“The question before the court of appeals was whether the trial court erred in holding that the Andersons could not prove the fault element of their defamation claim. The issue whether the publications were defamatory was not before the court.”
Justice Donnelly, Majority Opinion
“The appellate court’s editorializing and commentary, while eye-catching, does not carry with it any weight of authority overruling our precedent in Lansdowne or creating a new duty or fault standard in private-figure defamation cases. See Interstate Sash & Door Co. v. Cleveland, 148 Ohio St. 325, 74 N.E.2d 239 (1947) (obiter dictum has no weight of authority). The court of appeals set forth the issue before it, quickly established its holding, and then began pontificating. The majority has now attached jurisprudential significance to bloviation.”
Justice Kennedy, Dissenting Opinion
On December 18, 2019, the Supreme Court of Ohio handed down a merit decision in Anderson v. WBNS-TV, Inc., 2019-Ohio-5196. In an opinion written by Justice Donnelly, the Court held that the appeals court applied the wrong standard in this private figure defamation case and sent the case back to the appeals court to apply the correct standard. Chief Justice O’Connor and Justices French, Fischer and Stewart joined the majority opinion. Justice DeWine concurred in judgment only, with an opinion. Justice Kennedy wrote a scathing 33-page dissent. The case was argued April 24, 2019 at Geneva High School in Ashtabula County as part of the Court’s off-site program.
Case Background
On January 20, 2016, the Columbus Police Department sent out a media information sheet to various media outlets including appellant WBNS-TV (“WBNS”), describing the robbery of a hoverboard from an eight-year-old girl in the parking lot of a waterpark on November 26, 2015. The information sheet stated that suspects put a gun to the child’s head and demanded the hoverboard. This sheet also asked for help in identifying the people in an accompanying photograph. The people in the photograph were appellees Aaron, Aaronana, and Arron Anderson. The photograph was taken by a surveillance camera when the three siblings entered the park.
WBNS aired this information in a news segment during a 5 a.m. broadcast on January 21, 2016. During that broadcast, the station showed the picture of the 3 Andersons, while stating that the “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.” An hour later, in another broadcast, the station ran the picture again, this time stating, “Columbus Police hope you recognize these two men who robbed an 8-year-old girl at gunpoint!” And on its website, the station published the picture with this text: “The suspects put a gun to the 8-year-old girl’s head * * *.”
Nanita Williams, the mother of the three Anderson children, saw the early morning broadcast, became extremely upset, woke the children and took them to the police station. After extensive questioning, the police determined that Aaron, Aaronana, and Arron had not been involved in this crime. The Columbus Police then released a statement that the people in the photograph had spoken to the police, who had determined they were not involved in the robbery. When WBNS got this new information, the station employees removed the picture from its website, and did not use it again.
Appellees, the three Anderson children and their parents Willie Anderson and Nanita Williams (collectively, “the Andersons”) sued WBNS for defamation, among other things. The trial court granted summary judgment to WBNS on all counts, holding that the Andersons could not prove fault, an essential element of their defamation claim. The Andersons appealed.
In a unanimous decision, the Tenth District reversed the trial court’s judgment on the defamation claim, stating that there was no question that WBNS had defamed some of the Andersons. The appeals court held 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, was sufficient to establish a violation of the requisite duty of care. The authoring judge also 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.”
Read the oral argument preview of the case here and an analysis of the argument here.
WBNS’ Propositions of Law Accepted for Review
Proposition 1
First Amendment protections and jurisprudence extend to speech published on the Internet, and, specifically, this Court’s decision in Lansdowne v. Beacon Journal Publ’g Co., which set the fault standard in private-figure defamation cases, applies equally to statements published on the Internet.
Proposition 2
The Tenth District’s “stronger duty” requirement is unlawfully vague – it sets a “standard” that is untethered to principles of First Amendment jurisprudence.
Proposition 3
The law does not require the news media to conduct their own investigation or withhold publishing the news until they are able to contact the persons implicated or otherwise inquire into and corroborate official information supplied by law enforcement.
Proposition 4
Persons are not liable under the law of defamation for statements that they do not publish or authorize another to publish.
Proposition 5
In determining whether a statement is defamatory, a court must review the totality of the circumstances and by reading the statement in the context of the entire publication to determine whether a reasonable reader would interpret it as defamatory.
Proposition 6
The essential elements of a defamation claim do not turn on the relative financial condition of the plaintiff and defendant.
Does the Court Adopt WBNS’ Propositions of Law?
The majority adopts the first one and declines to address the rest.
Key Precedent
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.)
Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176 (1987) (To prevail on a private-figure defamation claim, the plaintiff must prove by clear and convincing evidence that the defendant acted negligently.)
