Grau v. Kleinschmidt

509 N.E.2d 399, 31 Ohio St. 3d 84, 14 Media L. Rep. (BNA) 1353, 31 Ohio B. 250, 1987 Ohio LEXIS 298

• Court: Ohio Supreme Court
• Decided: June 24, 1987
• Docket: No. 86-581
• Status: Published

Opinions

Wright, J.

This appeal presents two issues. First, the proper standard to be applied when a directed verdict is sought by the defendant in a libel action brought by a public official and second, whether the court of appeals erroneously overturned the directed verdict issued by the trial court.

I

We begin our analysis with a brief examination of the standard which applies to the underlying defamation proceeding. In New York Times Co. v. Sullivan (1964), 376 U.S. 254, the high court set forth a standard which “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”⁷ Id. at 279-280.

In subsequent decisions, the Supreme Court has emphasized that public officials may only recover damages for libel upon clear and convincing proof of actual malice, Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 342; Buckley v. Littett (C.A. 2, 1976), 539 F. 2d 882, certiorari denied (1977), 429 U.S. 1062, with the focus being upon the defendant’s attitude pertaining to the truth or falsity of the published statements, rather than any hatefulness or ill-will. See Herbert v. Lando (1979), 441 U.S. 153; Cantrell v. Forest City Publishing Co. (1974), 419 U.S. 245. Accordingly, the plaintiff bears the burden of demonstrating with convincing clarity that the publication of false statements was made with knowledge of their falsity, or with a “high degree of awareness of their probable falsity,” Garrison v. Louisiana (1964), 379 U.S. 64, 74, 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. In determining whether a plaintiff has met this burden, it is important to consider the totality of the circumstances which led to the publication of the statements. See Scott v. News-Herald (1986), 25 Ohio St. 3d 243, 25 OBR 302, 496 N.E. 2d 699, _ A.L.R. 4th __

Recently, the Supreme Court has amplified its position previously set forth in New York Times Co. that, on appeal, libel cases involving public officials require heightened judicial scrutiny. Thus, in Bose Corp. v. Consumers Union of U.S., Inc. (1984), 466 U.S. 485, rehearing denied (1984), 467 U.S. 1267, the court reasoned that “[ajppellate judges in such a case must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity.” Id. at 514. This independent review of the record aids in protecting against “ ‘forbidden intrusion^] * * * [into] the field of free expression’ ” and “assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge.” Id. at 508 and 501.

II

Our review of this controversy must include an examination of Civ. R. 50(A)(4) which provides:

“When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.”

A motion for a directed verdict presents a question of law, not a question of fact, “even though in deciding such a motion it is necessary to review and consider the evidence.” Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St. 2d 66, 23 O.O. 3d 115, 430 N.E. 2d 935, paragraph one of the syllabus. Where there is sufficient evidence relating to an essential issue which permits reasonable minds to reach different conclusions, then it is incumbent upon the trial court to submit the issue to the factfinder for consideration. See, e.g., Wever v. Hicks (1967), 11 Ohio St. 2d 230, 40 O.O. 2d 203, 228 N.E. 2d 315. However, “it is also the duty of a trial court to withhold an essential issue from the jury when there is not sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. In other words, if all the evidence relating to an essential issue is sufficient to permit only a conclusion by reasonable minds against a party, after construing the evidence most favorably to that party, it is the duty of the trial court to instruct a finding or direct a verdict on that issue against that party. Naturally, if the finding on that one issue disposes of the Whole case, a duty arises to grant judgment upon the whole case.” O’Day v. Webb (1972), 29 Ohio St. 2d 215, 220, 58 O.O. 2d 424, 427, 280 N.E. 2d 896, 899-900, citing Peters v. B. & F. Transfer Co. (1966), 7 Ohio St. 2d 143, 36 O.O. 2d 180, 219 N.E. 2d 27; Hamden Lodge v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469, 189 N.E. 246; Helms v. American Legion, Inc. (1966), 5 Ohio St. 2d 60, 34 O.O. 2d 124, 213 N.E. 2d 734; Archer v. Port Clinton (1966), 6 Ohio St. 2d 74, 35 O.O. 2d 88, 215 N.E. 2d 707.

