ELEMENTS OF LIBEL

Plaintiff claims that the Defendants broadcast statements about her that were false and

have damaged her reputation. In tort law, Plaintiff’s claim is known as libel.

The elements of libel, which Plaintiff must prove, are: (1) there must be established a

statement of fact; (2) the statement must be false; (3) the statement must have a defamatory

meaning; (4) the statement must be published by the Defendants to a third party; (5) the

publication must be the proximate cause of actual injury to the Plaintiff; and (6) the Defendants

must have acted with the requisite degree of fault in failing to publish the truth about Plaintiff.1

It is important for you to understand that Plaintiff must prove each and every element

separately for any statement that Plaintiff has established and claims to be defamatory. That is,

any identified statement alleged to be defamatory is in itself a separate claim and, for any such

statement, you must be satisfied that every element is established independently for that

particular statement.

1
Celebreeze v. Dayton Newspapers, Inc., 41 Ohio App. 3d 343 (Cuyahoga 1988); Dupler v. Mansfield
Journal Co., 64 Ohio St. 2d 116 (1980), cert. dismissed, 452 U.S. 962 (1981).
 THE ROLE OF THE FIRST AMENDMENT

You will better understand the rules of law about which I am now informing you if you

keep in mind that this case involves a balancing of values, both of which are important in our

society.

Under certain conditions, the law of Ohio grants a plaintiff the right to recover for a

statement which the plaintiff proves false and defamatory, and which the plaintiff proves has

injured her reputation. I will explain these terms, and the meaning of the burden of proof which

goes with each of them in a few moments.1

On the other hand, the First Amendment to the United States Constitution guarantees

freedom of speech to individuals and the press, including radio announcers and talk show hosts.

The freedoms guaranteed by the First Amendment are essential in a democracy like ours.

The guarantees of freedom of speech and press are not so much for the benefit of the

press as they are for the benefit and protection of us all. Each one of us has only limited time

and resources to inform ourselves about the issues and problems that affect our lives. We

depend on the media to inform us about society’s problems, the use, misuse and abuse of power

by influential people and the dangers society holds. The information provided by the media

enables us to reach informed opinions on matters of public interest. Therefore, freedom of the

press assures that we can maintain a democratic society.2

This constitutional guarantee of freedom of the press entitles the media, including radio

announcers, to publish critical statements about people and events, and protects the media from

liability for such statements, except if, under the standards I am about to describe, the statements

1
Adapted from Federal Jury Instructions, ¶ 91.01 (adapted from the charge of Hon. Abraham Sofaer in
Sharon v. Time, Inc., 83 Civ. 4660 (S.D.N.Y.)).
2
Adapted from Sanford, Libel and Privacy, 691, setting forth requested instruction in Tavoulareas v.
Washington Post Co., 567 F.Supp. 651 (D.D.C. 1983).
are of such a nature and are made under such circumstances as to deprive the persons who make

them of this protection.3

The balancing of these values is known as the law of libel.

3
Adapted from Federal Jury Instructions ¶ 91.01.
 STATEMENT OF FACT

The most basic element of any defamation claim is Plaintiff’s burden to prove the very

existence of some identifiable statement of fact, which she alleges is defamatory.1 Plaintiff first

must prove the very existence of such a statement that was broadcast on WNIR. At the very

least, a complete statement is necessary because you must be able to determine whether that

statement of fact is defamatory. As Plaintiff has the burden of establishing the existence of any

such statement, it is Plaintiff’s burden to provide sufficient information for you to be able to

make that determination.

If you find that Plaintiff has not established the existence of a specific and complete

statement of fact that was broadcast, you must find in favor of Defendants.2

1
Ashcroft v. Mt. Sinai Medical Center, 68 Ohio App. 3d 359, 588 N.E.2d 280 (Cuyahoga 1990); Dinkel v.
Lincoln Publishing Inc., 93 Ohio App. 3d 344, 638 N.E.2d 611 (Butler 1994); Klotz v. First Nat’l Bank of Toldeo,
10 Ohio App. 2d 62, 226 N.E.2d 804 (Lucas 1967); OHIO REV. CODE § 2739.01
2
Liberty Network Communication Corp., 1993 Ohio App. LEXIS 49 (Summit), motion overruled, 66 Ohio
St. 3d 1497 (1993); Mussivand v. David, 1988 Ohio App. LEXIS 2434 (Summit 1988), motion denied, 44 Ohio St.
3d 704 (1989).
 FALSITY

