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IN TIi*E SUPREME COURT OF

LAVELLE SULLINS, Case No. 2013-1543 Plai nti ff.-Appellee, On Appeal from the V. Cuyahoga County Court of Appeals, Eighth Appellate District , INC. ET AL., Court of Appeals Case No. 99235 De fendants-Appel t ants.

ME}VIORANDUM IN SUPPORT OF JU`RISDICTION OF APPELLANTS WUAB AND WOIO, LLC

Joshua R. Cohen (0032368) Michael K. Farrell (0040941) Peter Pattakos (0082884) 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 , Ohio 441l 3 1900 E. 90' Street, Suite 3200 (216) 781-7956 (Telephone) Cleveland, Ohio 44114-3482 (216) 781-8061 (Facsimile) (216) 621-0200 (Telephone) Email: jcohe.n^crklaw.com (216) 696-0740 (Facsimile) ppattakos @crklaw.coin Email: m.farrellC bakerlaw.com Email: mdegaetano(abakerlaw.com Attorizeysfor Plaintiffllppellee Lavelle Sullins Attoa-neysfor .DeferidantsAppellants George S. Crisci (0006325) ll'UlB and WOIO, LLC 1 11 odd M. Ellsworth (0078208) Zashin & Rich Co., L.P.A. Daniel Th_iel (0082869) 55 Public Square, 4`i' Floor 75 Public Square, Suite 650 Cleveland, Ohio 44113 Cleveland, Ohio 44113 (216) 696-4441 (Telephone) (216) 452-9144(Telephone) (216) 696-1618 (Facsimile) (216) 452-9144 (Fascimile) Enaail: gscoazrlaw.com Email: danielgdanieltliiel.com [email protected] Attorney for Defendaiit-Appellant Pinpoint .4ttorneys for IJefendant-Appellant Cuyahoga Media County C.rin2e Stoppers

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TABLE OF CONTENTS ...... i

TABLE OF AUTHORITIES ...... >...... : iuiii

THIS APPEAL IS OF SIGNIFICANT PUBLIC INTEREST AND INVOLVES SUBSTANTIAL CONSTITUTIONAL QUESTIONS ...... 1

STATEMENT OF TI-IE FACTS AND CASE ...... :...... :...... 2

1.. WOIO played no part in creating, editing or producing the program at issue ...... :...... :...... 2

2. WOIO believed that the program was based on inforrnation provided by the government and had no reason to doubt the accuracy of the information about plaintiff ...... ,...... 2

3. For five seconds of a half-hour program, plaintiff was listed as "wanted" for passing bad checks, when the literal truth is that he had alreadv been convicted of that charge and was "wanted" on multiple other charges ...... 3

ARGUiYIENT IN SUPPORT OF PROPOSITIONS OF LAW...... 3

WOIO's Proposition of Law No. I.: In a nlulti-defendant defatnation action, the plaintiff must produce clear and convincing evidence showing fault by each defendant - the U.S. and Ohio Constittitions prohibit courts from presuming fault on the part of one defendant based on evidence relating otlly to other defendants ...... 3

1. The U.S. and Ohio Constitutions required plaintiff to produce clear and convincing evidence of negligence to avoid summary judgment ...... 3

2. Implicit in the foregoing constitutional requirements is the requirement that plaintiff produce such evidence as to each defendant's conduct ...... 4

3. The requirement of specific proof has special force in defamation claiins because of the First Amendment rights at stake ...... 5

4: The appellate court mistakenly believed that fault could be presumed and did not consider the evidence of each defendant's conduct separately, tliereby violating WOIO's right to due process...... 6

WOIO's Proposition of Law No. 3: A statement that conveys no greater opprobrium than the literal truth is not materially false for purposes of a defamation claim ...... 11

1. Material falsity is a constitutional requirement that plaintiff cannot meet...... 1 l

2. Where the defaniatozy "sting" of a publication is true, the plaintiff cannot establish material falsity ...... 11

i 3. Broadcasting that plaintiff was "wanted" for a crime is not materially false when the literal truth is that he had already been convicted of that crime and was wanted for several other crimes ...... :...... 13

CO:VCLUSION ...... :...... 15

PROOF OF SEIZVICE ...... >...... 16

APPENDIX Appendix Page

Judgment Entry and Opinion, Eighth District (August 15, 2013) ...... 1

Judgment Entry and Order, Eighth District en banc (September 20, 2013) ...... ,31

Judgment Entry and Opinion, Eighth District October 24, 2013) ...... 33

Opinion and Order of the Trial Court granting Summary Judgment (November 26, 2012) ...... ,...... , .....;...... ;...... :...45

ii TABLE OF AUTHORITIES

Page(s) CASES

A.li v. Arrzerica's Most Wanled, 984 S.W.2d 224 (Tenn.App.1998) ...... 14

Arnann v. C'lear Channel Communications, Inc., 165 Ohio App.3d 291, 2006-Ohio-714, 846 N.E.2d 95 (1 st Dist.) ...... 8

Andersoaa v. Baker, 10th Dist. Franklin No. 08AP-438, 2008-Ohio-6919 ...... 7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 T_,.Ed.2d 202 (1986)...... _...... 4

Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 478 N.E.2d 721 (Mass.1985) ...... 10

Armen Boladiata, Bridgep'ort Music, Inc. v. UMG Recorclings, Inc., 123 Fed.Appx. 165 (6th Cir.2005) ...... 10

Azcvil v. CT35, F.Supp. 928 (E.D.Wash.1992) ...... ,...... 9, 10

Baby Tenda of Greater Ciyicinnati. Inc. v. Co., 63 Ohio App.3d 550, 579 N.E.2d 522 (1989) ...... 8

Bays v. hror•thwestern Local.Sehool District, 9th Dist. Wayne No. 98C:A0027, 1999 Ohio App. LEXIS 3343 (July 21, 1999) ...... 8

Behr v. Meredith CorB., 414 N.W.2d '139 (Iowa 1987) ...... 11

Brown v. Courier Herald Publ 'g Co., Inc., 700 p.Supp. 534 (S..D.Ga.1988) ...... :...... 9, 10

Bruss v. Vindicator Printing Co., 109 Ohio App.3d 396, 672 N.E.2d 238 (7th Dist.1996) ...... 12

13ryks v. Canadian Braad. Corp., 928 F. Supp. 381 (S.D.N.Y.1996) ...... ,....9; 10

Cantrell v. F'orest City Pubi g Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974) ...... 5

iii Cole v. StaN Tribune, 581 N.W.2d 364 (Minn.Ct.App.1998) ...... 10

Danger°fielcl v. Star Editorial, Inc., 9th Cir. No. 95-55387, 1996 U.S. App. LEXIS 23401 (Sept. 5, 1996) ...... :....6

Dental Care Clinie v. lIcDonough, 8th Dist. Cuuahoga No.50242, 1986 WL 2672 (Feb. 27, 1986) ...... 11

Desnick v, Anaerican BYocrca'. Co., Inc., 44 h.3d 1345 (7th Cir.1995) ...... 11

Dinkel v. Lincoln Pub. Co., 93 Ohio App.3d 344, 638 N.E.2d 611 (12th Dist.1994)......

v. Budget Car Sales, Inc., l Oth Dist. Franklin No. 98AP-530, 1999 Ohio App. LEXIS 1790 (Apri120, 1999) ...... 7

Early v. Toledo Blade, 130 Ohio App.3d 302, 720 N.E.2d 107 (6th Dist.1998) ...... 13

Fish v. Heatherdowns Country Club Assoc., 6th Dist. Lucas No. L-90-072, 1991 Ohio App. LEXIS 2637 (June 7, 1991.) ...... 7

Fuchs v. ScYipps Howard Broadcasting Co., 170 Ohio App.3d 679, 2006-Ohio-5349, 868 N.E.2d 1024 ...... 8

Gedra v. DallmeN Co., 153 Ohio St. 258, 91 N.E.2d 256 (1950) ...... 5

Crertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997 L.E.2d 789 (1974) ...... 4

Gist v. Ilcacon County Sher fffs Dep't, 284 111.App.3d 367, 671 N.E.2d 1154 (Ill.App.Ct.1996) ...... 13

Haynes v. Alfr•ed.A. Knopf, Inc. 8 F.3d 1222 (7th Cir.1993) ...... 11, 13

Hersch v. E. W. Scripps Co., 3 Ohio App.3d 367, 445 N.E.2d 670 (8th Dist.1981) ...... 11,13

IHoffnian v. Washington Post Co., 433 F.Supp. 600 (D.D.C.1977)...... >...... 5

Horvath v. The Telegraph, 11th Dist. Lake No. CA-8-175, 1982 Ohio App. LEXIS 15776 (March 8, 1982)...... 9, 10

1V Ilowe v. L}etroit Free Press, Inc., 219 Mich.App. 150, 555 N.W.2d 738, aff'd 457 ivlich. 871, 586 N.Vi7.2d 85 (1988) ...... 10

Hoyt, Inc. v. Gordon & Assocs., Inc., 104 Ohio App.3d 598, 662 N.E.2d 1088 (8th Dist.1995) ...... 5

Munt v. Liberty Lohby, 720 F.2d 631 (1lth Cir.198i) ...... >...... 5

Joseph Burstyn, Inc. v. IVilson, 343 U.S. 495 (1952) ...... : 7

Kanjuka v. Metrohealth Med Ctr., 151 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920 (8th Dist.) ...... 7

Kapetanovic v, Stephen J. Cannell Prods, Inc. N.D.111. No. 97-C2224, 2002 WL 475193 (Mar. 27, 2002) ...... 9, 10

Knowles v. Ohio St. Flniu., lOth Dist. Franklin No. 02AP-527, 2002-Ohio-6962...... _...... 7

Lansdowne v. Beacon Jotirnal Pub. Co., 32 Ohio St.3d 176, 512 N.E.2d 979 (1987) ...... 4, 7, 8

Lennon v. C2iyahogir Cty. .Iuvenile Court, 8th Dist. Cuyahoga No. 86651, 2006-Ohio-2587 ...... 7

Masson v. NeyvYorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) ...... > ...... ,,...... 13

McCartney v. Oblates qf St. Francis deScrles, 80 Ohio App.3d 345, 609 N.E.2d 216 (6th :Dist.1992)...... 7 sVcKinney v. Avery.Iournal, 99 N.C.App. 529, 393 5.E.2d 295 (N.C.Ct.App.1990) ...... 10

11%Ied. Lab. Mglzat. Consultant:s v. Am. Br•ocad Co., 931 F.Supp. 1487 (D.Ariz.1996) ...... ,..,...... 9, 10

Mehcru v. Gannett Ptrcifc Corp., 66 Haiv. 133, 628 P.2d 312 (Haw.1983) ...... :...... 10

Miller v. Cent. Ohio Crime Stoppers, Inc., l0th Dist. Franklirz No. 07AP-6639, 2008-Ohio-1280 ...... :...... 7

Myocare Nursing Honae, Inc. v. Fifth Third Bank, 98 Ohio St.3d 545, 2003-Ohio-2287, 787 N.E.2d 1217 ...... 4

v Nat'l Medic Serv. Corp. v. E. W Scripps Co., 61 Ohio App.3d 752, 573 N.E.2d 1148 (lst Dist.1:989)...... 13

Nelson v. Associated Press, Inc., 667 F.Supp. 1468 (S.D.Fla.1987)...... 9, 10

New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 L.E.2d 686 (1964) ...... 1, 3,5

O'Brien v. bVilliarrason Daily News, 735 F.Supp. 218 (E.D.Ky.1990) ...... 9, 10

Painter v. E. W. Scripps C'o., 104 Ohio App. 237, 148 N.E.2d 503 (1(lth Dist.1957) ...... ,...... :...... 12

Peper v. ticcnnett Co., Cal.Super.Ct. No. 061753, 2003 WL 22457121 (Apr. 4, 2003) ...... 9, 10

Philadelphia Neivs., Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558 L.E.2d 783 ( 1986) ...... 4, 11

Phillips v, Washington Post C.o., 8 Media L.Rep. 1835 (D.C.Sup.Ct.1982) ...... 9

Phoenix Newspapers, Inc. v. Cliurch, 537 P.2d 1345 (Ari7.App.1975) ...... ,.5

Pope v. Chronicle I'uh. Co., 95 F.3d 607 (7th Cir.1996) ...... ,...... ,..11.

Ramunno v. Cawley, 705 A.2d 1029(De1.1998) ...... 11

Ralkosky v. CSX Transp., Inc., 8th Dist. Cuyahoga No. 92061, 2009-Ohio-5690 ...... 7

Ripps v. Gannett Co., N.D.Ala. No. CV 91-B-1954-S, 1993 WL 209617 (Mar. 3, 1993)...... >......

Saferin v. ^kfcrlriie Communications Gr-oup, Inc., 6th Dist. Lucas No. L-99-1193, 2000 Ohio App. LEXIS 1160 (March 24, 2000) ...... 12

Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 ( 1982) ...... 7

Sindelir v. RJCormtzn Construction, 6th Cir. No. 93-3042, 1993 U.S. App. LEXIS 34100 (Dec. 23, 1993) ...... 5

vi 5mith v. California, 361 U.S. 147 (1959) ...... ,....,....>...... 7

;3tohlmcxnn v. WJW TV, Inc., 8th Dist. Cuyahoga No. 86491, 2006-Ohio-6408 ...... _...... 13

Stow v. Coville, 96 Ohio App.3d 70, 644 N.E.2d 673 (9th Dist.1994) ...... :...13

S'ullins v. RaycoTn Media, Inc., 8th Dist. Cuyahoga No. 99235, 2013-Ohio-3530...... 7

Torski v. Mansfielcl.lournal Co., 100 Ohio App. 538, 137 N.E.2d 679 ( 5th Dist.1956) ...... 12

Vachet v. Central Newspapers, Inc., 816 F.2d 313 (7th Cir.1987) ...... 14

Van Straten v. Ifilwaukee Journal Neivspaper-Pziblisher, 447 N.W.2d 105 (Wis.Ct.tlPp.1989) ...... 10

Virginia ,State I3ti. of'Pharmacy v. ViYginia Citizens Consumer Council, 425 U.S. 748 96 S.Ct. 1817, 48 L.Ed.2d 346 ( 1976) ...... 7

Wanzpler v. Higgins, 93 Ohio St.3d 111, 2001-Ohio-1293, 752 N.E.2d 962...... 7

Winn v. United Press Int'l, 938 F.Supp. 39 (D.D.C..1996) ...... 10

Young v. Ohio Bulk Transfer.^ Inc., 8th Dist. Cuyahoga No. 85575. 2005-Ohio-4426...... 5

Young v. Russ, 11th Dist. Lake No. 2003-L-206, 2005-Ohio-3397 ...... 6, 8

OTHER AUTHORITIES

3 Restatement of the Law 2d, Torts, Section 580(B) (1977) ...... :...... 8

Prosser and Keeton, The Law of Torts (5th Ed.1984) ...... 12

vii THIS APPEAL IS OF SIGNIFICANT PUBLIC INTEREST AND IWt1LVES SUBSTAiNTIAL C()NSTITUTIOleTAL QUESTIONS

Plaintiff claims he was defamed because he was briefly listed as being "wanted" for

passing bad checks, when the adin.itted truth is that he had already been convicted of that crime,

and was wanted on other charges. The trial court correctly entered summary judgment in favor of WOIO in this defamation case, inter alicr, because there is no evidence from which a jury could find that WOIO was negligent. But the Eighth District reversed, incorrectly presuming fault on the part of WOIO based on evidence relating solely to other defendants.

WOIO sought reconsideration, but the Eighth District denied that request, repeating its erroneous finding that WOIO's mere act of airing a television program that it indisputably had no role in creating somehow raised an issue of fact as to WOIO's fault for alleged errors in the program.

The Eighth District`s decisions are at odds with six of well-settled law under the federal and Ohio constitutions. Since Netiv York Tinaes v. Sullivan in 1964, a defendant's fault cannot be presumed from the mere act of publication, regardless of whether the alleged defamation is characterized as per se or per quod. Thus, summary judgment must be entered in favor of a defendant unless plaintiff produces specific evidence showing fault by that defendant.

The Eighth District's decisions are also at odds with those of courts across the counti-y that universally hold that a broadcaster who airs programming produced by otliers cannot be found negligent unless, at the time of broadcast, it had reason to doubt the truth of that program.

I;inally, the appellate court's rulings are contrary to federal and Ohio law liolding, as a matter of law, that statements conveying no greater opprobrium than the literal truth are neither materially false nor actionable as defamation.

