McKimm v. Ohio Elections Commission

[This opinion has been published in Ohio Official Reports at 

89 Ohio St.3d 139

.]




     MCKIMM, APPELLEE, v. OHIO ELECTIONS COMMISSION, APPELLANT.
           [Cite as McKimm v. Ohio Elections Comm., 

2000-Ohio-118

.]
Elections—Distribution of campaign brochure containing an illustration and text
        that imply that candidate’s opponent committed an illegal act—Ohio
        Elections Commission may find violation of R.C. 3517.21(B)(10), when.
When a candidate for public office distributes a campaign brochure containing an
        illustration and accompanying text that imply to the reasonable reader that
        the candidate’s opponent committed an illegal act while in office, and the
        candidate lacks any basis to believe that the opponent committed the act
        depicted in the brochure, the Ohio Elections Commission may
        constitutionally determine that the candidate violated R.C. 3517.21(B)(10).
       (No. 99-305—Submitted January 25, 2000—Decided June 14, 2000.)
      APPEAL from the Court of Appeals for Franklin County, No. 98AP-304.
                                  __________________
        {¶ 1} In the November 1995 election for Jackson Township Trustee, Dan
McKimm challenged the incumbent candidate, Randy Gonzalez. McKimm won
the election. A few days before the voting took place, McKimm had mailed a
campaign brochure to township voters. A full page of McKimm’s brochure
consisted of “[a] multiple-choice Jackson quiz to help you select the best
candidate.” The quiz contained eighteen multiple-choice questions, and several of
these were accompanied by small, cartoon-like illustrations. McKimm suggested
the “correct” answers to the questions by indicating them in bold print. Most of
McKimm’s questions mentioned Gonzalez by name and discussed Gonzalez’s
actions during his tenure as trustee. At the top of the page, the brochure indicated
to township voters that “[r]esearch documentation” was available and provided the
telephone number of McKimm’s campaign chairman.
                            SUPREME COURT OF OHIO




       {¶ 2} After reading the brochure, Gonzalez filed a complaint with the Ohio
Elections Commission, alleging that McKimm violated Ohio’s election laws by
disseminating several of the statements included in the brochure. Specifically,
Gonzalez alleged that McKimm violated R.C. 3517.21, which provides:
       “(B) No person, during the course of any campaign for nomination or
election to public office or office of a political party, by means of campaign
materials, * * * shall knowingly and with intent to affect the outcome of such
campaign do any of the following:
       “***
       “(10) Post, publish, circulate, distribute, or otherwise disseminate a false
statement concerning a candidate, either knowing the same to be false or with
reckless disregard of whether it was false or not, if the statement is designed to
promote the election, nomination, or defeat of the candidate.”
       {¶ 3} Question No. 7 and its accompanying illustration were among the
items Gonzalez challenged in his affidavit. Question No. 7 read as follows:
       “7. Which of the following is true?
       “A. Trustees have a policy of bidding all contracts greater than $10,000.
       “B. Randy Gonzalez ignored bidding policy. He voted to contract an
architect for $51,000 to design the Social Hall (pavilion) without taking bids.
       “C. This one is tricky. Both A and B are true.” (Emphasis sic.)
       {¶ 4} An illustration accompanied the text of Question No. 7. In the
drawing, a human hand extends toward the reader from underneath the corner of a
table. The hand holds a bundle of cash, and small lines drawn around the bundle
give the reader the impression of motion—as if the hand is waving the cash back
and forth underneath the table. For the convenience of the reader, we have
appended a reproduction of Question No. 7 and its accompanying illustration to the
end of this opinion, as well as a reproduction of the “quiz” page of McKimm’s
brochure.


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                                January Term, 2000




