The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Anderson v. WBNS-TV, Inc., handed down last week by the Ohio Court of Appeals, in an opinion by Judge William Klatt joined by Judges Betsy Luper Schuster & Jennifer L. Brunner:
Jason A. Bolt, a detective with the Columbus Division of Police, prepared [and sent the media] a "Media Information" report regarding a robbery that had occurred at the Fort Rapids Indoor Waterpark on November 26, 2015. At the top of the report, Detective Bolt indicated that the individuals the police suspected of committing the robbery were "[u]nknown," and Detective Bolt did not supply any identifying information, such as sex, race, or age, regarding the suspects. In the narrative section of the report, Detective Bolt wrote:
The victims were walking in the parking lot of Fort Rapids [W]aterpark watching their eight[-]year[-]old daughter ride her "hoverboard." The suspects approached her on foot, put a gun to the eight year old[']s head and demanded her hoverboard. The suspects then ran to a white PT [C]ruiser and fled out of the parking lot.
Anyone that can help identify the persons in the attached photographs who may have been involved are asked to contact the Columbus Police Robbery Unit …. If they wish to remain anonymous[, they] can contact Central Ohio Crime Stoppers ….
Bolt attached … [a] black-and-white photograph to his report …, [which] shows three individuals—two men and one woman—entering a hotel hallway…. [T]he facial features of each individual are clearly visible….
Relying on the Media Information report, WBNS staff wrote news items for WBNS' regular "CrimeTracker 10" news feature. According to the scripts provided by WBNS, the following newscast aired on January 21, 2016, at 5:00 a.m.:
IN CRIMETRACKER 10
… [Notes:show suspect pic]
[C]olumbus Police hope you recognize these two men who robbed an 8-year-old girl at gunpoint!
It happened in the parking lot of Fort Rapids [I]ndoor [W]aterpark in [C]olumbus.[Notes:show parking lot photo]
Robbery detectives just-released surveillance images from the [N]ovember crime.
The girl was riding her hoverboard in the parking lot with her family when they say two men pointed a gun at her head, taking it.
[Notes:show suspect pic]
Columbus Police say suspects– seen here– took off in a P-T [C]ruiser.
[Similar material was aired later. -EV]
This is not a case where the police released a video or photograph of suspects committing a robbery and asked the public to identify the suspects depicted in the video or photograph. In such a case, the video or photograph itself evinces the suspects' participation in the robbery.
Here, the police provided WBNS a photograph of the individuals who "may have been involved" in the robbery that showed them merely walking in a hallway. Neither the Media Information report nor the hallway photograph established the individuals in the hallway photograph as "robbers." WBNS, nevertheless, displayed the hallway photograph while conveying the message that the individuals in the photograph—the Anderson siblings—had robbed an 8-year-old girl at gunpoint. Given that WBNS' reporting deviated from the information contained in the Media Information report, we conclude that a question of fact remains regarding whether WBNS acted reasonably to ensure the accuracy of its reporting….
WBNS does not directly contest this conclusion; instead, it asserts that it should prevail because the statements at issue are not defamatory….. WBNS essentially argues that, at most, its statements only identified the Andersons as suspects in the armed robbery of an eight-year-old girl, and no reasonable broadcaster could foresee the defamatory potential of naming someone a suspect in such a crime.
We do not agree. Robbing a child at gunpoint for the child's toy is reprehensible behavior. Consequently, publicly identifying individuals as suspects in such a crime conceivably invites public hatred, contempt, ridicule, shame, and disgrace as to those individuals. Thus, a question of fact remains regarding whether the harmful potential of WBNS' statements should have been apparent to a reasonable broadcaster.