                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 13a0316p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                X
                                                 -
 JAMES D. YOUNG,
                                                 -
                             Plaintiff-Appellee,
                                                 -
                                                 -
                                                     No. 12-3999
          v.
                                                 ,
                                                  >
                                                 -
                                                 -
 GANNETT SATELLITE INFORMATION

                        Defendant-Appellant. N-
 NETWORK, INC.,


                  Appeal from the United States District Court
                 for the Southern District of Ohio at Cincinnati.
             No. 1:10-cv-00483—Michael R. Barrett, District Judge.
                               Argued: June 19, 2013
                       Decided and Filed: October 31, 2013
              Before: SILER, MOORE, and ROGERS, Circuit Judges.

                                _________________

                                     COUNSEL
ARGUED: John C. Greiner, GRAYDON, HEAD & RITCHEY LLP, Cincinnati, Ohio,
for Appellant. Stephen E. Imm, KATZ, GREENBERGER & NORTON, LLP,
Cincinnati, Ohio, for Appellee. ON BRIEF: John C. Greiner, GRAYDON, HEAD &
RITCHEY LLP, Cincinnati, Ohio, for Appellant. Stephen E. Imm, KATZ,
GREENBERGER & NORTON, LLP, Cincinnati, Ohio, for Appellee.
    ROGERS, J., delivered the opinion of the court, in which SILER, J., joined.
MOORE, J. (pp. 10–15), delivered a separate dissenting opinion.
                                _________________

                                     OPINION
                                _________________

       ROGERS, Circuit Judge. In 1997, the Miami Township police department fired
Police Sergeant James Young for allegedly forcing sex on a woman he was said to be
involved with. However, the termination was overturned by an arbitrator. The arbitrator


                                          1
No. 12-3999        Young v. Gannett Satellite Info.                               Page 2


stated that it was unclear what happened on the day in question but that the police
department had not proven its allegations. The arbitrator’s report also mentioned that
DNA samples from the scene did not match Young and found that the complainant
lacked credibility. Thirteen years later, a Gannett newspaper published the statement
“Young had sex with a woman while on the job” in an article commenting on a local
debate about the suspension of a different police officer. Young sued Gannett for
defamation and obtained a $100,000 verdict. Gannett now appeals the judgment,
arguing that Young did not meet the high threshold for establishing a defamation claim
involving a public official. There was sufficient evidence for a jury to decide that
Gannett’s editor knew that the accusation was probably false and that the editor
published it regardless. The district court therefore properly entered judgment on the
jury’s verdict.

       In 2010, Gannett’s Milford-Miami Advertiser published an article about a
Milford, Ohio police officer named Russell Kenney. According to the article, Kenney
had sex with the city’s mayor. Although the police chief recommended termination,
Kenney received only a fifteen-day suspension. The article suggested that the city chose
suspension over termination so that it would not have to go through the arbitration
process.

       Advertiser editor Theresa Herron decided that the article needed context
explaining why the city wanted to avoid arbitration. She remembered that, twelve years
earlier, neighboring Miami Township had fired Young for allegedly having sex while
on duty but an arbitrator overturned the termination. She conducted some research on
Young’s case, examining the records of the police investigation, the arbitrator’s report,
and a state court opinion upholding the arbitrator’s decision. She then added these two
paragraphs to the article:

       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.
No. 12-3999        Young v. Gannett Satellite Info.                                Page 3


       Young sued saying the trustees violated the collective bargaining
       contract between the township and the police union. An arbitrator agreed
       with Young, but the township fought the decision. Clermont County
       Court of Common Pleas Judge Robert Ringland ruled: “While this court
       is not indicating it agrees with the arbitrator or condones the conduct
       which has occurred,” based on other similar cases he could not set aside
       the arbitrator’s decision. Young is a current employee with the Miami
       Township Police Department.

