McCarthy v. Cincinnati Enquirer

This is an appeal on questions of law.

Plaintiff, appellant herein, seeks damages for defamation predicated upon the following editorial, entitled, "Fluoridation: The Facts," together with a paragraph on the same page headed, "The Voice of the Enquirer.":

"In the last few days we have had a depressing demonstration of how much harm one news broadcaster can do in a community. We refer to the daily efforts of Tom McCarthy of WKRC to create distrust of our public health authorities by misrepresenting the effects of fluoridation of our water supply, scheduled to begin on Sunday.

"By misleading statements, delivered in highly dramatic style, Mr. McCarthy has aroused widespread fears that fluoridation will raise the total death rate, cause more cancer and augment tooth decay. This is by no means the first time Mr. McCarthy has set himself against the community's welfare, thus drawing momentary attention to himself. But it is perhaps the least savory of his adventures.

"For those people who form their day-to-day picture of the world from Mr. McCarthy's dramatization of the news, we submit the facts regarding water fluoridation.

"In 1951 Cincinnati City Council authorized fluoridation by the addition of one part of fluoride in a million parts of water. This is to reduce tooth decay in children. The procedure has the unqualified endorsement of the American Medical Association, the American Dental Association, the U.S. Public Health Service and the American Water Works Association.

"Even with this confirmation, a thorough investigation was made by the Kettering Laboratory before Cincinnati took action. Local public health authorities and medical and dental groups have given their approval.

"Currently, about 10 million people in 600 communities in this country are drinking fluoridized water, including the District of Columbia, where Congress approved fluoridation. Fluoridation is accepted by most medical authorities just as vaccination is accepted, and as the chlorination of water supplies is accepted.

"The value of minute quantities of fluoride has been established in two ways — by the epidemiological studies of the U.S. Public Health Service, and by carefully controlled experiments in various communities, notably in New York State. The epidemiologists have plotted the incidence of tooth decay in areas of high fluoride content in the water, and in areas of very low fluoride content.

"These studies show that too much fluoride is bad for the teeth, and none at all is bad. They show that one part in one million does no harm and in the case of children especially does some good in arresting decay.

"Controlled experiments in New York communities, some with fluoridation and some without, give the same finding. This gives positive evidence over quite some years that fluoridation is beneficial and not harmful. In adopting fluoridation, Cincinnati is not experimenting. It is making use of firmly established scientific data, to improve the health of its people. There is no sound evidence that proper fluoridation has any effect on cancer or death rate.

"THESE ARE THE FACTS, for those who want the facts. The same facts were available to Mr. McCarthy. But for reasons quite his own, he prefers not to limit himself to facts. In this case, he has done great harm by causing needless fears and by inciting distrust of fully qualified health officials. We are certain that most persons in Cincinnati will take the word of local and national medical authorities against the word of a broadcaster whose record of reliability we will let speak for itself. The pity is that Mr. McCarthy is permitted by Station WKRC to continue in a pattern of `news reporting' that victimizes the gullible listener."

"THE VOICE OF THE ENQUIRER.

"When the water dispute is washed away, we wouldn't be surprised to see a Tom McCarthy bottled water appear on the market."

The petition does not set forth the complete publication, but selects the following excerpts as defamatory, and, no special damages being pleaded, plaintiff obviously considers the publication libelous per se, and so states in argument and brief:

"In the last few days we have had a depressing demonstration of how much harm one news broadcaster can do in a community. We refer to the daily efforts of Tom McCarthy of WKRC to create distrust of our public health authorities by misrepresenting the effects of fluoridation of our water supply, scheduled to begin on Sunday.

"By misleading statements, delivered in highly dramatic style, Mr. McCarthy has aroused widespread fears that fluoridation will raise the total death rate, cause more cancer and augment tooth decay. This is by no means the first time Mr. McCarthy has set himself against the community's welfare, thus drawing momentary attention to himself. But it is perhaps the least savory of his adventures.

"For those people who form their day-to-day picture of the world from Mr. McCarthy's dramatization of the news, we submit the facts regarding water fluoridation."

"THESE ARE THE FACTS, for those who want the facts. The same facts were available to Mr. McCarthy. But for reasons quite his own, he prefers not to limit himself to facts. In this case he has done great harm, by causing needless fears and by inciting distrust of fully qualified health officials. We are certain that most persons in Cincinnati will take the word of local and national medical authorities against the word of a broadcaster whose record of reliability we will let speak for itself. The pity is that Mr. McCarthy is permitted by Station WKRC to continue in a pattern of `news reporting' that victimizes the gullible listener."

