Sabino v. WOIO, L.L.C. , 2016 Ohio 491 ( 2016 )

[Cite as Sabino v. WOIO, L.L.C., 2016-Ohio-491.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102571
GEORGE SABINO, III
PLAINTIFF-APPELLANT
vs.
WOIO, L.L.C., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-13-801778
BEFORE: Jones, A.J., Celebrezze, P.J., and Keough, J.
RELEASED AND JOURNALIZED: February 11, 2016
ATTORNEYS FOR APPELLANT
John A. Huettner
19425 Van Aken Boulevard, Suite 314
Shaker Hts., Ohio 44122
Michael R. Blumenthal
David B. Waxman
Waxman Blumenthal L.L.C.
28601 Chagrin Boulevard, Suite 500
Cleveland, Ohio 44122
ATTORNEYS FOR APPELLEES
Michael K. Farrell
Melissa D. Bertke
Baker & Hostetler, L.L.P.
PNC Center
3200 National City Center
1900 East 9th Street
Cleveland, Ohio 44114
Stephen J. Rosenfeld
Mandell, Menkes, L.C.
One North Franklin Street, Suite 3600
Chicago, Illinois 60606
LARRY A. JONES, SR., A.J.:
{¶1} Plaintiff-appellant, Georgio Sabino, III, appeals the trial court’s decision to
grant a directed verdict in favor of defendants-appellees, WOIO, L.L.C. and news reporter
Ed Gallek (at times collectively referred to as “WOIO”). We affirm.
I. Procedural History and Facts
{¶2} In 2011, Sabino was a first-year art teacher at Cleveland Heights High School.
He was not yet a licensed full-time teacher at the time he was teaching, and never became
one while he taught in Cleveland Heights. Sabino had two laptop computers at the
school, one personal and one belonging to the school. He allowed his students access to
both computers.
{¶3} In December 2011, two students reported to another teacher that they saw
inappropriate images on Sabino’s personal computer. “Student 1” reported that she saw a
file named “teen” and opened it, because she thought it was a file that housed pictures
pertinent to their class. When Student 1 opened the file, she alleged that she saw a video
of a young male and female having sex and estimated the age of the participants in the
video to be 14 to 15 years old. “Student 2” alleged she saw links to a pornographic
website on Sabino’s computer.
{¶4} The next day, police and school officials removed Sabino from his class and
seized both laptop computers. Sabino described this removal as “very traumatic,”
“extremely public,” and “humiliating.” Sabino was placed on paid leave and was never
asked back to teach in the district.
{¶5} The same day Sabino was removed from his classroom, television station
WOIO, also known as Channel 19, posted an article on its website reporting that a
Cleveland Heights High School teacher was being investigated for inappropriate material
on his computer. Sabino felt “embarrassed and humiliated” by the story. The initial
article, published December 14, 2011, named Sabino as the teacher under investigation.
His name was subsequently removed from the article.
{¶6} The article as amended read as follows:
Teacher under investigation for inappropriate computer material
Posted: Dec. 14, 2011 4:48 PM EST
Updated: Dec. 16, 2011 5:40 PM EST
CLEVELAND HEIGHTS, OH (WOIO) - A Cleveland Heights High School
teacher is now on leave pending a criminal investigation.
Cleveland Heights High School, along with Cleveland Heights School
District and University Heights School District and Cleveland Heights Police
are investigating inappropriate material found on the teacher’s personal
computer.
The teacher was placed on leave Wednesday Dec. 14, 2011.
The current school year was the art teacher’s first year at Cleveland Heights
High School. All background, employment and reference checks prior to
employment came back clean according to the Superintendent’s office.
The Cleveland Heights-University Heights School District is taking the
appropriate precautions to safeguard students and will proceed with Board
policies when the facts become known.
{¶7} In February 2012, WOIO news reporter Ed Gallek (“Gallek”) followed up on
the story. He obtained copies of search warrant documents and contacted Sabino’s
attorney, the Cuyahoga County Prosecutor’s Office, and the school district. Gallek
prepared a 74-second broadcast, which was aired during the February 20, 2012 evening
newscast.
