Richard Bichler v. Union Bank and Trust Company of Grand Rapids

BICHLER, Plaintiff-Appellant, Richard BANK AND TRUST COMPANY

UNION al., RAPIDS, et OF GRAND

Defendants-Appellees.

No. 82-1103. Appeals,

United States Court

Sixth Circuit.

Argued 1984. Jan. Sept.

Decided 30, 1984.

As Amended Oct. Jackson, Laska,

Wilson M. Jackson & Warren, Mich., (argued), Dorsi Bosca plaintiff-appellant. Warner, Cragwall, (argued),

J.A. Jr. Nor- Judd, Bandstra, cross & Richard Grand Mich., Rapids, defendants-appellees. LIVELY, Judge; Before ED Chief WARDS, ENGEL, KEITH, MERRITT, MARTIN, JONES, CONTIE, KRUPAN WELLFORD, and Judges;* SKY Circuit WEICK, Judge. Senior Circuit LIVELY, Judge. Chief appeal by plaintiff This is an summary judgment in favor of the defend- Rapids, Michigan, ant WZZM-TV of Grand claiming in an action that a broadcast plaintiff’s defendant invaded the privacy. Jurisdiction is on diversi- based ty citizenship, law of substantive appeal origi- controls. This nally by panel heard of the court and its (6th opinion, reported at 715 F.2d 1059 Cir. 1983), rehearing was vacated en banc granted reported in an order (6th Cir.1983). F.2d 802 I. president Bichler was principal shareholder of Rebel Promo-

tions, Inc., Michigan corporation operated the Thunderbird Dinner Theater Alpine Township, Rapids, Grand near Michigan. general manager As of the the- productions, ater booked various press. which were advertised in the local reviewed, productions were also news stories were run about the theater * hearing Judge Kennedy participate in the en banc or decision. did not Press, Rapids only daily zyk

The Grand described himself “silent partner" newspaper in the area. the dinner theater. He had money advanced to Bichler and was wor- Jerry pro- and his Bichler hired Moore ried about effect the would have stage plays company to several duction ability of the theater to continue theater, including “Hair” and “Jesus operations. He had learned from Moore Superstar.” Moore and Bichler had Christ planned story that WZZM to include the dispute stopped pay- after Bichler a which Kowalczyk its newscast. did not tell Rum- $9,000 ment on a check to Moore. Moore mel that information from Moore was stopped on “Hair” then work which was gist The attorney’s false. of his and his press conference to production and called representation to Rummel was that the sto- рress the cancellation. The con- announce ry “could be the straw that broke the cam- ference was held at a motel where the cast Kowalczyk story el’s back.” wanted the staying. presence press rep- In the was delayed day for a two order to locate “rolling” and with cameras resentatives get Bichler and his version of the matter. group Moore announced to a of cast mem- request, sought Rummel refused this as a production bers that the current favor, advising Kowalczyk that (“Je- one cease and that the next scheduled story would run. Superstar”) begin, sus Christ would not story least not on schedule. The segment broadcast as a the 11 o’clock transcript news. The of the Rummel, James news anchorman for entirety: broadcast is set forth in its WZZM-TV,attended the conference. After report closing “A of the Thunder- Moore, it was over he interviewed some Dinner bird Theater.... manager. cast members and the motel Michigan’s only And West Dinner The- Moore told Rummel that he had not been ater today____leaving locked its doors paid production for the current and that he production company wondering what to planned to sue Bichler for breach of- con- next____ do tract. Members of the cast confirmed they paid warning had not been and that the With no advance cancell- the Thun- .... production hardships ation of the created derbird Dinner Theater locked its doors today____, leaving them. Moore told Rummel that he about 40 members of middleman; production New York based money company came and advance ticket respon- from Bichler and that holders in the lurch. Bichler was paying sible for the salaries of the cast. got When closing we word of the we “innkeeper” pay- The told Rummel drove out to the Thunderbird located ment for the rooms of the cast was in north of Alpine Comstock Park on Ave- arrears and that this was also Bichler’s nue. All we found were lоcked doors obligation. empty parking and an lot. The news closing was broken to press conference and interviews took the members of the current east of “Hair

place p.m. between 3 and January ____ by producer Jerry the show’s immediately 1976. Rummel attempted to Moore: theater, by calling reach Bichler The Thunderbird Theater business, has been hav- place home and a listed all ing problems in recent weeks as evening without success. Later in the has it’s owner Today, Dick Bichler. to, Rummel [sic] drove the theater with a cam- it was catching Bichler who was building eraman and found the dark and blame and the wrath of the cast: locked. Rummel then returned to the prepared WZZM p.m. problem studio and for the 11 now becomes one of what to Kowalczyk newscast. David and his attor- do for pro- the members of the current ‘Hair’____and ney arrived at the studio before air time duction for the cast of attempted to dissuade Rummel from the theater’s next production scheduled using about the theater. Kowalc- Superstar.’ of ‘Jesus Christ Most of money An them are without and without action for libel was barred by limita- and, affidavits, plane developed all of Bi- tions depo- tickets home ... discovery for. sitions other chler had contracted Bichler’s claim privacy was for invasion consisting to- unavailable comment broadcasting embarrassing private facts day. ... placing about him and him in light a false Moore file a Producer will lawsuit public eye. The district court identi- him against charging tomorrow breach portions fied the objected broadcasts contract____ to as follows: might And there a few advance reser- alleged disclosure of facts their wanting vation holders who will be complained contained in money back. the broadcast following: consists According Moore, more than 3000 dol- (1) “The Thunder Bird Theater has lars in had been sold to advance tickets having problems been finanсial in re- Superstar’ Christ ... slated to ‘Jesus cent weeks as has its owner Dick Bi- open January 28th” Today chler. it was Bichler who was attempted Rummel to locate Bichler catching the blame and the wrath of day, following again without success. He the cast.” also records and found checked following alleged The statements are outstanding against claims Bichler and publicity holding constitute plaintiff out in enterprises. story business was “re- light: a false again packaged” and broadcast at 5:30 that (1) plaintiff having Bichler was evening. fi- difficulties; nancial day following the second broadcast (2) closing left local called with ..'. bank its loan the theater about members of repossessed personal pro- and a New York property covered based company by security agreements duction and from the advance ticket theater holders in the lurch. premises. equip- Other creditors removed paid ment which had not been for and (3) ... Most of are money them without building largely stripped was con- of its plane and without tickets home ... tents within a few weeks. theater all which Bichler had contracted reopened. never for. (4) $3,000 More ... than tick- advance II. had ets been sold to Christ Jesus Superstar open January ... slated to A. (Inferring, according plain- 28th. complaint charged In his Bichler WZZM people tiff that these also would be defaming with “by defaming him the busi- “waiting money the lurch their entity, ness The- Thunderbird Dinner back.”) ater____” charged The defamation in the (5) chicken,1 Thunder Bird was cooked complaint opening pro- consisted of place and closed. gram with a “a reference to cooked chick- (the en” Thunder Rock considering Chicken Theater After the voluminous record adjunct was an in- enterprise), relying compiled during the three and one-half Jerry years filing complaint formation Moore without check- between the of the ing decision, making out the facts and statement and its district court concluded that the had “in dinner theater fact termi- had raised a triable good, nated its business for which state- issue on either of his claims. The district absolutely ment was closing false fallacious.” court determined that transcript 1. The con- the broadcast does not it was not satisfied included the WZZM any tain reference to "cooked chicken.” In broadcast. evidence, absence of am affidavits or other Michigan records which revealed that there were out- in Western only dinner theater event, against had Bichler or busi- standing been claims newsworthy awas operations. Exhib- and continued controlled him. opening nesses me- filed showed substantial its were coverage Bichler’s of those events. dia B. reported condition as the “owner” appeal argues On that the state- closely “manager” theater was privileged ments in the broadcast were not to the financial condition of related Michigan they under law because were not closing. of its Con- theater faith, good made in that the comments on “private claim the dis- cerning the facts” finances were outside the reference to court concluded that trict privilege, the scope of the that the district was neither Bichler’s financial condition treating him as a erred “for its own highly offensive nor made figure, summary judgment and that Michigan sake,” under privileged material improper because there were is- law. jury. sues of fact be decided alternative find- The district court made response argues WZZM broadcast respect light” ings to the “false claim. subject, newsworthy concerned a that Bi- public fig- awas It concluded that Bichler legiti- chler’s financial difficulties were least in context of the theater ure at part mate of the broadcast and such could held and that WZZM not be business qualified privi- are broadcasts accorded a under law absence of liable lege The defendant under law. showing of malice. In alterna- a actual the now that a concedes Bichler is not even the court found that if Bichler tive figure, asserts that this makes no dif- person private found to be he was were a privilege the ference because broadcaster’s not entitled' a trial without demonstrat- showing only upon is lost of “actual which ing that “evidence exists creates regardless plaintiff of malice” whether the legitimate fact whether WZZM issue over public figure is a or a individual. place plain- its knew that broadcast summary WZZM further contends that light, in a false tiff or with reckless disre- because, judgment proper response gard of that result.” The court found that motion, produced to its Bichler no evidence Michigan applies malice the same actual that the broadcast was made with actual of individuals standard claims malice. they of are

regardless whether based on placing plaintiff on in a false libel or the the

light. examining After all affidavits III. discovery the materials district court of claim Consideration Bichler’s that had plaintiff concluded the failed ques- WZZM’s defense involves two distinct showing come forward with evidence that tions, sepa- they must be considered degree “high acted with a aware- WZZM of rately. probable falsity” report, of the of ness the question The first is whether concerning its or with “serious doubts” privilege WZZM was entitled to the the contrary, truth. To this examination privilege The existence is claimed. of the revealed that no had told Rummel that one law, question of to be determined the concerning information finan- examining upon court of the “occasion” cial condition was false or the circum- publication. refers to “occasion” closing surrounding stances of the the- extrinsic circumstances in which broad reported by him were incorrect. On ater Fox, hand, cast was made. Lawrence v. 357 checked the the- the other Rummel 139-40, (1959); closed, Mich. checked facts N.W.2d ater and found it Press, Inc., sources, attempted Detroit outside to contact Peisner v. Free and, January Mich.App. N.W.2d confirmation 22nd, If it entitled made a check of is concluded WZZM was Peisner, 181; privilege, question to the the second is Mich.App. N.W. 163-64, through 266 N.W.2d privilege whether was lost abuse, is, by publishing of district held that broadcasts closing the theater’s with actual malice. concerning the closing only dinner question of This is a fact. theater Western Michigan dealt with a legitimate matter of public, concern to the

