Murray v. Chagrin Valley Publishing Co. ( 2014 )

[Cite as Murray v. Chagrin Valley Publishing Co., 2014-Ohio-5442.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101394
ROBERT E. MURRAY, ET AL.
PLAINTIFFS-APPELLANTS
vs.
CHAGRIN VALLEY PUBLISHING
COMPANY, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-811106
BEFORE: Celebrezze, P.J., S. Gallagher, J., and Kilbane, J.
RELEASED AND JOURNALIZED: December 11, 2014
ATTORNEYS FOR APPELLANTS
Mark Stemm
L. Bradfield Hughes
Porter, Wright, Morris & Arthur, L.L.P.
41 South High Street
Suite 3200
Columbus, Ohio 43215-6194
Tracy S. Francis
J. Philip Calabrese
Porter, Wright, Morris & Arthur, L.L.P.
925 Euclid Avenue
Suite 1700
Cleveland, Ohio 44115
Kevin Anderson
Fabian & Clendenin, P.C.
215 South State Street
Suite 1200
Salt Lake City, Utah 84111-2323
Gary Broadbent
Michael McKown
46226 National Road
St. Clairsville, Ohio 43950
ATTORNEYS FOR APPELLEES
For Chagrin Valley Publishing Co.
J. Michael Murray
Lorraine R. Baumgardner
Berkman, Gordon Murray & Devan
55 Public Square
2200 The Illuminating Building
Cleveland, Ohio 44113
For Patriots for Change
Molly Gwin
Samuel M. Pipino
Isaac, Wiles, Burkholder & Teetor, L.L.C.
2 Miranova Place, Suite 700
Columbus, Ohio 43215
FRANK D. CELEBREZZE, JR., P.J.:
{¶1} Appellants, Robert E. Murray, Murray Energy Corp. (“Murray Energy”), American
Energy Corp., and the Ohio Valley Coal Co., appeal from the grant of summary judgment in
favor of appellees, Patriots for Change,1 Chagrin Valley Publishing Co., H. Kenneth Douthit III,
Todd Nighswonger, David C. Lange, Douthit Communications, Inc., Sali A. McSherry, and Ron
Hill (referred collectively, excluding Patriots for Change, as the “Chagrin Valley Defendants”)
disposing of appellants’ defamation and false light claims. Appellants argue the trial court erred
in granting summary judgment because there are material questions of fact regarding whether the
statements made in print and online publications are actionable. After a thorough review of the
record and law, we affirm the decision of the trial court.
I. Factual and Procedural History
{¶2} On December 17, 2012, in front of the headquarters of Murray Energy in Pepper
Pike, Ohio, Patriots for Change held an organized protest decrying the firing of 156 employees of
various companies owned by Robert Murray the day after the presidential election. Protesters
alleged that Murray fired these individuals as a political stunt. Sali A. McSherry, a reporter for
the Chagrin Valley Times, interviewed protestors and sought comments from Murray and Murray
Energy. She was able to contact Gary Broadbent, an employee of Murray Energy. He provided
her with a statement from Murray Energy as well as statements from Robert Murray. An article
appeared in the newspaper on December 20, 2012, reporting on the protest and the response from
Murray and Murray Energy. On January 3, 2013, an editorial written by Editor Emeritus David
This organization was incorporated at some point in the past, but had its articles of
1
incorporation cancelled. It has since been reinstated, according to its answer.
Lange appeared in the Chagrin Valley Times. It was critical of Murray and other appellants.
The commentary was published in conjunction with a cartoon unfavorably depicting Murray that
was penned by Ron Hill.
{¶3} Appellants filed a complaint sounding in defamation and invasion of privacy (false
light) in the common pleas court of Belmont County, Ohio, on January 11, 2013. An amended
complaint was filed on March 21, 2013, in response to a motion for a change in venue filed by
appellees. On June 17, 2013, the Belmont County court issued a lengthy and well reasoned
journal entry granting appellees’ motion and transferring the case to Cuyahoga County.
{¶4} The lower court received the transferred case on July 23, 2013. Appellees filed
answers, and discovery was conducted. Numerous discovery disputes arose regarding
depositions and document requests directed toward Murray and other plaintiffs. Eventually all
depositions were completed and transcripts were filed with the court. On March 20, 2014,
Patriots for Change filed its motion for summary judgment. The next day, the remaining
appellees filed their own motion for summary judgment with several appendices. On March 24,
2014, Patriots for Change filed a supplemental memorandum. On April 23, 2014, appellants
filed their first opposition to summary judgment, also attaching significant appendices. On
April 28, 2014, appellants filed a combined brief in opposition to Patriots for Change’s motion.
