Lansdowne v. Beacon Journal Publishing Co. ( 1987 )

Locher, J.

This appeal once again presents this court with the general problem of reconciling the law of defamation with the freedoms guaranteed under the First Amendment to the United States Constitution and Section 11, Article I of the Ohio Constitution.

In reaching its decision, the court of appeals relied upon the standard of liability for defamation actions brought by private-figure plaintiffs as enunciated by this court in Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co. (1984), 9 Ohio St. 3d 22, 9 OBR 115, 457 N.E. 2d 1164. The Embers court held that the standard of review for defamation actions involving private individuals and the media was an ordinary negligence standard which must be proven by a preponderance of the evidence. However, subsequent to the Embers holding, significant developments occurred in the area of defamation law pursuant to both the federal and Ohio Constitutions. As a result of these developments and the propositions of law espoused by the appellants, we now reexamine the holding of the Embers court.

Any analysis of Embers or any other defamation action brought by a private individual must begin with the decision of the United States Supreme Court in Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323. In Gertz, the court held: “* * * [S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347. Following the direction of the Supreme Court, the Embers court stated: “This court has not enunciated a standard of review for defamation actions involving private individuals and the media. A majority of other jurisdictions when faced with this responsibility have set an ordinary negligence standard which must be shown by a preponderance of the evidence. * * *

“We are persuaded that the negligence standard of review is appropriate in this area. In cases involving defamation of private persons, where a prima facie showing of defamation is made by the plaintiff, the question which a jury must determine by a preponderance of evidence is whether the defendant acted reasonably in attempting -to discover the truth or falsity or defamatory character of the publication.” Id. at 24-25.

Subsequent to the Embers decision, both this court and the United States Supreme Court have “ ‘struggled] ... to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment.’ ” Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. _, 89 L. Ed. 2d 783, 787. This court has recently reinforced the view that the First Amendment grants a unique protection to the press from the “chilling effect” of defamation litigation with its decisions in Scott v. News-Herald (1986), 25 Ohio St. 3d 243, 25 OBR 302, 496 N.E. 2d 699, and Grau v. Kleinschmidt (1987), 31 Ohio St. 3d 84, 31 OBR 250, 509 N.E. 2d 399. In Scott, we also recognized that First Amendment freedoms under the federal Constitution are independently reinforced in Section 11, Article I of the Ohio Constitution, which states in pertinent 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. * * *”

While the Scott court was determining whether a published statement was constitutionally protected opinion with regard to a public-figure plaintiff, the United States Supreme Court was establishing a heightened burden of proof for private-figure plaintiffs in defamation actions. In Hepps, supra, the plaintiffs brought a libel action against a Philadelphia newspaper based on a series of articles claiming that the plaintiffs had links to organized crime. The court held that “* * * the common law’s rule on falsity — that the defendant must bear the burden of proving truth — must * * * fall here to a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.” Id. at 793.

In the case sub judice, appellants invite this court to abandon the ordinary negligence standard of fault and overrule Embers in its entirety. Appellants urge the adoption of a professional negligence standard as provided by the Restatement of the Law 2d, Torts (1977) 227, Section 580(B), Comment g.⁴ Adoption of the professional negligence standard would “* * * make clear that negligence in this context means a departure from standards which exist or ought to exist as standards of professional conduct in the news media industry.” Seegmiller v. KSL, Inc. (Utah 1981), 626 P.2d 968, 9761 In the alternative, appellants suggest that we adopt the gross irresponsibility standard established in Chapadeau v. Utica Observer-Dispatch, Inc. (1975), 38 N.Y. 2d 196, 379 N.Y. Supp. 2d 61, 341 N.E. 2d 569. In Chapadeau, the New York Court of Appeals held: “* * * [W]here the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition,” id. at 199, 379 N.Y. Supp. 2d at 64, 341 N.E. 2d at 571, a private-figure plaintiff can recover if it is established “by a preponderance of the evidence that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” Id.

We decline to adopt either approach. “* * * When the speech is of public concern but the plaintiff is a private figure, * * * the Constitution still supplants the standards of the common law, but the Constitutional requirements are, in at least some of their range, less forbidding than when the plaintiff is a public figure and the speech is of public concern.” Hepps, supra, at 792. Additionally, we heed the language of Section 11, Article I of the Ohio Constitution, which specifically states: “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; * * (Emphasis added.) Moreover, in balancing the state’s interest in compensating private figures for injury to their reputation against the constitutional interest of free speech, we are mindful that “the individual’s right to the protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.’ ” Gertz, supra, at 341, quoting from Rosenblatt v. Baer (1966), 383 U.S. 75, 92 (concurring opinion). With these principles in mind, we refuse to abandon the ordinary negligence standard. However, in light of our recent decisions, the Supreme Court’s holding in Hepps and the facts presented by the instant action, we find that the standard of proof required should be heightened from the “preponderance of evidence” standard established in Embers.