       Young’s story was more complex than the article suggested. Young and the
woman at issue, Marcey Phillips, had apparently been seeing each other since Phillips’s
relationship with one of Young’s coworkers ended. Young admitted during the police
department investigation that he had placed his hands on Phillips’s body, had hugged her
and had kissed her. He had also made jokes in the presence of fellow police employees
about alleged or desired sexual behavior with Phillips and had called Phillips from work.
However, Young denied that he ever engaged in sexual conduct with Phillips. On
February 9, 1997, the relationship went sour. It remains unclear what happened on that
day, but Phillips later accused Young of forcing her to perform oral sex on him. The
police department investigated. During the investigation, the police recovered a human
semen sample from the rug where Phillips alleged the sexual act occurred. Based on the
investigation, the police department recommended terminating Young. The local
laboratory later determined that the semen did not match Young’s DNA.

       Young’s union filed a grievance and, under the collective bargaining agreement,
an arbitrator took up the matter. The arbitrator found that both Young and Phillips
lacked credibility. The arbitrator noted that Phillips had a “well documented history of
histrionic . . . behavior that seriously undermined her credibility,” lied about being
engaged to two men, lied about being diagnosed with cancer, and lied about being
pursued or abused by other men. Turning to the events of February 9, 1997, the
arbitrator found that Phillips’s accusation of forced oral sex was not supported by the
evidence. He noted 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.”
No. 12-3999         Young v. Gannett Satellite Info.                                 Page 4


        The arbitrator concluded that “the evidence and testimony create doubts as to
whether the relationship went beyond what could be described as a private relationship
between two consenting adults” and that the township “failed to establish a nexus
between the personal conduct of [Young with Phillips] and his job.” The arbitrator
therefore ordered that Young be reinstated. However, the arbitrator also found that the
township had proven that Young had violated its rules by making inappropriate sexual
remarks regarding Phillips at work, by failing to leave Phillips’s residence immediately
upon receiving a call, and by failing to follow orders not to discuss the investigation with
others. The arbitrator ordered that Young’s termination be converted to a sixty-day
suspension and that Young be required to attend a sexual-harassment training session.

        The township appealed the arbitrator’s decision. The Clermont County Court of
Common Pleas affirmed, noting that it was “constrained by the standards of review
permitted in upholding this arbitration decision” and, accordingly, did not engage in its
own independent fact-finding.

        Thirteen years after the alleged incident occurred, Young saw the Advertiser
article and sued Gannett for defamation. The district court denied Gannett’s motion for
summary judgment. The case was presented to a jury, and the jury was instructed that
to find for Young, they must “find by clear and convincing evidence . . . that . . .
[Gannett] acted with actual malice.” The court explained to the jury that actual malice
“occurs when the defendant makes a false statement either with the knowledge that it
was false or with reckless disregard of whether or not it was false.” Furthermore, the
court instructed the jury that “[i]n the case of an ambiguous document, the adoption of
a rational interpretation, though arguably reflecting a misconception, does not constitute
actual malice.”     The jury found Gannett liable, awarding Young $100,000 in
compensatory damages. Gannett moved for judgment as a matter of law, but the district
court denied that motion as well.

        Gannett now appeals, raising two arguments. First, Gannett argues that Young
failed to establish actual malice because the statement at issue was based on a rational
No. 12-3999           Young v. Gannett Satellite Info.                                       Page 5


interpretation of an ambiguous document. Second, Gannett argues that the Young failed
to prove harm to his reputation. Neither argument has merit.

          The Advertiser’s editor, Herron, reviewed the arbitrator’s report. She therefore
knew that there was no evidence that Young had forced sex on Phillips and that it was
unclear whether they had ever had sex at all. In the definitive Supreme Court case
regarding the sufficiency of a jury verdict finding actual malice in the press coverage of
a public figure, the Supreme Court explained the standard to be applied by the jury:

          If a false and defamatory statement is published with knowledge of
          falsity or a reckless disregard for the truth, the public figure may prevail.
          A “reckless disregard” for the truth, however, requires more than a
          departure from reasonably prudent conduct. “There must be sufficient
          evidence to permit the conclusion that the defendant in fact entertained
          serious doubts as to the truth of his publication.” The standard is a
          subjective one—there must be sufficient evidence to permit the
          conclusion that the defendant actually had a “high degree of awareness
          of . . . probable falsity.” . . . In a case such as this involving the reporting
          of a third party’s allegations, “recklessness may be found where there are
          obvious reasons to doubt the veracity of the informant or the accuracy of
          his reports.”

Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 688 (1989) (citations
omitted). 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 jury could have properly relied upon the inclusion in the arbitrator’s report
of several statements that Herron should have seen as red flags. First, the report noted
that the semen found on Phillips’s carpet did not match Young’s DNA. Second, the
report cast serious doubts on Phillips’s credibility. Third, it mentioned only a single
incident that occurred while Young was on duty. As to that incident, the arbitrator noted
that Phillips’s accusation that Young forced her to perform oral sex “is not supported by
the evidence” and that “[t]he lack of truthfulness by both parties . . . prevents any
No. 12-3999            Young v. Gannett Satellite Info.                                           Page 6


reasonable assessment of what happened.” Finally, the arbitrator concluded that, even
if Young and Phillips did have a sexual relationship, the police department “failed to
establish a nexus between the personal conduct [of Young involving Phillips] and his
job.”

         Armed with that knowledge, Herron nevertheless published the statement
“Young had sex with a woman while on the job” as if it were fact. This is reckless
disregard of the truth at best, and is sufficient for the jury to have found that Gannett
published the statement with actual malice. 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.1

         Herron was also reckless in failing to conduct any investigation beyond the
records of the original case. She did not seek out Young for comment, nor did she talk
to anyone involved in his case, even though the arbitrator’s report provided obvious
reasons to doubt the veracity of Phillips’s complaints and the police investigation. When
Herron found no definitive statement in the arbitrator’s report that Young had sex with
Phillips at any time, she should have investigated further. As the Supreme Court
explained in Harte-Hanks, “[a]lthough failure to investigate will not alone support a
finding of actual malice, the purposeful avoidance of the truth is in a different category.”
491 U.S. at 692 (citation omitted). Gannett argues that the arbitrator’s statement that
“the truth is somewhere in the middle” is such a definitive statement. However, 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.
Since the administrator’s report does not say anything about Young’s having sex while
on duty, this is a situation much like that in Harte-Hanks, where “it is likely that the




         1
          The Supreme Court has explained that “a newspaper’s motive in publishing a story . . . cannot
provide a sufficient basis for finding actual malice.” Harte-Hanks, 491 U.S. at 665. We do not rely on
Gannett’s desire to make Young’s story fit Kenney’s to find actual malice. It is, however, “circumstantial
evidence which, when combined with other evidence, may amount to malice.” See Perk v. Reader’s Digest
Ass’n, Inc., 931 F.2d 408, 411 (6th Cir. 1991). Furthermore, it provides context to the otherwise
inexplicable decision to rewrite the story of an event long forgotten.
No. 12-3999        Young v. Gannett Satellite Info.                                Page 7


newspaper’s inaction was a product of a deliberate decision not to acquire knowledge
of facts that might confirm the probably falsity of [the] charges.” Id.

       The jury reviewed the same reports that Herron did, and determined that the
statement “Young had sex with a woman while on the job” was false. The jury was also
instructed that “the adoption of a rational interpretation [of an ambiguous document],
though arguably reflecting a misconception, does not constitute actual malice.” Since
the jury found that Gannett exhibited actual malice, it must also have concluded either
that the arbitrator’s report was not an ambiguous document or that Herron’s
interpretation was not rational.

       These conclusions of basic fact are subject to some deference in the context of
this particular case, notwithstanding that the First Amendment requires that we conduct
an independent review to “decide whether the evidence in the record is sufficient to cross
the constitutional threshold that bars the entry of any judgment that is not supported by
clear and convincing proof of ‘actual malice.’” Bose Corp. v. Consumers Union of U.S.,
Inc., 466 U.S. 485, 510–11 (1984). As the Supreme Court cautioned in Harte-Hanks,
“only through the course of case-by-case adjudication can we give content to these
otherwise elusive constitutional standards.” 491 U.S. at 686. The Supreme Court in
Harte-Hanks upheld a jury finding of actual malice even though the case involved a
story about the qualifications of a candidate in an election. The Supreme Court
acknowledged that such a situation presents “probably the strongest possible case for
application of the New York Times rule, and the strongest possible case for independent
review.” Id. at 686–87 (internal quotation marks and citation omitted). In contrast, this
case, while still requiring independent review to ensure that the actual malice standard
has been met, presents a stronger case for deferring to the jury’s findings. This was a
personnel matter involving the alleged actions of one officer in a non-leadership position
over a decade in the past. Young did not enter the political arena, and knowledge of
what someone alleged he had done thirteen years before the story was not necessary for
members of the electorate to exercise their constitutional rights. Thus, while we must
make an independent determination regarding whether there is sufficient evidence of the
No. 12-3999        Young v. Gannett Satellite Info.                               Page 8