Dale v. Ohio Civil Serv. Emps. Assn., 57 Ohio St.3d 112 (1991) (In a defamation claim, the plaintiff “has the burden of proving both that the statement was false and [that] the defendant was at least negligent in publishing it.”)
Jackson v. City of Columbus, 2008-Ohio-1041 (“In Ohio, defamation occurs when a publication contains a false statement ‘made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.’”)
Am. Chem. Soc. v. Leadscope, Inc., 2012-Ohio-4193 (A defamation claim against a news organization requires proof that (1) the organization made a false statement; (2) the statement was defamatory; (3) the organization published the statement; (4) the plaintiff was harmed as a proximate result of the publication; and (5) the organization acted with the requisite degree of fault in publishing the statement.)
Merit Decision
Analysis of Majority Opinion
Fault Standard in Private Figure Defamation Case
In a defamation action involving a private person, the person allegedly defamed must prove by clear and convincing evidence that the statement was false, and the defendant was at least negligent in publishing it. That has long been settled law in Ohio.
Clarifying the Issue on Appeal
The issue on appeal is whether the Andersons proved the requisite degree of fault, not whether the statements were defamatory.
WBNS argued in its motion for summary judgment that the Andersons could not prove the station acted with the requisite degree of fault in publishing the statements. The trial court confined its decision to the fault element and that is what the parties focused on in the appeal. Whether or not the publications were defamatory was not before the appeals court. The statement by the appeals court that the Andersons were no doubt defamed was dictum and is not the law of the case. While the appeals court correctly stated that the appropriate fault standard in this case was set forth in Lansdowne, the appeals court then applied a different standard.
So, the appeals court made two mistakes. First, it stated that “merely publishing a false, defamatory statement is sufficient to establish a traditional defamation claim.” Also erroneous was the statement that “a media outlet has a stronger duty to research the facts in such cases than it did when Lansdowne was decided.”
So, Now What?
The judgment of the court of appeals is vacated and the case remanded to consider again whether the trial court property granted summary judgment to WBNS on the defamation claim, but this time the appeals court must use the standard set out in Lansdowne. And the majority makes it clear it expresses no opinion on the merits of the case.
Justice DeWine’s Position
First off, Justice DeWine doesn’t think the court should have bothered with the case because it doesn’t present a significant constitutional question or issue of public or great general interest, which is why he didn’t vote to accept it. That said, he agrees with the majority that the decision of the appeals court should be vacated on the fault element of defamation, and remanded to apply the proper standard, as set forth in Lansdowne.
“The court of appeals may well have intended to apply that standard the first time around, but unfortunately, its gratuitous commentary obscures its analysis,” DeWine wrote.
Unlike the majority, DeWine would also resolve WBNS’ fifth proposition of law by vacating the Tenth District’s apparent holding that the station’s publications were defamatory. There are two reasons he thinks this necessary: to address Justice Kennedy’s concerns in her dissent that this holding by the appeals court might be treated as the law of the case, and because the issue of whether the publications were defamatory was not before the court.
The only issue before the trial court at summary judgment was whether WBNS acted negligently, not whether the publications were defamatory. So, DeWine agrees that it was improper for the Tenth District to comment that there was no question the station defamed some of the Andersons, and he agrees the Ohio high court should not decide that either. So, in addition to the majority’s decision to vacate the appeals court’s judgment on the question of fault, and remanding the case for a proper determination, he would also vacate the appeals court’s finding about the defamation element.
Justice Kennedy’s Dissent
Whew! Where to begin? This is one angry dissent.
Summary of Grievances with Majority Opinion
The trial court held the publications at issue here were not defamatory as a matter of law. The court of appeals reversed that holding. 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.”
That “stronger duty” language in the appellate decision is nothing but “obiter dictum.” And in case you are uncertain what “obiter dictum” means, Kennedy refers you to a case citing her favorite source for definitions—Webster’s New International Dictionary (second edition, this time) as “an incidental and collateral opinion uttered by a judge, and therefore (as not material to his decision or judgment) not binding…Hence, any incidental remark, reflection, comment, or the like.”
The majority sent the case back to the court of appeals for it to apply the fault standard for private figures in defamation cases, as set forth in Lansdowne. But the appellate court already did that, says Kennedy, by holding there was a genuine issue of material fact as to whether WBNS violated its duty of care in publishing what the court held was defamatory material. To her, the appeals court found the publications to be defamatory before moving to the Lansdowne test. That makes the determination that the publications are defamatory the law of the case, which Kennedy accuses the majority of “wishing away” by characterizing that holding as dicta.
