IN THE SUPREME COURT OF OHIO
LAVELLE SULLINS, Case No. 2013-1543 Plaintiff-Appellee, On Appeal from the V. Cuyahoga County Court of Appeals, Eighth Appellate District RAYCOM MEDIA, INC. ET AL., Court of Appeals Case No. 99235 Defendants-Appellants.
APPELLANTS WOIO, LLC AND'WUAB'S MOTION TO RECONSIDER DECISION NOT TO ACCEPT DISCRETIONARY APPEAL
Joshua R. Cohen (0032368) Michael K. Farrell (0040941) Peter G. Pattakos (oo82884) Counsel of Record Cohen, Rosenthal, & Kramer, LLP Melissa A. DeGaetano (0080567) 700 West St. Clair Avenue Baker & Hostetler LLP The Hoyt Block Building, Suite 400 PNC Center Cleveland, Ohio 44113 lgoo E. 9th Street, Suite 3200 (216) 781-7956 (Telephone) Cleveland, Ohio 44114-3482 (216) 781-8o61(Facsimile) (216) 621-0200 (Telephone) Email: jcohenCcrklaw.com (216) 696-0740 (Facsimile) ppattakos@crkla,,v.com Email: [email protected] [email protected] Attorneysfor PlaintiffAppellee Lavelle Sullins Attorneys f .or Defendants-Appellants WVAB and WUrO, LLC George S. Crisci (ooo6825) Todd M. Ellsworth (00782o8) Daniel Thiel (oo82869) Zashin & Rich Co., L.P.A. 75 Public Square, Suite 650 55 Public Square, 4th Floor Cleveland, Ohin 44113 Cleveland, C}hio 44113 (216) 452-9144 (Telephone) (216) 696-4441 (Telephone) (216) 452-9144 (Fascimile) (216) 696=4618 (Facsimile) Email: [email protected] Email: [email protected] tmeC?zrlaw.com Attorney for Defendant-Appellant Pinpoint lt^dtri'„ • ,; „> -, ^ ,^,%,. Attorneys for Defendant-Appellant Cuyalioga County Crime Stoppers
:;<-: . ^.,,t F ... ^.. '^; Pursuant to Supreme Court Practice Rule 18.o2(B)(1), appellants WOIO, LLC and
WUAB ("WOIO") respectfully move this Court for reconsideration of its order declining
jurisdiction in this case. The authority to reconsider allows the Court to "correct
decisions which, upon reflection, are deemed to have been made in error." State ex rel.
Shemo v. NfayfiEld Hts., 96 Ohio St.3d 379, 2oo2-Ohio-4905, 775 N.E.2d 493, at 115
(internal quotations omitted); S.Ct.Prac.R. 18.o2(B)(1). Here, plaintiffs brief in
opposition to jurisdiction ("plaintiff's brief '), like the Eighth District's two opinions
below, fundamentally mischaracterizes the broadcast itself and other record evidence.
Likewise, all three writings contain confusing and often incorrect statements of the law.
WOIO respectfully submits that this Court's decision to decline jurisdiction was
influenced by these demonstrable inaccuracies.
Reconsideration of jurisdiction here is important. If it stands, the Eighth
District's decision would eviscerate two long-standing protections of the First
Amendment: (i) that a plaintiff must produce clear and convincing evidence of each
defendant's negligence in order to survive that defendant's motion for summary judgment; and, (2) that there must be a substantial difference betveen the defamatory
sting of a published statement and the literal truth for that statement to be actionable -
a distinction emphasized by the U.S. Supreme Court just this week. Air Wisconsin
Airlines Corp. v. Hoeper, 517 U,S. _(2014) (slip opinion) ("materially false" statement
is one that "'would have a different effect ori the mind of the reader from that which ... the truth would have produced"') (citations omitted).
The Eighth District made these constitutional errors based. on a description of the broa^dcast that simply is not accurate and did. so without reference to the only evidence
2 in the record concerning WOIO's conduct or state of mind. Indeed, the only conclusion that can be reached from the Eighth District's two opinions is that it did not review the actual content of Episode 17 of the Warrant Unit, but instead simply accepted plaintiffs inaccurate characterization of it. The Eighth District's opinions contain no mention of the only evidence of WOIO's conduct and instead adopt as true plaintiffs lumping together of the evidence relating to three, entirely independent companies.
These errors by the Eighth District violate WOIO's due process rights and its rights under the First Amendment. Moreover, the Eighth District's two opinions, which misstate and misapply the law, create corzfusion that will further erode publishers' First
Amendment rights throughout Ohio.
