Jerry Reighard V Espn Inc

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

JERRY REIGHARD, FOR PUBLICATION

May 12, 2022

Plaintiff-Appellant,

v No. 355053

Isabella Circuit Court

ESPN, INC., and DANIEL MURPHY, LC No. 2019-015498-CZ

Defendants-Appellees.

Before: BOONSTRA, P.J., and M. J. KELLY and SWARTZLE, JJ.

BOONSTRA, P.J. (concurring).

I fully concur in the majority opinion. I write separately simply to expand upon its

rationale, to provide some historical context, and to suggest that the United States Supreme Court

look anew at the morass that the law of defamation has become. Much has happened since the

Supreme Court began issuing opinions in this area of law nearly sixty years ago. The “actual

malice” standard that the Court created began small, but has been ever-expanding in its reach and

now, in practice, seems to have become nearly insurmountable. At the same time, the news media

has been transformed. It exists today in an internet world that no one could have imagined at that

time. With a mere social media keystroke, virtually anyone and everyone can publish at will.

There is an increasing rush to publish in order to be the first to print. Too often, the casualty is

accuracy in reporting, as shortcuts are taken in the investigation and verification process that would

serve to guarantee accuracy. We are thus left in today’s world with an emboldened media

(although that word is becoming increasingly difficult to define) that, as a result of the protections

the Supreme Court afforded to it—perhaps for good reason at the time—increasingly perceives a

court-sanctioned license to publish whatever it wishes, without fear of consequence. At the same

time, much of the fourth estate has lost sight of its journalistic mission, and instead engages in

issue and political advocacy under the guise of “reporting.” And the “Big Tech” companies that

operate popular social media platforms purport to be able to define the real “truth,” and therefore

censor those who do not subscribe to their favored narratives.

Freedom of speech is fundamental. Freedom of the press is equally so. Those fundamental

First Amendment rights remain as important today as they were when the Bill of Rights was

ratified in 1791. But we are all losers when the law becomes so distorted as to eliminate all manner

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of accountability for those who would recklessly damage personal reputations ostensibly in the

name of freedom of speech or freedom the press, no matter the reason or motive.

I. DEFAMATION AND THE FIRST AMENDMENT

As the majority opinion adeptly describes, defamatory speech was originally considered to

be unprotected by the First Amendment. That is, defamatory statements remained actionable under

state common law irrespective of the First Amendment. That began to change when the United

States Supreme Court issued its decision in New York Times Co v Sullivan, 376 US 254; 84 S Ct

710; 11 L Ed 2d 686 (1964). Since then, the reach of that decision, and of the “actual malice” test

that the Court adopted, has been ever-expanding; indeed, what began as a narrow exception

appears now to have swallowed the rule.

A. HISTORICAL BACKDROP

To properly understand the monumental scope of that transformation, I commend to the

reader additional portions of Justice WHITE’s historical summation in Gertz v Robert Welch, Inc,

418 US 323; 94 S Ct 2997; 41 L Ed 2d 789 (1974) (WHITE, J., dissenting). While lengthy, it merits

a careful read, in order to put the questions before us in a proper context. Justice WHITE stated, in

part:

The Court does not contend, and it could hardly do so, that those who wrote the

First Amendment intended to prohibit the Federal Government, within its sphere of

influence in the Territories and the District of Columbia, from providing the private

citizen a peaceful remedy for damaging falsehood. At the time of the adoption of

the First Amendment, many of the consequences of libel law already described had

developed, particularly the rule that libels and some slanders were so inherently

injurious that they were actionable without special proof of damage to reputation.

As the Court pointed out in Roth v. United States, 354 U.S. 476, 482, 77 S.Ct. 1304,

1307, 1 L.Ed.2d 1498 (1957), 10 of the 14 States that had ratified the Constitution

by 1792 had themselves provided constitutional guarantees for free expression, and

13 of the 14 nevertheless provided for the prosecution of libels. Prior to the

Revolution, the American Colonies had adopted the common law of libel. Contrary

to some popular notions, freedom of the press was sharply curtailed in colonial

America. Seditious libel was punished as a contempt by the colonial legislatures

and as a criminal offense in the colonial courts.