existence of actual malice, we can properly defer to the jury on historical facts,
credibility determinations, and elements of statutory liability. See United States v.
Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002). Indeed, the Supreme Court relied on such
jury-found facts in reaching its decision in Harte-Hanks. See 491 U.S. at 690–91.

       Moreover, had Young not conceded the issue it would not even be clear that
actual malice is the proper standard to apply in this case. Gannett cites the Ohio
Supreme Court case of Soke v. Plain Dealer, 632 N.E.2d 1282, 1283 (Ohio 1994), which
held that police officers are public officials for defamation purposes. However, Soke
may have misinterpreted federal law on the issue. Soke noted that the “United States
Supreme Court has repeatedly recognized that police officers are public officials,” and
cited New York Times Co. v. Sullivan, 376 U.S. 254 (1964), Henry v. Collins, 380 U.S.
356 (1965), St. Amant v. Thompson, 390 U.S. 727 (1968), and Time, Inc. v. Pape, 401
U.S. 279 (1971), as authority. However, none of those cases involved officers in
Young’s position. New York Times Co. v. Sullivan involved a city police commissioner,
an elected position. 376 U.S. at 256. Henry v. Collins involved the chief of police.
380 U.S. at 356. In St. Amant, the Court “accept[ed] the determinations of the Louisiana
courts . . . that Thompson was a public official.” 390 U.S. at 730. The Louisiana
Supreme Court had concluded that Thompson was a public official because he had
“substantial responsibility for or control over the conduct of governmental affairs.” Id.
at 730 n.2 (quoting Thompson v. St. Amant, 196 So.2d 255, 261 (La. 1967)). Finally,
Pape involved the Chicago Deputy Chief of Detectives. 401 U.S. at 280–81. All of
these police officers had key public leadership positions. Young did not. Of course,
because Young does not argue that a different standard should apply in this case, we
apply the actual malice standard, without deciding whether it is necessarily the proper
standard to apply to a rank-and-file police officer.

       The evidence in this case is sufficient to cross the constitutional threshold. The
arbitrator’s report did not even consider whether Young had sex with Phillips while on
duty. The report only mentioned one instance where Young was at Phillips’s house
while on duty. Semen found on Phillips’s rug on that day did not match Young’s DNA.
No. 12-3999         Young v. Gannett Satellite Info.                                  Page 9


The arbitrator also found that Phillips’s story about what happened on that date was not
credible. The jury could find that Herron’s interpretation of the arbitrator’s report to say
that Young and Phllips had sex that day was irrational.

        Gannett argues in the alternative that Young failed to prove that he suffered any
harm to his reputation and that, therefore, he failed to prove defamation. The publisher
bases this argument on the unsupported statement that “[h]arm to reputation is an
element of the tort.”

        Gannett misstates Ohio law. The injury element to a defamation claim in Ohio
only requires “that the plaintiff suffered injury as a proximate result of the publication.”
Am. Chem. Soc’y v. Leadscope, Inc., 978 N.E.2d 832, 852 (Ohio 2012). Harm to a
person’s reputation is just one possible injury; it is not a required element of the tort.
Pain, suffering, anguish, humiliation, and embarrassment are personal harms that do not
necessarily require others to change their views of the plaintiff, but are sufficient to meet
the injury element of a defamation action. See Gilbert v. WNIR 100 FM, 756 N.E.2d
1263, 1277 (Ohio Ct. App. 2001). Although Young may not have shown harm to his
reputation, he presented evidence of emotional harm. 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.