THE FACTUAL INACCURACIES IN PLAINTIFF'S BRIEF OPPOSING JURISDICTION AND THE EIGHTH DISTRICT'S OPINIONS
Plaintiffs brief repeatedly cites to the Eighth District's opinion, rather than the record, for factual assertions. But this circular tactic proves nothing because the Eighth
District itself relied on plaintiffs made-up characterizations of the facts and not the actual evidence in the record.
1. Plaintiff and the Eighth District Both Mischaracterize the Content of the Program.
A complete copy of the Warrant Unit program at issue is in the record. Although the program is nearly thirty-minutes long, only five seconds of the program concern plaintiff. During those five-seconds, his image appears with the text:
"Lavelle Sullins, 24 Years Old 5'6" 150 lbs, East 126th St. Garfield, Passing Bad Checks," while a narrator reads: "Lavelle. Sullins, Wanted, Passing Bad Checks."1
1(WOIO's App. in Sup. of Sum. Judgmt., at Tab 6.)
3 Quoting the Court of Appeals, plaintiff argues that the use of the plural form in
that one statement depicts Sullins as a"`bad check artist' who habitually committed
theft through this means." (Op. Br. at 14, citing Sullins v. Raycom Media, Inc., 8th Dist.
Cuyahoga No. 99235, 2013-Ohio-353o at ¶ 3, 36-37.) However, "passing bad checks" is
in fact the statutory title of the crime to which plaintiff pleaded guilty. See, R.C.
§ 2913.11- "Passing Bad Checks."
The remaining statements discussed by plaintiff and the Eighth District are non-
actionable statements of opinion or cannot reasonably be understood as being about
plaintiff specifically. See, e.g., Gist v.1Vlacon County Sher%f,f's Dep't, 284 III.App.3d 367,
371-72, 671. N.E.2d 1154 (III.App.Ct.1996) (discussed infra, p. 9-1o).
2. Plaintiff and the Eighth District Both Mischaracterize WOIO's Role in the Program's Production.
The etiidence shotiving that WOIO simply broadcast a finished program and.
played no part in creating, editing or producing the program is undisputed. The only
e,ddence concerning WOIO's decision to do so is that:
At all relevant times, it was and is [WOIO's] understanding and belief that the information in the relevant portions of the relevant episode of "Warrant Unit" was taken directly and accurately from official information and records provided by the Cuyahoga County Sheriffs Office to defendant Crime Stoppers and/or Pinpoint Media [and WOIO] had no knowledge of any falsehood or inaccuracy in that information or any reason to doubt its truth.2
WOIO never saw the records Pinpoint saw or spoke to anyone in the Sheriff's office.
Plaintiff does not dispute these facts. Instead, he tries to avoid them by lumping all of the defendants together in his briefing. In his opening brief to the Eighth District, z(WOIO's Res. to Int. No. 3.)
4 plaintiffs only specific reference to WOIO was to say that it was the station on which the
program aired. This deficiency was so glaring, WOIO argued that plaintiff had waived
his right to appeal WOIO's summary judgment verdict for failure to separately argue it.
Plaintiff did not correct the omission and the Eighth District ignored it, choosing instead
to repeat the same mistake. See, e.g., Sullins, 2013-Ohio-3530, t 5-7 25-29.
3. Plaintiff Misrepresents His Fugitive Status at the Time of the Program.
Citing again to the Eighth District's opinion rather than anything in the record,
plaintiff argues that he "indisputably was not a fugitive when Episode 17 aired." (Op. Br.
at 3.) But, undisputed evidence in the record sho-vvs that several warrants were
outstanding for plaintiffs arrest on the day the program aired.3 As the program
explains, at any given time, there are over 20,000 people in AToi~theast Ohio that are
fugitives in that outstanding Nvarrants exist for their arrest. Thus, in this context,
plaintiff was in fact a fugitive.
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. I: In a multi-defendant defamation action, the plaintiff must produce clear and convincing e`=idence showing fault by each defendant - the U.S. and Ohio Constitutions prohibit courts from presuming fault on the part of one defendant based on evidence relating only to other defendants.
Plaintiff concedes that "[t]he First Amendment undeniably requires plaintiffs to prove `fault' without the aid of any presumption when they sue a publisher or broadcaster for defamation." (Op. Br. at 6.) But plaintiff later claims that "[a] presumption of `fault' generally does arise in cases of defamation per se, constitutional considerations notwithstanding." (Op. Br. at 8 and.1.2 (citing Kanjuka v. Meta•ol7ealth
3(WOIO's App. in Sup. of Sum. Judgmt., at Tab lo (collecting certified records reflecting the then-outstanding warrants).)