A. particularly in publicity view of the which Michigan has defamation actions opening had attended its operations. and its long recognized common law defense Bichler contends that the district court Although the privileged communication. erred in determination because it con present claim in the case is for invasion of sidered “occasion” the broad libel, privacy rather inquire than Restatement cast and did not “good into the quali recognizes of the that the argument Law same faith” of WZZM. This tele privilege applies types to the scopes separate fied two the two distinct and inquir (Second) See Restatement claims. ies one. publication into Whether the § Torts, 652G, (“[u]nder any good comment a. made faith question addresses the give circumstances that would rise to a question not the of privilege. As privilege publication conditional for the Supreme Court stated in Fox, defamation is likewise Lawrence v. there a conditional 357 Mich. at Bi privilege privacy.”) for the invasion making “In the determination dispute chler does not fol occasion, as to the requires lows this rule and show charged by same malice is not con ing privi of actual malice overcome the sidered.” The properly district court deter lege regardless of whether the question tort libel privilege by mined the refer privacy. or invasion of occasion, is, ence to the circum subject stances became the Michigan privilege been has broadcast. qualified described as one which “extends to all communications made bona fide upon B. any subject-matter in party which the com The district court did not err in hold municating interest, has an or in reference ing privileged. broadcast was It duty, person having to which he has a to a legitimate dealt a public with matter of Bacon corresponding duty.” a interest or Contrary interest. to assertions made at Co., Michigan v. Central R.R. Mich. 66 argument, requirement oral there is no 166, 170, (1887). Newspapers 181 33 N.W. publication that a or broadcast deal with a qualified a privilege and broadcasters have “public controversy” in privi order to be report public to on matters interest and leged. proper test whether it deals privilege applies equally in actions public with matters of interest. In Law brought by public private figures. See Mich, Fox, rence v. 141, 357 at 97 N.W.2d Mich, Fox, 357 137, Lawrence v. at 97 719, quoted approval with Pros v. Free 719; Peisner Detroit N.W.2d § Torts, ed], ser on as follows: 95 [2d Press, Inc., 160, Mich.App. 82 266 upon The burden is the defendant 693; Evening v. As Weeren News N.W.2d the first instance to establish exist- sociation, Mich.App. 2 138 privileged pub- ence of occasion for the (1965), grounds, on other rev’d 379 526 lication, by proof recognized public of a 475, (1967). If Mich. 152 N.W.2d 676 interest which would justify published report privilege to a attaches the utterance of the words. newspaper is not for or broadcaster liable untruths, added). person harmful See also Peisner v. De- (Emphasis however to the Press, defamed, privilege 161, troit Free Mich.App. unless the has been for 82 266 abuse, (“Qualified publication feited for privilege N.W.2d 693 of a news- Bacon, 172-73, paper report 66 public actual malice. Mich. at on inter- matters 1012 Ass’n, wrote, qualified privilege does “The Digest v. Reader’s

est”); Schultz however, extend, plaintiffs who are not 551, (E.D.Mich.1979) F.Supр. interest”). As alleged public interest legitímate of the (“events of the focus Co., Argus-Press v. court wrote Orr further consideration Upon this publication.” Cir.1978): (6th 1108, 1113 F.2d this limitation support no can find we public con- publishers a matter of qualified privilege about As state cern, protected under article is law and to under broadcasters “fair privilege of qualified law disapproved. There is this extent Clark Fox, 357 Mich. Lawrence comment.” requirement under law no v. De- Miner (1959); 97 N.W.2d 719 publica- of the plaintiff be the “focus” Co., Mich. Tribune Post and troit attach. for the tion order (Cooley, (1882) 358, 363-65, 13 N.W. §§ Torts, J.). See Restatement say privi-. that the That is not to (1938). Accord, Nuyen v. 607 at 275-85 lege extends to material which defames Slater, 127 N.W.2d Mich. reasonably necessary to is not another and Brothers, v. Maxon (1964); Bufalino subject development privileged 140, 153, 117 N.W.2d Inc., 368 Mich. publication. There must be matter of the report- citizen or Everyone, connection, and courts have ex some er, on matters right to comment has the ways. requirement in different pressed this expressions of importance, and plain example, the lower courts For fact even misstatements opinion and Welch,Inc., v. Robert Gertz tiff in in a suit unless libel are not actionable (1974), 2997, 41 L.Ed.2d 789 maliciously purpose of dam- made though general sub claimed that even reputation. aging another’s ject of the article was of sufficient matter its burden of carried We believe WZZM privileged to be the comments importance occasion and establishing privileged him did not concern a matter of about correctly this ruled district court appeals The court of re public interest. of law. issue claim the accusations jected this because against plaintiff “integral were to the C. central thesis” of the article. Gertz v. Rob argues that even next Welch, Inc., 471 F.2d (7th ert privileged, otherwise if the article was Cir.1972). Supreme approved Court concerning his finan WZZM’s statements Gertz, 4,n. holding. 418 U.S. at 331 this “scoрe” within the situation were not cial n. 4. reason 94 S.Ct. at 3002-3003 Similar that dis privilege. Bichler contends applied present case. ing not a financial condition was closure ‍​‌‌‌​​​​‌‌‌​‌‌‌‌‌‌​‌‌‌‌‌‌​​‌‌‌‌​‌‌‌​‌​‌​‌​​‌‌‌​‌‍of his publicly as the “own Bichler was identified justi public interest to of sufficient matter “manager” the theater. er” and the of privilege a fy clothing the “occasion” with Bichler was re Moore told Rummel that logical no connection and that there was past salaries sponsible payment for of due his financial condi disclosure of between manager him the motel told of the cast and public A the interest. tion and matter responsible unpaid for the that Bichler was rejected argument was made and similar “central charges at the motel. The room 911, Newsweek, Inc., 668 F.2d v. Schultz that the the thesis” of broadcast Cir.1982), (6th plaintiff con 915 where caused ater in financial trouble figure” “incidental that he was an tended close, financial condition it to and Bichler’s and therefore comments in the article integral part development played an “scope” him were outside about adopt “integral We do not this thesis. Amer relies on Clark v. privilege. Bichler of the article or broad Inc., the central thesis” Companies, Broadcasting 684 ican denied, only test. It illustrative of cast as the Cir.1982), cert. 1208, (6th F.2d 1216 requirement that there be a reasonable 1433, 1040, L.Ed.2d 75 460 U.S. general privileged relationship this court between (1983), panel of a 792 where

1013 and the referenc- Times v. Co. Sullivan should be subject publication applied plaintiff injury. present es to who claims actions such as the one. See Allen, Gaynes 42, 47, Mich.App. 128 summary, find we no error (1983) (“In Michigan, ruling judge that district WZZMwas New York Times standard has been ex- qualified privilege a in defense entitled to brought by tended actions indi- remaining question of Bichler’s claim. The viduals recover from media defendants correctly is whether the district held defamatory concerning falsehoods mat- present ques- jury that Biehlеr failed to a interest.”); ters of Peisner v. De- tion on the issue of malice. Press, Inc., troit Free Mich.App. 59, (1981); also, 304 N.W.2d 814 IV. see Newsweek,Inc., Schultz v. 668 F.2d at 918. purpose of the communication privilege promote open is to free While the ques- existence malice ais “provides exchange of ideas. The fact, tion of any as with issue otherwise publisher sanctuary a sorts” requiring jury’s determination, a ques- consequences of defamation actions. tion of malice become one of if law the Mich, Fox, Lawrence v. summary defendant moves for judgment publisher N.W.2d 719. The is not held to a plaintiff fails to establish the exist- truth; standard absolute there no genuine ence of a any issue as to material liability published for falsehood unless it is 56(c), Fed.R.Civ.P.; fact. Rule Schultz v. with malice. We must first determine the Newsweek, Inc., (“the 668 F.2d at 918 func- proper definition of malice and then decide summary tion judgment dispose is to plaintiff presented whether triable cases party without trial when one is un- response issue to the defendant’s motion able to demonstrate the existence of a fatu- summary judgment. which, dispute al present, require if by a jury fact.”). resolution or other trier of A. record, then, We look to the to determine plaintiff A who is a offi whether Biehler demonstrated the exist- public figure may cial or a recover for genuine ence of any issue as to material only upon showing publi defamation fact. is, cation was made with actual knowledge “with that was false disregard

reckless of whether it was false B. Sullivan, or not.” New York Times v.Co. argues Biehler there was a 376 U.S. S.Ct. genuine respect issue with to a material (1964). L.Ed.2d 686 The same constitution fact Kowalczyk because he testified told applies al standard in actions for invasion Jerry Rummel Moore was a “noted Time, Hill, Inc. v. of privacy. liar” and Rummel denied that either Kow 387-88, 534, 541-42, S.Ct. alczyk attorney or his made such state However, L.Ed.2d 456 where the ment. Kowalczyk’s An examination ais individual the states deposition support does not Bichler’s claim. are liability free to define the standard of Kowalczyk What said was he con long they so impose liability do not liar, Jerry sidered Moore to be a noted publisher without fault on a or broadcaster. that he this Testifying told to Rummel. Welch, Inc., Gertz v. Robert 418 U.S. at keep that he asked Rummel to off 347, 94 S.Ct. 3010. air, Kowalczyk questioner, to his said know, you It seems clear recent got from decisions of “... he all his information Appeals Moore, the Michigan Jerry Jerry Court of that Michi- from is Moore liar, gan anyway, Contrary has determined that the definition of noted ...” to Bi claim, Supreme by actual chler’s he any malice announced neither nor other de New York ponent Court affiant United States or stated that he advised filed. covery, many depositions were untrustworthy. was that Moore Rummel 2, court September 1980 the district On Further, is uncontradicted the evidence protective by for a a motion WZZM questioned members denied Rummel that taking manager, all of whom cer- prevent Bichler and the motel order cast It is given by Moore. depositions. There is no indication the version tain verified re- Rummel tried that limit- also uncontradicted that the district court ever the record Bichler for his version discovery to contact or Bichler ever peatedly that ed the theater and eventually sought went submission of WZZM’s mo- to avoid failed to discovery it locked and dark. ground found that had not tion on should that Rummel produce any evidence completed. been lying. Moore was have believed summary Finally, Bichler contends that contends improper Bichler also malice is the judgment is where theater the dinner subjective knowledge” stated broadcast “the issue because Rum all permanently whereas was closed and malice of Rummel is material the current told was proof mel had been facts. This inferred from of other next one production was cancelled part the first аrgument is addressed to corpora open schedule. not on the New York Times test — published party theater is not a owned the falsity. tion which knowledge of actual how it is difficult to see this action and Appeals summary affirmed has Court error, broadcast, if it this error judgment in actions where the control- libel However, at light. Bichler in a false put ling whether a media defendant issue was inquiry we are not con point in the publishing this qualified privilege by its has lost whether the entire broadcast Evening v. cerned with See Lins malice. with actual it has been determined Ass’n, 437, truthful. Once Mich.App. News privileged the court broadcast The contrast between the N.W.2d 573. Stahlin, it is truth speculate on whether and Arber v. does present case ful; only see if the defendant (1969), looks to 170 N.W.2d 45 cited Mich. by making qualified privilege has lost its Bichler, Supreme Court of Michi- where making knowingly statements false gan summary judgment reversed media disregard There, reckless defendants, statements with striking. very de- Evening they were false. Lins v. whether specific pointed to the tailed and affidavits Ass’n, Mich.App. News genuine issue of fact on the existence of (1983). referred N.W.2d 573 broadcast question of actual malice. That is not the fact that the theater locked to the depositions The affidavits and case here. doors, leaving cast of “Hair” and “Je conclusory. Finally, the fact that a are stranded, Superstar” and leav sus Christ person’s mental state is involved does not “Superstar” holders for ing advance ticket preclude summary judgment a federal fact that some listeners in the lurch. The applying Rule Fed.R.Civ.P. Senior interpret meaning the theater might this as Judge Ralph Freeman dealt with a District any way closing is not in permanently v. Reader’s Schultz argument similar Ass’n., issue of malice. probative (E.D. F.Supp. Digest Mich.1979): summary judg- Bichler also asserts Although recognizes that the Court depositions improper ment was because generally held that Michigan courts have had not been takеn possible witnesses some Law- jury question, light on actual malice is testimony might shed and their Fox, supra, ap- courts rence federal The motion material issues.” “unresolved summary plying granted Rule 56 have filed WZZM summary judgment was involving subjective judgment in cases granting sum- July The order 1980. intent, involving including libel eases on October mary was entered judgment generally, questions of malice. See filed and after WZZM Both before Pt. 2. Moore’s Federal Practice actively pursued dis- parties 1156.17[1] its motion the

