Defendant Mackinac Center for Fublic Folicy (Mackinac) appeals by leave granted from the trial court’s order denying its motion for summary disposition of plaintiffs’ claims of invasion of privacy. Flaintiffs alleged that a publication by Mackinac gave rise to both “appropriation” and “false light” claims of invasiоn of privacy. We conclude that plaintiffs’ appropriation claim must fail because Mackinac’s publication was protected by the First Amendment because its *298 subject matter was a matter of legitimate public concern. We further conclude that the false light claim must fail because plaintiffs failed tо produce sufficient evidence that Mackinac acted with actual malice. We reverse and remand for entry of an order dismissing plaintiffs’ claims.
BASIC FACTS AND PROCEEDINGS BELOW
Plaintiff Luigi Battaglieri is president of the Michigan Education Association (MEA), a union representing many Michigan teachers. Defendant Mackinac is a self-described “think tank,” a rеsearch and advocacy group that oftentimes advances public policy positions adverse to those of the MEA on education issues.
On September 27, 2001, Battaglieri held a press conference to announce the establishment of a competing MEA think tank, the Great Lakes Center for Education Praсtice and Research (Great Lakes). During the press conference, Battaglieri characterized the opening of Great Lakes as “the MEA [taking] on .. . Mackinac Center” and discussed an analysis undertaken by Great Lakes that criticized research conducted by Mackinac on various education poliсy questions.
At issue here is a statement made by Battaglieri:
And so, quite frankly, I admire what they’ve done over the past couple of years [,] entering into the field as they have, and pretty much being the sole provider of... research to the community ... to the public, to our members, to legislators and so on.
Mackinac later used part of this remark in its “Freedom Fund” letter as fоllows:
By all measures the Mackinac Center has had an outstanding year and the people of Michigan are the beneficiaries. But you don’t need to take my word for it.
*299 This fall Luigi Battaglieri, president of the Michigan Education Association, stated, “Frankly, I admire what the Mackinac Center has done.” Mr. Battaglieri, whose union is gеnerally at odds with the Mackinac Center, said this with respect to how Mackinac Center research has shaped education reform in Michigan and around the nation.
The Freedom Fund letter was mailed to about 20,000 addresses as part of Mackinac’s annual year-end fund-raising campaign.
As the above shows, Mackinаc’s publication did not misquote the portion of Battaglieri’s comments that was included in the letter and plaintiffs do not so allege. Instead the complaint alleges that the Mackinac publication was an “invasion of privacy, misappropriation of another’s name for commercial benefit” and that it wаs an “invasion of privacy — false light.”
Following discovery, defendant moved for summary disposition of plaintiffs’ claims pursuant to MCR 2.116(C)(8) and (10). The trial court denied the motion and defendant now appeals by leave granted.
STANDARD of review
An order granting summary disposition is reviewed de novo on appeal.
Michigan Mut Ins Co v Dowell,
APPROPRIATION CLAIM
The Michigan Supreme Court has recognized the right of privacy and that tort claims can be brought for invasions of that right under the two theories advanced by plaintiffs here. As noted in
Tobin v Civil Service Comm,
The common-law right of privacy is said to protect against four types of invasion of privacy.
1. Intrusion upon the plaintiffs seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which plaсes the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. [Citations and quotation marks omitted; emphasis added.]
With respect to the fourth of these causes of action, Mackinac does not argue that its use of Battaglieri’s name and statement in the Freedom Fund letter falls outside the purview оf the appropriation tort. Instead, it contends that its use of Battaglieri’s name and statement is protected under the First Amendment because the letter concerned a matter of legitimate public concern. We agree.
