actual-malice standard in Ohio

2022Those comments did not address his qualifications or integrity but rather were expressions of opinion that do not amount to defamation under the actual-malice standard, as established in Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 , that I believe is imposed by Prof.Cond.R. 8.2(a), but which this court has not adopted.

2022Those comments did not address his qualifications or integrity but rather were expressions of opinion that do not amount to defamation under the actual-malice standard, as established in Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 , that I believe is imposed by Prof.Cond.R. 8.2(a), but which this court has not adopted.

2000Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. 767, 772 , 106 S.Ct. 1558, 1561 , 89 L.Ed.2d 783, 790 , quoting New York Times, supra, 376 U.S. at 272 , 84 S.Ct. at 721 , 11 L.Ed.2d at 701 . {¶ 33} On the other hand, the actual-malice standard is not an impenetrable shield for the benefit of those who engage in false speech about public figures. “[F]alse speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth.” Pestrak, supra, 926 F.2d at 577. “[T]he use of the known lie as a tool is at once at odd

2000Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. 767, 772 , 106 S.Ct. 1558, 1561 , 89 L.Ed.2d 783, 790 , quoting New York Times, supra, 376 U.S. at 272 , 84 S.Ct. at 721 , 11 L.Ed.2d at 701 . {¶ 33} On the other hand, the actual-malice standard is not an impenetrable shield for the benefit of those who engage in false speech about public figures. “[F]alse speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth.” Pestrak, supra, 926 F.2d at 577. “[T]he use of the known lie as a tool is at once at odd

2003Grievance Commt. (1991), 502 U.S. 1009 , 112 S.Ct. 648 , 116 L.Ed.2d 665 . {¶ 27} “As the Court of Appeals of New York observed in Holtzman, supra, at 192, 573 N.Y.S.2d 39 , 577 N.E.2d 30 , adopting a subjective standard ‘would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth * * *.’ The state’s interest in protecting the public, the administration of justice, and the legal profession supports applying a different standard in disciplinary proceedings.” Chmura, 461 Mich, at

2003Grievance Commt. (1991), 502 U.S. 1009 , 112 S.Ct. 648 , 116 L.Ed.2d 665 . {¶ 27} “As the Court of Appeals of New York observed in Holtzman, supra, at 192, 573 N.Y.S.2d 39 , 577 N.E.2d 30 , adopting a subjective standard ‘would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth * * *.’ The state’s interest in protecting the public, the administration of justice, and the legal profession supports applying a different standard in disciplinary proceedings.” Chmura, 461 Mich, at

2003Grievance Commt. (1991), 502 U.S. 1009 , 112 S.Ct. 648 , 116 L.Ed.2d 665 . {¶ 27} “As the Court of Appeals of New York observed in Holtzman, supra, at 192, 573 N.Y.S.2d 39 , 577 N.E.2d 30 , adopting a subjective standard ‘would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth * * *.’ The state’s interest in protecting the public, the administration of justice, and the legal profession supports applying a different standard in disciplinary proceedings.” Chmura, 461 Mich, at

2003Grievance Commt. (1991), 502 U.S. 1009 , 112 S.Ct. 648 , 116 L.Ed.2d 665 . {¶ 27} “As the Court of Appeals of New York observed in Holtzman, supra, at 192, 573 N.Y.S.2d 39 , 577 N.E.2d 30 , adopting a subjective standard ‘would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth * * *.’ The state’s interest in protecting the public, the administration of justice, and the legal profession supports applying a different standard in disciplinary proceedings.” Chmura, 461 Mich, at

2000The Thompson court held that “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” (Emphasis added.) Id., 390 U.S. at 731 , 88 S.Ct. at 1325 , 20 L.Ed.2d at 267 . {¶ 37} Thompson certainly requires evidence of the defendant’s subjective state of mind in order to satisfy the actual-malice standard.

2000The Thompson court held that “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” (Emphasis added.) Id., 390 U.S. at 731 , 88 S.Ct. at 1325 , 20 L.Ed.2d at 267 . {¶ 37} Thompson certainly requires evidence of the defendant’s subjective state of mind in order to satisfy the actual-malice standard.

1995In Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 187 , 644 N.E.2d 1038, 1043 , jurisdiction denied (1994), 71 Ohio St.3d 1427 , 642 N.E.2d 635 , the court of appeals held that once a qualified privilege was found to exist by virtue of the relationship of the parties, the heightened actual-malice standard must be applied to the plaintiffs tortious interference claim as well as his defamation claim.

1995The court explained that "[t]his is only logical as a plaintiff may not avoid the protection afforded by the Constitution and federal labor law merely by the use of creative pleading." Id. at 196 . {¶ 57} In Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 187 , 644 N.E.2d 1038, 1043 , jurisdiction denied (1994), 71 Ohio St.3d 1457 , 642 N.E.2d 635 , the court of appeals held that once a qualified privilege was found to exist by virtue of the relationship of the parties, the heightened actual-malice standard must be applied to the plaintiff's tortious interference claim as well as hi

1995In Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 187 , 644 N.E.2d 1038, 1043 , jurisdiction denied (1994), 71 Ohio St.3d 1427 , 642 N.E.2d 635 , the court of appeals held that once a qualified privilege was found to exist by virtue of the relationship of the parties, the heightened actual-malice standard must be applied to the plaintiffs tortious interference claim as well as his defamation claim.

