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Anderson v. WBNS-TV, Inc.

Supreme Court of Ohio

December 18, 2019

Anderson et al., Appellees,
v.
WBNS-TV, Inc., Appellant.

          Submitted April 24, 2019

          Appeal from the Court of Appeals for Franklin County, No. 17AP-660, 2018-Ohio-761.

          Calig Law Firm, L.L.C. and Sonia T. Walker; Jones Law Group, L.L.C., Eric A. Jones, and Nicholas Kolitsos, for appellees.

          Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Kris Banvard, for appellant.

          Dave Yost, Attorney General, Benjamin M. Flowers, State Solicitor, and Michael J. Hendershot, Chief Deputy Solicitor, urging reversal for amicus curiae the state of Ohio.

          Vorys, Sater, Seymour & Pease, L.L.P., John J. Kulewicz, Thomas E. Szykowny, Daniel E. Shuey, and Arryn K. Miner, urging reversal for amici curiae The Ohio Association of Broadcasters, Ohio News Media Association, American Society of News Editors, Associated Press Media Editors, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, and Society for Professional Journalists.

          DONNELLY, J.

         FACTS AND PROCEDURAL HISTORY

         {¶ 1} The Columbus Police Department sent an information sheet to appellant, WBNS-TV, Inc. ("WBNS"), among other media outlets, on January 20, 2016. The information sheet described the robbery of a hoverboard from an eight-year-old child that took place in the parking lot of a waterpark on November 26, 2015, and stated that "suspects * * * put a gun to the eight-year-old's head and demanded the hoverboard." The information sheet also asked for help identifying the people in an accompanying photograph "who may have been involved" in the robbery. That photograph depicted siblings Aaron, Aaronana, and Arron Anderson, and it had been taken by a surveillance camera as they entered the waterpark.

         {¶ 2} WBNS used the information sheet to prepare a segment that aired during the 5:00 a.m. broadcast on January 21, 2016. During the segment, WBNS employees showed the picture of Aaron, Aaronana, and Arron, while stating: a "girl was riding her hoverboard when robbers went up to her, put a gun to her head and took it. Columbus Police say suspects-seen here-took off in a PT cruiser." During the 6:00 a.m. broadcast that same day, while showing the same picture, WBNS employees stated, "Columbus Police hope you recognize these two men who robbed an 8-year-old girl at gunpoint!" On the WBNS website, www.10tv.com, the picture of Aaron, Aaronana, and Arron was published with the accompanying text, "The suspects put a gun to the 8-year-old girl's head * * *."

         {¶ 3} When Nanita Williams (the mother of Aaron, Aaronana, and Arron) saw the early morning broadcast on January 21, 2016, she began screaming and crying, which woke her family. Williams and her children went to the police station, and after approximately four hours of questioning, the police determined that Aaron, Aaronana, and Arron had not been involved in the crime. Shortly thereafter, the Columbus Police Department released a statement that the people in the photograph had spoken to detectives, and after further investigation, the police had determined that they had not been involved in the robbery. Upon receiving this statement, WBNS employees removed the picture from its website. WBNS employees did not subsequently refer to the picture of Aaron, Aaronana, and Arron.

         {¶ 4} Appellees, Aaron, Aaronana, Willie Anderson, and Williams, (collectively, "the Andersons"), [1] filed a complaint against WBNS asserting, among other claims, a claim for defamation. WBNS moved for and was granted summary judgment on all counts. The trial court held that the Andersons could not prove an essential element, fault, of their defamation claim, see Jackson v. Columbus, 117 Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ 9 (setting forth the elements of a defamation claim).

         {¶ 5} The Andersons appealed, arguing that the trial court had erred in granting WBNS summary judgment on the defamation claim. The court of appeals reversed the trial court's judgment on that claim, stating, "There is no question that WBNS defamed some of the Andersons." 2018-Ohio-761, ¶ 8. The court framed the issue before it as whether "broadcasting an accusation that the Andersons were robbers without investigation by WBNS and based on a set of police documents which claimed only that some of the Andersons were suspects is sufficient proof of a violation of a duty of care to allow the lawsuit to survive a motion for summary judgment." Id. at ¶ 11. The court concluded that the lawsuit should survive summary judgment because a genuine issue of material fact existed, and it remanded the cause to the trial court. Id. at ¶ 11, 16. See Civ.R. 56(C) (setting forth the summary-judgment standard).

         {¶ 6} We accepted WBNS's discretionary appeal. 153 Ohio St.3d 1461, 2018-Ohio-3258, 104 N.E.3d 791.

