Appellate Judicial Panel

Justice Matthew Provance Chief Justice Jeffry Dorocak Justice James Angelo

Prephan v. Chistobek

______

[April 14, 2008]

Chief Justice Dorocak delivered the unanimous opinion of the Panel. On April 7, 2008, the Judicial Panel found that Senatorial candidate Laura Christobek engaged in public slander, thereby violating Article VII(D)(1)(a) of the Election By-Laws. We affirm the Judicial Panel’s decision.

The Judicial Panel concluded that the slanderous statement was made by Christobek at a public meeting of the Students for Recycling. Moreover, the Judicial Panel considered Chistobek’s intent when making the statement and the harm that resulted from the statement as mitigating factors when imposing punishment on her.

The standard employed by the Judicial Panel for dealing with this accusation of slander is reasonable. We expect this standard to be followed by future Judicial Panels when dealing with accusations of slander or libel pursuant to Article VII(D)(1)(a). The standard is:

  1. If candidates, candidate teams, or slates make a publicly untrue statement about another candidate, then the candidate, candidate team, or slate who uttered or wrote the statement violated Article VII(D)(1)(a).
  1. Intent: If the offending candidates, candidate team, or slate acted in good faith, upon a reasonable belief, that the statement was true, then this fact should mitigate the punishment imposed. If, on the contrary, the candidate knew the statement was false, then this fact should aggravate the punishment imposed.
  1. Harm: The degree to which the subject, about whom the statement was made, was harmed should be reflected by the punishment imposed.

Again, this standard was the standard employed by the Judicial Panel in its decision in this case. This standard is not unreasonable. In addition, when considering the mitigating factors (intent and harm) for future cases, it would not be impossible for the Judicial Panel to conclude that, even though slander or libel occurred, the mitigating factors warrant a punishment of $0.

Christobek encouraged this Panel to consider the Oxford Dictionary’s definition of “slander.” This Panel turned to the Oxford Dictionary in a previous case to define a word. The Oxford Dictionary defines “slander” as:

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The utterance or dissemination of false statements or reports concerning a person, or malicious misrepresentation of his actions, in order to defame or injure him; calumny, defamation.

This definition does not help Chistobek’s case. Ohio Law and, in fact, this dictionary definition make clear what slander is: the utterance of a false statement. While Chistobek encouraged this panel to consider “malicious” as the necessary degree of intent from the slanderer, it is obvious from this definition that “malicious” is simply an adjective for misrepresentation and not a necessary characteristic for the slanderer’s state-of-mind when uttering the statement.

Furthermore, the dictionary definition’s phrase “in order to defame or injure him” does not take Christobek off-the-hook. To require the Judicial Panel or future Judicial Panels to conclude that an accused party made a slanderous remark or wrote a libelous statement “in order to defame or injure” another candidate would create an obvious problem: if the accused simply denies the intent to defame or injure, the Judicial Panel then would have to engage in an exhaustive and probably unwieldy exploration of the accused’s intent to injure at the time the statement was uttered or written. What the Judicial Panel did in this case was much more reasonable: consider the total harm done by the statement as a factor in the punishment.

Christobek also encouraged this Panel to consider the State of Ohio Constitution. Specifically, Article I § 11: “Freedom of Speech; of the press; of libels.” Christobek cited the portion of this Article that states:

In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.

This passage does not exonerate Christobek. This Panel views this passage as a three-pronged examination. The facts determined by the Judicial Panel do not allow this Panel to conclude that each prong of this examination was satisfied.

Finally, the Common Law standard for slander is a reckless disregard for the truth. American courts have determined many times that this standard need not apply to speech in American schools and universities. This Panel now follows this reasoning. Since this case involves speech made at a school-sponsored event about another student, it is possible to afford greater latitude when regulating this type of speech.

For the foregoing reasons, we AFFIRM the decision of the Judicial Panel.

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