       {¶ 5} In his affidavit to the commission, Gonzalez alleged that Question No.
7 “indicates by representation that [Gonzalez] accepted money under the table, or
solicited a bribe or kickback in return for awarding the contract referred to.”
Gonzalez denied that he ever received, solicited, or encouraged a bribe in relation
to the contract.   In a written response, McKimm disagreed with Gonzalez’s
characterization of the illustration. McKimm maintained that “[t]he drawing
included with Item No. 7 of the Circular depicts my personal belief that the decision
of complainant Gonzalez to disregard the Board’s own policy * * * and to instead
award a contract to a contractor on the basis of personal preference, and
unsubstantiated ‘freebies,’ * * * is fairly characterized as underhanded, less than
open, and hidden beneath the table of secrecy if you will.”
       {¶ 6} At a hearing before the Elections Commission, McKimm conceded
that he distributed the brochure intending to affect the outcome of the campaign
and to promote his candidacy. When Gonzalez’s attorney asked McKimm why he
included illustrations in the brochure, McKimm testified that he intended the
drawings “to lend, if you will, substance or credibility to the [adjacent] text.”
       {¶ 7} When the parties turned specifically to Question No. 7 and its
accompanying illustration, McKimm initially argued that the drawing did not
actually depict a hand waving money under the table. He testified that the hand
was drawn either behind or to the side of the table. Nevertheless, McKimm
answered affirmatively when Gonzalez’s attorney asked him to refer to the exhibit
depicting “the money under the table.” And Commissioner Duncan stated on the
record that the drawing “clearly” depicted a hand waving cash underneath the table.
       {¶ 8} McKimm conceded that he had heard of the phrase “passing money
under the table,” while denying that he intended the cartoon to suggest that
Gonzalez had taken a bribe. When asked if he had any evidence that Gonzalez had
ever taken a bribe during his tenure as trustee, McKimm replied, “No, sir.”


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       {¶ 9} For his part, Gonzalez testified that his vote on the unbid construction
contract was a legal action that occurred at a public meeting.
       {¶ 10} Commissioner Webster urged the commission to find that
McKimm’s brochure “in its totality,” and by clear and convincing evidence,
violated Ohio’s election laws, and his motion passed by a vote of five to two.
Though the commission declined to refer the matter to a prosecutor, the commission
issued a reprimand letter. The two commissioners who voted against the motion
described the cartoon as “sleazy” and “offensive,” but concluded that all of the
challenged statements in the brochure were protected by the First Amendment.
       {¶ 11} McKimm appealed the commission’s order to the Franklin County
Court of Common Pleas. The common pleas court affirmed the commission’s
order, but only insofar as the illustration accompanying Question No. 7 was
concerned. The court determined that the constitutional guarantees of free speech
protected the text of Question No. 7 and the other items that Gonzalez had
challenged. As for the cash-under-the-table cartoon, however, the court agreed
with the commission that the hand-under-the-table drawing carried the “clear and
obvious implication that [Gonzalez], in voting to violate township policy, received
money—under the table—in return.” According to the trial court, the cash-under-
the-table drawing suggested that Gonzalez had taken “money under the table to
award a contract without competitive bidding and therefore was guilty of bribery,”
even though “no evidence exists to support” that implication.
       {¶ 12} McKimm appealed the decision to the Franklin County Court of
Appeals, and that court reversed the decision of the trial court. The appellate court
decided that “the evidence in the record is insufficient to establish by convincing
clarity that [McKimm] published the illustration accompanying question No. 7 with
knowledge that it was false or in reckless disregard of its falsity.”
       {¶ 13} The cause is now before this court upon the allowance of a
discretionary appeal.


                                          4
                                 January Term, 2000




                               __________________
       Betty D. Montgomery, Attorney General, Edward B. Foley, State Solicitor,
and David M. Gormley, Associate Solicitor, for appellant.
       Daniel J. McGown, for appellee.
                               __________________
       COOK, J.
       {¶ 14} The cartoon drawing at the heart of this case presents this court with
an opportunity to clarify the relationship between Ohio’s election laws and the
constitutional guarantees of free speech. The General Assembly empowered the
Ohio Elections Commission to investigate allegations regarding the dissemination
of false and misleading statements by candidates for public office in Ohio, and to
take appropriate action when it concludes that a violation has occurred. The
commission may exercise its authority, however, only when that authority does not
clash with the freedoms of speech and press independently recognized by the
United States and Ohio Constitutions.
       {¶ 15} The trial court determined that the commission properly
reprimanded Dan McKimm for publishing the illustration contained in his
campaign brochure.       But the court of appeals reversed, holding that the
commission’s order violated the First Amendment to the United States
Constitution. Because we determine that the court of appeals erred in its analysis
of the constitutional issues in this case, we reverse.
                       The Elements of R.C. 3517.21(B)(10)
       {¶ 16} At the commission hearing, McKimm conceded that he distributed
the brochure intending to affect the outcome of the campaign and to promote his
candidacy. All that remained for the commission to determine, therefore, was
whether McKimm disseminated (1) a false statement about his opponent, (2)