         ANALYSIS

         {¶ 7} Attempting to attain the proper balance between protecting the freedom of speech guaranteed by the United States and Ohio Constitutions and protecting citizens from injury to their reputations is fraught with difficulty. This court and the Supreme Court of the United States have grappled with the issue for years. See, e.g., Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 512 N.E.2d 979 (1987) (plurality opinion); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

         {¶ 8} In Ohio, in a case involving a private person who was allegedly defamed in a statement about a matter of public concern, the plaintiff "has the burden of proving both that the statement was false and [that] the defendant was at least negligent in publishing it." Dale v. Ohio Civil Serv. Emps. Assn., 57 Ohio St.3d 112, 114, 567 N.E.2d 253 (1991), citing Lansdowne. Moreover, the negligence must be proved by clear and convincing evidence. Lansdowne at 180 (Lansdowne was not a majority opinion; a year after it was decided, a majority of the court acknowledged that the clear-and-convincing-evidence standard set forth in Lansdowne was the appropriate standard of proof, Oney v. Allen, 39 Ohio St.3d 103, 106, 529 N.E.2d 471 (1988), fn. 2).

         {¶ 9} A defamation claim against a news organization requires proof that (1) the organization made a false statement, (2) the statement was defamatory, (3) the organization published the statement, (4) the plaintiff was harmed as a proximate result of the publication, and (5) the organization acted with the requisite degree of fault in publishing the statement. Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 77. For purposes of its motion for summary judgment, WBNS assumed that the Andersons could satisfy all the elements of a defamation claim with the exception of the fault element. That is, WBNS argued in its motion for summary judgment only that the Andersons could not prove that WBNS acted with the requisite degree of fault in publishing the statements.

         {¶ 10} It follows that in its opinion granting summary judgment to WBNS, the trial court focused its analysis on the fault element. In considering WBNS's argument that the Andersons could not prove that WBNS impermissibly altered the information that the police had supplied, the trial court summarized the facts and said that "[w]ithin this complete context, the Court cannot conclude that a reasonable reader or viewer would interpret the stories as defamatory." But shortly before that statement, the trial court said that its "analysis [was] limited to the fault prong in this case." The trial court's statement regarding WBNS's allegedly defamatory statements was, at best, dictum, which is not binding on this or any other court, see State ex rel. Gordon v. Barthalow, 150 Ohio St. 499, 505-506, 83 N.E.2d 393 (1948).

         {¶ 11} On appeal, both parties focused their arguments on the trial court's fault-element determination. Before the court of appeals purported to apply the fault standard that this court announced in Lansdowne, 32 Ohio St.3d 176, 512 N.E.2d 979, it said:

There is no question that WBNS defamed some of the Andersons. It accused members of the family of being armed robbers. * * * [M]erely publishing a false, defamatory statement is sufficient to establish a traditional defamation claim. Common law malice is established by the mere publication of false, defamatory material. The fact that WBNS failed to distribute a retraction supports the common law presumption of malice applicable in such situations.

2018-Ohio-761, ¶ 8. Because WBNS focused its summary-judgment argument on the fault element, the trial court confined its decision to that element, and the parties confined their arguments on appeal to the fault element. The defamatory-statement element of the defamation claim (i.e., whether the publications were defamatory) was not before the court of appeals, and that court's expression regarding WBNS's alleged defamation of Aaron, Aaronana, and Arron Anderson was not essential to its fault-element determination. The court's statement regarding WBNS's allegedly defamatory publications was dictum and, therefore, is not the law of the case.

         {¶ 12} This appeal stems from WBNS's motion for summary judgment based on only the fault element of the Andersons' defamation claim and the court of appeals' review of that decision. The question before the court of appeals was whether the trial court erred in holding that the Andersons could not prove the fault element of their defamation claim. The issue whether the publications were defamatory was not before the court.

         {¶ 13} Although the court of appeals correctly stated the appropriate standard as set forth in Lansdowne, it ultimately applied a different standard. Actually, the court erred in two ways. It stated that "merely publishing a false, defamatory statement is sufficient to establish a traditional defamation claim," 2018-Ohio-761 at ¶ 8. This statement is plainly contrary to Lansdowne, which requires a showing of negligence. The court of appeals also erroneously stated that "a media outlet has a stronger duty to research the facts in such cases than it did when the Lansdowne case was decided." 2018-Ohio-761 at ¶ 11. The court did not cite any authority for this new standard or explain what constitutes compliance with the "stronger duty."

