Jerry Reighard v. Espn IncJerry Reighard v. Espn Inc
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
Before: BOONSTRA, P.J., and M. J. KELLY and SWARTZLE, JJ.
PER CURIAM.
In this defamation action, plaintiff Jerry Reighard (Reighard) appeals by right the trial court‘s order granting defendants’ motion for summary disposition under
For 35 years, Reighard was the head women‘s gymnastics coach at Central Michigan University (CMU). On February 20, 2019, CMU announced that it had placed Reighard on paid administrative leave pending an investigation. No details regarding the investigation were disclosed in that announcement. However, citing confirmation by CMU‘s athletic director, multiple news articles reported on that date that the investigation had “nothing to do with [former gymnastics physician] Larry Nassar‘s case or sexual misconduct of any kind”1 or “Title IX”2.
Defendant Daniel Murphy is a reporter for defendant ESPN, Inc. In that capacity, Murphy had previously reported on issues relating to gymnastics, including coverage of Nassar‘s sexual abuse of gymnasts and John Geddert‘s reported physical and mental abuse of gymnasts.3 Indeed, Murphy‘s reporting in 2018 regarding the Nassar sexual abuse scandal has earned him and his ESPN colleagues multiple awards—including an IRE4 Award for Sports Investigations and a Peabody Award.5 Murphy also has co-authored a book entitled: Start by Believing: Larry Nassar‘s Crimes, the Institutions that Enabled Him, and the Brave Women Who Stopped a Monster. According to Murphy, the book refers to Geddert as one of the individuals who enabled Nassar.6
On February 21, 2019, Murphy posted on Twitter consecutive tweets about two public announcements concerning women‘s gymnastics coaches in Michigan. The first tweet referred to an announcement by the Michigan attorney general:
Michigan‘s attorney general announced today her office is taking over an investigation of John Geddert, the 2012 Olympic team head coach and close friend of Larry Nassar. Several gymnasts have publicly abused [sic] Geddert of physically and mentally harming them.
The second tweet—which was posted within a minute of the first tweet—addressed CMU‘s announcement concerning Reighard:
On the same day as the AG‘s announcement, Central Michigan said it was putting longtime gymnastics coach Jerry Reighard on leave amid an internal review. No details of the review were shared, but Reighard has a long personal and professional relationship with Geddert.
Central Michigan hopes to have its internal investigation of Jerry Reighard completed by the end of the semester. An athletic dept. spokesman confirmed today Reighard remains on paid leave and the investigation is not connected to the Larry Nassar scandal or sexual misconduct.
Reighard filed suit, alleging that Murphy‘s initial tweets constituted defamation per se and false light invasion of privacy.7 After defendants answered the complaint, discovery ensued. Murphy testified at his deposition that, before publishing the tweets, confidential sources had informed him that Reighard had been placed on administrative leave, that Reighard, like Geddert, had a reputation for physically and mentally abusing gymnasts, and that Geddert and Reighard had a longstanding and friendly relationship. To verify the information, Murphy read CMU‘s announcement placing Reighard on administrative leave pending an investigation. He also reviewed a 2012 news article indicating that Reighard and Geddert had a professional relationship and that they were friendly with each other. He testified that it was important that he perform due diligence to confirm what he had been told, and that due diligence was important because “[i]t‘s my job.” He also testified that his purpose was to establish a relationship between Reighard and Geddert.
Murphy indicated that, based on what he had learned, he believed there might be a connection between the attorney general‘s announcement regarding the investigation into Geddert and CMU‘s announcement regarding its investigation into Reighard. In his view, his two initial tweets properly raised that question. He indicated that at the time of his tweets, he had no information suggesting that Reighard was “connected to Larry Nassar and Geddert in any sexual abuse scandal” or that Reighard had been accused of any kind of sexual abuse “in a criminal sense.” He acknowledged that, in his first tweet, he established a relationship between Nassar and Geddert, and in his second tweet, he established a relationship between Geddert and Reighard. But he denied that his tweets had linked the three men. Despite
Murphy also testified, however, that he had not attempted to contact Reighard or CMU‘s athletic director before posting his tweets, because “[t]he information I needed was in a public press release.” He also testified that he had not seen the earlier news reports confirming that there was no connection between the investigation of Reighard and sexual misconduct of any kind or the sexual-abuse scandal concerning Nassar. He testified that he did not know whether, had he known that information, he would have tweeted as he did. He indicated that he did not know whether it would have been important to include that information in his tweets, and that he could not say or control how anyone might read them.