        There was sufficient evidence in this case for the jury to conclude that Gannett’s
employees knew that the statement “Young had sex with a woman while on the job” was
probably false, but nonetheless failed to research further and published it. The jury
could accordingly find actual malice. The district court’s judgment is therefore affirmed.
No. 12-3999        Young v. Gannett Satellite Info.                               Page 10


                                   _______________

                                      DISSENT
                                   _______________

       KAREN NELSON MOORE, Circuit Judge, dissenting. An arbitrator determined
that on February 9, 1997, Police Sergeant James Young visited Marcey Phillips, a
woman with whom he was having a consensual adult relationship, while on duty as a
police officer. In his report, the arbitrator explored what might have occurred during that
visit, but could not reach a conclusive determination given the total lack of credibility
of both Young and Phillips. Thirteen years after this alleged incident, Theresa Herron
relied on the details in the arbitrator’s report when she edited a story in the Milford-
Miami Advertiser and inserted two paragraphs that included the sentence “Young had
sex with a woman while on the job.” Because I believe that Herron’s statement reflects
a rational interpretation of the contents of the arbitrator’s report, an ambiguous
document, and that upon de novo review there was insufficient evidence in the record
to support a conclusion otherwise, I would hold that Herron did not act with actual
malice as a matter of law. I therefore respectfully dissent.

       As an initial matter, I disagree with the standard of review set forth by the
majority. When a jury reaches a verdict in favor of a plaintiff on a defamation claim, we
“have a constitutional duty to exercise independent judgment and determine whether the
record establishes actual malice with convincing clarity.” Harte-Hanks Commc’ns, Inc.
v. Connaughton, 491 U.S. 657, 659 (1989). The Supreme Court has explained that use
of the de novo standard is based “on the unique character of the interest protected by the
actual malice standard.” Id. at 685–86. “Our profound national commitment to the free
exchange of ideas, as enshrined in the First Amendment, demands that the law of libel
carve out an area of breathing space so that protected speech is not discouraged.” Id. at
686 (internal quotation marks omitted). I therefore cannot agree with the majority’s
decision to hedge this de novo review by making the unsupported contention that this
type of case requires greater deference to the jury’s findings than the type examined in
No. 12-3999         Young v. Gannett Satellite Info.                               Page 11


Harte-Hanks. Maj. Op. at 8. The Supreme Court has imposed no such limitations, nor
can any be inferred from its unmitigated defense of independent review.

        Because “[t]his value must be protected with special vigilance,” the Supreme
Court demands much of a plaintiff who seeks to show actual malice. Harte-Hanks,
491 U.S. at 687. The Court has explained that “[a]ctual malice . . . requires at a
minimum that the statements were made with a reckless disregard for the truth. And
although the concept of reckless disregard cannot be fully encompassed in one infallible
definition, we have made clear that the defendant must have made the false publication
with a high degree of awareness of probable falsity, or must have entertained serious
doubts as to the truth of his publication.” Id. at 667 (internal citations, quotation marks,
and alteration omitted). In other words, this is a subjective standard. For example,
“failure to investigate before publishing, even when a reasonably prudent person would
have done so, is not sufficient to establish reckless disregard.” Id. at 688.

        The district court chose to instruct the jury on the issue of actual malice based
in part on language in Time, Inc. v. Pape, 401 U.S. 279 (1971). Specifically, the district
court instructed the jury that “the adoption of a rational interpretation [of an ambiguous
document], though arguably reflecting a misconception, does not constitute actual
malice.” The Pape Court discussed this issue as follows: “Time’s omission of the word
‘alleged’ amounted to the adoption of one of a number of possible rational
interpretations of a document that bristled with ambiguities. The deliberate choice of
such an interpretation, though arguably reflecting a misconception, was not enough to
create a jury issue of ‘malice’ under New York Times.” 401 U.S. at 290. The issue we
must resolve, then, is whether Herron’s assertion that “Young had sex with a woman
while on the job” was a rational interpretation of an ambiguous document.