The I'>^ighth District's errors are of constitutional significance and they affect the rights of citizens throughout Ohio. Absent this Court's review and correction of these errors, broadcasters and others distribute information in Ohio will face liability and expense that they face

nowhere else in the nation. This Court should accept review and make clear that fault cannot be

presumed in a defamation action, and that summary judgment must be entered where no

evidenee exists tending to prove the fault of the moving defendant. This Court should also join

courts nationwide and hold, as a matter of first impression, that a broadcaster who airs programming created by others is not negligent absent proof it had some reason to doubt the truth of the material. And finally, this Court should rule as a matter of law that a statement conveying no greater opprobrium than the literal truth is not materially false or actionable.

STATEMENT OF THE FACTS AND CASE

1. WOIO played no part in creating, editing or producing the program at issue.

The Warrant Unit program was produced and edited by defendant-appellant Pinpoint

Media Learnings, LLC ("Pinpoint"), Pinpoint did so based on public records provided to it by defendant-appellant Crime Stoppers of Cuyahoga County, Inc. ("Crime Stoppers"), which obtained that information directly from the Cuyahoga County Sheriffs office. Pinpoint delivered the program to defen.dant-appellee WOIO, LLC ("WOIO") as a completed product.

WOIO then broadcast the program, unaltered, on WOIO TV Channel 19 and WUAB TV

Chann.e143. WOIO had no control over the editorial process and played no part in creating, editing or producing the program.

2. WOIO believed that the program was based on information provided by the government and had no reason to doubt the accuracy of the information about plaintiff.

It is undisputed that WO:IO simply broadcast the finished program it received from

Pinpoint. The only evidence 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

2 the Cuyahoga County Stieriff's Office to defendant Crime Stoppers and/or Pinpoint Nledia [and WOIO] had no knowledge of any falsehood or inaccuracy in that information or any reason to doubt its truth.

WC)IO's Res. to Tn.t. No. 3. WOIO never saw the records relied upon by Pinpoint or spoke to

anyone in the Sherriff's office.

3. For five seconds of a half-hour program, plaintiff was listed as "wanted" for passing bad checks, when the literal truth is that he had already been convicted of that charge and was "wanted" on multiple other charges.

Plaintiff-appellee Lavelle Sullins is a young man with a long criminal record, inctuding being charged, and convicted, for passing bad checks. During that case, a warrant was issued when he did not appear for court. Plaintiff has been "wanted" and warrants for his arrest have been issued dozens of times. At least five such warrants were active on the date of the broadcast.

The bulk of the Warrant Unit program dramatizes a few unsolved crimes in the hope that viewers will come forward with relevant information. During a short segment called "Fugitive

File," the program briefly; and matter-of-factly, lists as "wanted" individuals for whorn arrest warrants are outstandin.g. Plaintiff's defaniation claim rests entirely on five seconds of this segment during which hispicture appears with this text: "Lavelle Sullins, 24 Years Old 5'6" 150 lbs, East 125th St. Garfield, .Passiug Bad Checks" white a narrator reads: "Lavelle Sullins.

Wanted for passing bad checks."

ARGUMF^NT IN SUPPORT OF PROPOSITIONS OF LAW

WOIO's Proposition of Law No. 1: In a multi-defendant defamation action, the plaintiff must produce clear and convincing evidence s}xowing fault by each defendant - the U.S. and Ohio Constitutions prohibit courts from presuming fault on. the part of one defendant based on evidenee relating only to other defendants.

1. The U.S. and Ohio Constitutions required plaintiff to produce clear and convincing evidence of negligence to avoid summary judginent.

For half a century, it has been well-established that the First Amendment proliibits courts from presuming the fault element of a defamation clai.m. New York Times v. SuZlivan; 376 U.S. 254, 284, 84 S.Ct. 710, 11 L.E.2d 686 (1964). ,See also, Gertz v. Robert Welch, Inc., 418 U.S.

323, 347, 94 S.Ct. 2997, 41 L.E.2d 789 (1974) ("so long as they do not impose liability without fault," states may define appropriate standard of liability for private-figure defamation cases) (emphasis added)); Philadelphia News., Inc. v. Hepps, 475 U.S. 767, 778, 106 S.Ct, 1558,

89 L.E.2d 783 (1986) ("The plaintiff must show fault.").

Following these decisions, this Court has held that private-figure defamation plaintiffs

"must prove by clear and convincing evidence that the defendant failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication.5"

Lansdowne v. Becrcon Journctl.Pub. Co., 32 Ohio St.3d 1.76, 180-181, 512 N.E.2d 979 (1987).

Here, each defendant separately inoved for summary judgment. WOIO argued that summary judgment should be entered, inter alia; because no evidence exists that would permit a jury finding that it was negligent. WOIO supported its motion with sworn interrogatory answers, deposition testimony and legal authorities. WOIO's motion thus put the burden on plaintiff to produce clear and convincing evidence of the kind and quality sufficient to support a jury verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 252, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986) ("there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." This inquiry "inlplicates the substantive evidentiary standard of proof that would apply" at trial); Myocare Nursing Horne,

Inc. v. Fifth Third Bank, 98 Ohio St.3d 545, 2003-Ohio-2287, 787 N.E.2d 1217, ¶ 33 (same).

2. Implicit in the foregoing constitutional requirements is the requirement that plaintiff produce such evidence as to each defendant's conduct.

The constitutional requirements set forth above are meaningless unless independently applied to each defendant. If not, innocent defendants like WOIO would be subject to protracted litigation simply because evidence unrelated to thenx might an issue of fact as to the fault

4 of another party.1 Ohio law forbids this.

To avoid summary judgment, a plaintiff suing multiple defendants on alternative liability

theories must present evidence that each defendant engaged in tortious conduct. Sindelir v. R,J.

Corman Construction; 6th Cir. No. 93-3042, 1993 U.S. App. LEXIS 34100, at *11-16 (Dec. 23,

1993); see also, Hoyt, Inc. v. Gordon & Assocs., Inc., 104 Ohio App.3d 598, 604-605, 662

N.E.2d 1088 (8th Dist.1995); Gedra v.Dullmer Co., 153 Ohio St. 258, Syl.3, 91 N.E.2d 256

(1950) ("if the cause of an. injury to a plaintiff may be as reasonably attributed to an act for wklich defendant is not liable as to one for which he is liable," the plaintiff has not sustained the burden of showing that his injury is a proximate resultof the negligence of the defendant).2

3. The requirement of specific proof has special force in defamation claims because of the First Amendment rights at stake.

As the Supreme Court held in New York Times v. S`ullivan, fault in defamation cases cannot be proven with generic evidence that someone was at fault. Evidence of fault must be

"brought home," that is, it must be tied to, the person actually r.esponsible for making the alleged error. Id., 376 C.S. at 287. Courts across the country agree that fault must be proven as to each individual defendant. S'ee e.g., Hoffman v. Washington Post C,o., 433 F.Supp. 600, 605

(D.D.C.1977); Phoenix Neivspapers, Inc. v. Church, 537 P.2d 1345, 1360 (Aria.App.1975).

Thus, a photographer who was unaware of and not involved in creating any of the inaccuracies in an article could not be held liable. Cantrell v. For•est City Publ'g Co., 419 U.S.

245, 253 fn. 5, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974). See also, Hunt v. Liberty Lobbv, 720 F.2d

631, 648-649 (1 lth Cir. 1983) (following Cantrell and liiniting imputation of fault and vicarious

1 WUIO does not suggest that any other defendant can or should be held liable. 2 Ohio l.aw permits a party to be held vicariously liablefor thetortious conduct of another only if a special relationship, i.e., respondeat superior, exists, which is not even alleged here. &e, Young v. Ohio Bztlk Transfer, Inc., 8th Dist. Cuyahoga No. 85575, 2005-Ohio-4426,1( 18-20. liability to situations falling squarely within respondeat superior relationship); ,Dangerfaeldv.

Star Fditorierl; ,Ifzc., 9th Cir. No. 95-55387, 1996 U.S. App. LEXIS 23401, *8-9 (Sept. 5, 1996)

(fault could not be imputed to publisher that merely supervised non-editorial aspects of publishing and distributing magazine); Young v. Russ; 11th Dist. Lake No. 2003-L-206, 2005-

Ohio-3397 (news anchor not liable for errors in news report he read, but did not prepare),

4. The appellate court mistakenly believed that fault could be presumed and did not consider the evidence of each defendant's conduct separately, thereby violating WOI('1's right to due process.

In its initial opinion, the Eighth District erroneously, and repeatedly, stated that "fault is presumed" in defamation per se cases. (Op. at ^ 17, 20, fn. 3.) Indeed, the court of appeals must have presumed fault on the part of WOIO because there is no evidence, let alone clear and convincing evidence, from which a jury could find that WOIO was negligent.

In its first opinion, the court of appeals also treated the evidence as if it applied equally to all of the defenciants, repeatedly finding that issues of fact exist because "appellees failed to include all of the relevant informatioti" they were given. (Op. at !( 5, 6, 22, 27, 28.) 3 The court did not identify any evidence specifically relating to WOTO. The court's only arguable reference to WOIO's alleged fault is the statement that it could not determitle from the record "who, if anyone, bears responsibility for" the alleged errors. (Op. at 43.) The court repeated this reasoning in denying reconsideration, and then compounded the error by holding that the mere fact that WOIO decided to broadcast the program was, alone, enough to create an issue of fact as to WOIO's fault. (Recon. at ¶ 3,1 6 .)4

None of the evidence cited by the court on this point pertains to WOIO. It is und`zsputed that: WOIO never received or saw the "booking sheets" or other information the court of appeals felt should have been included in the broadcast; WOIO was never told to check the public docket before airing the show; and it did not know that anyone else had allegedly been told to do so. 4 The court of appeals' comments about the purported reasons for WOIO's decision to air the

6 By attributing knowledge and actions of other defendants to tiVOIO, the court relieved plaintiff of his burden of proving '4VOIO to be at fault. That violates Va%OIO"s procedural due process rights. See, Santosky v. Kramer, 455 U.S. 745, 754-756, 102 S.Ct. 1388, 71 L.Ed.2d 599

(1982). To avoid summary judgment, plaintiff had to produce "clear and convincing evidence" of negligence. But as to WOIO, plaintiff produced no evidence - not even a scintilla - that suggests WOIOwas negligent, much less the clear and convincing evidence a jurywould need to return a verdict in his favor against 'WOIO.

The Eighth District's errors are not unique. Ohio courts have misconstrued the parties' burdens in defamation per se cases ever since a Lucas County court misstated the law in 1991.

Fish v. ReatheYdolvns Country Club Assoc., 6th Dist. Lucas No. L-90-072, 1991 Ohio App.

LEXIS 2637, at *18 (June 7, 1991) (incorrectly stating, contrary to £arzsdoivne, that "actual malice is presumed to exist if the words are actionable per se"). Numerous Ohio courts have repeated this error and will continue to do so unless this Court intervenes.5

program are not supported by any evidence in the record. Moreover, as the United States Supreme Court has noted, it is beynrad dispute that: "[S]peech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisem_ent of one form or another. * * * Speech likewise is protected even though it is carried in a forln that is "sold" for profit, Sniith v. California„ 361 U.S. 147, 150 (1959) (books); Ioseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952) (motion pictures)." Virginia Stale Bd of Pharrnac:y v. Virginia Citizens Consunaer Council, 425 U.S. 748, 761 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). See, e.g., Sullins v. Raycom Illedia, Inc., 8th Dist. Ctiyahoga No. 99235; 2013-Ohio-3530, !; 17 (citing Lennon v. Cuyahoga Cly. Juvenile Court, 8th Dist. Cuyahoga No. 86651, 2006-Ohio- 2587, F 25 (citing Kno-wvles v. Ohio St. Univ., 10th Dist. Franklin No. 02AP-527, 2002-Ohio- 6962 (citing I^odley v. Budget Ccrr .Sales^, Inc., 10th Dist. Franklin No. 98AI'-530; 1999 Ohio App. LEXIS 1790 (April 20, 1999) (citing McCartney v. Oblates of St> Francis deSales, 80 Ohio App.3d 345, 609 N.E.2d 216 (6th Dist.1992) (citing 'l^'ish))))); flnderson v. Baker, 10th Dist. Franklin No. 08AP-438, 2008-Ohio-6919 (citing4Iiller v. Cent. Ohio Crime .StoFpers, Inc., 10th Dist. Franklin No. 07AI'-6639, 2008-Ohio-1280;'( 12 (citing Dodley (citing AIcCrtney (citing Fish)))); Ratkosky v. C'Sk 1'i°ansp., Inc., 8th Dist. Cuyahoga No: 92061, 2009-Ohio-5690 (citing .Kanq'uka v. Metrohealth Med. Ctr., 151 Ohio App.3d 183, 2002-Ohio-6803, 783 N.E.2d 920 (8th Dist.) (citing McCaYtney (c;iting Fish))). Indeed, dicta in a footnote to Wamrpler v. Iliggins, 93 - Ohio St.3d 111, 127 fn. 8, 2001-O.hio-1293, 752 N.E.2d 962, which clearly was not intended to

7 WOIO's Proposition of Law No. 2: A broadcaster is not negligent when it broadcasts a program produced by a separate entity and has no reason to doubt the accuracy of the information therein.

This Court has defined negligence as the failure "to act reasonably in attempting to

discover the truth or falsity" of a publication,6 but has never directly decided whether a media

organization has a duty to independently re-verify the accuracy of a program or publication that

is created, edited and produced by a separate entity.

In the defamation context, Ohio courts have discussed negligence "in terms of the defendant's state of mind by asking whether he had reasonable grounds for believing that the communication was true." Bays v. Northwestern Local School District, 9th Dist. Wayne No.

98CA0027, 1999 Ohio App. LEXIS 3343, at * 12 (July 21, 1999) (citing 3 Restatement of the

Law 2d, Torts, Section 580(B), Comment g (1977)); see also, F'uchs v. Scripps Howard

Broadcasting Co., 170 Ohio App.3d 679, 2006-Ohio-5349, 868 N.E.2d 1024 (summary judgment affirmed because there was no clear and convincing evidence that television reporter failed to act reasonably); Baby 7'•enda of Greater Inc. v. Taft Broaclcasting Co., 63

Ohio App.3d 550, 579 N.E.2d 522 (1989) (same).

Courts have long recognized that it is a standard and necessary practice for television stations to broadcast content created, edited and produced by others without first independently re-verifying the accuracy of that information, unless the broadcaster has some reason to doubt its trtrtli. See, e.g., flnaann v. Clear Channel Co3nmaanications, Inc., .165 Ohio App.3d 291, 2006-

Ohio-714, 846 N.E.2d 95 (1st Dist.) (broadcaster had no duty to independently verify accuracy of political advertisement supplied by independent contractor); Young v. Rztss, 1l th Dist. Lake

No. 2003-L-206, 2005-Ohio-3397 (anchor who read ttews story on-air, but had no role in overrule Lansdowne, also contains this statement. 6 Lansdowne, 32 Ohio St.3d at 180.

8 drafting or editing it, is not liable for defamatory content). Such reliance is particularly

reasonable when the government is the original source of the information. See, e.g., Phillips v.

Washington Post Co., 8 Media L. Rep. 1835 (D;C.Sup.Ct. 1982) (reliance on police "hot line"

report not negligent).

Although the above-described principles are sornetirnes referred to as the "wire service

defense," they apply even when the material does not come from a wire service or news organization and protect broadcasters when nothing in programming that they air (but did not create), puts them on notice that it might include an inaccuraey.7 See, 7.Iorvath v. The 7'elegraph,

11th Dist. Lake No. Ct1-8-1.75, 1982 Ohio App. LEXIS 15776 (March 8, 1982) (discussing wire service defense in an attempt to define reasonable conduct in Ohio).

Although often discussed as a defense, in reality this doctrine sets a media organization's duty when republishing material created by others. See, Brown v. Courier Herald Pzilil'g Co.,

Inc., 700 F.Supp. 534, 537 (S.D.Ga.1988) ("wire service defense merely refines the definition of the duty of a local media organization"); O'Brien v. Williamson Daily.News, 735 F.Supp. 218,

220 (E.D.Ky.1990) (same).

The doctrine 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 irnpose a standard of co.nduct greater than that of a reasonable man, and would place

'See, e.g., Med. Lab. _Mgmt Consultants v. Am. Bt•oad Co., 931 F.Supp. 1487, 1492 (D.Ariz. 1.996) (defense applies to that acted as mere conduit for ABC's Prime Time Live); _Auvil v. CBS, F.Supp. 928, 931 (E.D.Wash.1992) (television affiliate not liable for defamation if the program came from the network becausc of general rule that there is no "conduit liability" in the absence of fault); Kapetanovic v. Stephen J. Cannell Prods, Inc. N.D.III. No. 97-C2224, 2002 Wt, 475193, at *7 (Mar. 27, 2002) (defense may extend to nonaffiliated nerivorks); Bfyks v. C"anadian Broad. Corp., 928 F.Supp. 381, 385 (S.D.N.Y.1996); Peper v. Gannett Co., Ca1.Super.Ct. No. 061753, 2003 VJI, 22457121, at *6 (Apr. 4, 2003) (applying defense to CNN); Nelson v. Associated Press, Inc., 667 F.Supp. 1468, 1477 (S.D.Flae1987) (applying defense to Newsweek magazine).

