Perez v. Scripps-Howard Broadcasting Co.

• Citation: 520 N.E.2d 198,35 Ohio St.3d 215
• Decision Date: 09 March 1988
• Docket Number: SCRIPPS-HOWARD,No. 87-34,87-34
• Parties: , 15 Media L. Rep. 1318 PEREZ, Appellee, v.BROADCASTING COMPANY et al., Appellants.
• Court: United States State Supreme Court of Ohio

Page 215

35 Ohio St.3d 215

520 N.E.2d 198, 15 Media L. Rep. 1318

PEREZ, Appellee, v. SCRIPPS-HOWARD BROADCASTING COMPANY et al., Appellants.

No. 87-34.

Supreme Court of Ohio.

March 9, 1988.

Syllabus by the Court

1. The inquiry into actual malice in a public-official defamation case should focus on the publisher's attitude toward the truth rather than upon the publisher's attitude toward the plaintiff.

2. In a public-official defamation case, summary judgment is properly granted for the defendant where no genuine issue of fact exists on the question of whether the publication was made with a high degree of awareness of its falsity.

The appellee, Robert Perez, filed a libel action against appellant Scripps-Howard Broadcasting Company, which owns and operates television station WEWS, Channel 5 in Cleveland, Ohio, and appellant William Younkin, a reporter for the station. The complaint arose from a series of televised, investigative reports which plaintiff claimed represented that Perez, then a captain in the Stark County Sheriff's Department, seized illegal narcotics, resold them on the streets and solicited a drug dealer to sell drugs for him.

In the summer of 1980, a heated political campaign for the office of Stark County Sheriff pitted George Papadopulos, the incumbent, against Robert Berens, a deputy. Deputy Sheriff Sam Sainer, who was apparently campaigning for Berens, told Younkin that he could introduce him to people who might establish a link between the sheriff's department and the sale of illegal drugs. Sainer had been a reliable source of information in the past. A meeting was arranged between Younkin, Sainer and several individuals.

As a result of the meeting and other investigations, WEWS broadcast the following report on September 25, 1980, during the 11:00 p.m. edition of the news:

"MR. MAYNOR: For the past several days Bill Younkin has been putting together another puzzle, this one linking men behind the badges and their own illegal drug business. Tonight he is here for the startling finale of this series.

"MR. YOUNKIN: Ed Ferren used to deal heavily in drugs. But like many others I have talked with, he was never convicted of any drug law violations in Stark County.

"A couple of years ago he was in the Stark County Jail following a New Year's prank. During his stay in jail, he tells me Captain Robert Perez had him taken out of his cell and into Perez' office.

"MR. FERREN: He proposed that I, you know, sell drugs.

"MR. YOUNKIN: As an undercover agent?

"MR. FERREN: Never mentioned being undercover. He never mentioned nothing about being a cop. He just wanted me to do drugs. He just said, 'I want you to do the runs between here and Michigan.'

"MR. YOUNKIN: For him?

"MR. FERREN: That's what he was asking. He didn't ask me to do it for myself. I was already in custody.

"MR. YOUNKIN: He actually said 'the runs, make the runs'?

"MR. FERREN: He knew the same runs I did. He mentioned the same people I knew between Canton, Ohio and Michigan. And even was talking about between Canton and Columbus. He knew the same runs, he knows the same people. Only he might not know the exact same people but he knows the same connections.

"MR. YOUNKIN: And he actually said to you, 'I want you to make the runs'?

"MR. FERREN: Yeah. He told me, he said--he didn't talk about nothing about being a cop. He's just talking about doing drugs out on the streets.

"MR. YOUNKIN: And wheeling and dealing?

"MR. FERREN: Yes. He told me, he says, 'Set you up and you can wheel and deal,' he says, 'but you'd be working for me.'

"MR. YOUNKIN: Captain Robert Perez wouldn't even give me a chance to ask him about the Ferren charge. Captain Perez hung up.

"Assistant Prosecutor Sanders Mastel refused to answer my phone calls. The same can be said for Stark County Sheriff George Papadopulos who[m] I have been calling for the past two weeks and whose secretary told me she is sure her boss got the message.

"One top officer for the Stark County Metropolitan Narcotics Agency would neither confirm nor deny what you have heard the past couple of days, allegations that top Sheriff Deputies were involved in their own illegal drug deals. He paused and said, 'You must do what you have to do.'

"MR. HENRY: Bill, as is the case with all of your reports, this is raising still more questions.

