ROUCH v ENQUIRER & NEWS OF BATTLE CREEK (AFTER REMAND)
Docket No. 89799
Supreme Court of Michigan
Argued December 3, 1991 (Calendar No. 2). Decided July 15, 1992.
Rehearing denied post, 1209. Certiorari denied by the Supreme Court of the United States on March 1, 1993, 507 US — (1993).
440 Mich 238
In an opinion by Justice BOYLE, joined by Justices BRICKLEY, GRIFFIN, and MALLETT, the Supreme Court held:
The plaintiff offered insufficient evidence to establish material falsity.
1. A cause of action for libel requires the showing of a false
2. In a libel case affecting constitutionally protected public discourse, an appellate court must independently review the record with regard to falsity. The definition of falsity remains grounded in the common law. A claim for libel is predicated on whether the article was substantially true. Liability should not be imposed for slight inaccuracies. The sting of the article and its effect on the reader should be examined. If the literal truth would produce the same effect, minor differences are immaterial. In this case, use of the word “charge” in the absence of a formal arraignment cannot be deemed materially false. The word is an umbrella term covering all stages of the charging process. Although in legal terminology it is used in contradistinction to “conviction,” in the popular sense, it is used as a synonym for “accuse.” Even if its use, in the technical formal sense, was inaccurate, it cannot be a basis for liability because that would eviscerate the breathing space required to protect First Amendment rights. On the basis of an independent review of the record, the use of the word “charge” did not render the article materially false. Likewise, minor inaccuracies did not alter the substantial truth of the article. Its gist or sting was that the plaintiff was arrested on the basis of the identification of persons who knew him and was charged with first-degree criminal sexual conduct. Neither of the asserted errors altered the gist or sting.
Vacated and remanded.
Justice RILEY, joined by Justice GRIFFIN, concurring, stated that, as a threshold matter, the plaintiff‘s failure to allege and identify in his pleadings, supplemental pleadings, and answers to the defendant‘s interrogatories, specifically which statements he considered to be materially false and how the newspaper either was negligent or reckless in publishing the story were
Chief Justice CAVANAGH, joined by Justice LEVIN, dissenting, stated that there is sufficient evidence of material falsity.
The article in dispute contains inaccuracies. The issue, however, is not merely whether there are inaccuracies, but whether the inaccuracies constitute material falsity. The test is whether the evidence supports the finding that the article was materially false in that the “sting” of the article would have an effect on the mind of the reader different from the literal truth. In determining whether the concededly false aspects of the publication are significant, for defamation purposes, in relation and comparison to the concededly true portions, the inquiry necessarily goes beyond the strictly factual level and requires interpreting the likely effect of the publication on the reader‘s mind and the likely meaning conveyed.
In reviewing a libel verdict, an appellate court should not review credibility determinations, disregard previous fact findings, or create new fact findings. Rather, it should exercise independent judgment regarding whether, as a matter of law, the evidence in the record supports the verdict. In this case, it is important to recognize that a jury, adequately instructed with respect to material falsity, reached a conclusion regarding the likely effect of the article on the mind of an average reader. As purely factual matters, the statements that the plaintiff‘s own children had identified him as the assailant and that he had been charged with criminal sexual conduct were false. The misidentification of his stepchildren as his children is not inconsequential. Even if this question is seen as a close issue, it cannot be concluded that the reader would not have had a different reaction had the literal truth been reported. With regard to the declaration that the prosecutor had authorized the charge, even though newspapers should not be held to technical legal language, the effect on the mind of the reader was materially different from the effect that would have resulted from the actual truth. Read as a whole, the article in this case conveyed the impression that there was overwhelming evidence and that judicial proceedings had been instituted.
Justice LEVIN, writing separately, stated that it is not defamatory by itself to describe an arrest as a “charge.” The article in question, however, reported not only that Rouch had been arrested and charged, but also that the charge had been authorized by the prosecutor, suggesting far more than an ordinary arrest, i.e., that there was overwhelming evidence and that judicial proceedings had been instituted.
The position that the plaintiff failed adequately to state facts,
184 Mich App 19; 457 NW2d 74 (1990) vacated.
- LIBEL AND SLANDER — NEWSPAPERS — PRIVATE PERSONS — NEGLIGENCE.
A cause of action for libel requires the showing of a false and defamatory statement concerning the plaintiff, an unprivileged communication to a third party, fault amounting to at least negligence on the part of the publisher, and either actionability of the statement irrespective of special harm or the existence of special harm caused by publication; a litigant additionally must comply with constitutional requirements focusing on the public- or private-figure status of the plaintiff, the media or nonmedia status of the defendant, and the public or private character of the speech; the plaintiff bears the burden of proving falsity by establishing the publication of the communication was negligent (US Const, Am I ). - LIBEL AND SLANDER — NEWSPAPER ARTICLES — SUBSTANTIAL TRUTH — STING.
A claim for libel based on a newspaper article is predicated on whether the article was substantially true; liability should not be imposed for slight inaccuracies; rather, the sting of the article and its effect on the reader should be examined; if the literal truth would produce the same effect, minor differences are immaterial.
John M. Jereck for the plaintiff.
Nixon, Hargrave, Devans & Doyle (by Robert C. Bernius and Sharon Ochs Boston) and Sullivan, Hamilton, Schulz, Allen & Lettering (by James M. Sullivan) for the defendant.
Amici Curiae:
Honigman, Miller, Schwartz & Cohn (by Herschel P. Fink and Michael A. Gruskin); Mendes & Mount, of counsel (by Edward G. Spacek and Glenn M. Bieler), and Samuel A. Terilli,
Kasiborski, Ronayne & Flaska, P.C. (by John J. Ronayne, III), for Post-Newsweek Stations, Michigan, Inc., and Adams Publishing Corporation.
Butzel, Long (by Richard E. Rassel, James E. Stewart, Leonard M. Niehoff, and Kevin F. O‘Shea) for The Detroit News, Inc.
Marco, Litzenburger, Smith, Brown & Erhart, P.C. (by Seberon Litzenburger), for Northern Michigan Review, Inc., Otsego County Herald Times, Inc., Maurer Publishing Company, Cadillac Evening News, and Silbar Communications.
Dawn L. Phillips and Karen Russell for Michigan Press Association.
AFTER REMAND
BOYLE, J.
A responsible press has always been regarded as the handmaiden of effective judicial administration . . . . Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. [Sheppard v Maxwell, 384 US 333, 350; 86 S Ct 1507; 16 L Ed 2d 600 (1966).]
