RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0316p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JAMES D. YOUNG,

Plaintiff-Appellee,

v.

GANNETT SATELLITE INFORMATION

NETWORK, INC.,

Defendant-Appellant.

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No. 12-3999

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:10-cv-00483—Michael R. Barrett, District Judge.

Argued: June 19, 2013

Decided and Filed: October 31, 2013 

Before: SILER, MOORE, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: John C. Greiner, GRAYDON, HEAD & RITCHEY LLP, Cincinnati, Ohio,

for Appellant. Stephen E. Imm, KATZ, GREENBERGER & NORTON, LLP,

Cincinnati, Ohio, for Appellee. ON BRIEF: John C. Greiner, GRAYDON, HEAD &

RITCHEY LLP, Cincinnati, Ohio, for Appellant. Stephen E. Imm, KATZ,

GREENBERGER & NORTON, LLP, Cincinnati, Ohio, for Appellee.

ROGERS, J., delivered the opinion of the court, in which SILER, J., joined.

MOORE, J. (pp. 10–15), delivered a separate dissenting opinion.

_________________

OPINION

_________________

ROGERS, Circuit Judge. In 1997, the Miami Township police department fired

Police Sergeant James Young for allegedly forcing sex on a woman he was said to be

involved with. However, the termination was overturned by an arbitrator. The arbitrator

1
No. 12-3999 Young v. Gannett Satellite Info. Page 2

stated that it was unclear what happened on the day in question but that the police

department had not proven its allegations. The arbitrator’s report also mentioned that

DNA samples from the scene did not match Young and found that the complainant

lacked credibility. Thirteen years later, a Gannett newspaper published the statement

“Young had sex with a woman while on the job” in an article commenting on a local

debate about the suspension of a different police officer. Young sued Gannett for

defamation and obtained a $100,000 verdict. Gannett now appeals the judgment,

arguing that Young did not meet the high threshold for establishing a defamation claim

involving a public official. There was sufficient evidence for a jury to decide that

Gannett’s editor knew that the accusation was probably false and that the editor

published it regardless. The district court therefore properly entered judgment on the

jury’s verdict.

In 2010, Gannett’s Milford-Miami Advertiser published an article about a

Milford, Ohio police officer named Russell Kenney. According to the article, Kenney

had sex with the city’s mayor. Although the police chief recommended termination,

Kenney received only a fifteen-day suspension. The article suggested that the city chose

suspension over termination so that it would not have to go through the arbitration

process.

Advertiser editor Theresa Herron decided that the article needed context

explaining why the city wanted to avoid arbitration. She remembered that, twelve years

earlier, neighboring Miami Township had fired Young for allegedly having sex while

on duty but an arbitrator overturned the termination. She conducted some research on

Young’s case, examining the records of the police investigation, the arbitrator’s report,

and a state court opinion upholding the arbitrator’s decision. She then added these two

paragraphs to the article:

In 1997, the Miami Township trustees terminated Sgt. James Young for

a variety of charges including conduct unbecoming of a police officer,

sexual harassment, immoral behavior, neglect of duty and gross

misconduct. Young had sex with a woman while on the job.
No. 12-3999 Young v. Gannett Satellite Info. Page 3

Young sued saying the trustees violated the collective bargaining

contract between the township and the police union. An arbitrator agreed

with Young, but the township fought the decision. Clermont County

Court of Common Pleas Judge Robert Ringland ruled: “While this court

is not indicating it agrees with the arbitrator or condones the conduct

which has occurred,” based on other similar cases he could not set aside

the arbitrator’s decision. Young is a current employee with the Miami

Township Police Department.

Young’s story was more complex than the article suggested. Young and the

woman at issue, Marcey Phillips, had apparently been seeing each other since Phillips’s

relationship with one of Young’s coworkers ended. Young admitted during the police

department investigation that he had placed his hands on Phillips’s body, had hugged her

and had kissed her. He had also made jokes in the presence of fellow police employees

about alleged or desired sexual behavior with Phillips and had called Phillips from work.

However, Young denied that he ever engaged in sexual conduct with Phillips. On

February 9, 1997, the relationship went sour. It remains unclear what happened on that

day, but Phillips later accused Young of forcing her to perform oral sex on him. The

police department investigated. During the investigation, the police recovered a human

semen sample from the rug where Phillips alleged the sexual act occurred. Based on the

investigation, the police department recommended terminating Young. The local

laboratory later determined that the semen did not match Young’s DNA.

