Vail v. The Plain Dealer Publishing Co.

• Decision Date: 31 May 1995
• Docket Number: No. 93-1959,93-1959
• Citation: 72 Ohio St.3d 279,649 N.E.2d 182
• Parties: , 23 Media L. Rep. 1881 VAIL, Appellee, v. THE PLAIN DEALER PUBLISHING COMPANY et al., Appellants.
• Court: Ohio Supreme Court

Page 279

72 Ohio St.3d 279

649 N.E.2d 182, 23 Media L. Rep. 1881

VAIL, Appellee, v. THE PLAIN DEALER PUBLISHING COMPANY et al., Appellants.

No. 93-1959.

Supreme Court of Ohio.

Submitted Jan. 11, 1995.

Decided May 31, 1995.

Appellee, Loren Loving Vail, instituted her action after appellant The Plain Dealer Publishing Company ("Plain Dealer") published a column authored by appellant Joe Dirck, concerning Vail's 1990 campaign for the Ohio Senate. Vail's complaint advanced causes of action sounding in defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. Attached to and incorporated by reference in her complaint were a copy of the Dirck column and a copy of a press release issued by Vail's campaign office that allegedly prompted the column.

The article appeared in the Forum section of the October 19, 1990 edition of The Plain Dealer. Immediately preceding the article, at the top of the column, appeared a picture of Dirck bearing his name and the caption "Commentary." In the article, entitled "Gay-basher takes refuge in the closet," Dirck stated: "Loren Loving Vail doesn't like gay people" and that she " * * * has added gay-bashing to the repertoire of right-wing, neo-numbskull tactics she is employing * * * in her increasingly distasteful campaign against Democrat Eric Fingerhut." Dirck characterized Vail's comments concerning a speech given by Dagmar Celeste as an "anti-homosexual diatribe," and claimed that "Vail wouldn't be the first candidate to latch onto homophobia as a ticket to Columbus." Finally, Dirck ended his column by writing, "[h]aving learned long ago never to underestimate the neo-numbskull vote, I won't hazard a guess on whether her hate-mongering will work. But although I personally don't have much use for bigots of any sort I have a particular problem with those who can't even be up front about it. Honesty, it would appear, is one value on which Vail is not so 'pro.' "

Upon motion of Dirck and The Plain Dealer, the trial court dismissed the action for failure to state a claim. The court of appeals reversed, holding that the terms "gay-basher," "neo-numbskull," "bigot," "hate-mongering," and the inference of dishonesty cited in Vail's complaint were not actionable, but that Dirck's description of Vail as "dislik[ing] homosexuals," of "engag[ing] in an 'anti-homosexual diatribe,' " and of "foster[ing] homophobia" in an attempt to be elected did state actionable claims of defamation and intentional infliction of emotional distress. The court of appeals reasoned that because the statements were capable of being proven false, Vail had asserted a valid cause of action.

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

Baker & Hostetler, David L. Marburger and Beth A. Brandon, Cleveland, for appellants.

MOYER, Chief Justice.

Our standard of review when presented with a motion to dismiss predicated on Civ.R. 12(B)(6) is well established. The factual allegations of the complaint and items properly incorporated therein must be accepted as true. Furthermore, the plaintiff must be afforded all reasonable inferences possibly derived therefrom. Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756. It must appear beyond doubt that plaintiff can prove no set of facts entitling her to relief. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. However, the determination of whether allegedly defamatory language is opinion or fact is a question of law to be decided by the court. Scott v. News-Herald (1986), 25 Ohio St.3d 243, 250, 25 OBR 302, 308, 496 N.E.2d 699, 705.

The issue in this case is whether the trial court properly dismissed Vail's complaint because the averred defamatory statements are constitutionally protected as opinion. The resolution of this question requires us to revisit our decision in Scott v. News-Herald, supra.