1015 Time, Inc., v. Cervantes 464 F.2d 986 V. cert, (8th Cir.1972), 1125, denied 409 U.S. Judge requires The dissent of Weick a 939, (1973). 35 L.Ed.2d 257 S.Ct. response. Michigan It is written as if had adopt chosen some standard other than Accord, Newsweek, v. at Schultz 668 F.2d established New York Times v. the one 917. Sullivan defamation for and invasion of nothing find in this record which We privacy by private actions individuals question of Rum- raises a factual whether against permits media defendants. Gertz a knowledge mel with made the broadcast stringent standard, state to establish a less the statements about Bichler were Michigan but has not done We so. noted false. Michigan’s move from common law “actual malice” to the New York Times standard in The for a finding alternative basis v. Schultz Newsweek: New York Times test is malice under privilege fair comment is not publication that a is made “with reckless absolute, but lost abuse. It is disregard whether it is false not.” or if lost publication utterance or requirements establishing for malice made with actual malice. Lawrence v. by proof disregard of reckless were set Mich, Fox, supra, 141, 97 N.W.2d Thompson, forth in Amant v. St. 390 U.S. Though equat- “actual malice” was 727, 1325, 1323, S.Ct. 20 L.Ed.2d faith, ed bad ill will and (1968): time, hostility at one more recent Michi- These cases are clear that reckless con- gan clearly decisions have indicated duct is not measured whether rea- the definition of New York Times has sonably prudent publish- man would have adopted. Compare Lawrence v. been Mich, ed, investigated or would have Fox, before supra, 97 N.W.2d Stаhlin, 719 with Arber v. publishing. There must be sufficient evi- 382 Mich. cert, denied, (1969), permit dence to conclusion that 25 L.Ed.2d 103 defendant fact entertained serious (1970), and Peisner v. Detroit Free publication. doubts as to the truth Press, Mich.App. 304 N.W.2d Publishing with such doubts shows reck- prop- Thus district court disregard less or falsity truth erly based only its decision on evidence demonstrates actual malice. support which would a claim that Again, nothing we find in the record which knowledge defendants acted with indicates that Rummel WZZM “in fact objected the statements to were false or entertained serious as to the doubts truth” disregard with reckless they of whether of the broadcast. were false or not. out, pointed As Michigan has been has suggest 668 F.2d at 918. To at this late long recognized desirability date that Supreme Court legitimate public comment on issues of in- would revert to the Lawrence standard— terest. This the reason for its common enunciated before New York v. Times Sul- privilege. law By adopting ignores communication Schultz also livan — Michigan appellate measuring decisions. constitutional standard for malice in- when individual claims explain why dissent fails to we jury publication from a or broadcast about ignore forthright should announcement privileged matter of interest Michi- Appeals Court of in recent gan given recognition has further decisions that necessity play open a free ideas in an since federal decisions like New York society. rely WZZM established Sullivan, supra, Times proge- and its case, in this and Bichler ny, Michigan now follows what is re- genuine issue as the New York Times stan- failed to of abuse. raise ferred 1016 might out all that story, separating is, each publication actual dard of in- embarrassing anyone to personally in falsity or reckless knowledge of personal not. matter of Bichler’s false or The it was volved. disregard of whether story with the so intertwined finances was Ass’n, Mich. News 129 Evening Lins v. problems that the two were theater’s See (1983). 434, 419, N.W.2d 573 342 App. parsing rеquire such inseparable. To 47, Allen, 42, Mich.App. 339 Gaynes v. 128 story A absurd. would be information v. Detroit Peisner (1983); 678, 680 N.W.2d possible, in nearly as presented, as must be Inc., 304 Press, Mich.App. 104 Free re- entirety the reader or listener so Cole, Mich. (1981); Wynn v. N.W.2d than intelligible whole rather ceives it as an (1979). 517, 523, 284 N.W.2d App. Cf. fragments. as 300, 170 Stahlin, Mich.

Arber v. itself the dissent (1969). As implies that Bichler called The dissent to follow out, is bound this court points the two broadcasts Rummel between by law of state pronouncements considered stop second one. This attempted to absent indication courts appellate state by the record. completely unsupported that a con highest court state’s from the vague that it to his call is so The reference adopted. trary rule would be by the district or this not be treated could a rule which argues publi- The dissent having excessive court as established news dis- activities of chill the cation, would so argued by the dissent. as tigers. them toothless render pensers as to a balance between Michigan has struck day’s news reporting Rummel was informed on matters public’s to be several at- He made January and each individual’s general interest success, Bichler, without tempts contact doing Michigan privacy. so right of to the theater actually drove and then shall be that a media defendant determined closed, as himself if it had out for find publica- upon showing held liable the- He found a dark reported by Moore. knowledge falsity in tion with actual Kowalczyk to the studio went ater. When falsity of disregard of the truth or reckless deny he did not air time shortly before would alter published. The dissent matters closing. report of the theater’s truth lowering the threshold that balance to run Rummel not All he did to ask in private plaintiff must cross or- which a him. story favor change not der to recover. This Bichler problems both adopted. the State has the balance which (and Kowalczyk) already and the theater judgment of the district court the sсene. Rummel came on existed when affirmed. version, these dissent’s Contrary to the not created the broad- problems were KEITH, Judge, with whom Circuit large investment Kowalczyk had a cast. EDWARDS, Jr., Cir- GEORGE CLIFTON danger of was in theater which he concurring part Judge, joins, cuit apparently fa- losing. would The dissent dissenting part. all reporter who obtained a rule that a vor by the I in the result reached concur must nevertheless verification available However, join in that majority. cannot interest be- general public kill a disapproves of part opinion protect in order to to be true lieved v. American Clark language set forth Kowalc- acquaintance. an investment Inc., Companies, Broadcasting 684 F.2d reason; vague refer- gave zyk no real cert, denied, Cir.1982), (6th unreliability and alleged Moore’s ence to L.Ed.2d 792 U.S. his unsubstantiated belief require Rum- things up did not could clear story. mel to withhold stated, in Clark panel A of this Court extend, privilege does qualified re- “the apparently also dissent however, who are not the fo- plaintiffs egg” in to “unscramble quire the media alleged publica interest Circuit found that against cus of accusations majority 684 at The tion.” F.2d 1216. in set forth an article “inte- were require have us believe that this gral to the central thesis the article” in Michigan no law. To the ment has basis therefore, and, Gertz privilege applied. the contrary, panel in Clark majority a Welch, Inc., 801, v. Robert 471 F.2d 806 cert, upon specifically the Su relied denied, (7th Cir.1972), 1226, Bowerman preme in opinions Court’s 1233, (1983). 103 S.Ct. 75 467 L.Ed.2d The Press, Free 443, Detroit 287 283 Mich. Supreme upheld analysis. Court this Bennett, (1939) Timmis v. and N.W. 642 Gertz, 4, 418 at 331 n. 94 U.S. S.Ct. at 3002 355, (1958) 352 Mich. 748 in 89 N.W.2d my way To thinking, “integral n. 4. to In Tim requirement. support of a “focus” the central thesis” is distinguishable not so mis, held, Michigan Supreme Court in the as to “focus” warrant this Court’s effect, qualified privi that in for a order disapproval. only These are two of what lege apply, alleged defamatory to the state ways express- would seem be many to for scоpe in that ment must be limited its to ing the to a relationship need establish in public which is interest. 352 Mich. controversy between the privilege. 369, holding at 89 at 755. was N.W.2d This majority’s Because of the upon insistence an what the court had said elaboration on Clark, challenging portion this I cannot Bowerman. in two decades earlier in join opinion. the majority Bowerman published in a news defendant paper concerning judicial proceed a article is so It ORDERED. inaccurate, con