{¶8} The main news anchors spoke the lead-in to the story. The first anchor
stated, “And new tonight, we are uncovering new details about the investigation into a
high school art teacher.” The second anchor said, “He is suspected of having child
pornography on his personal computer. Only Ed Gallek is investigating this case, and
what his students may have seen.” Gallek then appeared, sitting at a desk in the
newsroom, and reported:
We’re finding out how this all started. A couple of students borrowed a
teacher’s laptop. What they say they saw made them wonder, are they
learning from a pervert? One student says she borrowed the teacher’s laptop
to look at pictures of the team or the class, came across a file named “teen,”
teens having sex. Talking about an art teacher at Cleveland Heights High.
Another student says she used the teacher’s computer, saw an “interactive
porno website.” Again on that computer, she says it gave her a shortcut to a
porno address. Another teacher heard the kids talking, they described it for
the principal, cops got involved.
This happened in December, the inside story coming to light now in court
records recently filed. Records show computer crime investigators took two
computers. No charges yet, so we’re not naming the teacher. He did get
suspended. I spoke with his attorney, everyone’s still waiting for findings.
An investigation into unexpected sex ed. Ed Gallek, 19 Action News.
{¶9} During the majority of the time Gallek was speaking, a stationary banner
appeared on the screen. The stationary banner consisted of three lines. The top line
read “19 Investigation” in red letters highlighted in white. The second line, underneath
“19 Investigation,” read “Teacher Under Fire” in larger white letters highlighted in black.
The third line, under “Teacher Under Fire,” appeared in smaller black letters highlighted in
white. The third line read “Child Porn Found on Laptop.” The 19 Action News Logo
appeared on the bottom right of the screen. Another banner, or ticker, with the day’s
headlines was scrolling across the bottom of the newscast.
{¶10} The stationary banner appeared for approximately 43 seconds during
Gallek’s broadcast. Gallek testified that he played no role in drafting, approving, or
editing the banner and did not know about the banner until well after the broadcast.
{¶11} In February 2013, Sabino filed a complaint against Gallek and WOIO,
alleging the following: Count 1, defamation — initial WOIO publication; Count 2,
defamation — WOIO republication; Count 3, defamation per se — initial WOIO
publication; Count 4, defamation per se — WOIO republication; Count 5, negligence;
Count 6, false light invasion of privacy; and Count 7, intentional infliction of emotional
distress.
{¶12} The defendants moved for summary judgment, which the trial court denied.
Prior to trial, the court dismissed Counts 1, 3, 5, and 7 of the complaint, journalizing an
entry that explained that Sabino “elected not to go to trial” on Counts 1, 3, 5, and 7 and
“all parties agree with the court that the case will proceed to trial on Counts 2, 4, and 6.”
Thus, the matter proceeded to trial on Sabino’s defamation and defamation per se claims
with regard to the February 2012 broadcast and his false light invasion of privacy claim.
{¶13} The following pertinent evidence was presented at trial.
{¶14} Joseph Nohra (“Nohra”) testified that he was a principal at Cleveland
Heights High School in 2011 when the incident occurred. Nohra was on the interview
committee that hired Sabino and remembered that Sabino came highly recommended;
Nohra thought Sabino was the best candidate for the position even though Sabino was not
yet a fully licensed teacher. Nohra testified that if Sabino passed his licensure test and
was “cleared of all charges” in connection with the case, he would have no qualms
recommending Sabino as an art teacher. Nohra did admit, however, that he would not
want someone teaching in his school that gave porn to students.
{¶15} Professor Tim Shuckerow (“Professor Shuckerow”) of Case Western
Reserve University testified that Sabino was one of his former graduate students.
Professor Shuckerow described Sabino as a patient, polite, and sensitive student who was
enthusiastic about teaching, had a strong reputation, and had a history of volunteer work.
Professor Shuckerow testified that he first became aware of the allegations against Sabino
when one of his former students and a Cleveland Heights High School teacher contacted
him. According to Shuckerow, he received three to four additional calls from people
asking his opinion on the allegations.
{¶16} Shuckerow opined that the February 20, 2012 broadcast would have
negatively affected Sabino’s “ability to become employed as a teacher.” But Shuckerow
admitted that no one ever told him they would not hire Sabino nor was he aware of any
employer that did not hire Sabino based on the news story.
