Reprinted with Permission from Ballard Spahr
The New York Times Building, Manhattan, New York City, USA. FLICKR/Adam Jone.

July 19, 2019

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from other researchers and mentioning the fact that several of Croce’s scientific research papers had been corrected or withdrawn.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.

Ballard attorneys Jay Ward Brown, Michael D. Sullivan and Matthew E. Kelley represented the New York Times in this case.

Attorneys in Ballard Spahr’s Media and Entertainment Law Group are dedicated to supporting the free press and the First Amendment rights of groups and individuals. The Group helps clients navigate challenging media law issues across all platforms and industries.