Scant, if any, evidence exists that the First Amendment was intended to abolish the

common law of libel, at least to the extent of depriving ordinary citizens of

meaningful redress against their defamers. On the contrary, “(i)t is conceded on all

sides that the common-law rules that subjected the libeler to responsibility for the

private injury, or the public scandal or disorder occasioned by his conduct, are not

abolished by the protection extended to the press in our constitutions.” 2 T. Cooley,

Constitutional Limitations 883 (8th ed. 1927).

Moreover, consistent with the Blackstone formula, these common-law actions did

not abridge freedom of the press. See generally L. Levy, Legacy of Suppression:

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Freedom of Speech and Press in Early American History 247-248 (1960); Merin,

Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, 376 (1969); Hallen,

Fair Comment, 8 Tex.L.Rev. 41, 56 (1929). Alexander Meiklejohn, who accorded

generous reach to the First Amendment, nevertheless acknowledged:

No one can doubt that, in any well-governed society, the legislature has both

the right and the duty to prohibit certain forms of speech. Libelous

assertions may be, and must be, forbidden and punished. So too must

slander. . . . All these necessities that speech be limited are recognized and

provided for under the Constitution. They were not unknown to the writers

of the First Amendment. That amendment, then, we may take it for granted,

does not forbid the abridging of speech. But, at the same time, it does forbid

the abridging of the freedom of speech. It is to the solving of that paradox,

that apparent self-contradiction, that we are summoned if, as free men, we

wish to know what the right of freedom of speech is.

Political Freedom, The Constitutional Powers of the People 21 (1965). See also

Leflar, The Freeness of Free Speech, 15 Van.L.Rev. 1073, 1080-1081 (1962).

Professor Zechariah Chafee, a noted First Amendment scholar, has persuasively

argued that conditions in 1791 “do not arbitrarily fix the division between lawful

and unlawful speech for all time.” Free Speech in the United States 14 (1954). At

the same time, however, he notes that while the Framers may have intended to

abolish seditious libels and to prevent any prosecutions by the Federal Government

for criticism of the Government, “the free speech clauses do not wipe out the

common law as to obscenity, profanity, and defamation of individuals.”

The debates in Congress and the States over the Bill of Rights are unclear and

inconclusive on any articulated intention of the Framers as to the free press

guarantee. We know that Benjamin Franklin, John Adams, and William Cushing

favored limiting freedom of the press to truthful statements, while others such as

James Wilson suggested a restatement of the Blackstone standard. Jefferson

endorsed Madison’s formula that “Congress shall make no law . . . abridging the

freedom of speech or the press” only after he suggested:

The people shall not be deprived of their right to speak, to write, or

otherwise to publish anything but false facts affecting injuriously the life,

liberty or reputation of others . . .. F. Mott, Jefferson and the Press 14

(1943).

Doubt has been expressed that the Members of Congress envisioned the First

Amendment as reaching even this far. Merin, Libel and the Supreme Court, 11

Wm. & Mary L.Rev. 371, ss 379-380 (1969).

This Court in bygone years has repeatedly dealt with libel and slander actions from

the District of Columbia and from the Territories. Although in these cases First

Amendment considerations were not expressly discussed, the opinions of the Court

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unmistakably revealed that the classic law of libel was firmly in place in those areas

where federal law controlled. See e.g., Washington Post Co. v. Chaloner, 250 U.S.

290, 39 S.Ct. 448, 63 L.Ed. 987 (1919); Baker v. Warner, 231 U.S. 588, 34 S.Ct.

175, 58 L.Ed. 384 (1913); Nalle v. Oyster, 230 U.S. 165, 33 S.Ct. 1043, 57 L.Ed.

1439 (1913); Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128

(1904); Pollard v. Lyon, 91 U.S. 225, 23 L.Ed. 308 (1876); White v. Nicholls, 3

How. 266, 11 L.Ed. 591 (1845).