Young’s union filed a grievance and, under the collective bargaining agreement,

an arbitrator took up the matter. The arbitrator found that both Young and Phillips

lacked credibility. The arbitrator noted that Phillips had a “well documented history of

histrionic . . . behavior that seriously undermined her credibility,” lied about being

engaged to two men, lied about being diagnosed with cancer, and lied about being

pursued or abused by other men. Turning to the events of February 9, 1997, the

arbitrator found that Phillips’s accusation of forced oral sex was not supported by the

evidence. He noted that it was a “classic ‘he said, she said’ scenario” and that the “lack

of truthfulness by both parties . . . prevents any reasonable assessment of what

happened.”
No. 12-3999 Young v. Gannett Satellite Info. Page 4

The arbitrator concluded that “the evidence and testimony create doubts as to

whether the relationship went beyond what could be described as a private relationship

between two consenting adults” and that the township “failed to establish a nexus

between the personal conduct of [Young with Phillips] and his job.” The arbitrator

therefore ordered that Young be reinstated. However, the arbitrator also found that the

township had proven that Young had violated its rules by making inappropriate sexual

remarks regarding Phillips at work, by failing to leave Phillips’s residence immediately

upon receiving a call, and by failing to follow orders not to discuss the investigation with

others. The arbitrator ordered that Young’s termination be converted to a sixty-day

suspension and that Young be required to attend a sexual-harassment training session.

The township appealed the arbitrator’s decision. The Clermont County Court of

Common Pleas affirmed, noting that it was “constrained by the standards of review

permitted in upholding this arbitration decision” and, accordingly, did not engage in its

own independent fact-finding.

Thirteen years after the alleged incident occurred, Young saw the Advertiser

article and sued Gannett for defamation. The district court denied Gannett’s motion for

summary judgment. The case was presented to a jury, and the jury was instructed that

to find for Young, they must “find by clear and convincing evidence . . . that . . .

[Gannett] acted with actual malice.” The court explained to the jury that actual malice

“occurs when the defendant makes a false statement either with the knowledge that it

was false or with reckless disregard of whether or not it was false.” Furthermore, the

court instructed the jury that “[i]n the case of an ambiguous document, the adoption of

a rational interpretation, though arguably reflecting a misconception, does not constitute

actual malice.” The jury found Gannett liable, awarding Young $100,000 in

compensatory damages. Gannett moved for judgment as a matter of law, but the district

court denied that motion as well.

Gannett now appeals, raising two arguments. First, Gannett argues that Young

failed to establish actual malice because the statement at issue was based on a rational
No. 12-3999 Young v. Gannett Satellite Info. Page 5

interpretation of an ambiguous document. Second, Gannett argues that the Young failed

to prove harm to his reputation. Neither argument has merit.

The Advertiser’s editor, Herron, reviewed the arbitrator’s report. She therefore

knew that there was no evidence that Young had forced sex on Phillips and that it was

unclear whether they had ever had sex at all. In the definitive Supreme Court case

regarding the sufficiency of a jury verdict finding actual malice in the press coverage of

a public figure, the Supreme Court explained the standard to be applied by the jury: 

If a false and defamatory statement is published with knowledge of

falsity or a reckless disregard for the truth, the public figure may prevail.

A “reckless disregard” for the truth, however, requires more than a

departure from reasonably prudent conduct. “There must be sufficient

evidence to permit the conclusion that the defendant in fact entertained

serious doubts as to the truth of his publication.” The standard is a

subjective one—there must be sufficient evidence to permit the

conclusion that the defendant actually had a “high degree of awareness

of . . . probable falsity.” . . . In a case such as this involving the reporting

of a third party’s allegations, “recklessness may be found where there are

obvious reasons to doubt the veracity of the informant or the accuracy of

his reports.”

Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989) (citations

omitted). There was sufficient evidence for the jury to conclude that Herron was well

aware that the statement she added to the article was probably false. She nonetheless

added the statement to provide context for the story about Officer Kenney. The jury

could find reckless disregard of the truth and clear and convincing proof of actual

malice.