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                                   SUPREME COURT OF OHIO




“knowing the same to be false or with reckless disregard of whether it was false or
not.” R.C. 3517.21(B)(10).1
         {¶ 17} The court of appeals reversed the decision of the trial court on the
basis of the second element (termed “actual malice”), holding that the record did
not contain clear and convincing evidence that McKimm distributed the cartoon
with actual malice. Because we analyze the evidentiary requirements differently
than the court of appeals, we conclude that the evidence supports the commission’s
findings regarding both elements.
         {¶ 18} In Part A, below, we agree with the trial court that, to the reasonable
reader, McKimm’s cartoon constitutes a false statement of fact: that Gonzalez
accepted a bribe or received an illegal kickback when he voted to award the unbid
contract. In Part B, we conclude that, since there was sufficient evidence for the
Elections Commission to draw the reasonable inference that McKimm intended to
convey the very message that he did convey about Gonzalez’s “crime,” and since
McKimm admitted that he had no basis to believe that Gonzalez committed bribery
during his tenure as trustee, McKimm disseminated the brochure containing this
reasonable connotation of bribery with actual malice.
 A. McKimm’s Money-Under-the-Table Cartoon: To the Reasonable Reader, a
                   False Statement that Gonzalez Committed Bribery



1. The commission must apply a standard of clear and convincing evidence with respect to findings
under R.C. 3517.21. R.C. 3517.155(D). Former R.C. 3599.091, which also forbade falsehoods in
election campaigns (subsection [B]), permitted the commission to impose fines and issue cease-and-
desist orders under a lesser preponderance standard (subsection [C]), but the Sixth Circuit held these
enforcement methods unconstitutional, since the United States Supreme Court had determined that
“no punishment may be levied in areas trenching on the first amendment involving public figures
without ‘clear and convincing evidence.’ ” Pestrak v. Ohio Elections Comm. (C.A.6, 1991), 

926 F.2d 573

, 578, citing New York Times Co. v. Sullivan (1964), 

376 U.S. 254, 285-286

, 

84 S.Ct. 710, 728-729

, 

11 L.Ed.2d 686, 709-710

.




                                                  6
                                January Term, 2000




       {¶ 19} The common pleas court determined that the illustration
accompanying Question No. 7 made “a clear and obvious implication that
[Gonzalez], in voting to violate township policy, received money—under the
table—in return.” We agree. Under both the United States and Ohio Constitutions,
courts assess the meaning of an allegedly libelous statement under an objective
standard—that of the reasonable reader. Milkovich v. Lorain Journal Co. (1990),

497 U.S. 1, 21

, 

110 S.Ct. 2695, 2707

, 

111 L.Ed.2d 1, 19

; Vail v. Plain Dealer
Publishing Co. (1995), 

72 Ohio St.3d 279, 282

, 

649 N.E.2d 182, 186

.
       1. The United States Supreme Court’s Reasonable-Reader Standard
       {¶ 20} In Milkovich v. Lorain Journal Co., the United States Supreme Court
applied an objective standard to assess the meaning of allegedly libelous statements
in a newspaper column concerning a high school wrestling coach’s testimony
before a common pleas court. (1990), 

497 U.S. at 21

, 

110 S.Ct. at 2707

, 

111 L.Ed.2d at 19

. The title of the column stated that the high school “beat the law with
the ‘big lie.’ ” Other statements in the column suggested that lies were told during
the proceedings, such as the phrase, “If you get in a jam, lie your way out.” The
coach sued the newspaper and columnist, alleging that these and other statements
in the column in effect accused him of committing the crime of perjury.
       {¶ 21} On appeal, the United States Supreme Court determined that “[t]he
dispositive question * * * becomes whether a reasonable factfinder could conclude
that the statements in the * * * column imply an assertion that petitioner Milkovich
perjured himself in a judicial proceeding.” (Emphasis added.) 

Id.,

497 U.S. at 21

,

110 S.Ct. at 2707

, 

111 L.Ed.2d at 19

. The Supreme Court concluded that the
average reader of the column would be left with just such an impression—that the
wrestling coach perjured himself in order to avoid the athletic association’s orders
against his team. 

Id.