        The document at issue, the arbitrator’s report, is undoubtedly ambiguous as to
the question of whether “Young had sex with a woman while on the job,” as the
arbitrator was not responsible for, and therefore did not make, an express determination
on that issue. Rather, the arbitrator was tasked with determining whether Young
engaged in “sexual harassment that rise[s] to the level of rape” and “Neglect of Duty,”
No. 12-3999         Young v. Gannett Satellite Info.                               Page 12


among other things. R. 52-4 (Arbitrator Report at 11, 20) (Page ID #2152, 2161).
Because there is no direct resolution of whether Young had sex with Phillips that night
while he was on duty, the document is ambiguous.

        Nonetheless, the arbitrator did make certain findings that can inform our analysis
on the rational-interpretation issue. With respect to the rape charge, for example, the
arbitrator concluded that because both Phillips and Young were not credible, the
Employer has failed “to prove beyond a reasonable doubt that Mr. Young engaged in
sexual behavior that was uninvited and unwanted by Ms. Phillips.” Id. at 18 (Page ID
#2159); see also id. at 16 (Page ID #2157) (“The lack of truthfulness by both parties in
this matter prevents any reasonable assessment of what happened on February 9th.”).
In reaching this conclusion, the arbitrator noted that “the evidence and testimony create
doubts as to whether the relationship went beyond what could be described as a private
relationship between two consenting adults.” Id. at 18–19 (Page ID #2159–60). In other
parts of his report, the arbitrator asserted that he “do[es] not doubt that [Phillips’s son]
saw physical touching between his mother and Mr. Young” and again that “[t]he
evidence and testimony more plausibly support a consenting relationship between Mr.
Young and Ms. Phillips.” Id. at 15, 17 (Page ID #2156, 2158) I believe that a rational
inference gleaned from these statements is that Phillips and Young had a relationship
that was sexual in nature during the time period in issue.

        Importantly, the arbitrator also determined that Young was in neglect of duty on
the night in question. In fact, he concluded that Young was in neglect of duty because
he was at Phillips’s residence: “[o]n February 9, 1997 he did not leave the residence of
Marcey Phillips immediately upon receiving a call.” Id. at 20 (Page ID #2161). The
arbitrator also noted that this was not the first time that Young had been at Phillips’s
apartment; he had “stopped by Ms. Phillips’ apartment on 6 or 7 occasions between
January 12, 1997 and February 9, 1997.” Id. at 4 (Page ID #2145). The arbitrator went
into considerable detail as well regarding the evolution of their relationship, explaining
that this relationship seemingly began after Phillips had ended a relationship with
No. 12-3999         Young v. Gannett Satellite Info.                                Page 13


another man, and “was seeking solace and possibly more.” Id. at 15 (Page ID #2156).
According to the report, “Mr. Young offered that solace and possibly more.” Id.

        The totality of the statements made in this report lend 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 Phillips were engaged in a weeks-long relationship of a sexual
nature and it was expressly found that Young had been at Phillips’s house while on duty
during that time period. 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. In other words, I believe that Herron’s statement
“amounted to the adoption of one of a number of possible rational interpretations of a
document that bristled with ambiguities.” Pape, 401 U.S. at 290. “The deliberate choice
of such an interpretation, though arguably reflecting a misconception, was not enough”
to support a finding of actual malice. Id. Although Herron’s statement certainly did not
reflect a careful parsing of the nuances present in this messy case, it was not an irrational
interpretation of the arbitrator’s report.

        The majority asserts that “while we must make an independent determination
regarding whether there is sufficient evidence of the existence of actual malice, we can
properly defer to the jury on historical facts, credibility determinations, and elements of
statutory liability.” Maj. Op. at 7–8. It fails to make such an independent determination.
Rather, the majority relies on the jury potentially finding that Herron’s interpretation of
the arbitrator’s report was irrational, id. at 9, but Harte-Hanks cautions against precisely
this type of reliance. Harte-Hanks unequivocally holds that the court must “make an
independent de novo review of the entire record.” Harte-Hanks, 491 U.S. at 664. The
majority’s deference to the jury regarding whether Herron’s interpretation of the report
was rational “incorrectly relied on subsidiary facts implicitly established by the jury’s
verdict instead of drawing its own inferences from the evidence.” Id. I therefore cannot
agree with either the majority’s reliance on the jury’s finding or with the majority’s
conclusion.
No. 12-3999         Young v. Gannett Satellite Info.                                Page 14