The jury could have properly relied upon the inclusion in the arbitrator’s report

of several statements that Herron should have seen as red flags. First, the report noted

that the semen found on Phillips’s carpet did not match Young’s DNA. Second, the

report cast serious doubts on Phillips’s credibility. Third, it mentioned only a single

incident that occurred while Young was on duty. As to that incident, the arbitrator noted

that Phillips’s accusation that Young forced her to perform oral sex “is not supported by

the evidence” and that “[t]he lack of truthfulness by both parties . . . prevents any
No. 12-3999 Young v. Gannett Satellite Info. Page 6

1

The Supreme Court has explained that “a newspaper’s motive in publishing a story . . . cannot

provide a sufficient basis for finding actual malice.” Harte-Hanks, 491 U.S. at 665. We do not rely on

Gannett’s desire to make Young’s story fit Kenney’s to find actual malice. It is, however, “circumstantial

evidence which, when combined with other evidence, may amount to malice.” See Perk v. Reader’s Digest

Ass’n, Inc., 931 F.2d 408, 411 (6th Cir. 1991). Furthermore, it provides context to the otherwise

inexplicable decision to rewrite the story of an event long forgotten.

reasonable assessment of what happened.” Finally, the arbitrator concluded that, even

if Young and Phillips did have a sexual relationship, the police department “failed to

establish a nexus between the personal conduct [of Young involving Phillips] and his

job.”

Armed with that knowledge, Herron nevertheless published the statement

“Young had sex with a woman while on the job” as if it were fact. This is reckless

disregard of the truth at best, and is sufficient for the jury to have found that Gannett

published the statement with actual malice. A newspaper cannot publish an accusation

that it knows has no evidence behind it as a fact to fit its desired storyline and then cloak

itself in the First Amendment.1

Herron was also reckless in failing to conduct any investigation beyond the

records of the original case. She did not seek out Young for comment, nor did she talk

to anyone involved in his case, even though the arbitrator’s report provided obvious

reasons to doubt the veracity of Phillips’s complaints and the police investigation. When

Herron found no definitive statement in the arbitrator’s report that Young had sex with

Phillips at any time, she should have investigated further. As the Supreme Court

explained in Harte-Hanks, “[a]lthough failure to investigate will not alone support a

finding of actual malice, the purposeful avoidance of the truth is in a different category.”

491 U.S. at 692 (citation omitted). Gannett argues that the arbitrator’s statement that

“the truth is somewhere in the middle” is such a definitive statement. However, while

a “middle ground” between rape and no sex could imply various degrees of intimate

contact, it does not logically imply sex while on duty, or at least the jury could so find.

Since the administrator’s report does not say anything about Young’s having sex while

on duty, this is a situation much like that in Harte-Hanks, where “it is likely that the
No. 12-3999 Young v. Gannett Satellite Info. Page 7

newspaper’s inaction was a product of a deliberate decision not to acquire knowledge

of facts that might confirm the probably falsity of [the] charges.” Id.

The jury reviewed the same reports that Herron did, and determined that the

statement “Young had sex with a woman while on the job” was false. The jury was also

instructed that “the adoption of a rational interpretation [of an ambiguous document],

though arguably reflecting a misconception, does not constitute actual malice.” Since

the jury found that Gannett exhibited actual malice, it must also have concluded either

that the arbitrator’s report was not an ambiguous document or that Herron’s

interpretation was not rational.

These conclusions of basic fact are subject to some deference in the context of

this particular case, notwithstanding that the First Amendment requires that we conduct

an independent review to “decide whether the evidence in the record is sufficient to cross

the constitutional threshold that bars the entry of any judgment that is not supported by

clear and convincing proof of ‘actual malice.’” Bose Corp. v. Consumers Union of U.S.,

Inc., 466 U.S. 485, 510–11 (1984). As the Supreme Court cautioned in Harte-Hanks,

“only through the course of case-by-case adjudication can we give content to these

otherwise elusive constitutional standards.” 491 U.S. at 686. The Supreme Court in