In this case we are called upon to examine the balance between protecting an individual‘s reputation from false and defamatory statements and fostering energetic, tumultuous public debate to ensure continued scrutiny of police, prosecutors, and the courts through cherished constitutional
The plaintiff, David Rouch, was arrested, booked on a charge of first-degree criminal sexual conduct by the police upon authorization from an attorney in the prosecutor‘s office, and released after an informal bond hearing by a magistrate acting in her formal capacity pursuant to
Perhaps it is not surprising that with such important rights at stake, this controversy has required so much appellate court time.2 When this Court first considered the case, it reviewed an
I
A. THE PROCEDURAL HISTORY
On December 5, 1980, David Rouch commenced this libel action against the Enquirer & News of Battle Creek by filing a complaint in the Calhoun Circuit Court. Rouch claimed that the newspaper had falsely published an article describing his arrest as a suspect for the rape of a seventeen-year-old girl who was baby-sitting for his former wife. After initial discovery, the newspaper filed a motion for summary disposition, seeking an order of no cause of action because the newspaper was entitled to qualified privilege under the terms of
The Court of Appeals reversed the ruling of the trial court, stating that the statutory privilege was unavailable on the basis that no warrant was issued in the case, that the common-law privilege to report matters in the public interest was unavailable because the details of the alleged crime fell outside the scope of matters promoting the public interest, and that the trial court erred in requiring a showing of malice.6 We granted the defendant leave to appeal.7
In Rouch v Enquirer & News of Battle Creek, 427 Mich 157; 398 NW2d 245 (1986) (hereafter Rouch I), we considered the scope of Michigan‘s statutory privilege, the continued existence of Michigan‘s qualified privilege in light of the constitutional dimensions of the law of defamation as developed by the United States Supreme Court in New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), and its progeny, and the burden of proving falsity. Writing for the majority, Justice BRICKLEY considered the questions of privilege and discussed the applicability of
On February 9, 1988, an eight-day trial commenced in circuit court. Witnesses included the news reporter responsible for the story, police officers, the plaintiff, the magistrate responsible for holding the informal bond hearing, and several expert witnesses. Significantly, John Bell, a Battle Creek police officer, testified that the prosecutor, Mr. Pattison, authorized Mr. Rouch to be arrested on the charge of first-degree criminal sexual con-
The defendant renewed its motion for directed
The Court of Appeals addressed numerous issues in affirming the jury verdict. The Court rejected the defendant‘s contention that the plaintiff failed to prove that the article was materially false. The Court disagreed with the defendant‘s assertion that the plaintiff failed to submit sufficient evidence to establish negligence. In addition, the Court disagreed with the defendant‘s suggestion that publication of the article was within the protection of the official proceedings statute.
We granted the defendant leave to appeal. 437 Mich 1035 (1991).
B. THE FACTUAL BACKGROUND
This case began on December 21, 1979, with the arrest of David Rouch as a suspect in the rape of his former wife‘s baby-sitter. Rouch was arrested without a warrant, held by the police, booked on the charge of first-degree criminal sexual conduct, as authorized by the prosecutor, and released on $10,000 personal recognizance bond after an informal hearing before a magistrate.12 It is undisputed
The facts regarding the manner in which the newspaper reporter received the information are in dispute. The reporter claimed that he contacted members of the Bedford Police Department in Calhoun County who relayed the information to him, and that he held the information until he was informed that court action had occurred and Rouch was released on bond with an arraignment set for the following week. Because the reporter could not identify with certainty to whom he spoke at the police department, and the officers who testified could not recall speaking with the reporter about this specific case, the plaintiff suggests that the reporter uncovered the information in some other way.14
A proper determination of the plaintiff‘s defamation claims requires consideration of the elements of libel under Michigan law in light of the constitutional requirements and principles that shape libel law to be consistent with First Amendment strictures. Michigan adheres to the commonly accepted meaning of a defamatory communication set forth in the Restatement of Torts. Nuyen v Slater, 372 Mich 654, 662; 127 NW2d 369 (1964). 3 Restatement Torts, 2d, § 559, p 156, provides:
A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.
In Locricchio v Evening News Ass‘n, 438 Mich 84, 115-116; 476 NW2d 112 (1991), we enumerated four components for a cause of action for libel: 1) a false and defamatory statement concerning the plaintiff, 2) an unprivileged communication to a third party, 3) fault amounting to at least negligence on the part of the publisher, and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication.
In addition to satisfying Michigan‘s common-law requirements for a libel cause of action, a litigant must comply with constitutional requirements. As we recognized in Locricchio, analysis under the constitution has focused on three elements: “the public- or private-figure status of the plaintiff, the
The Court of Appeals affirmed the jury verdict in this case, ruling that the plaintiff met his burden of proving falsity, that sufficient evidence was submitted to establish the defendant‘s negligence, and that the defendant could not invoke the protection of Michigan‘s “official proceedings” statute,
III
In Locricchio, 438 Mich 110-114, we held that in reviewing a libel case affecting constitutionally protected public discourse, an appellate court must independently review the record with regard to falsity. The concept of independent appellate review of the record reflects a longstanding concern that judges “exercise such review in order to preserve the precious liberties established and ordained by the Constitution.” Bose Corp v Consumers Union of United States, Inc, 466 US 485, 511; 104 S Ct 1949; 80 L Ed 2d 502 (1984). Since New York Times Co v Sullivan, supra at 285, the United States Supreme Court has emphasized the importance of careful appellate review of the evidence to ensure that constitutional principles are properly applied. There, the Court explained:
This Court‘s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across “the line between speech unconditionally guaranteed and speech which may legitimately be regulated.” . . . In cases where that line must be drawn, the rule is that we “examine for ourselves the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the
Fourteenth Amendment, protect.” . . . We must “make an independent examination of the whole record,” . . . so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.
Reiterating this conclusion in Time, Inc v Pape, 401 US 279; 91 S Ct 633; 28 L Ed 2d 45 (1971), the Court underscored its concern that an independent examination of the evidence be conducted. Writing for the majority, Justice Stewart stated:
Inquiries of this kind are familiar under the settled principle that “[i]n cases in which there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will re-examine the evidentiary basis on which those conclusions are founded.” [Id. at 284.]
Justice Stewart recalled that the occasion for such review “frequently” arose in “the area of tension between the First and Fourteenth Amendments on the one hand and state defamation laws on the other . . . .” Id.
More recently, the United States Supreme Court revisited the question of the proper standard of appellate review in Bose Corp v Consumers Union of United States, Inc, supra. Bose rejected the imposition of the clearly erroneous standard of FR Civ P 52(a) in reviewing a determination of actual malice in cases governed by New York Times Co v Sullivan, supra. Recounting the lengthy tradition of independent review in the context of constitutional facts, the Bose Court characterized the requirement as “a rule of federal constitutional law” that “emerged from the exigency of deciding concrete cases; it is law in its purest form under our common-law heritage . . . reflect[ing] a deeply
Likewise, the United States Supreme Court independently reviewed the record in Harte-Hanks Communications, Inc v Connaughton, 491 US 657; 109 S Ct 2678; 105 L Ed 2d 562 (1989), to conclude that the judgment was supported by clear and convincing proof of actual malice. The Court reiterated its conclusion in Bose that the sufficiency of evidence to support a finding of actual malice is a question of law. It emphasized the “unique character of the interest protected by the actual malice standard,” Harte-Hanks at 686. The Court predicated the rule requiring independent review on the difficulty in giving “content to these otherwise elusive constitutional standards,” coupled with the importance of “such elucidation . . . in the area of free speech . . . .” Id.