9 intolerable burdens and costs on them.8 Id. This rule is also consistent with commonly accepted

limitations on distributor liability.9

Here, the only evidence about WOIO is that it played no role in creating the program and

had no reason to doubt, and did not doubt, that the information about plaintiff therein was true.

The court of appeals' conclusion that WOIO could be found negligent on these facts is directly contrary to all of the well-reasoned decisions above. This Court's adoption of a rule making clear that WOIO cannot be held negligent here would comport with the policies underpinning the

First Amendment and bring Ohio in line with the majority of other jurisdictions that have already done so, 0

R See also, Horvath, at *24-27 (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 doirbt 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 ptiblic of news to which they are entitled and [placing] intolerable burdens and costs upon a publisher."). g See, Arrne.n Boladian, Bridgeport .,111usic, Inc. v. UMG Recordings, Inc., 123 Fed.Appx. 165, 169 (6th Cir.2005) (premising liability on the act of distribution "would be to impose a duty on retailers of books and music to screen these products for potential defamatory material. Not only would that burden be onerous, it could potentially have a chilling effect upon protected speech because retailers, in an abundance of caution, might stop selling some categories of artistic products"). 1° These iiiclude: Alabama, Ripps v. Gannett Co., N.D.AIa. No. CV 91-8-1954-S, 1993 WL 209617 (Mar. 3, 1993); Arizona, Med. Labor Mgmt., 931 F.Supp. at 1492; California, Peper, 2003 WI, 22457121, at *6; Florida,lVelson, 667 F.Supp. at 1482; Georgia, I3rown, 700 F.Supp, at 538; i-lavvaii, Mehazc v. Gannett Pacific Corp., 66 Haw. 133, 628 P.2d 3123 322-323 (Haw.1983); Illinois, Kapetanovic, 2002 WL 475193, at *7; Kentucky, O'Brien, 735 F.Supp. 218; Massachusetts, Appleby v. Daily .I7arnpshire Gazette, 395 Mass. 32, 478 N.E.2d 721 (Mass.1985); , Ilowe v. DetroitFr•ee Press, Inc., 219 Mich.App. 150, 555 N.W.2d 738, 740-741(1996), aff'd 457 Mich. 871, 586 N.W.2d 85 (1988); Minnesota, Cole v. Star Tribune, 581 N.W.2d 364, 368-69 (Minrt.Ct.App.1998); New York, Biyks, 928 F.Supp. at 385; North C:arolina, McKinney v: Avery Journal, 99 N.C.App. 529, 393 S.E.2d 295, 297 (N.C.Ct.App.1990); Virginia, Winn v. UnitedPress Int'l, 938 F.Supp. 39, 44 (D.D.C.1996) (federal court ap}?lying Virginia law); Washington, Azcvil, 800 F.Supp. 928; and Wisconsin, Van Straten v. .h%filwaulcee .IouYnal Newspaper-Publisher, 447 N.W.2d 105, 112 (Wis.Ct.App.1989).

1.0 WOIO's Proposition of Law No. 3: A statement that conveys no greater opprobrium than the literal truth is not materiallyfalse for purposes of a defamation claim.

1. Material falsity is a constitutional requirement that plaintiff cannot meet.

The First Amendment requires that libel plaintiffs prove that the contested statement is false in a material way. .iGlasson v. Neiv YorkerMagazine, Inc., 501 U.S. 496, 516-517, 111 S.Ct.

2419, 115 L.Ed.2d 447 (1991); Hepps, 475 U.S., at 777. For this reason, statements that do no more harm to the plaintiff's reputation than a complete recital of the facts would do are not actionable. Haynes v. AlfredA. Knn, Inc. 8 F.3d 1222, 1228 (7th Cir.1993); .Dental Care

Clinic v. -AifcDonough, 8th Dist. Cuyahoga No.50242, 1986 WL 2672 at *3 (Fcb. 27, 1986);

Hersch v. E. ZiT Scripps Co., 3 Ohio App.3d 367, 445 N.E.2d 670 (8th Dist.1981).

2. Where the defamatory "sting" of a publication is true, the plaintiff cannot establish material falsity.

An inaccurate statement is not materially false (and is substantially true) where its impact on the plaintif#'^s reputation approximates the impact of the literal truth. E.g., Behr v. 1'Ileredith

Corp., 414 N.W.2d 339, 344 (Iowa 1987) (statement is substantially tr-Lte if it carries "roughly the same amount of community opprobrium" as the literal truth); Rarnainno v. Crxwley, 705 A.2d

1029, 1036 (De1.1998) ("substantial truth necessarily implies a thread of untruth") (emphasis in original).

To be materially false, a contested statenient must carry "significantly greater opprobrium" than the literal truth. Haynes, 8 F.3d at 1228. The alleged libel must "make the plaintiff significantly worse off than a completely or literaliv truthful publication would have."

Pope v. Chronicle Pub. C'o., 95 F.3d 607, 613 (7th CiY,1996); czccord Desnick v. American

Broad Co., Inc., 44 F.3d 1345, 1350 (7th Cir. 1995) (literal truth must be "signi^cantly less damning" than the alleged falsehood).

11 The classic example of an inaccuracy that is not materially false is "an accusation that the mayor of a town has wasted $80,000 of the taxpayers' money" when the truth is that "he wasted

$17,500." Prosser and Keeton, The L;ccrv ofTorts, 842 (5th Ed.1984). Ohio law is in accord.

Thus, the newspaper headline "Man arrested in ... Death Probe" was not materially false even though the man was never arrested - a deputy sheriff was ordered to arrest him, and the deputy never complied. Painter v. E. W. Scripps Co., 104 Ohio App. 237, 241, 148 N.E.2d 503 (10th

Dist.1957). Likewise, the statement that the plaintiff had been "charged but not arrested" in an article about police raiding a night club and charging exotic dancers with prostitution was not materially false eveii though the plaintiff was not even at the club when. it was raided and was not criminally charged because the prosecutor had accused her of lewdness "or" prostitution in a civil complaint. Bruss v. Vindicator Printing Co., 109 Ohio App.3d 396, 400, 672 N.E.2d 238

(7th Dist.1996).

Similarly, a television station's inaccurate report that a person pleaded guilty to insurance fraud was "substantially true" even though the literal truth was that the government had dropped all charges against him in exchange for a guilty plea by his company. Saferin v. Malrite

Comrra'ns Group, Inc., 6th Dist. Lucas No. L-99-1193, 2000 Ohio App. LEXIS 1160 (March 24,

2000). And, a statement accusing the plaintiff of raping a 12-year-old was substantially true even though the victim was really an adult because the "material part of the defendant's publication was a report that the plaintiff had been arrested and charged with the crime of rape rather than a report of the age of the rape victim." Torski v. tllansfeld .Iournal Co., 100 Ohio

App. 538, 544-545, 137 N.E.2d 679 (5th Dist.1956).

Thus, where the opprobrium caused by the "gist or sting" of the alleged falsehood approximates that of the literal truth; the plaintiff cannot satisfy the burden of proving material

12 falsity, and his claim fails as a matter oflaw. E.g., lllasson, 501 U.S. at 517; Haynes, 8 F.3d at

1228.tt

3. Broadcasting that plaintiff was "wanted" for a crime is not materially false when the literal truth is that he had already been convicted of that crime and was wanted for several other crimes.

Plaintiff claims he was defamed because, by the time the program aired, he was no longer wanted for passing bad checks.12 But the literal, admitted, truth is that: (i) plaintiff had already pleaded guilty to, and been convicted of, passing bad checks; (ii) during that case, a warrant for his arrest on that charge was issued; and (iii) several warrants for his arrest on other charges were outstanding on the date of the broadcast.

As the case law above makes clear, whether plaintiff was wanted for passing bad checks on the date the program aired, or on some other date, is irrelevant for defamation purposes. The gist of the statement is that plaintiff was charged with passing bad checks. The truth is that he

1 1 See also, Hersch, 3 Ohio App. 3d at 376-77 (affirmingsummary ludgment because plaintiff did not demonstrate rnaterial falsity); Nat'l Medic Serv. Corp. vF. W. ScNipps Co., 61 Ohio App. 3d 752, 755, 573 N.E.2d 1148, 1149-1150 (1 st Dist.l989) (same); Dinkel v. Lincoln Pub. Co.. 93 Ohio App.3d 344, 346, 638 N.E.2d 611 (12th 73ist.1994) (same); Stohlmann v.lVJhV TV, Inc., 8th Dist. Cuyahoga No. 86491, 2006-Ohio-6408 (same). i'"'I`he Eighth District's statements that it was "most significant" that plaintiff was identified in a segment titled "Cleveland's 25 Most Wanted" and that the five seconds worth of infornlation about him was not "matter-of-factly reported" suggest that the court never viewed the program. (Recon., T 1 Q-11). The segment in which plaintiff appears is called "the fugitive file," and the five seconds during which plaintiff is listed are necessarily Ynatter-of-fact. The other stateanents disctissed by the court were made in other portions of the program and are about people suspected of crimes in general, not plaintiff. As a matter of law, they are not "of and concerning" him and not actionable by him. See, e.g., Early v. Toledo Blade, 130 Ohio App.3d 302, 720 N.E.2d 107 (6th Dist.1998) (statements about "police misconduct" are not of and concerning any one officer); Stotiv v. Coville, 96 Ohio App.3d 70, 644 N.E.2d 673 (9th Dist.1994) (statements about a tax department are not "of and concerning" tax administrator); Gist v. .11!lacon C.ounty Sherif'fs Dep`t, 284111.App.3d 367, 371-372, 671 N.E.2d 1154 (Ill.App.Ct.1996) (s`That plaintiff `might possibly be armed' or `should be considered dangerous' or was a`most wanted' fugitive - to the extent such statements can even be considered as applying to plaintiff or asserting facts about him - are all secondary details, immaterial. to the truth of the Crime Stoppers Flyer").

13 was charged with and convicted of that crime. The gist of the statement that plaintiff was wanted

is that there was a warrant outstanding for his arrest. The truth is that there were multiple

warrants for his arrest outstanding on the day the show aired.

In Ali v. Ame;•ica's Most Wanted, 984 S.W.2d 224 (Tenn.App. 1998), the plaintiff was

depicted as a rapist and attempted briber in a"most wanted" style television program. Ali

claimed he was defamed because he had not yet been convicted on the date of broadcast, and

because he was later acquitted of one of the counts of attempted bribery. The appellate court

concluded that the program was substantially true because Ali did not suffer any "further

disgrace for being accused of twice committing attempted bribery in light of the fact that he was

convicted of rape and one act of attempted bribery." Id. at 229-230 (ttpholding summary

judgment for defendants).1'

Plaintiff complains that he was not wanted for passing bad checks on the date of the

broadcast, but admits he was convicted for passing bad checks and wanted on other charges. As

a matter of 7aw, what was broadcast could cause no more, harm to plaintiff's reputation than the

literal truth: plaintiff was charged with passing bad checks, a warrant for his arrest was issued

during that case, he then pleaded guilty and was convicted of that charge and, by the time show

aired, he had been charged with, and warrants for his artrest issued on, several other charges. If

anything, the five seconds of information about plaintiff in the program is less opprobrious than

the literal truth because "`3=anted" conveyed to viewers that plaintiff might be innocent of passing

bad checks, when in fact he had already been convicted of it. Because the prograrn. carries no

13 See also, Vachet v. Cenlral Newspapers, Inc;.. 816 F.2d 313, 316-317 (7th Cir. 1987) (stating that plaintiff was arrested pursuarit to a warrant rather than under state statute was an "inoffensive detail of secondary itnportance" because "[b]oth methods of arrest require a showing of probable cause."). Here, issttarice of a warrant requires probable cause, but the literal truth is that plaintiff pleaded guilty to the cri7ne of passing bad checks - which requires proof of guilt. The broadcast conveys less opprobrium than the truth.

14 more opprobrium than the literal truth, plaintiff cannot sustain his burden of proving material falsity and summary judgment should be reinstated.

CONCLUSION

This case involves substantial constitutional questions and matters of public and great general interest. WOIO respectfully requests that this Court accept jurisdiction.

Respectfully submitted,

„^..^ 01*1' Michael K. Farrell 0040941) Melissa A. I)eGaetano (0080567) BAKER & HOST'ETLER LLP PNC Center 1900 E. 9t'' Street, Suite 3200 Cleveland, Ohio 44114-33482 (216) 621-0200 (Telephone) (216) 696-0740 (Facsimile) Email: [email protected] Email: [email protected]

Attorneys fnr Defendants,flppellants WUAB and WOIC), LLC

15 CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum of Appellants WUAB and WOIO, LLC in Support 5r of Juriscliction has been sent by regular U.S. mail, postage prepaid, this 1 day of November,

2013 to the following:

Joshua R. Cohen (0032368) Peter :Pattakos (0082884) Cohen, Rosenthal, & Kramer, LLP 700 West St. Clair Avenue The Hoyt Block Building, Suite 400 Cleveland, Ohio 44.113 (216) 781-7956 (Telephone) (216) 781-8061 (Facsimile) Emai1: jcohen!acrklaw,corn [email protected] Attorneys for 1'laintiff-Appellee Lavelle Sullins

George S. Crisci (0006325) Todd M. Ellsworth (0078208) Zashin & Rich Co., L.P.A. 55 Public Square, 4T h Floor Cleveland, Ohio 44113 (216) 696-4441 (Telephone) (216) 696-] 618 (Facsimile) Email: [email protected] tme aizrlaw.com Attorrcevs for Defenci'ant-Appellcxnt Cuyahoga County C'rirrle ,Stoppers

Daniel Thiel (0082869) 75 Public Square, Suite 650 Cleveland, Ohio 44113 (216) 452-9144 (Telephone) (216) 452-9144 (Facsimile) Email: [email protected] Attorneyfor Defendant-Appellant Pinpoint i1rledia

One of the Attorneys for Defendants-Appellants WL,rAB and UJtJIO, LLC APPENDIX AU^ 1 ^ 20^

Court of pptatg of lito

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHC)GA

JOURNAL ENTRY AND OPINION No. 99235

LAVELLE SULLINS

PLATNTIFF-APP

vs.

RAYCOM MEDIA, INC., ET

DEFENDANTS-A ES

-^. ^ JUDGMENT: -^.. AFFIRMED IN PART; REVERSED IN PART; ^ REMANDED

JQ Civil Appeal from the Cuyahoga County Court of Common Plea •^.^• v Case No. CV-771804

BEFORE: Rocco, J., Boyle, P.J„ and Blackmon, J.

RELEASED AND JOURNALIZED: August 15, ^^^.^: , .';... .'... _ . , }.E;

^^^-- vt- ^^^< "v^

3'. .°^...^cro'-^^^",.' .

-i-

ATTORNEYS FOR APPELLANT

Joshua R. Cohen Peter G. Pattakos Cohen, Rosenthal & Kramer 700 West St. Clair Avenue The Hoyt Block Building - Suite 400 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES WUAB AND WOIO, L.L.C.

Michael K. Farrell Melissa A. Degaetano Baker & Hostetler L.L.P. PNC Center 1900 East 9'h Street Suite 3200 Cleveland, Ohio 441,14

ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY CRIME STOPPERS R^ECEft^ED FOR FILING

George S. Crisci AUG 15 2013 Jonathan D. Decker Zashin & Rich Co., L.P.A. CU A C^JN7Y 55 Public Square, 4`h Floor RTs Deputy Cleveland, Ohio 44113 0 kAQ^ ATTORNEY FOR APPELLEE PINPOINT MEDIA, INC QD Daniel Thiel FILED AND JQURINALIZED .^ 75 Pixblic Square i PER APP,R, 22(C) •, ^t Suite 650 0 Cleveland, Ohio 44113 AUG 1 5 Z013 0 UYAi ^ . TY CLERK ^t) Q F THE qFAPPEALS Deputy t5 KENNETH A. ROCCO, J.:

{¶1} In this defamation action, plaintiff-appellantLavelle Sullins appeals

from the decision of the Cuyahoga County Court of Common Pleas granting

summary judgment in favor of defendants-appellees 1'iripoint Media, Inc.