An essential element of libel is that the statement published must be false. Consequently,

if the statement was in fact true, there can be no libel, regardless of the Defendants’ alleged

motivation.4

Plaintiff has the burden of proving by clear and convincing evidence that any alleged

statement at issue is false. You must remember that there is no burden on Defendants to convince

you of the truth of any statement. The burden remains on Plaintiff to convince you that

Defendants broadcast a false statement about her. 5

A statement is false when it is not substantially true. The truth or falsity of a statement is

based upon its natural and obvious meaning, taking into consideration the alleged broadcast as a

whole.6 To prove falsity, Plaintiff must prove that the alleged statement was false in a significant

way when considered within the context of the entire broadcast of which it was broadcast. It is

Plaintiff’s burden to establish sufficient evidence of the entire broadcast to allow you to find that

she has established clear and convincing evidence of falsity. If the statement is substantially

true, Plaintiff has failed to prove its falsity, even though she may have proved it false in

insignificant detail.7

4
Shifflet v. Thomson Newspapers, Inc., 69 Ohio St. 2d, 431 N.E.2d 1014 (1982). See also R.C. § 2739.02.
5
Hersch v. E.W. Scripps Co., 3 Ohio App. 3d 367, 445 N.E.2d 670 (1981); Nat’l Medic Serv. Corp. v.
E.W. Scripps Co., 61 Ohio App. 3d 752, 573 N.E.2d 1148 (Hamilton 1989).
6
Adapted from O.J.I § 264.01.
7
Letter Carriers v. Austin, 418 U.S. 264 (1974).
 TRUTH

Under the law of libel, truth is always a complete defense.8 This means that if you find

the alleged statement at issue to be true, you must return a verdict in favor of Defendants.

You must remember that there is no burden on Defendants to convince you of the truth of

any alleged statement. The burden remains on Plaintiff to convince you that Defendants made a

false statement about her. 9

Again, it is important that you understand that under the law, “truth” means only

“substantial truth.” A statement is substantially true if the gist or sting of the statement can be

justified. One hundred percent accuracy is not required.10

The truth or falsity of a publication is based upon its natural and obvious meaning, taking

into consideration the alleged broadcast as a whole.11 To prove falsity, Plaintiff must prove that

the alleged statement was false in a material and significant way. If the statement is substantially

true, she has failed to prove its falsity, even though she may have proved it false in insignificant

details.12 If you find the alleged statement at issue to be substantially true, you must return a

verdict in favor of Defendants.

8
Shifflet v. Thomson Newspapers, Inc., 69 Ohio St. 2d 179, 431 N.E.2d 1014 (1982).
9
Hersch v. E.W. Scripps Co., 3 Ohio App. 3d 367, 445 N.E.2d 670 (1981); Nat’l Medic Serv. Corp. v.
E.W. Scripps Co., 61 Ohio App. 3d 752, 573 N.E.2d 1148 (Hamilton 1989).
10
Nat’l Medic Serv. Corp. v. E.W. Scripps Co., 61 Ohio App. 3d 752, 573 N.E.2d 1148 (Hamilton 1989).
11
Adapted from O.J.I § 264.01.
12
Letter Carriers v. Austin, 418 U.S. 264 (1974).
 DEFAMATORY MEANING

A statement is defamatory when, taken as a whole, it causes injury to a person’s

reputation or subjects a person to ridicule, hatred, contempt, shame or disgrace or affects a

person adversely in a trade or profession.13 Not every unpleasant or uncomplimentary statement

is necessarily defamatory.14 Indeed, a publication that is merely unflattering, annoying, or

embarrassing, without more, is not defamatory.