Although the scope of this doctrine had not been clearly delineated by the United States Supreme Court, in Locricchio, we concluded that “an independent appellate review of the burden of proof with regard to falsity in private-figure, public-interest cases deters ‘forbidden intrusion on the field of free expression’ as a logical corollary to independent review of actual malice.” Id. at 113 (quoting Sullivan at 285). We reasoned that Hepps abrogated the common-law presumption of falsity in libel cases, creating “an issue of constitutional fact regarding whether a plaintiff carries the burden of proving falsity.” 438 Mich 113.19 We consid-
The Court has acknowledged that the “appropriate methodology for distinguishing questions of fact from questions of law has been, to say the least, elusive.” Miller v Fenton, 474 US 104, 113; 106 S Ct 445; 88 L Ed 2d 405 (1985). In discussing this problem, the Court at 114, stated:
A unified view of the scope of review, the judge/jury question, and procedural discretion, 64 NC L R 993, 995, n 13 (1986). The doctrine of independent review of constitutional facts has arisen in First Amendment and other constitutional contexts. See, e.g., Jacobellis v Ohio, 378 US 184, 190; 84 S Ct 1676; 12 L Ed 2d 793 (1964) (the court has an “obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments,” and in doing so “cannot avoid making an independent constitutional judgment on the facts of the case“); Payne v Arkansas, 356 US 560, 562; 78 S Ct 844; 2 L Ed 2d 975 (1958) (“where the claim is that the prisoner‘s confession is the product of coercion we are bound to make our own examination of the record“); Norris v Alabama, 294 US 587; 55 S Ct 579; 79 L Ed 1074 (1935) (appellate courts have the duty to analyze the facts to safeguard constitutional rights where the facts and conclusions of law are intermingled); Ng Fung Ho v White, 259 US 276; 42 S Ct 492; 66 L Ed 938 (1922) (sanctioning constitutional fact review of a challenge to an administrative deportation warrant).
At least in those instances in which Congress has not spoken and in which the issue falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question. Where, for example, as with proof of actual malice in First Amendment libel cases, the relevant legal principle can be given meaning only through its application to the particular circumstances of a case, the Court has been reluctant to give the trier of fact‘s conclusions presumptive force and, in so doing, strip a federal appellate court of its primary function as an expositor of law.
The Miller Court at 114, cited with approval Monaghan‘s article discussing Constitutional fact review, 85 Colum LR 229 (1985). The author placed the Bose case within the context of numerous United States Supreme Court decisions establishing that “absent limiting legislation, federal appellate courts, particularly the Supreme Court” possess the authority to “sort out the relevant facts and apply to them the controlling constitutional norms.” Monaghan at 238. Monaghan explained that independent review enabled the appellate court to “elaborate the governing norm.” Id. at 236. Since law application is “situation-specific” and norm elaboration is often invisible or buried in a general verdict, Monaghan noted that unless appellate courts conduct independent review they are unable to carry out their law declaration function by providing general norm elaboration when they conclude that it is necessary.21 In accord with Monaghan‘s view, the Miller Court
emphasized the question of allocation of decision making embodied in the categorization of issues as fact/law or mixed fact/law questions.
We perceive an additional need for independent review grounded on the fear that juries may give short shrift to important First Amendment rights. The Miller Court recalled that the Court has tended to allocate decision making to appellate courts where necessary to avoid perceived shortcomings of the trier of fact and to allocate decision making to trial courts where the issue involves the credibility of witnesses. In the area of libel actions, we have acknowledged that independent review “reflects an inherent distrust of allocating unlimited decisional power to juries in the First Amendment context.” Locricchio, supra at 114, n 20. Even Justice Rehnquist, who dissented in Bose, supra, conceded that the doctrine of independent review of facts “exists . . . so that perceived shortcomings of the trier of fact by way of bias or some other factor may be compensated for.” 466 US at 518.
preserving constitutional rights requires courts to “expound and refine the applicable constitutional law” and elaborate the constitutional norms when necessary. Monaghan at 268.
We therefore independently review the whole record in this case to consider whether material falsity was shown.
IV
The common law has never required defendants to prove that a publication is literally and absolutely accurate in every minute detail. For example, the Restatement of Torts provides that “[s]light inaccuracies of expression are immaterial provided that the defamatory charge is true in
It is sufficient for the defendant to justify so much of the defamatory matter as constitutes the sting of the charge, and it is unnecessary to repeat and justify every word of the alleged defamatory matter, so long as the substance of the libelous charge be justified. . . . [A] slight inaccuracy in one of its details will not prevent the defendant‘s succeeding, providing the inaccuracy in no way alters the complexion of the affair, and would have no different effect on the reader than that which the literal truth would produce . . . .
Thus, the test looked to the sting of the article to determine its effect on the reader; if the literal truth produced the same effect, minor differences were deemed immaterial.
In contrast to the early common law, where falsity was presumed and the defendant was required to prove substantial truth as a defense, the burden of proving falsity has now been shifted to the plaintiff.24 Despite this constitutionally required alteration in the allocation of the burden of proof, the definition of falsity remains based on the common-law doctrine. Masson v New Yorker Magazine, Inc, 501 US —; 111 S Ct 2419; 115 L Ed 2d 447 (1991). In determining the falsity component of an actual malice finding, the United States Supreme Court grounded the concept of falsity on its historical definition of falsity in common-law libel. Masson, 111 S Ct 2432-2433. The Court explained:
The common law of libel takes but one approach to the question of falsity, regardless of the form of the communication. . . . It overlooks minor inaccuracies and concentrates upon substantial truth. . . . The essence of that inquiry, however, remains the same whether the burden rests upon plaintiff or defendant. Minor inaccuracies do not amount to falsity so long as “the substance, the gist, the sting, of the libelous charge be justified.” . . . Put another way, the statement is not considered false unless it “would have a different effect on the mind of the reader from that which the pleaded truth would produce.”
Although Masson pertained to the falsity component of an actual malice determination, it is clear that the constitutional requirement for testing falsity mirrors Michigan‘s common-law test.
The substantial truth doctrine is frequently invoked to solve two recurring problems: minor inaccuracies and technically incorrect or flawed use of legal terminology. This case raises both questions. The Court of Appeals held that “whether the article is read for its gist or simply for the information presented as fact, plaintiff has met his burden of proving falsity.” 184 Mich App 32. In reaching this result, the Court of Appeals focused on the assertions that the article indicated that plaintiff was “charged” with the crime of first-degree criminal sexual conduct, sexual assault, that “charges” had been authorized by the prosecutor when no formal arraignment had occurred,
In order to properly evaluate the falsity of the article, we have reproduced the language from the article as published in the newspaper followed by a version that contains language which corrects the inaccuracies complained of by the plaintiff.
