The Sixth Circuit's recent decision in Young v. Gannett Satellite Information Network, Inc., Case No. 12-3999 (6th Cir. Oct. 31, 2013), raises more questions than it resolves in the area of First Amendment law.
Thirteen years ago, a Miami Township police officer was accused of forcing sex on a woman he was involved with romantically. The police officer was fired; but, an arbitrator subsequently overturned the officer's termination because it was unclear what actually happened on the day in question. The arbitrator found both the police officer and the female accuser lacked credibility.
In 2010, Gannett's Milford-Miami Advertiser published an article about a Milford police officer who had sex with the city's mayor. Although the police chief recommended termination, the officer received only a fifteen-day suspension. The newspaper article suggested that the city chose suspension over termination to avoid arbitration. The editor of the Advertiser decided that the article "needed context" as to why the police department sought to avoid arbitration. Recalling the incident in Miami Township, the editor pulled the records from that incident, including the arbitrator's decision, and revised the article to include the statement that the Miami Township officer was fired because he "had sex with a woman while on the job." The article was published and the Miami Township officer sued for defamation. The jury found in favor of the police officer and awarded him $100,000 in damages. Gannett appealed the verdict, which was affirmed.
Writing for the majority, Justice Rogers found that Gannett's two arguments on appeal – that the officer failed to prove actual malice and reputational harm – were meritless. Giving great deference to the jury's findings of fact, the majority concluded that the editor's investigation of the Miami Township incident was reckless because she failed to seek out the officer for comment or talk to persons involved in the case. Instead, she relied solely on the records, which, the majority determined, raised sufficient doubt as to the truth of the statement published. Moreover, even though the issue was not briefed, the majority questioned whether actual malice was the appropriate standard because the Ohio Supreme Court's decision in Soke v. Plain Dealer, "may have misinterpreted federal law" when it held that police officers are public officials.
The majority also determined that, while the officer did not present evidence of harm to his reputation, he did proffer evidence of pain, suffering and embarrassment, which is sufficient to establish the injury element of defamation.
In a scathing – but, well-reasoned and persuasive – dissent, Justice Moore chastised the majority for shirking the appropriate standard of review, and she defended the Ohio Supreme Court's decision in Soke v. Plain Dealer. First, Justice Moore disagreed with the quasi-de novo review conducted by the majority. Quoting the seminal U.S. Supreme Court decision Harte- Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989), she explained that it is the Court's "constitutional duty to exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." In particular, Justice Moore was, rightfully, troubled by the deference that the majority gave to the jury's findings. Based on her independent review of the evidence, she could not agree that a finding of actual malice was warranted.
Second, Justice Moore responded to the majority's unprompted questioning of Soke v. Plain Dealer. Justice Moore emphatically stated that there is "no doubt" that police officers – all police officers – are public officials for defamation purposes. She relied on a long line of decisions from nearly every Circuit Court of Appeals to support her defense of Soke.
Young is a worthwhile read for those of us who practice in the area of First Amendment law. While there is great insight from the Sixth Circuit into the type of pre-publication investigation that should be conducted by the media, the legal reasoning of the majority leaves much to be desired. Further, it is unfortunate that the majority opened a Pandora's Box of doubt surrounding the validity of the Ohio Supreme Court's twenty year-old decision in Soke. It will be interesting to see whether Gannett seeks certiorari on this case.
Link to decision: http://www.ca6.uscourts.gov/opinions.pdf/13a0316p-06.pdf