{¶17} W. Scott Ramsey (“Ramsey”) testified that he was Sabino’s attorney when
Sabino was initially investigated. Ramsey testified that Sabino was never arrested or
charged with any crime in relation to the allegations that he had child pornography on his
computer.
{¶18} Rachel Truitt (“Truitt”) testified that she and Sabino were close family
friends. She testified that Sabino was a good teacher, excellent with children, an
excellent artist, very spiritual, and had good morals. Truitt testified that after Sabino was
accused, mutual friends approached her and accused Sabino of being a pedophile, saying it
“was in the news.” Truitt did not know where the mutual friends got their information
from. Truitt was of the opinion that Sabino’s reputation had been damaged by the
allegations against him.
{¶19} Truitt testified that she learned of the allegations when her daughter came
home crying from school and told her about Sabino. Truitt then saw the broadcast on
television and felt it to be untrue: “It was a news broadcast by Ed Gallek, and just the
way that he said what he said about the teacher at Cleveland Heights being investigated for
this.”
{¶20} Amanda Duffy (“Duffy”) testified that she was Sabino’s girlfriend and they
lived together. She admitted to viewing pornographic websites on Sabino’s laptop
computer but had never seen child pornography or other pornographic videos or photos on
Sabino’s hard drive. Duffy testified that she overheard three women talking negatively
about Sabino at a restaurant shortly after the February 2012 broadcast, but she could not
confirm that the women heard about the allegations from that newscast. Duffy felt that
Sabino changed for the worse after the allegations and he had a difficult time finding
employment after he was placed on leave from the high school.
{¶21} Jeffrey Firestone, who was qualified during trial as an expert in accounting,
testified that Sabino’s projected economic damages were $1.4 million based on WOIO’s
broadcast and on Sabino becoming a full-time licensed teacher.
{¶22} Robin Smith (“Smith”) testified that she knew Sabino well and Sabino had
been the talent manager for her children. Smith first heard about the allegations against
Sabino when a friend contacted her in December 2011. She did a Google search on
Sabino and found out that people on the internet were accusing him of being a “pervert.”
She thought the allegations damaged his reputation in the community. On her way to an
event in February 2012, Smith remembers someone calling her and telling her to turn on
the news because there was a story about Sabino on it.
{¶23} Sabino testified that he graduated from Case Western Reserve University
with a dual masters degree despite having a learning disability. He was hired to teach art
and photography at Cleveland Heights High School in 2011. At the time of trial, Sabino
was licensed as a substitute teacher. Sabino explained that he used, and “regrettably”
allowed his students to use, his personal laptop computer at school because the school’s
laptops were outdated or broken. According to Sabino, a student would not be able to
access any website on his personal computer that the school had blocked, such as
pornography websites. Sabino denied having a folder on his computer titled “teen” and
denied allowing students unfettered access to his computer.
{¶24} Sabino admitted there were naked and sexually explicit pictures and videos
of a former girlfriend on his computer at the time the students’ allegations came to light,
but insisted that the pictures would be very difficult to find because it would take “15 to 20
clicks” of a mouse to access them. On cross-examination, however, he admitted that the
videos and images were on a folder located on the desktop of his computer and it would
only take “one to two clicks” to access them. The folder was also titled “Fashion
Photography,” which was one of the subjects he taught at the high school.
{¶25} Sabino denied ever filming or photographing pornography but admitted he
and his girlfriend watched pornography on his laptop computer. Sabino denied saving
any of the files he viewed. Sabino denied having any child pornography on his computer
and testified he was cleared of any wrongdoing in relation to the students’ allegations.
{¶26} Sabino testified that after the newscast someone at a restaurant called him a
child molester, but he conceded that he had no knowledge whether that person got his
information from the February 20, 2012 broadcast.
{¶27} Gallek testified and denied saying anything during his broadcast that would
cast Sabino in a guilty light. He further denied creating any of the banners that ran during
the broadcast. He explained that producers create the story banners and he did not know
who created the banner for this particular story. Gallek felt he did not say anything
during his broadcast that was misleading. He also testified that he could not say if he
would have personally chosen different language for the banner, other than “Child Porn
Found on Computer,” because it was not his job to write story banners.
