CINCINNATI (CN) - Gannett cannot dismiss a defamation lawsuit over its publication of an article that said an Ohio police officer "had sex with a woman while on the job."
The statement appeared in a May 2010 issue of Gannett's Milford-Miami Advertiser. Reporters had been covering the suspension of an officer who was found to have had sex with the mayor while on duty. But the article juxtaposed that officer's situation with allegations that came to light in Miami Township 13 years earlier.
The article stated: "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."
Young filed suit claiming that the sexual allegations were unsubstantiated and that he did not have sex with a woman on the job.
During a sexual harassment investigation, police dispatcher Marcey Phillips submitted to a polygraph test and told investigators that Young had forced her to perform oral sex on him and that he ejaculated on her kitchen rug afterward, according to Young's deposition.
Young was fired though he denied the allegations and a semen sample extracted from Phillips' rug did not match Young's DNA. An arbitrator ultimately reinstated Young after concluding that the oral sex claim was "not supported by the evidence."
Advertiser editor Theresa Herron testified that she wrote the offending paragraphs and based the reporting on the public record about Young's case.
U.S. District Judge Michael Barrett disagreed that Ohio's fair report statute requires dismissal of the case.
"Gannett argues that the Advertiser article is a substantially accurate account of the public record because it includes references to Young's challenge to his termination and his eventual reinstatement," he wrote. "The Court disagrees. The 'gist' of the Advertiser article is that even though Young 'had sex with a woman while on the job,' he remains an employee of the Miami Township Police Department. While the arbitrator ... concluded that there was some kind of relationship between Young and Phillips, there was never any conclusion that Young had sex with Phillips while on the job. ... Regardless of what actually occurred, the Advertiser article does not convey the essence of the official record because it excludes this information."
The judge also disagreed that a reader could construe the Gannett article in an innocent light since the fact that Young kept his job shows he successfully challenged the sex allegation.
"The problem with this interpretation is that there is no indication from the article that there was only an allegation that Young had sex with a woman while on the job," Barrett wrote. "Instead, the statement is made as if it were a proven fact, and despite this fact, Young was able to keep his job."
Young may also be able to prove malice, according to the 13-page decision. "This court concludes that based on the evidence in the record, a reasonable jury could find actual malice," Barrett wrote. "[Editor Theresa] Herron testified that in researching the Advertiser article, she reviewed the internal affairs investigation report, the arbitrator's decision, and Judge Ringland's decision upholding the arbitrator's decision. While the internal investigator concluded that Phillips' complaint was substantiated, none of the other documents reviewed by Herron support the statement that 'Young had sex with a woman while on the job.' Specifically, Herron testified that she read the arbitrator's decision that Phillips' allegation regarding oral sex was not supported by the evidence. Herron also testified that she reviewed the DNA-testing results which showed that semen collected from Phillips' rug did not belong to Young. A reasonable jury could find that this testimony demonstrates that Herron purposefully avoided or deliberately ignored facts establishing the falsity of the statement that Young had sex with a woman while on the job."
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