ing. The article was Nevertheless, language. tained libelous JONES, NATHANIEL R. Judge, Circuit argued there a the defendant dissenting. qualified privilege report judicial pro on respectfully I must dissent from the ma- recognized ceedings. The court first scope jority’s holding Michigan’s in the “extrinsic circumstances instant qualified privilege reporting for on matters newspaper case are that defendant’s public dispute interest. There is no reporting judicial proceeding a which creat privilege provides law such a 447, qualified privilege.” ed a Mich. 287 at reporting the media when on matters of 283 N.W. at 644. The Bowerman public they interest even when involve sto- held newspaper then that the article was individuals. Peisner v. ries about scope qualified privi not within the Press, Detroit Free Mich.App. 82 266 lege. (1978). properly When in- requirement A privilege apply voked, privilege this shields media from only to individuals who are the focus liability publishing private information publication, parame- clearly falls within the a or placing pri- about individual a Timmis language ters of the set forth light vate individual in false absent show- and Bowerman. Focus is simply another malice, ie., ing actual publica- way stating there must abe reasonable knowledge tion was made “with it that was relationship controversy between the disregard or false with reckless of whether privilege apply. the individual Peisner, it false not.” Mich.App. majority Indeed the there concedes at 266 N.W.2d at 698. establish, fashion, need to some this equally qualified priv- It is clear that relationship. this must some “There be connec- ilege scope is not unlimited in such that the defamatory tion material and [between may publish publication], any media it so information interest courts Instead, privileged expressed requirement have desires. statement this differ- ways.” Maj.op. ent As to the an exam- extent that it is limited v. Robert ple scope to the Gertz refers to issue addressed in the Inc., Welch, Bennett, Timmis v. publication. Mich. U.S. Gertz, (1958). L.Ed.2d 789 Seventh 89 N.W.2d right to brought the waiver. about scope [The majority defines purpose, may waived for one privacy] which bear extending to all statements privi- for another... relationship general and still asserted to the reasonable publication. Mich, subject matter of leged (Black, N.W.2d 676 the statements majority concludes that J.). clear that Bichler waived It is condition about to his man- privacy insofar as relates develop- “integral part” in the an played any statements agement of the theater the broad- thesis” of of the “central ment problems ap- concerning theater’s are cast, i.e., financial troubles. the theater’s by Michigan’s qualified propriately shielded Although this definition Supra, equally It is clear that privilege. privi- Michigan’s qualified scope of anything could be has never done which by majority, our may preferred the lege be waiving right privacy his to construed as scope to define the in this case is not task concerning personal his financial affairs. ourselves, to ascertain privilege the of per- concerning Thus statements Bichler’s Supreme would Court how the by privi- not shielded sonal finances are Aurora v. City See scope. define requir- in lege the district court erred (10th Corp., 599 F.2d 386 Cir. Bechtel statements ing prove him to these 1979). made more this task is Granted Accordingly, I published with malice. were Michi- by apparent dearth of difficult grant summary judg- reversе the would privi- defining limits of the gan caselaw proper for trial under the ment and remand points out in his lege. Judge As Weick liability. standard dissent, however, unguided in are not we KRUPANSKY, Judge, Circuit with attempt. our JONES, NATHANIEL R. Circuit whom embarrassing pri right to withhold Judge, joins, dissenting. right public and the facts from view vate erroneously has Because placed light in false are both not to be a privilege qualified that the state concluded constitutionally encompassed within the applies to the WZZM re- of fair comment Pallas v. See privacy. protected right to personal Bichler’s financial af- ports on Co., 411, 33 Crowley, Milner & 322 Mich. fairs, respectfully dissent. Inas- must (1948). Defining proper 911 N.W.2d the salient facts have been accu- much as privilege re scope Michigan’s qualified majority opinion rately compiled in the balancing the individual’s quires a between dissent, duplication Judge in Weick’s their public’s need right privacy to to pur- no point at this would serve useful 161-63, Peisner, Mich.App. know. pose. v. Eve Weeren at 697-98. In 266 N.W.2d Association, long recognized the venera- Michigan has ning News 379 Mich. qualified privilege of fair (1967), Michigan re ble doctrine of a Court N.W.2d See, e.g., Miner v. Detroit Post summary judgment comment.1 grant a versed Co., 358, 13 Tribune & plaintiff’s trial on the action 49 Mich. N.W. remanded for right (1882). qualified privilege and invasion of the The “doctrine of for defamation recognizing regarded including that an as privacy. may properly While therein be privacy, good could faith a citizen individual waive statements made community having, claiming such it was written that waiver or have, knowledge special or information right to an invasion of carries with it the bearing concern on such matters be privacy only to such an extent concerned or proper and communicated to others necessary and legitimately Bennett, 352 Mich. interested”. Timmis v. has dealing the matter which discharge fairly person in the privilege ori- made is of ancient a 1. The fair comment explicа- duty, legal gin as needful of little whether or and was treated some moral, affairs, Eng.Rep. Toogood Spyring, tion in (Ex. 1834); conduct of his own or in the publi- a observed that therein it was his interest is concerned. matters where is, privileged when cation assumed, support, without factual the rele- Bennett, Timmis v. condition, the unanimous ‍​‌‌‌​​​​‌‌‌​‌‌‌‌‌‌​‌‌‌‌‌‌​​‌‌‌‌​‌‌‌​‌​‌​‌​​‌‌‌​‌‍vance of state Bichler’s financial supreme precise presented was the issue identified six elements of to the en banc court. (1) qualified good a privilege: faith communication, (2) cognizable a interest to that, It must be conceded absent (3) upheld, a communication which is theater, closing of advanced, in scope limited to the interest predicament not would have been (4) proper (5) publication, occasion for the subject to fair privilege. comment Ac- manner, (6) publication proper cordingly, to invoke privilege, WZZM publication only appropriate parties. mandated burden of proving a relationship rational between the closing of The Timmis v. Bennett court further the theater and Bichler’s affairs. privilege held that the existence of the Manifestly, proof such no appears on the However, an issue of law. once exist appellate record. established, ence of the bear the burden of demon corporation. Thunder Bird was a Bi- strating actual malice. The issue actual merely chler was a shareholder. He was jury question malice if the becomes evi the sole Further, owner the theater. WZZM merely probability acutely dence raised a of mali was aware of the fact that Bacon (citing ce.2 Bichler was not de 89 N.W.2d either the or de facto jure Co., R.R. owner the Central 66 Mich. theater.3 (1887)). 33 N.W. 181 Additionally, the record is significantly devoid of any inference that Rummel Primarily, challenges Bichler ob- exist- any attempted tained or to obtain (a) ence cognizable the station’s informa- intеrest tion affairs, connecting whatsoever (b) per- in Bichler’s personal and a sonal corporate affairs to the affairs of the scope communication limited in to the inter- Thunder It is Bird. hornbook law that a ests advanced. corporation a legal entity apart distinct that, in Bichler contends order from its shareholders and I can discern no legitimate WZZM-TV to have had a inter- relationship rational between activities report, est which would immunize its there corporation of a and the financial affairs of “logical must have a been nexus” between its shareholders. personal the theater and his financial condi- Rummel used the artifice theater’s opinion tion. majority conducts no real closing publicly to humiliate Bichler with Instead, analysis majori- issue. this assumption an unverified individu- ty merely concludes that because al’s asserted financial had straits resulted broadcast with matters “deal[t] Bird, interest____ closing of the leaving Thunder carried its burden WZZM result, “in the innocents lurch”. As a Bi- establishing privileged occasion”. immediate, chler was visited with devastat- Thereafter, Maj.op. the majority at 1012. ing and repercus- insurmountable economic reluctantly “[tjhere concedes must be some personal sions from his creditors. connection” individual fi- between the and in theater, id. report not, nances “thesis” the news was conclusory summary states “Bichler’s majority erroneously and without played integral part support financial condition an hypothecates, “that theater Id. at was in financial trouble which caused it to subject in” the of the broadcast. Thus, majority conveniently has Instead, Maj.op. 1012. close”. at 1012. Rum- Judge testimony To vague the extent Weick’s dissent as- tion that the and was insuffi- cient is a mechanism of avoidance. serts a factual issue as to the existence of malice testimony, arising deposition from the Bichler noted, Kowalczyk 3. As the when asked join urging Judge summary Wеick in with delay report, Kowalczyk Rummel to did so judgment inappropriate vehicle for dis- was an as a result of his shareholder interest in the majority’s posing bland asser- of this case. Maj. op Thunder Bird. at 1016. Defendant-Appel- personal judgment favor Biehler’s “story” was mel’s against the Plaintiff- station and viability lee T.V. impacted the had somehow turmoil Bichler, and noted, Richard Appellant previously Bird. As the Thunder requiring figure; and connec- not suggested this ever no individual Bichler’s malice to recover. attempt prove made actual Rummel and no tion to guaranteed by the Consti- implication right privacy verify the severe by Rummel to States, by Bichler’s the United as well as integration of tution of newscast’s law, grossly the the- violated report personal finances integrity Bichler’s thea- closing. ruling of the district court. ater’s report question by personally the news corporation, into and Bichler was called tre insolvent, and false negative pri- in a he was cast and Bichler’s were rendered community. hav- irreparably Without light irresponsibly before his in- vacy justifi- remote vaded, even the most ing provided proximate result of as a direct and alleged per- plaintiff’s false, to include the defamatory cation and libelous broad- report in a about instigated by misfortunes sonal one casts of the T.V. station failed to demonstrate corporation, Moore, WZZM Jerry did not tell the truth. who necessary to invoke cognizable station, interest print The T.V. which refused I would there- privilege. the common law to discuss the retraction even contrary de- false, reverse the trial court’s Bichler, fore or in the either knew it was ordinary termination.4 reasonable care exercise of ascertained that good faith could have result, I would not char reaching this In false, defamatory and libelous it was as “toothless ti reporters news acterize investigation. The making appropriate an impоrtant I am mindful of gers”, since properly neglected failed and station today’s socie that the media serves role investigation. carry out such However, as must all societal institu ty. tions, privileg employ important it must opinion, my neither the United States regard equally crucial for the es with an permit nor law Constitution power. In this responsibility inherent in its of Bichler’s to withdrawal this case only unprofes journalist this acted not case protection by afforded privacy from disregard for sionally, with a willful but invasions of that Michigan to unreasonable case, of the facts and circumstances right. The truth is that Bichler did suffi- irresponsible an manner as to and in such ciently prove and that there were damage irreparable injury cause severe Bichler was entitled to factual issues which disregard plaintiff. to the Such willful by jury for determination have submitted condoned, and is not whether should not trial. It was error for the district court law, state or federal enact the common as a matter undertake to determine them ments, Ac the context of this case. law, within for this court to and it is error cordingly, respectfully I dissent.5 grant of summa- affirm the district court’s ry judgment.