("Pinpoint Media"), Cuyahoga County Crime Stoppers ("Crime Stoppers"), and

WUAB and W(JIO, L.L.C. ("Wt?IO") (collectively, "appellees"). Appellees, respectively, are a production company that produced a 1 television crime show, Warrant Unit, an organization that offers rewar to the public for information regarding unsolved crimes, and two Cleveland evision stations that broadcast the Warrant Unit television program. s alleged that appellees defamed him when they depicted him on the War nt Unit television program as a fugitive for the crime of passing bad checks, w , in fact, he had satisfied his sentence five months earlier, after pleading guilty to one count of the offense. Based on our review of the record, we find that genuine issues of material fact exist as to the viability of Sullins's defamation . Accordingly, we reverse the trial. court's entry of summary judgment on t claim.

Factual and Procedural Background

{¶2} Sullins was featured on episode 17 of the War t Unit television program in a segment of the program called "Fugitive " which identifies

"Cleveland's 25 Most Wanted Fugitives." For approximately seven or eight seconds, Sullins's photograph was shown, along with his I ame, age, height,

------

weight, and address above the charge, "PASSING BAD C CKS." Sullins's information and photograph were accompanied by the arrative, "Lavelle

Sullins. Wanted for passing bad checks." A reward was for information leading to Sullins's arrest. The narrator cautioned view against trying to apprehend Sullins or the other fugitives featured on the program theinselves, warning: "Do not attempt to apprehend these people. You leave that to the professionals." The episode featuring Sullins aired on h 27, 2010. The program averages 56,000 viewers a week.'

{¶3} Although a capias had been issued for Sullins's st on a charge of passing a bad check in March 2009, more than a year earlier, there is no dispute that Sullins was not, in fact, a "fugitive" for "passing bad checks" at the time the program. aired. The capias issued in March 2009 related to charges filed against

Sullins after he bounced a check for $1,536 in connection with his purchase of a used vehicle several years earlier. Four days after it was;issued, the capias was recalled. On April 30, 2009, Sullins pled guilty to one count of passing a bad check. He was sentenced to one year of community cont'rol sanctions and required to make restitution. Sullins made full restitution, and his community

'As it relates to the Warrant Unit program, Pinpoint Mt ia has a "straight barter" arrangement with WOIO. WOIO gives Pinpoint Media ertain commercial spots to sell during the Warrant Unit prograrii and keeps the i venue received for sellin.gthose spots; in exchange, WOIO receives a finishedprograi to air. Any reward money paid to viewers for information that leads to a suspect's an st is paid by Crime Stoppers. control sanctions were terminated early. As of October 16, 2009, more than five

months before episode 17 of the Warrant (Jnit program aired, Sullins was

deemed to have satisfied his sentence.

1¶4) The "Fugitive File" segment was prepared using information obtained

from the Cuyahoga County Sheriff s Department. Erin Acklin, a dispatcher for

the sheriff's department, was charged with running reports; on valid warrants

and providing information on suspects to Crime Stoppers for on the Warrant

Unit television program. Approximately once a month, would compile excerpts of approximately 70 files from the departzneiat's Incarceration

Management and Cost Recovery System ("IMACS"). The ZMACS system is a non-public system used by the sheriff's department, which cor'ztains information regarding outstanding warrants. Acklin testified that there were no specific parameters she followed in selecting suspect files for use on the Warrant Unit progra.m, other than to avoid warrants for drug charges and p.robation violations

-"they wanted fresh warrants" ---- an.d to ensure that the gro;up of s uspects was diverse, i.e., to avoid sending "a lot of black males," as requested by Pinpoint

Media, At the time she pulled the files, Acklin verified whether a warrant was outstanding based on the information in the IM..ACS sy Acklin then compiled a package of information on each suspect, consi of the jacket front from the file of each suspect, a photograph, and a "booking s t" printed from the IMACS system from the time the suspect was last booked. Once she prepared a stack of files, she would contact Christopher R'ech, president and

executive producer of Pinpoint Media, and advise him that the files were

available for pickup. Because the status of a warrant could change at any time,

Acklin testified that she and her sergeant, Sergeant Davrd Synkowski, told

Pinpoint Media "all the time" to update the information after Acklin gave it to

them by "double checking" the status on the public docket for the Cuyahoga

County Court of Common Pleas. Acklin did not know how lorig it took before the

sheriffs department received notice that a warrant had been withdrawn.

JT5} Approximately oncb, a week, David Rutt, coordinator for Crime

Stoppers, picked up the information Acklin had compiled foi, the fugitives to be

featured on the Warrant rJnit program. Rutt would deliver this information, without reviewing it, to Pinpoint Media for in pr.eparing the

"Fugitive File" segment. With respect to Sullins, appellees ved three pages of documents from the sheriffs department. The documents included a chart printed from the IMACS system that listed Sullins's name, "record type" -

"warrant" - the warrant/order number, and a brief descrip of the charge for which the warrant had been issued, i.e., four counts of "passing bad checks."

Appellees also received a copies of Sullins's mug shots azzd a printout of a

"booking sheet" that contained Sullins's personal inforniation and physical description. 'I`he "booking sheet" identified Sullins's "i ate status" as

"convicted" and also indicated that "holds" that had been sly placed by three suburban communities had been "removed." Although the sheriffs department represented, based on its records, that there was an outstanding warrant for Sullins's arrest as of the time Acklin compiled Sullins's information for the Warrant Unit program, there was nothing in the documentation appellees received from the sheriffs department that indicated the status of the warrant or when it had been issued.

{¶6} Pinpoint Media claims to have received Sullins's information from the sheriffs department "shortly hef'ore" the episode featuring Sullins aired on

March 27, 2010; however, there is nothing in the record that indicates exactly when appellees received Sullins's information from the s department or how long after appellees received this information that S was featured on the Warrant Unit program. Sullins claims that had ap ees checked the

Cuyahoga County public docket prior to airing the episode, instructed by the sheriff s department, they would have discovered that the ant for his arrest for passing a bad check had been withdrawn more than a earlier. Sullins further claims that the inaccurate reporting of Sullins's "fugitive" status was not an aberration. Of the 27 "fugitives" featured on Episode 17 of the Warrant Unit program, he contends 11 were not, in fact, "fugitives" at the {time the program aired.

{¶7} Although there was no outstanding warrant for Sullins's arrest for passing bad checks at the time episode 17 aired, at least five warrants for his arrest were outstanding at that time related to misdemeazior traffic offenses

pending in the city of Cleveland. Appellees, however, wer e not aware of the

existence of these other warrants at the time the program ail,r.ed.

{¶8} After the program aired, Sullins filed suit against hppellees, alleging

that the broadcast was defamatory per se and depicted him in a false light.2 lie

further claimed that, as a result of the broadcast, he lost his jo:,b and access to his

children and that his reputation in the community was damaged.

(¶9) In August 2012, appellees filed separate motions for summary

judgment in which they argued, among other grounds, that th'p statements made

regarding Sullins during the Warrant Urzit program ---- i.e., that he was a

"fugitive" wanted on an outstanding warrant for "passing bad. checks" and one

of "Cleveland's 251VIost Wanted Fugitives" ---- were protected l?y Ohio's statutory

fair report privilege and common-law qualified privilege, that Sullins could not

establish that appellees acted with the requisite degree of fault, and that the

substantial truth and incremental harm doctrines barred Sullins's claims. On

November 27, 2012, the trial court granted appellees' motions for sumznary

judgment. The trial court held that appellees' depiction of Suilins as "evading

arrest on a present charge of passing bad checks" was "arguably libelous per se."

'-Sullins originally filed suit against appellees and Raycom Media, Inc. ("Raycom Media"), WOIO's parent company, on November 15, 2010, assexting a defamation clairn. On September 12, 2011, he voluntarily dismissed the case without prejudice. He refiled his complaint on December 20, 2011, adding a claim for false-light invasion of privacy. Sullins dismissed Raycom Media with prejudice on Novemlber 13, 2012. However, because the information appellees published w the same, albeit

inaccurate, information contained in the sheriffs department's IMACS system,

the trial court held that appellees' statements were protected;by Ohio's statutory

fair report privilege, R.C. 2317,05. Finding no factual basis to upon whicli

conclude that appellees acted with "actual malice" - as req;uired to defeat the

privilege - and concluding that Sullins could not establish essential elements

of a false-light invasion of privacy claim, the trial court entered summary judgment in favor of appellees on both Sullins's defamation and f'alse-light invasion of privacy claims.

10) Sullins appeals the trial court's entry of summary judgment in favor of appellees on his defamation claim, raising as his sole assz^gnment of error:

The trial court erred in granting summary judgment to the Defendants on Sullins's defamation claim.

{¶ 11} Sullins does not assign as error the trial court's; entry of summary judgment on his false-light invasion of privacy claim. Accordingly, we affirm the trial court's entry ofsummarY Judg'.ment on that claim. However, for the reasons set forth below, we find that genuine issues of material fact exist that preclude summary judgment on Sullins's defamation claim. We, therefore, reverse the trial court's grant of summary jud.gmen.t in favor of appellees on. Sulliris's defamation claim. Standard of Review

{T 12} An appeal of a trial court's summary judgment ruling is subject to

a de novo standard of review. Grafton v. Oiio Edason Co., 77 Ohio St.3d 102,

105, 671 N.E.2d 241 (1996). We accord no deference to the trial court's decision

and independently review the record to determine whether summary judgment

is appropriate. Id.

{¶131 Under Civ.R. 56, summary judgment is appropriate when (1) no genuine issue exists as to any material fact, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable ds can reach only one conclusion, which is adverse to the nonmoving party.

I¶14) The moving party carries an initial burden of se'tting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher u. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). the moving party fails to meet this burden, summary judgment is not a ate; if the moving party meets this burden, summary judgment is ap i.ate only if the nonmoving party fails to establish the existence of a ge issue of material fact. .Id, at 293.

Defamation

{¶151 Defamation occurs when a publication contains a false statement

"`made with some degree of fault, reflecting injuriously on a pE 's reptttation, or exposirig a person to public hatred, contempt, ridicule, e or disgrace, or

affecting a person adversely in his or her trade, business or p ession."' Jackson

U. Columbus, 117 Ohi.o St.3d 328, 2008-Dhio-1041, 883 N.E.2d 1060,'^j 9, quoting

A & B-Abell Elevator Co. v. C'olumbu.slCenl. Ohio Bldg. ;c4^ Constr. Trades

Council, 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995): To es;tablish a claim for

defamation, a plaintiff must show: (1) a false statement of was made about

the plaintiff, (2) the statement was defamatory, (3) the sta ent was published,

(4) the plaintiff suffered injury as a proximate result of the publication, and (5)

the defendazit acted with the requisite degree of fault 'in publishing the

statement. Am. C•hem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 389, 390,

2012-Ohio-4193, 978 .N_E.2d 832, ¶ 77, citin.g Pollock v. Rashir^, 117 Ohio App.3d

361, 368, 690 N.E.2d 903 (lst Dist.1996); see also Lucas v.jPerciak, 8th D:st,

Cuyahoga No. 96962, 2012-Ohio-88, ¶ 12, citing Akron-G'anfton Waste Oil, Inc. v. Safety-Kleen Oil Serus., Inc., 81 Ohio App.3d 591., 601, 6X1 N.E.2d 955 (9th

Dist.1992).

{¶16} In this case, there is no dispute that Sullins uras not, in fact, a

"fugitive" wanted on an outstanding warrant for "passing lba.d checks" - as represented on the Warrant Unit program - at the time the m aired. Nor is there any dispute that the false statement was published

{¶ 171 With respect to the second element - whether false depiction of Sullins was defamatory - courts distinguish between ation per se and defamation per quod. "`Defamation per se occurs when m al is defamatory

on its face; defamation per quod occurs when material is faniatory through

interpretation or innuendo."' N.E. Ohio Elite Gymnastics ining Ctr. Inc. u.

Osborne, 183 Ohio App.3d 104, 2009-Ohi.o-2612, 916'N.E.2d 484, J( 7, quoting

Gosden v. Louis, 116 Ohio App.3d 195, 206-207, ti87 N.E.2d 481(9th Dist.1996).

A statement is defamatory per se, if, on its face, "it reflects upon a person's

character in a manner that will causeerson^ [the person]to be ridic ,^ led, hatedor held

in contempt" or in a manner that "tends to injure" the personli in his or her trade

or occupation. Gosden at 206-207; Ratkosky u. CSX Transp., .Inc., 8th Di.st.

Cuyahoga No. 92061., 2009-Ohzo-5690, ¶ 46. Unless a privilege applies, da:mges

and fault are generally presumed to exist if a statement is defamatory per se.'

3With respect to the fourth element, where fault is not presumed, the degree of fault required to prevail on a defamation claim depends on the status of the person allegedly defamed, ranging from a private individual to a public figure. Ziassouf u. Cleveland Magazine City Magazines, 142 Ohio App.3d 413, 421, 755 N.E,2d 976 (l l.th Dist.2001). When a plaintiff is a private individual, the court a;pplies a negligence standard; when a plaintiff is a public figure or a limited purpos:e public figure, the plaintiff must prove that the publisher acted with actual malice in publishing the alleged defamatory statement. Id. at 421-422; Jackson, 117 Ohio St.3d 328, 2008-Ohio-1041, 883N.E.2d 1060, at T 10; New York Times v. Sul'liuan,, 376 U.S. 254, 280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

Appellees argued below that Sullins was a "limited purpose public figure." We disagree. An individual who commits a crime does not generall'y become a limited purpose public figure "in relation to alleged defamation arising fr;om a crime that he or she committed." Stohlmann v. WJW TV, Inc., 8th Dist. Cuyahoga No. 86491, 2006-Ohio-6408, ¶ 10, citing Kassouf at 421; see also Wolstora u. Re;ader's Digest Assn., 443 U.S. 157, 168, 99 S.Ct. 2701, 61 L.Ed. 2d 450 (1979) (rejecting the proposition that "any person who engages in criminal conduct automatically becomes a public figure for purposes of comment on a limited range of issues relating to his conviction"). A criminal defendant may be considered a limited purpose public figure only where: -_------.. _ ------. ..

See, e.g., Lewandowshi u. Penske Auto Group, 8th Dist. Cuyahoga No. 94377,

2010-Ohio-6160, ^ 25, citing Wampler v. Iliggins, 93 Ohio 6t.3d 111, 127, 752

N.E.2d 962, fn.8.; Lennon u. Cuyahoga Cty. Juuenile Court, 8th Dist. Cuyahoga

No. 86651, 2006-fJhio-2587, 1j 25;1Vliller v. Cent. Ohio Crinae Stoppers, Inc., 10th

Dist. Franklin No. 07AP-669, 2008-C)hio-1280, T 12. If an a!Ileged defamatory

statement is unarnbiguous, whether it is defamatory per se i;s a question of law

for the court to determine. Gosden at 207, citing Becker v. Toulrnin, 165 Ohio St.

549, 555, 138 N.E.2d 391 (1956).

{¶ 18} A false written statement or television broa accusing a person

of committing a crime is defamatory per se. See, e.g., at 207, citing

Akron-C'anton Waste Oil, 81 Ohio App.3d at 601, 611 N.E. 955, and State u.

Smily, 37 Ohio St. 30, 32-33 (1881); see also Sweitzer v. Out Communs., Inc.,

133 Ohio App.3d 102,108, 726 N.E.2d 1084 (10th Dist.1999) (defamatory matter

broadcast by means of television is classified as libel); citing Perez u

(1) the defendant's conduct is a legitimate matter of public interest to the community; (2) "the press has publicized his conduct in paxt as a result of his own efforts to obtain publicity"; and (3) defendant'sj conduct has "made him the target of a criminal proceeding about which the public has a need for information and interpretation." Talley v. WH^O TV- 7, 13 J. Ohio App.3d 164, 170, 722 N.E.2d 103 (2d Dist.1998), quoting Orr v. Argus-Press Co., 586 F.2d 1108, 1116 (6th Cir.1978).

The record in this case does not support a finding that Sullins was anything other than a private individual plaintiff: Accordingly, if fault was not presumed, Sullins, as a private individual plaintiff, would need to show that appellees were at least negligent in publishing the false statements about him, Based on the record before us, we believe that Sullins presented sufficient evidence of negligence to defeat surnmary judgment on that issue. Scripps-Howard Broadcasting Co., 35 Ohio St.3d 215, 520 N.F.2d 198 (1988),

and 3 Restatement of the Law 2d, Torts, Section 568A, at 182 (1977).

{¶ 19} Sullins's defamation claim is based on appellees' ^tepiction of him as

one of "Cleveland's 25 Most Wanted Fugitives," who is evading arrest on an

outstanding charge of "passing bad checks." We agree with Sullins that the

statements at issue "reflect upon his character" in a manner that would cause

him to be "ridiculed, hated, or held in contempt" and. "tend to' injure" him in his

trade or occupation. Gosden, 116 Ohio App.3d at 206-207'^; 687 N.E.2d 481;

Ratkosky, 2009-C)hio-5630, at ¶ 46; see also Miller, -Ohio-1280, ¶ 13

(observing that publication of dismissed warrant for p tiffs arrest "is

arguably defamatory per se"). Accordingly, we find that the inaccurate depiction

of Sull.i.ns on the Warrant rlnit program as a fugitive pres wanted and

evading arrest on an outstanding warrant for passing bad is defamation

per se. The innuendo that Sullins is a bad check artist is defamation per quod.