In the case at bar, appellee has testified that he never violated any racing rules or regulations and that the rules cited in the article do not apply to him specifically. Additionally, appellee has maintained that appellant Phipps “made up” the rule concerning “betting at the window.” Thus, appellee has claimed that any such article stating that he broke any racing rules or regulations is false. In his complaint, appellee stated that “* * * [t]he falsity of the * * * article would have been disclosed to defendants had defendants made any proper or reasonable inquiry concerning the facts published.” At trial, appellants argued that while Phipps may have made his own interpretation of the racing rules, it was based upon his discussions with William Snyder, an attorney who was then the track’s managing general partner, and with two former state racing officials. The only evidence introduced by appellee with regard to the rules and regulations was his own testimony reflecting his personal interpretation of the rules. The trial court agreed -with appellants’ counsel that appellee had “a weak case.” A review of the record in this case not only raises questions as to whether appellee met his burden under Hepps, but further emphasizes the glaring deficiencies of a “preponderance of evidence” standard in establishing the liability of a publisher.

We find that the quantum of proof required should be more than a preponderance of the evidence. “ ‘In the normal civil suit where [the preponderance of the evidence] standard is employed, “we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor.” * * * In libel cases, however, we view an erroneous verdict for the plaintiff as most serious.’ ” Gertz, supra, at 366 (dissenting opinion), quoting from Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29, 50.

Thus, in our attempt to achieve the proper balance between the protection to private persons from injuries to reputation and to provide adequate “breathing space” for freedom of the press and freedom of speech, we modify the Embers standard and hold that in private-figure defamation actions, where a prima facie showing of defamation is made by a plaintiff, the plaintiff must prove by clear and convincing evidence that the defendant failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication. “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford (1954), 161 Ohio St. 469, 53 O.O. 361, 120 N.E. 2d 118, paragraph three of the syllabus. “* * * In a case presenting a configuration of speech and plaintiff like the one we face here, and where the scales are in such an uncertain balance, we believe that the Constitution requires us to tip them in favor of protecting true speech.” Hepps, supra, at 793.

As a subsidiary issue, appellants contend that a heightened standard is required for proof of actual harm inflicted by defamatory falsehood. We do not find a great constitutional basis for this argument. Moreover, in Gertz, supra, the court stated at 350: “* * * Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.” (Emphasis added.) Thus, we do not believe that a heightened standard is required for proof of actual harm inflicted by defamatory falsehood.

Finally, appellants raise an issue concerning the scope of appellate review in private-figure cases. Appellants rely upon Bose Corp. v. Consumers Union of U.S., Inc. (1984), 466 U.S. 485, to assert that, in a case raising First Amendment issues, an appellate court must make an independent examination of the entire record in order to insure that the judgment of the trial court does not constitute a forbidden intrusion on the exercise of free expression. Indeed, this standard of review has traditionally been applied in cases where the trier of fact was required to make a finding of “actual malice.” St. Amant v. Thompson (1968), 390 U.S. 737, 732-733; New York Times Co. v. Sullivan (1964), 376 U.S. 254, 284-286. See, also, Grau, supra, at 89, 31 OBR at 254, 509 N.E. 2d at 404. In Bose, supra, the court held at 510: “The requirement of independent appellate review reiterated in New York Times Co. v. Sullivan is a rule of federal constitutional law.”

However, in cases such as the one at bar, where actual malice need not be proven, we decline to embrace the independent review requirement. “* * * The negligence standard for compensatory damages that we have adopted is not a matter of governing federal constitutional law; rather, within the parameters authorized by Gertz, we have fixed the standard as a matter of state law. Accordingly, Bose, as well as the federal decisions on which it is based, is not controlling on this issue.” Gazette, Inc. v. Harris (1985), 229 Va. 1, 20, 325 S.E. 2d 713, 728, certiorari denied (1985), 472 U.S. 1032. Therefore, we will continue to adhere to our traditional standard of review in defamation actions involving private-figure plaintiffs.

Accordingly, based upon all the foregoing, we reverse the judgment of the court of appeals and remand this cause to the court of common pleas for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

Moyer, C.J., and Wright, J., concur. Douglas, J., concurs in judgment only. Sweeney, Holmes and H. Brown, JJ., dissent.

4 Comment g provides in part:

“* * * Putting the question in terms of conduct is to ask whether the defendant acted reasonably in checking on the truth or falsity or defamatory character of the communication before publishing it.

“The defendant, if a professional disseminator of news, such as a newspaper, a magazine or broadcasting station, or an employee, such as a reporter, is held to the skill and experience normally possessed by members of that profession. * * * Customs and practices within the profession are relevant in applying the negligence standard, which is, to a substantial degree, set by the profession itself, though a custom is not controlling. * * *

“Evidence of custom within the profession of news dissemination would normally come from an expert who has been shown to be qualified on the subject. It may be testimony that the course of conduct followed by the defendant was or was not in accordance with recognized professional practices. * * * In the absence of expert testimony, however, the court should be cautious in permitting the doctrine of res ipsa loquitur to take the case to the jury and permit the jury, on the basis of its own lay inferences, to decide that the defendant must have been negligent because it published a false and defamatory communication. This could produce a form of strict liability de facto and thus circumvent the constitutional requirement of fault.”