Dupler v. Mansfield Journal Co., Inc., 80-196

CourtUnited States State Supreme Court of Ohio
Citation64 Ohio St.2d 116,18 O.O.3d 354,413 N.E.2d 1187
Docket NumberNo. 80-196,80-196
Parties, 18 O.O.3d 354, 6 Media L. Rep. 2362 DUPLER, Appellant, v. MANSFIELD JOURNAL CO., INC., Appellee.
Decision Date17 December 1980

Syllabus by the Court

1. In ruling upon defendant's motion for summary judgment in a libel action brought by a public official, the court shall consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff to determine whether a reasonable jury could find actual malice with convincing clarity.

2. In considering defendant's motion for summary judgment in a libel action brought by a public official, if the court finds that there is no genuine issue of material fact from which a reasonable jury could find actual malice with convincing clarity it must enter judgment for defendant.

This cause arose as a libel action by plaintiff-appellant, Jerry L. Dupler, against defendant-appellee, Mansfield Journal Co., Inc., on the basis of an editorial appearing in the April 9, 1975, edition of The Times-Reporter, a newspaper owned by the appellee and published in New Philadelphia, Ohio. The article, written by appellee's editor, Harry Yockey criticized the county prosecutor's decision not to prosecute Dupler for his alleged misconduct, as a private investigator, in recovering stolen property for a client. 1 At that time, appellant was a city councilman in Dover, Ohio, and a candidate for mayor of that community.

The record indicates that appellant notified Dover and New Philadelphia police on March 25, 1975, of his involvement in the case and his intent to recover a stolen stereo from a local apartment. Police declined to assist Dupler because they lacked a search warrant. Dupler and his client evidently received the consent of a man at the apartment to conduct a search, although it was never determined whether this individual actually was a resident of the premises. Dupler and his client recovered the stereo and other property which they turned over to police at the scene.

Articles appearing in the April 4 and April 8, 1975, editions of The Times-Reporter described the reactions of the New Philadelphia police chief and the local prosecutor's office to Dupler's unorthodox tactics in this matter, and the prosecutor's decision not to charge Dupler with violating state law in his method of intervention. Yockey's subsequent editorial criticized this decision not to prosecute. Appellant's defamation suit ensued.

Prior to trial, defendant filed a motion for summary judgment which was overruled. At trial, plaintiff presented evidence that defendant failed to comply with R.C. 2739.13 and 2739.14, in printing an editorial retraction submitted by plaintiff in August 1975. At the close of plaintiff's case-in-chief and at the close of all evidence, defendant moved for a directed verdict in his favor, on the basis that plaintiff had not met his burden of proving that the allegedly libelous comments were made with actual malice. Both such motions were effectively overruled. The jury returned a verdict for plaintiff in the amount of $149,000.

The Court of Appeals subsequently reversed and entered judgment for defendant. It found that the trial court erred in not granting defendant's motions for summary judgment and directed verdict, because there was no evidence presented that Yockey knew, at the time of publication, that his comments were false or, in fact, entertained serious doubts as to their truth. The appellate court also found that R.C. 2739.13 and 2739.14, the so-called "retraction statutes," were unconstitutional as infringing upon defendant's First Amendment rights.

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

Joseph I. Tripodi and James R. Barnhouse, New Philadelphia, for appellant.

Smith, Renner, Hanhart, Miller & Kyler, Richard M. Hanhart and William A. Kyler, New Philadelphia, for appellee.

SWEENEY, Justice.


It is uncontroverted that appellant, as a Dover city councilman and mayoral candidate, was a public official, so that the defamatory nature of the editorial criticism leveled against him is to be judged by the actual malice standard of New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. 2 This standard "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id., at pages 279-280, 84 S.Ct. at page 725.

This concept of actual malice has been further refined by subsequent decisions of the United States Supreme Court. Actual malice may not be inferred from evidence of personal spite ill-will or intention to injure on the part of the writer. Beckley Newspapers Corp. v. Hanks (1967), 389 U.S. 81, 82, 88 S.Ct. 197, 198, 19 L.Ed.2d 248; Rosenblatt v. Baer (1966), 383 U.S. 75, 84, 86 S.Ct. 669, 675, 15 L.Ed.2d 597. Rather, the focus of inquiry is on defendant's attitude toward the truth or falsity of the publication, Herbert v. Lando (1979), 441 U.S. 153, 160, 99 S.Ct. 1635, 1641, 60 L.Ed.2d 115, and a public official may recover only upon clear and convincing proof of actual malice. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789; New York Times, supra, at pages 285-286, 84 S.Ct. at page 728. There must be a showing that false statements were made with a "high degree of awareness of their probable falsity * * *." Garrison v. Louisiana (1964), 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125.

Since reckless disregard is not measured by lack of reasonable belief or of ordinary care, even evidence of negligence in failing to investigate the facts is insufficient to establish actual malice. Rather, since "erroneous statement is inevitable in free debate, and * * * must be protected if the freedoms of expression are to have the 'breathing space' that they 'need ... to survive,' * * * " (New York Times, supra, at pages 271-72, 84 S.Ct. at page 721), "(t)here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson (1968), 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262.


It is against this pervasive backdrop of First Amendment protection for published criticisms of public officials that we review the trial court's ruling on appellee's motion for summary judgment. In so doing, this court must, as did the court in New York Times, supra, at page 285, 84 S.Ct. at page 728, " 'make an independent examination of the whole record,' * * * so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression."

"Summary judgment shall be rendered * * * if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Civ.R. 56(C). The moving party carries the burden of proving that no genuine issue of fact exists, and all reasonable inferences shall be resolved in favor of the opposing party. Summary judgment is admittedly "a drastic device since its prophylactic function, when exercised, cuts off a party's right to present his case to the jury." Heyman v. Commerce and Industry Ins. Co. (C.A. 2, 1975), 524 F.2d 1317, 1320. However, courts have not hesitated to grant such a motion where "it is plain that the record has been fully developed by depositions and affidavits * * * and such record demonstrates that, construing all the facts and inferences to be drawn therefrom in favor of the party against whom the judgment is entered, he would not be entitled to have a jury verdict stand * * *." Time, Inc. v. McLaney (C.A. 5, 1969), 406 F.2d 565, 572. 3

Summary procedures are especially appropriate in the First Amendment area. "The threat of being put to the defense of a lawsuit brought by a popular public official may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself * * *. Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors. And to this extent debate on public issues and the conduct of public officials will become less uninhibited, less robust, and less wide-open, for self-censorship affecting the whole public is 'hardly less virulent for being privately administered.' " Washington Post Co. v. Keogh (C.A.D.C.1966), 365 F.2d 965, 968.

While summary judgment has been liberally utilized, at both federal and state levels, to dispose of libel actions having First Amendment implications, 4 it must be remembered that "(p)rinciples applicable to summary judgment motions generally, are applicable to such motions when made in a defamation action." Hotchner v. Castillo-Puche (S.D.N.Y.1975), 404 F.Supp. 1041, 1050. Thus, a trial court may not weigh the proof or choose among reasonable inferences. In ruling on such a motion, the court is limited to examining the evidence "taking all permissible inferences and resolving questions of credibility in plaintiff's favor to determine whether a reasonable jury acting reasonably could find actual malice with convincing clarity." Nader v. deToledano (D.C.App.1979), 408 A.2d 31, 50. (Emphasis sic.)


Applying the foregoing principle to the evidence before the trial court on appellee's motion for summary judgment, we find that the lower court erred in not granting the motion. The evidence presented primarily concerned the allegedly defamatory nature of the following paragraph of the April...

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