The Ohio Supreme Court ruled an Ohio appeals court did not adequately assess a claim by three siblings that a Columbus television station defamed them.

The Ohio Supreme Court ruled an Ohio appeals court did not adequately assess a claim by three siblings that a Columbus television station defamed them.

An Ohio appeals court did not adequately assess a claim by three siblings that a Columbus television station defamed them by describing them as “robbers” of an 8-year-old’s hoverboard when it broadcast information provided by Columbus police, the Ohio Supreme Court ruled today.

A divided Supreme Court faulted the Tenth District Court of Appeals for using the wrong standard when gauging if WBNS-TV defamed Aaron, Aaronana, and Arron Anderson during “CrimeTracker 10” reports depicting them as suspects in the gunpoint robbery. The Court sent the case back to the Tenth District to apply the correct standard and to determine if the Andersons can “present clear and convincing evidence that WBNS acted negligently in publishing defamatory statements about Aaron, Aaronana, and Arron.”

Writing for the Court majority, Justice Michael P. Donnelly stated the Supreme Court expresses no opinion on the merits of the Andersons’ case, but remanded it to the Tenth District, which can decide if the case needs to go back to the trial court for further proceedings.

Chief Justice Maureen O’Connor and Justices Judith L. French, Patrick F. Fischer, and Melody J. Stewart joined Justice Donnelly’s opinion.

The majority’s ruling did not decide if the broadcasts and accompanying website story defamed the siblings. The justices were divided on whether the Court should have decided if the stories defamed the Andersons.

Justice R. Patrick DeWine concurred in judgment only, and wrote that the Court should have also vacated the Tenth District’s holding that WBNS defamed the Andersons because that issue had not been decided by the trial court and was not properly before the Tenth District on appeal.

Justice Sharon L. Kennedy dissented, writing that the Court should determine whether the stories were defamatory since that was the threshold issue in the case and the appellate court had overruled the trial court’s determination that the stories were not defamatory. She said there would be no need to send the case back to the Tenth District to decide whether the station was negligent in its production of the broadcasts and the internet story if the publications were not defamatory. She concluded the stories were not defamatory and that sending the case back to the appeals court would lead only to further delay and additional expense for the parties.

Police Seek Public’s Help to Solve Robbery
In January 2016, the Columbus Police Department (CPD) sent an information sheet to WBNS and other Columbus media outlets describing a hoverboard robbery that occurred in November 2015 at a local waterpark. The police reported the suspects put a gun to the head of a girl and demanded the hoverboard. Accompanying the description were two photographs. One was a grainy shot from the parking lot showing two men near the child. The other was a photograph from inside the entryway to the waterpark that depicted the Anderson siblings. The information sheet asked for help in identifying the people in the photographs “who may be involved” in the robbery.

WBNS prepared a 5 a.m. broadcast. During the segment, it showed the picture of the Andersons while stating a “girl was riding her hoverboard when robbers went up to her, [p]ut a gun to her head, and took it. Columbus Police say suspects — seen here — took off in a PT Cruiser.” An hour later, the station broadcast another segment, showing the same picture of the three while stating, “Columbus Police hope you recognize these two men who robbed an 8-year-old girl at gunpoint!” On the station’s website, the picture was published with text stating, “The suspects put a gun to the 8-year-old girl’s head….”

Nanita Williams, the mother of Aaron, Aaronana, and Arron, saw the early morning stories, awakened her family, and took her children to the police station. After four hours of questioning, the police determined the siblings had not been involved in the crime. The department then released a statement to the media stating that the people in the photograph were not involved in the robbery. WBNS removed the picture of the Andersons from their website.

Family Files Lawsuit
The Anderson family filed a lawsuit against WBNS, arguing they were defamed and making other claims. WBNS asked the Franklin County Common Pleas Court to grant summary judgment in its favor, arguing the Andersons could not prove an essential point of their lawsuit, which was that the station was negligent in its reporting. The trial court sided with WBNS.

The Andersons appealed to the Tenth District, which stated there “is no question that WBNS defamed some of the Andersons” because the stories accuse the Andersons of being robbers, not just suspects, based on the police documents that just indicated the Anderson were suspects. The Tenth District remanded the case to the trial court for further proceedings.

WBNS appealed the decision to the Supreme Court, which heard oral arguments in the case at a special off-site court session in Ashtabula County in April. (See Right to Sue TV Station for Faulty Hoverboard Theft Report Heard at Off-Site Court Session.)