The law imposes on Plaintiff the burden of proving that any statement at issue was in fact

understood in a defamatory sense by the average reasonable listener. This means that you are

not to seize on any one word, phrase, or image, or to consider only the statement itself apart from

the entire broadcast. Instead, you must consider the whole of the alleged broadcast in order to

determine whether any statement is defamatory.15 You must render your verdict in favor of the

Defendants unless you find from the evidence that Plaintiff has proven by clear and convincing

evidence that any false statement within the context of the entire broadcast was understood in a

defamatory sense by the average, reasonable listener.16 Again, it is Plaintiff’s burden to establish

sufficient evidence of the entire broadcast of which the statement was a part, to allow you to find

that Plaintiff has established clear and convincing evidence of defamatory meaning.

Furthermore, it is imperative for you to understand that under Ohio law, if a statement

can be understood two ways, one defamatory and the other one not defamatory, you must find

that the statement is not defamatory.17 Therefore, if you find that any alleged statement at issue
13
Becker v. Toulmin, 165 Ohio St. 549 (1956); Cleveland Leader Printing Co. v. Nethersole, 84 Ohio St.
118 (1911); Ohio State Home Services, Inc. v. Better Business Bureau of Akron, 89 Ohio App. 3d 732, 627 N.E.2d
602 (Summit 1993).
14
Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co., 43 Ohio App. 2d 105, 334 N.E.2d 494
(Cuyahoga 1974), cert. denied, 432 U.S. 883 (1975).
15
Vail v. Plain Dealer Publishing Co., 72 Ohio St. 3d 279 (1995).
16
Lauderback v. American Broadcasting Co., Inc., 741 F.2d 193 (8th Cir. 1984); Wells v. Liddy, 1 F. Supp.
2d 532 (D. Md. 1998); Southern Air Transport, Inc. v. American Broadcasting Co.’s, Inc., 877 F.2d 1010 (D.C. Cir.
1989).
17
Yeager v. Local Union 20, 6 Ohio St. 3d 369, 372, 453 N.E.2d 666 (1983); Mendise v. Plain Dealer
Publishing Co., 69 Ohio App. 3d 721, 591 N.E.2d 789 (Cuyahoga 1990); Bruss v. The Vindicator Printing Co., 109
can be understood in two different ways, you must find in favor of Defendants and against

Plaintiff.

Ohio App. 2d 396, 672 N.E.2d 238 (Mahoning 1996).

 “OF AND CONCERNING” PLAINTIFF

The third required element of Plaintiff’s defamation claim is the requirement that she

prove by clear and convincing evidence that any false and defamatory statement was legally of

and concerning Plaintiff. This means that Plaintiff must submit convincingly clear proof both

that any allegedly defamatory statement in fact referred to her personally, and that listeners

understood that statement to refer to Plaintiff.18

It is not enough that Plaintiff herself believes that she was the subject of the alleged

statements. Rather, Plaintiff must offer clear and convincing evidence that she was in fact the

subject and that other listeners heard the statement and understood the statement to refer to

Plaintiff.

Moreover, a Plaintiff cannot satisfy this requirement by offering evidence that third

parties understood the article in question as referring to her if Plaintiff in fact identified herself to

those third parties as the subject of the article.19 In other words, each Plaintiff must offer

evidence that third parties understood the article as referring to that Plaintiff based solely on the

content of the article itself. Evidence that third parties understood the article as referring to a

Plaintiff based on statements made by any individual prior to the publication of the article, or

based on statements made by a Plaintiff herself at any point before or after the publication of the

article, does not satisfy the “of and concerning” requirement.

18
Gosden v. Louis, 19 Ohio App. 3d 195, 218, 687 N.E.2d 481 (Summit 1996).
19
Kemper v. American Broadcasting Co., 365 F. Supp 1275, 1276 (S.D. Ohio 1973)
 PUBLICATION

In order to find the Defendants in this case liable to Plaintiff for defamation, you must

next find that Defendants “published” a defamatory statement about the Plaintiff. “Publication”

is a legal requirement that means that a third person actually heard the alleged defamatory

statement and understood it to convey a defamatory meaning.20 That is, Plaintiff must prove that

a third person other than Plaintiff herself heard the broadcast of the alleged statement. It is not

enough that Plaintiff merely alleges that somebody must have heard the statements allegedly

broadcast over the radio. Rather, Plaintiff must produce testimony from a third person who

actually heard the broadcast of the statement that she alleges is defamatory.21 Again, Plaintiff

must prove this element by clear and convincing evidence.