This is the text of the report and headline published by the Enquirer & News of Battle Creek:
POLICE ARREST SUSPECT IN BABY-SITTER ASSAULT
A 43-year-old man has been arrested and charged with the sexual assault of a 17-year-old wom[a]n who was baby-sitting with his children at his ex-wife‘s house on North Finlay Avenue in Bedford Township.
The suspect has been identified by Bedford Township police as David J. Rouch of 631 Golden Ave. He is free on a $10,000 personal recognizance interim bond pending his arraignment in District 10 Court next week. Rouch is charged with first-degree criminal sexual conduct.
Police said Rouch allegedly entered the house about 4 A.M. Friday and attacked the young woman. He is said to have used a knife to cut the victim‘s clothes off, police said.
The victim later called a relative, who took her to Community Hospital and then called police. The suspect was identified by his children, according to police.
Rouch was arrested at his home by Emmett Township police, who were informed where he lived by Bedford Township investigators.
The charge against Rouch was authorized Friday by the Calhoun County Prosecutor‘s Office. [Emphasis added.]
The following version substitutes language that
POLICE ARREST SUSPECT IN BABY-SITTER ASSAULT
A 43-year-old man has been arrested and accused of sexual assaulting a 17-year-old woman who was babysitting his ex-wife‘s children at her house on North Finlay Avenue in Bedford Township.
The suspect has been identified by Bedford Township police as David J. Rouch of 631 Golden Avenue. He is free on a $10,000 personal recognizance interim bond pending his arraignment in District 10 Court next week. Rouch is accused of committing first-degree criminal sexual conduct.
Police said that Rouch allegedly entered the house about 4 A.M. Friday and attacked the young woman. He is said to have used a knife to cut the victim‘s clothes off, police said.
The victim later called a relative, who took her to Community Hospital and then called police. The suspect was identified by his ex-wife‘s children, according to police.
Rouch was arrested at his home by Emmett Township police, who were informed where he lived by Bedford Township investigators.
The Calhoun County Prosecutor‘s Office authorized the incarceration of Rouch on allegations of criminal sexual conduct in the first degree.
We cannot agree that the gist or sting of the article is changed by these minor differences.
The primary criticism that plaintiff raises is with the use of the word “charges,” absent formal arraignment. The Court of Appeals concluded that the message conveyed to readers of the article by the several references to “charge” or “charges” was materially false. First, it interpreted this Court‘s opinion in Rouch I as requiring this result. It apparently concluded from the statement in
We cannot agree with this reasoning. The linchpin of the Court of Appeals analysis is a formalistic interpretation of the word “charge” that belies any attempt to ascertain the “gist” or “sting” of the article to the lay reader. The United States Supreme Court has cautioned that recovery can be refused for “choice of language which, though perhaps reflecting a misconception, represented ‘the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies.‘” Masson, 111 S Ct 2434, quoting Bose, 466 US 513.25
Technical inaccuracies in legal terminology employed by nonlawyers such as those at issue here fall within this category. Numerous courts have rejected claims of falsity when based on a misuse of formal legal terminology.26 We have recognized that the popular sense of a term may not be technically accurate. See, e.g., Bailey v Kalamazoo Publishing Co, 40 Mich 251, 255-256 (1879). The Court reasoned:
A prosecution before a justice is not in a technical sense an indictment, but it serves a similar purpose. Grand juries are seldom summoned now, and very few cases are tried at the circuit on indictment. Informations have generally superseded the old method. Yet we use the term “indictment” in ordinary conversation and often in judi-
cial opinions to express any criminal prosecution. The burden of this charge was that Bailey had been prosecuted for malfeasance, and we do not think there was any substantial variance between the charge and proof. The popular sense was made out by showing the prosecution for misconduct.
Thus, if technical and common parlance yield different interpretations of the same word, the constitutionally required breathing space affords protection of the writer‘s choice.
Another typical example involved reports of statements made by a trial judge at a sentencing hearing of a defendant who had pleaded no contest to a charge of second-degree sexual assault. Simonson v United Press Int‘l, Inc, 654 F2d 478, 479-480 (CA 7, 1981). The article had set forth the judge‘s comment regarding a “sexually permissive” community and questioning whether a severe sentence should be imposed on “an impressionable person 15 or 16 years of age,” who responded. The plaintiff, the trial judge, was recalled from office after the report. He sued the newspaper for defamation, contending that its description of a sexual assault as “rape” and its use of the word “ruled” when describing the judge‘s comments constituted defamation. The Simonson court rejected this argument, noting that rape in its common usage included nonconsensual sex and that intercourse had occurred without the consent of the victim. The court further rejected the judge‘s contention that he never “ruled” that sexual assault was a “normal reaction to prevalent sexual permissiveness,” but simply remarked on this during the hearing. Noting that a plain and ordinary meaning of “ruling” might include statements and comments made by a judge when sitting on the bench, the court rejected the judge‘s contention that his
Just as the judge in Simonson asserted that “ruling” should be reserved for words uttered by the judge as a formal decree and that “rape” should not be used for a no-contest plea to second-degree sexual assault, plaintiff asserts that “charge” should be limited to circumstances in which a formal arraignment has been held. As in Simonson, the word at issue in this case encompasses the formal legal sense as well as a broader lay sense. Just as the Simonson court concluded that use of a word in accord with one of its meanings could not be deemed materially false, so too do we conclude that use of “charge” absent formal arraignment cannot be deemed materially false.
Not only does “charge” in a popular sense accord with the newspaper‘s use of the term, it accords with the legal description of the status of an arrestee before judicial process is issued. For example, the Legislature used “charge” to describe the disposition of a person following arrest without a warrant. See
Furthermore, both testimony and documents from the trial illustrate the numerous uses to which the word can be put. Plaintiff himself used “charge” at numerous points in the proceedings to describe the accusations brought against him.30 Furthermore, plaintiff conceded that “the article in question and its reference to the Plaintiff being arrested and being charged [with] csc and thereafter released on bond were true.”31 In addition, the police reports used “charge” to describe the accusations against Rouch.32
The word “charge” is an umbrella term covering all stages of the charging process. It is used by the
At best, one might conclude that the use of “charge” in its technical formal sense was inaccurate. We cannot accept this as a basis for liability. To do so would totally eviscerate the “breathing space” that the constitution requires in order to protect important First Amendment rights. When writing about criminal justice or legal matters, newspapers would be forced to recapitulate technical legal terminology employed by courts or law enforcement personnel even where popular words might be clearer for the lay reader. Attempting to reframe legal documents and events with legal significance into popular or lay terminology would be fraught with peril, and newspapers would do so at their risk. As one court remarked, there is “no
Plaintiff‘s additional complaint falls within the second category of cases arising under the substantial truth doctrine, those that involve minor inaccuracies. Plaintiff protests the article‘s suggestion that he was identified by his children, rather than the children of his former wife. The Court of Appeals concluded that this constituted material falsity because it seemed to eliminate the possibility that there was a mistaken identification. We cannot accept this reasoning.