WEICK, Judge, dissent- Senior Circuit ing: I. imagined Surely Richard Bichler never The district court respectfully dissent. hiring Jerry production summary Moore and his grievously granting

erred Thus, sources, records. stance, as well as the sub- that it would not have 4. The insists legitimate possible report putatively were distinct. Justicious been of the items closing egre- story editing theater’s this of the broadcast could have avoided —without —the personal gious commentary upon af- Instead, eager an over television re- lawsuit. example Maj. op. is another fairs. at 1015. This justifica- porter without invented connections assuming majority’s predeliction for of the damaging re- tion and aired a unverified news were not In fact the two items conclusion. prevent port. should WZZM from No relationship inseparable. Bird’s The Thunder resulting bеing held accountable for the losses. impetus for Playmoore with the Productions—the Moore; plight story obtained from —was join fully Judge eloquent Jones' dissent. 5. I also by personally revealed of Bichler was company stage plays confirming reported at the Thunderbird After only what Moore pro- Theatre would result in the thea- with some of the Dinner members Moore’s untimely company “innkeeper,” demise. The interest duction tre’s un- opening operations successfully attempting the Thun- to contact Bichler derbird, given only coverage Rapids as evidenced in the in Grand from where he had departed, and finding theatre and shows the local me- locked doors at the theatre, dia, prepared Rummel adequately documents the benefit for WZZM’s Rapids Bichler’s ill-fated at- 11:00 newscast. Grand tempts to to the cultural diversi- contribute happened What between Rummel and Bi- community. ty of the corporate partner, chler’s David Kowalc- was, 21,1979, January zyk, shortly

And so it when on before the broadcast is un- gave Jerry undisputed Moore a check for clear. It is Kowalczyk the theatre told independent of the cast and for Rummel that he no services had knowl- $9000 expenses previous edge closing. affidavit, for the of the their week. Rummel’s 24, 1980, upon July Kowalczyk it was this check dated stated that court notes payment. stopped story which Bichler The rea- asked that not aired as a favor, purely private personal Kowalczyk sons for this exercise and that had however, judgment, ignored are report business not told Rummel the was false. In majority: stopped payment deposition by the Rummel’s taken one month earli- er, the time that because at about the check June he stated that he did not issued, garnishment pursuant actually Kowalczyk telling to a remember him Flint, judgment against story Kowalczyk rendered Moore in was false. stated in upon Michigan, deposition although was served Bichler for in- his he wasn’t cer- tain, Playmore and his debtedness of Moore Pro- he felt sure he had told Rummel that ductions; Bichler also evident- Moore’s Kowalczyk because true. not ly aware that certain of Moore’s further stated that Rummel him became told “he news, payment making were not invoices submitted that was his [Rummel] event, job.” any true invoices. Rummel’s broadcast closing about the went Thunderbird Apparently there was no written contract planned, reporting on as not obligations governing Moore’s to the Thun- show, closing Appellant Bi- However, derbird Dinner Theatre. testi- problems, chler’s his con- mony before the district court indicated unreliability pro- tractual as related Moore, Bichler, it was who was members, seeming pen- duction and his costs, responsible paying gross the leaving everyone chant for involved with expenses lodging travel and of the cast. Theatre, including the Thunderbird Dinner portion Bichler would then remit a of the holders, the advance ticket “in the lurch.” Moore, play’s proceeds to from which costs, totally the Rummel Moore would recover his with was not insensitive to the representing profits Play- fact the remainder the substance of his broadcast danger made repu- more Productions. substantial to Bichler’s apparent. “repackaging” tation Prior to Bichler, disgruntled the It was not but day’s for the next broadcast 5:30 news- Moore, unilaterally an- liar who decided to cast, again attempted Rummel to contact produc- present the theatre’s nounce Bichler, unsuccessfully, and also checked Moore, “Hair” cancelled. tion of public records which showed lawsuits course, press held a conference to make against filed and some liens Bichler filed the deci- sure that his announcement about against his assets. second broadcast place production terminate sion to however, story, found its content light. Bichler in the most unfavorable essentially unchanged. Rummel, the news anchorman from James notes, attend, WZZM-TV, majority day following As the whom Moore invited him at face value. the second broadcast a local bank called its took what Moore told (and protect there- repossessed per- Michigan has chosen to with the theatre loan press, by promote) vigorous at the ex- by security agree- property covered sonal hapless like Richard Bi- penses of victims premises. Other from the theatre ments suit, removing equip- dder. creditors followed paid for. had not been ment which appeal that It is contended on because stripped of its con- largely

building was jurisdiction diversity based on of citizen- say, Needless to few weeks. tents within a Michigan ship, the substantive law of con- was essential to property the reclaimed However, an trols. extensive review of theatre, viability of financial highest court of the State decisions never re- Dinner Theatre Thunderbird Michigan leads me to conclude that the public. its doors to opened strike Michigan Supreme Court would not has struck the same that this court balance II. Ap- Michigan Court reliance suit, however, was not Bichler’s Richard privacy like peals, and that invasions damage inflicted solely upon founded by Appellant Bichler are those suffered viability the financial by the broadcasts on greater protection than this entitled to far cause for invasion of the theatre. The In so conclud- court’s resolution affords. upon damage was based privacy attention to ing, I first direct court’s reputation by publication Bichler's Supreme Court of the the decisions of facts, by placing embarrassing private States, not for a statement on United public eye. light Bichler a false law, controlling but substantive appeal, the defendants conceded On guidance issues for instructive to those public figure pri- was not a concеrn itself to with which this court must vate individual. assume Mr. Bichler’s claim. properly resolve per- the newscasts touched on agrees that sonal, private matters. A. Supreme attempt Court’s to recon- analysis may be summarized

The court’s law, the First First, be- cile the law of defamation with under as follows: New first elaborated closing the dinner theatre was Amendment was cause the Sullivan, supra, and York Co. v. interest, Times legitimate matter of publisher of defamato- the- which it held that a Bichler’s involvement with the because is con- atre, including prob- ry falsehoods about a official Moore, liability for imbroglio stitutionally protected from and contractual lems proved. actual malice is reasonably general privi- defamation unless related to the principle was extended to cases involv- subject, was entitled to a This leged then WZZM Curtis Pub- ing public figures in defamed privilege in defense of qualified Butts, lishing Co. v. Second, way 388 U.S. claim. because Rosen- L.Ed.2d 1094 Michigan law was defeat this claim under Metromedia, Inc., bloom v. showing actual through a (1971), plurali- ques- S.Ct. 29 L.Ed.2d 296 presented the record no triable since Times the New York issue, ty concluded that the district tions of fact summary judgment protection to should extend to defamation correctly granted private persons defamatory if state- the Appellees. public gen- or ments concerned matters of majority’s opinion is to The effect of the interest. eral aspects of a unprotected private the leave however, Rosenbloom’s life, protection, was of a individual’s absence private lived, public the “matters of or long aspects short and showing so as those by a general test overruled a matter of interest” was “reasonably related” to are Inc., Welch, v. Robert Gertz pri- majority in abrogation of the public interest. The 2997, 41 L.Ed.2d 789 privacy by this 418 U.S. right to vate individual’s (1974). facts is A recitation of those that brief in the conclusion groundеd is court Gertz, reputable a society, order. Elmer attor- affairs of and has not relinquished in family represent to ney, was retained a any part protection in of his interest against Chicago in a litigation civil them good Therefore, his own the Gertz name. Respon- their son. policeman who killed “public Court general concluded that or dent, publisher Society John Birch of a determining interest” test for the applica- Opinion, monthly called American branded bility of the New York Times standard to as a Communist architect of Gertz private inadequately defamation serves the “frame-up” policeman. involving Pe- a competing state First and Amendment in- diversity action Gertz’s claimed in- titioner terests, thereby and overruled Rosen- reputation, respondent jury to and asserted bloom. the New York was it entitled to invoke liability Times privilege against for defa-

mation, B. public since a official or Gertz was public figure and the article concerned an a The majority opinion, formalistic in its public or concern. issue of interest Be- citation of precedent and authority, “ig- Supreme held that cause Court Gertz the important social values which nore[s] (as figure or not a official was underlie the law of defamation. Society Biehler), in bar about conceded the case at pervasive strong has a and in pre- interest Gertz principal in issue decided venting redressing and upon attacks repu- newspaper broadcaster whether Baer, Rosenblatt tation.” defamatory falsehoods publishes about a S.Ct. 15 L.Ed.2d 597 may claim the New York private individual seemingly Yet this court is ignore bound to Times privilege against liability for in- important if, this value societal as a federal inflicted statements. jury those sitting diversity jurisdiction, Michi- holding publisher that the not so gan ignore has likewise chosen to the New Times to York privilege, entitled rights private of its citizens to redress at- Gertz Court propositiоn begins with the upon tacks reputation by their the news although the statement of fact is false media, in proving the absence of malice. It worthy protection, not constitutional is however, my opinion, is that the courts of debate, therefore, in free inevitable the Michigan have ignored per- not that state’s requires that some First Amendment false- strong vasive and interest in preventing protected protect speech hoods be and redressing upon private repu- attacks that matters. The need avoid self-cen- tations, contrary, but to displayed have media, however, sorship by the news acute sensitivity importance to the absolute; protection the First Amendment rights private like individuals Richard against legitimate must be balanced Biehler. underlying state interest law of libel early great As compensated individuals be for the jurist The Ele- stated in Cooley Thomas by defamatory inflicted harm on them ments Torts personal immunity, falsehoods. right person to one’s be said to “[t]he Gertz holding is based on right be to be let alone.” Furthermore, pre- interest conclusion the states’ privacy individual’s specifically venting injury repu- to the redressing recognized protected has been by the requires tation individuals dif- Michigan Supreme in such Court cases as respect public fig- rule ferent than with Association, Evening Weeren v. News because, is so ures officials. This un- which Justice Black notes: figures, like officials and contemplatively through As one reads enjoys access to individual lesser effective dealing the cases and reviews with the of communication and therefore channels right Furthermore, privacy, of action invasion of it injury. more vulnerable to comes to him more and more that the private voluntarily individual has (where injected forefront defense is a defense and a himself of the there into the 1024 needed) a waiv- regarded qualified privilege as had a

defense is defendants publish it. еr plaintiff right, of his asserted privilege not a of the defendant to in- 48-49, Mich.App. 128 at 339 N.W.2d 678 upon right. or trude disturb added). (Emphasis Mich, at n. N.W.2d In Gaynes, published information Mich, 500-502, See also at 152 N.W.2d the information it- privileged because Gertz, supra, 676; was a matter of legitimate 418 U.S. at public con- self alleged defamatory at 3009. cern and the falsehoods legitimate therefore related to a matter of majority’s pri- that the The determination public necessarily concern. This conclusion contractual vate transactions requirement follows Michigan from the of fall within the of Bichler the theatre law that privilege, scope Michigan’s qualified having ... determined extrinsic cir- [the reasonably to a since related matter qualified priv- cumstances which create a concern, public predicated nei- legitimate ilege], taken, step an additional must be nor policy underlying the ra- ther on namely, scope of the ascertainment behind tionale the decisions privilege. of this Allen, Gaynes v. For example, courts. Press, Bowerman v. Detroit Free supra, published an defendant article (1939). Mich. See patient plaintiff 283 N.W. 642 by a which written Bennett, also v. Timmis Mich. highly optometric treat- critical of the In provided patient. the case of plaintiff Ac- ment individuals, suggested by Justice Black cording plaintiff, to the con- article Weeren, supra, scope depends concerning tained numerous misstatements the extent to which the has waived plaintiff’s patient’s condition and con- Furthermore, right. his asserted as noted duct, publi- and as a of the article’s result concurring opinion in the Adams of Justice cation, professional reputation his suf- had in Weeren: affirming greatly. lower fered grant privilege topi- to disseminate current court’s defendant’s motion for di- cal, interest, verdict, public immediate news of Ap- rected Court of public figures, about official or is one held that peals “a individual who thing. privilege in connection with recovery seeks from a media defendant past possible events of current interest defamatory to a relate falsehoods but which not have do to be transmitted legitimate public matter concern may public quite to the in a matter of hours is proof not recover without [of malice].” Publishing Curtis Co. another. (Em- Mich.App. 339 N.W.2d 678. Butts, supra. If the is one of a added). holding, the phasis In so Court of nature, qualified lost limited or Appeals stated: through improper conduct. published related to information Mich, 152 N.W.2d 676. by plaintiff optome- treatment rendered trist, allegedly recognize who failed does the indicate that Nowhere record problem level beyond medical of com- right privacy Richard Bichler waived his petence. Ophthamologists gen- regarding the contractual or financial ar- public eral a vital interest have rangements and his thea- between himself delivery eye care proper Moore, services and company tre since no doubt being compe- the level informed of nobody’s ‍​‌‌‌​​​​‌‌‌​‌‌‌‌‌‌​‌‌‌‌‌‌​​‌‌‌‌​‌‌‌​‌​‌​‌​​‌‌‌​‌‍arrangements those were busi- deliverers. The tence health care is- ness Bichler’s and Further- Moore’s. allegedly defamatory more, to which embarrassing sue disclosures about deserving is one light article addressed itself him in a did not placing false We hold comprise type of robust of “hot” news item about debate. published was a mat- which the an had immediate information mandating concern immediacy know. no legitimate public ter There was