Harte-Hanks upheld a jury finding of actual malice even though the case involved a

story about the qualifications of a candidate in an election. The Supreme Court

acknowledged that such a situation presents “probably the strongest possible case for

application of the New York Times rule, and the strongest possible case for independent

review.” Id. at 686–87 (internal quotation marks and citation omitted). In contrast, this

case, while still requiring independent review to ensure that the actual malice standard

has been met, presents a stronger case for deferring to the jury’s findings. This was a

personnel matter involving the alleged actions of one officer in a non-leadership position

over a decade in the past. Young did not enter the political arena, and knowledge of

what someone alleged he had done thirteen years before the story was not necessary for

members of the electorate to exercise their constitutional rights. Thus, while we must

make an independent determination regarding whether there is sufficient evidence of the
No. 12-3999 Young v. Gannett Satellite Info. Page 8

existence of actual malice, we can properly defer to the jury on historical facts,

credibility determinations, and elements of statutory liability. See United States v.

Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002). Indeed, the Supreme Court relied on such

jury-found facts in reaching its decision in Harte-Hanks. See 491 U.S. at 690–91.

Moreover, had Young not conceded the issue it would not even be clear that

actual malice is the proper standard to apply in this case. Gannett cites the Ohio

Supreme Court case of Soke v. Plain Dealer, 632 N.E.2d 1282, 1283 (Ohio 1994), which

held that police officers are public officials for defamation purposes. However, Soke

may have misinterpreted federal law on the issue. Soke noted that the “United States

Supreme Court has repeatedly recognized that police officers are public officials,” and

cited New York Times Co. v. Sullivan, 376 U.S. 254 (1964), Henry v. Collins, 380 U.S.

356 (1965), St. Amant v. Thompson, 390 U.S. 727 (1968), and Time, Inc. v. Pape, 401

U.S. 279 (1971), as authority. However, none of those cases involved officers in

Young’s position. New York Times Co. v. Sullivan involved a city police commissioner,

an elected position. 376 U.S. at 256. Henry v. Collins involved the chief of police.

380 U.S. at 356. In St. Amant, the Court “accept[ed] the determinations of the Louisiana

courts . . . that Thompson was a public official.” 390 U.S. at 730. The Louisiana

Supreme Court had concluded that Thompson was a public official because he had

“substantial responsibility for or control over the conduct of governmental affairs.” Id.

at 730 n.2 (quoting Thompson v. St. Amant, 196 So.2d 255, 261 (La. 1967)). Finally,

Pape involved the Chicago Deputy Chief of Detectives. 401 U.S. at 280–81. All of

these police officers had key public leadership positions. Young did not. Of course,

because Young does not argue that a different standard should apply in this case, we

apply the actual malice standard, without deciding whether it is necessarily the proper

standard to apply to a rank-and-file police officer.

The evidence in this case is sufficient to cross the constitutional threshold. The

arbitrator’s report did not even consider whether Young had sex with Phillips while on

duty. The report only mentioned one instance where Young was at Phillips’s house

while on duty. Semen found on Phillips’s rug on that day did not match Young’s DNA.
No. 12-3999 Young v. Gannett Satellite Info. Page 9

The arbitrator also found that Phillips’s story about what happened on that date was not

credible. The jury could find that Herron’s interpretation of the arbitrator’s report to say

that Young and Phllips had sex that day was irrational.

Gannett argues in the alternative that Young failed to prove that he suffered any

harm to his reputation and that, therefore, he failed to prove defamation. The publisher

bases this argument on the unsupported statement that “[h]arm to reputation is an

element of the tort.” 

Gannett misstates Ohio law. The injury element to a defamation claim in Ohio

only requires “that the plaintiff suffered injury as a proximate result of the publication.”

Am. Chem. Soc’y v. Leadscope, Inc., 978 N.E.2d 832, 852 (Ohio 2012). Harm to a

person’s reputation is just one possible injury; it is not a required element of the tort.

Pain, suffering, anguish, humiliation, and embarrassment are personal harms that do not

necessarily require others to change their views of the plaintiff, but are sufficient to meet

the injury element of a defamation action. See Gilbert v. WNIR 100 FM, 756 N.E.2d

1263, 1277 (Ohio Ct. App. 2001). Although Young may not have shown harm to his

reputation, he presented evidence of emotional harm. This evidence included testimony

from Young’s wife that he became upset and withdrawn and that he had trouble sleeping.