"MR. YOUNKIN: Many more questions tonight.

"MR. HENRY: Thank you."

After the broadcast, Sheriff Papadopulos appointed five deputies to investigate Ferren's allegations. Subsequently, the sheriff's department issued a press release stating that the board of inquiry had cleared Perez and that the department considered the case closed. On October 17, 1980, WEWS reported the board's determination:

"MR. HENRY: Stark County Sheriff's Captain Robert Perez has been cleared, he has been cleared of charges made here that he asked a man to peddle drugs for him. At least that's what a board of inquiry says. Bill Younkin has the report.

"MR. YOUNKIN: In a prepared news release, Stark County Sheriff George Papadopulos has announced that his special board of inquiry, made up of his own deputies, can find no basis for the allegations raised in our probe of his department.

"Ed Ferren, an admitted former drug dealer, said one of Sheriff Papadopulos' top officers was involved in his own drug deals. Ferren told me he was in the Stark County Jail when Captain Robert Perez offered him a deal to make the drug runs for him, Captain Perez.

"According to the Sheriff's news release, the five member panel could find no one who could name Perez, even though they did talk with Ed Ferren. I talked with Ferren by phone this afternoon, he told me he never changed his story at all.

"MR. FERREN: I'm just telling you, man, I stand by what I said.

"MR. YOUNKIN: The Sheriff questioned my source's credibility and he says he considers the case closed.

"I'm Bill Younkin, TV-5 Eyewitness News."

After extensive discovery, appellants filed a motion for summary judgment, supporting the motion with an affidavit by Younkin which detailed his investigation of Ferren and of Ferren's charges. Younkin described his futile efforts to contact Perez and other departmental officers for a response to Ferren's statements. Younkin professed his belief in Ferren's credibility and claimed that the charges concerning Perez were fairly and accurately reported.

Perez countered by affidavit, stating that as a member of a special unit to eliminate drug trafficking in Stark County, he had talked to Ed Ferren about drug sources in Columbus and Michigan. Perez decided that Ferren could not be helpful as an informant and the discussion between the two was not followed by further action. Perez did not deny the specific statements made by Ferren on the WEWS broadcast. Instead, Perez attached Ferren's deposition to his affidavit, saying: "a casual examination of this deposition shows it [the interview] was not only done with reckless disregard but with actual malice."

In the deposition, Ferren said he talked to Perez three times. During the first two meetings, Perez asked Ferren to work as an undercover agent. However, at the third meeting, Perez did not mention working undercover. Ferren told Younkin about the earlier solicitations to work as an undercover agent. That part of his story was omitted from the broadcasts. Nor were all portions of the taped interview put on the air. In addition, Younkin rehearsed Ferren two or three times before taping, asked him to re-phrase some statements, told him to make his charges stronger, and offered to pay his fees in the event legal problems arose from the broadcast.

The trial court granted summary judgment, holding that Perez was a public official and that a jury, acting reasonably, could not find actual malice with convincing clarity.

The court of appeals reversed and remanded, finding a genuine dispute as to five material facts:

"1. Did the entirety of the Perez-Ferren conversations as told to Younkin by Ferren show nothing more than Perez attempting to recruit Ferren to work 'undercover' as a law enforcement agent?

"2. Did Younkin believe that if he told the whole story, there would be 'no news'?

"3. Did Younkin, in his broadcast, take away the context and surrounding circumstances from the third Perez-Ferren interview intending thereby to alter the meaning of the spoken words from innocence to guilt?

"4. Did Younkin conceal the Sainer-Berens part of the story because he believed it would show a motive to falsify, thus impairing the credibility of his report?

"5. Did Younkin intend unjustifiably to injure the reputation of Perez so as to destroy Sheriff Papadopulous [sic ] and elect Robert Berens Sheriff?"

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

Harry W. Schmuck and James P. Adlon, Canton, for appellee.

Baker & Hostetler, Louis A. Colombo and Charles E. Jarrett, Cleveland, for appellants.

HERBERT R. BROWN, Justice.

This case calls upon us to decide whether summary judgment was properly entered against the plaintiff in a public-official defamation case. For the reasons which follow, we find that it was.

I

The law of defamation has been given much attention by the federal courts and by this court. Rather than repetitiously plough old ground, we think it sufficient to sketch the law which serves as the foundation on which this case must be decided.

New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279-280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, "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." The proof of actual malice must be clear and convincing. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789. In making that...