1025 regarding (1976) (no release of information an incho- substantial reason why private Moore, ate lawsuit between Bichler and individual in litigation involved should for- lawsuit, subject matter of that or the mere degree feit protection by afforded defa- possibility that advance ticket holders simply by mation law being virtue of drawn policy would be left “in the lurch.” No courtroom). into requires publicatiоn of such informa- I do not believe that the Michigan Su- precede investigation tion should sufficient preme Appeals Court and Court of would necessary objective reporting, or that publisher extend “the to sanctuary” to a. private portion such of the newscast be reports disseminate false about con- qualified privilege, entitled to the especially disputes tractual and dealings, when the report substance of the Rummel such a thin thread as the reasonable rela- made danger pri- substantial to Bichler’s tionship of disputes those dealings and to Curtis, See su- reputation apparent. vate the matter legitimate public concern. pra, U.S. 87 S.Ct. at 1991. Nor Such a “rational basis” and “minimal scru- require sepa- is it absurd to the media to tiny” hardly protect serves Michigan’s obviously defamatory portions rate out the “pervasive prevent- strong and interest story. ing redressing and upon reputa- attacks qualified privilege Extension of the tion,” totally unresponsive and is to Bi- the facts of this case is marked contrast By allowing chler’s claims. tangential majority to the other cases relied on gain protection qual- involving private individuals. Cf. privilege, ified this court improperly has Newsweek, Inc., Schultz 668 F.2d 911 converted immunity the standard of (6th Cir.1982) J.) (statements (Lively, re- “defamatory falsehoods which relate to a garding alleged underworld criminal activi- legitimate matter Co., ties); Argus-Press Orr v. concern” to “de- F.2d (6th Cir.1978) (Merritt, J.) (statements famatory falsehoods which relate to a re- alleging port indictment and arrest legitimate on a matter con- charges fraud); individual on cern,” of securities and has allowed the media to there- Ass’n., Digest Schultz v. Reader’s 468 by create rather merely report than on that (E.D. Mich.1979) (statements F.Supp. 551 public concern. regarding alleged underworld criminal ac- Contrary to majority’s interpretation, Ass’n., tivities); Evening Lins v. News I conclude that cases like Schultz Mich.App. (1983) 342 N.W.2d 573 Gaynes can pоlicy be reconciled with the (statements alleging criminal activities of Gertz, Weeren behind if the content of Allen, officials); Gaynes v. union 128 Mich. the defamatory invasionary falsehoods (1983) (statements App. 339 N.W.2d 678 legitimate itself addresses a pub- matter of regarding quality provided of health care lic Applying proposed concern. stan- optometrist); Peisner v. De- case, dard to the initially facts of this I am Press, troit Free Mich.App. agree confident the that if (1978) (statements regarding N.W.2d 693 closing, theatre had not been if attorney’s representation indigent crimi- and Moore still Bichler had their contractu- But defendant). Clark v. Ameri- nal cf. dispute, al dispute then the alone would not Inc., Broadcasting Companies, can properly subject “legitimate public be a (6th Cir.1982) (Keith, J.) (no F.2d privi- qualified privilege. interest” clothed lege reports involving plaintiffs not the gist of Bichler’s claim is that the infor- alleged public publication). focus of interest regarding mation affairs was Bowerman, supra (no See also defamatory, regarding not the information under law libelous statements closing dispute of the show. The be- incorrectly reporting judicial proceedings, private, tween Moore and though Bichler was reasonably privi- even related to Firestone, matter); Time v. leged subject privacy placing the invasion of 47 L.Ed.2d light privileged U.S. 154 false did not mere- become prepared reasonably they related to the are to strike the ly because it was balance so one-sidedly in subject press, deroga- favor of the in privileged matter. rights private tion of the of individuals like inability majority properly of the Bichler.2 legitimate pub- matters are of define what qualifiedly privi- lic and therefore concern C. leged is unfortunate but understandable. Furthermore, agree I cannot with the by Supreme of the reasons offered One New York Times stan- majority that overruling “public or Gertz Court in for applicablе Michigan under in dard law test of Rosenbloom un- general interest” alleging privacy by invasion of em- cases was that der United States Constitution barrassing false-light falsehoods. The foreseeable such test would occasion the New York applied last time this court forcing federal difficulty of state Times to a case based on invasion of priva- hoc basis which ad judges to decide on an City Publishing see Cantrell Forest cy, public of or publications address issues Co., (6th Cir.1973) J.), (Lively, F.2d 150 346, general interest. 418 U.S. at 94 S.Ct. Supreme we were reversed Court. Supreme at 3010. The Court “doubt[ed] City Publishing See Cantrell v. Forest committing of this task to the the wisdom Co., 465, 42 L.Ed.2d judges.” Id.1 That Michi- U.S. S.Ct. conscience Stewart, gan prov- speaking chooses such a standard has not Justice for Court, any easier. eight en to make our task held that members case, false-light common law mal- [i]n To conclude that Richard Bichler’s claims frequently expressed in terms of ei- qualified scope Michigan’s fall within ice— ther ill-will toward privilege disregard poli- is to the facts and disregard or wanton or reckless disre- cy underlying interpreting the cases gard plaintiff’s rights of the fo- ignore strong privilege, and to the state’s —would cus on the defendant’s attitude toward protecting in citizens interest not toward the plaintiff’s privacy, reputation injuries from unwar- publish- falsity truth or the material privacy. The courts of ranted invasions ed. Michigan given have us no indication that ante, privacy majority, also misconstrues the Su- the invasion of as for defamation is also all, new, approval misplaced. preme Circuit's Court's of the Seventh First of the section is "integral adopted by any to the central thesis” See test has never been court of Michi- Gertz. 3002-3003, Second, gan U.S. at n. 94 S.Ct. at n. 4. § with which I am familiar. 652G against issue, Gertz con- just Because the accusations telescopes the as the has ante; cerned how he conducted himself in a criminal doing, Bichler of we can’t deter- accused legitimate public proceeding, cern, con- a matter of qualified mine under what circumstances the Supreme the Seventh Circuit and the attaches, scope privilege unless we know the falsity that the truth or Court determined privilege and those circumstances in which alleged pro- Gertz’s ceeding involvement in the criminal through it is lost abuse. defamatory did not affect whether statement, I am also confused the court’s general an issue of statements in fact addressed ante, dispute that "Bichler does not that Michi- This court has missed the or interest. gan requires follows this rule and the same analytic fact that the reason Gertz critical showing privilege of malice to overcome the against defamatory stated the statement him regardless of whether the tort is libel or inva- general concerned no issue of interest privacy," especially light the court's sion of participate in the was because Gertz did not description argument of Bichler’s first that “the proceeding. criminal privileged in the broadcast were not statements By comparison, is that his Bidder's claim they under law because were not dealings are financial and contractual faith,” argument good made in and Bichler’s legitimate public not a matter of concern it did that the district court erred because general predicated Michigan. This claim is not good inquire WZZM. It seems into faith of statements, falsity upon the truth or arguing a different stan- clear Bichler was privilege. scope argument dard than and I conclude merit, post. has (Sec- majority’s Restatement 2. The reliance on v. Forest See also the discussion of Cantrell Torts, ond) proposition that for the § 652G Co., Publishing post. City arises in the conditional Telephone v. American (Emphasis at 470. Telegraph West & 419 U.S. at Co., ease, added). In this the court commits the S.Ct. (1940). Thus, L.Ed. 139 even if the state- reversible error that was committed