{¶28} When asked about using the term “suspended” to refer to the teacher’s status,
Gallek testified that many people use the terms “suspended” and “placed on leave”
interchangeably, because “they’re kind of synonymous in laymen’s terms.”
{¶29} Tiffany Patterson, a WOIO employee, testified that she authored and posted
the December 14, 2011 internet article naming Sabino as the teacher under investigation.
She did not know who updated the article removing Sabino’s name nor did she remember
when the update occurred.
{¶30} Following Sabino’s presentation of the evidence and arguments by the
parties, the trial court directed a verdict in favor of the defendants. As to Sabino’s
defamation per se claim, the trial court found the claim had not been proven because there
was a need to provide extrinsic information to know that the February 20, 2012 newscast
pertained to Sabino; therefore, a directed verdict was appropriate. As to the two
remaining defamation claims, the trial court found:
Well, I think one of the most painful things that I ever am called to do is
grant a directed verdict motion, but I think it is truly appropriate in this case.
[M]y chief concern is when I — when I look at the child porn found on the
computer and I attribute that to the voice of our student — I don’t mean
the student testifying here today, I mean the student in that search warrant
affidavit who is being quoted, then that is a fair statement.
So if we interpret this as the station saying we’ve got a student out there who
found child porn on the laptop, then [it’s] a fair statement of fact.
But if it’s just unattributed, so I think that’s the grounds that causes me to
grant the directed verdict motion, that we just don’t have a strictly false
statement. That if we interpret that as being from the voice of the high
school student, it’s exactly what she’s saying and she’s quoted there in the
affidavit saying it. So that will be my basis for doing it, as painful as it is.
{¶31} This appeal followed.
II. Assignments of Error
{¶32} Sabino raises four assignments of error for our review:1
I: The trial court erred in dismissing Sabino’s claims of defamation per se
based upon the one year statute of limitations in defamation cases.
II: The trial court erred in granting a directed verdict for defendants at the
close of Sabino’s case in chief based upon the fair report privilege.
III: The trial court erred in granting a directed verdict for defendants at the
close of Sabino’s case in chief based upon the innocent construction rule.
IV: The trial court erred in failing to consider the actual malice standard and
in particular defendant’s recklessness[,] in granting a directed verdict for
defendants at the close of Sabino’s case in chief.
III. Law and Analysis
A. False Light Claim
Sabino’s brief fails to comply with the appellate rules. App.R. 12(A)(2) provides that an
1
appellate court “may disregard an assignment of error presented for review if the party raising it fails
to identify in the record the error on which the assignment of error is based or fails to argue the
assignment separately in the brief, as required under App.R. 16(A).” His brief fails to argue the
assignments of error separately, rendering appellate review more difficult. If an argument exists that
can support an assignment of error, it is not this court’s duty to root it out. Citta-Pietrolungo v.
Pietrolungo, 8th Dist. Cuyahoga No. 85536, 2005-Ohio-4814, ¶ 35, citing Cardone v. Cardone, 9th
Dist. Summit Nos. 18349 and 18673, 1998 Ohio App. LEXIS 2028 (May 6, 1998).
Notwithstanding this deficiency and although the appellate rules were not complied with, we
recognize that cases are best decided on their merits. Appellant’s counsel is admonished that, in the
future, the court may disregard an assignment of error or appeal that is brought in such a manner.
{¶33} As an initial matter, although the trial court granted WOIO’s directed verdict
motion as to Sabino’s false light invasion of privacy claim, on appeal, Sabino does not
challenge the trial court’s decision nor discuss that claim at all. Therefore, we summarily
affirm the trial court’s decision granting a directed verdict in favor of WOIO on Sabino’s
false light invasion of privacy claim.
B. Statute of Limitations
{¶34} In his first assignment of error, Sabino argues that the trial court erred by
dismissing his defamation per se claim based on the one-year statute of limitations. As
noted above, Count 3 of Sabino’s complaint alleged a defamation per se claim premised on
the initial December 2011 internet article that WOIO published. Count 4 alleged
defamation per se based on the republication. The trial court did not, however, dismiss
Sabino’s defamation per se claims, Counts 3 and 4, based on the statute of limitations.
