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Court expands First Amendment protections

00-1273. Wampler v. Higgins.
Pickaway App. No. 2000 CA 5. Judgment affirmed.
Moyer, C.J., F.E. Sweeney, Cook and Lundberg Stratton, JJ., concur.
Resnick, J., concurs in syllabus and judgment.
Douglas, J., dissents.
Pfeifer, J., dissents.
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2001/2001-ohio-1293.pdf

The Supreme Court voted 5-2 that statements made in letters to the editor are protected speech under the Ohio Constitution if they pass a four-prong test the court set out in a 1986 decision. The holding extends to what the court called "nonmedia defendants" the protection established in yet another ruling six years ago for expressions of opinion by the media.

While the U.S. Supreme Court does not recognize a similar protection under the federal constitution, the Ohio Supreme Court's 1995 opinion in Vail v. Plain Dealer Publishing Company held that a newspaper's published opinions enjoy protection under the state constitution.

Today's Supreme Court opinion by Justice Deborah L. Cook clarifies that private citizens unaffiliated with the media "may invoke the Ohio Constitution's independent protection for opinions." Justices Andrew Douglas and Paul Pfeifer dissented.

The ruling puts to rest a dispute between a Circleville businessman and a resident who, in a letter to The Circleville Herald, called the businessman a "ruthless speculator" who had "forced" a local grocer "out of business by charging her exorbitant rent."

Isaac Wampler, who owned the building that housed Linda's Cardinal Market in downtown Circleville, claimed he suffered stress, humiliation and damage to his reputation and business as a result of the letter. He sued the letter's writer, Wallace Higgins, for defamation.

Both the Pickaway County Common Pleas Court and the 4^th District Court of Appeals ruled in favor of Higgins. On appeal to the Supreme Court, Wampler asserted that the trial court incorrectly applied Vail to the statements of a private citizen. He also contended that even if Vail applied, Higgins' letter did not clear the four hurdles established by the court's 1986 opinion in Scott v. News-Herald for determining if a published statement expresses an opinion protected by the Ohio Constitution.

Cook explained that Scott requires a consideration of "the totality of the circumstances" surrounding the allegedly defamatory statements, including:

• The specific language at issue
• Whether the statements are verifiable
• The general context of the statements, and
• The broader context in with the statements appeared.

Cook said all four factors weighed in Higgins' favor.

First, the language Higgins used in his letter was imprecise enough that it was unlikely "to give rise to clear factual implications."

"Though clearly pejorative in tone, with Higgins describing Wampler as a 'ruthless spectator' possessed of 'self-centered greed' charging 'exorbitant rent,' these phrases are all inherently imprecise and subject to myriad subjective interpretations," she wrote.

Moving to the second prong, Cook explained that statements that cannot be objectively proven or disproved cannot reasonably be viewed as conveying actual facts. Higgins' comments "are standardless statements not amenable to objective proof or disproof," she said.

Third, the general and immediate context of Higgins' statements points to their status as statements of opinion rather than of fact. "The gist of Higgins' letter as a whole is that in his opinion" Wampler forced the market's owner out of business by upping her rent.

"Considering Higgins' allegedly defamatory statements in the context of the entire letter, we find that the average reader of The Circleville Herald would be unlikely to infer that those statements were factual," Cook wrote.

Finally, the fourth factor -the broader social context - focuses on the influence that certain well-established genres of speech have on the average reader. Given their appearance on the newspaper's opinion pages, Higgins' comments were not likely to be considered anything but statements of his opinion, Cook said.

"We do not suggest here that publication of defamatory statements in a letter to the editor will insulate the author from liability in every case. We merely note that it is commonly known that authors of letters to the editor are normally not engaged in the business of factual reporting or news dissemination, and that their letters qualify...as a 'well established genre' of opinionated speech."

Contacts
Charles H. Cooper, Rex H. Elliot and Aaron D. Epstein, 614.221.1177, for Isaac Wampler.

Thomas R. McGrath, 614/464.4201, and James K. Hill, 740.477.2173, for Wallace Higgins.