A reply brief was filed by the Chagrin Valley Defendants on May 5, 2014. On May 9, 2014, the
trial court granted appellees’ motions. Appellants then timely filed the instant appeal.
II. Law and Analysis
A. Standard of Review
{¶5} The trial court granted summary judgment on behalf of appellees.
Civ.R. 56(C) specifically provides that before summary judgment may be granted,
it must be determined that: (1) No genuine issue as to any material fact remains to
be litigated; (2) the moving party is entitled to judgment as a matter of law; and
(3) it appears from the evidence that reasonable minds can come to but one
conclusion, and viewing such evidence most strongly in favor of the party against
whom the motion for summary judgment is made, that conclusion is adverse to
that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).
{¶6} It is well established that the party seeking summary judgment bears the burden of
demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett, 477 U.S.
317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mitseff v. Wheeler, 38 Ohio St.3d 112, 115,
526 N.E.2d 798 (1988). In Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996), the
Ohio Supreme Court modified and/or clarified the summary judgment standard as applied in
Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). Under
Dresher, “the moving party bears the initial responsibility of informing the trial court of the basis
for the motion, and identifying those portions of the record which demonstrate the absence of a
genuine issue of fact on a material element of the nonmoving party’s claim.” (Emphasis sic.)
Id. at 296. The nonmoving party has a reciprocal burden of specificity and cannot rest on mere
allegations or denials in the pleadings. Id. at 293. The nonmoving party must set forth
“specific facts” by the means listed in Civ.R. 56(C) showing a genuine issue for trial exists. Id.
{¶7} This court reviews the lower court’s granting of summary judgment de novo.
Brown v. Scioto Cty. Commrs., 87 Ohio App.3d 704, 622 N.E.2d 1153 (4th Dist.1993).
Defamation and false light claims are particularly well-suited to summary judgment because
“‘the determination of whether a public figure has come forward with clear and convincing
evidence that the defendant was acting with actual malice’” is a question of law. Clark v. E!
Entertainment TV, L.L.C., M.D.Tenn. No. 3:13-00058, 2014 U.S. Dist. LEXIS 144414, *28 (Oct.
10, 2014), quoting Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 283
(Tenn.App.2007). See also Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 120, 413
N.E.2d 1187 (1980).
B. Defamation
{¶8} The First Amendment provides that “Congress shall make no law * * * abridging the
freedom of speech, or of the press * * *.” This “constitutional safeguard, we have said, ‘was
fashioned to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people.’” New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct.
710, 11 L.Ed.2d 686 (1964), quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1
L.Ed.2d 1498 (1957). As such, the Constitutional privilege includes laws that seek to impose
civil liability for speech that falls within the protections of the First Amendment. New York
Times at 277.
{¶9} Not all speech, however, is protected, as noted by the Supreme Court:
[W]e have consistently ruled that a public figure may hold a speaker liable for the
damage to reputation caused by publication of a defamatory falsehood, but only if
the statement was made “with knowledge that it was false or with reckless
disregard of whether it was false or not.” [New York Times] at 279-280. False
statements of fact are particularly valueless; they interfere with the truth-seeking
function of the marketplace of ideas, and they cause damage to an individual’s
reputation that cannot easily be repaired by counterspeech, however persuasive or
effective. See Gertz [v. Robert Welch, Inc., 418 U. S. 323, 340, 344, n.9 (1974)].
But even though falsehoods have little value in and of themselves, they are
“nevertheless inevitable in free debate,” id. at 340, and a rule that would impose
strict liability on a publisher for false factual assertions would have an undoubted
“chilling” effect on speech relating to public figures that does have constitutional
value. “Freedoms of expression require ‘breathing space.’” Philadelphia
Newspapers, Inc. v. Hepps, 475 U. S. 767, 772 (1986) (quoting New York Times,
376 U. S. at 272). This breathing space is provided by a constitutional rule that
allows public figures to recover for libel or defamation only when they can prove
both that the statement was false and that the statement was made with the
requisite level of culpability.
Hustler Magazine v. Falwell, 485 U.S. 46, 52, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). The
requisite culpability is malice. Malice indicates publication of a factual assertion “with
knowledge that it was false or with reckless disregard of whether it was false or not.” New York
Times at 280.
“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), ‘[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.’”
Scott v. News-Herald, 25 Ohio St.3d 243, 248, 496 N.E.2d 699 (1986), quoting Dupler, 64 Ohio
St.2d at 119, 413 N.E.2d 1187 (1980), quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88
S.Ct. 1323, 20 L.Ed.2d 262 (1968).
