Carlo Croce v. New York Times Co.
Carlo Croce v. New York Times Co.
Opinion
Some say there's no such thing as bad publicity, but Dr. Carlo Croce did not share this sentiment after the New York Times published an article that included allegations against him. The article also questioned Ohio State University's ability to investigate properly these allegations because of a supposed conflict of interest. Dr. Croce is a prolific cancer researcher at OSU, but some critics have made allegations against him. The article at issue may be unflattering, but the question is whether it is defamatory. In a thorough opinion, the district court thought not. We agree. The article is a standard piece of investigative journalism that presents newsworthy allegations made by others, with appropriate qualifying language. For the reasons that follow, we AFFIRM .
I. BACKGROUND
Dr. Carlo Croce is a professor and the Chair of Human Cancer Genetics at The Ohio State University. Over the course of his forty-five-year career as a cancer researcher, Dr. Croce has published over 650 papers. R. 32 (Am. Compl. at ¶¶ 31-32) (Page ID #608). Of these hundreds of papers, twelve have been subject to corrections and two more have been withdrawn with Dr. Croce's consent. See id. ¶¶ 35-39 (Page ID #609-11). (A few of these corrections and one withdrawal occurred after the publication of the New York Times's article.) Dr. Croce's research has earned him numerous awards. See R. 32-2 (Croce Resp. Ex. B) (Page ID #704-06).
The story behind the article in question begins on September 14, 2016, when Dr. Croce received an email from New York Times reporter James Glanz. After this exchange, Dr. Croce agreed to speak with *791 Glanz about "promising anti-cancer results" that Glanz was purportedly reporting on. R. 32 (Am. Compl. at ¶ 43) (Page ID #611). After the meeting, Glanz said that he would be in touch with Dr. Croce.
On November 1, 2016, Glanz followed up, but the tone of the communications changed. Glanz emailed Dr. Croce as "a courtesy to let [Dr. Croce] know that the scope of [the New York Times's] reporting has broadened, and [Glanz had] made a few records requests at OSU and other institutions." Id. at ¶ 49 (Page ID #613). About three weeks later, "Glanz sent a letter on New York Times letterhead to OSU and to Dr. Croce stating that Glanz had questions he wanted to 'put urgently' to Dr. Croce and OSU 'as part of an article' Glanz was preparing." Id. at ¶ 50 (Page ID #613); see also R. 32-1 (Glanz Letter). The letter (which was at issue in the district court but is not challenged on appeal) contained some loaded and pointed questions, many of which followed allegations made by others against Dr. Croce. See R. 32-1 (Glanz Letter).
The letter prompted Dr. Croce to retain counsel. On January 25, 2017, Dr. Croce, through his retained counsel, responded to the letter. The response denied the allegations, stating that "[m]any of the statements in [Glanz's] letter are false and defamatory." R. 32-2 (Croce Resp. at 1) (Page ID #684). On March 2, 2017, Glanz sent another email that contained "additional 'misconduct allegations.' " R. 32 (Am Compl. at ¶ 74) (Page ID #620). Dr. Croce's counsel responded to Glanz the next day and again denied each allegation. Id. at ¶ 74 (Page ID #620-21). No further communication occurred between the two sides.
Ultimately, the article was not about "promising anti-cancer" research. Instead, on March 8, 2017, the New York Times published an article on its website (and social media) with the title, "Years of Ethics Charges, but Star Cancer Researcher Gets a Pass"; and subtitle text, "Dr. Carlo Croce was repeatedly cleared by Ohio State University, which reaped millions from his grants. Now, he faces new whistle-blower accusations." R. 32-3 (Article at 1) (Page ID #707). Agustin Armendariz, another reporter, is listed as a coauthor with Glanz in the byline. When the New York Times posted the article on Twitter and Facebook, the tagline read: "A star cancer researcher accused of fraud was repeatedly cleared by Ohio State, which reaped millions from his grants." R. 32 (Am. Compl. at ¶ 77) (Page ID #621). Then the next day, March 9, 2017, the article appeared on the front page and above the fold in the printed edition, under the headline, "Years of Questions but Researcher Gets a Pass." Id. at ¶ 78 (Page ID #621). The article detailed various allegations against and criticisms of Dr. Croce-all casting him in an unfavorable light.
