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.
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 research and advocacy group thаt 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 Practice and Research (Great Lakes). During thе 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 policy questions.
At issue here is a statement made by Battaglieri:
And so, quite frankly, I admire what they’ve donе 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 follows:
By all measures the Mackinac Centеr has had an outstanding year and the people of Michigan are the beneficiaries. But you don’t need to take my word for it.
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 generally at odds with the Mackinac Center, sаid 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, Mackinac’s publication did not misquote the portiоn 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 was an “invasion of privacy — false light.”
Following disсovery, 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,
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 places the plaintiff in a false light in the public eyе.
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 of the appropriation tort. Instead, it сontends 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 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 appropriation liability for the use of a name or likeness in а publication that concerns matters that are newsworthy or of legitimate public concern. See, e.g.,
Dickerson & Assoc, LLC v Dittmar,
Whether the privilege applies depends on the character of the publication.
Dickerson, supra. A
defendant can be “liable for the tort of misappropriation of
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 a “pecuniary” or “commercial” purрose 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, 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, have a fundraising purpose. Nonetheless, the рublication 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. Accordingly, we conclude that the publicаtion 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 letter constituted a false light invasion of privaсy. 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
placed the plaintiff in a false position.”
Duran v Detroit News, Inc,
“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 rеasonably 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 оf the 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,
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 prеcedents reasoning that it would be rare for a defendant to admit actual malice, e.g.,
Solano v Playgirl, Inc,
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 (citаtion omitted). The 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 thеory of liability, none 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 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 plаintiff and defendant; 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,