Statutory Fair Report Privilege and. Common-Law Qualified Privilege

(¶20) A defamatory statement, hoWever, must also "be examined in the

context of privilege." Miller, 2008-Ohio-1280, at ¶ 13, citing McCartney v.

Oblates of St. Francis deSales, 80 Ohio App.3d 345, 609; N.E.2d 216 (6th

Dist.1992). Ohio law recognizes a statutory privilege to defamation for fair reports of governmental proceedings, official records, or information ------

received from the government made in the public interest. lio also recognizes

a common-law qualified privilege. Where a defamatory statement falls within

the scope of the statutory fair report privilege or common-law qualified privilege,

the statement is not actionable unless the plaintiff establishes that the

statement was published with actual malice, i.e., with knowledge of its falsity

or with reckless disregard of whether it was false or not1, to overcome the

privilege. See, e.g., Lennon, 2006-Ohi.o-2587, at 11 26; Jackson, 117 Ohio St.3d

328, 2008-Oliio-1041, 883 N.E.2d 1060, at ¶ 10, citing Jczcobs u. Frank, 60 Ohio

St.3d 111, 573 N.E.2d 609 (1991), paragraph two of the sy,llabus. "Reckless

disregard" exists when a publisher of a defamatory statement "acts with a`high

degree of awareness of [the statement's] probable falsity,' or vs^hen the publisher

`in. fact entertained serious doubts as to the truth of his publicatiorA.'" (Citations

omitted.) Id. Where a defamatory statement is subject to a qualif'ied privilege,

"actual malice will not be presumed." Miller at 1113, citing Hahn u. Kotten, 43

Ohio St.2d 237, 244, 331 N.E.2d 713 (1975).

{4^21} The trial court heJ.d that the depiction of Sulli on the Warrant

(Init program was protected by Ohio's statutory fair report ivilege. The fair

report privilege originated at common law and has been d, in part, at R.C.

2317.05. R.C. 2317.05 provides, in relevant part: -

The publication of a fair and impartial report of * * * t: e issuing of any warrant * * * is privileged, unless it is proved th tt the same was published maliciously, or that defendant has refused or ------______

neglected to publish :in the same manner in which the publication complained of appeared, a reasonable written explanation or contradiction thereof by the plaintiff

{¶22) Sullins argues that the trial court erred in entering summary

judgment based on the statutory fair report privilege in light of evidence that (1)

the sheriffs department provided the warrant information to appellees on the

condition that they check the warrant status before using tlie information and

(2) appellees failed to include all of the relevant infcrmation contained in

Sullins's booking sheet in their report. We agree.

{¶231 In assessing whether summary judgment was properly granted based on the fair report privilege, we must determine ether reasonable minds, upon reviewing the facts in the case, could reach `but conclusion"' as to whether. the depiction of Sullins on the Warrant t program was

"substantially accurate." Young v. Morning Journal, 76 Ohio 3d 627, 628, 669

N.E.2d 1136 (1996). Based on the record in this case, we that reasonable minds could reach different conclusions regarding that is

{¶24) The fair report privilege does not require a "verbatim reproduction of the official record" or other information obtained from the governznent in order for a published report based on the record or governmental informati.on to fall within the scope of the privilege. Oney u. Allen, 39 Ohio St 103, 529 N.F.2d

471 (1988), paragraph one of the syllabus. The privilege appl if the defendant demonstrates that the publication: (1) deals with a matter of public coxicern and (2) is "a fair and substantially accurate account" of the l official record or

governmental information. Dinkel v. Lincoln Publishing tiio), Inc., 93 Ohio

.App.3d 344, 346, ti38 N,E.2d 611(12th Dist.1994); Qrzey at °agraph two of the

syllabus. A publication is "substantially accurate" if it "con eys the essence of

the official record to the ordinary reader, without mislead the reader by the

inclusion of inaccurate extra record information or the e usion of relevant

information in the record." Id. at paragraph three of the syllabus. A plaintiff

"cannot defeat summary judgment by raising purported minor discrepancies

between the [report] and the official information." 1linkel at 346. Variances

from the verbatim record are permitted so long as the "grav n," "gist," "stin g;>"

or "substance" of the underlying report is substantially Pollock, 117

Ohio App.3d at 368, 690 N.E.2d 903. "Errors as to secondary that is, facts

which do not change the import of the story or substantially °allter the substance

of the alleged defamatory (but protected) aspect of the story, not actionable."

Dinkel at 346; see also Young u. Gannett Satellite. Znforrna n AlVetworiz, 837

F.Supp.2d 758, 764 (S.D.Oh1o 2011).

{¶ 25} In this case, it is undisputed that the warrant i ation appellees obtained from the sheriffs department was inaccurate. er, appellees contend that because the inaccurate information reported the Warrant Unit program was taken from an official governmental record, i.e., printouts from the sheriffs department's IMACS warrantg tracking y , andoter h "goveriiinental information," i.e., the sheriffs department's ciral representation

that there was an outstanding warrant for Sullins's arrest for passing bad checks as of the date it compiled the "fugitive file" materials appellees, their defamatory depiction of Sullins on the Warrant Unit pro falls within the scope of the fair report privilege,`{ Appellees further argue the trial court so held) that because they publ%shed the same information was contained in the sheriffs department's IMACS system "without adding tol or subtracting ariy information," appeilees' depiction of Sullins was a "substantially accurate" report, entitling appellees to the protection of the fair report privilege as a matter of law. We disagree.

{¶26} A report based on inaccurate official records or inaccurate governmental information may be protected by the fair report privil.ege. See, ^ e.g., Smitek v. Lorain Cty. Printing & Publishing Co.,. 9th Dist. Lorain No. r'

94CA006023, 1995 Ohio App. LEXIS 4527 (Oct. 11, 1995)1 (reports based on

4Sullin.s argues that because appellees did not receive a copy of the actual warrant or any other "official" documentation indicating that there was an outstanding warrant for Sullins's arrest for "passing bad checks," they could not claim the protection of the fair report privilege. The fair report privilege is not, however, limited to the publication of information from "official" documents, but rather, also protects reports of "information provided by the government," whether the information was provided orally or in writing. Mastandrea v. Lorain Journal Co.,165 Ohio App.3d 221, 232, 583 N.E.2d 984 (11th Dist.1989). The "information provided by the government" in this case consisted of the printouts from the IMACS systerri and the additional representations made by the sheriffs department that the suspects for whom file information was provided were subject to outstanding warrarits. Reports of such "governmental information" may be protected from defamation claims based on the fair report privilege if the requirements for application of the privi]ege are otherwise satisfied. ------..

inaccurate official records protected against defamation claim by fair report

privilege); see also Martinez v, WTVG, Inc., 6th Dist. Lucas No. L-07-1269,

2008-®hio-1789,^, 27-29 (where governmental official gave newspaper the wrorzg

mug shot, report using mug shot "inaccurately accessed" by tal official

was protected against defamation claim by fair report privi ). In this case,

however, the "governmental information" appellees usedl in producing the

Warrant Unit program included an explicit caveat. Al the sheriffs

department represented, based on the information in its CS system, that

warrants were outstanding for Sullins and the other suspec to be featured on

the Warrant Unit program as of the date the infornlationi was compiled for

appellees' use, it also knew that the status of a warrant could change at any

time, and, therefore, instructed Pinpoint Media "all the e" to update the

warrant i.nformation it received from the sheriffs departm t by checking the

public docket for the Cuyahoga County Court of Common pri.or to airing.

{¶27} Although the sheriffs department representedi that the warrant

information it provided was accurate only as of the date information was compiled for appellees, appellees did not reflect that limita in publishing the information relating to Sullins. Appellees did not inclu , as part of the broadcast, the date as of which the warrant information reparted on the program was believed to be accurate.

{^28} Further, in opposing appellees' motions for su ^amary judgment, Sullins presented evidence that appellees never properly updated the warrant

information they received by checking the court's docket, a;s instructed by the

sheriffs department. Sullins also presented evidence that if appellees had

properly checked the court's docket prior to airing, they would have discovered

(1) that Sullins's warrant for passing a bad check had been recalled more than

a year earlier and (2) that Sullins had already been convictecl of, and served his

sentence for, that offense. Sullins also pointed out that the "booking sheet" appellees received from the sheriffs department that was liniked to the warrant for Sullins's arrest in the IMACS system identified his "lininate status" as

"convicted." All of this arguably "relevant information," included in the IMAGS printouts and other "governmental information" received from the sheriffs department, was excluded from the broadcast.

t¶29} Based upon our independent review of the and viewing the evidence in the light most favorable to Sullins, we believe that reasonable minds could reach different conclusions as to whether appellees' dep',iction of Sullirrs as one of "Cleveland's 25 Most Wanted Fugitives," evading arrest on a present charge of passing bad checks, was a fair and "substantially accurate" report of the governmental information and records upon whi it was based.

Accordingly, we find that the trial court erred in granting mary judgment to appellees based on the fair report privilege. See, e.g., Young, 76 Ohio St.3d

627, 669 N.E.2d 1136 (trial court erred in granting summary judgment based on R.G. 2317.05 privilege where report excluded relevant information - i.e., middle

initial of individual - and included inaccurate extra-record;information - i.e.,

where the individual allegedly resided - which "could be co idered misleading

to the ordinary reader"),

{^130} As an alternative basis for affirming the court's award of

summary judgment in favor of appellees, Crime Stoppers and Pinpoint Media

argue that Ohio's common-law qualified privilege shields app Ellees from liability

on Sull.ins's defamation claim. This privilege "applies in a variety of situations

where society's interest in comP ensatin g a erson person for Io ^s of re utation. s is outweighed by a competing interest that demands p on." A & .B-Abeli

Elevator Co., 73 Ohio St.3d at 8, 651 N.E.2d 1283. The privi "does not attach to the communication, but to the occasion on which it is m " Gilbert u. WNIR

.1 t70.FM„ 142 Ohio App.3d 725, 739, 756 N.E.2d 1263 (9th Dist.20Q1), citing A R

B-Abell Elevator Co., 73 Ohio St.3d at 8-9, 651 N.E.2d 1283. The "essential elexnents" necessary to establish a common-law qualified p'rivilege are "'good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties onlY."' Garof . oloCuyahoga v. Fairview Park ,Nas. 8th Dist 92283 and 93021,

2C?U9-Ohio-f456,¶ 19 , fn.3 q uoting Hahn, 43 Ohio St.2d at 244, 331 N.E.2d 713.

(¶31) Appellees' argument for application of the com:mon-law qualified privilege is based on the same facts and evidence as tlieir argument for

------application of the statutory fair report privilege. Appellees contend that they

acted in good faith, that their publication of the statement regarding Sullins

furthered a public interest -i.e., "apprehending fugitives" by' "alert[ing] citizeris

to the presence of dangerous criminals," "incentiviz[ing] citizen-police

communication," and "pressur[ing] wanted criminals into facing justice."

Appellees further contend that the publication was limited t^o that purpose and

that the statement was published in a proper manner. How, ever, the record is

clear that "apprehending fugitives" was not the only p ose for which the

Warrant Unit program was broadcast. As Pinpoint 's president and

executive producer, Christopher Rech, testified, "inasmuchlas fit] * * * drives

viewership," one of Pinpoint Media's primary purposes broadcasting the

Warrant Unit program - which provides "roughly" 50 p t of Pinpoint.

Media's revenues - was to entertain.5

{¶32} For this reason and the reasons we determined ;appellees were not entitled to summary judgment based on the statutory fair report privilege, we find that there are genuine issues of fact regarding appellees acted in

"good faith," whether the statement at issue was sufficiently ited to the public interest to be upheld, and whether the statement was pub^lished in a proper manner. As such, appellees are not entitled to summary judgrnent based on the

'Because this was arguably not a consideration for Crime Stoppers, Crime Stoppers may have a somewhat stronger case for application of the common-law qualified privilege. common-law qualified privilege.'

Substantial Truth and Incremental Harm Doe

1¶33} Appellees also contend that even if their defamatory statements

were not privileged, the trial court's entry of summary judgment should be

upheld based on the substantial truth and incremental doctrines.

{¶34) While a plaintiff must prove falsity as an elem t.of a defamation

claim, a publisher may also "completely defend" a defam a action "by showing

that the gist, or imputation, of the [defamatory] statement is!substantially true,

and hence, the statement is not false." Sweitzer, 133 Ohio App.3d at 110, 726

N.E.2d 1084, citing Natl. Medic Servs. Corp. u. E. W. Scripps Co., 61 OhioA.pp.3d

752, 755, 573 N.R2d 1148 (lst Dist.1989); see also Stohlm n, 2006-Ohio-6408

at ^ 13 ("Truth is an absolute defense to def'amation."), ci .Krenis u. Univ.

Hosps. of Cleveland, 133 Ohio App.3d 6, 726 N.E.2d 1016 Dist.1.999); I3russ

u. Vindicator Printing Co., 109 Ohio App.3d 396, 400, 672 N.E.2d 238 (7th

Dist. 1996) (material falsity is an essential element to a defamation claim).

{¶35} Here, appellees contend that because Sullins had other outstanding warrants - for traffic offenses ----- and had already been convi'cted of passing one

bBecause we conclude that there is a fact"ual issue as to whether a privilege applies, we do not reach the issue of whether any privilege was overcome by a showing of actual malice. See, e.g., Martinez u. WTVG, Inc., 6th Dist. Lucas No. L-07-1269, 2008-Ohio-1789,11 33-38; Young, 837 F.Supp.2d at 764 fn.3; cf. ltliller, 2008-Ohio- I280 at ¶ 21 (noting that if plaintiff had pointed to "other similar situations in which police officers erred in verifying the validity of warrants, her argument that a genuine issue of fact exists concerning actual malice would be stronger"). bad check when the program aired, there was no "substantial rence between

what [was] complained of and the literal truth" and "no more harm to [Sullins's]

reputation than the literal truth."

{¶36} There is, however, a significant difference betvveen a warrant for

misdemeanor traffic offenses and a warrant for "passing checks," a felony

involving fraud, deceit, and dishonesty. Nor does the fact ns was previously convicted of one count of passing a bad check necessarily izegate the alleged harm resulting from appellees' inaccurate report that Sulliris was, at the time the program aired, presently wanted and evading arrest for passing multiple bad checks. Sullins h.ad already served the sentence for the one icount of passing a bad check to which he had previously pled guilty at the time the program aired.

Someone viewing the program, who had been aware of Sullins's prior conviction, might have reasonably believed that Sullins had been charged with new, unrelated counts of passing bad checks, i.e., that he was a'ibad check artist," potentially causing further harm to Sullins's reputation. 11!I;oreover, appellees did not simply report that there was an outstanding warrant for Sullins's arrest for "passing bad checks" but identified him as one of "C land's 25 Most

Wanted Fugitives," offered an award for information lea to his arrest, and warned viewers against attempting to apprehend Sullins selves: "You leave that to the professionals" -- as if to suggest that Sullins vvas a case for the Cleveland Police Department's SWAT team.'

{1137) As the Montana Supreme Court aptly explained Hale v. Bzllings,

Moritczna Police.Dept., 295 Mont. 495, 1999-1VIT-213, 986 P,2cl 413 (1999), use of

the terms "most wanted" and "fugitive" in describing a have significant

negative implications:

The term "most wanted" is offered for public con umption for a singular purpose: to warn that, the person in questi n, above all other ordinary wanted persons, is the focus of intens€ scruti.ny by law enforcement personnel, thus providing a clear coni, otation that the person has been identified as such based on undi! ;losed facts.

Likewise, the term "fugitive" suggests but one urgent message to the intended hearer: the suspect has allegedly committed a crime, has eluded capture, and is now fleeing justice. *** Qnce offered for public consumption, the term inherently connotes that!police are in pursuit of the person, and that the person is, with knov'vledge of the pursuit, actively avoiding confrontation or capture by ezther fleeing or hiding. Id. at ¶ 30-31.

I¶38} Whether a defamatory statement is substantiallytrue is gerierally a question of fact. Young v. Gannett Satellite Znformation Network, €337 F.