Just as summary judgment procedures “are especially appropriate in the First Amendment area,” Dupler v. Mansfield Journal (1980), 64 Ohio St. 2d 116, 120, 18 O.O. 3d 354, 357, 413 N.E. 2d 1187, 1191, so too are directed verdicts. The distinctions between summary judgment procedures and directed verdicts⁸ were recently addressed by Justice White in Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. _, 91 L. Ed. 2d 202, 214, wherein it was stated:

“[T]he ‘genuine issue’ summary judgment standard is ‘very close’ to the ‘reasonable jury’ directed verdict standard: ‘The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted.’ * * * In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”

In view of the similarities between a summary judgment motion and a motion for a directed verdict, we are persuaded that the underlying test in Dupler v. Mansfield Journal (wherein we concluded that the convincing clarity standard for actual malice was applicable in summary judgment procedures) should similarly apply to directed verdicts.⁹ Accordingly, when a trial court rules upon a defendant’s motion for a directed verdict in a libel action brought by a public official, the court shall construe the evidence most strongly in favor of the party against whom the motion is directed in order to determine whether a reasonable jury could find from a totality of the circumstances the existence of actual malice with convincing clarity. If the trial court in ruling upon a defendant’s motion for a directed verdict in a libel action brought by a public official finds from a totality of the circumstances that reasonable minds could only conclude that the plaintiff’s evidence fails to demonstrate actual malice with convincing clarity, then the court shall sustain the motion and direct a verdict thereby entering judgment for the defendant.

Ill

Application of the foregoing principles to the evidence presented by appellee at trial militates the conclusion that, as a matter of law, the evidence did not demonstrate actual malice with convincing clarity as defined in the New York Times Co. case. As was recognized in that case, and in St. Amant v. Thompson, supra, and Associated Press v. Walker (1967), 388 U.S. 130, the failure to investigate the truth or falsity of a statement prior to its publication is insufficient to demonstrate actual malice. Further, negligence or the failure to act in a reasonably prudent manner is likewise insufficient to show actual malice. Instead, what is required is that the totality of the circumstances demonstrate with convincing clarity that the false statements were published with prior knowledge of their falsity or with “serious doubts” as to their truth or a “high degree of awareness” of probable falsity. Garrison v. Louisiana, supra; St. Amant v. Thompson, supra; Scott v. News-Herald, supra.

A thorough review of the record reveals that appellee failed to demonstrate with convincing clarity that appellant published the “letters to the editor” or the Stachewicz news release with knowledge of their falsity or with reckless disregard for the truth or falsity of the publications. When Bowler brought his letter to the Leader on August 17, 1981, appellant, after reviewing its contents, requested that Bowler verify certain facts contained therein. Specifically, appellant was concerned about Bowler’s assertion that the check from Cox Cable was drawn in favor of Grau. Bowler then left appellant’s office and proceeded to city hall to further verify his facts. Later that afternoon, appellant received a telephone call from Mayor Holtz. At the time of this call, Bowler was in the mayor’s office. Holtz indicated to appellant that the letter was entirely factual, and even went so far as to volunteer to have his secretary retype the letter.¹⁰ It was at this point that appellant believed Grau was in possession of a $100,000 check from Cox Cable drawn in Grau’s name. Specifically, Kleinschmidt testified that he became convinced of this allegation in view of having spoken with Holtz, the incumbent mayor and “Grau’s boss,” as well as having spoken with Bowler, a former mayor of Garfield Heights and a person, who the record reflects, had an outstanding reputation in the community for truth and veracity. In other words, Kleinschmidt had two mayors, one past and one present, with excellent reputations for honesty within the community, indicating that the cable franchise check was drawn in Grau’s name.

