McKimm v. Ohio Elections Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

[Cite as McKimm v. Ohio Elections Comm., 89 Ohio St.3d 139, 2000-Ohio-118.]

MCKIMM, APPELLEE, v. OHIO ELECTIONS COMMISSION, APPELLANT.
[Cite as McKimm v. Ohio Elections Comm. (2000), 89 Ohio St.3d 139.]
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.

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.

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."

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.)

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.
2

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."

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."

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.

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."
3

For his part, Gonzalez testified that his vote on the unbid construction
contract was a legal action that occurred at a public meeting.

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.

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.

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."

The cause is now before this court upon the allowance of a discretionary
appeal.
4

__________________

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. 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.

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)

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)
"knowing the same to be false or with reckless disregard of whether it was false
or not." R.C. 3517.21(B)(10).1
5

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.

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

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
In
Milkovich v. Lorain Journal Co., the United States Supreme Court
applied an objective standard to assess the meaning of allegedly libelous
6

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.

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

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
7

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

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 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
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
8

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.

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.)

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.
9

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 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

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.

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
10

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

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. 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

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.

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
11

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.
2. The Evidentiary Requirements of the Actual-Malice Standard

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.

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
12

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 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.
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.

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.

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
13

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.

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."

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."

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.
14

Conclusion

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

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.
FOOTNOTES:

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.
15

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.

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.

16

APPENDIX

17