Section 11, Article I of the Ohio Constitution provides in relevant part: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press." In Scott we stated in effect that expressions of opinion are generally protected under Section 11, Article I of the Ohio Constitution as a valid exercise of freedom of the press. Scott v. News-Herald, supra, at 244-245, 25 OBR at 303-304, 496 N.E.2d at 701-702. We held as constitutionally protected opinion a columnist's inference that a school superintendent was less than truthful. Superintendent Scott was involved in the events that led to the imposition of sanctions against the school's wrestling team. The News-Herald columnist insinuated that Scott lied at a subsequent hearing convened to determine whether the school was afforded due process prior to the suspension. Notwithstanding dicta stating the article was protected opinion under the First Amendment to the United States Constitution, our holding was premised on Section 11, Article I of the Ohio Constitution. Scott, supra, at 244, 25 OBR at 303, 496 N.E.2d at 701.

Subsequent to our announcement in Scott, the United States Supreme Court decided the related case of Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1. Milkovich, the wrestling team coach, was also involved in the due process hearing that generated the Scott case, supra. The column at issue in Scott also addressed Milkovich's alleged untruthfulness. The Supreme Court held that "opinion" is afforded no additional protection under the United States Constitution, id. at 21, 110 S.Ct. at 2707, 111 L.Ed.2d at 19, and that 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, strikes the proper balance between freedom of the press and the protection of one's reputation as applied to public officials and public figures, id. at 14-17, 110 S.Ct. at 2703-2705, 111 L.Ed.2d at 14-17. The Milkovich court determined that the language was actionable because a reasonable fact-finder could conclude that an implication of perjury was made in the column. Id. at 21, 110 S.Ct. at 2707, 111 L.Ed.2d at 19. The court also held that perjury was a factual allegation that could be proven to be true or untrue. Id. Citing Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783, the court reasoned that a statement on matters of public concern must be provable as false before there can be liability under the law of defamation. Id. at 16, 110 S.Ct. at 2704, 111 L.Ed.2d at 16. As such, the United States Supreme Court reached a different conclusion from an application of the First Amendment to the United States Constitution than we had reached in Scott applying the Ohio Constitution.

Regardless of the outcome in Milkovich, the law in this state is that embodied in Scott. The Ohio Constitution provides a separate and independent guarantee of protection for opinion ancillary to freedom of the press. However, we do not perceive this distinction to be as great as it may appear. As Justice Brennan observed in his dissent to Milkovich, the factors used to determine whether a statement implies actual facts "are the same indicia that lower courts have been relying on * * * to distinguish between statements of fact and statements of opinion: the type of language used, the meaning of the statement in context, whether the statement is verifiable, and the broader social circumstances in which the statement was made." Id. at 24, 110 S.Ct. at 2709, 111 L.Ed.2d at 21. While it may be considered a distinction without a difference, it does alter the method of analysis. The focus shifts to whether the language under question is to be categorized as fact or opinion.

In Scott we adopted a totality of the circumstances test to be used when determining whether a statement is fact or opinion. Specifically, the court should consider: the specific language used, whether the statement is verifiable, the general context of the statement, and finally, the broader context in which the statement appeared. Scott, supra, at 250, 25 OBR at 308, 496 N.E.2d at 706. This analysis is not a bright-line test, but does establish parameters within which each statement or utterance may stand on its own merits rather than be subjected to a mechanistic standard. As Justice Locher, writing for the court, cautioned in Scott, "the totality of the circumstances test * * * can only be used as a compass to show general direction and not a map to set rigid boundaries." Id.

Furthermore, the standard must be fluid. Every case will present facts that must be analyzed in the context of the general test. Each of the four factors should be addressed, but the weight given to any one will conceivably vary depending on the circumstances presented.

We begin by analyzing the context in which Dirck's statements appear. There can be no question that the general context in which the columnist's statements were made is opinion. The column appears on the Forum page of the newspaper, and is titled "Commentary." The words "forum" and "commentary" convey a message that the reader of columns so designated will be exposed to the personal opinions of the writer. Such a column is distinguished from a news story which should contain only statements of fact or quotes of others, but not the opinion of the writer of the story. Furthermore, the Dirck column appeared in the midst of a political campaign, which provided the subject for the column.

Assuming the general context of the Dirck column is opinion, that conclusion does not dispose of the legal issue. Second, we must consider the full context of the statements. Is the column characterized as statements of objective facts or subjective hyperbole? The general tenor of the column is sarcastic, more...