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In the Supreme Court of Ohio Supreme Court of Ohio Clerk of Court - Filed February 23, 2015 - Case No. 2015-0127 IN THE SUPREME COURT OF OHIO ROBERT E. MURRAY, et al., : Ohio Supreme Court Case No. 15-0127 : Plaintiffs-Appellants, : : v. : On appeal from Cuyahoga County Court of : Appeals, Eighth Appellate District THE CHAGRIN VALLEY PUBLISHING : COMPANY, et al., : Court of Appeals Case No. 101394 : Defendants-Appellees. : : MEMORANDUM IN RESPONSE TO APPELLANTS’ MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLEES THE CHAGRIN VALLEY PUBLISHING COMPANY; H. KENNETH DOUTHIT, III; TODD NIGHSWONGER; DAVID C. LANGE; DOUTHIT COMMUNICATIONS, INC.; SALI A. MCSHERRY; AND RON HILL J. MICHAEL MURRAY (0019626) (COUNSEL OF RECORD) [email protected] LORRAINE R. BAUMGARDNER (0019642) [email protected] BERKMAN, GORDON, MURRAY & DeVAN 55 Public Square, Suite 2200 Cleveland, OH 44113 (216) 781-5245 / (216) 781-8207 (facsimile) Attorneys for Defendants-Appellees The Chagrin Valley Publishing Company, H. Kenneth Douthit, III, Todd Nighswonger, David C. Lange, Douthit Communications, Inc., Sali A. McSherry, and Ron Hill Mark S. Stemm (0023146) (COUNSEL OF RECORD) [email protected] L. Bradfield Hughes (0070997) [email protected] PORTER WRIGHT MORRIS & ARTHUR LLP 41 South High Street, Suite 3200 Columbus, Ohio 43215 (Continued) J. Philip Calabrese (0072709) [email protected] Tracy S. Francis (0080879) [email protected] PORTER WRIGHT MORRIS & ARTHUR LLP 950 Main Avenue, Suite 500 Cleveland, Ohio 44113 Kevin Anderson, pro hac vice PHV Registration No. 3507-2015 Ohio Admission Pending (0092847) [email protected] FABIAN & CLENDENIN, PC 215 South State Street, Suite 1200 Salt Lake City, Utah 84111 Michael O. McKown (0013378) [email protected] Gary M. Broadbent (0083876) [email protected] 46226 National Road St. Clairsville, Ohio 43950 Attorneys for Plaintiffs-Appellants Robert E. Murray, Murray Energy Corporation, American Energy Corporation and The Ohio Valley Coal Company Samuel M. Pipino [email protected] Molly Gwin [email protected] WILES, BOYLE, BURKHOLDER & BRINGARDNER CO., L.P.A. 300 Spruce Street, Floor One Columbus, Ohio 43215 Attorneys for Defendants-Appellees Patriots for Change TABLE OF CONTENTS Page TABLE OF AUTHORITIES. ii THIS CASE DOES NOT PRESENT AN ISSUE OF PUBLIC OR GREAT GENERAL INTEREST. 1 ARGUMENT IN SUPPORT OF APPELLEES’ POSITION ON PROPOSITIONS OF LAW IN MEMORANDUM IN SUPPORT OF JURISDICTION. 7 Appellees’ Counter Proposition of Law I: Defamation and false-light privacy both require a showing that the statements at issue are materially false and were published with knowledge of their falsity or with reckless disregard for the truth; failure to establish either of these requirements dooms claims under both torts. Welling, 113 Ohio St.3d 464, 866 N.E.2d 1051, 2007-Ohio-2451 at ¶¶ 52, 61. 7 Appellees’ Counter Proposition of Law No. II: At the summary judgment stage, a public figure defamation plaintiff must demonstrate by clear and convincing evidence that the defendant acted with actual malice. Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 119, 413 N.E.2d 1187 (1980); Varanese v. Gall, 35 Ohio St. 3d 78, 81, 518 N.E.2d 1177 (1988); Grau v. Kleinschmidt, 31 Ohio St. 3d 84, 90, 509 N.E.2d 399 (1987); Perez v. Scripps-Howard Broad. Co., 35 Ohio St. 3d 215, 218, 520 N.E.2d 198 (1988); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). 8 Appellees’ Counter Proposition of Law III: Four factors guide the analysis of whether statements forming the basis of a defamation claim constitute protected opinion or statements of fact: the specific language used, whether the statement is verifiable, the general context of the statement, and the broader context in which the statement appeared. Scott v. News Herald, 25 Ohio St.3d 243, 496 N.E.2d 699 (1986); Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279, 649 N.E.2d 182 (1995); McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 729 N.E.2d 364 (2000) and Wampler v. Higgins, 93 Ohio St.3d 111, 752 N.E.2d 962 (2001).. 14 CONCLUSION. 15 i TABLE OF AUTHORITIES Page CASES Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St. 3d 366, 2012-Ohio-4193, 978 N.E.2d 832. 1, 9 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).. 6, 8, 9, 13 Bukky v. Painesville Tel. & Lake Geauga Printing Co., 68 Ohio St. 2d 45, 428 N.E.2d 405 (1981). 9 Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 413 N.E.2d 1187 (1980).. 6, 8, 12, 13 Farah v. Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013). 7 Grau v. Kleinschmidt, 31 Ohio St. 3d 84, 509 N.E.2d 399 (1987). 6, 8 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988).. 