After the New York Times published the article online, it apparently reached the top of the New York Times's " 'Most Popular' articles" list and attracted 444 comments from online readers. R. 32 (Am. Compl. at ¶ 80) (Page ID #622). Many of these internet commenters had harsh words for Dr. Croce. See generally id. at ¶ 93 (Page ID #625-28). In addition to detailing the negative allegations and criticisms of Dr. Croce, the article also reads: "Despite the lashing criticisms of his work, Dr. Croce has never been penalized for misconduct, either by federal oversight agencies or by Ohio State, which has cleared him in at least five cases involving his work or the grant money he receives." R. 32-3 (Article at 2) (Page ID #708); see also id. at 3 (Page ID #709) (stating that Dr. Croce "denied any wrongdoing ...."); id. at 8 (Page ID #714) ("Dr. Croce was *792 cleared in [two cases outlined in the article]. But that was just the beginning.").
Needless to say, Dr. Croce was not pleased with the article or the internet comments. So he sued. Dr. Croce brought defamation, false-light, and intentional-infliction-of-emotional-distress claims against the New York Times, Glanz, Armendariz, Arthur Ochs Sulzberger, Jr. (publisher of the New York Times), and Dean Baquet (executive editor of the New York Times) ("Defendants").
See
R. 32 (Am. Compl. at 69-78) (Page ID #668-77). The Defendants filed a motion to dismiss, which the district court largely granted, except for one statement in the Glanz Letter.
See
Croce v. New York Times Co.
,
II. STANDARD OF REVIEW
"We review de novo ... the district court's grant of a Rule 12(b)(6) motion to dismiss ...."
Seaton v. TripAdvisor LLC
,
Because we are sitting in diversity, we apply the law of the forum state.
Himmel v. Ford Motor Co.
,
III. DEFAMATION CLAIMS
Under Ohio law, "defamation occurs when a publication contains a false statement made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession."
Am. Chem. Soc'y v. Leadscope, Inc.
("
ACS
"),
the plaintiff must show (1) that a false statement of fact was made, (2) that the statement was defamatory, (3) that the statement was published, (4) that the plaintiff suffered injury as a proximate result of the publication, and (5) that the defendant acted with the requisite degree of fault in publishing the statement.
The Ohio Supreme Court has stated that when a court is deciding "whether
*793
a statement is defamatory as a matter of law, a court must review the totality of the circumstances and ... read[ ] the statement in the context of the entire publication to determine whether a reasonable reader would interpret it as defamatory."
See
ACS
,
Before turning to the crux of this case, it is worth clarifying the scope of this appeal. In his briefs, Dr. Croce challenges only certain statements in the article, specifically what the parties label as Statements 1-5 and 10-14, as well as Statement 15 (which is the article as a whole). The Defendants, picking up on Dr. Croce's lack of reference to various issues in his opening brief, argue that these statements alone are at issue.
See
Appellees Br. at 7-9. Dr. Croce implicitly concedes that the scope of this appeal is limited to those statements by failing to respond to this argument in his reply brief. Accordingly, we focus our attention on the statements the parties argue about in their briefs. At any rate, as we will explain, Ohio law requires reading each statement in the context of the article as a whole, and we have therefore considered the statements in that context.
See
ACS
,
A. The Article Is Not Defamatory
Applying Ohio law, we conclude 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.
Starting at the top, the headline is, as the district court recognized, "the closest thing to defamation in all the complained-of statements ...."
See
Croce
,
But the headline is not the whole story, and consequently the headline cannot be considered standing alone.
See
*794
Robb v. Lincoln Publ'g (Ohio), Inc.