It also included testimony from Young and at least one fellow officer about Young’s

emotional state after reading the article. The jury accepted these damages and valued

them at $100,000. Gannett provides no valid basis for challenging the jury’s conclusion

on this point.

There was sufficient evidence in this case for the jury to conclude that Gannett’s

employees knew that the statement “Young had sex with a woman while on the job” was

probably false, but nonetheless failed to research further and published it. The jury

could accordingly find actual malice. The district court’s judgment is therefore affirmed.
No. 12-3999 Young v. Gannett Satellite Info. Page 10

_______________

DISSENT

_______________

KAREN NELSON MOORE, Circuit Judge, dissenting. An arbitrator determined

that on February 9, 1997, Police Sergeant James Young visited Marcey Phillips, a

woman with whom he was having a consensual adult relationship, while on duty as a

police officer. In his report, the arbitrator explored what might have occurred during that

visit, but could not reach a conclusive determination given the total lack of credibility

of both Young and Phillips. Thirteen years after this alleged incident, Theresa Herron

relied on the details in the arbitrator’s report when she edited a story in the MilfordMiami Advertiser and inserted two paragraphs that included the sentence “Young had

sex with a woman while on the job.” Because I believe that Herron’s statement reflects

a rational interpretation of the contents of the arbitrator’s report, an ambiguous

document, and that upon de novo review there was insufficient evidence in the record

to support a conclusion otherwise, I would hold that Herron did not act with actual

malice as a matter of law. I therefore respectfully dissent.

As an initial matter, I disagree with the standard of review set forth by the

majority. When a jury reaches a verdict in favor of a plaintiff on a defamation claim, we

“have a constitutional duty to exercise independent judgment and determine whether the

record establishes actual malice with convincing clarity.” Harte-Hanks Commc’ns, Inc.

v. Connaughton, 491 U.S. 657, 659 (1989). The Supreme Court has explained that use

of the de novo standard is based “on the unique character of the interest protected by the

actual malice standard.” Id. at 685–86. “Our profound national commitment to the free

exchange of ideas, as enshrined in the First Amendment, demands that the law of libel

carve out an area of breathing space so that protected speech is not discouraged.” Id. at

686 (internal quotation marks omitted). I therefore cannot agree with the majority’s

decision to hedge this de novo review by making the unsupported contention that this

type of case requires greater deference to the jury’s findings than the type examined in
No. 12-3999 Young v. Gannett Satellite Info. Page 11

Harte-Hanks. Maj. Op. at 8. The Supreme Court has imposed no such limitations, nor

can any be inferred from its unmitigated defense of independent review.

Because “[t]his value must be protected with special vigilance,” the Supreme

Court demands much of a plaintiff who seeks to show actual malice. Harte-Hanks,

491 U.S. at 687. The Court has explained that “[a]ctual malice . . . requires at a

minimum that the statements were made with a reckless disregard for the truth. And

although the concept of reckless disregard cannot be fully encompassed in one infallible

definition, we have made clear that the defendant must have made the false publication

with a high degree of awareness of probable falsity, or must have entertained serious

doubts as to the truth of his publication.” Id. at 667 (internal citations, quotation marks,

and alteration omitted). In other words, this is a subjective standard. For example,

“failure to investigate before publishing, even when a reasonably prudent person would

have done so, is not sufficient to establish reckless disregard.” Id. at 688.

The district court chose to instruct the jury on the issue of actual malice based

in part on language in Time, Inc. v. Pape, 401 U.S. 279 (1971). Specifically, the district

court instructed the jury that “the adoption of a rational interpretation [of an ambiguous

document], though arguably reflecting a misconception, does not constitute actual

malice.” The Pape Court discussed this issue as follows: “Time’s omission of the word

‘alleged’ amounted to the adoption of one of a number of possible rational

interpretations of a document that bristled with ambiguities. The deliberate choice of

such an interpretation, though arguably reflecting a misconception, was not enough to

create a jury issue of ‘malice’ under New York Times.” 401 U.S. at 290. The issue we

must resolve, then, is whether Herron’s assertion that “Young had sex with a woman

while on the job” was a rational interpretation of an ambiguous document.