 To reach this conclusion, the Supreme Court did not consider
the columnist’s subjective interpretation of the statements in his column. Rather,


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the court assessed the “clear impact,” “general tenor,” and “impression” created by
the statements in the column. 

Id.

       {¶ 22} Just after deciding Milkovich, the United States Supreme Court again
applied an objective, reasonable-reader standard. See Masson v. New Yorker
Magazine, Inc. (1991), 

501 U.S. 496

, 

111 S.Ct. 2419

, 

115 L.Ed.2d 447

. In Masson,
the court considered whether quotations in a magazine, attributed to a noted
psychoanalyst, were verbatim reports of statements that the psychoanalyst actually
made or were “nonliteral * * * reconstructions” of Masson’s statements. 

Id.,

501 U.S. at 513

, 

111 S.Ct. at 2431

, 

115 L.Ed.2d at 470

. Because the publisher or author
failed to warn the reader that the quotations might not be verbatim, and because the
magazine had a reputation for “scrupulous factual accuracy,” the Supreme Court
concluded that “the reasonable reader would understand the quotations to be nearly
verbatim reports of statements made by the subject.” (Emphasis added.) 

Id.

 Taken
together, Milkovich and Masson stand for the proposition that, under the United
States Constitution, courts assess the meaning of an allegedly libelous statement
from the perspective of the reasonable reader—not from the perspective of the
publisher of the statement.
                     2. Ohio’s Reasonable-Reader Standard
       {¶ 23} Even though this court responded to Milkovich by holding that the
Ohio Constitution provides a separate and independent guarantee of protection for
opinions, we still assess “the common meaning ascribed to the words by an ordinary
reader” in order to determine whether an allegedly libelous statement is a false
statement of fact. Vail v. Plain Dealer Publishing Co. (1995), 

72 Ohio St.3d 279, 282

, 

649 N.E.2d 182, 186

; In re Harper (1996), 

77 Ohio St.3d 211, 228

, 

673 N.E.2d 1253, 1267

. All four factors of Ohio’s test for distinguishing a statement of fact
from an opinion depend on the reasonable reader’s perception of the statement—
not on the perception of the publisher. 

Vail, supra,

72 Ohio St.3d at 282-283

, 649



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                                      January Term, 2000




N.E.2d at 185-186; Scott v. News-Herald (1986), 

25 Ohio St.3d 243, 251-253

, 25
OBR 302, 309-311, 

496 N.E.2d 699, 707-708

.2
         {¶ 24} As Milkovich, Masson, Vail, and Harper demonstrate, then, the law
charges the author of an allegedly defamatory statement with the meaning that the
reasonable reader attaches to that statement. See, also, 3 Restatement of the Law
2d, Torts (1977), Section 563 (“The meaning of a communication is that which the
recipient correctly, or mistakenly but reasonably, understands that it was intended
to express.”). If the law were otherwise, publishers of false statements of fact could
routinely escape liability for their harmful and false assertions simply by advancing
a harmless, subjective interpretation of those statements.
     3. Application of the Reasonable-Reader Standard to McKimm’s Cartoon
         {¶ 25} In the case at bar, the Elections Commission could not reprimand
McKimm for the illustration accompanying Question No. 7 unless the cartoon, to
the reasonable reader, constituted a false statement of fact about Gonzalez. R.C.
3517.21(B)(10); Milkovich; Vail. We conclude that the commission and trial court
correctly assessed the meaning of McKimm’s cartoon from the perspective of the
reasonable reader and that the average reader would view the cartoon as a false
factual assertion that Gonzalez accepted cash in exchange for his vote to award the
unbid construction contract.




2. The first factor, the court’s inquiry into the specific language used, focuses on “the common
meaning ascribed to the words by an ordinary reader.” Under the second factor, which examines
whether the allegedly defamatory statement is verifiable, we noted that when a statement “lacks a
plausible method of verification, a reasonable reader will not believe that the statement has specific
factual content.” 

Vail, supra,

72 Ohio St.3d at 282-283

, 

649 N.E.2d at 186

. The third factor
considers the reaction of “the average reader viewing the words in their internal context,” and the
fourth factor focuses on the broader context of the statement from “the reader’s viewpoint.” 

Scott, supra,

25 Ohio St.3d at 253

, 25 OBR at 311, 

496 N.E.2d at 708

.