,
In full context, a reasonable reader would interpret the article as a standard piece of investigative journalism. To be sure, the article quotes several of Dr. Croce's critics, i.e., the article states that allegations and complaints have been lodged against Dr. Croce. (This especially applies to Statements 3, 4, 5, 11, 12, and 13 in the article. 2 ) Further, the article raises concerns about various errors in Dr. Croce's papers, as well as concerns about OSU's ability to investigate effectively allegations against him. See, e.g. , R. 32-3 (Article at 2) (Page ID #708) ("Dr. Croce's story is a case study of the complex and often countervailing forces at work as science seeks to police itself. ... [T]he primary burden for investigating and punishing misconduct falls to inherently conflicted arbiters: universities like Ohio State that stand to reap millions of dollars from the federal grants won by star researchers like Dr. Croce."). But stating that there are allegations against someone and raising these concerns does not necessarily imply guilt.
Put simply, the article does not say that Dr. Croce is guilty of any of these allegations and charges of scientific misconduct, nor does the article suggest that these allegations are true. If the article suggested that these allegations were true, or if the article did not use language that qualified the statements made by others as allegations, then the Defendants potentially could be liable for reporting third-party statements.
See
Blesedell v. Chillicothe Tel. Co.
,
What's more, the article is not entirely unfavorable. The article explains that Dr. Croce has never been found to have committed misconduct "either by federal oversight agencies or by Ohio State, which has cleared him in at least five cases involving his work or the grant money he receives." R. 32-3 (Article at 2) (Page ID #708); see also id. at 8 (Page ID #714). It mentions that Dr. Croce has denied wrongdoing. Id. at 3 (Page ID #709). And it quotes a Nobel Prize-winning biologist as saying:
I would say [Dr. Croce] has made some important contributions to the molecular causes of cancer. ... I can't condone the sloppiness he has in general. But if I look historically at what [Dr. Croce] has done, if I delete [him] from the scientific community, I think the scientific community is a little less, and that isn't true of everybody who publishes papers.
Id. at 4 (Page ID #710). Moreover, the article gives a mixed portrayal of one of Dr. Croce's critics, "Clare Francis," who is described as a "digital vigilante[ ]," "both legendary and loathed," "a scientific gadfly," and as having a "high-strung style." See id. at 2, 8 (Page ID #708, 714).
A reasonable reader would therefore interpret the article as presenting two sides of this controversy. This article is similar to one at issue in
ACS
, in which the Ohio Supreme Court held an article not defamatory as a matter of law when "[t]he article ... contained a balanced report of both parties' arguments and defenses."
See
Two remaining arguments are worth addressing, but both ultimately lack merit.
First
, Dr. Croce pleaded that the New York Times published with actual malice. Actual malice requires showing the defendant had knowledge that the statement was false or acted with reckless disregard for the truth.
See
New York Times Co. v. Sullivan
,
Second , Dr. Croce points to a "companion article" that appeared on the second page of the paper's print edition, making the novel argument that this separate article endorses the accuracy of the allegations in the actual article at issue. This argument rests solely on half of the headline, "Open Records Close the Case"-specifically the "Close the Case" phrase. Assuming that a separate article on a separate page of the paper may be relevant, the second article here is predominantly about how, in Ohio, reporters can easily access certain records and how that helped Glanz and Armendariz unearth various documents. R. 32-5 (Open Records Article). As with the main article, Dr. Croce's contentions on this front do not hold up when reading the full article.
In sum, we hold that a reasonable reader would not interpret this article, considering it as a whole, to be defamatory. Even if one could quibble with this conclusion, the Defendants' arguments on the innocent-construction rule are strong. We turn to that next.
B. The Innocent-Construction Rule
Dr. Croce argues that the panel must reverse if a reasonable reader
could
attribute a defamatory meaning to the article. This argument runs headlong into the innocent-construction rule.
See
McKimm
,
Dr. Croce's contention that this rule is not established in Ohio is not persuasive. In
McKimm
, the Ohio Supreme Court reasoned that "[t]he innocent-construction rule does not protect [the author's] cartoon in this case. The rule protects only those statements that are
reasonably
susceptible of an innocent construction."