1995In Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 187 , 644 N.E.2d 1038, 1043 , jurisdiction denied (1994), 71 Ohio St.3d 1427 , 642 N.E.2d 635 , the court of appeals held that once a qualified privilege was found to exist by virtue of the relationship of the parties, the heightened actual-malice standard must be applied to the plaintiffs tortious interference claim as well as his defamation claim.

2021See, e.g., McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 147 , 729 N.E.2d 364 (2000) (holding that the actual-malice standard, which removes free speech protections provided by the federal and state constitutions, must be proven by clear and convincing evidence); In re Schmidt, 25 Ohio St.3d 331, 335 , 496 N.E.2d 952 (1986) (holding that the clear-and-convincing standard in R.C. 2151.414 sufficiently protected “the fundamental rights of both parents and children” contained “in both the Ohio and United States Constitutions”). {¶9} With this standard in mind, we first review Mr. Oppenheimer

2021See, e.g., McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 147 , 729 N.E.2d 364 (2000) (holding that the actual-malice standard, which removes free speech protections provided by the federal and state constitutions, must be proven by clear and convincing evidence); In re Schmidt, 25 Ohio St.3d 331, 335 , 496 N.E.2d 952 (1986) (holding that the clear-and-convincing standard in R.C. 2151.414 sufficiently protected “the fundamental rights of both parents and children” contained “in both the Ohio and United States Constitutions”). {¶9} With this standard in mind, we first review Mr. Oppenheimer

2021We accordingly overrule this objection. 7 SUPREME COURT OF OHIO The alleged ambiguity of Jud.Cond.R. 4.3(A) {¶ 17} In her fifth objection to the misconduct findings, Falter argues that if the actual-malice standard of New York Times Co. v. Sullivan is inapplicable, Jud.Cond.R. 4.3(A) “does not provide notice” of what it prohibits and “encourages arbitrary enforcement.” Falter therefore requests that we “find that Jud.Cond.R. 4.3(A) is ambiguous and dismiss the charges.” {¶ 18} Jud.Cond.R. 4.3(A) is not ambiguous; it “applies to specific communications made by judicial candidates under narrowly

2021We accordingly overrule this objection. 7 SUPREME COURT OF OHIO The alleged ambiguity of Jud.Cond.R. 4.3(A) {¶ 17} In her fifth objection to the misconduct findings, Falter argues that if the actual-malice standard of New York Times Co. v. Sullivan is inapplicable, Jud.Cond.R. 4.3(A) “does not provide notice” of what it prohibits and “encourages arbitrary enforcement.” Falter therefore requests that we “find that Jud.Cond.R. 4.3(A) is ambiguous and dismiss the charges.” {¶ 18} Jud.Cond.R. 4.3(A) is not ambiguous; it “applies to specific communications made by judicial candidates under narrowly

2004Harte-Hanks, at 668, 109 S.Ct. 2678 , 105 L.Ed.2d 562 ; Perk v. Reader’s Digest Assn., Inc. (C.A.6, 1991), 931 F.2d 408, 411 .

2004Assn. (1991), 57 Ohio St.3d 112, 114 , 567 N.E.2d 253 . {¶ 13} In discussing the actual-malice standard, the United States Supreme Court held in New York Times that a person cannot recover damages for a falsehood unless he proves by clear and convincing evidence that the statement was made with actual malice, which it defined as knowledge that the statement was false or that the statement was made with reckless disregard of whether it was false or not.

2004Assn. (1991), 57 Ohio St.3d 112, 114 , 567 N.E.2d 253 . {¶ 13} In discussing the actual-malice standard, the United States Supreme Court held in New York Times that a person cannot recover damages for a falsehood unless he proves by clear and convincing evidence that the statement was made with actual malice, which it defined as knowledge that the statement was false or that the statement was made with reckless disregard of whether it was false or not.

2003Grievance Commt. (1991), 502 U.S. 1009 , 112 S.Ct. 648 , 116 L.Ed.2d 665 . {¶ 27} “As the Court of Appeals of New York observed in Holtzman, supra, at 192, 573 N.Y.S.2d 39 , 577 N.E.2d 30 , adopting a subjective standard ‘would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth * * *.’ The state’s interest in protecting the public, the administration of justice, and the legal profession supports applying a different standard in disciplinary proceedings.” Chmura, 461 Mich, at

2003This standard assesses an attorney’s statements in terms of “ ‘what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances’ * * * [and] focuses on whether the attorney had a reasonable factual basis for making the statements, considering their nature and the context in which they were made.” Yagman, 55 F.3d at 1437 , quoting United States Dist.