12 Jackson v. City of Columbus, 117 Ohio St. 3d 328, 2008-Ohio-1041, 883 N.E.2d 1060. 13 Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563 (D.C. Cir. 1984). 6 McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 729 N.E.2d 364 (2000).. 14, 15 Murray v. HuffingtonPost.com, Inc., 21 F. Supp.3d 879 (S.D. Ohio 2014). 5, 8, 12 Ollman v. Evans, 750 F.2d 970 (D.C. Cir.1984). 15 Perez v. Scripps-Howard Broad. Co., 35 Ohio St. 3d 215, 520 N.E.2d 198 (1988).. 6, 8 Scott v. News Herald, 25 Ohio St.3d 243, 496 N.E.2d 699 (1986). 7, 14, 15 ii TABLE OF AUTHORITIES (cont’d) State v. Coleman, 117 Ohio App. 3d 726, 691 N.E.2d 369 (1997).. 14 State v. Radcliff, 2015-Ohio-235. 14 Vail v. The Plain Dealer Publishing Co., 72 Ohio St.3d 279, 649 N.E.2d 182 (1995).. 7, 10, 14, 15 Varanese v. Gall, 35 Ohio St. 3d 78, 518 N.E.2d 1177 (1988). 6, 8, 12 Wampler v. Higgins, 93 Ohio St.3d 111, 752 N.E.2d 962 (2001). 7, 14, 15 Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir. 1966). 6, 7 Welling v. Weinfeld, 113 Ohio St. 3d 464, 2007-Ohio-2451, 866 N.E.2d 1051. 1, 5, 7 CONSTITUTIONAL PROVISIONS Ohio Constitution, Article I, Section 11. 2, 8 United States Constitution, amend. I. 2, 5, 8, 13 STATUTES, RULES AND REGULATIONS 30 CFR § 50.1(h)(9).. 4 30 CFR § 50.10. 4 MISCELLANEOUS C. Barylak, Reducing Uncertainty in Anti-Slapp Protection, 71 Ohio St. L.J. 845 (2010). 14 http://www.anti-slapp.org/your-states-free-speech-protection/. 14 iii THIS CASE DOES NOT PRESENT AN ISSUE OF PUBLIC OR GREAT GENERAL INTEREST. The law of defamation and false-light privacy is straightforward and well-developed. See Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St. 3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 104 (Pfeifer, J., concurring in part, dissenting in part) (“The law on defamation is not complicated.”); Welling v. Weinfeld, 113 Ohio St. 3d 464, 2007-Ohio-2451, 866 N.E.2d 1051, ¶ 61 (adopting the Restatement of the Law 2d, Torts, Section 652E). Applying that body of law, the Eighth District Court of Appeals conducted an independent review of the record and determined Appellants’ claims under those theories fell short. It, therefore, affirmed the trial court’s entry of summary judgment in favor of Appellees. Appellants claim the court’s analysis went awry, and urge this Court to accept review so it can correct the result and provide “guidance on fundamental issues regarding the false-light invasion of privacy tort and defamation law.” Memorandum in Support of Jurisdiction at 1. But before discussing why Appellants fail to make the case for review by this Court, a brief discussion of how the case arose will help put the issues in their proper context. Appellant Robert Murray, the CEO of Murray Energy, owns and operates coal mines. He has long been an energetic advocate for the coal industry and an outspoken critic of those he views as its enemies–one of whom is President Obama. The day after President Obama’s reelection, Murray Energy issued press releases announcing three of its subsidiaries were laying off a total of 163 employees. The press releases referenced “the ‘War on Coal’ by the administration of President Barack Obama” and the effect of that “war” on coal markets. The following day, Murray Energy issued another press release sharing a prayer Murray had delivered to his staff the day after the election, lamenting the choice the voters had made, and sharing Murray’s outline of his pessimistic view of America’s future in the election’s wake. The lay-offs and Murray’s prayer were picked up and reported on by the local and national press, including Fox News who interviewed Murray on national television about the lay-offs, his prayer, and the President’s “anti-coal” policies. In response to Murray’s statements to the press, Appellees Patriots for Change organized a protest at Murray Energy’s offices in Pepper Pike, Ohio, voicing its opposition to the lay-offs and criticizing the company’s safety and environmental records, non-compliance with federal regulations, and treatment of its employees. The Chagrin Valley Times, a weekly newspaper whose coverage area includes Pepper Pike, reported on the protest in a news article. The following week, the paper ran an editorial and editorial cartoon commenting on the issues raised by the protest. The statements and opinions of the protesters and the paper–expression protected by the First Amendment to the United States Constitution and Article I, Section 11 of the Ohio Constitution–were backed by an extensive public record comprised of government reports, judicial and administrative dockets, a congressional committee report, as well as news articles in reliable publications.
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