Perez v. Scripps-Howard Broadcasting Co.

520 N.E.2d 198, 35 Ohio St. 3d 215, 15 Media L. Rep. (BNA) 1318, 1988 Ohio LEXIS 54
CourtOhio Supreme Court
DecidedMarch 9, 1988
DocketNo. 87-34
StatusPublished
Cited by152 cases

This text of 520 N.E.2d 198 (Perez v. Scripps-Howard Broadcasting Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez v. Scripps-Howard Broadcasting Co., 520 N.E.2d 198, 35 Ohio St. 3d 215, 15 Media L. Rep. (BNA) 1318, 1988 Ohio LEXIS 54 (Ohio 1988).

Opinions

Herbert R. Brown, J.

This case calls upon us to decide whether summary judgment was properly entered against the plaintiff in a public-official defamation case. For the reasons which follow, we find that it was.

I

The law of defamation has been given much attention by the federal courts and by this court. Rather than repetitiously plough old ground, we think it sufficient to sketch the law which serves as the foundation on which this case must be decided.

New York Times Co. v. Sullivan (1964), 376 U.S. 254, 279-280, “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.” The proof of actual malice must be clear and convincing. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 342. In making that measurement, the focus is upon the defendant’s attitude toward the truth or falsity of the published statements, rather than upon the existence of hatefulness or ill will. Garrison v. Louisiana (1964), 379 U.S. 64, 74; Herbert v. Lando (1979), 441 U.S. 153. The plaintiff’s burden is to show with convincing clarity that: (1) the false statements were made with a high degree of awareness of their probable falsity, Garrison, supra, at 74, or (2) the defendant entertained serious doubts as to the truth of the publication, St. Amant v. Thompson (1968), 390 U.S. 727, 731. On appeal, the appellate court must exercise its independent judgment in deciding whether the evidence of record meets these tests. Bose Corp. v. Consumers Union of United States, Inc. (1984), 466 U.S. 485, rehearing denied (1984), 467 U.S. 1267.

On these basic principles, the law of Ohio and federal law are in accord. Grau v. KLeinschmidt (1987), 31 Ohio St. 3d 84, 31 OBR 250, 509 N.E. 2d 399; Scott v. News-Herald (1986), 25 Ohio St. 3d 243, 25 OBR 302, 496 N.E. 2d 699; Dupler v. Mansfield Journal Co. (1980), 64 Ohio St. 2d 116, 18 O.O. 3d 354, 413 N.E. 2d 1187, certiorari denied (1981), 452 U.S. 962.

II

It is against this history of First Amendment protection that we review the summary judgment granted in favor of the defendants.

Neither we nor the trial court may weigh the proof or choose among reasonable inferences in deciding whether summary judgment should be granted. As in other civil cases, inferences and questions of credibility must be resolved in plaintiff’s favor. Dupler, supra.

Nonetheless, summary judgment remains an especially appropriate procedure by which First Amendment issues are resolved. Dupler, supra, at 120, 18 O.O. 3d at 357, 413 N.E. 2d at 1191. See, also, Washington Post Co. v. Keogh (C.A.D.C. 1966), 365 F. 2d 965, 968.

In order to withstand a defendant’s motion for summary judgment in a libel action, a public official-plaintiff must produce evidence sufficient to raise a genuine issue of material fact from which a reasonable jury could find actual malice with convincing clarity. Bukky v. Painesville Tel. & Lake Geauga Printing Co. (1981), 68 Ohio St. 2d 45, 22 O.O. 3d 183, 428 N.E. 2d 405. Moreover, only [219]*219factual disputes that might affect the outcome of the suit under the governing law will preclude the entry of a summary judgment. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242.

Ill

We now look at the evidence, resolving issues of credibility in favor of the plaintiff and giving plaintiff the benefit of inference. We find that WEWS and Younkin portrayed Perez as an official who invited Ferren to run drugs and to wheel and deal in drugs on the streets.

The five material issues identified by the court of appeals and much of the argument submitted on behalf of Perez are directed towards establishment of the above conclusion. For example, the arguments made by Perez about editing, rehearsal of Ferren’s story, and request by Younkin to make the statements stronger, all go to prove that WEWS portrayed Perez as soliciting a drug runner. We accept, for the purpose of summary judgment, that WEWS and Younkin reported such a charge. Thus, the above arguments and the so-called disputes as to “material facts” become minimally relevant. The attitude of the publisher toward the subject, be it hate or ill will, is relevant to the inquiry into malice but it is not the pivotal issue. The inquiry into actual malice in a public-official defamation case should focus on the publisher’s attitude toward the truth rather than upon the publisher’s attitude toward the plaintiff.

Here, a charge was made by Ferren which can reasonably be interpreted as a charge of illegal activity by a public official and the county department for which he worked. The airing of such charges is precisely the type of publication which the First Amendment does and must protect.

We acknowledge that report of a charge against a public official may work an unfairness to that person. Indeed, the broadcast may have worked an unfairness in the present case. But we agree with the United States District Court for the Southern District of New York when it stated:

“The fairness of the broadcast is not at issue in the libel suit. Publishers and reporters do not commit a libel in a public figure case by publishing unfair one-sided attacks. The issue in the libel suit is whether the publisher recklessly or knowingly published false material.” Westmoreland v. CBS, Inc. (S.D.N.Y. 1984), 601 F. Supp. 66, 68.

Unfairness is inevitable whenever the facts which form the basis of a charge, made against an official, are subject to two or more interpretations. Here, two interpretations may reasonably be made of the Ferren information. The court of appeals recognized such when it identified its first disputed issue of fact. The dispute supports (rather than precludes) the issuance of a summary judgment.

Fairness in journalism is a laudable goal but it is not a condition precedent to First Amendment protection. In fact, unfairness is the daily grist of politics. A public official acts, makes statements, and leads a personal life. Value judgments and interpretation attach to a public official’s behavior. If the suggestion of criminality is a reasonable inference from something a public official has said or done, the media may draw that inference. Such is the First Amendment’s contribution to free, open and honest government.

The essential facts are that Ferren, an admitted drug dealer in Stark County, had not been convicted on any of his drug law violations. He was, on two occasions, asked by Perez about the possibility of being an informant and undercover agent for the Stark [220]

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Cite This Page — Counsel Stack

Bluebook (online)
520 N.E.2d 198, 35 Ohio St. 3d 215, 15 Media L. Rep. (BNA) 1318, 1988 Ohio LEXIS 54, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-scripps-howard-broadcasting-co-ohio-1988.