2003Grievance Commt. (1991), 502 U.S. 1009 , 112 S.Ct. 648 , 116 L.Ed.2d 665 . {¶ 27} “As the Court of Appeals of New York observed in Holtzman, supra, at 192, 573 N.Y.S.2d 39 , 577 N.E.2d 30 , adopting a subjective standard ‘would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth * * *.’ The state’s interest in protecting the public, the administration of justice, and the legal profession supports applying a different standard in disciplinary proceedings.” Chmura, 461 Mich, at

2003Similarly, in Butler v. Alabama Judicial Inquiry Comm. (Ala.2001), 802 So.2d 207 , the court modified an over-broad judicial canon by incorporating the actual-malice test for judicial campaign speech. {¶ 26} We, however, agree with the majority of courts that have addressed this issue and adopt “an objective standard to determine whether a lawyer’s statement about a judicial officer is made with knowledge or reckless disregard of its falsity.” Annotated Model Rules of Professional Conduct (4th Ed.1999) 566, Rule 8.

2003Grievance Commt. (1991), 502 U.S. 1009 , 112 S.Ct. 648 , 116 L.Ed.2d 665 . {¶ 27} “As the Court of Appeals of New York observed in Holtzman, supra, at 192, 573 N.Y.S.2d 39 , 577 N.E.2d 30 , adopting a subjective standard ‘would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth * * *.’ The state’s interest in protecting the public, the administration of justice, and the legal profession supports applying a different standard in disciplinary proceedings.” Chmura, 461 Mich, at

2003Grievance Commt. (1991), 502 U.S. 1009 , 112 S.Ct. 648 , 116 L.Ed.2d 665 . {¶ 27} “As the Court of Appeals of New York observed in Holtzman, supra, at 192, 573 N.Y.S.2d 39 , 577 N.E.2d 30 , adopting a subjective standard ‘would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth * * *.’ The state’s interest in protecting the public, the administration of justice, and the legal profession supports applying a different standard in disciplinary proceedings.” Chmura, 461 Mich, at

2003Grievance Commt. (1991), 502 U.S. 1009 , 112 S.Ct. 648 , 116 L.Ed.2d 665 . {¶ 27} “As the Court of Appeals of New York observed in Holtzman, supra, at 192, 573 N.Y.S.2d 39 , 577 N.E.2d 30 , adopting a subjective standard ‘would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth * * *.’ The state’s interest in protecting the public, the administration of justice, and the legal profession supports applying a different standard in disciplinary proceedings.” Chmura, 461 Mich, at

1995The court explained that "[t]his is only logical as a plaintiff may not avoid the protection afforded by the Constitution and federal labor law merely by the use of creative pleading." Id. at 196 . {¶ 57} In Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 187 , 644 N.E.2d 1038, 1043 , jurisdiction denied (1994), 71 Ohio St.3d 1457 , 642 N.E.2d 635 , the court of appeals held that once a qualified privilege was found to exist by virtue of the relationship of the parties, the heightened actual-malice standard must be applied to the plaintiff's tortious interference claim as well as hi

1995We hold it does. {¶ 53} In Local Lodge 1297 v. Allen (1986), 22 Ohio St.3d 228 , 22 OBR 407, 490 N.E.2d 865 , paragraph two of the syllabus, we held that "[a]lthough the National Labor Relations Act does not pre-empt a state's recognition of causes of action for intentional infliction of emotional distress or invasion of privacy, neither cause of action may be predicated on the mere use of federally protected language in the context of a labor dispute." {¶ 54} The concurring opinion in Local 1297 pointed out that the tort claims were no more than various legal theories to remedy the alleged wr

1995We hold it does. {¶ 53} In Local Lodge 1297 v. Allen (1986), 22 Ohio St.3d 228 , 22 OBR 407, 490 N.E.2d 865 , paragraph two of the syllabus, we held that "[a]lthough the National Labor Relations Act does not pre-empt a state's recognition of causes of action for intentional infliction of emotional distress or invasion of privacy, neither cause of action may be predicated on the mere use of federally protected language in the context of a labor dispute." {¶ 54} The concurring opinion in Local 1297 pointed out that the tort claims were no more than various legal theories to remedy the alleged wr

1995In Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 187 , 644 N.E.2d 1038, 1043 , jurisdiction denied (1994), 71 Ohio St.3d 1427 , 642 N.E.2d 635 , the court of appeals held that once a qualified privilege was found to exist by virtue of the relationship of the parties, the heightened actual-malice standard must be applied to the plaintiffs tortious interference claim as well as his defamation claim.

1995The court explained that "[t]his is only logical as a plaintiff may not avoid the protection afforded by the Constitution and federal labor law merely by the use of creative pleading." Id. at 196 . {¶ 57} In Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 187 , 644 N.E.2d 1038, 1043 , jurisdiction denied (1994), 71 Ohio St.3d 1457 , 642 N.E.2d 635 , the court of appeals held that once a qualified privilege was found to exist by virtue of the relationship of the parties, the heightened actual-malice standard must be applied to the plaintiff's tortious interference claim as well as hi

1994Herbert v. Lando (1979), 441 U.S. 153, 159 , 99 S.Ct. 1635, 1640 , 60 L.Ed.2d 115, 123 .

1994Herbert v. Lando (1979), 441 U.S. 153, 159 , 99 S.Ct. 1635, 1640 , 60 L.Ed.2d 115, 123 .