Supp.2d 758, 764 (S.D.Ohio 2011), citing Sweitzer; 133 Ohio App.3d at 110, 726

N.E.2d 1084. In this case, apart from excluding' suspects ^with outstanding warrants for probation violations and drug offenses and uring that the suspects were not all black males, no particular methodol appears to have

' We seriously question the identification of Sullins as o: of "Cleveland's 25 Most Wanted Fugitives." If Sullins was one of"C1eveland's 25 Mo Wanted Fugitives" based on a charge of passing a bad check, Cleveland must I one of the safest communities in the country. been used to identify those suspects with outstanding w in.ts who would be

featured as "Cleveland's 25 Most Wanted Fugitives" on Warrant Unit

program. Based upon the apparently random manner in w suspects were

selected for the program, we find that reasonable minds conclude that

Sullins was not, under any "ordinary, plain-meaning definition" of the term, a

"most wanted" "fugitive" at the time the Warrant Unit program aired. See ,llale,

295 Mont. 495, 1999-MT-213;.986 P.2d 413, at `; 21(trial court erred in entering summary judgment on defamation claim arising from alleged defamatory depiction of plaintiff as a "fugitive" who "may be armed and dangerous" on

"Yellowstone County's Most Wanted" program

{¶ 39} Accordingly, we find that a genuine issue of xna fact exists as to whether appellees' depiction of Sullins as one of"C s 25 Most Wanted

Fugitives," evading arrest on a present charge of passing multiple bad checks, was "substantially true." Therefore, appellees are not ent;itled to summary judgment based on the substantial truth doctrine.

{¶40} Appellees also contend that they are entitled to summary judgment based on the "incremental harm doctrine." The incremental harm doctrine

"measures the incremental reputational harm inflicted b'y the challenged statements beyond the harm imposed by the nonactioraable; remainder of the publication." Ferreri v. Plain Dealer Publishing Co., 142 ()hio App.3d 629,

642-643, 756 N.E.2d 71.2 (8th I)ist.2001.). Even if a statement is false, if the incremental harm caused by the false statement is determi'rned to he "nominal

or nonexistent," i.e., causes no more harm to the plaintiff than the truth, the

false statement is not actionable. Id.

{¶41} Appellees contend that because numerous warrants had been issued

for Sullins's arrest and because Sullins had already been convicted of one count

of passing a bad check, appellees' representation in the Wc Unit program

that Sullins was wanted on a present charge of evading est for passing multiple bad checks "could cause no greater harm than the literal truth." Sullins argues that because there were no non-defamatory aspects of the statements at issue, i.e., appellees depicted him as a "most-wanted" "fugitive" for "passing bad checks" and said nothing else about him, appellees could' not attribute any reputational injury to any non-defamatory aspects of the tements, and that

.the incremental harm doctrine, therefore, does not apply.

{^42} None of the cases cited by the parties involvi the incremental harm doctrine applied the doctrine to a statement that w determined to be defamatory per se. We do not believe the incremental har'm doctrine bars a claim for defamation, where, as here, the plaintiffs defamation claim is based on statements that are defamatory per se. However, even f the incremental harm doctrine applied in this case, for the reasons discussed above, it would involve issues of fact for the jury to decide. Accordingly, appellees are not entitled to summary judgment based on the incremental harm doctrine. Responsibility for Defamatory Depiction of [ins

{^43} Finally, WOIO and Crime Stoppers argue that rummary judgment

was properly entered as to them because they had lit or no role in the

production of the lVarrant Unit program. Although the n tor states at the

outset of the program that the Warrant Unit program a production of

Cuyahoga County Crizne Stoppers," Crime Stoppers ns that it was

nothing more than a "delivery person" who "owed Sulhns no duty of care."

WOTO similarly contends that it should have no Li.ability for any defaxnatory

statements made on the Warrant Unit program because it siinply broadcast the

program and had no role in creating, producing, or editing it. Based on our

review of the record and the applicable law, we find that there are genuine issues of material fact as to who, if anyone, bears responsibility for the defamatory depiction of Sullins on the Warrant Unit prograna. We, therefore, decline to affirm the trial court's entry of summary judgxnerit on that basis.

(¶ 44} Based upon our indeP endent review of ,the record!we re find that there are genuine issues of material fact as to whether appellees' depiction of Sullins on the Warrant Unit program constitutes actionable defamation. Accordingly, we reverse the trial court's entry of summary ud) g ment on S Ins's lli defamation claim, affirm the entry of summary judgment on Sullins's false-light invasion of privacy claim, and remand the case to trial court for further proceedings consistent with this opinion.

_,. {¶45} Judgment affirmed in part and reversed in part; remanded.

It is ordered that appellant recover from appellees costs herein taxed.

The court finds there were reasonable grounds for thi{ appeal.

It is ordered that a special mandate be sent to said court to carry this

judginent into execution.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

KENNETH A. UCC(?, JLIDGE

MARY J. BOYLE, P.J., and PATRICIA A. BLACKMON, J., CONCUR CC 97 i 27$3 - = -- -==^------^--- ._.:._- ^tatE of e^jfD, 1 SS. Cuyahoga County. T> Clerk of the Court of ^ Appeals within and for said County, and in whose custody the files, Journals and records of said Court are

required by the laws of the State of Oto be, kept, hereby -ertify that ^be fo'regoing is taken and copied froni the Journal entry dated on

of the proceedings of the Court of Appeals within and for said Cuyahoga County, and that th s, id fo oin

copy s en co ared by me with the original entry on said Journal entry dated an r CA ----- and that the same is correct transcript thereof.

3n Mestimonp MTjet`eof, I do hereunto suI b scribe rny name officially,

Vo ^ 8 fy op andafl"ix the seal of said court, at thc Couf ^fouse in the City of CIeveland, in said Coy, ihis ; ------oz ^ day of (-- A.D. 20

Glerk of Courts V0 w ^, J '' ^qD ^ y Clerk

^^^^ Court of Appeals of Ohio, Eighth District

County of Cuyahoga Andrea Rocco, C1erk of Courts

LAVELLE SULLINS

Appel;an't COA NO. I-OV1fER COURT NO. 99235 GF' CV-771804

COMMON PLEAS COURT -vs-

RAYCOM MEDIA, INC., E:T' AL.

Appellee MOTION NO. 467786

Date 09/20/13 ------Journal En^

Application by Appellees, WUAB and WOJO, for consideration en banc is denied. See separate order of

';^ this same date.

^"s s f$ t^:^ 3 -^r-^ RECEIVED FOR FILING ME

SEP 2 4 ZDi3

^^ Ca .^.^ OL1 G U TY CLERK ....^. Csb C;^ OF T 0 R F APPEALS By Deputy

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...... _...- ... .<.,.,.....^r-.. . _.;,,^,.,. ' li.. 1¢'v Cottrt of avvedlq^ of (91)t::o, (figljtf) otflrrict County of Cuyanoga Andrea Rocco, Clerk of Courts

Laveile Suilins

Appelfant COA NO. LOWER COURT NO, 99235 CP CV-771804

COMMON PLEAS COURT -vs-

Raycom Media, inc., et al.

Appellees MOTION NO. 467786

Date 09120l2013

Journal Entry

This matter is before the court on appellees' a.ppTication for en bane consideration. Pursuant to App.R. 26, Loc;AA.pp.R. 26, and .ltlcF'adclen u. CYleveland S'tate Unii)., 120 Ohio St.3d 54, 2008-C7hio-4914, 896 N;I+1.2d 672, we are obligaf;ed to resolve conflicts between two or more decisions of this court on any issue that is dispositive of the case in which the application is filed.

Appellees allege the panel`s decisisn is in conflict with other decisions from this district on the question whether proof that a stateinent is defamatory per se creates a presumption of fault. Compare the panel's opinion in this case, Sullins v. Ii'aycorra Media., Inc., 8th Dist, No. 99235, 2013-()hio-3530, with Great Lakes Capital Partners, Ltd. v. Plairi Dealer Publishing . f?.r"r.. G'o., 8th Dist, No 9121.5, 200$-4hio-6495 and Ma:loney & Sons, Irtc. U. E. W. Scripps Co., 43 Ohio App.2d 105, 110, 334 N.E.2d 494 (1974). The panel's statement that "fault [is] generally presumed to e'°t if a statement is defamatory per se" is not dispositive of. this appeal. See ^,. App.R. 26( ( ))(b). Rather, the panel found a question of fact whether the statement was ^:,t ;.r privilege ^'herefore, appellee/en bane avxilication is denied.

MELO ^-;0 TTNIE JUDGE HECC-IVED FOR FILING

^3e!7 PATRICIA A. BLACK1VIOiV', J., SEP 2 0 20i3 MARY J. BOYLE, J., CUYA C^ FRANK D, CELEBREZZE, JR., J., 7 AP CI.ERK EILEEN A. GALLAGHER, J., OF p^ Aql.3LF 3 EILEEN T. GALI.AGHk:R, J., By Deputy LARRY A. JONES, J., KA`i'T-ILEIJN ANN KEOUGH, J., MARY EILEEN KILBANE, J., TIM MCCORMACK, J., and KENNETH A. ROCCO, J.

Dissenting:

SEAN C. GALLAGHER, J. OCT 24 2Dq Q4Eourt of pptaI$ of (DbtD

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99235

LAVELLE SULLINS

PLAINTIFF-APPELLANT

vs.

RAYCOM MEDIA, INC., ET AL.

DEFENDANTS-APPELLEES

04

n111ri1Y^ ,^ . ^YeY^i

t^IM JUDGMENT: RECONSTDERATION DENIED ^...^...... ^

Civil Appeal from the ^-^ Cuyahoga County Court of Common. Pleas 0 Case No. CVV- ; 7 i8Q4

BEFORE: Rocco, J., Boyle, P.J., and .Blackmon, J

RELEASED AND JOURNALIZED: October 24, 2013

-s < < c r:

. ^, , ri . .d ......

^ ^ 4.

-1-

ATTORNEYS FOR APPELLANT

Joshua R. Cohen Peter G. Pattakos Cohen, Rosenthal & Kramer 700 West St. Clair Avenue The Hoyt Block Building - Suite 400 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEES WUAB AND WOIO, L.L.C.

Michael K. Farrell FlLED AND JOURNALIZED Melissa A. Degaetano PER APP,R, 22(C) Baker & Hostetler L.L.P. PNC Center OCT 2 4 2013 1900 East 9"` Street CUYA C. CLERK Suite 3200 OF TH :T PPEALS Cleveland, Ohio 44114. By Deputy

ATTORNEYS FOR APPELLEE CUYAHOGA COUNTY CRIME STOPPERS RECEIVC-D FOR FU,'VG George S. Crisci Jonathan D. Decker OCT 2 4 2013 Zashin & Rich Co., L.P.A. 55 Public Square, 4th Floor G&f-?^^q G0^^^4-•^, y{ rt ^ QUf^T 6+J> Cleveland, Ohio 44113 ey IN C15 ATTORNEY FOR APPELLEE PINPOINT MEDIA, INC.

- ^f Daniel Thiel CM^ 75 Public Square Suite 650 Cleveland, Ohio 44113

^.^ 0 p KENNETH A. ROCCO, J,:

{¶1} .T)efendants-appellees WOIO and WUAB (collectively, "W(.)ZO") have filed a motion for reconsideration or, alternatively, to certify conflict arguing that this court's August 15, 2013 decision: (1) imposes J.iability without fault, (2) ignores the lack of evidence showing negligence on the part of WCJIO, and (3) is contrary to the Ohio Supreme Court's applicati.on of the fair report privilege in

Oney u. Allen, 39 Ohio St.3d 103, 529 N.E.2d 471 (1988). For the reasons that follow, WOIa's motion is denied.

{¶ 2) WQIQ first argues that this court should reconsider its August 15,

2013 decision because the court "based its ruling" on "the incorrect statement that `[u{nless a privilege applies, damages and fault are generally presumed to exist if a statement is defamatory per se"' and thereby "impose[s] liability" on appellees "without fault." We disagree.

(¶3) As set forth in our August 15, 2013 decision, we found that appellees' inaccurate depiction of Sullins on the Warrant Unit program as a fugitive presently wanted and evading arrest on an outstanding warrant for passing bad checks is defamation per se and that the innuendo that Sullins is a bad check artist is defamation per quod. We further found that Sullins presented sufficient evidence to defeat summary judgment as to whether appellees were negligent in publishing false statements about him and that there was an issue of fact as to whether appellees' defamatory statements were privileged. This court has not presumed anything regarding appellees' fault in this case. Rather, based on our review of the record, we determined that there are genuine issues of material fact as to who, if anyone, bears responsibility for the defamatory depiction of

Sullins on the Warrant Unit program. Accordingly, this ar. guinezit lacks merit.

{¶4} WOTC> also contends that our decision in this case is at odds with the

Ohio Supreme Court's decision in Oney v. Alleh, 39 Ohio St.3d 103, 529 N.E.2d

471 (1988). Once again, we disagree. In Oney, the issue was whether publication by a newspaper that "Mike Oney, 32, of Noble Road, Shiloh," had been indicted for "trafficking" was a "fair and impartial" repor•t of an indictment of "Mike Oney (aka) Stoney" for "trafficking" and, as such, was privileged pursuant to R.C. 2317.05. Id. at 103-105. Oney claimed that the privilege was inapplicable because the defendants added information that was not in the indictment, i.e., the age and address of Mike Oney, and failed to include information that was in the indictment ("aka Stoney"), in the report. Id. at 106.

($ 5) In Oney, the prosecutor had given a reporter "off the record" a list of individuals (including addresses, dates of birth, and socia.l security numbers) who were going to be indicted on drug trafficking charges. Zd. at 103-104. rl'he list included "Oney, Mike (aka) Stoney." The prosecutor claimed that he told the reporter that a court order protected the indictments from becoming public until the defendants were in custody. Id. The reporter claimed that he was given the list with the understanding that he would not publish the names until after the sheriff s department began to arrest the individuals. .l'd. The court did not need to consider whether any "understanding" to delay publication impacted the reporting privilege because, prior to publication, the indictment of Mike Oney for trafficking was publicly reported on the criminal court's docket. .Id. at 103-104,

107. The reporter compared the names on the list he had received from the prosecutor with those listed on the court's docket and published an article reporting on the indictments the following day. Id. at 103-104.

{1(6} In concluding that the publication was privileged, the court noted that the prosecutor's office had identified Oney, by name, address, age, and social security number, as the subject of the indictment, and that when Oney went to the sheriffs department after learning of the indictmerit, he confirmed that his address and social security number were the same. Id, at 107. "Under these facts," the court "reject[ed] the argument that [Oney] was never indicted for trafficking." Id. Because under "the facts and circumstances which provide the context to the docketed indictment," the "pivotal fact" --- i.e., "Mike Oney was indicted" ----- was true, the court determined that the privilege applied, even though Oney was mistakenly indicted. Id. The court held that "[a] publication is substantially accurate if it conveys the esserice of the official record to the ordinary reader, without misleading the reader by the inclusion of inaccurate extra record information or the exclusion of relevant information in the record."

Id. at 106, citing 3 Restatement of the Law 2d, Torts, Section 611, Comment f (1965); Mark v. SeaLtle Times, 96 Wash.2d 473, 493, 635 P.2d 1081 (1982).

{¶7} WQIO contends that "[tjhis case is no different" because "[i]t is

undisputed that [Sullins] had already been convicted of passing bad cliecks when

the Sheriffs department erroneously told. Crime Stoppers that he was wanted

for passing bad checks." The fact is, however, that this case is different. Indeed,

the facts of this case'that distinguish it from Oney are so obvious, this court did

not think it needed to explicitly distinguish Oney in its opinion.

(¶$1 Whereas in Oney, the court determined that the "pivotal" aspect of

the published statem.ent ---- i,e:, that Mike Oney was indicted - was "true," Oney

at 107, Sullins was not a fugitive, not presently wanted, and not evading arrest

for "'passing bad checks" - as represented on the Warrant tInit program - at

the time the prograan aired. t%VOIO's application. for reconsideration, as did its

briefs, conveys the attitude that because Sullins had been previously convicted

of one count of passing bad checks more than ten months before the Warrant

Unit program aired and because he had been previously charged wi:th or convicted of other minor misdemeanor or traffic-r.elated offenses (including offenses for which warrants were outstanding at the time the program aired),

Sullins is somehow not entitled to recourse for appellees' defamatory stateinents.

This is incorrect. Simply because Sullins was convicted of, or charged with, other offenses in the past does not mean that he is undeserving of protection from defamatory statements.

------M} Further, in this case, unlike in Oney, the government placed an

explicit caveat on the accuracy of the information it provided, i.e., that the

warrant information received from the sheriffs departlnent should be updated

bv checking the court's docket to confirm its continued accuracy prior to airing,

which appellees arguably failed to do. What WOIO describes as a "caveat" to the

publication of the information in Oney related only to the timing of the

publication, not the accurac,y of the information to be published. The court in

Oney did not consider whether the prosecutor's "caveat" to delay publication of

the information the reporter had received impacted the fair report privilege

because prior to the publication, the indictment of Mike Oney for trafficking was

publiclv reported on the criminal court's docket. Oney at 103-1.09.; 107. Once it

became part of the public record, the court found that there was no restriction

on the timing of the publication of that information. Id. at 107.

tT10} Finally - and most significantly - in this case, unlike in Oney, there was significant, potentially misleading, extra-record information included in the publication. Thi.s is not a case in which the fact that a warrant had been issued for Sullins's arrest for passing bad checks was matter-of-factly reported in a police rzews blotter. If that were the case, appellees' pu.blication might well have been protected by the fair report privilege.