The invasion of privacy cause of action for appropriation is founded upon “the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him or to others.” 3 Restate *301 ment, Torts, 2d, § 652C, comment a. The right protected by the tort “is in the nature of a property right,” id., which the tort recognizes as being violated whenever “the defendant makes use of the plaintiffs name or likeness for his own purposes and benefit . . . .” Id., comment b. Thus, in contrast to the other forms of invasion of privacy, there need be no allegation that a statement about a plaintiff was an intrusion upon seclusion or private matters or that it was in any way false. Instead, any unauthorized use of a plaintiffs name or likeness, however inoffensive in itself, is actionable if that use results in a benefit to another.
Perhaps because this theory of liability is so far-reaching, courts
1
that have recognized the appropriation tort have also uniformly held that the First Amendment bars appropriatiоn liability for the use of a name or likeness in a publication that concerns matters that are newsworthy or of legitimate public concern. See, e.g.,
Dickerson & Assoc, LLC v Dittmar,
*302
Whether the privilege applies depends on the character of the publication.
Dickerson, supra. A
defendant can be “liable for the tоrt of misappropriation of likeness only if defendant’s use of plaintiffs likeness was for a predominantly commercial purpose .... The use must be mainly for purposes of trade, without a redeeming public interest, news, or historical value.”
Tellado v Time-Life Books, Inc,
Having reviewed the Freedom Fund letter at issue here, we conclude that the privilege applies to protect Mackinac from liability for appropriating plaintiffs name and likeness. Clearly, the letter conveyed a great deal of information about public policy questions facing Michigan in education and other areas of general interest. Its reference to plaintiff and his statement was made in the context of that, to illustrate how well Mackinac has been doing in advocating for the policies it supports. Further, plaintiff Battaglieri’s action in calling the press conference itself illustrates that the educational issues addressed in the letter were of public interest, so much so that the founding of a think tank to advocate a competing viewpoint on those issues was newsworthy.
We acknowledge that the Freedom Fund letter also had а “pecuniary” or “commercial” purpose to the extent that it was also a clear request for charitable contributions to support Mackinac’s work. Nonetheless, a publication that has “commercial undertones” may still be protected if it concerns a legitimate matter of public concern. See, e.g., Ault v Hustler Magazine, *303 Inc, 860 F2d 877, 883 (CA 9, 1988). 2 “The cases uniformly apply a newsworthiness privilege to matters . . . even though they are published to make a profit.” Haskell, supra at 545. A different approach “would preclude the publication of much news and other matters of legitimate public concern.” Dickerson, supra at 1004.
In sum, the Freedom Fund letter did, as defendants argue, havе a fundraising purpose. Nonetheless, the publication also attempted to educate its readers on a number of public policy issues. It further tried to convince its readers that Mackinac had the right answers to those policy questions and was effectively advocating for appropriate solutions. Aсcordingly, we conclude that the publication falls squarely within the protection of the First Amendment for discourse on matters of public interest. The trial court erred in failing to grant defendant summary disposition on the appropriation claim.
FALSE LIGHT INVASION OF PRIVACY
In the amended complaint, plaintiffs further alleged that the Mackinac lettеr constituted a false light invasion of privacy. In contrast to the appropriation cause of action discussed above, where falsity is not needed to state a claim, the gravamen of this tort is that a defendant’s publication “attributed] to the plaintiff characteristics, conduct, or beliefs that were false and
*304
placed the plaintiff in a false position.”
Duran v Detroit News, Inc,
Thus, this cause of action is similar to a defamation claim and, as with such a claim, the First Amendment requires that public-figure
3
plaintiffs must prove actual malice with clear and convincing evidence.
Ireland v Edwards,
“Actual malice is defined as knowledge that the published statement was false or as reckless disregard as to whether the statement was false or not. Reckless disregard for the truth is not established merely by showing that the statements were made with preconceived objectives or insufficient investigation. Furthermore, ill will, spite or even hatred, standing alone, do not amount to actual malice. ‘Reckless disregard’ is not measured by whether a reаsonably prudent man would have published or would have investigated before publishing, but by whether the publisher in fact entertained serious doubts concerning the truth of the statements published.” [Id. at 622, quoting Grebner v Runyon,132 Mich App 327 , 332-333;347 NW2d 741 (1984) (citations omitted).]