{¶10} There is no real dispute that Murray and his companies, through his actions and the
events that attained national prominence, are public figures subject to comment and discussion.
Therefore, we review the trial court’s decision using case law dealing with comment regarding
public figures.
1. McSherry’s News Article
{¶11} The article, published on December 20, 2012, and included in its entirety in the
appendix to this decision, focused on the protest that occurred on December 17, 2012, in front of
the headquarters of Murray Energy. McSherry quoted protestors and included descriptions of
the signs they carried. The article also included responses to the protest by a Murray Energy
representative and statements by Murray supplied to McSherry by the representative. Ironically,
those statements include allegations that the protesters committed crimes, lied, and that they
possessed ulterior motives for their actions; the same types of statements appellants allege are
defamatory.
{¶12} The news article is intended to be factual and addresses a newsworthy event.
Appellants take issue with a number of statements made therein. They claim the protestors
made defamatory statements that were published in the article that Murray or his related
companies are known for violating environmental and safety regulations. First, this was
published as an opinion of one of the protestors, not as an accurate fact about Murray’s
reputation. But even construing this statement as a fact, it is still not an actionable statement of
fact against McSherry and the other Chagrin Valley Defendants because it was a reasonable
statement based on a history of safety and environmental regulatory violations produced by
appellees in the record. Appellants argue that the trial court ignored a significant body of
evidence they put forth in the record through depositions of Murray Energy employees that its
safety and environmental records were either no worse than other mining companies or the
information relied on by appellees was outdated.
{¶13} In this context, a public figure may recover damages “for a defamatory falsehood
whose substance makes substantial danger to reputation apparent, on a showing of highly
unreasonable conduct constituting an extreme departure from the standards of investigation and
reporting ordinarily adhered to by responsible publishers.” Curtis Publishing Co. v. Butts, 388
U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).
{¶14} The expert testimony offered by appellants notwithstanding, there is no such
deviation in the present case. Appellants claim McSherry was reckless in failing to verify the
statements made by Patriots for Change that were included in the article. “‘[A]ny one claiming
to be defamed by the communication must show actual malice or go remediless. This privilege
extends to a great variety of subjects, and includes matters of public concern, public men, and
candidates for office.’” New York Times, 376 U.S. at 281-282, 84 S.Ct. 710, 11 L.Ed.2d 686(1964), quoting Coleman v. MacLennan, 78 Kan. 711, 723, 98 P. 281 (1908). Based on the
significant history of safety and environmental violations, there was no evidence of a failure to
investigate this statement.
{¶15} Appellants offered expert testimony that concluded McSherry failed to properly
investigate the story before publication. Appellants’ arguments seem to be that McSherry failed
to properly investigate the statements made by members of Patriots for Change even though these
statements were supported by materials produced in discovery. Appellants’ “suggestions on
how defendants should have conducted their investigation provide[s] no foundation for a jury to
conclude that defendants subjectively contemplated ‘serious doubts’ about the truth of the
statements.” Thomas M. Cooley Law School v. Kurzon Strauss, L.L.P., 759 F.3d 522, 534 (6th
Cir.2014), citing Perk v. Reader’s Digest Assn., Inc., 931 F.2d 408, 412 (6th Cir.1991) (holding
that the defendants were not “liable for failing to perform the thorough professional investigation
[the plaintiff] would have preferred”).
{¶16} McSherry testified in her deposition that she did research in preparing the article
including Google searches and reading articles in the New York Times, the Washington Post,
and other publications. She also called the Salt Lake Tribune. In Butts, a newspaper published
a story that relied on the affidavit of a witness without attempting to corroborate any of the
statements made by the witness. The Supreme Court determined that such actions of the
newspaper supported the jury finding of “highly unreasonable conduct constituting an extreme
departure from the standards of investigation and reporting ordinarily adhered to by responsible
publishers.” Id. at 158. Here, the statement about safety and environmental violations was
corroborated by McSherry. As the court found when analyzing a different article in Butts, there
is not even ordinary negligence substantiated in the record before us regarding this statement, let
alone malice.
{¶17} Next, appellants point to the quotation from a Patriots for Change protestor that the
layoffs were an outrageous stunt. This is clearly a statement of opinion incapable of verification
and the type of hyperbole traditionally recognized as free speech under the First Amendment as
explained in the analysis of Hill’s cartoon below.
{¶18} McSherry did not recklessly or knowingly publish a false statement of fact.
Therefore, the trial court did not err in granting summary judgment in favor of McSherry.