same properly ments about Bichler werе Cantrell, held to judg- Cantrell. Based Michigan qualified be within the privilege, ment of the district court must be reversed. than New York the common law rather New York majority’s adoption of the Times definition of applied. malice must be standard, even if modified in accord- Times Michigan Supreme Court placed has Cantrell, contrary ance with would be higher standard of pub- behavior on the Orr, supra, in recognition this court’s at lisher of facts. “Good faith” is 1113, Michigan Supreme has that the Court subjective, and by is not satisfied the mere long adopted the commonlaw rather than knowledge absence of impropriety, or New York Times definition and disregard reckless impropriety. the thereby quali- has allowed for loss of the requires Good faith an honest belief in the showing privilege through fied of “bad non-damaging publication, nature of the Thus, Michigan under faith” or ill-will.” merely knowledge and not absence of law, honestly “If ‘be believed the statement the injury. likelihood of An affirmative ” faith,’ true, published good and to be duty placed Michigan has been me- Orr, See liability. there can be no 586 F.2d reasonably.3 dia to behave 1113, Supreme Michigan and Court cases at many respects, In the standard that the Weeren, supra, also See cited therein. Mich, 379 true, “honestly statement be believed to be 511, at N.W.2d 676. 152 published good analogous faith” is Appeals Unless Court negligence to the standard of by majority empow- has relied on been recently adopted by defamation the Ohio Michigan Supreme ered to overrule the Sup- Supreme the case of Embers Court Court, majority’s reliance on the Court Club, per Scripps-Howard Inc. v. Broad- misplaced. It is Appeals well estab- Co., casting 22, 115, 9 Ohio 9 St.3d OBR lished (1984). By defining 457 N.E.2d 1164 [wjhere appellate an intermediate state question jury for the as “whether the de- judgment upon its considered court rests reasonably attempting fendant acted announces, the rule of law which it falsity defamatory discover the truth or ascertaining is datum for state law which publication,” character of the the Ohio Su- disregarded by agreed is not to be a federal preme Court with what deter- per- majority jurisdic- court unless it is convinced other mined to of other highest establishing appropri- suasive data that the court of the tions faced with in like state would decide otherwise. ate standard cases.4 fact, Gaynes noted that its defini- 4. other cases and states identified In Court Supreme Ohio Court are: of malice is inconsistent with the definition tion recognized by (1977), Appeals Peagler Newspapers, in Postill v. the Court of v. Phoenix Inc. 309, 1216; Inc., 608, Mich.App. P.2d v. Newspapers, 114 Ariz. 560 Dodrill Arkan 118 619— Booth 20, 628, (1979), (1982). sas Democrat Co. 265 Ark. 590 Gaynes, N.W.2d 511 See 128 325 840, (1980), denied U.S. S.W.2d certiorari 444 51, 4, Mich.App. N.W.2d 678. Postill n. 339 1076, 1024, 759; Phillips S.Ct. 62 L.Ed.2d law definition of ill-will retained common Evening Newspaper (D.C.App.1980), v. Star spite proper definition in cases not as the 78, (1981), 424 A.2d certiorari denied figures. involving public officials or 2327, 848; 989, Karp L.Ed.2d v. Furthermore, Gaynes specifically Court Publishing (Fla.App.1978), Miami Herald Co. holding of malice and restricted its definition 580, (Fla.1978), appeal dismissed 359 So.2d expressed presented opinion no the facts 712; So.2d Cahill v. Hawaiian Paradise concerning purely private defamation. 522, (1975), Corp. Hawaii P.2d Park 51-52, 4, It is Mich.App. at 339 N.W.2d 678. n. 184, 1356; (1976), v. Wood 62 Ill.2d Troman majority's of a "reasonable creation 292; & N.E.2d McCall v. Courier-Journal brings relationship” this otherwise test which 882; (Ky.1981), Times 623 S.W.2d Louisville concededly the Mich- private defamation within (1975), Publishing Globe Co. 216 Kan. Gobin v. igan privilege, 76; defined. qualified however County v. Essex News- 531 P.2d Stone Although presented genuine no occasion strated the existence of a Cantrell issue of to consider whether a state constitu- as to the existence of such material fact tionally apply a more relaxed standard than Although majority malice. has con- the New York Times definition of actual appeal trasted Bichler’s Arber involving false-light malice in cases theo- Stahlin, 382 Mich. 170 N.W.2d 45 ry privаcy, of invasion 419 U.S. at (1969), rely more recent why 95 S.Ct. at I can see no reason Supreme Court case of v. La- Steadman allow define Gertz would not the states to pensohn, 408 Mich. 288 N.W.2d liability their standard of own when damage privacy from invasion of is the The similarities between the instant case same as from a libelous falsehood. 418 striking. Steadman, and Steadman are 94 S.Ct. at 3010. Nor is there U.S. was an unsuccessful candidate Michigan Supreme reason to believe judge. City for the office The Traverse depart from the Court newspaper printed a number of articles re- jurisdictions precedent and its own garding campaign, focusing Steadman’s choose to undercut the of its problems the financial of businesses with upon reputation, citizens to redress attacks associated, which Mr. had Steadman been public’s right in favor of the to know via pending against and a lawsuits number media, essentially an pri- news about brought against him. A action libel speculative dispute vate contractual and its newspaper, plaintiffs with the contend- impact public. Both the traditional ing that the articles and editorials con- standard, “negligence” “honestly and the defamatory tained false and statements true, published good to be in believed plaintiffs, reputations about and that their pervasive faith” test serve the states’ damaged were as a result. After the tak- strong preventing interest and redress- ing depositions filing and the of affida- ing upon reputation, by attacks affirma- vits, judge granted newspa- the trial tively requiring the media to behave rea- per’s summary judgment, motion for con- sonably reports when its on matters about cluding essentially that the articles were individuals, such that the media’s true and that there was no evidence of publication in the truth belief of its can be actual malice. “honestly” “good held and in faith.” Fur- thermore, it seems clear that the per opinion, In its unanimous curiam apply negligence courts would standard Michigan Supreme Court reversed the this, for cases such as which fall outside grant summary judgment. Regarding scope Michigan qualified privi- malice, the issue of the Court stated: lege. It is clear that the actual malice neces- sary to defeat a conditional can III. Indeed, giv- be established inference. strongly disagree I most with this court’s very subjective en the nature of the test holding summary judgment ap- malice, for actual circumstantial evidence propriate in this case. be the kind available on the First, case, I issue. In this conclude that even under the we do know New York Times standard of actual whether a fact finder would infer actual Appellant sufficiently present Bichler has demon- from the malice record. How- (1975),

papers, Memphis Publishing (Term. Inc. Co. v. Nichols 349, 367 Mass. 330 N.E.2d (1976), 161; Jacron Sales Co. v. 1978), Foster v. Laredo News- 412; 569 S.W.2d Sindorf Madison v. Yunker A.2d (Tex.1976), 580, 688; Md. papers, Inc. 541 S.W.2d 809, certio- (1978), McCusker 54, 126; 180 Mont. 589 P.2d (1977), rari 1123, denied Valley (1981), v. News A.2d 121 N.H. KSL, Seegmiller Inc. 573; 51 L.Ed.2d (1982), 493; Marchiondo v. Brown 98 N.M. (Utah 1981), King and Taskett v. 968; 626 P.2d Martin v. Tele- 462; 649 P.2d Griffin Broadcasting (1976), Co. 86 Wash.2d vision, (Okla.1976), Inc. DeCar- 85; P.2d P.2d 81. (R.I.1980), valho v. DaSilva 806; 414 A.2d says keep A He he could not it off the was suffi- ever, that the record it is clear news, air because it was and that was issue of fact genuine cient to create him, job. says, “That I said to question. to that the straw that broke the cam- could be Mich, As exam- 288 N.W.2d 580. back,” el’s and— inference supporting the ples of evidence Q him You told that? Supreme Court re- malice, Michigan A I did. the articles the manner in ferred to phrase? Q you did mean subject of the What prepared,5 whether were opportunity adequate an given pleaded— articles A And I sup- other evidence reply, and whether you Q you explain it to him? If Did knowledge of actual possibility ported him, you explained it to did ex- what 5, n. Id. falsity. of the articles’ him? plain to said, just make A I “News like that will ante, opinion, states thing shape, and we don’t bad claim, he neither to Bichler’s “[cjontrary publicity particu- at this need likе that stated deponent or affiant any other nor lar time.” And here it is 10:00 at him, Rummel that Moore was he advised night, day and I asked “Give me a Bearing agree. I cannot untrustworthy.” things of these or two to check some summary judgment, Bichler, out, in mind to locate Dick in its most construed must be story.” evidence the whole truth of favorable majority to the Appendix, David against the A A Rummel. Q Q Q station? did he And Jim, What I talked to Jim Kowalczyk, as contained ^[*] light pages who is Jim? who did ‍​‌‌‌​​​​‌‌‌​‌‌‌‌‌‌​‌‌‌‌‌‌​​‌‌‌‌​‌‌‌​‌​‌​‌​​‌‌‌​‌‍say moving party, I first did ^[*] to you 141-44: favor deposition you? :}! you talk to at the TV say to him and what myself. of Mr. Bichler ^[*] testimony of refer the Joint ^[*] A He refused to listen to A No. Q A Q Q Q the show was Moore was not a words is a information, And what did he Did Did Where would Probably. Hs liar? you you less tell Jim Rummel tell Jim strong if you aired, sjs you have person than “liar”? knew say? Rummel, that sfc to be nothing about me. Jerry gotten that that ^[*] believed, Moore Jerry night background? excitement, reputation or his Well, I know that in A forth, tapes around Jerry he had the Moore himself. talking so From to A TV, neck, ready put it on getting to telling Q you distinctly recollect Jim Do you if he I asked him per- Jerry Moore is not a truthful would — that from know, his information got he all son? Moore, Jerry Moore is a Jerry I say to that A I think it be safe would liar, anyway, and— noted that the to Jim Rummel indicated Q asked him what? You Moore, Jerry possibly it gotten from air. keep true, imagine him to it off the I just yes. I asked I A not be could, say I indicated to safely I could you? to his exact words Q were What relies, ante, support Since the ma- an inference of malice. majority on St. Amanfior 5. The involving concededly agrees jority cases that in proposition recklessness is not measured that Bichler, the States individuals such as reasonably prudent have man would whether a liability, standard of pub- free to define their own investigated, are but whether published or Gertz, St. supra, and not then Steadman as to see serious doubts entertained lisher in fact analysis, However, at least control our Amant should is inconsistent St. Amant truth. defamation, law or common clearly Steadman, cases of supra, allows prepared actual malice. to rather than the article manner in which Bi- ignores Richard further we should wait with Rummel that Jim testimony the dis- only got deposition he before airing news because chler’s that Moore, Jerry and, page part, found at his information trict court Appendix: I understood. from what of the Joint assuming that is what Q that You are this, Kowalcyk Mr. A ... I know you said? directly to and Mr. Foster went [sic] A That is correct. I 13 before the broadcast. Channel distinctly saying director Q they not recall told the news You do know recognize it four I Moore that? And that the statements that Gerald years ago. completely they made were false did, I if I not run it. know good that I should A The chances are news di- standing telling morning there him not next I called the am him I had to tell be- put it on the air. rector on two different occasions 12:00, something. demanding a 10:00 and tween retraction, know that you also Q know if remem- I am curious to courtesy not show me the you him. man did what told ber phone. come to the A No. found at A The answer Kowalczyk’s deposition is Q No? deposition know what I did pages 128-29 of the Joint testimony of is, yes, exactly say. I don’t James contrast Rummel, precisely Appen- A Yes? Q Q —who When 4< following morning— ^[*] you placed your did you :¡s ask to talk to? ^[*] phone 4* # calls A I asked for the news director.

dix: A Mr. Q program And did they Kowalczyk on the air? they asked ask did. you you —isn’t put a fact Q ber? Did 4c you ^[*] leave ^[*] your telephone num- ^{[*] [*]} 4c A Yes? did, Q Kelly too? And Mr. Q telephone you did What number have; listening to Mr.

A I was He leave? Kowalczyk. they you the

Q fact that told telephone Isn’t it a num- A Thunder Chicken’s by were un- ber, there, waiting made Moore statements I I was because was true? my him office for a call. I called from Chicken, that, by the Thunder A I don’t remember that. morning. way, the next was you Q they told to air Is it a fact that verification program is, that without before, Q day that you, Did endanger of the din- the credit would day you this telecast observed ner theatre? 11:00, your receive evening at did me, calls, your knowledge, Excuse any

MR. CRAGWELL: was, program with- question to air the WZZM?

Q out verification would statement, —of the truthfulness of endanger the endanger— Mr. Moore’s credit A None. 4c 4s ^[*] 4: 4c 4= Q anyone than you Did talk to other of the theater? phone? terms, person who answered it in those They A did not couch They said— I remember. as best emphatically It was made A I did not. attitudes, they it in? me, couch Q What terms did I feel is clear to what me that favor, nobody wanted to talk to me, as a They A asked day. to hold it. A expressed Sure.