Numerous courts have considered the falsity of articles in which the gist of the story was accurate, but minor inaccuracies marred the report. Drury v Feeney, 505 So 2d 111 (La App, 1987), cert den 506 So 2d 1225 (1987), is illustrative. Despite the defendant‘s failure to report precisely the nature of the plaintiff‘s conviction, the court found that the article was substantially true. The article described the plaintiff‘s conviction of “21 counts of mail fraud to cheat insurance companies and his clients of money in car accident suits.” Actually, the plaintiff had been convicted for failure to disclose to his clients a fee-splitting arrangement. In colorful language, the court concluded
Like courts in other jurisdictions, Michigan courts have found substantial truth despite minor inaccuracies in the details of an article. McCracken v Evening News Ass‘n, 3 Mich App 32; 141 NW2d 694 (1966), epitomizes the reasoning that undergirds such a finding. The defendant newspaper reported that the plaintiff was charged with “$100,000 fraud” when, in fact, he had altered construction invoices in an amount between $37,000 and $39,000. The Court of Appeals rejected the plaintiff‘s claim that the article was substantially untrue, noting that this constituted “an inaccuracy that does not alter the complexion of the affair and would have no different effect on the reader than that which the literal truth would produce.” 3 Mich App 40.36
The essence of plaintiff‘s argument is that the statement in the article that his children had identified him would eliminate in the reader‘s mind the possibility of a mistake. We think the gist or sting of the article was that plaintiff was arrested on the basis of the identification of per-
In sum, neither of the asserted errors, taken individually or as a group, alters the gist or sting of the article. The sting of the article was that the plaintiff had been identified by persons to whom he was well known and was charged with csc i. That is true. The question whether a formal warrant had been issued or an arraignment held, like the question whether it was his children or former stepchildren who identified him, did not affect the article‘s substantial truth. Thus, the Court of Appeals erred in affirming the trial court judgment on this issue.
V
After painstaking review of the whole record in light of Michigan libel law and the latest constitutional pronouncements on the subject, we conclude that the evidence was not sufficient to establish material falsity.
Accordingly, because we disagree with the reasoning and result of the Court of Appeals, we vacate its opinion and remand this matter to the trial court for entry of judgment in favor of the defendant.
BRICKLEY, GRIFFIN, and MALLETT, JJ., concurred with BOYLE, J.
RILEY, J. (concurring). Although I agree essentially with the opinion of the majority, I write separately to make the following observations.
I concur in the result reached by the majority
I
In Locricchio v Evening News Ass‘n, 438 Mich 84, 115-116; 476 NW2d 112 (1991), we reviewed our common-law precedent1 and listed the four components required to state a cause of action for libel: (1) a false and defamatory statement of and concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication. We also stated that a cause of action for libel requires a plaintiff to show defamatory meaning as well as falsity, fault, and publication. Locricchio, supra at 116. Inherent in these requirements is the well-established rule that a defamation plaintiff must plead with specificity who published the defamatory statement, when it was published, and, most importantly, a plaintiff must identify the precise materially false statement published. MacGriff v Van Antwerp, 327 Mich 200, 204-205; 41 NW2d 524 (1950). In Mac-
In recent years, however, a conflict developed in the Court of Appeals over whether a general allegation of malice is sufficient to establish a genuine issue of material fact. The conflict began with Parks v Johnson, 84 Mich App 162, 169; 269 NW2d 514 (1978), wherein a Court of Appeals panel held that because courts are liberal in finding the existence of a genuine issue of material fact, they should not grant summary judgment unless convinced that the claim cannot be supported at trial. The Parks rationale was disapproved, however, in Hayes v Booth Newspapers, Inc, 97 Mich App 758, 774-775; 295 NW2d 858 (1980); Lins v Evening News Ass‘n, 129 Mich App 419, 435; 342 NW2d 573 (1983); Dienes v Associated Newspapers, Inc, 137 Mich App 272, 283; 358 NW2d 562 (1984); and again in Kurz v Evening News Ass‘n, 144 Mich App 205, 213; 375 NW2d 391 (1985), vacated on other grounds 428 Mich 886; 403 NW2d 805 (1987). These panels of the Court of Appeals concluded that a plaintiff must plead specific facts in support of showing actual malice to defeat a motion for summary judgment. The issue was settled until yet another panel held that Parks was correct; malice can be generally alleged and plaintiff should be given ample opportunity to demonstrate actual malice. Grostick v Ellsworth, 158 Mich App 18, 23; 404 NW2d 685 (1987). The Grostick decision was abandoned shortly thereafter in Smith v Fergan, 181 Mich App 594, 597; 450 NW2d 3 (1989). The Smith Court reaffirmed the principle that because the issue of actual malice is one for the jury, specific supporting facts must be alleged and general allegations of malice are, therefore, insufficient to establish a genuine issue of material fact. The Smith decision is now controlling authority, and under Administrative Order Nos. 1990-6, 1991-11, binding precedent. See Gonyea v Motor Parts Federal Credit Union, 192 Mich App 74, 80; 480 NW2d 297 (1991); Prysak v RL Polk Co, 193 Mich App 1, 14; 483 NW2d 629 (1992).
In a similar vain,
II
In the instant case, plaintiff, deemed a private
Upon receiving the answers, defendant for-
Calhoun Circuit Court Judge Stanley Everett denied both motions, but ordered plaintiff to answer defendant‘s supplemental interrogatories. At this hearing, Judge Everett recognized that plaintiff had failed to plead with specificity the defamatory statements published, how the statements related to him, and what was materially false within the statement. Judge Everett also recognized that the specificity requirement is needed in defamation pleadings, as it is in the ordinary negligence cases, to allow the parties to narrow their focus on the allegedly libelous statements and to determine if the article, taken as a whole, is materially false.5 Plaintiff‘s counsel again ar-
Upon receiving plaintiff‘s answers to the supplemental interrogatories—which stated that the article was false because he did not commit the rape, and that defendant committed various omissions in publishing the story—defendant moved again for summary judgment. Defense counsel argued that “none of those answers state or raise any issue of malice in the sense that is applicable to this libel action.”6 Plaintiff responded by alleging
the part of the defendant you claim were negligent? Now, the term negligence has a special meaning in the law, it is a little more—a little easier probably for the layman to recognize it than malice, as we‘re using it. But, he could easily say, I don‘t know what negligence is and, therefore, I can‘t—what the legal definition of negligence is, therefore, I can‘t answer your question, and avoid it.