20
Hahn v. Kotten, 43 Ohio St. 2d 237, 331 N.E.2d 713 (1975).
21
Retterer v. Whirlpool Corp, 111 Ohio App. 3d 847, 677 N.E.2d 417 (Marion 1996); Wyrick v. Westover
Retirement Community, 1989 Ohio App. LEXIS 783 (Butler 1989).
 HEADLINES

In this case, Plaintiffs claim that the headline of the article at issue is false and therefore

defamatory. When a claim is made that a newspaper headline is defamatory, it must be

construed together with the body of the article itself in determining whether there is a defamatory

effect. 22

Generally, when the headline does not lead to a conclusion completely unsupported in the

body of the story, both the headline and the story should be considered together for their total

impression. 23 In this case, if you find that the body of the article itself supports or explains the

headline, then you should find the headline to not be defamatory.

22
Robb v. Lincoln Publishing Co., 114 Ohio App. 3d 595 (Brown 1996); Mendise v. Plain Dealer
Publishing Co., 69 Ohio App. 3d 721 (Cuyahoga 1990) (headline “should be read in the context of the entire article
in determining whether a reader would interpret them as defamatory”); Painter v. E.W. Scripps Co., 104 Ohio App.
237 (Franklin 1957); Early v. Toledo Blade, 26 Media L. Rptr. 2569 (Lucas 1998); Celebrezze v. Netzley, 1988
Ohio App. LEXIS 3153 (Cuyahoga 1988).
23
Watson v. Leach, 1996 Ohio App. LEXIS 2474 (Gallia 1996), citing Sprouse v. Clay Communication,
Inc., 211 S.E.2d 674 (W.Va. 1975).
 NEGLIGENCE - LIBEL

To recover for any statement alleged to be defamatory, Plaintiff must establish that

Defendants acted with the necessary degree of fault in broadcasting the statement — here,

negligence. You may find that an alleged statement in this case was negligently broadcast only

if you find, based on all the evidence, that Defendants failed to act reasonably in attempting to

discover the truth or falsity or defamatory character of the publication at issue.1 Furthermore,

Plaintiff must establish that Defendants acted with such negligence by clear and convincing

evidence.3

Put another way, you must find in favor of Defendants if you find that Defendants had

reasonable grounds for believing that any alleged defamatory statement broadcast by them was

true.2

1
Lansdowne v. Beacon Journal, 32 Ohio St. 3d 176; Brooks v. American Broadcasting Co., Inc., 999 F.2d
th
167 (6 Cir. 1993); Franks v. The Lima News, 109 Ohio App. 3d 408, 672 N.E.2d 245 (Allen 1996); Baby Tenda of
Greater Cincinnati, Inc. v. Taft Broadcasting Co., 63 Ohio App. 3d 550, 579 N.E.2d 522 (Hamilton 1989).
3
Lansdowne, 32 Ohio St. 3d at 180-81; Brooks, 999 F.2d 167; Baby Tenda, 63 Ohio App.3d 550.
2
3 Restatement of the Law 2d, Torts 227 (1977), Section 580(B), Comment g.
 ACTUAL MALICE

You may find that the article in this case was made with actual malice only if you find,

based on all the evidence, that it was published with the knowledge that it was false or with

reckless disregard of whether it was false or not.24

Knowledge of falsity means that the person who made the statement knew, in fact, before

he made the statement, that it was false. Reckless disregard for truth or falsity means that, prior

to the statement of fact being made, the speaker actually entertained serious doubts as to the truth

of the statement or made the statement with a high degree of awareness of its probable falsity.25

The focus of this question is on Defendant’s attitude toward the truth or falsity of the

publication, not on Defendant’s attitude toward the Plaintiffs.26 You may not infer actual malice

from any alleged failure to fully investigate the facts.27 For purposes of actual malice, it does not

matter whether Defendant fully investigated the facts. Rather, you must focus on the attitude of

Defendant regarding the truth or falsity of the statement. Only if Defendant in this case knew the

statements were false, or acted recklessly as to whether they were false or not, can you find that

Defendant acted with actual malice.