5 Med. Ctr.,161 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920, ¶16 (8th Dist.)).4
This is the same incorrect statement of the law upon which the Eighth District based its
initial opinion, and. it is flatly contrary to this Court's holding in Lansdowne v. Beacon
Jourr2al Co., 32 Ohio St.3d 176, 18o-181, 512 N.E.2.d 979 (1987).5
Plaintiff then attempts to divert this Court's attention from what the Eighth
District actually held to what the Eighth District said that it had held wllen it denied
reconsideration. The Eighth District said that it found "genuine issues of material fact
as to who, if anyone, bears responsibility for the defamatory depiction of Sullins."
Sullins, 2013-Ohio-363o, at T 43. The Eighth District also later said that it had. "not
presumed anything" regarding WOIO's fault. Sullins v. Raycom Media, 8th Dist.
Cuyahoga No. 99235, 2013-Ohio-4697 at ¶ 3.
But there are only two vvays the court of.appeals could have reached the
conclusion that there were issues of fact concerning WOIO's fault, and both of them
violate WOIO's constitutional rights. Either: (x) the appellate court accepted,.Nvithout
examination of the record, plaintiffs misleading statements suggesting that WOIO was
involved in the creating, editing and production process of the program, OR (2) the
appellate court impermissibly shifted the burden to defendant-appellees to each prove that they ivere not responsible for any inaccuracies in the program. The first violates
WOIO's due process rights, and both violate WOIO's rights under the First Amendment.
4 This incorrect statement is also illustrative of the growing confusion in Ohio concerning the burden of proof in defamation cases. Numerous Ohio courts have and will repeat this error lArithout this Court's intervention. (See Br. in Sup. at 7.) 5 In Iaan4dozvne, this Court held that "in private--figure defamation actions * * * the plaintiff must prove by clear and convincing evidence that the defendant failed to act reasonably in attempting to discover the truth or falsity" of the publication." 1"d, at 18o.
6 Proposition of Law No. II: A broadcaster is notnegligent when it broadcasts a program produced by a separate entity and has no reason to doubt the accuracy of the information therein.
In response to WC}IO's second proposition of laNv, plaintiff misleadingly and
incorrectly cites to Re^,rised Code Section 2739.03(B) - a provision concerning
statements made by others on live television or radio - for the absurd proposition that
television stations, unlike any other category of defendant, are somehow required to
"prove the absence of negligence to avoid liability for defamation." (Op. Br. at 13.)
Again, plaintiffs argument contradicts this Court's unequivocal holding in Lansdowne
and directly violates decades of well-settled First Amendment principles.
Section 2739.03 is titled: "Conditions for liability of owners, licensees, or
operators of radio and television stations." It provides an additional protection to
owners, licensees and operators of television and radio stations that air live content:
The owner, licensee, or operator shall not be liable for any damages for any defamatoiy statement published or uttered in or as a part of a visual or sound radio broadcast bv one other than the ow-iaer, licensee, or operator, or agent or employee thereof, if the owner, licensee, or operator proves that the owner, licensee, or operator exercised reasonable care to prevent the publication or utterance of the statement in such broadcast tiprae.
R.C. § 2739.03(B) (emphasis added). Under this statute, an owner, licensee or operator is not liable for broadcasting a defamatory statement, even if it knew it was false at the time of the broadcast, if it can prove that it exercised reasonable care to prevent the publication or utterance of the statement as the statement was being made. Because the instant case involves a program that is fully edited and produced prior to broadcast, and not a live broadcast, Section 2739.03(B) is wholly inapplicable to the instant case.
7 Moreover, no federal or state court in Ohio has construed the statute the -vvay plaintiff
advocates here.
Plaintiff further suggests that WOIO's second proposition of law is somehow
inconsistent with Ohio's definition of negligence. (Op. Br. at 9, fn. 3.) Plaintiff is
incorrect. In Lansdowne, this Court defined negligence as the failure "to act reasonably
in attempting to discover the truth or falsity" of a publication. 32 Ohio St.3d at 18o. In
doing so, this Court did not define what it means "to act reasonably." Most other
jurisdictions that have considered the issue agree that, as a matter of law, it is
reasonable for a television station, like WOIO, to broadcast a program created, edited
and produced by a separate media entity without conducting any further investigation
as to its content if nothing on the face of the program puts the broadcaster on notice that
it contains an inaccuracy. (See Br. in Sup. at 8-lo, citing cases.)