{¶35} Prior to trial, the parties agreed that Sabino would not proceed to trial on
Count 3. During trial, the court stated that it was directing a verdict in favor of the
defense on Count 4 of the complaint based on its determination that a viewer would have
to look to information extrinsic to the February 20, 2012 broadcast to know that it was
about Sabino. In doing so, the trial court merely noted that Count 3 of the complaint
could not be independently based on the December 14, 2011 article, which named Sabino,
because Sabino abandoned the claim by agreeing on its dismissal prior to trial, and,
moreover, the claim was time-barred.
{¶36} Therefore, Sabino’s argument that the trial court dismissed his defamation
per se claims based on the statute of limitations is misplaced.
{¶37} The first assignment of error is overruled.
C. Directed Verdict
{¶38} In the second, third, and fourth assignments of error, Sabino argues that the
trial court erred in granting a directed verdict in favor of WOIO and Gallek.
Standard of Review
{¶39} “A motion for a directed verdict presents a question of law, not a question of
fact, ‘even though in deciding such a motion it is necessary to review and consider the
evidence.”’ Grau v. Kleinschmidt, 31 Ohio St. 3d 84, 90, 509 N.E.2d 399 (1987), quoting
Ruta v. Breckenridge-Remy Co., 69 Ohio St. 2d 66, 430 N.E.2d 935 (1982), paragraph one
of the syllabus. In considering a motion for a directed verdict, if “there is sufficient
evidence relating to an essential issue which permits reasonable minds to reach different
conclusions, then it is incumbent upon the trial court to submit the issue to the factfinder
for consideration.” Grau at id.
{¶40} A plaintiff must establish each element of his or her defamation claim by
clear and convincing evidence to avoid a directed verdict. Barner v. Kroehle, 8th Dist.
Cuyahoga No. 87557, 2006-Ohio-5569, ¶ 14. Where, as here, the plaintiff is a private
person, Ohio law requires that the plaintiff establish by clear and convincing evidence that
the defendant failed to act reasonably in attempting to discover the truth or falsity of the
allegedly defamatory statement. Lansdowne v. Beacon Journal Publishing Co., 32 Ohio
St.3d 176, 180, 512 N.E.2d 979 (1987). “[I]t is for the court to decide as a matter of law
whether certain statements alleged to be defamatory are actionable or not.” Am. Chem.
Soc. v. Leadscope, Inc., 133 Ohio St. 3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 78,
citing Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of
Am., 6 Ohio St. 3d 369, 372, 453 N.E.2d 666 (1983).
Defamation
{¶41} Defamation is a false publication that injures a person’s reputation, exposes
the person to public hatred, contempt, ridicule, shame, or disgrace, or affects the person
adversely in his or her trade or business. Barner at ¶ 13, citing Matalka v. Lagemann, 21
Ohio App. 3d 134, 486 N.E.2d 1220 (10th Dist.1988). The elements of a defamation
action are that the defendant made a “false and defamatory statement concerning another,
that the false statement was published, that the plaintiff was injured, and that the defendant
acted with the required degree of fault.” Celebrezze v. Dayton Newspapers, Inc., 41 Ohio
App.3d 343, 346-347, 535 N.E.2d 755 (2d Dist.1988). Defamation can be in the form of
either slander or libel; slander generally refers to spoken words, while libel usually refers
to written or printed words. Barner at id., citing Lawson v. AK Steel Corp., 121 Ohio
App.3d 251, 699 N.E.2d 951 (12th Dist.1997). But defamatory matter broadcast by
means of radio or television is classified as libel. Holley v. WBNS 10TV, 149 Ohio App. 3d
22, 2002-Ohio-4315, 775 N.E.2d 579, ¶ 29 (10th Dist.), citing 3 Restatement of the Law
2d, Torts, Section 568A (1977).
{¶42} Defamation can be in the form of “defamation per se ” or “defamation per
quod.” Defamation per se means that the defamation is accomplished by the very words
spoken or written. Kanjuka v. Metrohealth Med. Ctr., 151 Ohio App. 3d 183,
2002-Ohio-6803, 783 N.E.2d 920, ¶ 16 (8th Dist.), citing McCartney v. Oblates of St.