The Court’s consistent view prior to New York Times Co. v. Sullivan, 376 U.S. 254,

84 S.Ct. 710, 11 L.Ed.2d 686 (1964), was that defamatory utterances were wholly

unprotected by the First Amendment. In Patterson v. Colorado, ex rel. Attorney

General, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907), for example,

the Court said that although freedom of speech and press is protected from

abridgment by the Constitution, these provisions “do not prevent the subsequent

punishment of such as may be deemed contrary to the public welfare.” This

statement was repeated in Near v. Minnesota, ex rel. Olson, 283 U.S. 697, 714, 51

S.Ct. 625, 630, 75 L.Ed. 1357 (1931), the Court adding:

But it is recognized that punishment for the abuse of the liberty accorded to

the press is essential to the protection of the public, and that the commonlaw

rules that subject the libeler to responsibility for the public offense, as well

as for the private injury, are not abolished by the protection extended in our

Constitutions. Id., at 715, 51 S.Ct. at 630.

Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 769, 86 L.Ed.

1031 (1942) (footnotes omitted), reflected the same view:

There are certain well-defined and narrowly limited classes of speech, the

prevention and punishment of which have never been thought to raise any

Constitutional problem. These include the lewd and obscene, the profane,

the libelous, and the insulting or ‘fighting’ words—those which by their

very utterance inflict injury or tend to incite an immediate breach of the

peace. It has been well observed that such utterances are no essential part

of any exposition of ideas, and are of such slight social value as a step to

truth that any benefit that may be derived from them is clearly outweighed

by the social interest in order and morality.

Beauharnais v. Illinois, 343 U.S. 250, 254-257, 72 S.Ct. 725, 729-731, 96 L.Ed.

919 (1952) (footnotes omitted), repeated the Chaplinsky statement, noting also that

nowhere at the time of the adoption of the Constitution “was there any suggestion

that the crime of libel be abolished.” And in Roth v. United States, 354 U.S., at

483, 77 S.Ct., at 1308 (footnote omitted), the Court further examined the meaning

of the First Amendment:

In light of this history, it is apparent that the unconditional phrasing of the

First Amendment was not intended to protect every utterance. This

phrasing did not prevent this Court from concluding that libelous utterances

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are not within the area of constitutionally protected speech. Beauharnais v.

Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 735, 96 L.Ed. 919. At the time of

the adoption of the First Amendment, obscenity law was not as fully

developed as libel law, but there is sufficiently contemporaneous evidence

to show that obscenity, too, was outside the protection intended for speech

and press. [Gertz, 418 US at 381-386 (WHITE, J., dissenting) (footnotes

omitted).]

B. NEW YORK TIMES AND ITS PROGENY

With that historical backdrop in mind, where are we today? The United States Supreme

Court issued its seminal decision in New York Times in 1964. While seemingly narrow in scope

(insofar as it applied only to defamation claims brought by public officials relating to criticism of

their official conduct), it opened the door to the federalization of defamation law and to the all-

too-typical result: a creeping progression by which the exception becomes the all-encompassing

rule.

New York Times was premised on a desire to guarantee citizens, in the course of debating

public issues, a right to criticize their elected officials on matters of official conduct. Id., 376 US

at 270-273. The Court concluded that a “rule compelling the critic of official conduct to guarantee

the truth of all his factual assertions . . . dampens the vigor and limits the variety of public debate,”

and is therefore “inconsistent with the First and Fourteenth Amendments.” Id. at 279. The Court

thus adopted—in those limited circumstances—an “actual malice” test:

The constitutional guarantees require, we think, a federal rule that prohibits a public

official from recovering damages for a defamatory falsehood relating to his official

conduct unless he proves that the statement was made with ‘actual malice’—that

is, with knowledge that it was false or with reckless disregard of whether it was

false or not. [Id. at 279-280.]

Within three years, the Court had extended that test to apply not only to public officials on matters

of official conduct, but to “public figures.” See Curtis Publishing Co v Butts (and its companion

case, Associated Press v Walker), 388 US 130; 162; 87 S Ct 1975; 18 L Ed 2d 1094 (1967). More

accurately, Justice HARLAN’s lead opinion in Curtis Publishing (in which only a plurality—four—

of the Justices joined), appeared to announce an entirely new test applicable to an undefined set of

“public figures”:

We consider and would hold that a “public figure” who is not a public official may

also recover damages for a defamatory falsehood whose substance makes

substantial danger to reputation apparent, on a showing of highly unreasonable

conduct constituting an extreme departure from the standard of investigation and

reporting ordinarily adhered to by responsible publishers. [Id. at 155 (emphasis

added).]