Station’s Behavior Wrongly Assessed by Appeals Court
Citing the Ohio Supreme Court’s 1979 Lansdowne v. Beacon Journal Publishing Co. decision, Justice Donnelly explained that when private citizens, such as the Andersons, claim they were defamed, they have the burden of proving the statement about them was false and the defendant was at least negligent in publishing it. The Lansdowne decision also stated the private citizen must prove by “clear and convincing evidence” that the publisher of the false statement was negligent.

In requesting that the trial court dismiss the case, WBNS assumed the Andersons could prove the statements in the story were false and defamed them, but focused its argument on the negligence requirement. The station maintained the Andersons could not prove the station “impermissibly altered the information the police had supplied,” and that its employees were not acting negligently in reporting the facts and photos presented to them by the police, the opinion stated.

The trial court summarized that within the complete context of the stories, the trial court could not “conclude that a reasonable reader or viewer would interpret the stories as defamatory.” The Supreme Court opinion noted the trial judge made that statement after noting that the court was not judging whether the stories were defamatory or not, but only ruling on WBNS’ request that it was not negligent.

At the appeals level, both sides focused their legal arguments on whether the station was negligent in its reporting and not if the stories themselves actually defamed the siblings. The opinion stated the Tenth District indicated it was going to apply the standard for determining negligence that was announced in Lansdowne. The Court majority noted that the Tenth District went on to state the mere publishing of a false, defamatory statement is sufficient for the Andersons to establish they were defamed, and the fact that WBNS never distributed a retraction supports the presumption that the station acted negligently.

The Court majority found that statement to be in error. The opinion noted that Lansdowne requires more than the mere publishing of a defamatory statement, but also that the defamatory statement was published negligently. The opinion explained that the Andersons must prove by clear and convincing evidence that the station employees acted negligently.

The Supreme Court also ruled that the Tenth District’s conclusion that there “is no question that WBNS defamed some of the Andersons” is dictum, and its opinion is not binding on the Supreme Court or any other court considering the matter. The Court instructed the Tenth District to follow the standards stated in Lansdowne. It directed the appeals court to determine whether the trial court correctly ruled that the Andersons failed to prove WBNS was negligent before deciding to dismiss the case or send it back to the trial court for further proceedings.

Concurrence Found Statement Clouded Decision
In his concurring opinion, Justice DeWine agreed with the majority’s judgment vacating the Tenth District’s decision on the negligence element. He wrote that the Tenth District’s “gratuitous commentary” made it unclear whether it had applied the correct standard. Justice DeWine explained that he would go further than the majority and also vacate the Tenth District’s “apparent holding” that the publications were defamatory.

The concurrence noted that the basis of WBNS’ argument in the Supreme Court was that the Tenth District should not have decided the defamation element because the only element WBNS had contested in the trial court was the negligence element. Justice DeWine wrote that it was improper for the Tenth District to weigh in on whether the stories were defamatory and that it would be equally improper for the Supreme Court to decide that question before the parties have fully argued it in the trial court.

Court Needed to Rule on Defamation Argument, Dissent Stated
In her dissent, Justice Kennedy faulted the majority for ruling on the negligence issue without first determining whether the stories were defamatory. She wrote that “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.”

 She wrote that the Tenth District’s opinion that the stories were defamatory is at the heart of the dispute, and is not dicta. Because that determination was not overruled by the Supreme Court, the Tenth District’s conclusion that the stories are defamatory becomes the “law of the case” and is binding on any lower court reviewing the matter.

Justice Kennedy wrote the Court first should have determined whether the ruling that the stories were defamatory was correct before deciding whether the Tenth District applied the correct standard to in determining whether the station was negligent. She stated that the Court should have applied the legal standard set forth in its 2012 Am. Chem. Soc. v. Leadscope, Inc. decision to determine whether the publications are defamatory. The standard requires 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. Applying that standard, the stories are not defamatory, she stated.

“In the end, the CrimeTracker 10 reports yielded exactly what they were expected to — community tips to obtain information about the identity of two unknown males in the only clear photograph CPD had in order for the CPD to find them, interview them, and determine whether they were connected to the armed robbery of an eight-year-old child. That happened, and the Andersons were cleared of any wrongdoing,” the opinion stated.

Justice Kennedy noted crime-stopper news features have been an invaluable tool of law enforcement since they started in 1976 in Albuquerque, New Mexico. She cited reports that the programs have aided in the arrest of more than one million criminals and the recovery of more than $2 billion in stolen property.

2018-0792. Anderson v. WBNS-TV, Inc., Slip Opinion No. 2019-Ohio-5196.

View oral argument video of this case.

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