Defamation Under Ohio Law
With the Republican National Convention in full swing this week, the xenophobic, apocalyptic vision of America on the brink of total destruction thanks to the failed “leadership” of our first “Muslim” President is on full display from the bully pulpit of the Quicken Loans Arena. Fact checkers are on the scene as well, ready to debunk every false and misleading statement that each convention speaker tries to pass off as fact. We’re likely to see much of the same next week, from the other side, when the Democratic National Convention kicks off in Philadelphia. With all of this rhetoric being spouted over the next couple of weeks, some of you might be wondering whether any of these statements are actionable in a Court of law. Can these speakers be held liable for defamation? To answer that question, we need to take a closer look at defamation law in America. I chose Ohio’s law since the RNC is happening in Cleveland this week, and since Ohio law on defamation is substantially similar to other state laws around the country.
Defamation, includes both slander and libel, and is the publication of a false statement “made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession.” A & B–Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St.3d 1, 7, 651 N.E.2d 1283 (1995). “ ‘Slander’ refers to spoken defamatory words, while ‘libel’ refers to written or printed defamatory words.” Matikas v. Univ. of Dayton, 152 Ohio App.3d 514, 2003-Ohio-1852, 788 N.E.2d 1108, ¶ 27 (2d Dist.). To prevail on a defamation claim, whether libel or slander, a plaintiff must prove that: (1) a false statement, (2) about the plaintiff, (3) was published without privilege to a third party, (4) with fault or at least negligence on the part of the defendant and (5) the statement was either defamatory per se (i.e. words that carry a presumption of falsity, damages, and malice) or caused special harm to the plaintiff.
In the case of these convention speeches, the key portion of the law is the “without privilege” language. While there are a number of privileges under the law that might protect one’s speech, the one most often used to insulate the speaker from any misleading or false rhetoric spouted at party conventions is the First Amendment, freedom of speech privilege. In addition, the party against whom the misleading or false statements are spoken would have to show special harm, which would be difficult. For instance, if Hilary Clinton loses the election, it would be difficult, if not impossible, to blame her loss on the false statements included in Chris Christie’s speech last night. In short, no matter how ridiculous Iowa Rep. Steve King sounded during Monday night’s convention panel when he argued that what non-whites have never made any positive contributions to Western civilization, the only way such speakers are likely to be judged is through the Court of public opinion.