        Furthermore, without providing any legal support for its position, the majority
opinion argues that it is “not . . . clear that actual malice is the proper standard to apply
in this case.” Maj. Op. at 8. The majority acknowledges that the Ohio Supreme Court
in Soke v. The Plain Dealer, 632 N.E.2d 1282, 1283 (Ohio 1994), has “held that police
officers are public officials for defamation purposes.” Maj. Op. at 8. Despite the highest
court of the state clearly holding that police officers are public officials for purposes of
state defamation law, the majority questions whether such should be the case. The only
justification advanced for questioning whether a rank-and-file police officer such as
Sergeant Young is a public official for defamation purposes is that the Ohio Supreme
Court “may have misinterpreted federal law on the issue,” id., in finding a detective,
“being a police officer, is a public official,” Soke, 632 N.E.2d at 1284.

        The Ohio Supreme Court, however, is not alone in its interpretation of federal
precedent. The First Circuit has confirmed that a police officer serving as a resource
officer at a middle school is a public official under Massachusetts law. Dixon v. Int’l
Bhd. of Police Officers, 504 F.3d 73, 88 (1st Cir. 2007). The Third Circuit held that a
rookie patrol officer is a public official. Coughlin v. Westinghouse Broad. & Cable Inc.,
780 F.2d 340, 342 (3d Cir. 1986). The Fifth Circuit concluded that a patrol officer is a
public official. McKinley v. Baden, 777 F.2d 1017, 1021 (5th Cir. 1985). The Seventh
Circuit held that federal law-enforcement agents are public officials. Meiners v.
Moriarity, 563 F.2d 343, 352 (7th Cir. 1977). The Eighth Circuit acknowledged that a
police officer patrolling a demonstration was a public official for defamation purposes.
Speer v. Ottaway Newspapers, 828 F.2d 475, 476 (8th Cir. 1987). The Ninth Circuit
found that a city police officer was a public official requiring proof of actual malice in
a defamation case. Rattray v. City of Nat’l City, 36 F.3d 1480, 1486 (9th Cir. 1994).
Finally, in a widely cited opinion, the Tenth Circuit held that the chief investigator for
the county attorney was a public figure in pressing his defamation claim regarding his
alleged acts when he was a “normal street patrolman.” Gray v. Udevitz, 656 F.2d 588,
591 (10th Cir. 1981). I have been unable to find a circuit court holding to the contrary.
No. 12-3999         Young v. Gannett Satellite Info.                                Page 15


        The overwhelming and entirely one-sided decisions by our sister circuits leave
no doubt that police officers are public officials for defamation purposes. Courts have
uniformly applied the actual malice standard to police officers because there is a strong
societal interest in protecting expression that criticizes law enforcement officers.
Meiners, 563 F.2d at 352 (“The public is certainly interested in an important and special
way in the qualifications and performance of federal agents . . . whose decisions to
search and to arrest directly and personally affect individual freedoms.”). As a polity,
we grant police officers extraordinary power: to arrest suspects curtailing citizens’
liberty, to search private areas invading individual privacy, and, when the circumstances
require it, even to use deadly force. In light of this extraordinary power, criticism of
police officers in the performance, or lack thereof, of their duties, ought receive the full
protection of the First Amendment whether those officers are the chiefs of police,
captains, detectives, or rank-and-file officers walking a beat. Gray, 656 F.2d at 591
(“The cop on the beat . . . . possesses both the authority and the ability to exercise force.
Misuse of his authority can result in significant deprivation of constitutional rights and
personal freedoms . . . . The strong public interest in ensuring open discussion and
criticism of his qualifications and job performance warrant[s] the conclusion that he is
a public official.”).

        Given the clear holding of the highest court of Ohio that police officers are public
figures under its defamation law, confirmed by the uniform conclusions of our sister
circuits and supported by strong policy rationales, I am left with no doubt that Sergeant
Young’s defamation claim, even though he is a rank-and-file police officer, is subject
to the actual malice standard.

        For these reasons, I respectfully dissent.