"THE VOICE OF THE ENQUIRER:

"When the water dispute is washed away, we wouldn't be surprised to see a Tom McCarthy bottled water appear on the market."

Following the overruling of defendant's motion for judgment on the pleadings, the case was tried to a jury upon the petition, amended answer thereto and reply, and resulted in a jury verdict for the defendant.

In the first four assignments of error, appellant claims the trial court abused its discretion in permitting the filing of the amended answer and later refusing to strike the same; in refusing to require production of a subpoenaed document; and in unduly restricting examination of an allegedly hostile witness, as well as indulging indiscreet comment during trial, tantamount to instructions to the jury out of procedural order; the cumulative effect of which denied appellant a fair trial.

Upon a careful examination of the record, the court finds no abuse of discretion, or lack of fair trial in the matters complained of, and no error therein prejudicial to appellant.

In 53 Corpus Juris Secundum, 34, Section 1, it is stated:

"b. Nature and Elements of Defamation.

"In order to create liability for defamation, there must be an unprivileged publication of false and defamatory matter about another which is actionable per se, or is the legal cause of special harm to the other. Liability is determined by the law of the jurisdiction in which publication is made."

To entitle plaintiff to recover, the language complained of, the words used, must be actionable in themselves.

It is stated in 25 Ohio Jurisprudence, 162, Section 5:

"Words may be actionable in themselves, — per se, — or they may be actionable only on allegation and proof of special damage — per quod. The distinction is based on a rule of evidence. Words of both classes are actionable on the same grounds and for the same reasons. The difference between them is in the matter of proof of the resulting injury. In the case of words actionable per se, their injurious character is a fact of common notoriety. They necessarily import damage, and therefore, in such cases, general damages need not be pleaded or proved, but are conclusively presumed to result, and therefore no special damage need be shown to sustain the action. Words actionable only per quod are those whose injurious effect must be established by due allegation and proof."

With reference to rules of construction, it is stated in 25 Ohio Jurisprudence, 189, Section 40:

"* * * In determining whether the words spoken are actionable per se, they are to be taken in the sense in which they would naturally be understood by those who heard them. In arriving at the sense in which defamatory language is employed, it is proper and necessary to consider the circumstances surrounding its publication. In many instances words which are harmless in themselves may be actionable in the light of the surrounding circumstances. On the other hand, words which are apparently actionable in themselves, may be rendered not actionable by the surrounding circumstances.

"Whether an article is libelous or not, is not to be determined from segregated parts thereof, but from the entire article, keeping in mind the theme of the composition, the circumstances, and the occasion."

Referring to the Ohio rule, as to the requirements necessary for printed and published words to be actionable without proof of special damages, the text in 25 Ohio Jurisprudence, 161, Section 4, in part, is:

"While this difference between slander and libel is recognized in Ohio, it seems to be settled by the great weight of authority that, even if printed and published, mere words of ridicule, which tend to lessen a man in public esteem, or to wound his feelings, are not always actionable without proof of special damages. The cases in Ohio in which the rule has been referred to were cases where the publication charged the plaintiff with a serious violation of moral law, although not with a technical violation of the criminal law, so that when the authorities are carefully considered in the light of a sound public policy, it appears that to come within the rule permitting recovery, without proof of special damages, the printed words of ridicule or contempt, must relate to matters which are required, either by the moral code or by the law of the land, liberally and not technically construed; printed words of ridicule or contempt which relate solely to political views or arguments on questions of public interest, and which do not attack the character of a person, and which do not impute immorality or a violation of the law, come within the rule applicable to spoken words, and are not actionable without proof of special damage."

The rule was applied in Holloway v. Scripps Publishing Co.,11 Ohio App. 226, where it is held in the syllabus:

"Printed words of ridicule or contempt, which relate solely to political views or arguments on questions of public interest, and which do not attack the character of a person and do not impute immorality or a violation of law, but merely tend to lessen a man in public esteem or to wound his feelings, are not actionable without proof of special damages."

The basic concept seems to be that it is not libelous to charge a man with doing that which he may lawfully do and which is not a violation of the moral code.

In Sweeney v. Beacon Journal Publishing Co., 66 Ohio App. 475, 35 N.E.2d 471, it is held:

"1. A publication which is claimed to be libelous per se, because it charges a person with utterances which bring him into ridicule, hatred or contempt, is not actionable without alleging special damages, unless such publication liberally and not technically construed charges utterances which are a violation of the laws of the land or of good morals.

