DOUGLAS, J., dissenting.

I respectfully but vehemently dissent from the judgment and opinion of the majority because the majority has instituted a more stringent standard regarding the reporting of newsworthy events than previously established by this court. By today's decision, the majority effectively negates, I believe, the First Amendment underpinnings of R.C. 2317.05, and, unfortunately, turns what was once considered a statutory shield into a sword. Further, I also dissent because the majority has failed to recognize that the July 20, 1992 newspaper article was protected by the "neutral reportage" doctrine.

The purpose of Ohio's fair and impartial reporting statute is to promote, not inhibit, the reporting of newsworthy events by the media. R.C. 2317.05 provides in part:

"The publication of a fair and impartial report of the return of any indictment, the issuing of any warrant, the arrest of any person accused of crime, or the filing of any affidavit, pleading, or other document in any criminal or civil cause in any court of competent jurisdiction, or of a fair and impartial report of the contents thereof, is privileged, unless it is proved that the same was published maliciously, or that defendant has refused or neglected to publish in the same manner in which the publication complained of appeared, a reasonable written explanation or contradiction thereof by the plaintiff * * *." (Emphasis added.)

The newspaper article at issue herein unquestionably constituted a fair and impartial report of the trial court's journal entry. The majority, however, holds that appellants are not entitled to summary judgment because the article did not include James Young's middle initial and because it incorrectly stated that he was from Amherst. The majority says that such "inaccuracies" raise a question whether the article was "`substantially accurate' making it impossible for reasonable minds to reach `but one conclusion.'" I strongly disagree.

In Oney v. Allen (1988), 39 Ohio St.3d 103, 529 N.E.2d 471, paragraph two of the syllabus, we held that a publication is privileged pursuant to R.C. 2317.05 as long as it is a substantially accurate report of the official record. In Oney, we responded to problems created by Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co. (1984), 9 Ohio St.3d 22, 9 OBR 115, 457 N.E.2d 1164 (see, also, Lansdowne v. Beacon Journal Pub. Co., 32 Ohio St.3d 176, 180, 512 N.E.2d 979, 984), and noted that the inclusion of additional information in a publication does not automatically destroy the privilege granted by R.C. 2317.05. Oney, 39 Ohio St.3d at 106, 529 N.E.2d at 474. We also held in Oney that R.C. 2317.05 does not require a verbatim reproduction of the official record. Id., paragraph one of the syllabus.

Thus, the fact that the July 20, 1992 article contains information other than information in the trial court's journal entry or the fact that the article did not include the attorney's middle initial does not preclude it from being privileged under R.C. 2317.05. "A publication is substantially accurate if it conveys the essence of the official record to the ordinary reader, without misleading the reader by the inclusion of inaccurate extra-record information or the exclusion of relevant information in the record." Oney, paragraph three of the syllabus.

It is apparent, at least to me, that the July 20, 1992 article conveyed the essence of the trial court's entry. Granted, the article could have been more accurate by including the attorney's middle initial and stating that he was from Cleveland. However, these matters should not be considered in isolation but must be read in context with the entire article. Literal accuracy is not a prerequisite to a finding that a privilege exists. "Courts have accorded protection to variances from the verbatim record `as long as the "gravamen," "gist" or "sting" or "substance" of the underlying proceeding or report * * * is substantially correct.'" Oney, 39 Ohio St.3d at 106, 529 N.E.2d at 473, citing Elder, The Fair Report Privilege (1988) 193, Section 1.21.

The article was not misleading. It conveyed that an attorney by the name of James Young was being held in contempt for failing to appear at pretrial hearing. The article was in all material respects fair, impartial and accurate.

In addition, the record is void of any evidence of malice. Furthermore, The Morning Journal complied with R.C. 2317.05 when it published a reasonable retraction. Two days after learning that the attorney held in contempt was from Cleveland, The Morning Journal published a correction, which read: "Attorney James Young, who is facing a contempt of court charge before Lorain County Common Pleas Judge Lynett McGough, was incorrectly identified as being from Amherst. Young is a Cleveland attorney, according to Judge McGough's office."

Based on the foregoing, I believe that the July 20, 1992 article was privileged pursuant to R.C. 2317.05. Accordingly, summary judgment should be granted in favor of appellants.

As a final matter, I also disagree with the decision of the majority not to formally adopt and apply the "neutral reportage" doctrine. The majority summarily dismissed the application of this privilege, stating that "[t]his court has never recognized the `neutral reportage' doctrine and we decline to do so at this time." The treatment of this issue (or lack thereof) by the majority leaves one with the impression that this doctrine is simply a common-law aberration worthy of little attention. However, what the majority does not reveal is that the neutral reportage privilege has been widely recognized by numerous courts in this state and other jurisdictions. See, e.g., April v. Reflector-Herald, Inc. (1988), 46 Ohio App.3d 95, 546 N.E.2d 466; House of Wheat v. Wright (Oct. 10, 1985), Montgomery App. No. 8614, unreported, 1985 WL 17381; J.V. Peters Co. v. Knight Ridder Co. (Mar. 21, 1984), Summit App. No. 11335, unreported, 1984 WL 4803; and Edwards v. Natl. Audubon Soc., Inc. (C.A.2, 1977), 556 F.2d 113, certiorari denied (1977), 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498.

The neutral reportage privilege is grounded in First Amendment principles. Edwards, 556 F.2d at 120. The focus of the privilege is on the subjective good faith of the journalist making the report and the public interest or newsworthiness of the story. In Krauss v. Champaign News Gazette, Inc. (1978), 59 Ill.App.3d 745, 746-747, 17 Ill.Dec. 78, 79, 375 N.E.2d 1362, 1363, the Illinois appellate court, relying on Edwards, aptly observed the rationale and justification behind the privilege and stated:

"A robust and unintimidated press is a necessary ingredient of self-government. Since the ultimate sovereign in this country is an informed citizenry, we must have information available of and about public issues and public figures upon which to make judgments as to public officials and public programs. * * * Thus, the doctrine of neutral reportage gives bent to a privilege by the terms of which the press can publish items of information relating to public issues, personalities, or programs which need not be literally accurate. If the journalist believes, reasonably and in good faith, that his story accurately conveys information asserted about a personality or a program, and such assertion is made under circumstances wherein the mere assertion is, in fact, newsworthy, then he need inquire no further. Unless it is shown that the journalist deliberately distorts these statements to launch a personal attack of his own upon the public figure or the program, that which he reports under such circumstance is privileged."

In this case, the information reported in the article was obtained from the public court records, and the reporter believed, reasonably and in good faith, that the story accurately conveyed the charge outlined in the court's entry. There is absolutely nothing in the record that indicates that the reporter or The Morning Journal intended to deliberately distort what was contained in the journal entry or that they intended to launch a personal attack against appellee. The article unquestionably constituted a fair and impartial report of a judicial matter. In this regard, I also believe that appellants are entitled to summary judgment for the additional reason that the article clearly falls within the ambit of the "neutral reportage" privilege.

It is time that Ohio be included among those enlightened jurisdictions which have adopted the doctrine of neutral reportage. This court could, in the case now before us, take this next logical step in support and protection of the right of a free press to gather and report the news. I regret that the majority has missed the golden opportunity to do so.

Accordingly, for the reasons stated herein I am compelled to dissent.

F.E. SWEENEY, J., concurs in the foregoing dissenting opinion.