If the law were to impose liability on broadcasters simply upon a showing that the story

contained errors, there would be a real danger that the media would be afraid to exercise its

constitutional rights to air critical comments about matters of public interest. It is for this reason

that we require Plaintiffs to prove something beyond falsity, defamatory meaning and causation

of damages in this case—namely we require Plaintiffs to show that Defendants acted with actual

malice, that is, knowledge of falsity or reckless disregard of whether the statement was false.

24
New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1963).
25
Perez v. Scripps Howard Broadcasting Co., 35 Ohio St. 3d 215, 220, 520 N.E.2d 198 (1988).
26
Herbert v. Lando, 441 U.S. 153, 160 (1979).
27
Varanese v. Gall, 35 Ohio St. 3d 78, 84 , 518 N.E.2d 1177 (1988).
 In the abstract it may not seem “fair” to you that the law prohibits Plaintiffs from

recovering damages even if they can show that a statement was not accurate and that it damaged

them. However, fairness is not our only concern in this case. Our law reflects our Founders’

firm relief that our nation is best served by permitting the press to make mistakes as long as they

do not know that the information that they are publishing is false or recklessly disregard the truth

or falsity of the information.

Therefore, unless you are clearly convinced that Defendants broadcast a statement with

actual malice at the time that it broadcast the statement, you may not return a verdict for

Plaintiffs.28 If you are not so convinced, Plaintiffs have failed to prove their case. Your

deliberations will then cease and you will return a verdict in favor of Defendants and against the

Plaintiffs.

28
Dupler at 119; St. Amant v. Thompson, 390 U.S. 727, 731 (1968). Portions adapted from requested

instruction in Tavoulareas v. Washington Post Co., 567 F. Supp. 651 (D.D.C. 1983), set forth in Sanford, Libel and

Privacy, at 691.
 FAIRNESS

The perceived “fairness” of a report is irrelevant for purposes of establishing actual

malice. This means that the fairness of the article is not at issue in this lawsuit.

Again, in determining actual malice the issue is whether the publisher recklessly or

knowingly published false material. The fact that Plaintiffs believe the article to be one-sided

does not prove that Defendant believed the article to be false. The law of defamation does not

require Defendant to publish a “fair” article, nor does it require that Defendant give Plaintiffs an

opportunity to tell their side of the story.

Again, you must focus only on Defendant’s attitude toward the truth of the statements

contained in the article. Only if you find that Defendant knew those statements to be false, or

acted recklessly as to their truth or falsity, can you find that Defendant acted with actual malice.29

29
Kilcoyne v. Plain Dealer Publishing Co., 112 Ohio App. 3d 229, 237 (Cuyahoga 1996); Westmoreland v.
CBS Inc., 601 F. Supp. 66 (1984); Perez v. Scripps Howard Broadcasting Co., 35 Ohio St. 3d 215, 219 (1988).
 NO DUTY TO INVESTIGATE

There is no duty to investigate or check facts beyond the duty to avoid publishing with

actual malice as I have just defined it. With this in mind, in weighing these issues, you may

consider the behavior of Defendants, including whether they investigated the facts included in

the statements; whether they adequately questioned their sources; whether they employed

measures for checking the accuracy of the statements, and whether they attempted to check the

facts with Plaintiffs or other persons. If you find that such efforts were made, they may negate

any inference that Defendants sought to avoid the truth.30

30
Adapted from Federal Jury Instructions, ¶ 91-6, adapted from Sharon v. Time, Inc., 83 Civ. 4660

(S.D.N.Y.).
 “BREAKING NEWS”

You have heard that an alleged statement at issue was made during a report of “breaking

news.” “Breaking news” is information that, due to its nature, must be rapidly communicated to

the public. The law recognizes that when reporting breaking news, the defendant is working

under heavy deadline pressure to communicate important information to the public as rapidly as

possible, and therefore is rightfully limited in the ability.31

If you find that Plaintiff has proven by clear and convincing evidence that Defendants

aired a false and defamatory statement during the reporting of breaking news, in evaluating

whether Defendants acted reasonably you should take into consideration the surrounding

circumstances and time constraints imposed on a news station’s reporting of important “breaking

news.”