Defendants moved for summary disposition under
Following a hearing, the trial court granted defendants’ motion, concluding there were no genuine issues of material fact regarding Reighard‘s defamation and false light claims because the tweets were substantially true and, even if they were not, Reighard was a limited-purpose public figure and there was no evidence that Murphy had acted with actual malice.9 Reighard moved for reconsideration, arguing that the trial court had failed to address his claim for defamation by implication. The trial court denied the motion. This appeal followed.
II. STANDARD OF REVIEW
Reighard argues that the trial court erred by granting defendants’ motion for summary disposition. This Court reviews de novo a trial court‘s decision on a motion for summary disposition and whether the trial court properly applied the constitutional standard for defamation. Redmond v Heller, 332 Mich App 415, 438; 957 NW2d 357 (2020). Summary disposition under
III. ANALYSIS
A. DEFAMATION AND THE FIRST AMENDMENT
The law of defamation lies at a crossroads with that of the First Amendment. The First Amendment, of course, protects, in part, freedom of speech and freedom of the press.
The law of defamation arises as a matter of state common law—from the world of tort. It seeks to protect against injury to reputation caused by the publication of falsehoods:
A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. [3 Restatement Torts, 2d, §559 at 156.]
Thus, “[a] communication is defamatory if it tends to lower an individual‘s reputation in the community or deters third persons from associating or dealing with that individual.” Ireland v Edwards, 230 Mich App 607, 614; 584 NW2d 632 (1998). “However, not all defamatory statements are actionable.” Id. Generally, “[i]f a statement cannot be reasonably interpreted as stating actual facts about the plaintiff, it is protected by the First Amendment.” Id. See also Milkovich v. Lorain Journal Co, 497 US 1, 20; 110 S Ct 2695; 111 L Ed 2d 1 (1990). “Thus, at least some expressions of opinion are protected.” Ireland, 230 Mich App at 614, citing Milkovich, 497 US at 18-20. Otherwise, a plaintiff can establish a defamation claim by showing:
(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication. [Smith v Anonymous Joint Enterprise, 487 Mich 102, 113; 793 NW2d 533 (2010) (quotation marks and citation omitted).]
The quandary lies in determining at what point the law of defamation abridges freedom of speech or of the press.
1. THE STARTING POINT
The starting point for that analysis is how the framers of the First Amendment perceived its interaction with the common law of defamation. As Justice WHITE stated in Gertz v Robert Welch, Inc, 418 US 323; 94 S Ct 2997; 41 L Ed 2d 789 (1974) (WHITE, J., dissenting):
For some 200 years—from the very founding of the Nation—the law of defamation and right of the ordinary citizen to recover for false publication injurious to his reputation have been almost exclusively the business of state courts and legislatures. Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule. Given such publication, general damage to reputation was presumed, while punitive damages required
proof of additional facts. The law governing the defamation of private citizens remained untouched by the First Amendment because until relatively recently, the consistent view of the Court was that libelous words constitute a class of speech wholly unprotected by the First Amendment, subject only to limited exceptions carved out since 1964. [Id. at 369-370.]
2. NEW YORK TIMES AND ITS PROGENY
In 1964, the United States Supreme Court issued its seminal decision in New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964). It adopted an “actual malice” test for defamation claims brought by public officials relating to criticism of their official conduct:
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. [Id. at 279-280.]
That test has since been expanded to public figures. See Curtis Publishing Co v Butts, 388 US 130, 162; 87 S Ct 1975; 18 L Ed 2d 1094 (1967). The Court in Gertz described public figures as follows:
Respondent‘s characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. [Gertz, 418 US at 351.]
B. DEFAMATION BY IMPLICATION
A subset of the tort of defamation is known as “defamation by implication.” “[A] cause of action for defamation by implication exists in Michigan, but only if the plaintiff proves that the defamatory implications are materially false.” Hawkins v Mercy Health Services, Inc, 230 Mich App 315, 330; 583 NW2d 725 (1998). See also Locricchio v Evening News Ass‘s, 438 Mich 84, 122; 476 NW2d 112 (1991); American Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich App 695, 702; 609 NW2d 607 (2000). “[S]uch a cause of action might succeed even without a direct showing of any actual literally false statements.” Hawkins, 230 Mich App at 330. Liability for defamation by implication may be imposed based not on what is affirmatively stated, but on what is implied when a defendant “juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts [such that] he may be held responsible for the defamatory implication.” Prosser & Keeton, Torts (5th ed), § 116, p 117. “A defamation by implication stems not from what is literally stated, but from what is implied.” White v Fraternal Order of Police, 909 F2d 512, 518 (DC Cir, 1990).