This time, Judge Everett granted defendant‘s motion. He based his conclusion on the fact that there was a qualified privilege to publish the story, and that plaintiff failed to specify in his answers to the supplemental interrogatories “any allegation which suggests that the statements were known to be false on the part of the people involved in its publication or with reckless disregard whether they were false or not.”7
III
Thus, I write separately to indicate my agreement with the trial court and to emphasize my belief that although this Court abandoned the “actual malice” standard for private person-public interest defamation actions in Rouch I
GRIFFIN, J., concurred with RILEY, J.
CAVANAGH, C.J. I respectfully dissent. I agree that the correct legal test is one of material falsity and that the court is required to conduct an independent review of the record. I disagree, however, with the majority‘s conclusion that there is insufficient evidence of material falsity.
I
The disputed article in this case does contain inaccuracies. The defendant concedes that the plaintiff was not identified by his own children, but by his ex-wife‘s children. In addition, the article‘s assertion that the plaintiff was “arrested and charged” was inaccurate if “charged” is interpreted to mean subjected to formal charges. And, perhaps most significantly, there were never any charges “authorized by the Calhoun County Pros
The test is whether the evidence supports the finding that the article was materially false in that the “sting” of the article would have a different effect upon the mind of the reader than would the literal truth.
In determining whether the concededly false aspects of the publication are significant, for defamation purposes, in relation and comparison to the concededly true portions, the inquiry necessarily goes beyond the strictly factual level and requires interpreting the likely effect of the publication on the reader‘s mind, and the likely meaning conveyed. But as the Court in Locricchio v Evening News Ass‘n, 438 Mich 84, 111, n 17; 476 NW2d 112 (1991), recognized, “in reviewing a libel verdict an appellate court does not and should not exercise review of credibility determinations, disregard previous factfindings, or create new factfindings. Rather, the court should exercise independent judgment regarding whether, as a matter of constitutional law, the evidence in the record supports the verdict.” Similarly, the United States Supreme Court has declared:
Indeed, it is not actually necessary to review the “entire” record to fulfill the function of independent appellate review . . . . The independent review function is not equivalent to a “de novo” review of the ultimate judgment itself, in which a reviewing court makes an original appraisal of all the evidence to decide whether or not it believes that judgment should be entered for plaintiff. [Bose Corp v Consumers Union of United States, Inc, 466 US 485, 514, n 31; 104 S Ct 1949; 80 L Ed 2d 502 (1984).]
The task before this Court, therefore, is to undertake an independent review of the record and make a judgment regarding whether the evidence supports the finding that this article was materially false. While the standard calls for “independent appellate review,” and this Court is not constrained to agree with the jury, it is important to recognize that in this case a jury, adequately instructed with respect to the need for material falsity, has reached a conclusion regarding the likely effect of the article at issue on the mind of the average reader.2 Indeed, when the entire news
II
Turning now to a review of the evidence in this case, the Court of Appeals declared that the article was materially false in two respects: (1) by inaccurately stating that the plaintiff had been identified as the assailant by his own children when in fact it was his former stepchildren who had identified him, and (2) by stating several times that plaintiff was arrested and charged with sexual assault when he was in fact merely arrested. As a purely factual matter, the statement that the plaintiff‘s own children had identified him as the assailant was false; the question, however, is whether it was a materially false statement; would it create a different impression in the mind of the reader than would the actual truth? I would conclude that the evidence supports such a finding. A man‘s children would presumably know him very well by
The second aspect of falsity flows from the declaration that the plaintiff was “charged” with criminal sexual conduct. As a legal matter, it was inaccurate to state that the plaintiff had been “charged.” In fact, no warrant had been issued by the prosecutor, the plaintiff had not been arraigned, and there had been no judicial determination of probable cause; the plaintiff was merely arrested and booked on suspicion of the crime.
As a preliminary matter, the dissenting judge on the Court of Appeals is correct in maintaining that “newspapers should not be held to technical legal language. Instead, they should be held to the use of words as they are customarily and popularly used.” 184 Mich App 53 (opinion of ALLEN, J.). But even in light of common, colloquial usage by non-
A final note in this area is that I believe it is inappropriate for the majority to focus merely on the definition of the single word “charge.” Ante, p 263.4 Michigan‘s law of libel requires an examina-
I would affirm the judgment of the Court of Appeals.
LEVIN, J., concurred with CAVANAGH, C.J.
LEVIN, J. (separate opinion). I have signed the Chief Justice‘s opinion.
I
While I fully agree with the Chief Justice that “it is inappropriate for the majority to focus merely on the definition of the single word ‘charge,‘” 1 I would be inclined to conclude that it is not defamatory in itself to describe an arrest as a “charge“—to say that a person who has been arrested has been charged, rather than to say that he has been arrested.
The news article here in question, however, said more. The article said that Rouch had been “arrested and charged,” and that “[t]he charge against Rouch was authorized Friday by the Calhoun County Prosecutor‘s Office.”
Arrests are often made by police officers without prior authorization from the prosecutor. The import therefore of a news article describing an arrest merely as a “charge” is significantly different than the import of an article stating that a person has been “arrested and charged” and that the “charge” “was authorized” by the prosecutor. In stating that Rouch had been arrested and charged, and that the charge was authorized by the prosecutor, the news article implied that the governmental official responsible for the administration of justice had concluded that Rouch should be arrested and charged. This suggests more than an ordinary arrest by a police officer.
The majority dwells at length on the meaning of “charge.” The sentence stating that the charge “was authorized” by the prosecutor significantly changed the import and sting of the article. As stated by the Chief Justice, the article read as a whole conveyed “the impression that there was
Rouch was arrested and detained at 5:25 A.M. by police officers without prior authorization by the prosecutor. After Rouch arrived at the station house, a police officer telephoned an assistant prosecutor who authorized the officer to further detain Rouch.3 The prosecutor had not, and did not later authorize the filing of a “charge.” That afternoon, Rouch was taken before a magistrate and released from custody.
A reasonable factfinder could conclude that the statements in the news article, that Rouch had been “arrested and charged” with first-degree criminal sexual conduct and that the “charge against Rouch was authorized” by the prosecutor, implied4 falsely that a prosecutor had authorized the police to arrest Rouch on charges of CSC-1.
II
The concurring opinion overlooks the distinction between stating a cause of action and providing a “statement of the facts, without repetition, on which the pleader relies in stating the cause of action.”5
A motion of the Enquirer and News of Battle Creek seeking summary disposition on the ground that Rouch had “failed to state a claim on which
A claim that a pleader has failed adequately to state facts may be raised at the trial level by a motion to correct or strike pleadings pursuant to
The plaintiff‘s answers to interrogatories fully supported the cause of action stated in the complaint.8
A claim that the facts have not been adequately stated cannot properly be raised after the trial has commenced, let alone for the first time in the Supreme Court and without even an assignment of error. Ordinarily, the allegations in the complaint are fleshed out during the discovery process, at status conferences, and in mediation statements.
