Cop Defamed by Gannett Article Owed $100,000

CINCINNATI (CN) - A Gannett-owned newspaper acted with malice when it accused a police officer of having had sex on the job, the 6th Circuit ruled, awarding the officer $100,000.

The police department in Miami, Ohio, had fired Sgt. James Young in 1997 after a woman accused him of forcing sex on her, but an arbitrator rescinded the termination after DNA testing of a sample on the woman's rug proved that it did not come from the sergeant.

In handing down a 60-day suspension, the arbitrator found 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.'"

When a different police officer found himself suspended 13 years later, the Milford-Miami Advertiser reported on the case and included several statements about Young.

Its article said Young "had sex with a woman while on the job" and forced her to perform oral sex him.

Claiming that the Advertiser included these remarks despite knowing the details of Young's firing and appeal, he filed a defamation complaint against the paper's owner, Gannett Satellite Information Network.

After a federal judge in Cincinnati denied Gannett summary judgment and judgment as a matter of law, a jury ordered the newspaper to pay Young $100,000 in compensatory damages.

A divided three-judge panel of the 6th Circuit affirmed Thursday.

"The Advertiser's editor, Herron, reviewed the arbitrator's report," Judge John Rogers wrote for the majority. "She therefore knew that there was no evidence Young had forced sex on Phillips and that it was unclear whether they had ever had sex at all. ... 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 opinion goes on to say that "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."

Gannett claimed that the arbitrator's ambiguity about the conduct that took place between Young and the woman gave it leeway to publish the statement, specifically the arbitrator's statement that "the truth is somewhere in the middle."

Judge Rogers tossed the argument aside, however, noting that "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."

Gannett also alleged that Young failed to prove any harm to his reputation, claiming that Ohio law requires such harm in order to win a defamation case.

The majority concluded, however. that "Gannett misstates Ohio law. The injury element to a defamation claim in Ohio requires only 'that the plaintiff suffered injury as a proximate result of the publication.' Harm to a person's reputation is just one possible injury; it is not a required element of the tort."

"Although Young may not have shown harm to his reputation, he presented evidence of emotional harm," Rogers added. "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."

Writing in dissent, Judge Karen Nelson Moore said that the arbitrator's statements regarding Young's relationship with the woman were "undoubtedly ambiguous," and that "the totality of the statements made in this report lend [sic] 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 [the woman] were engaged in a weeks-long relationship of a sexual nature and it was expressly found that Young had been at [her] house while on duty during that time period," Moore wrote. "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."

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