31
Curtis Publishing v. Butts, 388 U.S. 130 (1967); Tavoulareas v. Piro, 817 F.2d 762 (D.C. Cir. 1985), cert.
denied 484 U.S. 870 (1987); Hunt v. Liberty Lobby, 720 F.2d 631 (11th Cir. 1983); Carson v. Allied News Co., 529
F2d 206 (7th Cir. 1976); Vandenburg v. Newsweek, Inc., 507 F.2d 1024 (5th Cir. 1975); Goldwater v. Ginsburg, 414
F3d 324 (2nd Cir. 1969), cert. denied, 369 U.S. 1049, reh’g denied, 397 U.S. 978 (1970).
 PUBLIC CONCERN

A broadcast involves a matter of public concern when it concerns a matter of importance

or interest to the general public.32

In this case, Defendants’ statements involved a matter of public concern because they

concerned a public official and issues surrounding his conduct in office and use of his political

power/it was an issue of utmost importance and concern to members of the community in which

the broadcast was published.

32
Adapted from O.J.I. § 264.01, ¶ 6 and Nussbaumer v. Time, No. 49872 (Cuyahoga Cty.1986), 13 Media

L. Rptr. 1753.
 FAIR COMMENT

Just as the law has an interest in protecting the good name and reputation of a person who

has been damaged by libel, so the law also recognizes that there are occasions when the media

must feel free to communicate their understanding of the facts without fear of being held

answerable in damages should the facts later turn out to be mistakenly reported. For this reason,

when the broadcast is a fair and reasonable comment or criticism upon matter of public concern,

the publication is privileged, and a plaintiff cannot recover unless he can overcome the privilege.

To do so, the Plaintiffs must be able to establish by clear and convincing evidence, that is by

evidence which produces in your mind a firm belief, that the alleged libel was published with

actual malice, meaning knowledge of falsity or a high degree of awareness of probable falsity.33

33
Cleveland Leaders Printing Co. v. Nethersole, 84 Ohio St. 135, 95 N.E. 735 (1911); adapted from

instructions given in McCoy v. Bergen Evening Record, No. L-30533-79 (Sup. Ct. N.J. 1981).
 ACTUAL DAMAGES

I will now instruct you on the subject of damages. The fact that you are instructed on

damages is not to be considered by you to suggest that you must consider damages. If you do

not find Defendants liable to Plaintiff in accordance with my instructions, you may not consider

damages. Only if you find that Defendants are liable should you then go on to consider

damages.

If you find in favor of Plaintiff, you may award only such actual damages as she has

proved will compensate her for the loss resulting from any damage to her reputation. The

amount of damages awarded must be reasonable. Damages which are speculative cannot be

recovered. This means you cannot compensate Plaintiff for future loss or harm because,

although possible, it is not reasonably certain. You also may not presume that just because a

defamatory statement may have been broadcast, Plaintiff automatically suffered harm to her

reputation.34 Instead, Plaintiff must affirmatively present clear and convincing evidence of any

actual damage she claims to have suffered.

You may consider the following potential items of a damaged reputation in reaching your

damage determination: (a) injury to reputation and standing in the community; (b) shame,

humiliation, mental anguish; and (c) out-of-pocket loss, as proved by the evidence.35

Remember that you may only compensate Plaintiff for those damages which you find

were sustained as a direct and proximate result of the alleged statement in question damaging her

reputation. If you find that her reputation was not damaged, you may not award any damages.

You also may not compensate her for damages which were caused by other events or

34
Gertz v. Welch, 418 U.S. 323 (1974); Gosden v. Louis, 116 Ohio App. 3d 195, 687 N.E.2d 481 (Summit

1996).
35
O.J.I. § 264.03.
circumstances. Specifically, you may not hold Defendants liable for any damages Plaintiff may

have suffered as a result of Plaintiff’s role as a known suspect in the Prade murder investigation,

of community rumors, or of defamatory statements published by other parties.