Whether the evidence is sufficient to state an actual malice claim is a question of law.
Id.
We “must make an independent examination of thе record to ensure against forbidden intrusions into the field of free expression . . . .”
Northland Wheels Roller Skating Ctr, Inc v Detroit Free Press, Inc,
Plaintiffs’ contention is that, while the statement made by Battaglieri at the press conference was not misquoted, its publication nonetheless presented him in a false light because a reader could reasonably draw the inference from it that he was endorsing the substance of Mackinac’s policies, rather than just expressing respect for its advocacy of those policies. However, the actual malice test mandates a
subjective
inquiry concentrating on the knowledge of a defendant at the time of a publication. See
Harte-Hanks Communications, Inc v Connaughton,
We have conducted the constitutionally required independent examination of the evidence presented here and concludе that, under the actual malice require *306 ments imposed by the First Amendment, plaintiffs’ complaint should have been dismissed as a matter of law. While the Freedom Fund letter might conceivably have allowed a reader to conclude that Battaglieri was endorsing Mackinac’s education policies, rather than merely recognizing its effectiveness in lobbying for those policies, that would require a “strained reading” of the document. It is highly unlikely that the recipients of the letter would conclude that Battaglieri was suddenly supportive of Mackinac’s positions notwithstanding the longstanding, well-known, and sharp differences of opinion between Mackinac and the MEA in the past. Further, the article itself belies such an interpretation by noting that Battaglieri’s “union is generally at odds with the Mackinac Center . . . .’’As noted earlier, it is necessary for plaintiffs to prove that defendant intended the offensive interpretation that they allege but, had defendant had such an intent, it seems highly unlikely thаt this would have been included.
Further, the Mackinac employees responsible for the publication directly testified at their depositions that they did not intend to have readers infer that Battaglieri was endorsing the substance of Mackinac’s education policies. In response, plaintiffs note precedents rеasoning that it would be rare for a defendant to admit actual malice, e.g.,
Solano v Playgirl, Inc,
*307 To avoid summary disposition, plaintiffs had to come forward with sufficient evidence to prove actual malice “by clear and convincing evidence. . . [which is] a ‘heavy burden,’ far in excess of the preponderance sufficient for most civil litigation.” Id. at 1252 (citation omitted). Thе record reveals no such evidence here. The trial court erred in failing to dismiss plaintiffs’ claim of false light invasion of privacy.* **** 6
We reverse and remand for entry of an order dismissing plaintiffs’ claims. We do not retain jurisdiction.
Notes
Although there are Michigan precedents recognizing the appropriation theory of liability, nоne provides any guidance on how it is to be applied. Accordingly, we consult precedents from other jurisdictions that we find helpful.
We are aware that, to the extent
Ault
recognized First Amendment protection for statements of opinion, it has been effectively overruled by
Milkovich v Lorain Journal Co,
Plaintiffs do not argue that Battaglieri is not a public figure for the purpose of their false light claim.
Because of the similarity between this false light invasion of privacy claim and a defamation claim, we consider and rely on precedents discussing the actual malice standard in both contexts.
In their brief on appeal, plaintiffs argue that “the evidence of the Mackinac Center’s consistent efforts to harm the MEA” suffices to allow *307 this matter to go to a jury. However, as explained above, the actual malice standard has nothing to do with any generalized antipathy or longstanding hostility between a plaintiff and defendаnt; it concentrates instead on the defendant’s subjective state of mind at the time of the specific publication at issue.
In fight of this conclusion, we need not address defendant’s other arguments regarding plaintiffs’ false fight claim, i.e., that the statement made in the Freedom Fund letter was not actionable because it was not able to he proven false, see, e.g.,
Ireland, supra
at 621-622, or sufficiently offensive, see, e.g.,
Reed v Ponton,