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                             SUPREME COURT OF OHIO




       {¶ 26} Commissioner Duncan explicitly referred to the appropriate standard
when he said, “[O]ne wonders what it was that a reasonable reader would perceive
after having seen this cartoon.”          (Emphasis added.)      Shortly thereafter,
Commissioner Duncan concluded—along with the other commissioners who voted
to reprimand McKimm—that the cartoon unambiguously depicted Gonzalez
engaging in unlawful activity. Likewise, citing Milkovich and Vail, the common
pleas judge determined that McKimm’s illustration was “capable of only one
reasonable interpretation: which is [that Gonzalez] took money under the table to
award a contract without competitive bidding and therefore was guilty of bribery.”
(Emphasis added.)
       {¶ 27} The phrase “passing money under the table” connotes an illegal
transaction made for personal gain. The drawing depicting this illegal conduct
appeared adjacent to text in a “quiz” that made serious and specific allegations
about Gonzalez’s conduct as a trustee. The quiz even included a phone number for
voters to call for documentation—suggesting that the statements therein could be
proven true. And a political cartoon that falsely depicts a public official engaging
in illegal conduct will not be exempt from legal redress merely because the charge
is depicted graphically rather than verbally. See 50 American Jurisprudence 2d
(1995), Libel and Slander, Section 152.
       {¶ 28} As the commission notes in its merit brief, “We all know what a hand
under a table holding cash implies, particularly * * * in the context of a discussion
about a government contract being let contrary to standard policy and without
competitive bidding.” McKimm’s cartoon implied to the reasonable reader that
Gonzalez actually accepted cash for his vote to award the lucrative, unbid
construction contract. Accord DeVito v. Gollinger (1999), 

133 Ohio App.3d 51, 56

, 

726 N.E.2d 1048, 1052

 (“The ‘under the table’ transaction depicted in the
cartoon is a clear accusation of bribery, a particularly egregious offense by a public



                                          10
                                 January Term, 2000




official.”); see, also, Newman v. Delahunty (1994), 

293 N.J.Super. 491, 517

, 

681 A.2d 671, 684

 (cartoon about mayor was a “not so subtle” charge of corruption).
                        4. The Innocent-Construction Rule
       {¶ 29} McKimm maintains that the Elections Commission could not find a
violation of the election laws for speech that is “clearly susceptible [of] innocent
interpretation.” Here, McKimm refers to the rule that “if allegedly defamatory
words are susceptible [of] two meanings, one defamatory and one innocent, the
defamatory meaning should be rejected, and the innocent meaning adopted.”
Yeager v. Local Union 20 (1983), 

6 Ohio St.3d 369, 372

, 6 OBR 421, 423, 

453 N.E.2d 666, 669

.
       {¶ 30} The innocent-construction rule does not protect McKimm’s cartoon
in this case. The rule protects only those statements that are reasonably susceptible
of an innocent construction. 

Id.

 “To construe a publication in an unreasonable
manner in order to give it an innocent interpretation is itself incompatible with the
rule’s requirement that words be given their ‘natural and obvious meaning.’ ” 8
Speiser, Krause & Gans, The American Law of Torts (1991) 436, Section 29:39,
citing John v. Tribune Co. (1962), 

24 Ill.2d 437

, 

181 N.E.2d 105

. Because we agree
with the trial court that McKimm’s drawing of a hand passing cash under a table is
susceptible of but one reasonable interpretation—that Gonzalez accepted money in
exchange for his vote to award the unbid contract referred to in the accompanying
text—the rule is inapplicable.
           B. McKimm Disseminated the Cartoon with Actual Malice
       {¶ 31} Having determined that McKimm’s cartoon was defamatory, we
turn to the only remaining issue: whether McKimm published the cartoon with
actual malice—that is, either knowing that it was false or acting in reckless
disregard of whether it was false or not. R.C. 3517.21(B)(10); Pestrak v. Ohio
Elections Comm. (C.A.6, 1991), 

926 F.2d 573

, 577, citing New York Times Co. v.