{T 11} Appellees, however, did not simply publish inaccurate information, received from the sheriffs department, regarding the warrant that had been previously issued for Sullins's arrest. Sullins was identified on the Warrarit Unit

program as a fugitive from justice, one of "Cleveland's 25 Most Wanted" --

someone wanted more than all other wanted persons, someone so dangerous that

the narrator of the program cautioned viewers: "Do not attempt to apprehend

these people. You leave that to the professionals."

{¶12} Whereas Oney was a case in which, based on the undisputed facts,

the court determined that the privilege applied as a matter of law, this case is one in which, based on disputed facts -- including the effect of the "caveat" from the sheriff s department to update the warrant inforznatiorz received prior to airing, whether the "caveat" was complied with, and the impact of identifying

Sullins as a fugitive wanted on an outstanding warrant for passing bad checks and as one of "Cleveland's 25 Most Wanted" -----the determination of whether the representations made regarding Sullins on the Warrant Unit program constituted a "substantially accurate," "fair and impartial reporting" of the warrant information received from the sheriffs department is more appropriately resolved by a jury. See, e.g., Young c;. 1Vlorning Journal, 76 Ohio

St.3d 627, 628, 669 N.E.2d 1136 (1996).

{1f13} Finally, WOIO contends that because it did nothing but broadcastt a prograrn that it "understood *** to be based on official, public records provided by the sheriffs department," and did not participate in creating, editing, or producing the Warrant Unit program, it-cannot be liable for any defamatory statements relating to Sullins,

{¶ 14} Citing Amann v. Clear Channel Con2municatioras, Inc., 165 Ohio

App.3d 291, 2000-Ohio-714, 846 N.E.2d 95 (lst Dist.2006),. and several

authorities from jurisdictions outside Ohio, WOXC`1 argues that there is no factual

basis for imposing liability on WOIO in this case because "relying on wire

services, news aggregators, and similar organizations as to the content they

deliver is entirely reasonable and not negligent." However, as discussed above,

this is not a case in which WOIO simply republished material taken from a

reputable news service. Further, Amann was not a defamation case. It involved

whether a broadcaster owed a duty of care to its audience to investigate the

accuracy of claims made in the advertisements it broadcast. Id. at 116.

{^1 15} The other cases cited by WOrO in support of this argument are likewise distinguishable. For example, Young v. Russ, ll.th Dist. Lake No.

200a-L-206, 2005-Ohio-3397, involved a defamation claim arising out of a news story that reported that the plaintiff had harmed children at the school where he worked after a child had recanted the claims. The Eleventh District held that the anchornian who merely introduced the story but had no involvement in the origination or investigation of the story, no role in drafting scripts for, editing, modifying, or contributing to the story, and no involvem.ent in the decision to pursue or air the story, had no liability. Id. at 1f 55. As to the news reporter who investigated the story and the broadcast station who decided to air the storv ------

with knowledge that the child had recanted, the court held that an issue of fact

existed as to their alleged negligence. Id. at ¶ 52-53. McPeek v. Leetonia

.irtalian-American Club, 174 Ohio App.3d 380, 2007-O11io-7218, 882 N.E.2d 450

(7th Dist.), involved a defamation action arising from disciplinary proceedings

in a social club.

{¶ 16} Despite its attempt to minimize its role, WOXO did'something in this

case. It selected the Warrant Unit program for airing on its station, with

knowledge of its content and format, including the segment entitled "Cleveland's

25 Most Wanted." It selected the program for airing in the hopes of entertaining

and attracting viewers to its station by its arguably sensationalist, inflammatory

content. WOIO's argument that it had nothing to do with the content of the program it had selected to air, had no role in ensuring that the information provided in the program was accurate, and had no information as to how the local fugitives identified as "Cleveland's 25 Most Wanted" were chosen, does not, as WOIE.O contends, absolve it of liability; but rather, creates an issue of fact for the jury to decide. None"of the authorities cited by W OIO supports a contrary conclusion.

------{¶ 17} Accordingly, for the reasons set forth above, WOIO's application for reconsideration or, alternatively, to certify conflict is denied.

_ KBNNBTH A. ROCCO, J DGE

MARY J. BOYLE, P.J., and PATRICIA ANN BLACKMUN, J.; CONCUR CC 97127B3'

^^^ '6tate of Obto, S5. I, ANDREA F. ROCCO, Clerk of the Court of Cuyahoga County.

Appeals within and for said County, and in whose custody the files, Journals and records of said Court are

required by the laws of the State of Ohio, o be, ^ept, hereby at theforegoing is taken and copied

from the Journal entry dated on M A qlfSCA oJ J

of the proceedings of the Court of Appeals within and for said Cuyahoga County, and that the s id for going

copy b c m are by me with the original entry on said .Iournal entry dated on^ CA and that the same is correct transcriptthereof.

N lueztimonp Vbereof, I do hereunto subscribe my name officially, and affix the seal of said court, at the CouA HoAse in the City of Cieveland; in said day of A,D. 20

AN f , Clerk of Courts

By Deputy Cler-k

2783 3+c^^- In the Court of Common Pleas Cuyahoga County, Ohio

LAVELLE SULLINS, ) CASE NO. CV 11771804 ) ) JUDGE ROBERT C. McCLELLAND Plaintiff, ) ) v. ) Journal Entry: ) RAYCOM MEDIA, INC., et al., ) Opinion & Order on Defendants' ) Motions for Summary Judgment Defendants. )

OPINION,

In this re-filed action, Defendants Raycom Media, Inc,,l WOTO- WUAB Cleveland, Pinpoint Media, and Cuyahoga County Crime Stoppers move this Court for summary judgment on Plaintiff Lavelle Sullins' complaint, in which Sullins asserts defamation and invasion-of-privacy claims based on statements made in Episode 17 of Warrant Unit which aired in March 2010. According to Sullins, the episode portrayed him as a fugitive from prosecution for the crime of passing bad checks when, five rnonth earlier, he had satisfied his sentence after pleading guilty to one count of the same crime.

Based on the Civ.R. 56(C) and (E) record before it, this Court concludes that no genuine issue of material fact exists and that, based on the law of defamation and false-light invasion-of-privacy, defendants are entitled to judgment in their favor as a matter of law.

1. Accusations and denials

A. Sullins's Complaint

1. What allegedly happened

As noted above, Sullins claims that defendants defamed him and portrayed him in a false light when they depicted him on television as a fugitive from prosecution for the crime of passing bad checks when, in fact, he had sezved his time after pleading guilty to the crime of passing a single bad check. (See Comp., t1I19-2x.) And while a capias had issued for his arrest in that case, it was

' Because Sullins dismissed his claims against Raycom Media, Inc. before the entry of this Opinion & Order, the order is dispositive against the remaining defendants only, IIIIIIIIInIIIIIIII^IIIB^IIVI^iIVRll l recalled four days later. (Deposition of Aiin McKenzie, 7/31/12, pp. 12-14 & Ex. 2.) Sullins also claims that this incident "did not represent some isolated aberration" since ii of the 27 purported fugitives featured on the Episode 17 broadcast "were not actually wanted by the police." (Comp., ¶2.)

Sullins alleges that Pinpoint Media produces Warrant I:Tnit "in conjunction with Crime Stoppers, an organization that offers rewards to the public for information on unsolved crimes and fugitives at large." (Comp., ¶ii.) Sullins purportedly appeared on a segment called "Fugitive File," which includes "Cleveland's 25 Most Wanted Fugitives" taken from Cuyahoga County Sheriffs Department suspect files. (Comp., T13.) According to Sullins, the sheriffs department provided Crime Stoppers each week with the jacket front from the file of each fugitive, along with a photograph and booking information. (Comp., ¶13-14.) The sheriffs department does not provide copies of outstanding warrants. (Comp.,li14.) Once Crime Stoppers received this information from the sheriffs department, it then passed it along to Pinpoint Media. (Comp., ¶13.)

Sullins claims his mug shot, name, height, and weight, appeared on Episode 17 of Warrant Unit, just above the words "PASSING BAD CHECKS" and accompanied by the narrative, "Lavelle Sullins, wanted for passing bad checks." (Comp., ¶15.) That episode also "cast Sullins and his fellow `fugitives' in a dangerous light," when the narrator stated, "[D]o not attempt to apprehend these people. You leave that to the professionals." (Comp., 1115.)

2, What allegedly should have been done

Sullins contends that these defendants should have verified whether any outstanding warrant for his arrest existed before they aired Episode 17. (Comp., ¶22-29.) He points to an unnamed lieutenant from the sheriffs departrrient who "specifically asked Pinpoint Media whether it was `checking' on `Cleveland's 25 Most Wanted fugitives' before it 'air[ed] them."' (Comp., ¶23.) Sullins also points to the Cuyahoga County Court of Common Pleas online docket, where these defendants "could have ascertained [his] ... true status ,.. and [that of] his fellow `fugitives."' (Comp., ¶26.) Sullins asserts that "Warrant Unit's own website has a link to the Cuyahoga County docket and confirms that it is updated daily."' (Comp. ¶27). And if the defendants had checked the docket, it would have learned "that ii of the 27 `fugitives' featured on Episode 17 of Warrant Unztwere not fugitives at all[.]"(Comp., ¶29.)

3. The alleged injury

Sullins asserts that, as a result of this broadcast, he lost his job and access to his children, and suffered emotional pain and injury, and damage to his reputation in the community. (Comp., ¶¶32-34.) He also claims that he is now subject to "ridicule and distrust among people he knows." (Comp., ¶34.) Sullins seeks compensatory and punitive damages, attorney fees, costs, and other appropriate relief.

2 B. De,fendants'respective answers

In brief, Raycom and WOIO admit that WOTO broadcast Episode 17, but both deny that either created or produced it. (Raycom/W010 Ans., Ti.) They also deny that Raycom owns WOIO or that it broadcast that episode. (Raycom/W010 Ans., ¶¶1 & 8.) They also contend that the content of the program "speaks for itself' and assert a number of affirmative defenses relevant to defamation and privacy claims, including the statutory and common-law "fair reporting privilege." (Raycom/W010 Ans., M5 & 45.)

Crirne Stoppers admits that it pro,,rides Pinpoint Media the information it obtains from the sheriff's office for the Warrant Unit program and that Sullins appeared on Episode 17. (CS Ans., ;Tb & 13-15.) Crime Stoppers also admits that a lieutenant in the sheriffs department asked "Pinpoint Media whether Pinpoint Media checked the county court's website weekly before airing Warrant Unit episodes" and admits that the Warrant Unit website contains a link to the common pleas court docket. (CS Ans., ¶T2-3 & 27.) Crime Stoppers denies that the program warned against attempting to apprehend the purported fugitives and asserts a number of affirmative defenses relevant to defamation and invasion-of-privacy claims, including the statutory and common-law "fair reporting privilege." (CS Ans.,T'f( 15 & 45.)

Pinpoint Media admits that that Crime Stoppers provides it with the information the sheriff had provided to Crime Stoppers., (PM Ans, T13.) It denies, however, that a sheriffs lieutenant inquired whether it checked the court's website before airing Warrant Unit episodes. (PM Ans., T23.) Pinpoint Media admits to the episode's content as Sullins portrays it. (PM Ans., ¶i5.)

11. Civ.R. 56(C) and (E) material

The parties provided this Court with various materials in support and opposition of the motions for summaiy judgment. In his affidavit, Christopher Shawn Rech, president and executive producerof Pinpoint Learning, LLC, which does business as Pinpoint Media, stated that, on a weekly basis, David W. Rutt (Crime Stoppers' coordinator) would deliver a package to the company containing a list of fugitives the Cuyahoga County Sheriff would like featured on Pinpoint Media's television show, Warrant Unit. (Raycorn/WOIO's Appendix of Exhibits, Tab. 4, ¶i(1-2. ("App. Ex., Rech Aff."); id. at Tab 7, ¶¶1-2 ("App. Ex. Rutt Aff.").) The package Pinpoint Media received from the sheriffs office "contains the jacket front of the file for each fugitive, which contains the fugitive's physical information, warrant information and a photograph." (App. Ex. Rech Aff, at T13.)

Rech also states that, shortly before Episode 17 of Warrant Unit aired on March 27, 20io, Rutt delivered a package from the sheriff's office to Pinpoint Media containing Sullins's physical inforrnation, warrant inforrnation, and his photograph. (App. Ex, Rech Aff., T^4 & H; id, at Ex.) Pinpoint Media's

3 animator then "scanned Mr. Sullins' name, last known address and charges" and completed "Episode 17 by encoding the entire program and burning it onto a DVD for airing," (Id. at 1IT6-7.) Rech further states that he had no reason to doubt the accttracy of the information provided to him at the time Episode 17 aired, nor did he know or have any dealings with Sullins before that episode aired. (ld, at 1)9.) And neither he "nor Pinpoint Media bear ill-will or personal animosity towards Mr. Sullins." (Id. atTg.)

Rutt, who had managed Crime Stoppers for over 13 years at the time he signed his affidavit, states that he would receive a weekly telephone call from the sheriffs department, notifying him that it had compiled a list of twenty- five fugitives for feature on Warrant tJnat. (App. Ex. Rutt Aff., '¶3.) Rutt explained that his "custom and practice" was to travel to the first floor of the sheriffs department the same day he received the call to pick up the jacket front, together with the fugitive's physical information, warrant information, and picture. (Id. at ¶4.) After leaving the sheriffs office, Rutt wuld deliver the information to Pinpoint Media. (Id. at 115-6 & Ex..) He would not review the documents before handing them off to Pinpoint Media. (Deposition of David W. Rutt, 6/6/11, p. 40.) Like Rech, Rutt states that he had "no reason to doubt" the information provided by the sheriff and that he had no dealings with or ill-will toward Sullins. (Id. at $1I6-7.) Rutt essentially relied on the official, who had given him the fugitive's information, to assure the accuracy of that information and notify him when that information no longer was correct. (Rutt Dep. pp. 22- 24 & 42-43.)

B. Sheriffls department's involvement

Erin Acklin, a dispatcher for the sheriffs department, testified at deposition that one of her job responsibilities included running reports on valid warrants for the Warrant Unit television program. (Deposition of Erin Acklin, 7/31/12, pP. 5 & l.o-xx.) Acklin would pull the files "about once a month," compiling 70 files at one time, from the sheriffs department's warrant unit's "I- Max system" which contained a list of all outstanding warrants at any given time. (Id., PP. 13 & 15.)

From the I-Max system, which is not available to the public, she would print three pages. (Id., pp. 21 & 31.) The first page described the pending charges against the fugitive; the second (called the "face sheet") contained the name birthdate, and other personal information entered into the system as of the last booking date; and the third page was a photograph. (1"d., pp. 21-22.) A fourth page, which she did not provide because it would not print off the system, indicated whether an outstanding warrant existed. (Id., pp. 21-22.) As a result, nothing in the information she provided on Sullins indicated that a warrarit was outstanding. (Id., p. 22.) Acklin explained, however, that she verified on the I- Max system whether a warrant was outstanding at the time she pulled the information. (Id. pp. 23-24 & 28.) She did not know, however, how often the I- Max system was updated to reflect the current status of a warrant. (pp. 19-20.)

4 After she prepared a number of files, she would contact Rech and let him know the files were available for pick up. (Id., pp. 11-12.)

Acklin explained that warrants were outstanding on those fugitives as of the "moment" she produced the files, but the status of that warrant could change any time thereafter. (Id., pp. 13-14.) A.cldin testified that she had told Rech "all the time" that he should update the information that she had provided by checking the public court docket. (Id., p. 14.)

Acklin also stated that, after the inaccurate information about Sullins's purported outstanding warrant for passing bad checks came to light, she checked the I-111Iax system and it still showed the warrant was valid. (Id., p. 37,) She then brought that issue to the attention of the warrant unit's supervisor and sometime thereafter the system was updated. (Id., pp. 37-38.)

C. Sullins had outstanding arrest warrarets

At his deposition, Sullins acknowledged that, at the time Episode 17 aired in March 2010, at least five warrants for his arrest were pending against him, all of which related to traffic offenses committed in the City of Cleveland and all of which were cancelled on November 16, 2010. (Deposition of Lavelle Sullins, 6/27/11, p. Zo.) In February 2008, Sullins entered a no-contest plea the Cleveland Municipal Court relating to two misdemeanor traffic citations. (Deposition of Lavelle Sullins, 8/14/12 ("Sullins 11"), pp. 61-64 & Ex. DD (Cert. Dkt. Cleve. Muni Ct. No. 2oo8 TRD 009477).) When he failed to pay the fine, the court issued a capias for his arrest on 2/21/2008. (Id. at Ex. DD.)