Francis De Sales, 80 Ohio App. 3d 345, 609 N.E.2d 216 (6th Dist.1992). Defamation per
quod is when a statement with an apparently innocent meaning becomes defamatory
through interpretation or innuendo. Id. citing id.
Fair Reporting Privilege
{¶43} The trial court determined that a directed verdict on Sabino’s defamatory per
se claim was appropriate because the February 20, 2012 broadcast did not mention him by
name. The trial court also found that a directed verdict on the remaining claims was
appropriate because the statement “Child Porn Found on Computer” was a fair statement
of fact; it was not a “strictly false statement.”
{¶44} Sabino claims that the court erred in granting the directed verdict based on
the fair reporting privilege. The fair reporting privilege is codified in R.C. 2317.05,
which provides, in pertinent part:
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 * * * .
{¶45} The trial court did not, however, base its decision solely on the fair reporting
privilege. Instead, the trial court granted the directed verdict because it believed that the
defendants’ alleged defamatory statement was not defamatory because the statement,
“Child Porn Found on Computer,” could be interpreted as a fair statement of fact when
looking to the entire broadcast.
Innocent Construction Doctrine
{¶46} Again, the trial court determines as a matter of law whether the statements
alleged to be defamatory are actionable or not; it is not a question of fact for the jury to
decide. Yeager, 6 Ohio St. 3d at 372, 453 N.E.2d 666.
{¶47} The innocent construction rule provides that if allegedly defamatory words
are susceptible of two meanings, one defamatory and one innocent, the defamatory
meaning should be rejected and the innocent meaning adopted. Yeager at id. On its
face, “Child Porn Found on Computer,” if false2 and if shown to be about Sabino, appears
to be a clear defamatory statement. But courts do not look at an allegedly defamatory
statement in a vacuum. Rather, “[i]n determining whether a statement is defamatory as a
matter of law, a court must review * * * the totality of the circumstances” by reading the
statement in the context of the entire publication to determine whether a reasonable reader
or viewer would interpret it as defamatory. Am. Chem., 133 Ohio St. 3d at 389,
2012-Ohio-4193, 978 N.E.2d 832, citing Mann v. Cincinnati Enquirer, 1st Dist. Hamilton
No. C-09074, 2010-Ohio-3963, ¶ 12; Scott v. News-Herald, 25 Ohio St. 3d 243, 253, 496
N.E.2d 699 (1986); Mendise v. Plain Dealer Publishing Co., 69 Ohio App. 3d 721, 726,
Allegedly conflicting expert reports on what was found on Sabino’s computer were either
2
not attempted to be admitted or not allowed into evidence.
591 N.E.2d 789 (8th Dist.1990).
{¶48} In Am. Chem., the Ohio Supreme Court stated:
The words of the publication should not be considered in isolation, but rather
within the context of the entire [publication] and the thoughts that the
[publication] through its structural implications and connotations is
calculated to convey to the reader to whom it is addressed.
Id. at 390, citing Connaughton v. Harte Hanks Communications, Inc., 842 F.2d 825, 840
(6th Cir.1988).
{¶49} This court has also concluded that when considering whether a statement is
defamatory, the trial court is directed to review the statement under the totality of the
circumstances. Mendise at 726, citing Scott; see also Vogel v. Sekulich, 9th Dist. Summit
No. 16105, 1993 Ohio App. LEXIS 4603 (Sept. 15, 1993) (court must review the totality
of the circumstances and evaluate the “composition and placement of the statement within
the entire context of the article”). Even when considering a headline of an article, a
headline must be read in context with the article following it. See Crall v. Gannett
Satellite Information Network, Inc., S.D.Ohio No. C-2-92-233, 1992 U.S. Dist. LEXIS
20386, *8 (Nov. 6, 1992) (When considering whether a statement is defamatory, the court
must not look solely to the allegedly defamatory statements, but also consider the
statements in the context of the entire article; therefore, the headline at issue must be
construed along with the ensuing article).
{¶50} In Mendise, The Plain Dealer newspaper published an article with the
headline, “Criminals Contribute to Laborers’ Political Funds.” The article listed several
contributors to a political campaign and described their criminal backgrounds. The
plaintiff was mentioned as a contributor and the article described his involvement with a
police raid, murder, and weapons charges. The article also stated he had been acquitted
of all charges.