The lead opinion in Curtis Publishing referred to “ ‘public figures’ under ordinary tort

rules,” Curtis Publishing, 388 US at 154, and described that one of the named plaintiffs (the

athletic director and former head football coach of a public university) “may have attained that

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status by position alone,” and that the other named plaintiff (a former general who had “taken

command of the violent crowd and had personally led a charge against federal marshals sent there

to effectuate the court’s decree and to assist in preserving order”) may have done so “by his

purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important

public controversy.” Id. at 140, 155.

A majority of the Court (i.e., the other five Justices) subscribed to the pertinent aspects of

Chief Justice WARREN’s concurring-in-the-result opinion; instead of adopting the new test

proposed by the lead opinion, the Court thereby effectively extended the New York Times “actual

malice” standard to “public figures”:

Mr. Justice HARLAN’s opinion departs from the standard of New York Times and

substitutes in cases involving ‘public figures’ a standard that is based on ‘highly

unreasonable conduct’ and is phrased in terms of ‘extreme departure from the

standards of investigation and reporting ordinarily adhered to by responsible

publishers’ (ante, p. 1991). I cannot believe that a standard which is based on such

an unusual and uncertain formulation could either guide a jury of laymen or afford

the protection for speech and debate that is fundamental to our society and

guaranteed by the First Amendment.

To me, differentiation between “public figures” and “public officials” and adoption

of separate standards of proof for each have no basis in law, logic, or First

Amendment policy. . . . [I]t is plain that although they are not subject to the

restraints of the political process, “public figures,” like “public officials,” often play

an influential role in ordering society. And surely as a class these “public figures”

have as ready access as “public officials” to mass media of communication, both to

influence policy and to counter criticism of their views and activities. Our citizenry

has a legitimate and substantial interest in the conduct of such persons, and freedom

of the press to engage in uninhibited debate about their involvement in public issues

and events is as crucial as it is in the case of “public officials.” The fact that they

are not amenable to the restraints of the political process only underscores the

legitimate and substantial nature of the interest, since it means that public opinion

may be the only instrument by which society can attempt to influence their conduct.

I therefore adhere to the New York Times standard in the case of “public figures” as

well as “public officials.” It is a manageable standard, readily stated and

understood, which also balances to a proper degree the legitimate interests

traditionally protected by the law of defamation. . . . [T]he New York Times

standard is an important safeguard for the rights of the press and public to inform

and be informed on matters of legitimate interest. Evenly applied to cases involving

“public men”—whether they be “public officials” or “public figures”—it will

afford the necessary insulation for the fundamental interests which the First

Amendment was designed to protect. [Curtis Publishing, 388 US at 162-165

(WARREN, C.J., concurring in the result).]

The expansion of the New York Times standard did not end there. For example, in

Rosenbloom v Metromedia, Inc, 403 US 29; 92 S Ct 1811; 29 L Ed 2d 296 (1971), abrogated by

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Gertz, 418 US at 345-347, a four-member plurality of a once-again fractured Court 1 extended the

New York Times standard to private persons when the allegedly defamatory falsehoods concerned

matters of general or public interest. Id. at 52 (“We thus hold that a libel action . . . by a private

individual . . . for a defamatory falsehood in a newscast relating to his involvement in an event of

public or general concern may be sustained only upon clear and convincing proof that the

defamatory falsehood was published with knowledge that it was false or with reckless disregard

of whether it was false of not.”) (footnote omitted). 2

As noted, the Court in Gertz later rejected the Rosenbloom plurality’s approach with

regarding to liability for defamation of private individuals; but, in doing so, it did preclude liability

absent a showing of “fault.” See Gertz, 418 US at 347 (“We hold that, so long as they do not

impose liability without fault, the States may define for themselves the appropriate standard of

liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.”).

Further, it limited the damage recovery available to private plaintiffs absent a showing under the

“actual malice” standard. Gertz, 418 US at 349 (“we hold that the States may not permit recovery

of presumed or punitive damages, at least when liability is not based on a showing of knowledge

of falsity or reckless disregard for the truth”).