2. Lange’s Commentary
{¶19} Lange’s commentary published in the Chagrin Valley Times states as follows:
Commentary
Local Protest Well Deserved
Kelly Allred, 58, Luis Harnandez, 23, Brandon Phillips, 24, Carlos Payan,
22, Manuel Sanchez, 41, and Don Erickson, 50, were not among the 158
employees fired by Moreland Hills resident Robert E. Murray in the wake of
President Barack Obama’s re-election. No, those six miners perished after being
trapped on Aug. 6, 2007, by a collapse at Mr. Murray’s Crandall Canyon Mine in
northwest Utah. Their deaths were followed 10 days later by those of three rescue
workers, Dale Black, 49, Brandon Kimber, 29, and Gary Jensen, 53, who were
attempting to reach them.
When coal miners’ lives are so meaningless to those who reap millions
from sending them into hazardous working situations in Utah, why would anyone
expect their livelihoods to be any more meaningful in Eastern Ohio?
Members of Patriots for Change, a progressive organization based in
Chagrin Falls, who picketed outside Murray Energy Corp.’s Pepper Pike
headquarters a week before Christmas, sought to bring attention to that
cold-hearted reality.
Mr. Murray was only following up on the threat he made during the
election campaign, when he claimed that coal regulations anticipated under Mr.
Obama’s leadership would necessitate drastic cutbacks in the industry. Murray
Energy is the largest privately owned coal company in America.
It comes as no surprise that Mr. Murray is so disdainful toward
regulations. Following the Crandall Canyon calamity, the mine operator, Genwel
Resources Inc., a Murray Energy subsidiary, was fined $1.64 million, the U.S.
government’s highest penalty, for violations that were determined to have directly
contributed to those nine deaths.
In briefings during the failed rescue attempt in Utah, Mr. Murray told
victims’ family members, “the media is telling you lies,” and, “the union is your
enemy.” As Patriots for Change pointed out in its recent protest, although 85
percent of his employees are not unionized, he still considers unions the enemy.
Five months before the Crandall Canyon deaths, a partial collapse that
should have given ample warning of the impending tragedy was never officially
reported to the Mine Safety and Health Administration, as required by law. Mr.
Murray later claimed that he had no knowledge of that March 2007 prelude, but
subsequent investigation showed that to be absolutely false.
Patriots for Change members want the public to know who the real liar is
and who the coal miners’ true enemy is. Government regulation is not the
problem. The problem is a lack of full accountability for those who defy
regulations.
{¶20} Appellants do a good job of unmooring comments from their context and arguing
that the statements, taken in isolation, are factual and per se defamatory. For instance, citing
Ohio Supreme Court precedent, appellants claim that the statement that Murray is a “real liar” is
actionable. But such statements must be read in context. Vail v. Plain Dealer Publishing Co.,
72 Ohio St.3d 279, 649 N.E.2d 182 (1995).
When determining whether speech is protected opinion a court must consider the
totality of the circumstances. Specifically, a court should consider: the specific
language at issue, whether the statement is verifiable, the general context of the
statement, and the broader context in which the statement appeared.
Id. at the syllabus.
{¶21} When put into context, as is required by the Vail test, the statement is an opinion
expressing a contrary view to that espoused by Murray. The editorial quotes statements Murray
made to the national news media during a mining tragedy that “‘the media is telling you lies,’ and
‘the union is your enemy.’” The commentary then points out that “Patriots for Change members
want the public to know who the real liar is and who the coal miners’ true enemy is.” It is clear
from the context that the statement is one of opinion expressed in opposition to Murray’s charge
that the news media was lying. These statements are entirely different from those in other cases
that have found liability or a material question of fact.
{¶22} For instance, the Supreme Court addressed published accusations that a person
committed perjury. Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1(1990). In that case, considering federal First Amendment rights, a newspaper article published
in an Ohio paper accused a person of the crime of lying under oath. The leveling of an
accusation of a criminal act was held by the court to be an actionable statement under Ohio libel
laws, and it reversed the summary dismissal of the suit.
{¶23} In the present case, the statement referenced above is clearly a reaction to Murray’s
comment and an opinion about that statement. “[I]f it is plain that the speaker is expressing a
subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in
possession of objectively verifiable facts, the statement is not actionable.” Haynes v. Alfred A.
Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.1993).