This rule recognizes that requiring media outlets to independently verify the
accuracy of every fact in every program or wire-service release they receive before they
broadcast it would impose a standard of conduct greater. than that of a reasonable man,
and would place intolerable burdens and costs on them. As one Ohio court of appeals
noted:
[Corroboration of news received from others] is an expensive step in terms of money, time and personnel, which can only be demanded when from the face of the information there exists doubt as to its veracity * #-* were we to impose any higher obligation upon news reporters and publishers [than ordinary care], we would be depriving the general public of news to ivhich they are entitled and [placing] intolerable burdens and costs upon a publisher.
Horvath v. The Telegraph, lith Dist. Lake No. CA-8-176,1982 Ohio App. LEXIS 15776, at "24-27 (March 8, 1982).
8 Here, plaintiff has not come forward vrTith any ecidence that WOIO had any
reason to doubt the program's veracity. Given this, most courts in this country would
hold that WOIO was not negligent as a matter of law and reinstate summary judgment
in WOIO's favor. Because the Eighth District did not do that, news outlets in Ohio are
faced with uncertainty as to their exposure to litigation costs should they choose to
publish information produced by other content providers. Such uncertainty reduces
Ohio citizens' access to information and infringes on Ohio publishers' First Amendment
rights. This Court should reconsider its decision to decline jurisdiction so that it can
rectify this problem and bring Ohio in line «ri.th. the majority approach.
ProPosition of Law No. III: A statement that conveys no greater opprobrium than the literal truth is not materially false for purposes of a defamation claim.
Material falsity turns on the defamatory sting of an. allegedly defamatory
statement. (Br. in Sup. p. 11-15.) Here, the defamatory sting of the program is that
plaintiff had been accused of passing bad checks. The literal truth is that he had been
convicted of that crime and was wanted for several others at the time of the broadcast.
The additional language plaintiff complains about beyond the phrase "wanted,
passing bad checks," does not change the defamatory sting of the program. Indeed, all
of these things are statements made about the subjects of the program in general and
are not specifically about plaintiff. See, e.g. Ear.ty v. Toledo Blade, -130 Ohio App.3d
302, 72o N.E,2d 107 (6th Dist.i.998) (statements about "police misconduct" are not of and concerning any one officer).
As an Illinois court examining a similar publication stated: "That plaintiff `might possibly be armed' or `should be considered dangerous' or was a`mst wanted' fugitive - to the extent such statements can even be considered as applying to plaintiff or asserting
9 facts about him - are all secondary details, immaterial to the truth of the Crime
Stoppers Flyer" and not defamatory. Gist, 234 Ill.App.3da 371-72•
This case is no different. The language plaintiff complains about and the Eighth
District focuses on in its decision regarding the material falsity component are the types of expressions that other courts have held to be irrelevant to a material falsity determination.
CONCLUSION
For the reasons set forth above and in its memorandum in support of jurisdiction, WOIO respectfully requests that the Court reconsider its Januaiy 20, 2014 decision declining jurisdiction, and accept this appeal for review.
Dated: February 3, 2014
Respectfully submitted,
Michael K. Farrell (0040941) Melissa A. DeGaetano (0080567) BAKER & HOSTETLER LLP PNC Center lgoo E. gth Street, Suite 3200 Cleveland, Ohio 44114-3482 (216) 621-0200 (Telephone) (216) 696-0740 (Facsimile) Email: [email protected] Email: [email protected]
Attorneys,for Defendants Appellarats WUAB and WOIO, LLC
].o CERTIFIC;ATE OF SERVICE
A copy of Appellants' Motion to Reconsider Decision not to Accept Discretionary
Appeal has been sent by email and regular U.S. mail, postage prepaid, this 3rd day of
February, 2014 to the following:
Attorneys for Plaint ff-Appellee .t.avelle Sullins
Joshua R. Cohen (0032368) Peter G. Pattakos (0082884) Cohen Rosenthal & Kramer LLP 700 West St. Clair Avenue The Hoyt Block Building, Suite 400 Cleveland, Ohio 44113 (216) 781-7956 (Telephone) (216) 781-8o61(.Faesimile) Email: [email protected] ppattakos@crlda,A,.com
Attorneys for Defendant-Appellant Cuyahoga County Crime Stoppers
George S. Crisci (ooo6325) Todd M. Ellsworth (00782o8) Zashin & Rich Co., L.P.A. 55 Public Square, 4th Floor Cleveland, Ohio 44113 (216) 696-4441 (Telephone) (216) 696-1618 (Facsimile) Email: [email protected] [email protected]
Attorney, for Defendant-Appellant Pinpoint Media
Daniel Thiel (oo82869) 75 Public Square, Suite 660 Cleveland, Ohio 44113 (216) 452-9144 (Telephone) (216) 452-9144 (Facsimile) Email: [email protected]
--^`^^^^ One ofthe Attorneys for Defendants- Appellants WUA:6 and WOIO, LLC