makes it clear they were suspects. Justice Stewart seemed least sympathetic to this argument, engaging in several sustained interactions with Mr. Little over this. Justice DeWine also seemed skeptical of this argument. Undoubtedly the safest course for the media would be to use the police media information sheet verbatim, as Justice Fischer suggested. But that leaves no room for “journalistic impressionism.”
The challenge for the Andersons is the “stronger duty” language from the appellate decision. Court of Appeals opinion author Judge Tyack certainly did the Andersons no favor when he wrote, “Frankly, a media outlet has a stronger duty to research the facts in such cases than it did when the Lansdowne case was decided.” Ms. Walker necessarily made it emphatically clear that the Andersons were not asking for a stronger duty and did not endorse that idea or know where it came from. She has to persuade a majority that despite those words, the appellate decision really was based on the negligence standard set forth in Lansdowne, and that the Andersons met it.
The compromise here, and a very possible outcome, would be to do what Justice French suggested—send the case back to the Tenth District, telling the judges they used the wrong standard, that there is no stronger duty here, and to apply the correct negligence standard as articulated in Lansdowne. Neither side wanted that, but that’s how it could go. If not, I suspect the media is going to get the benefit of the doubt. It usually does, although the bench seemed more skeptical about this than in years past.
To Student Contributor Paul Taske
This case is incredibly hard to call from the bleachers. The questions during oral argument were all over the place and ranged from whether the internet changes the standard of care for defamation to the importance of showing a photo of the Andersons during the news broadcast and just about everything in between. I think this highlights the confusion we experienced when reading through the briefs of both parties and exactly what is requested from which. Some justices seemed to be wary of allowing media companies to alter direct language from a government agencies, while others thought it would be more prudent to remand the case to the Tenth District to clear up confusion about the supposed heightened duty owed by media organizations to fact-check information before displaying it.
Ultimately, I think this case will probably be remanded so the lower court can address the issues of the case using the accepted standard of review for such cases. But, if I had to call this one, I would say it looks like a win for the Andersons–if only because the justices appeared highly skeptical of WBNS’ choice of language when it ran the story.