         {¶ 14} We agree with WBNS that the standard set forth in Lansdowne, 32 Ohio St.3d 176, 512 N.E.2d 979, is the appropriate standard to apply in this case. We also agree that Lansdowne requires the Andersons to present clear and convincing evidence that WBNS acted negligently in publishing defamatory statements about Aaron, Aaronana, and Arron. And we agree that although the court of appeals correctly set forth the Lansdowne standard, it did not apply it. Thus, we vacate the court of appeals' judgment and remand the cause to the court of appeals for it to again consider whether the trial court properly granted summary judgment to WBNS on the Andersons' defamation claim. On remand, the court of appeals is instructed to apply the standard set forth in Lansdowne. We express no opinion on the merits of this case; we remand the cause solely to allow the court of appeals to apply the appropriate standard.

         {¶ 15} Because we adopt WBNS's first proposition of law and remand the cause to the court of appeals, we decline to address its other propositions of law.

         Judgment vacated and cause remanded.

          O'CONNOR, C.J., and FRENCH, FISCHER, and STEWART, JJ., concur.

          DeWine, J., concurring in judgment only.

         {¶ 16} I did not vote to accept this case, 153 Ohio St.3d 1461, 2018-Ohio-3258, 104 N.E.3d 791, because I did not believe that it presented a significant constitutional question or an issue of public or great general interest, see Ohio Constitution, Article IV, Section 2(B)(2)(a)(ii) and (e); S.Ct.Prac.R. 5.02(A). In my view, the case simply involved the application of settled standards and thus called for (at most) error correction. Now that I have had the opportunity to review the record with the benefit of full briefing, that conclusion seems all the more clear.

         {¶ 17} But as the case is now before us, I concur in the majority's decision to vacate the judgment of the Tenth District Court of Appeals on the fault element of the Andersons' defamation claim against WBNS-TV ("WBNS"), and to remand the case to ensure that the court applies the standard announced in Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 512 N.E.2d 979 (1987). The court of appeals may well have intended to apply that standard the first time around, but unfortunately, its gratuitous commentary obscures its analysis. Vacating the judgment and remanding the case will ensure that the appropriate standard is applied in this case and prevent the now-vacated decision from causing confusion for future litigants.

         {¶ 18} I would go further than the majority, however, and also resolve WBNS's fifth proposition of law by expressly vacating the Tenth District's apparent holding that WBNS's publications were defamatory, 2018-Ohio-761, ¶ 8. Doing so would address the dissenting justice's concern that the court of appeals' statement on that point might be treated as the law of the case. And it is appropriate to vacate that portion of the Tenth District's decision because the issue whether the publications were defamatory was not before the court on appeal.

         {¶ 19} WBNS moved for summary judgment based solely on the fault element of the Andersons' defamation claim, [2] and consequently, the Andersons were never put to their burden of proof on the question whether the publications were defamatory. Thus, the only question before the trial court in the summary-judgment phase was whether WBNS acted negligently. While the trial court's analysis is somewhat muddled, I am reluctant to read it as having decided the defamatory element outright, particularly when the court explicitly expressed that its decision was confined to the fault element. Franklin C.P. No. 16CV-9809 (Aug. 21, 2017) (noting that "WBNS focuse[d] its argument solely on the fault prong" and concluding that the "plaintiffs failed to sustain their burden of establishing a genuine issue of material fact as to WBNS' negligence").

         {¶ 20} WBNS makes this very point in its brief to this court. It complains that even though its motion for summary judgment had "assumed arguendo that other elements of a defamation claim were met and focused solely on the element of fault," the Tenth District "proceeded to adjudicate other elements" of the defamation claim. On this procedural posture, I agree that it was improper for the Tenth District to comment that "[t]here is no question that WBNS defamed some of the Andersons," 2018-Ohio-761 at ¶ 8. Likewise, I do not think it is appropriate for us to decide that question in the first instance.

         {¶ 21} I would therefore also vacate the finding of the Tenth District Court of Appeals as it relates to the defamatory element. I otherwise concur with the majority's decision vacating the Tenth District's judgment on the question of fault and remanding the case for the court to apply the standard enunciated in Lansdowne, 32 Ohio St.3d 176, 512 N.E.2d 979, in its review of that issue.

          Kennedy, J., dissenting.