{¶51} On appeal, the plaintiff argued that the newspaper was liable for defamation
because the article’s headline falsely called him a criminal. This court disagreed because
the body of the article was inconsistent with the meaning the plaintiff ascribed to the
headline:
The article read in its entirety expressly states that Mendise was acquitted of
criminal charges. * * * Even if there were some way to argue that there was
a possible defamatory interpretation of the article, the trial court still
properly gave the article the nondefamatory interpretation under the innocent
construction rule.
Id. at 726.
{¶52} We are cognizant that this case differs from Mendise because we are
considering a television broadcast, not a newspaper article. In West v. Media Gen.
Operations, Inc., 120 Fed.Appx. 601 (6th Cir.2005), the federal district court also
recognized that a reviewing court should analyze the defamatory nature of a publication by
considering more than just the allegedly defamatory statement. A court should consider
not only the plain text of the publication, but also the composition of the
story; its syntex [sic] and context; its timing; the prominence the [publication
was] accorded * * * ; the neutral, positive or negative thrust of the
[publication]; material factual omissions or distortions; the image of the
subject that the publication seeks to project and all other facts that may
reflect upon the [defendant’s] intent and purpose to publicly disseminate the
information of the [publication] in controversy * * * [A court should be]
always mindful of the caveat that the words of the publication should not be
considered in isolation, but rather within the context of the entire
[publication] and the thoughts that the [publication] through its structural
implications and connotations is calculated to convey to the [viewer] to
whom it is addressed.
Id. at 617, citing Connaughton, 842 F.2d at 840.
{¶53} In West, the court found that
[i]n order to answer the question of whether the meaning reasonably
conveyed by a statement made in a television broadcast is reasonably
understood in a defamatory sense, the video context in which the statement
is made must also be examined.
Id. at 616. The West court found the following considerations particularly instructive:
[T]elevision programs are divided into a number of video and audio
segments. In some segments, the audio and video are of the same event
such as when a person makes a remark or statement on camera. In other
segments, the audio may be a “voice-over” to a different video or
photograph. “It is the juxtaposition of these varying segments into an audio
and video mosaic that conveys the meaning or meanings intended.” * * * In
reviewing a television broadcast for possible defamatory statements, a court
and jury cannot confine their analysis to the words alone. The court and
jury are necessarily required to also consider the impact of the video portion
of the program since the television medium offers the publisher the
opportunity, through visual presentation, to emphasize and convey ideas in
ways that cannot be ascertained from a mere reading of the words in a
written transcript.
***
Although it is important, as in any defamation case, to focus on the words
and language published by the defendant, this should not be the only focal
point to the exclusion of other relevant facts and details. The words must
be viewed in their proper context in juxtaposition to all of the audio and
visual components of the television broadcasts as a whole. The defendant’s
defamatory words, standing alone, cannot readily be identified in isolation
without also considering the accompanying visual images, the tone of voice
of the announcer or reporter, along with the combined audio and video
editing effects. If words are taken completely out of the context of the audio
and visual components of the television broadcasts as a whole, then it would
not constitute a satisfactorily accurate, effective method for identifying
televised statements and visual images which are alleged to have a combined
defamatory meaning.
Id. at 615, quoting West v. Media Gen. Operations, Inc., 250 F. Supp. 2d 923, 932-934,
2002 U.S. Dist. LEXIS 26334 (E.D. Tenn., 2002).
{¶54} Taking our guidance from West, this court has viewed the broadcast and
considered the allegedly defamatory banner along with the accompanying visual images
and audio.
{¶55} Again, the broadcast piece was introduced by two news anchors sitting at the
anchor desk. One anchor introduced the report as an “investigation into a high school art
teacher.” The other anchor said that “He is suspected of having child pornography on his
personal computer. Only Gallek is investigating this case, and what his students may
have seen.” (Emphasis added.) Thus, just in the lead-in to the story, there are qualifiers
stating that there was an investigation into an art teacher suspected of having child
pornography, and students may have seen child pornography on the teacher’s computer.