III
The Enquirer and News moved for a remittitur of the $1,000,000 verdict, which was denied. The denial was assigned as error in the Court of Appeals. The Court of Appeals, on consideration of this Court‘s decision in Palenkas v Beaumont Hosp, 432 Mich 527; 443 NW2d 354 (1989), concluded that the judge did not err in denying a remittitur. The Enquirer and News did not challenge that conclusion in this Court.
Notes
Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press. Nuyen v Slater, 372 Mich 654, 662, n *; 127 NW2d 369 (1964). The Court of Appeals stated that this Court had rejected the approach requiring material falsity:
This Court in its earlier Rouch opinion, however, did not even address the issue of material falsity. The language quoted by the Court of Appeals is taken out of context. In the quoted passage, this Court was discussing whether the article constituted speech of public concern, not whether the falsity must be a material one. Nevertheless, the Court of Appeals applied the test for material falsity and concluded that the plaintiff should prevail under either test:... Our dissenting colleague . . . finds that not only must the disputed statements be proven false, they must be false in a material aspect. Under this analysis, if the gist, or sting, of the article is substantially true, the falsity test is not met. The earlier Supreme Court opinion in this case specifically rejected this approach: “[W]e decline to distinguish, as did the Court of Appeals, the essence of the article from its supporting facts or details.” 427 Mich 204. [184 Mich App 31-32.]
Accordingly, this error by the Court of Appeals does not require reversal. Ante, p 284.[W]hether the article is read for its gist or simply for the information presented as fact, plaintiff has met his burden of proving falsity. [Id. at 32.]
Secondly, that statements in the article were false. In deciding whether any statements in the article were false, you must interpret the words according to their ordinary and obvious meaning. You must give the words the fair and reasonable interpretation that an average reader would give them. You need not look at words used in the article according to any technical or legal definition. Whether the statements in the article were false is for you to decide after considering the statements in the article, in the light of all of the evidence in the case.
Thirdly, the Plaintiff must prove that false statements in the article were materially false and tended to harm the Plaintiff‘s reputation. That is, that they made the article libelous. In determining whether an article is libelous, it is necessary to read the article as a whole, and fairly and reasonably construe it in determining whether the false portions make the article libelous in character. [Emphasis added.]
Furthermore, the jury was given a special verdict form in which it was asked, in part: “Were the statements materially false, tending to harm the plaintiff‘s reputation, that is, did they make the article libelous?”
Id., p 285.The police report states that the assistant prosecutor “was briefed on the complaint and the circumstances surrounding the arrest of suspect. He advised to lodge the suspect on cscist.” (Emphasis added.)The plain language and clear implication of the Enquirer article are that there was more than a simple accusation against plaintiff. The article says twice that plaintiff was charged with a sex crime, and the final paragraph says that the prosecutor‘s office authorized the charge. The prosecutor, as is commonly known and as noted by the trial judge, does not just accuse; the prosecutor authorizes formal criminal proceedings, and that is exactly what the article says happened. There can be no doubt that both the details as reported and the gist of the article say that plaintiff was formally charged with a serious crime, not that there was merely an accusation of wrongdoing. [184 Mich App 34-35. First emphasis in original, second emphasis added.]
3. That on or about December 22, 1979, said Defendant falsely and/or maliciously published an article concerning your Plaintiff in said newspaper and that the charges made therein were false and defamatory as follows: that Plaintiff was arrested and charged with the sexual assault of a 17-year old woman who was babysitting with Plaintiff‘s children at Plaintiff‘s ex-wife‘s residence; that Plaintiff was free on a $10,000 personal recognizance bond; that Plaintiff was charged with first-degree sexual conduct; that Plaintiff attacked said 17-year old woman and used a knife to cut her clothes off; that Plaintiff was identified as the person making said assault by his children.
4. That by said words, Defendant meant and was understood to mean that Plaintiff was the person who sexually assaulted and raped a 17-year old woman who was babysitting his children.
5. That said publication of said facts as they related to your Plaintiff were false.
Subsequently, plaintiff amended his complaint on December 19, 1980, alleging the same facts with the identical paragraphs.
The Court of Appeals also rejected the argument based on the definition of the word “charge” considered in isolation:The dispositive question in the present case then becomes whether a reasonable factfinder could conclude that the statements in the Diadiun column imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding. [Milkovich v Lorain Journal Co, 497 US 1, 21; 110 S Ct 2695; 111 L Ed 2d 1 (1990).]The dissent in this case says that the common usage of the word “charge” means “accuse” and that plaintiff was accused of the assault and so the article was not false. There are problems with this line of reasoning . . . . [W]e do not agree that the commonly understood meaning of the word “charge” is merely to accuse. Webster‘s New World Dictionary of the American Language, Second College Edition (1984), includes “accuse” in its definition of “charge,” but it also includes the term “indictment,” a word of far more serious import and implications. Indeed, “indictment” implies a formal criminal accusation. Even if we were to accept the proposition that the common usage of the term “charge” relates only to an accusation, the article, as written, and particularly the last paragraph, certainly uses the term in a much more specific and legal sense. [Id. at 33-34.]
How is it different, Mr. Jereck, from the ordinary negligence case in which the interrogatory may say, specify what acts on
Malice in this sense—in the State of Michigan, means malice in the sense of the New York Times v Sullivan [376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964)]. That test has been reiterated in case after case in our courts; that where a publication is made by a news media of a newsworthy story, the burden is upon the plaintiff to establish that the publication was made with malice, that is, with knowledge of falsity or reckless disregard of falsity. It is our position, Your Honor, that none of the answers to the interrogatories that are on file in any way establish that at the time that the news story was published, that anyone at the newspaper knew that the matter—material was false or had reckless disregard of the falsity.
The actual motion for summary disposition filed by the Enquirer and News reads as follows:
Now Comes Defendant Enquirer & News of Battle Creek, Michigan, a Delaware corporation, through its attorneys, Sullivan, Hamilton, Ryan & Schulz and moves the Court that an Order be entered granting a summary judgment of no cause for action in favor of Defendant and against Plaintiff in this case. This Motion is the renewal of a Motion previously filed in this action and the statements contained in the original Motion are herein incorporated by reference as though the same were set forth word for word.
That the hearing on the Motion for Summary Judgment originally filed was held in conjunction with a hearing on a Motion to compel Plaintiff to answer certain interrogatories dealing with Plaintiff‘s assertion of malice on the part of Defendant.
That the Court denied the Motion for Summary Judgment and at the same time entered an order requiring Plaintiff to answer Defendant‘s interrogatories.
That Plaintiff has filed answers to interrogatories and the same are part of the files and records of this case.