The document at issue, the arbitrator’s report, is undoubtedly ambiguous as to

the question of whether “Young had sex with a woman while on the job,” as the

arbitrator was not responsible for, and therefore did not make, an express determination

on that issue. Rather, the arbitrator was tasked with determining whether Young

engaged in “sexual harassment that rise[s] to the level of rape” and “Neglect of Duty,”
No. 12-3999 Young v. Gannett Satellite Info. Page 12

among other things. R. 52-4 (Arbitrator Report at 11, 20) (Page ID #2152, 2161).

Because there is no direct resolution of whether Young had sex with Phillips that night

while he was on duty, the document is ambiguous.

Nonetheless, the arbitrator did make certain findings that can inform our analysis

on the rational-interpretation issue. With respect to the rape charge, for example, the

arbitrator concluded that because both Phillips and Young were not credible, the

Employer has failed “to prove beyond a reasonable doubt that Mr. Young engaged in

sexual behavior that was uninvited and unwanted by Ms. Phillips.” Id. at 18 (Page ID

#2159); see also id. at 16 (Page ID #2157) (“The lack of truthfulness by both parties in

this matter prevents any reasonable assessment of what happened on February 9th.”).

In reaching this conclusion, the arbitrator noted that “the evidence and testimony create

doubts as to whether the relationship went beyond what could be described as a private

relationship between two consenting adults.” Id. at 18–19 (Page ID #2159–60). In other

parts of his report, the arbitrator asserted that he “do[es] not doubt that [Phillips’s son]

saw physical touching between his mother and Mr. Young” and again that “[t]he

evidence and testimony more plausibly support a consenting relationship between Mr.

Young and Ms. Phillips.” Id. at 15, 17 (Page ID #2156, 2158) I believe that a rational

inference gleaned from these statements is that Phillips and Young had a relationship

that was sexual in nature during the time period in issue.

Importantly, the arbitrator also determined that Young was in neglect of duty on

the night in question. In fact, he concluded that Young was in neglect of duty because

he was at Phillips’s residence: “[o]n February 9, 1997 he did not leave the residence of

Marcey Phillips immediately upon receiving a call.” Id. at 20 (Page ID #2161). The

arbitrator also noted that this was not the first time that Young had been at Phillips’s

apartment; he had “stopped by Ms. Phillips’ apartment on 6 or 7 occasions between

January 12, 1997 and February 9, 1997.” Id. at 4 (Page ID #2145). The arbitrator went

into considerable detail as well regarding the evolution of their relationship, explaining

that this relationship seemingly began after Phillips had ended a relationship with
No. 12-3999 Young v. Gannett Satellite Info. Page 13

another man, and “was seeking solace and possibly more.” Id. at 15 (Page ID #2156).

According to the report, “Mr. Young offered that solace and possibly more.” Id.

The totality of the statements made in this report lend support for Herron’s

assertion that “Young had sex with a woman while on the job.” It is easy to infer from

the report that Young and Phillips were engaged in a weeks-long relationship of a sexual

nature and it was expressly found that Young had been at Phillips’s house while on duty

during that time period. Although it cannot be said for certain that they did have sex

while he was on duty, it is not irrational to reach that conclusion based on the statements

made in the arbitrator’s report. In other words, I believe that Herron’s statement

“amounted to the adoption of one of a number of possible rational interpretations of a

document that bristled with ambiguities.” Pape, 401 U.S. at 290. “The deliberate choice

of such an interpretation, though arguably reflecting a misconception, was not enough”

to support a finding of actual malice. Id. Although Herron’s statement certainly did not

reflect a careful parsing of the nuances present in this messy case, it was not an irrational

interpretation of the arbitrator’s report.

The majority asserts that “while we must make an independent determination

regarding whether there is sufficient evidence of the existence of actual malice, we can

properly defer to the jury on historical facts, credibility determinations, and elements of

statutory liability.” Maj. Op. at 7–8. It fails to make such an independent determination.