In August 2008, the Cleveland Municipal Court received a complaint on a citation Sullins had received for driving under a suspended or revoked license, refusal to show his driver's license, an obstructed plate, and failure to use a seat belt. (Sullins li Dep., pp. 64-66 & Ex. EE (Cert. Dkt. Cleve. Muni Ct. No. 2oo8 TRD 055992).) The judge issued a capias on 9/2/2on8 when he failed to pay the fine. (Id. at Ex. EE.)

The municipal court received another complaint against Sullins in August 20o8, this time for driving without a license or a seatbelt, and driving "too slow." (Sullins II Dep., PP. 58-61 & Ex. CC (Cert Dkt. Cleve. Muni. Ct. 2008 TRD 057122).) Sullins failed to pay the fine, so the judge issued a capias for his arrest on 9/26/2008. (Id. at Ex. CC.)

A warrant issued on December io, 2008 in Cleveland Muni. Ct. No. 2oo8 TRD 077750, when Sullins failed to appear or pay a fine for driving with an expired plate. (Sullins II Dep., pp. 57-58 & Ex. BB.) And in No. 2008 I'RD o8o633, Sullins failed to appear or pay a firie on a second citation for driving with an expired plate; the court issued a warrant on 12/26/20o8. (Id. at pp. 56-57 & Ex. AA.)

5 III. Summary judgment standard

When considering the merits of a party's motion for summary judgment, this Court looks to the Civ.R. 56(C) which requires the grant of sunimary judgment "if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, 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 erititled to judgment as a matter of law." The party moving for summary judgment has the burden to identify portions of the record that demonstrate a lack of genuine issue of material fact on the essential elements of a non-moving party's claim or defense:

[A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden urzder Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the nioving party fails to satisfy its initial burden, the motion for suinmary judgment must be denied. [Dresher v. Burt, 75 Ohio St,3d 280, 293, 662 N.E.2d 264(1996).]

If the moving party supports the motion for summary judgment as Rule 56 provides, "an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party." Civ.R. 56(E).

IV. Defamation

A. Whether the stutement was defamatory

Generally speaking, a plaintiff makes out a prima facie case of defamation upon establishing "a publication to a third person for which defendant is responsible, the recipient's understanding of the defamatory meaning, and its actionable character." Hahn v.lzotten, 43 Ohio St.2d 237, 243- 244, 331 N.E.2d 713 (1975), citing Restatement of the Law, Torts, Section 613; see A & B Abell Elev. Co. v. Columbus/Central Ohio Bldg. & Constr. Trades Counc:il, 73 Ohio St. 3d 1, 7, 651 N.E.2d 1283 (1995) (defining libel);141cCartney u. Oblates of St. F'rancis de Sales, 8o Ohio gpp.3d 345, 353, 6oQ N.E.2d 216 (6t13 Dist. 1992) (describing slander). To have a defamatory meaning, a statement must be false

6 and "`made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.," Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d io6o, 1Ig, quoting A & B Abell, supra; see, generally, Perez v. Scripps- Howard Broadcasting Co., 35 Ohio St.3d 215, 219, 52o N.E.2d 198 (1988) (considering television broadcast as libel rather than slander). "[W]ritten words accusing a person of committing any crime are libelous per se." Gosden v. Louis, 116 Ohio App.3d 195, 207, 687 N.E.2d 481 (9th Dist. 1996); see also State U. Murdock, 172 Ohio St. 221, 174 N.E.2d 543 (196i), paragraph one of the syllabus ("The term, `crime,' includes both misdemeanors and felonies under state laws.") .

The record developed here demonstrates that, at the time Episode 17 of Warrant Unit aired, the Cleveland Municipal Court had issued at least five warrants for Sullins's arrest for failing to appear on misdemeanor traffic offense, all of which were outstanding. See R.C. 2935.zo(B) & 2935.11. Those warrants on misdemeanor traffic violations, however, did not include a felony warrant for "passing bad checks." See R.C. 2913.11(B). Sullins does admit, however, to having been convicted of passing a single bad check and serving his sentence before Episode 17 aired. Although Episode 17 revealed the apparently accidental "truth" that at least one outstanding warrant for Sullins's arrest existed, the "false" part of that representation went to the charge for which he was wanted. Thus, the representation that Sullins was evading arrest on a present charge of passing bad checks is arguably libelous per se,2 Miller v. Crime Stoppers, Inc., 101h Dist. No. o7AP-669, 2oo8-(Jhio-1280, T13.

B. Whether a prividege exists that would defeat the defamation claim

1. Common-law privilege

But once a claimant establishes a prima facie defamation claim, the defendant may establish a conditional or qualified privilege. Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d io6o, 1f9. The elements of a conditionally privileged communication include "good faith, an

` This Court did not find Ohio case law adopting the "incremental harm" doctrine in a case involving defamation per se. Because the doctrine conflicts with common-law principles that govern per se defamation claims (i.e., it "eliminates the presumption of damages and reintroduces a need for the plaintiff to prove special damages"), this Court will not adopt it here. B.y.,1Vlyers v. The Telegraph, 332 Ili. App•3d 917, 925, 773 N.E.2d 192 (5th Dist. 2002). But compare Barner v. Kroehle, 8th Dist. No. 87557, 2oo6-0hio-5569, % (applying the conditional-privilege "substantially true" test to a matter where the appellate court did not address whether a privilege existed that would defeat a prima facie defamation claim).

7 interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in proper manner and to proper parties only." Halin, 43 Ohio St.2d at 246. "Where the circumstances of the occasion for the alleged defamatory communications are not in dispute, the determination of whether the occasion gives the privilege is a question of law for the court." Abell, 73 Ohio St.3d at 7.

A claimant may defeat a qualified privilege if the "claimant proves with convincing clarity that a publisher acted with actual malice." Jackson, 117 Ohio St.3d 328, ¶9, citing Jacobs v. Frank, 6o Ohio St.3d 111, 573 N.E.2d 6og (1qg1), paragraph two of the syllabus. The Supreme Court of Ohio has defined "actual malice" in this context as "acting with knowledge that the statements are false or acting with reckless disregard as to their falsity." Id.; accord Hahn, 43 Ohio St.2d 237, paragraph two syllabus. "Reckless disregard" occurs when the person publishing the defamatory statement acts with a"`high degree of awareness of their probable falsity"' or "'entertained serious doubts as to the truth of' the published statement. Jackson, 117 Ohio St.3d 328, ^io, quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 2o9, 13 L.Ed.2d 125 (1.964) & St Amant v. Thornpson, 390 US. 727, 731, 88 S.Ct. 1323, 2o L.Ed.2d 262 (1968); accord Varanese v. Gall, 35 Ohio St.3d 78, 518 N.E.2d 1177 (1988), paragraph one of the syllabus. It is the "actual malice" in a defamation action that constitutes an abuse of the qualified or conditional privilege. Jackson, supra at ¶9, citing A & BAbell, 73 Ohio St. 3d at xx; accord Hahn, 43 Ohio St.2d 237 at paragraph two of the syllabus.

2. Statutory privilege

Ohio also recognizes statutory defenses to defamation claims, including the "fair reporting privilege" contained in. R.C. 2317.05. The privilege protects, among other things, the fair and impartial report of "the issuing of any warrant":

The publication of a fair and impartial report of the return of any indictment, the issuing of any warrant, the arrest of any person accused of crime, or the filing of any affidavit, pleading, or other document in any criminal or civil cause in any court of competent jurisdiction, or of a fair and impartial report of the contents thereof, is privileged, unless it is proved that the same was published maliciously, or that defendant has refused or neglected to publish in the same manner in which the publication complained of appeared, a reasonable written explanation or contradiction thereof by the plaintiff, or that the; publisher has refused, upon request of the plaintiff, to publish the subsequent determination of such suit or action. This section ...do[es] not authorize the publication of blasphemous or indecent matter.

8 "A publication is an `impartial report' when it is unbiased, not giving the impression the writer agrees or disagrees with the assertions in the official record or proceeding." Oney v. Allen, 39 Ohio St.3d 103, 105-1o6, 529 N.E.2d 471 (1988).

The privilege in R.C. 2317.05 "does not require a verbatim reproduction of the official record"; rather, the privilege applies if the defendant "demonstrates[s] that the publication is a substantially accurate report of the official record.'° Oiaey, supra, at paragraphs one and tuo, "A. publication is substantially accurate if it conveys the essence of the official record to the ordinary reader, wwithout misleading the reader by the inclusion of inaccurate extra-record information or the exclusion of relevant information in the record." Id. at paragraph three. The statute affords "protection to variances from the verbatim record `as long as the "gravamen," "gist" or "sting" or "substance" of the underlying proceeding or report ... is substantially correct."' Id., quoting Elder, The Fair Report Privilege, (1988), 193, Section 1.21.

Whether a publication falls under the "fair report" privilege in R.C. 2317.05 is a question of law for the court to decide. Worrell v. Multipress, Inc,, 45 Ohio St.3d 241, 249, 543 N.E.2d 1277 (1.9$9). But "once the existence of a privilege has been decided, the defense may be lost if the plaintiff proves that the defamatory statement was made with `actual malice' as defined in I-lajtn," Id.

B. Disposition

Because both the common-law and statutory privileges at issue here incorporate the "actual malice" standard to defeat that privilege, and both require review of the same set of facts, this Court will address only the specific statutory privilege in R.C. 2317.05.

x. The privilege in K.C. 2317.05 applies

No party disputes that these defendants published the same information on Sullins as that contained in the sheriffs department's warrant unit's I-Max system - the unit's official, non-public, internal system of tracking outstanding warrants - without adding to or subtracting from that inform:ation. And no one disputes that the information contained in the warrant unit's I-Max system was inaccurate. But "a report based on inaccurate official records are protected by the fair reporting privilege in R.C. 2317.05:" Martinez v. W7VC7, 6TH Dist. No. L-o7-1269, f^?oo8-t3hio-Z789, ¶27 (discussing Smitek v. I.nruin Cty. Printing &.Publishing Co., 9th Dist. No. 94CAoo6o23, 1995 Ohio App. LEXIS 4527)• And any cautionary advice to the public about leaving any attempt to apprehend the individuals featured on Warrant Unit to "professionals" is neither inaccurate nor misleading as it applies to Sullins; it is reasonable based on the existence of a warrant, albeit a no-longer-outstanding warrant for passing bad checks. See Oney, 39 Ohio St.3d at 107. Based on these facts, R.C. 2317.05 applies.

9 2. Sullins did not establish "reckless disregard"

Sullins contends, however, that these defendants acted with "actual malice" which, in turn, defeats the qualified privilege in R.C. 2317.05. As noted above, malice may be shown where the defendants knew the information they received from the sheriffs department was false or they acted with reckless disregard as to the truth or falsity of that information. Sullins, however, has not produced evidence that these defendants knew the information provided by the sheriffs department was false. Instead, Sullins rests his claim on the contention that these defendants would have known that the information was false if they took additional steps to verify the information and, therefore, acted with a high degree of awareness of the probable falsity of that information or entertained serious doubts as to the truth of that information.

Sullins argues that, because the sheriffs department had warned these defendants about double-checking the records but they failed to do so, "the Defendants did not have a legitimate `occasion' for portraying Sullins as a criminal-on-the-run, and lacked `good faith' in doing so." (Brief in Opp., p. 29.) Although such conduct might constitute evidence of a lack of ordinary care, "reckless disregard is not measured by lack of reasonable belief or of ordinary care, even evidence of negligence in failing to investigate the facts is insufficient to establish malice." Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116,119, 413 N.E,2d 1187 (1980); St. Amant v. Thompson, 390 U.S. 727, 733, 88 S.Ct. 1323, 20 L. Ed.2d 262 (1968) ("Failure to investigate does not in itself establish bad faith."). Nor does evidence of subjective "hatred, spite vengefulness, or deliberate intention to harm . . . , standing alone, warrant a verdict for the plaintiff' under the actual-malice standard. Var-ane,se, 35 Ohio St.3d at 79-80, Rather, the inquiry focuses on "the defendant's attitude toward the truth or falsity of the statement alleged to be defamatory. A defendant who was motivated to publish by the blackest spirit of hatred and spite will not be liable if he subjectively believed in the truth of the statement." Id, at 8o (emphasis original; citati(in omitted).

Here, nothing in the record demonstrates that any of these defendants had a high degree of awareness of the proliable falsity or entertained serious doubts as to the truth of the sheriffs warrant unit's records at the time Acklin prepared the information for Crime Stoppers and Pinpoint Media or at any time before Episode 17 of Warrant Unit aired. While Acklin says she warned that the information that she had provided may become obsolete in the future, the mere failure to verify that information through the clerk of court's unofficial online docket before publishing it does not rise to the level of "reckle5s disregard" that would establish malice.3 Therefore, because no genuine issue of material

Indeed, once a user agrees to the CJIS Webnet Disclaimer, the first page of the clerk of court's information search menu contains yet another disclaimer: "Only the official court records available from the Cuyahoga County Clerk of Courts, available in person, should be relied upon as accurate and currezit." 10 fact exists as to whether these defendants acted with reckless disregard as to the truth or falsity of Sullins' warrant information provided by the sheriffs warrant unit, these defendants are entitled to judgment as a matter of law on Sullins' defamation claim.

V. False Light

A. "ether the statement placed Sullins in afalse light

And defendants also are entitled to summary judgment on Sullins's false-light invasion-of-privacy claim. In Welling v. Weinfeld, 113 Ohio St.464, 2007-Ohio-245t, 866 N.E.2d 1051, syllabus, the Supreme Court of Ohio adopted the false-light invasion-of-privacy claim as stated in the Restatement of the Law of Torts, 2d, §652E:

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy if (a) the false liglit in which the other was placed would be highly offensive to a reasonable person and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The Court explained that, first, the statement made must be untrue; second, the information must be "publicized." Id. at ^1152-53. Publicity, in the context of a false-light claim, "`means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge."' Id. at ¶53, quoting Restatement, supra, at Section 652D, comment a.

Third, the untrue statement "must be serious enough to be highly offensive to a reasonable person," such that the "`defendant knows that the plaintiff, as a reasonable man, would be justified in the eyes of the coznmunity in feeling seriously offended and aggrieved by the publicity."' Wellington, 113 Ohio St.3d 464 at ¶ i5, quoting Restatement, supra, Section 652E, comment c. Unimportant, untrue statements do not invade one's privacy, even if deliberately made: "`Tt is only when there is such a major misrepresentation of his character, history, activities, or beliefs that serious offense may reasonably be expected to be taken by a reasonable mara in his position, that there is a cause of action for invasion of privacy."' Id., quoting Restatement, supra, Section 652E, comment c. As the Court noted in Wellington, a reporter or editor who fails to detect an error or use reasonable care to avert misrepresentations is protected from liability. Id. at 1159, quoting Ray, Let There Be False Light: Resisting the GrolAring Trend Against an Irnportant Tort, 84 Mirin. L. Rev, 713, 731 (2ooo). Regardless of whether the plaintiff is a public or private figure, liability exists only if the plaintiff demonstrates that the defendant knew the publicized matter was false or

11 acted in reckless disregard as to the falsity of it and in the false light into which the plaintiff would be placed. Id. at M8-59.

B. Disposition

1. Sullins "fugitive" status was true

No one disputes that the Cleveland Municipal Court had issued five warrants in five separate cases for Sullins' arrest when he failed to appear or pay a fine, each of which was outstanding at the time Episode 17 of Warrant tlnft aired. While Sullins objects to these defendants' depiction of him as a "fugitive" on that episode, he was, in fact, a fugitive. Because the statement made is true, it is not actionable. Moreover, no one disputes that Sullins previously had served his sentence for passing bad checks. In this context, the underlying basis for an existing, outstanding warrant against Sullins is unimportant.

2. Sullins failed to establish that these defendants acted with reckless disregard

But even if the statement about being a fugitive was untrue, Sullins has not established that these defendants "acted with knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed." Wellington, 113 Ohio St.3d 464, syllabus. Therefore, as no genuine issue of material fact exists as to whether Sullins can prove a false-light claim, these defendants are entitled to judgment in their favor as a matter of law.

ORDER

The separate motions for sumrriary judgment of Defendants WOIo- WUAB Cleveland, Pinpoint Media, and Cuyahoga County Crime Stoppers are granted. As no other claims remain to be litigated, this order is final, "

SO ORDERED: C2- RECE1VED FOR FILING Judge Robert C. McClelland NOV2:720 u sr,c Date: 14 j ^ r, A .?._- DEP.

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