Following the publication of the Bowler letter, Grau contacted appellants to inform them that the check was drafted in favor of the city and not in his name. Kleinschmidt assured Grau that the comments contained within the Bowler letter would be remedied. Although he made this assurance, the record demonstrates Kleinschmidt was confused¹¹ and continued to give credence to Bowler’s initial statements and Holtz’s erroneous confirmation of those statements. Nevertheless, in the August 27, 1981 edition of the Leader, Kleinschmidt published in his “Radar” column a clarification stating that “the $100,000 check sent to Garfield Hts. by-Cox Cable was NOT in Paul Grau’s name * * *.” The record demonstrates unequivocally that the “Radar” column enjoys more readership than -virtually any other portion of the Leader, and that appellants were affording their readers the opportunity to be aware that the Cox Cable check may not have been drafted in Grau’s name.

Also appearing in the August 27,1981 edition of the Leader were the hereinbefore mentioned items by Stachewicz. The front page item entitled “Administration Creates ‘Cablegate’ ” was, in large part, a campaign news release from Stachewicz’ office. The remaining item was a letter to the editor, also authored by Stachewicz. The record demonstrates that in spite of the clarification appearing in the “Radar” column, Kleinschmidt continued to place great reliance upon the Bowler letter, as confirmed by Holtz, and that at no time did he harbor any serious doubts about its accuracy, having conversed with the current mayor of Garfield Heights.

The Supreme Court has conceded that for better or worse the definition of actual malice in the context of a libel suit places “a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant’s testimony that he published the statement in good faith and unaware of its probable falsity.” St. Amant v. Thompson, supra, at 731.

Measuring the claimed actual malice “at the time of publication,” New York Times Co., supra, at 286, and being mindful that the articles must be examined in view of the totality of the circumstances which led to their publication, Scott, supra, we are inclined to agree with the trial court that the evidence demonstrates at most “a rather shoddy practice” of journalism. The court of appeals did not have the benefit of the totality of the circumstances standard set forth by Justice Locher in Scott. The standard enunciate'd therein, coupled with the fact that malice must be demonstrated with convincing clarity, negate appellee’s case. Contrary to the position espoused by the court below, we can not and will not hold that a directed verdict will only be granted where libel is not demonstrated in the first place. The fatal flaw contained within appellee’s argument is that appellant’s failure to personally seek to view the check held by Grau somehow rises to a reckless disregard of whether the Bowler and Stachewicz letters were false or not. Appellee’s argument would possess merit, but for the fact that appellant did investigate the truthfulness of the Bowler allegation with Grau’s uppermost supervisor and, based upon this investigation, he obtained information negating any high degree of awareness of the probable falsity of the allegations.¹²

Appellee also suggests that the “letters to the editor” published by appellant demonstrate a disdain for factual and accurate reporting. As was stated in Moriarity v. Lippe (1972), 162 Conn. 371, 294 A. 2d 326:

“A Tetters to the editor’ column provides an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities but who wish to exercise their freedom of speech even though they are not members of the press. The * * * [newspaper] did not fabricate the letter; it was not the product of its publisher’s imagination; it was not based on an unverified anonymous communciation. The contents of the letter were not so inherently improbable that only a reckless man would have put them into circulation.” Id. at 381, 294 A. 2d at 332, citing St. Amant v. Thompson, supra.

To the sound reasoning expressed by the court in Moriarity, we would add that the letters and publication in the instant case surfaced during a decision-making process of great significance within Garfield Heights and during a period of time when the mayoral race was taking shape. The purpose behind the standard set forth in New York Times Co. and its progeny is to maintain a free press when debate arises on public issues or the conduct of public officials, and to avert self-censorship from the fear of being the target of a defamation proceeding with each and every publication. A free and vigorous press must be maintained even at a high cost. The very nature of daily reporting of a political campaign or of volatile public issues negates the likelihood that the coverage will always be free from inaccuracy or even bias and, thus, error becomes the unfortunate by-product of virtually every political dispute. In spite of the inevitable errors which are likely to surface, the media performs a necessary and vital function within the political process. Accordingly, imposition of a standard less rigorous than that imposed under New York Times Co. would encourage more inhibited and less robust coverage of public issues. Associated Press v. Walker, supra. Absent a clear and convincing demonstration that a member of the media has undertaken the role of a malicious advocate, courts must not, in effect, allow punishment of the messenger.