C. APPLICATION
On appeal, Reighard argues that, even if the statements in Murphy‘s tweets were not themselves materially false, the implications arising from the statements were false. He further argues that there was sufficient evidence of actual malice to survive
1. THE IMPLICATIONS
As noted, the tweets, which were published on February 21, 2019, stated:
Michigan‘s attorney general announced today her office is taking over an investigation of John Geddert, the 2012 Olympic team head coach and close friend of Larry Nassar. Several gymnasts have publicly abused [sic] Geddert of physically and mentally harming them.
On the same day as the AG‘s announcement, Central Michigan said it was putting longtime gymnastics coach Jerry Reighard on leave amid an internal review. No details of the review were shared, but Reighard has a long personal and professional relationship with Geddert.
Reighard identifies two allegedly defamatory implications in the tweets. First, that there was a connection between CMU‘s decision to place him on administrative leave and the attorney general‘s investigation into the allegations that Geddert had physically and mentally harmed gymnasts. Second, that there was a connection between Reighard being placed on administrative leave and Nassar or sexual-abuse allegations.
2. CAPABLE OF DEFAMATORY MEANING
“[A] court may decide as a matter of law whether a statement is actually capable of defamatory meaning.” Ireland, 230 Mich App at 619 (citation omitted). “Where no such meaning is possible, summary disposition is appropriate.” Id. “A communication is defamatory if, considering all the circumstances, it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Id.
Although the trial court held, on reconsideration, that the tweets “[did] not create a clear implication that plaintiff committed the same kind of sexual abuse crimes as Nassar,” it did not address whether the alleged implications, if proven, were capable of defamatory meaning. Plaintiffs argue that the tweets could reasonably be interpreted as connecting Reighard with sexual abuse allegations. Defendants disagree. We agree with Reighard.
The first tweet identified Geddert as the head coach of the 2012 Olympic team and that he was close friends with Nassar. At the time, it was well-known that Nassar had been the team physician for USA Gymnastics and had treated many gymnasts in his role as a physician at Michigan State University. The second tweet identified Reighard as CMU‘s “longtime gymnastics coach” and stated that Geddert and Reighard are also friends. Thus, reading the tweets in context, a reasonable reader could infer that all three men had been involved in gymnastics and were friends with each other.
Next, the first tweet stated that the attorney general was taking over an investigation into allegations that Geddert had physically and mentally harmed several gymnasts. Further, by mentioning Geddert‘s close association with Nassar, the tweet arguably implied a connection between the investigation into Geddert and Nassar‘s sexual-abuse convictions. The second tweet links to the first by referencing the attorney general‘s investigation. It then noted that Reighard had been placed on administrative leave pending an internal review. It stated that no details of the review were shared by CMU; however, by using the word “but” in its final sentence, the tweet arguably implied that the reason Reighard was placed on administrative leave was related to a supposedly long
We conclude, particularly in light of the manner in which the statements contained within the tweets were juxtaposed with one another, that the implications complained of are capable of defamatory meaning. See Ireland, 230 Mich App at 619-620. The implication that Reighard‘s placement on leave was related to allegations that Geddert had physically and mentally harmed gymnasts tended to harm Reighard‘s reputation so as to lower him in the estimation of the community or deter third persons from associating or dealing with him. That assessment is even more true with respect to the second alleged implication, i.e., that Reighard‘s placement on leave was related to Nassar or sexual abuse allegations. This is not so strained a reading of the tweets as to make summary disposition appropriate. Rather, we conclude that it is one that a reasonable jury should assess. Thus, these statements are actionable.11
3. FALSITY
In another context, this Court has observed that “claims of defamation by implication, which by nature present ambiguous evidence with respect to falsity, face a severe constitutional hurdle.” Locricchio, 438 Mich at 122. That is only partially true in this case, however.12
To analyze this element of Reighard‘s defamation-by-implication claim, we will separately analyze each of the complained-of implications. With regard to the first implication, i.e., that there was a connection between CMU‘s investigation of Reighard and the attorney general‘s investigation of Geddert (for alleged physical and mental abuse),13
The same cannot be said, however, with regard to the second implication, i.e., that there was a connection between Reighard being placed on administrative leave and Nassar or sexual-abuse allegations. Indeed, the falsity of that implication is uncontested. Moreover, the evidence reflects that CMU confirmed on February 20, 2021—as reported by multiple news outlets at that time—that its investigation into Reighard was not connected to Nassar or allegations of sexual abuse. Moreover, when Murphy contacted CMU after being asked to retract his tweets, he was provided with the same information. Reighard has therefore satisfied the “falsity” element with respect to the second complained-of implication.