{¶56} The broadcast then cuts to reporter Gallek, who appeared sitting on a
newsroom desk, holding a laptop computer. As Gallek spoke, banners appeared on the
screen, first with Gallek’s name, and then with “19 Action News,” “Teacher Under Fire,”
and “Child Porn Found on Computer.” The banners appeared for approximately 43
seconds of the 72-second broadcast.
{¶57} During his broadcast, Gallek continued to use qualifiers to explain the
investigation: “A couple of students borrowed a teacher’s laptop. What they say they
saw * * *”; “One student says she borrowed the teacher’s laptop to look at pictures of the
team or the class, came across a file named teen, teens having sex”; “Records show
computer crime investigators took two computers”; “No charges yet, so we’re not naming
the teacher”; and, “I spoke with his attorney, everyone’s still waiting for findings.”
(Emphasis added.) It is clear from the broadcast that students alleged they saw
pornography on their teacher’s computer, an investigation that was still ongoing,
investigators took two computers, no arrests had been made, and the teacher was not
currently teaching at the school.
{¶58} In considering the banners’ placement and wording on the screen, it is noted
that the words “Child Porn Found on Computer” appeared as part of multi-level banner
and in addition to a scrolling banner or ticker. The print size of “Child Porn Found on
Computer” is significantly smaller than what appears above it, “Teacher Under Fire.”
Other visuals shown during the 72-second broadcast included an adult typing on a
keyboard, someone opening a laptop computer, documents appearing to be related to the
investigation, and visuals of the school, a classroom, and flashing police lights.
{¶59} Gallek testified that the focus on television news is what people hear: “in
TV news you don’t mention every single fact as you would in a newspaper article.
You’re writing for the ear.” The alleged defamatory banner was just one of many visual
elements to the broadcast; we do not find that it dominated the story to the point where it
deserves significantly more weight when balanced against the rest of the broadcast.
{¶60} Sabino complains of two other elements of the broadcast: when Gallek stated
that the teacher was “suspended” from school as opposed to being placed on leave and
when Gallek stated that he received information from “recently filed court records”
without indicating that the records were the search warrant (as opposed to an indictment).
These errors, Sabino argues, coupled with the defamatory banner, add to the possibility
that a reasonable viewer would find that Sabino had child pornography on his computer
and, therefore, confirm the defamatory nature of the broadcast. We disagree.
{¶61} Gallek testified that many people use the terms “suspended” and “placed on
leave” interchangeably and that “they’re kind of synonymous in laymen’s terms.” He
further testified that he “absolutely” did not believe that by stating in his broadcast, “No
charges yet * * * He did get suspended” would lead one to conclude that Sabino was
guilty.
{¶62} A “journalist need not describe legal proceedings in technically precise
language.” Koniak v. Heritage Newspapers, Inc., 198 Mich. App. 577, 583, 499 N.W.2d
346 (1993). That Gallek did not specify in his broadcast that the “recently filed” court
records consisted of the search warrant and that the teacher had been suspended as
opposed to placed on leave does not indicate to this court that Gallek was intentionally
misleading the audience, nor does it lend to the “defamatory” nature of the broadcast.
{¶63} The trial court’s interpretation of the statement at issue is supported by the
innocent construction rule. The newscast could not have been reasonably understood to
claim that Sabino had child pornography on his computer. The newscast could be
reasonably understood to report that a Cleveland Heights art teacher was being
investigated, yes, but Sabino does not dispute that he was being investigated at that time.
Even if one could argue that was a possible defamatory interpretation of the newscast, the
trial court could still properly give the broadcast the nondefamatory interpretation under
the innocent construction rule. See Mendise, 69 Ohio App. 3d 721 at 726, 591 N.E.2d
789.
{¶64} While we do not condone the sensationalistic tone of the broadcast, we hold
that the challenged statement was not, as a matter of law, defamatory. Because the
statement was not defamatory, we need not consider whether Sabino has met the other
elements of his defamation claim.
{¶65} Therefore, the trial court did not err in granting a directed verdict in favor of
WOIO and Gallek.
{¶66} The second, third, and fourth assignments of error are overruled.
{¶67} Judgment affirmed.
It is ordered that appellees recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
LARRY A. JONES, SR., ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR