O'Brien v. University Community Tenants Union, Inc., 74-400

• Decision Date: 07 May 1975
• Docket Number: No. 74-400,74-400
• Citation: 327 N.E.2d 753,42 Ohio St.2d 242,71 O.O.2d 223
• Parties: , 71 O.O.2d 223 O'BRIEN, Appellee, v. UNIVERSITY COMMUNITY TENANTS UNION, INC., Appellant.
• Court: Ohio Supreme Court

Page 242

42 Ohio St.2d 242

327 N.E.2d 753, 71 O.O.2d 223

O'BRIEN, Appellee, v. UNIVERSITY COMMUNITY TENANTS UNION, INC., Appellant.

No. 74-400.

Supreme Court of Ohio.

May 7, 1975.

Syllabus by the Court

In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ.R. 12(B)(6)), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. (Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, followed.)

On May 4, 1973, Charles William O'Brien filed a complaint against University Community Tenants Union, Inc., alleging, in pertinent part, that:

'5. Plaintiff says that the defendant, acting through its agents, has compiled a numerical list of at least ten landlords which list reflects those landlords about whom the defendant alleges it received the most complaints. Plaintiff says that said list is posted on a bulletin board and in plain view of the public and that said list has the effect of being a 'Blacklist.'

'6. Plaintiff further says that the defendant has files corresponding to each landlord on said list and that these files contain information which is false and defamatory as to the plaintiff and that such information is being disseminated to the public and prospective tenants in reckless disregard of plaintiff's rights.

'7. Plaintiff says that the defendant is misleading the public by not indicating to them that these complaints are merely unverified statements or phone complaints and may or may not be true.

'8. Plaintiff further says that defendant is advising prospective tenants not to enter into leases with the plaintiff based not only on information in these files but also because plaintiff has refused to enter into a contract with the defendant.

'9. Plaintiff says that the actions of the defendant are designed to coerce and intimidate the public into refusing to rent from the plaintiff and will result in irreparable injury to his business unless the defendant is enjoined from such actions.

'10. Plaintiff says that he had no adequate remedy at law.'

After the above recital, plaintiff asked for various forms of injunctive relief. ^*

The defendant, in its answer, stated that plaintiff's complaint 'should be dismissed because it fails to state a claim upon which relief can be granted.' Defendant later filed two motions to dismiss. Each was filed subsequent to the answer, and so contravened the Civ.R. 12(B) requirement that: '* * * A motion making any of these defenses shall be made before pleading if a further pleading is permitted. * * *' Thus, the only question before the trial court was whether the complaint stated a claim upon which relief could be granted.

The trial court determined the relief which plaintiff requested was injunctive relief 'for possible future defamatory statements.' That court dismissed the action because the plaintiff had not 'met the heavy burden of justifying prior restraint.'

The Court of Appeals reversed, holding that 'the plaintiff has stated a cause of action by alleging in essence that there will be future repetition of past defamatory statements made by defendant.'

The cause is now before this court pursuant to the allowance of appellant's motion to certify the record.

Charles W. O'Brien, in pro per.

Patchen, Murphy & Allison and Terrence J. Morse, Columbus, for appellant.

CELEBREZZE, Justice.

Appellant urges that appellee's prayer for injunctive relief was a request to the trial court to impose a prior restraint on appellant's First Amendment protected speech.

Appellee, on the other hand, urges that there is no prior restraint involved and that he only asked for restraint of repetition of 'speech' already determined by a court to be defamatory.

This cause comes before the court on a procedural question. The test for determining whether to dismiss a complaint for failure to state a claim is that:

'In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson (1957), 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80.

The Court of Appeals determined that if the trial court found statements made by appellant about appellee libelous or slanderous, then the question whether defendant should be enjoined from future repetition of the same statements could properly be before the court.

Although we agreed that there can be a set of facts which would entitle appellee to relief, and for that reason affirm, further comment is required to emphasize the narrow ground upon which this affirmance is based.

The United States Supreme Court, referring to freedom of speech, said:

'* * * Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom.' Palko v. connecticut (1937), 302 U.S. 319, 327, 58 S.Ct. 149, 152, 82 L.Ed. 288.

However, some narrow classes of speech are unprotected by the First Amendment, Cantwell v. Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. Once speech has judicially been found libelous, if all the requirements for injunctive relief are met, an injunction for restraint of continued publication of that same speech may be proper. The judicial determination that specific speech is defamatory must be made prior to any restraint. Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 149, 87 S.Ct. 1975, 18 L.Ed.2d 1094.

In an analogous area, dealing with obscene materials, the United States Supreme Court, in Southeastern Promotions v. Conrad (1975), -- U.S. --, 95 S.Ct. 1239, 43 L.Ed.2d 448, said:

'* * * The presumption against prior restraints is heavier-and the degree of protection broader-than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society...