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                             SUPREME COURT OF OHIO




Sullivan (1964), 

376 U.S. 254

, 

84 S.Ct. 710

, 

11 L.Ed.2d 686

, and Garrison v.
Louisiana (1964), 

379 U.S. 64, 75

, 

85 S.Ct. 209, 216

, 

13 L.Ed.2d 125, 133

.
                    1. The Role of the Actual-Malice Standard
       {¶ 32} By permitting liability only for those false statements about public
officials made with actual malice, courts promote robust criticism of public officials
in their conduct of governmental affairs. Gertz v. Robert Welch, Inc. (1974), 

418 U.S. 323, 334

, 

94 S.Ct. 2997, 3004

, 

41 L.Ed.2d 789, 802

. Public officials will often
be subject to “vehement, caustic, and sometimes unpleasantly sharp attacks.” New
York Times, supra, 

376 U.S. at 270

, 

84 S.Ct. at 721

, 

11 L.Ed.2d at 701

. By
prohibiting the imposition of strict liability for false statements made against public
figures, the actual-malice standard provides essential “breathing space” for the
criticism that is inevitable in free debate and crucial to our democratic system.
Philadelphia 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 odds with
the premises of democratic government and with the orderly manner in which
economic, social, or political change is to be effected. * * * Hence the knowingly
false statement and the false statement made with reckless disregard of the truth, do
not enjoy constitutional protection.” 

Garrison, supra,

379 U.S. at 75

, 

85 S.Ct. at 216

, 

13 L.Ed.2d at 133

.




                                          12
                                January Term, 2000




         2. The Evidentiary Requirements of the Actual-Malice Standard
       {¶ 34} Whether the evidence in the record supports a finding of actual
malice is a question of law. Harte-Hanks Communications, Inc. v. Connaughton
(1989), 

491 U.S. 657, 685

, 

109 S.Ct. 2678, 2694

, 

105 L.Ed.2d 562, 587

. To answer
this question, we are obliged to undertake an independent review of the record. 

Id. at 659

, 

109 S.Ct. at 2681

, 

105 L.Ed.2d at 571

. We may not infer the existence of
actual malice from evidence of personal spite or ill will alone; rather, our focus is
on the publisher’s attitude toward the truth or falsity of the publication. Perez v.
Scripps-Howard Broadcasting Co. (1988), 

35 Ohio St.3d 215

, 

520 N.E.2d 198

,
paragraph two of the syllabus. But evidence of ill will can be relevant: “ ‘This
standard requires a clear and convincing showing, which may be by circumstantial
evidence, of the defendant’s actual state of mind—either subjective awareness of
probable falsity or actual intent to publish falsely.’ ” (Emphasis added.) National
Rifle Assn. v. Dayton Newspapers, Inc. (S.D.Ohio 1983), 

555 F.Supp. 1299, 1304

,
quoting Yiamouyiannis v. Consumers Union of United States, Inc. (C.A.2 1980),

619 F.2d 932, 940

.
       {¶ 35} To support its interpretation of the evidence required to support a
finding of actual malice, the court of appeals relied on the decision of the Supreme
Court in Bose Corp. v. Consumers Union of United States, Inc. (1984), 

466 U.S. 485

, 

104 S.Ct. 1949

, 

80 L.Ed.2d 502

.         But the Bose court found clear and
convincing evidence of actual malice lacking only because the author’s statement—
which misdescribed the sound of a loudspeaker in a Consumer Reports review—
“was ‘one of a number of possible rational interpretations’ of an event that ‘bristled
with ambiguities.’ ” 

Id. at 512

, 

104 S.Ct. at 1966

, 

80 L.Ed.2d at 525

, quoting Time,
Inc. v. Pape (1971), 

401 U.S. 279, 290

, 

91 S.Ct. 633, 639

, 

28 L.Ed.2d 45, 53

.
McKimm’s cartoon, on the other hand, judged by the reasonable-reader standard,
suggested that Gonzalez engaged in an illegal act. A cartoon that depicts the
commission of an illegal act is not a “possible rational interpretation” of events

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                             SUPREME COURT OF OHIO




when the author has no basis to believe that an illegal act has occurred.
Accordingly, we conclude that the appellate court’s reliance on Bose was
misplaced.
       {¶ 36} In St. Amant v. Thompson (1968), 

390 U.S. 727

, 

88 S.Ct. 1323

, 

20 L.Ed.2d 262

, also cited by the court of appeals, the Supreme Court discussed the
evidence that is required to support a conclusion that a defamation defendant has
acted in reckless disregard of the truth or falsity of his or her publication. The
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. 