Q The attitude was phone at answered the person who Q you any pro- Did observe or see T.V. WZZM? gram dispute relative to that that took A Yes. place? Well, I

A don’t remember the exact but, night, again, there was a newscast I myself, and said A I identified ... Jerry that came on after Moore and di- talk to the news that I wanted to confrontation, their Dick Bichler had I I told whoever talked to rector. job, and Mr. Moore was out of a he night program that I watched the to the media and went news started false, I wanted entirely was before telling some stories that were in no five I must have waited a retraction. way fact. minutes, got back on the or six she Q whomever I phone you you and told me that Just tell me what saw. Did busy, and that I program? talk to was wanted to see call I called should back. back— Yes, A I did. Q minute, we leave that Just a before Q you program? see on the What did conversation, your you did leave phone Well, caption A before the news number? was, plucked came on it was either a number, and, Yes, by the my

A I left chicken or a cooked chicken. way— Q any display presenta- there Was Q can that? You remember picture? tion of a Oh, very “ZZM was familiar yes. A Yes, A I think there was an animated us. picture plucked of a that came bird portion the screen. majority describes this nothing vague “vague,” I see record as Q you Do remember the exact news it; crystalline. testimony about you Do remember what broadcast? station ever There is no evidence that by whom it said? was said and retraction, got or even baсk with printed I A I am not sure. think it was Jim report. truthfulness of its Bichler about the broadcast, doing Rummel that was and, know, say, you most of their like the station Bichler’s conversation with at the people that worked Thunderbird broadcasts, indicating the after one of night. saw it that a re- false and that he wanted traction, along conflicting state- with the clearly supports A “cooked chicken” also Rummel, clearly Kowalczyk ments re- unobjective, an inference of malicious ques- of a material document the existence porting. whether Rummel tion of fact Steadman addressing the factor Next report were told WZZM-TV regarding report the manner York Times false, New satisfy the so as to undisputed prepared, it is that Bichler was malice. standard of actual by actually contacted Rummel was never clearly point I out to the court further prior publication of the or the station to ante, conclusion, note at Furthermore, erroneous the re- report. the fact that or oth- on “the of affidavits danger based absence port’s substance made substantial evidence,” did not contain Curtis, the broadcast supra, er see apparent, reputation to a “cooked to the theatre as any reference at is evi- U.S. at testimony deposition of one chicken.” The “investigation” after by Rummel’s denced Cecil, Appendix in the Joint found Robert to the first before the second broadcast following discus- page really suffering contains at make sure Bichler was fact: question of regarding that reported sion financial difficulties. from the justifi- no have offered Rummel and WZZM place on Janu- Q that have taken Could publishing on for their insistence cation ary 1976? Weeren, supra, allegations involving fi- Adams noted in Bichler’s the imme- prior contacting to him for public’s nancial matters diacy of the interest in the story.6 of the his side degree investiga- affects the of reasonable mediа, required tion the news with im- Kowalczyk Rummel Additionally, told proper eliminating qualified conduct he, corporate partner busi- privilege. ness, knowledge closing until had no shortly arriving at the station: before discussion, course, applies The above Well, just A he confirmed that equally whether abuse before, things just you I said to about the New York Times standard by defined forth, place being and so closed malice, Michigan of actual standard of just and I told him that it was —I good common law malice and absence of ago, it an hour found out about about faith, negligence. or And the same triable urged put I him or asked not to genuine facts would also create a issue of news, give us some time for the concerning fact material the attitudes of troops get together, part to of the— Rummel and WZZM toward Richard Bi- know, you just ask him if he would privacy, regardless chler’s of whether putting delay it on TV. the New York Times by abuse is defined Q say you? he What did standard, standard, the common law malice news, making A He said he was negligence, properly as modified to ad- job. privacy. dress the invasion Q you And did ask him about whether questions Other material of fact exist in any or not he had checked this out jury this case. The should determine way, veracity of the statements? the theatre and whether Bichler were actu- No, A if didn’t ask him he checked it ally having problems, con- what Myself, I out. didn’t know what was provisions tractual existed between Bichler going on. cast, and the and whether the tick- advance page Appendix report Joint at 140. The really et holders were left “in lurch.” Kowalczyk’s contained no reference to sur- Indeed, report ambiguous whether the prise “closing.” about the theatre’s itself, enough imply theatre testimony Kowalczyk’s probably that he just production, closing the current told Rummel Moore was untrust- alleged misdoings, as a result of Bichler’s worthy, attempts get a retrac- proper jury question. Furthermore, is a story, tiоn false the failure or refus- findings the district court's that “the refer- al of Rummel or WZZM to contact Bichler ence to Bichler’s financial condition was not airing story, before substantial dan- highly made offensive nor ‘for its own reputation ger privacy apparent ” just clearly question sake’ as of mate- face, story’s possibility of excessive jury, defamatory rial fact for the is the publication, Kowalczyk’s knowledge lack of light” or “false nature of the broadcast. closing, possi- that the theatre was Mich, Steadman, 53-54, supra, See at ble reference to a “cooked chicken” all Mich, 580; Timmis, supra, 288 N.W.2d create inferences the existence supporting 748; Weeren, supra, 89 N.W.2d genuine of a issue of material fact as to Mich, 493, 503-04, 511, 513-14, even as defined in New York Times Furthermore, Co. Sullivan. as Justice 676.7 law, publication publication Under excessive issue of malice excessive Timmis, supports an inference of malice. su jury determination at trial. 371-72, pra, Mich. at When 748. false, report Bichler told station that the majority It is ironic that would refer to retraction, the station was not demanded grounds," Weeren as “reversed on other for the report then free to air the without substantial inappropriateness summary judgment of investigation, additional have done so involving defamatory publications cases and in- Thus, anyway. deposition Bichler's also raises seriously dispute no more than “reflects our basic cannot con- efforts of Rummel to cept dignity the one-sided of essential and worth of attempt “make the news” verify his being every concept human at —a regarding inference of malice raises an any system root of decent of ordered reports re- both the truth liberty. protection private per- of privacy. Nu- ports’ invasion of protection itself, sonality, like the of life present of material fact are merous issues primarily to the is left individual States case, properly should be sub- in this under the Ninth and Tenth Amendments. jury. to the mitted right not mean that But this does any recognition by entitled to less this IV. Court as a basic of our constitutional Finally, compelled to address an am Baer, Rosenblatt system.” U.S. implicated by the result of important issue 669, 679, S.Ct. 15 L.Ed.2d [86 597] decision which arises under our the court’s (1966) (concurring opinion). States Constitution. The con- own United See also at 3008. 418 U.S. S.Ct. ante, majority’s opinion, clusion to Brandéis, Right to Priva- Warren and states: cy, 4 Harv.L.Rev. 193 And our long recognized the Michigan has ... government, by of coordinate branches desirability public comment on issues Freedom of Information Act and the Priva- legitimate public interest. This is the cy displayed sensitivity Act of have for its common law communica- reason But right privacy. Galloway, to this By adopting the constitu- privilege. tion cf. Privacy Being Stripped malice How Your Is measuring tional standard private injury individual claims Away, 96:17 U.S. News & World Rep. when a publication or broadcast about a 30, 1984). (April matter of interest Mich- privileged Constitution, our Federal the state Under recognition further to the igan given has courts, not, through its free should play ideas in an necessity for a free thereby protect strike the balance and society. open news media’s unreasonable invasions into holding Michigan privilege citizens, private dealings of its alleged by Mr. Bichler injury to the extends barrier erection insurmountable invasion as a result of of actual malice. Gertz makes it clear that into his contractual af- news media necessity play even “the for a free of ideas fairs, ignores the fact that the court open society” point give in an must some right privacy is individual’s embraced protection way right to the individual’s by our own only by but also injury from and redress of to his govern- system of Federal constitutional reputation. involving public In cases defa- Gris- Douglas As stated ment. Justice mation, qualified privi- potential loss of the Connecticut, wold v. lege thrоugh negligence or abuse based on (1965): 1678, 1681, 14 L.Ed.2d 510 S.Ct. press good require faith would lack Bill of specific guarantees ... reasonably the circum- to behave under by ema- Rights penumbras, formed have Self-censorship each case. stances of help guarantees from those nations responsible should not be confused Various give them life and substance... reporting. Fourth, First, Third, guarantees [in (and necessary) create as- implicit Fifth and Ninth This court’s Amendments] privacy. constitutionality zones of sumption regarding the opinion ignores the context its own further Gertz, Furthermore, quoting noted in Gertz Powell stated in which Justice Stewart, individual’s Justice that: good name protection his own plurality thing was unanimous. privacy which the one

vasions of is the “uninhibited, robust, long they impose do not liabili- value to ... so as wide- fault, legitimate define ty open” without States debate on issues of New appropriate standard York Times Co. v. Sulli- for themselves concern. van, liability publisher or U.S., S.Ct., for a broadcaster at at 721. injurious defamatory falsehood to a judgment reverse the of the dis- private individual. by jury. trict and remand the case for trial at 3010. For as 418 U.S. at 94 S.Ct. in its discussion Gertz Court continues liability: on of this limitation approach provides equitable a more

This competing con-

boundary between recognizes here.

cerns involved It

strength legitimate state interest compensating private individuals for reputation, yet shields wrongful injury to Judy HAMILTON, al., et press media from the and broadcast Plaintiffs-Appellants, rigors liability of strict for defamation. v. where, as At least this conclusion obtains here, defamatory the substance of the BEAN, al., Robert et danger ‘makes substantial statement Defendants-Appellees. [quoting Curtis reputation apparent.’ No. 83-5613. Butts, supra, Publishing Co. 87 S.Ct. at 1991]. Appeals, United States Court 347-48, Id. at 3010-11. In as- Sixth Circuit. sessing Gertz impact limitation Argued Aug. 1984. impose on the states’ boundaries press, significant it is also to note Decided ‍​‌‌‌​​​​‌‌‌​‌‌‌‌‌‌​‌‌‌‌‌‌​​‌‌‌‌​‌‌‌​‌​‌​‌​​‌‌‌​‌‍Oct. 1984. Burger implicitly that both Chief Justice Rehearing Denied Nov. explicitly and Justice White dissented grounds that the states should be free impose liability upon even to strict the me-

dia, jury’s origi- and that the verdict in the proper

nal trial and should have been creating liability

reinstated even if without

fault.

Gertz may properly for the be relied on liability provides

shield from it strict however, majority opinion,

the media. The sword,

has converted the shield to a to be press,

wielded absent

disregards private aspects individ- an

ual’s life tan- which bear some unfortunate

gential legiti- relationship to the matter of

mate armament interest. Such Society

one-sided and ill-conceived. has not allegedly

benefitted false revelation Bichler, concededly private

that Richard

individual, financially contractually By recognizing

unreliable. case, great gone

this has

lengths protect information of such little

Case Details

Case Name: Richard Bichler v. Union Bank and Trust Company of Grand Rapids

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 30, 1984

Citation: 745 F.2d 1006

Docket Number: 82-1103

Court Abbreviation: 6th Cir.