         {¶ 22} In this case, we have a holding by the trial court that as a matter of law the publications are not defamatory, an appellate-court decision overruling that holding, and a proposition of law calling on this court to address that determination. But the majority avoids issuing a dispositive decision by focusing on a nonissue-the appellate court's supposed tinkering with the standard of fault in defamation cases. However, the Tenth District Court of Appeals did nothing to alter defamation law in this state-the "stronger duty" language in the appellate court's decision, 2018-Ohio-761, ¶ 11, is an expression of opinion separate and apart from the legal analysis in the appellate decision and is therefore obiter dictum. The majority sends this case back to the appellate court for it to apply the fault standard for private-figure defamation established in Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 512 N.E.2d 979 (1987) (plurality opinion).[3]Lansdowne provides the standard for proving fault in a case involving a private-figure plaintiff and a news-media defendant: "the plaintiff 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." Id. at 180. But the appellate court has already applied that standard; it held that there is a genuine issue of fact as to whether appellant, WBNS-TV, Inc. ("WBNS"), violated its duty of care in publishing what the appellate court held was defamatory material. 2018-Ohio-761 at ¶ 8, 11.

         {¶ 23} By remanding this case to the appellate court for a second application of Lansdowne, the majority ignores the threshold question whether the material is defamatory. The trial court granted summary judgment to WBNS on the defamation claim because it held that the Andersons had failed to sustain their burden of establishing a genuine issue of material fact as to WBNS's negligence-the trial court determined that the publications at issue lacked a defamatory character. The court of appeals, on the other hand, declared the publications defamatory before moving on to apply the Lansdowne test. This leaves as the law of the case the appellate court's determination that the publications at issue are defamatory. See Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984) ("the decision of a reviewing court in a case remains the law of that case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels").

         {¶ 24} But the majority-in its concentrated effort not to resolve this case-simply wishes away the law-of-the-case problem by declaring without analysis that any holdings regarding the defamatory character of the publications by the lower courts are dicta. The majority thereby treats what is substantive as dictum and what is dictum as substantive. It illogically holds that anything that touches on the defamatory nature of the publications in this case is dictum while simultaneously elevating that which is truly dictum-the appellate court's after-the-holding pontification about the role of media in a digital society-to the level of something substantive. It does all of this only to arrive at its hollow holding remanding the case to the appellate court for its reapplication of the Lansdowne standard. In so doing, the majority is able to wash its hands of a messy case, achieving nothing other than causing further delay in resolving the matter and additional expense for the litigants.

         {¶ 25} What this court should do first is determine whether the appellate court's determination that the publications are defamatory is correct. And only if this court determines that that determination is correct should this court go on to determine whether the appellate court's application of the fault standard established in Lansdowne to the facts of this case is correct. If there is no defamatory content in the publications, there is no reason to employ the Lansdowne test.

         {¶ 26} Applying the standard established in Am. Chem. Soc. v. Leadscope, Inc., 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, ¶ 79, for determining whether a statement is defamatory-in other words, reviewing the totality of the circumstances and evaluating the allegedly defamatory statements in the context of the entire publication in which they appeared to determine whether a reasonable person would interpret them to be defamatory-I would hold that the statements at issue are not defamatory. That is, construing the publications from the perspective of a person viewing a "crime-stoppers" report stating that the Columbus Police Department ("CPD") was seeking information from the community to solve an armed-robbery case, a reasonable viewer would not interpret the publications as defamatory. Therefore, I would reverse the appellate court's judgment and reinstate the trial court's order granting summary judgment to WBNS. Because the majority does otherwise, I dissent.

         We Should Decide this Case on the Merits

         {¶ 27} Because there is a potentially dispositive issue that lies before us- whether the publications are defamatory-we should decide that issue. The trial court's and appellate court's determinations on that issue were not dicta; instead, they were essential to their holdings in each instance. Further, despite the majority's contention, there is no reason to remand this case to the appellate court-it has already applied the standard the majority believes it should apply. As set forth below, the statements the majority identifies as problematic in the court of appeals' decision regarding the fault standard are obiter dicta, as they address an issue not in play in the appeal. Moreover, the appellate court clarified in its rejection of an application for an en banc hearing that it was establishing no new standard in its decision. Finally, a remand to the appellate court will result in a waste of judicial resources and unnecessary expenses to the parties.

         The trial court's determination that the publications were not defamatory is not dictum

         {¶ 28} The trial court's holding that the publications in this case were not defamatory is the central determination around which this case revolves. That holding was not dictum-"[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case * * *," Black's Law Dictionary 1240 (10th Ed.2014). The trial court's holding was dispositive, and the appellate court's judgment overruling the trial court on that issue should be the focus of this court's review.