In view of the totality of the circumstances outlined above and the facts appearing in the record, we are unable to agree with the court of appeals that appellee’s evidence was convincingly clear so as to enable a reasonable jury to reach different conclusions on the issue of whether appellants either knew that the publications were false or printed with reckless disregard of their falsity.

For the foregoing reasons, the judgment of the court of appeals is reversed and the trial court’s judgment is hereby reinstated.

Judgment reversed.

Moyer, C.J., Locher, Douglas and H. Brown, JJ., concur. Patton and Holmes, JJ., dissent. Patton, J., of the Eighth Appellate District, sitting for Sweeney, J.

7 All parties to the within appeal concede that for purposes of a libel action appellee is a public figure.

8 The differences between the Ohio and Federal Rules of Civil Procedure in this area are minimal. Under Fed. R. Civ. P. 50(a), “the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Brady v. Southern R. Co. 320 US 476, 479-480, * * * (1943). If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed. Wilkerson v. McCarthy, 336 U.S. 53, 62 * * * (1949).” Anderson v. Liberty Lobby, Inc., infra (91 L. Ed. 2d), at 213.

The issuance of a motion for summary judgment under Fed. R. Civ. P. 56(c) is governed by language providing that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

In similar fashion, Ohio Civ. R. 50(A)(4) and 56(C) respectively provide:

“When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

“* * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to the interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * *”

9 In applying the convincing clarity standard to summary judgment proceedings in Dwpler, we stated in paragraphs one and two of the syllabus as follows:

“In ruling upon defendant’s motion for summary judgment in a libel action brought by a public official, the court shall consider the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff to determine whether a reasonable jury could find actual malice with convincing clarity.

“In considering defendant’s motion for summary judgment in a libel action brought by a public official, if the court finds that there is no genuine issue of material fact from which a reasonable jury could find actual malice with convincing clarity, it must enter judgment for defendant.”

10 Upon its initial presentation to appellant, Bowler’s letter was typewritten with handwritten notations.

11 “Q. Well, were you pretty much satisfied when you received the call from Mr. Grau that he didn’t have the $100,000 check?

“Were you pretty much satisfied that that was the case?

“A. At that time, no. I was confused because I had two public officials, like I said before, Mayor Holtz, Mr. Grau’s employer, and former Mayor Neil Bowler, who has a very good reputation within the City. At that time I was confused. Two people said no, this one said yes. So I felt as far as I am going, I will give them the fair play.

“I didn’t see any check. I did not know. So I gave them both, to be fair, I gave Mr. Grau this because he said, hey, it isn’t, but Mr. Holtz, who was the Mayor at the time, Mr. Grau’s employer, and Mr. Bowler, the former Mayor, said there was. So I was confused. I said, well, Mr. Grau says this. So I gave them both equal ink, equal space, to be fair.

“Q. Your answer to my question then, if I have it right, was that even after you received the call from Grau saying he didn’t have the check, there was still a doubt in your mind, right?

“A. I was confused. There was no serious doubt in my mind. I was confused. I had too many people say too many different things.

“Q. What does confused mean?

“A. Confused means not really knowing but not seriously.”

12 Our judgment might be otherwise had appellant not sought to verify Bowler’s remarks with Grau’s uppermost supervisor and then, in spite of Grau’s telephone conversation, caused the publication of the Stachewicz comments on August 27,1981, or, if appellant had personally viewed the Cox Cable check prior to the August 27 publications.