Id. at 733

, 

88 S.Ct. at 1326

, 

20 L.Ed.2d at 268

. But Thompson also explicitly limits the ability of
defendants to subvert the standard with self-serving testimony. “The defendant
* * * cannot, however, automatically insure a favorable verdict by testifying that
he published with a belief that the statements were true. The finder of fact must
determine whether the publication was indeed made in good faith. Professions of
good faith will be unlikely to prove persuasive, for example, where a story is
fabricated by the defendant, [or] is the product of his imagination * * * .” 

Id.,

390 U.S. at 732

, 

88 S.Ct. at 1326

, 

20 L.Ed.2d at 267-268

.
       {¶ 38} We conclude that the record in this case clearly and convincingly
confirms that McKimm’s conduct surpassed the actual-malice threshold.
McKimm’s testimony before the commission amply supported that body’s
conclusion—and our own—that McKimm intended to convey to township voters
the false message that the drawing did convey to the reasonable reader of his
brochure.



                                         14
                               January Term, 2000




       {¶ 39} McKimm knew that Gonzalez and the other trustees were not legally
obliged to solicit bids for the construction contract before awarding it, and knew
that the trustees awarded the unbid contract only after discussion in an open
meeting. McKimm also testified, however, that he personally disapproved of
Gonzalez’s vote, and that he felt a wrongdoing had occurred. In this, McKimm saw
an opportunity—for he testified that, if township voters were aware of what
happened, “they would have reacted in the same fashion that I did.”
       {¶ 40} But instead of merely disseminating his brochure with the bare facts
that appeared in the text of Question No. 7, McKimm chose to accompany those
facts with a cartoon. That cartoon, as we have already determined, unambiguously
depicts a hand passing money under the table—a concept with which McKimm
admitted he was personally familiar. McKimm, however, also admitted that he had
no basis to believe that Gonzalez had engaged in any illegal conduct during his
tenure as trustee. As the trial court determined, McKimm chose “to illustrate the
right of the voters to question [Gonzalez’s] conduct by illustrating a criminal act,
where no evidence exists to support such an act.”
       {¶ 41} When called to answer for his choice before the commission,
McKimm admitted that he knew of the phrase “passing money under the table,”
and that he had no basis to believe that Gonzalez had participated in such an act—
or any illegal acts—during his tenure as trustee.         McKimm also testified
implausibly his drawing appeared either on the “other side of the table,” or “behind
the table,” but “not under the table.” See 

Thompson, supra,

390 U.S. at 732

, 

88 S.Ct. at 1326

, 

20 L.Ed.2d at 267-268

. After our independent review of this record,
we agree with the commission and the trial court that McKimm disseminated his
cartoon well aware of its false implication. McKimm conveyed a message to the
reasonable reader that he knew had no basis in fact.




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                                   SUPREME COURT OF OHIO




                                            Conclusion
         {¶ 42} The commission properly acted in this case to recognize society’s
“pervasive and strong interest in preventing and redressing attacks upon
reputation.” Rosenblatt v. Baer (1966), 

383 U.S. 75, 86

, 

86 S.Ct. 669, 676

, 

15 L.Ed.2d 597, 605

. 3
         {¶ 43} For the foregoing reasons, we hold that when a candidate for public
office distributes a campaign brochure containing an illustration with
accompanying text that imply to the reasonable reader that the candidate’s opponent
committed an illegal act while in office, and the candidate lacks any basis to believe
that the opponent committed the act depicted in the brochure, the Ohio Elections
Commission may constitutionally determine that the candidate violated R.C.
3517.21(B)(10). Accordingly, we reverse the decision of the court of appeals, and
reinstate the decision of the trial court.
                                                                              Judgment reversed.
         MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.
                                     __________________




                                           APPENDIX


3. McKimm argues for the first time to this court that the commission lacked the authority to send
him a letter of reprimand or to punish him “by publicly branding him as a violator of O.R.C. §
3517.21(B), a criminal offense.” McKimm did not raise this objection before the commission, the
common pleas court, or the court of appeals. Accordingly, we do not address this issue here. In
general, “an appellate court will not consider any error which counsel for a party complaining of the
trial court’s judgment could have called but did not call to the trial court’s attention at a time when
such error could have been avoided or corrected by the trial court.” State v. Childs (1968), 

14 Ohio St.2d 56

, 

43 O.O.2d 119

, 

236 N.E.2d 545

, paragraph three of the syllabus.


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January Term, 2000




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