         {¶ 29} The majority's declaration that the holdings of the trial court and appellate court are dicta ignores what happened in this case. Members of the Anderson family[4] allege that WBNS defamed them in broadcast and Internet reports regarding the robbery of a hoverboard from a young girl; WBNS based its reports on information provided by the CPD in an e-mail containing a Media Information Sheet and accompanying photographs, and WBNS's reports included a CPD-provided picture of three Anderson family members near the scene of the crime. A central issue before the trial court was whether WBNS negligently altered the information provided by the CPD and thereby defamed the three Andersons. Examining the publications and recognizing that under Am. Chem. Soc, 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, the words at issue in the publications could not be read in isolation, the trial court viewed the alterations in context to determine whether the material published by WBNS was defamatory. Thereafter, the most essential holding of the trial court was that the alteration of the word "suspects" in the CPD-provided media information to "robbers" in WBNS's reports did not make the publications defamatory and therefore the Andersons failed to meet their burden of demonstrating that a genuine issue of material fact existed on the issue of fault.

         {¶ 30} The trial court's determination that the publications at issue here were not defamatory was not an off-the-cuff musing or some gratuitous expression made without any legal analysis or consideration of the consequences. The determination was not superfluous to the determination of the motion for summary judgment; instead, it was the basis for the trial court's granting the motion for summary judgment after carefully and systematically applying the appropriate caselaw.

         {¶ 31} In its motion for summary judgment, WBNS argued that to successfully prosecute a defamation claim against a broadcast-media defendant, a plaintiff must prove four elements: (1) a false statement was made about the plaintiff, (2) the statement was defamatory, (3) the statement was broadcast by television or radio or written and published, and (4) in broadcasting or publishing the statement, "the defendant acted with the necessary degree of fault." (Emphasis deleted.) See also Am. Chem at ¶ 77 (listing these same four elements and a fifth element-injury to plaintiff-as those necessary to prove a defamation claim).

         {¶ 32} For the purposes of its motion for summary judgment, WBNS concentrated on the fourth element of a claim for defamation, fault. WBNS pointed to Lansdowne as providing the standard for proving fault in a case involving a private-figure plaintiff and a news-media defendant: "the plaintiff 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," id, 32 Ohio St.3d at 180, 512 N.E.2d 979. Focusing on only the fault element of the defamation test, WBNS argued that the Andersons could not establish by clear and convincing evidence that WBNS had acted with the necessary degree of fault.

         {¶ 33} The trial court granted summary judgment in favor of WBNS. In addressing the defamation claim, the court, too, focused on the fault element of the defamation test, analyzing two theories of negligence advanced by the Andersons-(1) WBNS failed to investigate the information from the CPD and (2) WBNS altered the information from the CPD. In support of those theories, the Andersons presented little evidence. "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial." Wing v. Anchor Media, Ltd. of Texas, 59 Ohio St.3d 108, 570 N.E.2d 1095 (1991), paragraph three of the syllabus. The Andersons submitted (1) WBNS's Facebook post about the robbery with accompanying commentary from the public, (2) a few interrogatory answers from WBNS establishing that it had no set procedure for verifying information provided by the CPD and that WBNS was unable to determine which staff member had written the Facebook story, and (3) affidavits from Aaron and Willie Anderson describing what had happened from their perspective and the injuries they and their family members had suffered.

         {¶ 34} The Andersons' first theory of negligence was that WBNS was negligent in failing to investigate the information provided by the CPD. Quoting Horvath v. Telegraph, 11th Dist. Lake No. CA-8-175, 1982 Ohio App. LEXIS 15776, *27 (Mar. 8, 1982), the trial court rejected that theory, concluding that WBNS had reasonably relied on the CPD reports:

[I]mposing a duty of investigation on WBNS when it reasonably relied on information from law enforcement officials "would * * * depriv[e] the general public of news to which they are entitled and to place intolerable burdens and costs upon a publisher." * * * Because plaintiffs have not demonstrated by clear and convincing evidence that WBNS acted negligently, summary judgment in WBNS' favor is proper on [the Andersons'] defamation count.

(First ellipsis and second set of brackets sic.)

         {¶ 35} The Andersons' second theory of negligence was that WBNS was negligent in altering the characterization of Aaron, Aaronana, and Arron from "suspects" in the Media Information Sheet to "robbers" in WBNS's stories. In analyzing this theory, the trial court focused on two issues: whether a case cited by the Andersons supported their claim and whether the alteration caused the publications to be defamatory. The Andersons offered no evidence on the issue of negligent alteration-no expert opinion that WBNS had acted unreasonably by industry standards; the only evidence the court had before it was the publications themselves and the CPD-provided materials.