That said answers to interrogatories do not contain any factual statements or allegations which, if proved, would establish that Defendant published the article with knowledge that it was false or with reckless disregard of whether it was false or not and, therefore, do not raise any issues of fact on the question of malice.
That the article in question is a substantially true report of a matter of general public interest.
That the published information was obtained from police officials, upon whom Defendant had the right to rely.
That the publication is entitled to qualified privilege under the laws of this state and, therefore, in the absence of proof of malice, cannot be the basis for a judgment in an action for libel.
Now, many of the things set forth which you read, Mr. Jereck, relate to events after the publication which might very well go to damages and mitigating damages, but the fact as presented to the court at this time is that the reporter contacted the police, was given information, some of which, admittedly, was true; but the important point was false, and that is that there had been an authorization for a warrant charging the defendant with a specific criminal offense of some significance. I don‘t find anything that suggests there was an actual knowledge of the falsity of the statement or anything to suggest there was reckless disregard of the truthfulness or falsity of the statements. Consequently, I am satisfied—and I am relying on particularly on Schultz v Newsweek Incorporated [668 F2d 911 (CA 6, 1982)], which is the most recent decision which has been called to my attention, at least, in this evolving state of law. I am satisfied that (1) there is a qualified privilege, (2) that no suggestion has been made on the part of plaintiff that he can substantiate malice; and, therefore, that the defendant is entitled to have the matter dismissed by way of summary judgment.
The answer to interrogatories reads as follows:Interrogatories Directed to Plaintiff
You are hereby notified that within fifteen (15) days from the time of service upon you, you shall answer separately, fully, in writing and under oath, each and every of the following interrogatories in accordance with the provisions of General Court Rule No. 309, and various subsections thereof.
These interrogatories shall be deemed continuing and supplemental answers thereto shall be required immediately upon receipt thereof, if the Plaintiff directly or indirectly obtains further or different information, from the time the answers are served to the time of trial.
1. Set forth separately each statement of fact in the article which Plaintiff alleges was false, separately quoting each alleged false statement of fact.
2. With respect to each statement of fact set forth in response to Interrogatory No. 1, describe the exact nature and extent of the alleged falsity.
3. Specify whether Plaintiff intends to rely upon a claim of common law malice, as implied by law in favor of Plaintiffs in libel actions, or upon an affirmative claim of actual malice on the part of Defendant in publication of the alleged defamatory statements.
4. If affirmative evidence of actual malice (as opposed to the common malice implied by law in favor of plaintiffs in libel actions) will be introduced at trial of this action, set forth separately and describe fully each item of evidence of fact upon which plaintiff will rely to establish actual malice on the part of Defendant Enquirer & News of Battle Creek.
5. If Plaintiff contends that the false statements of fact in the article were published with reckless disregard on the part of Defendant Enquirer & News of Battle Creek, set forth each item of evidence upon which Plaintiff will rely to establish such reckless disregard.
Plaintiff‘s answers to defendant‘s supplemental interrogatories read as follows:Answer to Interrogatories
Now comes the above-named Plaintiff who being first duly sworn deposes and says in answer to Defendant‘s Interrogatories as follows:
- a. Plaintiff was taken into custody with regard to an alleged offense, but was never formally charged with any offense.
- b. Plaintiff was never charged with the sexual assault of a 17-year-old woman.
- c. 17-year-old woman was not babysitting Plaintiff‘s children.
- d. Plaintiff was never formally charged with first-degree sexual conduct.
- e. Plaintiff never entered the house at 4:00 A.M. Friday and attacked a young woman.
- f. Plaintiff never used a knife to cut victim‘s clothes off.
- g. Plaintiff was not identified by any of his children as being the alleged assailant.
- h. No formal charges were authorized by the Calhoun County Prosecuting Attorney‘s Office.
- 2. All of the items set forth in Paragraph 1 are false.
- 3. My attorney advises me that we intend to rely on both the claim of common law malice and an affirmative claim of actual malice.
- 4. My attorney advises me that he has not completed discovery and, therefore is not able to answer this question at this time.
- 5. My attorney has not completed his investigation and, therefore, I cannot answer this question at this time.
Plaintiff‘s Answers to Defendant‘s Supplemental Interrogatories
Now comes the above-named plaintiff, David J. Rouch, who being first duly sworn, deposes and says as follows:
1. In answering these Interrogatories, based on what I have been told by my attorney, that actual malice (knowledge of falsity of statements made or reckless disregard of their truth or falsity) and common law malice or malice in law (false and defamatory statements made without sufficient cause or excuse) are more often tha[n] not supported by the same factual basis except in unusual instances. He further advised that in ordinary cases, malice can be implied from the defamatory nature of the statements and the fact that they are false. Malice can be proved by both intrinsic evidence and extrinsic evidence. Therefore, I am unable to necessarily distinguish whether the following facts will suport [sic], as you say, “actual malice” or “common law malice,” but are those facts as I best know them at this time which I will rely on in support of my Complaint:
- a. That the article was false;
- b. The style and tone of the original article and the alleged retraction;
- c. That normally the names of criminal defendants are not
published by the Defendant newspaper until the criminal defendant has been formally charged or arraigned in Court; - d. That the Defendant failed to publish the fact that no formal charges had been brought against the Plaintiff and that he had been released from custody until approximately one year later when Plaintiff made a demand for retraction upon Defendant;
- e. That the Defendant did not publish the fact that another individual was arrested for the same charges subsequent to Plaintiff‘s release, at the time of his arrest;
- f. That Plaintiff is not a public or quasi-public person;
- g. That the publication in question was not a qualified or absolute privilege of the Defendant;
- h. That prior to publishing the article in question, Defendant made no investigation whatsoever to determine whether or not the facts as published were true;
- i. That Defendant only made a telephonic inquiry of police departments to acquire the information published;
- j. That Defendant made no effort to determine the truthfulness of the charge or facts contained in the publication;
- k. That Defendant made no effort to contact Plaintiff concerning the facts as published;
- l. That no immediate necessity existed which would have justified the libelous publication of the article in question without making reasonable efforts to confirm the truthfulness of the facts set forth in the publication;
- m. That Defendant has no standards, instructions, or guidelines to protect private citizens such as the Plaintiff from libelous publications;
- n. That despite a demand from Plaintiff, Defendant failed to publish a retraction;
- o. That Defendant has not at any time, by conduct or otherwise, demonstrated the slightest interest or concern of Plaintiff‘s rights prior to or subsequent to the publication in question.
2. See #1 above.
3. See #1 above.
4. See #1 above.
5. See #1 above.
A peace officer who has arrested a person for an offense without a warrant shall without unnecessary delay take the person arrested before a magistrate of the judicial district in which the offense is charged to have been committed, and shall present to the magistrate a complaint stating the charge against the person arrested. [Emphasis added.]