Dr. Croce's argument that the question of this rule's validity should be certified to the Ohio Supreme Court is also not persuasive. For one, "certification is disfavored when it is sought only after the district court has entered an adverse judgment."
See
State Auto Prop. & Cas. Ins. Co. v. Hargis
,
As our analysis in the prior section shows, this article and the statements in it can comfortably fall within the contours of the innocent-construction rule. Even if the meaning of the article is ambiguous or debatable, an innocent reading can surely be adopted: Yes, Dr. Croce has been the subject of criticisms and allegations, resulting in some corrections to his work, but no findings of deliberate misconduct have been made against him, he denies these allegations, and he is otherwise a successful cancer researcher.
Although a case involving a public official (and thus subject to a slightly different standard), the following passage from Robb , is particularly relevant here:
The news article and (especially) its headline are examples of one of the worst excesses of contemporary journalism: a "spin" put on facts to get the attention of the reader that distorts their true meaning. To the extent that it represents that monies were missing from Robb's custody, the article is false. However, a discerning reader may yet understand from it that Robb was cited by the auditor for failing to "collect" monies from his own accounts that he was required by law to remit to Butler County, and that is true . The words used in the article are, therefore, reasonably subject to an innocent construction, and malicious intent is not demonstrated.
We therefore conclude that Ohio has adopted the innocent-construction rule, and we hold that this article is easily susceptible to an innocent construction.
C. Statement 14 Is Substantially True
Statement 14 is singled out as a separate issue in the parties' briefing, and the question is whether the statement is substantially true. It reads:
As a result of complaints by Dr. Sanders and others, journals have been posting notices of problems with Dr. Croce's papers at a quickening pace. From just a handful of notices before 2013 - known as corrections, retractions and editors' notices - the number has ballooned to at least 20, with at least three more on the way, according to journal editors. Many of the notices involve the improper manipulation *798 of a humble but universal lab technique called western blotting, which measures gene function in a cell and often indicates whether an experiment has succeeded or failed.
R. 32-3 (Article at 2) (Page ID #708). This statement follows a string of paragraphs that outline allegations made against Dr. Croce, including by Dr. Sanders. Dr. Sanders "has made claims of falsified data and plagiarism directly to scientific journals where more than 20 of Dr. Croce's papers have been published." Id. at 1 (Page ID #707). " 'It's a reckless disregard for the truth,' Dr. Sanders said in an interview." Id. at 2 (Page ID #708).
We have explained previously that, in Ohio, "[a] statement is not a 'false statement' if, even though it is misleading and fails to disclose all relevant facts, the statement has some truth in it. Moreover, a statement that is subject to different interpretations is not 'false.' "
Susan B. Anthony List v. Driehaus
,
This is a "low threshold,"
Driehaus
,
IV. REMAINING CLAIMS
Dr. Croce's remaining false-light and intentional-infliction-of-emotional-distress claims can be disposed of quickly because their success rests on the defamation claims. On appeal, he simply argues that "[b]ecause the District Court erred in dismissing [the] defamation claims, the District Court equally erred in dismissing his false light and intentional infliction of emotional distress claims." See Appellant Br. at 54. The defamation claims fail, and no arguments remain to support the false-light and intentional-infliction-of-emotional-distress claims. Thus, we affirm the district court's dismissal of these claims as well.
V. CONCLUSION
For these reasons, we AFFIRM the district court.
The headline is Statement 1, and the similarly worded social media posts are Statement 2.
Statement 10, meanwhile, is at least substantially true and therefore not defamatory.
See
Susan B. Anthony List v. Driehaus
,
See also
Webber v. Ohio Dep't of Pub. Safety
,
Reference
- Full Case Name
- Carlo M. CROCE, Plaintiff-Appellant, v. the NEW YORK TIMES COMPANY; James Glanz; Agustin Armendariz; Arthur Ochs Sulzberger, Jr.; Dean Baquet, Defendants-Appellees.
- Cited By
- 46 cases
- Status
- Published