"2. Printed words of ridicule or contempt, which relate solely to political views, or arguments on questions of public interest, which do not attack the character of a person, or impute to him immorality or a violation of the law, but which tend merely to lessen a man in public esteem, or to wound his feelings, are not actionable without alleging special damages."

In Mauk v. Brundage, 68 Ohio St. 89, 67 N.E. 152, 62 L.R.A., 477, it is held in paragraph two of the syllabus:

"In an action for libel the question whether the publication is or not libelous per se is a question for the court. And where the publication is claimed to be privileged the question whether or not the occasion gives the privilege, the controlling facts being conceded, is also for the court."

In Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St. 118,95 N.E. 735, Ann. Cas., 1912B, 978, the court held in the fourth paragraph of the syllabus:

"In an action to recover for an alleged libel the question whether the publication is or not libelous per se is a question for the court. (Mauk v. Brundage, 68 Ohio St. 89.) And where the publication is, as matter of law, not libelous per se, and no evidence has been given tending to show special damage, it is the duty of the court to sustain a motion by defendant, made at the close of the evidence, to direct the jury to return a verdict for defendant."

The principles declared in the cases cited above have been approved and followed and commented upon in the majority opinion and in the dissenting opinions in the more recent case ofWestropp v. E. W. Scripps Co., 148 Ohio St. 365,74 N.E.2d 340, which is distinguishable from the case at bar in that the publication clearly contained a false statement of fact.

The pertinent circumstances under which the publication was made are that for a period of approximately two and a half years, the Council of the City of Cincinnati had been considering the desirability of fluoridation of the municipal water supply and had sought and received the study and advice of various qualified agencies and persons such as the Public Health Federation, Cincinnati Board of Health, Cincinnati Dental Society, Kettering Laboratory, Cincinnati Academy of Medicine, state Health Commission, City Commission on Public Health and the Public Utilities Commission of Council, assigned to the task by council itself. This study or investigation culminated in an extensive report to the board of health by its vice chairman, denominated "Cincinnati Report, Fluoridation of Water Supply in the Prophylaxis of Dental Caries," following which the city council approved fluoridation, and it was to begin March 1, 1953.

Plaintiff states in his petition that at all times herein he was employed to broadcast news and comment thereon by Radio Cincinnati, Inc., over Station WKRC, and that a large and substantial number of persons in southern Ohio have become accustomed to listening to his broadcasts.

It is apparent at once that by the very nature of his employment plaintiff assumes a dual role of private citizen and public figure, so that, while not an elected public official, his position is one tantamount to that, and his broadcasts tantamount to a production or performance for public exhibition, thereby submitting them to fair and reasonable criticism within the class of privileged communications. 25 Ohio Jurisprudence, 220, Section 77.

Plaintiff's daily broadcasting schedule started with an early morning farm show and included broadcasts at 11 a. m., 12 noon, 5 p. m. and 6 p. m.

Between February 17, 1953, and February 25, 1953, inclusive, plaintiff devoted practically his entire broadcasting time, and to the exclusion of commercials, in opposition to fluoridation of the municipal water supply. He appeared before council and stirred that body to further study of the question. From a transcript of those broadcasts attached to and made a part of the record, we note that plaintiff undertook what amounted to a one man crusade in opposition to fluoridation, calling it his campaign against it; he referred to the public as guinea pigs in a mass medicaton on an experimental basis; he urged people to call their councilmen in opposition, stating he had appeared before council to give information in opposition, and quoting one councilman as stating that if any risk to public health was involved he would not approve fluoridation; he suggested the experiment in other municipalities had a relation to increases in the death rate from heart disease, kidney disorders, such as nephritis, and the prevalence of cancer; he used the words toxic and poison in referring to fluorides; he charged the council's sources of advice, in being proponents of fluoridation, were biased and partially, at least, dependent on subsidization by industry having a by-product of fluorides to dispose of; he characterized some of their reports as being as phony as a "three dollar bill"; he charged all three Cincinnati daily newspapers with lack of research and care in endorsing fluoridation editorially, suggesting they yielded to pressure from proponents of fluoridation, and accused them of failing to give both sides of the question consideration; he charged the proponents with misstating facts and misleading the public, identical phraseology with some to which he takes exception in his petition; he concluded by stating that a million people would drink water containing toxic posion and that it was his business as a newsman to give the facts, and quoting one of council's chief advisers as stating fluoridation to be a calculated risk and that the three newspapers had no right not to print the other side.

