473 N.E.2d 1191 (Ohio 1984), 83-1833, Milkovich v. News-Herald

Docket Nº:83-1833.
Citation:473 N.E.2d 1191, 15 Ohio St.3d 292
Opinion Judge:Per Curiam.
Party Name:MILKOVICH, Appellant, v. The NEWS-HERALD et al., Appellees.
Attorney:Brent L. English, Cleveland, for appellant. Mr. Brent L. English, for appellant., Wickens, Herzer & Panza Co., L.P.A., Mr. David L. Herzer, Mr. Richard D. Panza, Mr. Richard A. Naegele and Mr. John J. Hurley, Jr., for appellees.
Judge Panel:FRANK D. CELEBREZZE, C.J., and SWEENEY, CLIFFORD F. BROWN and JAMES P. CELEBREZZE, JJ., concur. WILLIAM B. BROWN, J., dissents. WILLIAM B. BROWN, Justice, dissenting. HOLMES, Justice, dissenting.
Case Date:December 31, 1984
Court:Supreme Court of Ohio

Page 1191

473 N.E.2d 1191 (Ohio 1984)

15 Ohio St.3d 292

MILKOVICH, Appellant,


The NEWS-HERALD et al., Appellees.

No. 83-1833.

Supreme Court of Ohio.

December 31, 1984

Page 1192

[Copyrighted Material Omitted]

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Brent L. English, Cleveland, for appellant.

Wickens, Herzer & Panza Co., L.P.A., David L. Herzer, Richard D. Panza, Richard A. Naegele and John J. Hurley, Jr., Painesville, for appellees.


The matter presented for our review involves important First Amendment considerations which require us to weigh the important interests of an uninhibited press and the need for judicial redress of libelous utterances.


The first issue before this court is whether appellant Milkovich is a "public figure" or "public official" as a matter of law.

The appellees argue that appellant is precluded from raising the issue that he is not a public figure, because he failed to preserve the issue during the initial appellate process of the cause.

In rejecting this argument we find that upon a careful review of the record, appellant has not waived this issue, and therefore, the issue is properly presented before this court.

In determining the status of appellant with respect to defamation law, a review of the pertinent United States Supreme Court decisions in this area is in order.

In the seminal case of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the Supreme Court held that public officials could not recover for defamation absent proof by clear and convincing evidence that such defamation was undertaken with "actual malice." (Hereinafter referred to as "N.Y. Times standard.") Such a standard was similarly adopted by this court in Dupler v. Mansfield Journal (1980), 64 Ohio St.2d 116, 413 N.E.2d 1187 [18 O.O.3d 354].

Then, in Rosenblatt v. Baer (1966), 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597, the high court stated that the inquiry into whether one is a public official is necessarily a question of law for the trial judge to determine.

The Supreme Court extended the N.Y. Times standard to cover "public figures" in Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094. In that case, the court defined a public figure as one who commanded a substantial amount of public interest by his status alone, or one who had thrust himself by purposeful activity into the vortex of an important public controversy. The court reasoned that public figures should be held to the more difficult N.Y. Times standard because public figures have sufficient access to the means of counterargument in order to expose the falsity of the defamation complained of. Id. at 155, 87 S.Ct. at 1991. [15 Ohio St.3d 295]

The court further extended the N.Y. Times standard in Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, to private individuals where the matter reported was of concern to the public. Rosenbloom was a plurality opinion, and marked the most comprehensive

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application of the N.Y. Times standard. However, the rule of law set forth in Rosenbloom was unable to command a majority vote of the justices, and revealed the disagreement within the court that, perhaps, the application of the N.Y. Times standard was in need of further refinement.

We believe that if Rosenbloom and Butts were the last statements made by the high court concerning the definition of a public figure or official, we would be compelled to agree with the courts below that Milkovich is a public figure, and that the N.Y. Times standard would be applicable to his claim for relief. Needless to say, the Rosenbloom extension of the N.Y. Times standard to private individuals was reexamined in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, and the Supreme Court retreated from its prior holding. In Gertz, the high court acknowledged the necessity of maintaining the N.Y. Times standard with respect to public figures and officials in order to fortify First Amendment freedom and to prevent self-censorship by the media. However, the court stated that the need to avoid self-censorship by the media was not the only societal value at issue. Id. at 341, 94 S.Ct. at 3007. With respect to private individuals, the court held that a different standard must apply in order to protect the state's interest in compensating injury to the reputation of private persons. Therefore, the Gertz court redefined the meaning of a public figure in the following manner:

"For the most part those who attain this status [as a public figure] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Id. at 345, 94 S.Ct. at 3009.