The Court in Gertz expanded upon the Curtis Publishing description of public figures,

stating:

Respondent’s characterization of petitioner as a public figure raises a different

question. That designation may rest on either of two alternative bases. In some

instances an individual may achieve such pervasive fame or notoriety that he

becomes a public figure for all purposes and in all contexts. More commonly, an

individual voluntarily injects himself or is drawn into a particular public

controversy and thereby becomes a public figure for a limited range of issues. In

either case such persons assume special prominence in the resolution of public

questions. [Id. at 351.]

The latter category of “public figures” has come to be known as that of a “limited-purpose public

figure.” See, e.g., Wolston v Reader’s Digest Ass’n, Inc, 443 US 157, 165-166; 99 S Ct 2701; 61

L Ed 2d 450 (1979).

Dissenting in Gertz, Justice WHITE (who had joined the Court’s opinion in New York

Times) decried the Court’s departure from the historical perspective of the First Amendment in

relation to defamation law:

The Court could not accept the generality of this historic view in New York Times

Co. v. Sullivan, supra. There the Court held that the First Amendment was intended

1

Justice DOUGLAS did not participate. The eight participating Justices issued four separate

opinions, ranging from declining a further intrusion of New York Times into state defamation law

to affording the news media absolute immunity from liability for defamation.

2

This standard of the plurality opinion was later adopted by many states and lower courts. See

Gertz, 418 US at 379 and n 10 (WHITE, J., dissenting).

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to forbid actions for seditious libel and that defamation actions by public officials

were therefore not subject to the traditional law of libel and slander. If these

officials (and, later, public figures occupying semiofficial or influential, although

private, positions) were to recover, they were required to prove not only that the

publication was false but also that it was knowingly false or published with reckless

disregard for its truth or falsity. This view that the First Amendment was written

to forbid seditious libel reflected one side of the dispute that reged [sic] at the turn

of the nineteenth century and also mirrored the views of some later scholars.

The central meaning of New York Times, and for me the First Amendment as it

relates to libel laws, is that seditious libel—criticism of government and public

officials—falls beyond the police power of the State. 376 U.S., at 273-276, 84

S.Ct., at 722-724. In a democratic society such as ours, the citizen has the privilege

of criticizing his government and its officials. But neither New York Times nor its

progeny suggests that the First Amendment intended in all circumstances to deprive

the private citizen of his historic recourse to redress published falsehoods damaging

to reputation or that, contrary to history and precedent, the Amendment should now

be so interpreted. Simply put, the First Amendment did not confer a “license to

defame the citizen.” W. Douglas, The Right of the People 36 (1958).

I do not labor the foregoing matters to contend that the Court is foreclosed from

reconsidering prior interpretations of the First Amendment. But the Court

apparently finds a clean slate where in fact we have instructive historical experience

dating from long before the first settlors, with their notions of democratic

government and human freedom, journeyed to this land. Given this rich

background of history and precedent and because we deal with fundamentals when

we construe the First Amendment, we should proceed with care and be presented

with more compelling reasons before we jettison the settled law of the States to an

even more radical extent. [Gertz, 418 US at 386-388 (WHITE, J., dissenting).]

III. APPLICATION

As outlined in the majority opinion, we have, of course, decided this case under existing

law—such as it is. And I agree entirely with the majority’s analysis of plaintiff’s defamation-by-

implication claim, with the clarification that the majority provides, i.e., that in applying the actual

malice test in the context of a defamation-by-implication claim, either knowledge or recklessness

satisfies the requirement that the defendant have intended the implication. I further note that I

have difficulty discerning how plaintiff “voluntarily inject[ed] himself or [was] drawn into a

particular public controversy,” Gertz, 418 US at 351, so as to become a limited-purpose public

figure. Moreover, I have concerns that, by virtue of the progression of the law that I have

described, essentially everyone is now at least a limited-purpose public figure, such that the New

York Times exception has indeed swallowed the rule. 3 That said, inasmuch as plaintiff does not

contest his limited-purpose-public-figure status, I will not address the issue further.