The courts of appeals that have considered defamation claims after Milkovich
have consistently held that when a speaker outlines the factual basis for his
conclusion, his statement is protected by the First Amendment. As the Fourth
Circuit noted, “because the bases for the * * * conclusion are fully disclosed, no
reasonable reader would consider the term anything but the opinion of the author
drawn from the circumstances related.” Chapin [v. Knight-Ridder, Inc., 993 F.2d
1087 (4th Cir.1993)]. Similarly, the District of Columbia Circuit has noted that
“’because the readers understand that such supported opinions represent the
writer’s interpretation of the facts presented, and because the reader is free to draw
his or her own conclusions based upon those facts, this type of statement is not
actionable in defamation.’” Moldea [v. New York Times Co., 22 F.3d 310, 317
(D.C. 1994)]. Finally, the First Circuit has held that, as long as the author
presents the factual basis for his statement, [it] can only be read as his “personal
conclusion about the information presented, not as a statement of fact.” Phantom
Touring, Inc. [v. Affiliated Publications, 953 F.2d 724, 730 (1st Cir.1992)]
(emphasis added). Thus, * * * the statements would be protected since, read in
context, they are not statements implying the assertion of objective facts but are
instead interpretations of the facts available to both the writer and the reader.
Thus, we join with the other courts of appeals in concluding that when an author
outlines the facts available to him, thus making it clear that the challenged
statements represent his own interpretation of those facts and leaving the reader
free to draw his own conclusions, those statements are generally protected by the
First Amendment.
Partington v. Bugliosi, 56 F.3d 1147, 1156 (9th Cir.1995).
{¶24} Further, the Ohio Supreme Court’s reaction to Milkovich was to solidify Ohio’s
staunch support for free speech. See Vail. In Vail, and later in Wampler v. Higgins, 93 Ohio
St.3d 111, 752 N.E.2d 962 (2001), the Ohio high court addressed the Milkovich holding that no
separate “opinion exception” to defamation existed or was required. The Vail court held that,
based on the Ohio Constitution, such a separate exception existed in Ohio for news organizations
and journalists and Wampler extended that exception to Ohio citizens generally.
{¶25} Appellants also contend that Lange insinuated that Murray was a liar when Lange
alleged that Murray falsely denied knowing about a previous incident, known as a “bounce,” that
proceeded the collapse that killed nine miners at the Crandall Canyon Mine. Lange points to a
Salt Lake Tribune article published January 17, 2008. The article documented that the
newspaper obtained records of executive meetings where Murray was present that discussed this
bounce. The article then stated, “Murray, who led the rescue efforts in August, said at the time
he had no knowledge of the bounce.” This statement was not attributed to any specific source.
Appellants now claim that the denial relates to a statement Murray made during a National Public
Radio (“NPR”) interview in the aftermath of the tragedy that he was unaware of an engineering
report, not about a previous incident. However, the article does not mention an NPR interview.
The article clearly states,
[w]hen The Tribune asked Murray about the March bounce a week after the
August collapse, he said, “It’s the first time I’ve heard of this.” Murray blamed
the collapse on an earthquake, a viewpoint discredited by scientists, and insisted
there was no retreat mining in Crandall Canyon — a statement also refuted by the
meeting minutes.
{¶26} This article provides a clear basis for Lange’s statement. Appellants claim Lange
could not rely on the article because it contained a disclaimer intended to limit the Salt Lake
Tribune’s liability, which provided, “This is an archived article that was published on sltrib.com
in 2008, and information in the article may be outdated. It is provided only for personal research
purposes and may not be reprinted.” This disclaimer does not limit the factual claims in the
article that Murray was interviewed by the Salt Lake Tribune and he disclaimed knowledge of a
previous incident at the time, which was later contradicted by meeting minutes. Whether that it
true or not is beyond the scope of this appeal. This appeal focuses on whether Lange had a basis
to believe that his statements were true or whether he recklessly avoided determining the veracity
of the published statements of fact. The article relied on by Lange affirmatively demonstrates a
lack of malice.
{¶27} The statement calling Murray a liar, along with statements commenting on the
value Murray places on the lives and well-being of his employees, are opinions. Examining the
totality of the circumstances, the statements appear as a commentary in a “letters to the editor”
section of a news paper. This signals to readers that what follows is generally the opinion of the
author. The language used also makes clear that the statements are regarding a debate raging
between two sides. Further, these statements are not readily verifiable. This can be seen most
clearly when examining the statement indicating Murray fired miners the day after the
presidential election for political retribution. As explained below in the analysis of the Hill
cartoon, Murray may possess ulterior motives for terminating employees the day after the
presidential election, but only Murray would truly be privy to that information.