We note that, in granting summary disposition in favor of defendants, the trial court concluded in part that the “gist” of the statements contained in the tweets was accurate. However, the trial court at that time was considering only the factual statements expressly set forth in the tweets. In subsequently denying Reighard‘s motion for reconsideration, the trial court reiterated that it had previously found that the gist of Murphy‘s tweets was accurate. The trial court‘s language derives from what is known as the “substantial truth defense.” As our Supreme Court stated in Rouch v Enquirer & News of Battle Creek Michigan, 440 Mich 238; 487 NW2d 205 (1992):
The common law has never required defendants to prove that a publication is literally and absolutely accurate in every minute detail. For example, the Restatement of Torts provides that “[s]light inaccuracies of expression are immaterial provided that the defamatory charge is true in substance.” [Id. at 258-259, citing 3 Restatement Torts, 2d, §581, comment f, p 237.]
The Court in Rouch further noted that, notwithstanding that Hepps had shifted the burden of proof (of falsity) to the plaintiff, the definition of falsity, based on common-law doctrine, remained as set forth in Masson v New Yorker Magazine, Inc, 501 US 496; 111 S Ct 2419; 115 L Ed 2d 447 (1991):
The common law of libel takes but one approach to the question of falsity, regardless of the form of the communication. . . .
It overlooks minor inaccuracies and concentrates upon the substantial truth.... The essence of that inquiry, however, remains the same whether the burden rests upon plaintiff or defendant. Minor inaccuracies do not amount to falsity so long as “the substance, the gist, the sting, of the libelous charge be justified.” . Put another way, the statement is not considered false unless it “would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” [Rouch, 440 Mich at 260, citing Masson, 501 US at 516-517 (citations omitted in original).]
We further note that this Court has stated that “there is no logical reason why the substantial truth defense should not apply in cases involving the gist or the sting of defamatory implications from statements that are literally true.” Hawkins, 230 Mich App at 333.
That said, we conclude in the circumstances of this case that the second implication complained of by Reighard, i.e., that there was a connection between Reighard being placed on administrative leave and Nassar or sexual-abuse allegations, would, if proved, “have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Masson, 501 US at 517. Consequently, any implication that Reighard was placed on administrative leave for reasons related to Nassar or sexual abuse allegations was false, and the trial court erred, with respect to this alleged implication, to the extent it granted summary disposition on the basis of the “gist” or substantial truth of the statements contained in the tweets.
4. LIMITED-PURPOSE PUBLIC FIGURE
The trial court held that Reighard was a limited-purpose public figure. And, as the trial court noted, many courts indeed have classified sports figures, including coaches, as public figures (or limited-purpose public figures) by virtue of their positions, at least with regard to comments concerning their positions. Reighard has now stipulated to limited-purpose-public-figure status.14
5. ACTUAL MALICE
Because Reighard has been deemed to be a limited-purpose public figure, he must also establish by clear and convincing evidence that Murphy made the allegedly defamatory implication with actual malice. See Ireland, 230 Mich App at 615. Of course, in the defamation context, “actual malice” does not refer to a defendant‘s motive or any sense of ill will in the ordinary sense of the term. See Harte-Hanks Communications, Inc v Connaughton, 491 US 657, 666-667 and n 7; 109 S Ct 2678; 105 L Ed 2d 562 (1989) (“The phrase ‘actual malice’ is unfortunately confusing in that it has nothing to do with bad motive or ill will.”). Rather, as explained in Ireland,
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 reasonably 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. [Ireland, 230 Mich App at 622 (quotation marks and citation omitted).]
See also Harte-Hanks, 491 US at 688 (“In a case such as this involving the reporting of a third party‘s allegations, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”) (citation and internal quotation omitted); Grebner v Runyon, 132 Mich App 327, 337; 347 NW2d 327 (1984) (“[T]here was a genuine issue as to whether MegaMedia, in fact, entertained serious doubts concerning the truth of the statements published and whether the failure to make a phone call verifying the report amounted to reckless disregard as to the truthfulness of the report. We find that this matter should have been left to the trier of fact. Where the credibility of a witness or deponent is crucial, summary judgment should
not be granted. Plaintiff‘s allegations were sufficient to withstand a motion for summary judgment.”).