3

As one example of just how far this progression has apparently advanced, the plaintiff in Ireland

v Edwards, 230 Mich App 607; 584 NW2d 632 (1998), was found to be—and indeed stipulated

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III. WHERE DO WE GO FROM HERE?

As noted, and while we have resolved this case on the basis of existing law, I have serious

concerns about the state of the law in this area, both with regard to its progressive deviation from

the historical underpinnings of both the common law of defamation and the constitutional

jurisprudence of the First Amendment, and with regard to its continuing applicability in the modern

world. I therefore join Justice THOMAS and Justice GORSUCH in calling for the United States

Supreme Court to take a fresh look at the jurisprudence in this area. As Justice THOMAS recently

stated in Berisha v Lawson, __ US ___, ___; 141 S Ct 2424, 2424-2425; 210 L Ed 2d 991 (2021);

(THOMAS, J., dissenting from the denial of certiorari):

[Petitioner] now asks this Court to reconsider the ‘actual malice’ requirement as it

applies to public figures. As I explained recently, we should. . . .

This Court’s pronouncement that the First Amendment requires public figures to

establish actual malice bears “no relation to the text, history, or structure of the

Constitution.” . . . In fact, the opposite rule historically prevailed: “[T]he common

law deemed libels against public figures to be . . . more serious and injurious than

ordinary libels.” McKee [v Cosby], 586 U.S. [___] at ___; 139 S. Ct [675]at 679[;

203 L Ed 2d 247 (2019)] (opinion of THOMAS, J.).

* * *

The lack of historical support for this Court’s actual-malice requirement is reason

enough to take a second look at the Court’s doctrine. Our reconsideration is all the

more needed because of the doctrine’s real-world effects. Public figure or private,

lies impose real harm. . . .

The proliferation of falsehoods is, and always has been, a serious matter. Instead

of continuing to insulate those who perpetrate lies from traditional remedies like

libel suits, we should give them only the protection the First Amendment requires.

And as Justice GORSUCH, also dissenting from the denial of certiorari, poignantly added:

At the founding, the freedom of the press generally meant the government could

not impose prior restraints preventing individuals from publishing what they

wished. But none of that meant publishers could defame people, ruining careers or

lives, without consequence. Rather, those exercising the freedom of the press had

a responsibility to try to get the facts right—or, like anyone else, answer in tort for

the injuries they caused.

This principle extended far back in the common law and far forward into our

Nation’s history. As Blackstone put it, “[e]very freeman has an undoubted right to

lay what sentiments he pleases before the public,” but if he publishes falsehoods

that she was—a limited-purpose public figure. She was the mother of a child who was the subject

of a custody action. Id. at 615.

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“he must take the consequence of his own temerity.” 4 W. Blackstone,

Commentaries on the Laws of England 151–152 (1769). Or as Justice Story later

explained, “the liberty of the press do[es] not authorize malicious and injurious

defamation.” Dexter v. Spear, 7 F.Cas. 624 (No. 3,867) (CCDRI 1825).

This was “[t]he accepted view” in this Nation for more than two centuries. . . . As

a rule, that meant all persons could recover damages for injuries caused by false

publications about them. . . .

This changed only in 1964. . . . Since 1964, however, our Nation’s media landscape

has shifted in ways few could have foreseen. . . . The effect of these technological

changes on our Nation’s media may be hard to overstate. Large numbers of

newspapers and periodicals have failed. . . . Network news has lost most of its

viewers. . . . With their fall has come the rise of 24-hour cable news and online

media platforms that “monetize anything that garners clicks.” . . . No doubt, this

new media world has many virtues—not least the access it affords those who seek

information about and the opportunity to debate public affairs. At the same time,

some reports suggest that our new media environment also facilitates the spread of

disinformation. . . . A study of one social network reportedly found that “falsehood

and rumor dominated truth by every metric, reaching more people, penetrating

deeper . . . and doing so more quickly than accurate statements.” . . . All of which

means that “the distribution of disinformation”—which “costs almost nothing to

generate”—has become a “profitable” business while “the economic model that

supported reporters, fact-checking, and editorial oversight” has “deeply

erod[ed].” . . .

