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Sixth Circuit Sides with The New York Times in Defamation Suit

An article in The New York Times about controversy surrounding an Ohio State University cancer researcher was not defamatory because reasonable readers would understand it was “a standard piece of investigative journalism” that presented both sides of the story, the Sixth U.S. Circuit Court of Appeals held in a July 17 decision.

The unanimous three-judge panel affirmed a federal trial court in Columbus that dismissed Dr. Carlo Croce’s defamation lawsuit against the Times. The panel held that the article was not defamatory; that the article’s discussion of errors in Croce’s research papers was substantially true; and that Croce’s related claims for false light and intentional infliction of emotional distress also failed.

The ruling solidifies legal protections for balanced news reports about controversial people and issues by recognizing that, when a report presents the positions of both sides to a conflict, reasonable members of the audience do not interpret it as damaging the reputation of the individuals involved in the dispute.

Croce had sued over a 2017 front-page Times article that examined controversy about his work to illustrate the broader issue of large institutions such as OSU having to police the alleged misconduct of rainmaker researchers. The article reported that OSU had cleared Croce of wrongdoing in at least five instances, while also discussing criticism from other researchers and mentioning the fact that several of Croce’s scientific research papers had been corrected or withdrawn.

In his appeal, Croce focused largely on the article’s headline, “Years of Ethics Charges, but Star Cancer Researcher Gets a Pass,” and its subheadline, “Dr. Carlo Croce was repeatedly cleared by Ohio State University, which reaped millions from his grants. Now, he faces new whistle-blower accusations.”  Croce argued that the phrase “gets a pass” implied that he had been guilty of scientific misconduct yet escaped punishment because of OSU’s conflict of interest.

The Sixth Circuit panel held that, in making the legal determination whether a defamation lawsuit can move forward, courts must consider the headline in context with the article as a whole to decide whether a reasonable reader would interpret it as defamatory. The court held that “a reasonable reader would construe the article as a standard piece of investigative journalism that presents newsworthy allegations made by others, with appropriate qualifying language.”

The headline, for example, could be read to imply “that Dr. Croce did not get the punishment he deserved for his alleged scientific misconduct; on the other hand, the phrase could cast the university in a negative light because the implication might be that OSU is responsible for not pursuing a vigorous enough investigation.”

The article does include criticism of and allegations of misconduct against Croce, the court noted, but it also includes his denials of wrongdoing, statements of support from a colleague, and criticism of one of his pseudonymous critics. The article is not defamatory because it presents the allegations against Dr. Croce as allegations, not conclusions, the court held.

Croce also alleged the article’s report that at least 20 of his scientific papers had been subject to corrections, editor’s notices or retractions was false and defamatory. The Sixth Circuit panel rejected that argument as well, saying the statement was substantially true because Croce admitted that “at least 12 of his papers have been subject to a correction for one reason or another, and two papers have been withdrawn.”  The court held that although Croce quibbles with the numbers, “any disparity is minor and would not change the effect on the reader.”

The panel also reiterated that Ohio follows what is known as the “innocent construction rule,” which means that if a challenged statement has more than one reasonable meaning and one of those meanings is not defamatory, the court must adopt the non-defamatory meaning and dismiss the defamation claim.  Croce’s argument that the Ohio Supreme Court had not formally adopted the rule was “not persuasive,” the court held, adding that the innocent construction rule provided an alternative basis to dismiss Croce’s claims.

Copyright © by Ballard Spahr LLP


About this Author

Jay Ward Brown, Ballard Spahr Law Firm, Washington DC, Media and Litigation Law Attorney

Jay Ward Brown has been representing news and entertainment companies for more than two decades. He has litigated libel, privacy, copyright, subpoena, and access matters in the U.S. Supreme Court, federal and state appellate courts, and trial courts around the country.

Jay has been described in Chambers USA as “a lawyer who delivers continuously high-quality service,” possesses “impeccable analysis and impressive writing skills,” and has a “friendly, approachable and attentive demeanor [that] sees clients wanting to use him exclusively...

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Michael Sullivan, Ballard Spahr Law Firm, Washington DC, Litigation and Media Law Attorney

Michael D. Sullivan has represented journalists, newspapers, syndicated columnists, production companies, networks, and news sources in high-stakes libel, privacy, entertainment, and copyright cases for more than 30 years.

Among other landmark cases, he represented columnist Jack Anderson in the successful defense of a libel suit by the self-described Liberty Lobby. Among his notable media trials, Michael served as lead trial counsel for a Minneapolis television station, obtaining a defense verdict after a six-week jury trial in a libel suit filed by a widow who claimed she had been falsely accused of murdering her husband.

Best Lawyers has reported that “Michael Sullivan is probably the best jury-trial lawyer for a media defendant bar none.” That view was echoed by The Legal 500, which has written that “clients consider him one of the best jury trial lawyers in the country.” Chambers USA has reported that clients have called Michael “a great, great lawyer.” Jack Anderson’s memoir describes him as “the soft-spoken Sullivan, a ferocious defender of the First Amendment.”

Michael has taught media law as an Adjunct Professor at the Georgetown University Law Center and the University of Maryland College of Journalism.

Michael was one of the founding attorneys of the highly regarded First Amendment boutique law firm Levine Sullivan Koch & Schulz in 1997, which merged with Ballard Spahr in October 2017.

 Matthew E. Kelly Ballard Spahr Associate DC Litigation, Media and Entertainment Law

Matthew E. Kelley advises and represents media companies, journalists, filmmakers, bloggers, and other content creators in a wide range of legal issues. His experience in state and federal courts across the country includes defending clients against defamation, privacy, and copyright claims; litigating Freedom of Information Act and other access matters; challenging subpoenas for privileged information; and other issues implicating First Amendment rights. Matt also counsels clients on legal issues involving newsgathering and intellectual property.

Before beginning his legal career,...