“The majority thereby treats what is substantive as dictum and what is dictum as substantive. It illogically holds that anything that touches on the defamatory nature of the publications in this case is dictum while simultaneously elevating that which is truly dictum—the appellate court’s after-the-holding pontification about the role of media in a digital society—to the level of something substantive. It does all of this only to arrive at its hollow holding remanding the case to the appellate court for its reapplication of the Lansdowne standard. In so doing, the majority is able to wash its hands of a messy case, achieving nothing other than causing further delay in resolving the matter and additional expense for the litigants,” wrote Kennedy. Getting the flavor of her dissent?
Here’s How Justice Kennedy Thinks the Court Should Go About Deciding the Case
First, the high court should decide whether the determination by the appeals court that the publications are defamatory is correct. If yes, then the high court should determine if the Tenth District’s application of the Lansdowne standard to the facts of the case was correct. But if the court decides the publications aren’t defamatory then there is no reason to apply the Lansdowne standard. And that is where Kennedy comes out. Applying the totality of the circumstances test, Kennedy would hold that the statements at issue are not defamatory. She would thus reverse the judgment of the court of appeals and reinstate the finding of the trial court granting summary judgment to WBNS.
Trial Court’s Finding: Publications Not Defamatory
The trial court in this case held that the publications in the case were not defamatory. This was dispositive, not dictum, and the appellate court’s judgment overruling the trial court on this issue should be the focus of the high court’s review. Key to this was the finding by the trial court that changing the word “suspect,” which was used in the police media information sheet, to the word “robbers” in the station’s reports did not make the publications defamatory.
Andersons’ Theories of Negligence
- WBNS was negligent in failing to investigate the information provided by the Columbus Police Department. The trial court rejected that theory, finding that WBNS had reasonably relied on the police reports
- WBNS was negligent in changing the characterization of the three Anderson children from “suspects” in the Media Information Sheet to “robbers” in the WBNS stories.The trial court found case law cited by the Andersons inapposite, and went on to hold the publications were not defamatory, when viewed in the context of the entire publication as a whole as required by Am Chem. Soc. v. Leadscope.
So, Kennedy would find that the trial court’s holding on the defamatory nature of the publications was not dictum, but rather, the very essence of the trial court’s decision on the defamation clam.
What Was and Wasn’t Dictum From the Appeals Court
The appeals court held there was no question WBNS defamed some of the Andersons, thus reversing the trial court’s ruling on this part of the claim. The appeals court then went on to the second part of the inquiry, namely, whether WBNS had acted negligently. Without the determination that the publications were defamatory, the application of the Lansdowne test would have been, in Kennedy’s words “a meaningless exercise.” So, the Tenth District’s determination that the publications were defamatory was not dictum (or, as she writes in paragraph 48, “judicial diktat.” That is not a typo.) Rather, it was a holding on an essential element of the defamation claim and becomes the law of the case.
But what was dictum, according to Kennedy, was the “stronger duty” language from the appellate court. Kennedy finds that neither the trial court nor the appeals court established any new standard or new test for determining fault in a private-figure defamation case involving a media defendant. She faults the majority for determining that the “stronger duty” language in the appellate opinion did establish a new fault standard in such cases, and thus created a straw man as an excuse to send the case back for further proceedings consistent with Lansdowne.
“The appellate court signaled that its commentary was merely an aside when it used the word ‘frankly’ to introduce what it was about to say about a ‘stronger duty.’ 2018-Ohio-761 at ¶ 11. What followed was mere gavel-rattling,” wrote Kennedy, accusing the majority of attaching “jurisprudential significance to bloviation.” She notes that even the Andersons characterized this “stronger duty” language as dicta, pointing out at argument they had never argued for any stronger duty for publications on the internet, and agreeing that the fault in a private-figure defamation case is controlled by Lansdowne. Bottom line here for Kennedy is to reject WBNS’ second proposition of law that the appeals court created a new “stronger duty” fault standard.
Kennedy thinks there should be a review of the determination by the appeals court that the publications were defamatory. She then proceeds to do just that, in 42 paragraphs of detail, to conclude that they weren’t.
Bottom Line for Kennedy
Kennedy would reverse the judgment of the Tenth District and reinstate the judgment of the trial court in favor of WBNS.
Concluding Observations
Here’s what I wrote after argument:
“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.”
The blog will follow this case on remand. This will be interesting, because as Justice Kennedy notes in her dissent, two of the three judges on the appeals court that reversed the trial court decision are no longer on the bench, and the trial judge who made the initial ruling in favor of WBNS on summary judgment is no longer a trial court judge (she is now on the Tenth District Court of Appeals.)