{¶28} Appellants point to other statements that are more amenable to arguments that they
are factual in nature. Lange’s commentary stated that a subsidiary of Murray Energy was “fined
$1.64 million, the U.S. Government’s highest penalty, for violations that were determined to
have directly contributed to those nine deaths.” The Murray Energy subsidiary was initially
fined that amount, but it was later reduced through settlement negotiations. Appellants argue
this was not the largest fine ever imposed. However, Lange again supported the most
substantive part of this statement with citations to governmental information releases. A 2008
United States Department of Labor’s Mining Safety and Health Administration release stated the
amount of the fine, and other news sources, including CNN, reported that the fine was the largest
ever imposed for coal mine safety violations. This release also indicates that the safety
violations contributed to the deaths of miners. Whether the fine was the largest imposed at the
time or the third largest ever imposed at the time the commentary was published is not materially
different. The fact that the fine was later reduced as part of a settlement and the contributory
nature of the violations were not included in the final admissions in the settlement does not
change the fact that statements were made without the malice necessary for a successful claim.
{¶29} Appellants also take issue with the statement that Murray never officially reported
a prior incident to governmental mining regulators in compliance with regulations. As set forth
by the regulations and argued by appellees, such incidents are required to be reported within 15
minutes of occurrence. However, appellants admit that the incident was not reported to the
regulatory agency until a few days later. Lange’s statement that the incident was not officially
reported as required by law is a substantially accurate statement.
{¶30} Based on these factors, the commentary is protected opinion designed to convey
the writer’s opinion on a matter of importance in the community. Appellants must show that
statements made by Lange were made with actual malice, meaning with knowledge of falsity or a
reckless indifference to their truth. The fact that the statements are supported leaves no material
question of fact that Lange did not knowingly publish false information with actual malice. On
the whole, the piece is an opinion with few factual statements, and any error therein was
published without actual malice.
{¶31} The trial court did not err in granting summary judgment in favor of Lange.
3. Hill’s Political Cartoon
{¶32} In the long history of political satire and cartoons that have been held to be
acceptable expressions of ideas, the cartoon penned by Hill is rather benign. It features a
snowman made of lumps of coal with a wrinkled carrot nose, holding a sack of money in each
had and singing “Murray the Coal-man...meant to hoard away his pay...with the vote all in, the
layoffs begin — with the prez he’ll never play!” Hill stated in his deposition that the words
were meant to be sung to the tune of “Frosty the Snowman.” Appellants’ reaction to the
cartoon, as outlined in their arguments below and in their appellate brief, bear no resemblance to
the actual image published in the newspaper. At one point, Murray claims the cartoon is meant
to portray him as mentally deranged.2 The cartoon does not convey such an idea. The cartoon
is clearly a protected expression of ideas in the long tradition of satirical cartoons upheld in
Falwell, 485 U.S. at 54-55, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). The Falwell court reaffirmed
that a cartoon such as the one above could only be actionable if it contained an injuriously false
factual assertion made with actual malice. Id. at 56. The cartoon above contains no factual
assertion. It is clearly hyperbole not reasonably capable of being interpreted as a factually
defamatory statement. Ferreri v. Plain Dealer Publishing Co., 142 Ohio App.3d 629, 756
N.E.2d 712 (8th Dist.2001). Interpreting the text and image as appellants do, the cartoon
implies, as does McSherry’s news article and Lange’s commentary, that Murray fired individuals
in response to President Obama’s re-election. This is an opinion not subject to ready
verification.
{¶33} The Chagrin Valley Defendants herein were not the only news organization to draw
this conclusion from Murray’s actions and public statements. In a suit brought by Murray
against a national news organization, the Ohio federal district court judge presiding over the case
granted the news organization’s motion to dismiss finding that statements implying that Murray
fired employees out of spite were not actionable:
Plaintiffs argue that the article presents an actionable statement by implying that
Murray fired more than 150 miners as a result of President Obama’s reelection.
This reaction is premised on the use of the word “hoard” in the poem.
2
This court agrees that the article draws a connection between the election result
and the terminations, stating that the dismissals “may well have been the
fulfillment of a promise” and that Murray “fires his workforce wholesale in fits of
spite when electoral results disappoint him.” The court disagrees, however, with
the proposition that these statements and their apparent implication are actionable.
Similar to the article in Bentkowski [v. Scene Magazine, 637 F.3d 689 (6th
Circ.2011)], the article at issue here “does not expressly state or clearly imply”
that the subject of the article acted with an illicit motive. [Id. at] 694. Rather, the
article engages in conjecture that Murray may have acted out of spite, which begs
the response of: so what? Regardless of whether the intended implication is that
Murray is a man of his word or a spoiled individual mired in pettiness, the specific
language used in making the point fails to capture an illicit motive. Pettiness is not
a crime, and neither is exercising employment at will terminations for legal
reasons, regardless of whether such reasons are logical, illogical, or just plain
silly. Moreover, even accepting Plaintiffs’ construction of the passages involved,
the article vaguely alludes to improper motives of unfixed meaning so that there is
no clear factual implication of a “wrongdoing” beyond what the author of the
article might suggest is a moral failing. In other words, such obvious speculation
as to motivation is not a factual statement.