Rather, the majority relies on the jury potentially finding that Herron’s interpretation of

the arbitrator’s report was irrational, id. at 9, but Harte-Hanks cautions against precisely

this type of reliance. Harte-Hanks unequivocally holds that the court must “make an

independent de novo review of the entire record.” Harte-Hanks, 491 U.S. at 664. The

majority’s deference to the jury regarding whether Herron’s interpretation of the report

was rational “incorrectly relied on subsidiary facts implicitly established by the jury’s

verdict instead of drawing its own inferences from the evidence.” Id. I therefore cannot

agree with either the majority’s reliance on the jury’s finding or with the majority’s

conclusion.
No. 12-3999 Young v. Gannett Satellite Info. Page 14

Furthermore, without providing any legal support for its position, the majority

opinion argues that it is “not . . . clear that actual malice is the proper standard to apply

in this case.” Maj. Op. at 8. The majority acknowledges that the Ohio Supreme Court

in Soke v. The Plain Dealer, 632 N.E.2d 1282, 1283 (Ohio 1994), has “held that police

officers are public officials for defamation purposes.” Maj. Op. at 8. Despite the highest

court of the state clearly holding that police officers are public officials for purposes of

state defamation law, the majority questions whether such should be the case. The only

justification advanced for questioning whether a rank-and-file police officer such as

Sergeant Young is a public official for defamation purposes is that the Ohio Supreme

Court “may have misinterpreted federal law on the issue,” id., in finding a detective,

“being a police officer, is a public official,” Soke, 632 N.E.2d at 1284.

The Ohio Supreme Court, however, is not alone in its interpretation of federal

precedent. The First Circuit has confirmed that a police officer serving as a resource

officer at a middle school is a public official under Massachusetts law. Dixon v. Int’l

Bhd. of Police Officers, 504 F.3d 73, 88 (1st Cir. 2007). The Third Circuit held that a

rookie patrol officer is a public official. Coughlin v. Westinghouse Broad. & Cable Inc.,

780 F.2d 340, 342 (3d Cir. 1986). The Fifth Circuit concluded that a patrol officer is a

public official. McKinley v. Baden, 777 F.2d 1017, 1021 (5th Cir. 1985). The Seventh

Circuit held that federal law-enforcement agents are public officials. Meiners v.

Moriarity, 563 F.2d 343, 352 (7th Cir. 1977). The Eighth Circuit acknowledged that a

police officer patrolling a demonstration was a public official for defamation purposes.

Speer v. Ottaway Newspapers, 828 F.2d 475, 476 (8th Cir. 1987). The Ninth Circuit

found that a city police officer was a public official requiring proof of actual malice in

a defamation case. Rattray v. City of Nat’l City, 36 F.3d 1480, 1486 (9th Cir. 1994).

Finally, in a widely cited opinion, the Tenth Circuit held that the chief investigator for

the county attorney was a public figure in pressing his defamation claim regarding his

alleged acts when he was a “normal street patrolman.” Gray v. Udevitz, 656 F.2d 588,

591 (10th Cir. 1981). I have been unable to find a circuit court holding to the contrary.
No. 12-3999 Young v. Gannett Satellite Info. Page 15

The overwhelming and entirely one-sided decisions by our sister circuits leave

no doubt that police officers are public officials for defamation purposes. Courts have

uniformly applied the actual malice standard to police officers because there is a strong

societal interest in protecting expression that criticizes law enforcement officers.

Meiners, 563 F.2d at 352 (“The public is certainly interested in an important and special

way in the qualifications and performance of federal agents . . . whose decisions to

search and to arrest directly and personally affect individual freedoms.”). As a polity,

we grant police officers extraordinary power: to arrest suspects curtailing citizens’

liberty, to search private areas invading individual privacy, and, when the circumstances

require it, even to use deadly force. In light of this extraordinary power, criticism of

police officers in the performance, or lack thereof, of their duties, ought receive the full

protection of the First Amendment whether those officers are the chiefs of police,

captains, detectives, or rank-and-file officers walking a beat. Gray, 656 F.2d at 591

(“The cop on the beat . . . . possesses both the authority and the ability to exercise force.

Misuse of his authority can result in significant deprivation of constitutional rights and

personal freedoms . . . . The strong public interest in ensuring open discussion and

criticism of his qualifications and job performance warrant[s] the conclusion that he is

a public official.”).

Given the clear holding of the highest court of Ohio that police officers are public

figures under its defamation law, confirmed by the uniform conclusions of our sister

circuits and supported by strong policy rationales, I am left with no doubt that Sergeant

Young’s defamation claim, even though he is a rank-and-file police officer, is subject

to the actual malice standard.

For these reasons, I respectfully dissent.