 DUTY TO MITIGATE DAMAGES

An injured person is required to mitigate or reduce his damages to the extent reasonably

possible.36

Damages for false statements made in the course of a broadcast may be reduced or

avoided by a retraction or a correction to the broadcast.37

Although Plaintiffs allege ongoing damages in this case, it is undisputed that since the

statements were broadcast, the Plaintiffs have never demanded or requested a retraction or

correction.

Therefore, if you find in favor of Plaintiffs you should reduce Plaintiffs’ damages by the

amount which could have been avoided if Plaintiffs had demanded a retraction or correction of

any statement.

36
Baker v. Baltimore & Ohio RR Co., 502 F.2d 638, 644 (6th Cir. 1974).
37
35 O.Jur. 3d, Defamation and Privacy, at § 120.
 PUNITIVE DAMAGES – LIBEL

If you award Plaintiffs actual damages, you may consider also whether you will

separately award punitive damages. If you do not find actual damage, you cannot consider

punitive damages.38

Unlike compensatory damages which are intended to make a party whole, punitive

damages are intended to punish a wrongdoer and to discourage others from committing similar

acts.39 Punitive damages may be awarded against a broadcaster a libel case only if both: (1) at

the time of publication the broadcaster knew the broadcast as false or acted with reckless

disregard of falsity,40 and (2) in addition, the broadcaster aired the broadcaster aired the

broadcast (a) with a state of mind characterized by hatred, ill will or a spirit of revenge or (b)

with a conscious disregard for the rights and safety of others that has a great probability of

causing substantial harm.

Unless you find by clear and convincing evidence that Defendants acted both with hatred,

ill will, or revenge toward Plaintiffs and knew that a statement was false or acted with reckless

disregard of falsity, you may not award punitive damages.41 If you do award punitive damages,

the law requires that I, rather than you, set the amount.42

The foregoing statements regarding punitive damages are not to be construed as a

direction to award such damages. The decision to make such award, if any, is for you alone to

make.
38
30 O. Jur. 3d, Damages § 150 (1981).
39
Tibbs v. Construction Corp., 52 Ohio App. 2d 281 (1977).
40
O.J.I. § 264.05; Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974); Maloney v. E.W. Scripps, 43

Ohio App. 2d 105 (Cuyahoga Cty. 1974).

41
O.J.I. § 264.05.
42
Ohio Rev. Code § 2315.21(C)(2).
 PROXIMATE CAUSE

You are not to award Plaintiff any damages unless Plaintiff has proven by clear and

convincing evidence that such damage was an actual loss and was directly and proximately

caused by acts of the Defendants.

Damage is proximately caused by an alleged broadcast only if the damage occurred as a

direct result of the alleged broadcast at issue.43 Put another way, proximate cause is a cause

which produces a result that would otherwise not have occurred.44

Plaintiff carries the burden to prove by clear and convincing evidence that her damages,

if any, were proximately caused by an alleged broadcast of Defendants. She must show that her

damages, if any, were caused by this alleged broadcast, and that in the absence of the alleged

broadcast, she would not have suffered these damages. Plaintiff has the burden of proving that

her damages were the result of this broadcast and not some other cause.

If you do not find that Plaintiff’s damages were directly caused by the alleged broadcast

at issue, you may not award damages to Plaintiff.

43
O.J.I. § 11.10(2).
44
Id.; Strother v. Hutchinson, 57 Ohio St. 2d 282, 423 N.E.2d 467 (1981).
 CONFIDENTIAL SOURCE INSTRUCTION

Reporters and broadcasters have a privilege not to disclose the identities of confidential

sources of news who request they not be disclosed.45 The law provides this protection because

the protection of confidential news sources serves to improve the free flow of information

between the sources and the reporter, and ultimately to protect the ability of the news media to

serve the public interest by informing the public about the issues and problems that affect our

lives.

You are not permitted to give any evidentiary weight to a witness’s refusal to respond to

a question on the basis of a privilege I have found to apply. The proper assertion of this privilege

may not be penalized.

It is your job to determine the issues in this case, one of which is whether the Plaintiffs,

have proved by clear and convincing legal evidence that Defendant acted with actual malice in

publishing the subject article.

CINlibrary/1104306.1

45
O.R.C. §2739.12.