It’s hard not to wonder what these changes mean for the law. In 1964, the Court

may have seen the actual malice standard as necessary “to ensure that dissenting or

critical voices are not crowded out of public debate. . . . But if that justification had

force in a world with comparatively few platforms for speech, it’s less obvious what

force it has in a world in which everyone carries a soapbox in their hands. Surely,

too, the Court in 1964 may have thought the actual malice standard justified in part

because other safeguards existed to deter the dissemination of defamatory

falsehoods and misinformation. . . .. In that era, many major media outlets

employed fact-checkers and editors, . . . and one could argue that most strived to

report true stories because, as “the public gain[ed] greater confidence that what they

read [wa]s true,” they would be willing to “pay more for the information so

provided.” . . . Less clear is what sway these justifications hold in a new era where

the old economic model that supported reporters, fact-checking, and editorial

oversight is disappearing.

These questions lead to other even more fundamental ones. When the Court

originally adopted the actual malice standard, it took the view that tolerating the

publication of some false information was a necessary and acceptable cost to pay

to ensure truthful statements vital to democratic self-government were not

inadvertently suppressed. . . . But over time the actual malice standard has evolved

from a high bar to recovery into an effective immunity from liability. . . .

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The bottom line? It seems that publishing without investigation, fact-checking, or

editing has become the optimal legal strategy. . . . Under the actual malice regime

as it has evolved, “ignorance is bliss.” . . . Combine this legal incentive with the

business incentives fostered by our new media world and the deck seems stacked

against those with traditional (and expensive) journalistic standards—and in favor

of those who can disseminate the most sensational information as efficiently as

possible without any particular concern for truth. . . . What started in 1964 with a

decision to tolerate the occasional falsehood to ensure robust reporting by a

comparative handful of print and broadcast outlets has evolved into an ironclad

subsidy for the publication of falsehoods by means and on a scale previously

unimaginable. . . . If ensuring an informed democratic debate is the goal, how well

do we serve that interest with rules that no longer merely tolerate but encourage

falsehoods in quantities no one could have envisioned almost 60 years ago?

Other developments raise still more questions. In 1964, the Court may have thought

the actual malice standard would apply only to a small number of prominent

governmental officials whose names were always in the news and whose actions

involved the administration of public affairs. Here again, the Court may have

thought that allowing some falsehoods about these persons and topics was an

acceptable price to pay to ensure truthful statements vital to democratic self-

government were not inadvertently suppressed. Perhaps the Court weighed the

costs and benefits similarly when it extended the actual malice standard to the

“pervasively famous” and “limited purpose public figures.”

But today’s world casts a new light on these judgments as well. Now, private

citizens can become “public figures” on social media overnight. Individuals can be

deemed “famous” because of their notoriety in certain channels of our now-highly

segmented media even as they remain unknown in most. . . .

Again, it’s unclear how well these modern developments serve Sullivan’s original

purposes. Not only has the doctrine evolved into a subsidy for published falsehoods

on a scale no one could have foreseen, it has come to leave far more people without

redress than anyone could have predicted. And the very categories and tests this

Court invented and instructed lower courts to use in this area—“pervasively

famous,” “limited purpose public figure”—seem increasingly malleable and even

archaic when almost anyone can attract some degree of public notoriety in some

media segment. Rules intended to ensure a robust debate over actions taken by

high public officials carrying out the public’s business increasingly seem to leave

even ordinary Americans without recourse for grievous defamation. At least as

they are applied today, it’s far from obvious whether Sullivan’s rules do more to

encourage people of goodwill to engage in democratic self-governance or

discourage them from risking even the slightest step toward public life.

. . . [G]iven the momentous changes in the Nation’s media landscape since 1964,

I cannot help but think the Court would profit from returning its attention, whether

in this case or another, to a field so vital to the “safe deposit” of our liberties.

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[Berisha, ___ US at ___; 141 S Ct at 2426-2430 (GORSUCH, J., dissenting from the

denial of certiorari).]

I agree.

IV. CONCLUSION

For these reasons stated, and for the reasons stated by the majority, I concur in affirming

in part and reversing in part the trial court’s order granting summary disposition in favor of

defendants, and in remanding for further proceedings consistent with this opinion.

/s/ Mark T. Boonstra

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