Murray v. Huffingtonpost.com, Inc., S.D. Ohio No. 2:13-cv-1066, 2014 U.S. Dist. LEXIS 64944,
14-15 (May 12, 2014). This holding of the federal district court applies equally here.
{¶34} Appellants claim that Hill did no investigation before penning the cartoon and
argue this shows reckless indifference for the truth. In his deposition testimony, Hill explained
that he came up with the idea for the cartoon after reading a news article that accurately quoted
Murray and provided that 158 employees were fired the day after the presidential election.
Hill’s cartoon is a reasonable conclusion drawn from Murray’s own actions and statements. One
need not hold advanced degrees in mining or economics to draw the conclusions above.
Murray’s own statements and actions lead to this conclusion regardless of his actual motives
known only to him.
{¶35} Based on the above holdings, the trial court did not err in granting summary
judgment to Hill, Lange, McSherry, and the related publishing and newspaper defendants.
4. Patriots for Change Statements
{¶36} Patriots for Change twice emailed its members a digital newsletter and included
similar statements in its online calendar advising where the protest against Murray Energy was
scheduled to take place. These all included similar language. Two statements are addressed in
appellants’ brief. They argue that statements claiming Murray is known for violating
environmental regulations and that he fired employees to make a political statement are
actionable statements.
{¶37} As addressed above, whether Murray fired employees in order to make a political
statement is an opinion and not a proper subject for a claim of defamation. The other statement
is also addressed above. Appellants claim Patriots for Change did no investigation of whether
appellants were known for violating safety and environmental regulations but wholly relied on
statements made by a few members. Patriots for Change counters that it possessed significant
information based on widely publicized media accounts supporting its statements. A significant
history of safety and environmental violations appears in the record. As found above, no malice
is present in this record. Therefore, the trial court did not err in granting summary judgment to
Patriots for Change.
C. False Light
{¶38} False-light invasion of privacy has been described:
An actionable invasion of the right of privacy is [1] the unwarranted appropriation
or exploitation of one’s personality, [2] the publicizing of one’s private affairs
with which the public has no legitimate concern, or [3] the wrongful intrusion into
one’s private activities in such a manner as to outrage or cause mental suffering,
shame or humiliation to a person of ordinary sensibilities.
Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956), paragraph two of the syllabus. The
Ohio Supreme Court officially recognized this tort, stating:
We therefore recognize the tort of false-light invasion of privacy and adopt
Restatement of the Law 2d, Torts, Section 652E. In Ohio, one who gives
publicity to a matter concerning another that places the other before the public in a
false light is subject to liability to the other for invasion of his privacy if (a) the
false light in which the other was placed would be highly offensive to a reasonable
person, and (b) the actor had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the other would be
placed.
Welling v. Weinfeld, 113 Ohio St.3d 464, 473, 2007-Ohio-2451, 866 N.E.2d 1051. Here, there
are no untruthful statements commenting on private matters that placed any appellant in a false
light that would be highly offensive to a reasonable person. The tort “applies only when the
defendant knows that the plaintiff, as a reasonable man, would be justified in the eyes of the
community in feeling seriously offended and aggrieved by the publicity.” Welling at ¶ 55.
{¶39} The comments made in this case were in regard to public actions of Murray and
Murray Energy or its subsidiaries. Murray issued press releases, conducted press conferences
before national news media, and publicly set forth a narrative that appellees disagreed with and
commented on. Those comments were substantially true or protected opinion, and there is no
showing they were made with reckless disregard as to the falsity of the statements or that they
painted appellants in a false light rather than a light merely contrary to Murray’s public narrative.
III. Conclusion
{¶40} The articles and statements appellants attached to their complaint are protected
First Amendment speech or statements published without actual malice. This case illustrates the
need for Ohio to join the majority of states in this country that have enacted statutes that provide
for quick relief from suits aimed at chilling protected speech. These suits, referred to as
strategic lawsuits against public participation (“SLAPP”), can be devastating to individual
defendants or small news organizations and act to chill criticism and debate. The fact that the
Chagrin Valley Times website has been scrubbed of all mention of Murray or this protest is an
example of the chilling effects this has. Many states provide that plaintiffs pay the attorney fees
of successful defendants and for abbreviated disposition of cases. In this era of decentralized
journalism where the internet has empowered individuals with broad reach, society must balance
competing privacy interests with freedom of speech. Given Ohio’s particularly strong desire to
protect individual speech, as embodied in its Constitution, Ohio should adopt an anti-SLAPP
statute to discourage punitive litigation designed to chill constitutionally protected speech.