The court in Gertz also noted that a person can become a public figure for a limited range of issues by being drawn or voluntarily injecting himself into a particular public controversy. In holding that Gertz was not a public figure for the purposes of defamation law, the court stated that although Gertz was well known in some circles, he had achieved no general fame or notoriety in the community, and had no persuasive involvement in the affairs of society. Id. at 351-352, 94 S.Ct. at 3012-3013.

Two years later, the high court had before it the case of Time, Inc. v. Firestone (1976), 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154. In Firestone, the court reiterated its holding in Gertz with respect to the definition of a public figure, and held that the plaintiff, Mrs. Firestone, was not a public figure under Gertz. In spite of the fact that the plaintiff, Mrs. Firestone was prominent among the "400" of Palm Beach Society, that she had subscribed to a press clipping service [15 Ohio St.3d 296] which evidenced her frequent mention in the printed medium, and that she had held several press conferences during the course of her divorce proceedings (id. at 484-485, 96 S.Ct. at 979-980 [dissenting opinion] ), the court found that the Gertz definition of public figure status had not been satisfied. The court also stated that Mrs. Firestone's divorce proceeding was not the type of "public controversy" envisioned in Gertz. Id. at 454, 96 S.Ct. at 965.

More recently, the Supreme Court sustained the Gertz characterized of a public figure in Hutchinson v. Proxmire (1979), 443 U.S. 111, 134, 99 S.Ct. 2675, 2687, 61 L.Ed.2d 411; and Wolston v. Reader's Digest Assn., Inc. (1979), 443 U.S. 157, 164, 99 S.Ct. 2701, 2705, 61 L.Ed.2d 450.

Turning our attention to the matter at hand, the appellees herein contend that in view of the accomplishments and honors earned by Milkovich in the area of high school wrestling, 1 the lower courts properly

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designated him as a public figure. Appellees submit, and the court of appeals agreed, that the Butts decision is quite similar to the case at bar in that both Butts and Milkovich attained pervasive notoriety in their respective communities as prominent sports personalities, and that, therefore, Milkovich must be held to be a public figure in the same manner as Butts.

We disagree, and find that such a determination by this court would require us to ignore the redefinition of the public figure status as enunciated in Gertz and its progeny. In applying the Gertz standard to the case [15 Ohio St.3d 297] sub judice, we hold that Milkovich is not a public figure as that term is utilized in First Amendment analysis. While appellant may be an individual recognized and admired in his community for his coaching achievements, he does not occupy a position of persuasive power and influence by virtue of those achievements. By the same token, appellant's position in his community does not put him at the forefront of public controversies where he would attempt to exert influence over the resolution of those controversies. While appellant did become involved in a controversy surrounding the events during and subsequent to his team's wrestling match with Mentor High School, appellant never thrust himself to the forefront of that controversy in order to influence its decision. Furthermore, it cannot be said that appellant assumed the risks of public life through the advertisement of his wrestling clinics. If this were the case, then any widespread advertisement for purely business purposes could result in the classification of an individual as a public figure. Given the application of the public figure definition since Gertz, we find appellant's status to be akin to the status of the plaintiff in Firestone, supra, rather than the status of the athletic director in Butts, supra.

Likewise, we reject appellees' argument that appellant is also a "public official" by virtue of his employment as a public high school teacher and coach. The United States Supreme Court stated in Rosenblatt, supra, 383 U.S. at 85, 86 S.Ct. at 675:

" * * * It is clear, therefore, that the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs."

Our interpretation of Rosenblatt leads us to conclude that the facts of the instant case are insufficient to qualify appellant as a public official for the purposes of defamation

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law. While appellees place great reliance on the case of Johnston v. Corinthian Television Corp. (Okla.1978), 583 P.2d 1101, where a grade school wrestling coach was held to be a public official, we find that a similar interpretation by...

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