         {¶ 36} In support of their argument, the Andersons cited Young v. Morning Journal, 76 Ohio St.3d 627, 669 N.E.2d 1136 (1996). But the trial court held that Young was inapposite because it is premised on the fair-reporting privilege and that privilege was not at issue in the case.

         {¶ 37} The trial court then-pursuant to Lansdowne's instruction to determine whether the publisher of the material reasonably attempted to discover the defamatory character of the publication-specifically addressed whether the publications were defamatory. Noting that courts do not look at allegedly defamatory statements in a vacuum, the trial court held as a matter of law that the material published by WBNS was not defamatory. In reaching that determination, the trial court correctly identified the standard set forth in Am. Chem. Soc, 133 Ohio St.3d 366, 2012-Ohio-4193, 978 N.E.2d 832, at ¶ 79, and quoted the following language from that case:

"In determining whether a statement is defamatory as a matter of law, a court must review * * * the totality of the circumstances" and by "read[ing] the statement[] * * * in the context of the entire [publication] to determine whether a [reasonable] reader would interpret [it] as defamatory." Mann v. Cincinnati Enquirer, 1st Dist. No. C-090747, 2010-Ohio-3963, ¶ 12.

(Ellipses and brackets sic.) Id.

         {¶ 38} The trial court then applied that standard and made a specific legal determination. In accord with Am. Chem Soc, the court turned to the publications themselves, the only evidence it had before it regarding the claim for negligence in altering the CPD information:

It is true that the broadcast contained the word "robbers" and the internet story had "robbers" in the headline. However, the morning show used both the Parking Lot and Hall Photographs. It also characterized plaintiffs as suspects while showing the Hall Photograph. And, the posting also used "suspects" throughout the body of the story. Within this complete context, the Court cannot conclude that a reasonable reader or viewer would interpret the stories as defamatory.

         {¶ 39} The trial court therefore concluded that WBNS was entitled to judgment as a matter of law on the theory of negligence premised on WBNS's alteration of "suspects" in the CPD-provided information to "robbers" in WBNS's reports because the alterations did not make the publications defamatory when the alterations were viewed in the context of the whole publication in accord with Am. Chem. Soc. The trial court held:

In sum, plaintiffs failed to sustain their burden of establishing a genuine issue of material fact as to WBNS' negligence. The Court thus concludes that: (1) there is no genuine issue as to any material fact; (2) WBNS is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the plaintiffs.

         {¶ 40} The Lansdowne standard requires the plaintiff to "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" (Emphasis added.) Id., 32 Ohio St.3d at 180, 512 N.E.2d 979. The trial court based its decision on its conclusion that the Andersons had failed to sustain their burden to demonstrate that the published material was defamatory. And if a plaintiff cannot prove defamatory content, his or her claim for defamation fails. The trial court's holding on the defamatory nature of the publications was therefore not dictum-"[a] judicial comment * * * that is unnecessary to the decision in the case * * *," Black's at 1240. To the contrary, it was the very basis of the court's decision on the defamation claim and the opposite of dictum.

         The appellate court's determination that the publications were defamatory is not dictum

         {¶ 41} The appellate court realized the import of the trial court's determination that the publications were not defamatory, and it reversed that ruling and held that the publications were defamatory before moving on to the next inquiry-whether WBNS had acted negligently. It simply held, "There is no question that WBNS defamed some of the Andersons," and then moved on. 2018-Ohio-761 at ¶ 8. The appellate court's determination that the publications are defamatory was crucial to its holding and thus was not dictum. Without that determination, the appellate court's application of Lansdowne would have been a meaningless exercise.

         {¶ 42} The Andersons appealed the trial court's judgment, asserting one assignment of error: the trial court improperly granted WBNS summary judgment on the defamation claim because the Andersons had provided clear and convincing evidence of WBNS's negligence. The Andersons supported that assignment of error with two arguments acknowledging that the CPD was a reliable source and asserting that it was WBNS's "significant alteration" or "significant changes" of the information received from the CPD that constituted clear and convincing evidence of negligence.

         {¶ 43} At first blush-just reading the single assignment of error-one might conclude that the Andersons abandoned an appeal of the trial court's determination that WBNS was entitled to summary judgment because the alteration of "suspects" to "robbers" when read in the context of the whole publication could not be interpreted as defamatory by a reasonable ...


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