{¶41} Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
APPENDIX
News article written by Sali A. McSherry, published in the Chagrin Valley Times on December
20, 2012:
Local group protests firm’s post-election layoffs
PEPPER PIKE – Demonstrators carrying signs that read “How does Murray
Energy say Merry Christmas? You’re fired” and “Mr. Murray stop intimidating
your coal mining employees” numbered about 20 outside of Murray Energy Corp.
on Monday.
Organized through Patriots for Change, headquartered in Chagrin Falls,
the demonstration was directed at Moreland Hills resident Robert E. Murray,
who owns the largest privately owned coal company in America that employs
about 3,000 people, 85 percent of which are not in a union, and produces about 30
million annual tons of bituminous coal, according to Gary Broadbent of Murray
Energy.
Patriots for Change member Lisa Ciocia, who orchestrated the
demonstration on both sides of Chagrin Boulevard near the Murray Energy
headquarters, called Mr. Murray a “bully.” The day after the presidential election
in which President Barack Obama was re-elected, she said, Mr. Murray fired 158
employees and blamed the president’s administration for the struggling coal
industry.
According to a statement Tuesday by Mr. Murray, “The protests were
organized by a self-described ‘militant’ unionist labor group of retirees who favor
forced unionism, excessive regulation, socialized medicine, increased taxes and
the end of free-market capitalism.”
According to Patriots for Change, Mr. Murray owns mines in Ohio, Utah
and other states and is known for violating federal safety and Environmental
Protection Agency regulations, but his workers have no voice because only one
mine is unionized. He owns the Crandall Canyon Mine that exploded in 2007,
trapping six miners and killing an additional three rescuers, a group newsletter
stated.
It’s outrageous that Mr. Murray, an avid financial supporter of 2012
presidential Republican candidate Mitt Romney, would pull a stunt like this,
demonstrators said, in laying off workers and “invoking God’s forgiveness, but
saying he had no choice because of the direction Obama is taking our country,”
according to the newsletter.
Mr. Murray runs his company through intimidation, Mrs. Ciocia said. “It’s a
troubling trend.” She also referred to reports of company employees being forced
to attend a rally for Mr. Romney in August. According to Mr. Murray, employees
took out full page advertisements to claim that they chose to be there and knew
that they would not be paid.
“One of our blanket issues is fair employment,” said Becky Thomas of
Chagrin Falls, who founded Patriots for Change with Judy Kramer. The way Mr.
Murray treats his employees and his tactics were at the root of the demonstration.
“Mr. Murray believes that employees should have the right to determine
whether they want to be represented by a union, and if so, which one,” Mr.
Broadbent said in a statement. “The union-sponsored protestors want to force
unions on all workers. They are afraid of an Ohio Right-to-Work law, such as
the one passed in Michigan in November.”
The protesters trespassed on private property and held dishonest signs
insulting him and the company, Mr. Murray said. He and Murray Energy are
considering legal options to recover for damages and to prevent further
trespassing.
In an outline of America’s future to his employees, Mr. Murray said,
“While putting Murray Energy into a survival mode, I will be fighting allegations
from radical Obama supporters that you know are blatantly false and were
inspired only to shut down our opposition to them on behalf of our employees,
your area, and our country.”
Jim Ciocia is outraged that the company expects undying loyalty, but
doesn’t feel it owes reciprocity to its employees. Workers go into coal mines and
risk their lives to make a lot of money for Mr. Murray, but he shows no respect for
them, he said.
In Mr. Murray’s outline of America’s future statement, he foresees
drastically reduced electric power consumption, more drastically reduced coal
markets, total destruction of the coal industry by as early as 2030 and enactment
of 12 regulations pending from the EPA, among other concerns.
Some energy industry analysts have said that, due to the low cost of
natural gas and rising coal production costs, the coal mining business is suffering.
In a personal prayer Mr. Murray delivered to employees the day after the
presidential election, he said, “Lord, please forgive me and anyone with me in the
Murray Energy Corp. for decisions that we are now forced to make to preserve the
very existence of any of the enterprises that you have helped us build.”
Patriots for Change is “a progressive voice in the Chagrin Valley that
advocates for economic and social injustice through education and community
action,” according to its mission. There are about 180 dues-paying members and
350 on the organization’s mailing list.