Varanese v. Gall

• Decision Date: 03 February 1988
• Docket Number: No. 87-636,87-636
• Citation: 35 Ohio St.3d 78,518 N.E.2d 1177
• Parties: , 14 Media L. Rep. 2361 VARANESE, Appellee, v. GALL et al.; Lake-Geauga Printing Company, d.b.a. Geauga Times Leader, Appellant, et al.
• Court: Ohio Supreme Court

Page 78

35 Ohio St.3d 78

518 N.E.2d 1177, 14 Media L. Rep. 2361

VARANESE, Appellee, v. GALL et al.; Lake-Geauga Printing Company, d.b.a. Geauga Times Leader, Appellant, et al.

No. 87-636.

Supreme Court of Ohio.

Feb. 3, 1988.

Syllabus by the Court

1. The concept of actual malice in defamation cases involving public officials is separate and distinct from the traditionally defined common-law standard of malice or actual malice. Actual malice in the context of defamation may not be inferred from evidence of personal spite, ill will, or deliberate intention to injure, as the defendant's motives for publishing are irrelevant. A defamation plaintiff who is required to show actual malice must demonstrate, with convincing clarity, that the defendant published the defamatory statement either with actual knowledge that the statement was false, or with a high degree of awareness of its probable falsity.

2. In defamation cases, a newspaper's liability for failure to check the accuracy of advertisements, including political advertisements, is limited to those cases where the defendant actually knew the ad was false before publication, or where the ad is so inherently improbable on its face that the defendant must have realized the ad was probably false.

On October 21, 1983, plaintiff-appellee, Barbara Varanese, brought this action against defendant-appellant, Lake-Geauga Printing Company, d.b.a. Geauga Times Leader and Maple Leaf Shopper, and others, alleging that she had been defamed by a paid political advertisement appearing in appellant's publications, the Geauga Times Leader and the Maple Leaf Shopper. The advertisement was submitted for publication by the Committee to Elect Tony Gall, who was running against appellee for the position of Geauga County Commissioner. At the time the ad was published, appellee was Geauga County Treasurer. The ad ¹ charged appellee with various acts of misfeasance and nonfeasance in office, and characterized her as advocating the elimination of various services, including those supporting veterans, the aged, and conservation, as well as the termination of support for 4-H programs. The ad provided footnotes to the allegations, several of which cited the Geauga Times Leader as a source thereof. Appellee lost the election.

Appellant filed a motion for summary judgment, asserting that as a public official, appellee is required to show that appellant acted with actual malice, and that appellee can produce no evidence sufficient to demonstrate such actual malice with convincing clarity. Appellee responded with evidence which she alleged showed actual malice on the part of appellant. The trial court granted appellant's motion and entered final judgment in favor of appellant.

The court of appeals reversed this judgment in part, holding that " * * * the record contains evidence from which a jury could determine with convincing clarity that Lake-Geauga Printing Co. published the advertisement with actual malice, that is, with a high degree of awareness of its probable falsity."

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

Don C. Iler Co., L.P.A., and Don C. Iler, Cleveland, for appellee.

Gallagher, Sharp, Fulton & Norman, Forrest A. Norman and James M. Speros, Cleveland, for appellant.

DOUGLAS, Justice.

The instant appeal poses a single question: Did appellee present evidence sufficient to withstand appellant's motion for summary judgment on the issue of actual malice? For the following reasons, we hold that she did not.

The parties to this appeal do not dispute appellee's status as a public official. As such, appellee bears the burden of proving, with convincing clarity, that appellant published the advertisement at issue with actual malice. New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Bukky v. Printing Co. (1981), 68 Ohio St.2d 45, 22 O.O.3d 183, 428 N.E.2d 405, syllabus. Our initial inquiry, therefore, must focus on what constitutes actual malice in defamation cases.

