Libel, Slander, Defamation and “Opinion” Statements” in Ohio

The U.S. Supreme Court decision of Masson v. New Yorker Magazine, 501 U.S. 496 (1991) refused the invitation to constitutionalize the threshold of "what is defamatory" and left it as a matter to be determined by state law. The only major difference in Ohio law is with regard to the protected status of opinions. This article briefly discusses some of the federal and state case law on the the issue of slander, libel, defamation and the relationship with "opinion" statements.

The U.S. Supreme Court decision of Masson v. New Yorker Magazine, 501 U.S. 496 (1991) refused the invitation to constitutionalize the threshold of “what is defamatory” and left it as a matter to be determined by state law. Yet, because tensions involving the 1st Amendment are so often concurrent with situations in which defamatory media-defendant claims arise, there are few deviations in the states from the principal decisions written by the Supreme Court in D.C.  Therefore, the Ohio courts rely to a large extent on the Supreme Court’s historical understanding of defamation.

The only major difference in Ohio law is with regard to the protected status of opinions.  The gist is that publication and distribution of opinions is protected by the Ohio constitution and the courts have set out their own test to prove defamation . In Scott v. News-Herald, 25 Ohio St.3d 243, 250, 496 N.E.2d 699 (1986), the Ohio Supreme Court stated, “Expressions of opinion are generally accorded absolute immunity from liability under the First Amendment.” The court held that this was also true under Section 11, Article I of the Ohio Constitution. The court then went on to adopt a totality-of-the-circumstances test to distinguish statements of fact from opinion. Id.  Four years later, the United States Supreme Court rejected the notion that “opinion” is afforded additional protection under the First Amendment to the United States Constitution. (See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.Ct. 2695 (1990).

But opinion remains protected in Ohio. In Vail v. Plain Dealer Publishing Company, 72 Ohio St.3d 279, 281, 649 N.E.2d 182 (Ohio 1995) on independent state-law grounds, the Ohio Supreme Court held that under the Ohio Constitution statements of opinion are protected speech and are not actionable. The court also approved Scott’s totality-of-the-circumstances test, stating, “Once a determination is made that specific speech is ‘opinion,’ the inquiry is at an end. It is constitutionally protected.” See Vail., supra, 72 Ohio St.3d at 284, 649 N.E.2d 182, (Douglas, J., concurring).) See also discussion in Jorg v. Cincinnati Black United Front, 153 Ohio App.3d 258, 792 N.E.2d 781 (Ohio App. 1 Dist. 2003).