His broadcasts over this period of time received usual notice and publicity in all three newspapers.

Plaintiff's campaign was successful, for thereafter the question of fluoridation was put to a vote of the people and rejected at the polls.

The record revealed all the circumstances set forth above at the close of all the evidence, and, at the time, the duty devolved upon the court to determine whether the publication considered in its entirety was libelous per se.

The court charged the jury that the publication was libelous per se. In the light of the Ohio law cited, supra, let us examine the material set forth in the petition as libelous in connection with the entire publication, keeping in mind the theme of the same, the entire circumstance and that the occasion was one of controversy on a public question perhaps vitally affecting the public health.

Construing the first paragraph, the first sentence appears to be merely an expression of defendant's own opinion and feeling of depression. The word, "harm," has reference to the cause of fluoridation, upon which subject the parties held diametrically opposite opinions, and in no sense can be construed as actionable, illegal, unmoral harm. Certainly, that sentence should not be construed as libelous without pleading and proof of special damage. In the second sentence, charging daily efforts to create distrust of public health authorities is charging only what plaintiff had a lawful right to do, obviously sincerely thought was a public service to do, and from the results of the popular poll succeeded in doing. The word, "misrepresenting," standing alone and as used in the sentence is ambiguous, hence, cannot be construed as libelous per se and is subject to an innocuous connotation equally with any contra connotation in the absence of the pleading of any innuendo.

In the second paragraph, plaintiff is charged with arousing widespread fears of the effects of fluoridation by misleading statements on the subject. Again, this is a matter of defendant's opinion, and it is difficult to see that any pecuniary damage or social ostracism could accrue to plaintiff as a result thereof. The phrase, "misleading statements," as used is ambiguous and could be innocently or willfully made. Again, an innuendo would seem to be necessary upon which to base a claim of libel, so that without the pleading and proof of special damage nothing in that sentence should be construed as libelous per se. The second sentence is merely the critical opinion of the defendant, which charges nothing unlawful or unmoral and, hence, under Ohio law, not libelous per se.

The last paragraph is for the most part repetitious, so that what has already been said is applicable thereto. It is argued that the last sentence is a suggestion to the employer that plaintiff be discharged. We do not so construe it. Rather, it is a suggestion that the employer change the pattern of broadcasts, over which it has the control, and specifically to conform to defendant's views on the public question of fluoridation. Certainly, pleading and proof of special damage would be a necessary predicate to a cause of action in defamation, based on the above sentence.

As to the "Voice of the Enquirer" comment, it appears as an attempt to inject a note of the facetious into the controversy, and was, no doubt, suggested by the plaintiff's own comment in one of his broadcasts that the bottled water business in Cincinnati, in event of fluoridation, would take on a new lease on life. In order to construe it as libelous, one would be required to suppose that plaintiff opposed fluoridation in the hope that it would be effected, in which event he would enter the bottled water business. Such a strained and unnatural construction exceeds the bounds of reason. We see nothing remotely libelous therein.

The entire voluminous record herein contains no proof of any damage accruing to plaintiff as a result of the publication complained of, but rather is a negation thereof. Without considering the ruling of the court on the motion for judgment on the pleadings, but taking the case at the conclusion of all the evidence and construing the publication in its entirety, keeping in mind the theme of it, the circumstances and the occasion of the debate in the public forum upon a question of vital importance to the public health, we conclude that the trial court was in error in charging that the editorial and the Voice of the Enquirer article were libelous per se, and should have granted defendant's motion for judgment at the close of all the evidence. Any error thereafter in submitting the case to the jury could not be prejudicial to the appellant and the court so finds.

We cite with approval as dispositive of this case,Holloway v. Scripps Publishing Co., supra (11 Ohio App. 226), and the case of Cleveland Leader Printing Co. v. Nethersole,supra (84 Ohio St. 118). Paragraph four of the syllabus in theNethersole case, quoted, supra, is:

"In an action to recover for an alleged libel the question whether the publication is or not libelous per se is a question for the court. (Mauk v. Brundage, 68 Ohio St. 89.) And where the publication is, as matter of law, not libelous per se, and no evidence has been given tending to show special damage, it is the duty of the court to sustain a motion by defendant, made at the close of the evidence, to direct the jury to return a verdict for defendant."

In view of the foregoing, the final judgment entered for defendant in the court below is, hereby, affirmed.

Judgment affirmed.

MATTHEWS, J., concurs.