We note at the outset that the concept of actual malice in public-official defamation cases involving media defendants should not be confused with the traditional common-law standard of actual malice. In the common law, actual malice connotes ill will, hatred, a spirit of revenge, or a conscious disregard for the rights and safety of other persons which has a great probability of causing substantial harm. Preston v. Murty (1987), 32 Ohio St.3d 334, 512 N.E.2d 1174, syllabus. These elements are constitutionally insufficient to prove actual malice in the context of a public-official defamation case under New York Times Co. v. Sullivan, supra. Cantrell v. Forest City Pub. Co. (1974), 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419. Evidence of hatred, spite, vengefulness, or deliberate intention to harm can never, standing alone, warrant a verdict for the plaintiff in such cases. Dupler v. Mansfield Journal Co. (1980), 64 Ohio St.2d 116, 119, 18 O.O.3d 354, 356, 413 N.E.2d 1187, 1190. This is because the focus of inquiry is not on the defendant's attitude toward the plaintiff, but rather on the defendant's attitude toward the truth or falsity of the statement alleged to be defamatory. Id. at 119, 18 O.O.3d at 356, 413 N.E.2d at 1190-1191; Grau v. Kleinschmidt (1987), 31 Ohio St.3d 84, 89, 31 OBR 250, 254, 509 N.E.2d 399, 403. A defendant who was motivated to publish by the blackest spirit of hatred and spite will not be liable if he subjectively believed in the truth of the statement. See Smolla, Law of Defamation (1986) 3-38, Section 3.15.

Actual malice in defamation cases may be demonstrated only by evidence that the defendant published the statement at issue "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, supra, 376 U.S. at 279-280, 84 S.Ct. at 726. Such reckless disregard may be established by clear and convincing evidence that the defendant proceeded to publication despite a "high degree of awareness of * * * probable falsity," Garrison v. Louisiana (1964), 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, or 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. The United States Supreme Court has emphasized that "reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." St. Amant, supra, at 731, 88 S.Ct. at 1325. The plaintiff must prove the defendant's actual knowledge or reckless disregard for the truth with convincing clarity in order to warrant submission of the cause to the jury. Grau, supra, 31 Ohio St.3d at 89, 31 OBR at 254, 509 N.E.2d at 403. Finally, actual malice is to be measured as of the time of publication. Dupler, supra, 64 Ohio St.2d at 124, 18 O.O.3d at 359, 413 N.E.2d at 1193.

We hold, therefore, that the concept of actual malice in defamation cases involving public officials is separate and distinct from the traditionally defined common-law standard of malice or actual malice. Actual malice in the context of defamation may not be inferred from evidence of personal spite, ill will, or deliberate intention to injure, as the defendant's motives for publishing are irrelevant. A defamation plaintiff who is required to show actual malice must demonstrate, with convincing clarity, that the defendant published the defamatory statement either with actual knowledge that the statement was false, or with a high degree of awareness of its probable falsity.

In reviewing the instant cause, this court is mindful of its responsibility to conduct an independent examination of the record to ensure against forbidden intrusions into constitutionally protected expression. Bose Corp. v. Consumers Union of U.S., Inc. (1984), 466 U.S. 485, 508, 104 S.Ct. 1949, 1963, 80 L.Ed.2d 502, rehearing denied (1984), 467 U.S. 1267, 104 S.Ct. 3561, 82 L.Ed.2d 863. We are also aware of the fact that the judgment before us is the trial court's granting of appellant's motion for summary judgment. This court has observed that "[s]ummary procedures are especially appropriate in the First Amendment area" due to the potential chilling effect which the threat of a lawsuit may have on the exercise of First Amendment rights. Dupler, supra, 64 Ohio St.2d at 120, 18 O.O.3d at 357, 413 N.E.2d at 1191. It is for this reason that the plaintiff's burden of establishing actual malice must be sustained with convincing clarity even when the plaintiff's case is being tested by a defendant's motion for summary judgment. Dupler, supra, at paragraphs one and two of the syllabus; Bukky, supra, at syllabus. The United States Supreme Court has recently held that "a court ruling on a motion for summary judgment must be guided by the New York Times 'clear and convincing' evidentiary standard in determining whether a genuine issue of actual malice exists--that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity." Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 257, 106 S.Ct. 2505, 2515, 91 L.Ed.2d 202, 217. It should be remembered, however, that for purposes of ruling on a defendant's summary judgment motion in this context, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.

With all these principles in mind, we turn now to a consideration of whether appellee sustained her burden of demonstrating actual malice with convincing clarity....