Thus, “‘actual malice’ is a subjective concept.” Smith, 487 Mich at 115. It “mandates a subjective inquiry concentrating on the knowledge of a defendant at the time of a publication.” Ireland, 230 Mich App at 305. However, a defendant will not automatically prevail in a defamation case by stating that the statements were made with a belief that they were true, because a defendant‘s state of mind may be established “through circumstantial evidence.” Smith, 487 Mich at 115-116. Moreover, “[a]lthough failure to investigate will not alone support a finding of actual malice . . . the purposeful avoidance of the truth is in a different category.” Harte-Hanks, 491 US at 692 (citation omitted).
The actual malice test is further complicated in this case by the fact that Reighard‘s claim is one of defamation-by-implication. This Court has said (albeit in the analogous false light invasion of privacy context) that when the plaintiff‘s injury arises from an allegedly harmful implication, the plaintiff must prove by clear and convincing evidence that the defendant “intended or knew of the implications that the plaintiff is attempting to draw . . . .” Battaglieri v Mackinac Ctr for Pub Policy, 261 Mich App 296, 305; 680 NW2d 915 (2004) (quotation marks and citation omitted). See also Royal Palace Homes, Inc v Channel 7 of Detroit, Inc, 197 Mich App 48, 56 (stating that a defendant is not responsible for every defamatory implication that may be drawn from a report of true facts, unless evidence is presented that the defendant intended the defamatory implication).
But what does it mean to “intend” the implication? Delving a bit deeper into the authorities relied on by these cases answers the question. In short, just as “actual malice” means either knowledge or recklessness with regard to falsity, so too, “intended” in this context means either knowledge or recklessness with regard to the implication. See, e.g., Saenz v Playboy Enterprises, Inc, 841 F2d 1309, 1318 (CA 7, 1988) (stating that the plaintiff must show that “the defendants either intended or were reckless with regard to the potential falsity of defamatory inferences which might be drawn from the article”) (emphasis added). That is, “[n]ot only must the plaintiff establish that the statement is susceptible of a defamatory meaning which the defendants knew to be false or which the defendants published
To satisfy that element in this case, Reighard directs this Court to Murphy‘s deposition testimony. Specifically, Murphy testified that when he wrote the tweets, he did not know—one way or the other—whether there had been allegations of sexual abuse against Reighard, and that he did not believe at the time that
We conclude, however, that there is adequate circumstantial evidence for this question to be decided by the fact-finder. As noted, for example, by using the word “but” in the final sentence of the second tweet, Murphy seemed to imply that Reighard was placed on administrative leave for reasons that were related to a supposedly long, personal and professional relationship with Geddert. And those assertions were neatly juxtaposed with an immediately-preceding statement establishing a personal relationship between Geddert and Nassar. Moreover, while acknowledging that due diligence was an essential part of his job, and therefore that it was necessary for him to verify the information he had learned, he pointedly did not attempt to contact either Reighard or CMU‘s athletic director before posting his tweets, and he did not do even the minimal due diligence
We recognize that “failure to investigate the accuracy of a communication before publishing it” is not alone sufficient to establish actual malice. Smith, 487 Mich at 117.15 However, “a ‘purposeful avoidance of the truth’ is dissimilar from the mere ‘failure to investigate,’ and ‘a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity’ of a publication is sufficient to find reckless disregard.” Id., citing Harte-Hanks, 491 US at 692. In this case, in the totality of the circumstances and based on our independent review of the entire record, we conclude from the juxtaposition of the statements contained in
6. FAULT
Because as the fact-finder will on remand be instructed the elements of a defamation claim include “fault amounting at least to negligence on the part of the publisher,” Smith, 487 Mich at 113, liability will not be imposed in this case absent a showing of “fault,” see Gertz, 418 US at 347. That issue is therefore properly left to the fact-finder.
D. FALSE LIGHT INVASION OF PRIVACY
Because Reighard‘s defamation and false light invasion of privacy claims are governed by the same legal standards, see Ireland, 230 Mich App at 624-625, we similarly reverse in part the trial court‘s order granting summary disposition on Reighard‘s false light invasion of privacy claim.
IV. CONCLUSION
For all of the reasons
/s/ Mark T. Boonstra
/s/ Michael J. Kelly
/s/ Brock A. Swartzle