Appendix — Rouch v. Enquirer & News of Battle Creek

' NOV 23 1992

No. OFFICE OF THE CLERK

—_ el

Iu Che

Supreme Court of the United States

> October Cerm, 1992 <

DAVID J. ROUCH,

Petitioner,

Vv.

ENQUIRER AND NEWS

OF BATTLE CREEK, MICHIGAN,

Respondent.

APPENDIX

TO PETITION FOR A WRIT OF CERTIORARI

FRANK D. EAMAN

Counsel of Record

BELLANCA, BEATTIE AND DELISLE, P.C.

1200 Penobscot Building

Detroit, Michigan 48226

(313) 964-4200

Attorneys for Petitioner

Interstate Brief & Record Company, a division of North American Graphics, Inc.

1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230

TABLE OF CONTENTS OF APPENDIX

PAGE

DECISION SOUGHT TO BE REVIEWED: OPINION of the

Michigan Supreme Court, 7/15/92 ....cccccccccccssesssseeeseees A-1]

ORDER DENYING REHEARING OF 7/15/91 DECISION —

Michigan Supreme Court, 8/24/92 .....cccccccccccseeceeeeees A-54

ORDER OF JUDGMENT ON JURY VERDICT

AFTER SUPREME COURT DECISION —

Calhoun County, Michigan, Circuit Court, 9/9/92 ..... A-55

TRANSCRIPT OF HEARING

ON MOTION FOR SUMMARY JUDGMENT (Excerpt) -

Calhoun County, Michigan, Circuit Court, 6/7/82 ..... A-57

ORDER GRANTING

SUMMARY JUDGMENT TO DEFENDANT —-

Calhoun County, Michigan, Circuit Court, 6/14/82... A-59

TRANSCRIPT OF HEARING ON RECONSIDERATION

OF SUMMARY JUDGMENT (Excerpt) —-

Calhoun County, Michigan, Circuit Court, 7/19/82... A-60

ORDER DENYING RECONSIDERATION —

Calhoun County, Michigan, Circuit Court, 7/26/82 ... A-62

OPINION — Michigan Court of Appeals, 9/4/84 0.0.0.2... A-63

OPINION — Michigan Supreme Court, 12/26/86 ............ A-83

JUDGMENT ON DIRECTED VERDICT

FOR DEFENDANT (Punitive Damages) —

Calhoun County, Michigan, Circuit Court, 2/29/88 .......... A-149

JUDGMENT FOR PLAINTIFF —

Calhoun County, Michigan, Circuit Court, 2/29/88 — A-150

TRANSCRIPT OF HEARING ON DEFENDANT'S MOTION FOR

JUDGMENT N.OV. AND FOR NEW TRIAL (Excerpts) —-

_ Calhoun County, Michigan, Circuit Court, 4/18/88 A-151

ORDER DENYING MOTION

FOR JUDGMENT N.OV. AND NEW TRIAL —

Calhoun County, Michigan, Circuit Court, 4/28/88 —_A-163

PAGE

OPINION — Michigan Court of Appeals, 6/4/90 .......... A-165

VERDICT FORM ..... .ssesccncsenascanesnnniulaenineneeennennnnannnn nnn A-197

ENQUIRER AND NEWS OF BATTLE CREEK ARTICLES ..... A-198

EXCERPTS FROM TRIAL TRANSCRIPT,

COMPLAINT, AND BIREEFS | .cscscccssssscuee sae A-200

A-1

APPENDIX TO PETITION FOR CERTIORARI

DECISION SOUGHT TO BE REVIEWED:

OPINION [AFTER REMAND]

(State of Michigan — Supreme Court)

(Filed July 15, 1992)

(DAVID J. ROUCH, Plaintiff-Appellee, v ENQUIRER & NEWS

OF BATTLE CREEK, Michigan, A Delaware Corporation,

Defendant-Appellant — No. 89799)

Michael F. Cavanagh, Chief Justice;

Charles L. Levin, James H. Brickley, Patricia J. Boyle,

Dorothy Comstock Riley, Robert P. Griffin, Conrad L.

Mallett, Jr., Associate Justices.

BEFORE THE ENTIRE BENCH

BOYLE, J.

A responsible press has always been regarded

as the handmaiden of effective judicial adminis-

tration ... . Its function in this regard is docu-

mented 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 bal-

ance between protecting an individual's reputation from

false and defamatory statements and fostering ener-

getic, tumultuous public debate to ensure continued

scrutiny of police, prosecutors, and the courts through

A-2

cherished constitutional rights guaranteeing freedom of

speech and the press.' Newspapers have a longstanding

tradition of reporting on criminal justice and police con-

duct. “With respect to judicial proceedings in particular,

the function of the press serves to guarantee the fair-

ness of trials and to bring to bear the beneficial effects

of public scrutiny upon the administration of justice.”

Cox Broadcasting Corp v Cohn, 420 US 469, 492; 95 S Ct

1029; 43 L Ed 2d 328 (1975). Protecting that tradition

without trampling the rights of individual citizens is the

task facing this Court.

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 pros-

ecutor’s office, and released after an informal bond

hearing by a magistrate acting in her formal capacity

pursuant to MCR 6.104. The defendant newspaper, the

Enquirer & News of Battle Creek, published an account

of Rouch’s arrest, the charge against him, and his

release on bond. Later, when Rouch appeared for his

formal arraignment, he was told that the charges had

been dropped. Rouch predicates his suit upon inaccura-

cies in the newspaper report.

Perhaps it is not surprising that with such important

rights at stake, this controversy has required so much

appellate court time.? When this Court first considered

| Both of these values are explicitly embodied in Const 1963,

art 1, § 5:

Every person may freely speak, write, express and pub-

lish 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.

2 This case began more than a decade ago and has been consid-

ered twice by the Michigan Court of Appeals and once by this

Court. See 137 Mich App 39; 357 NW2d 794 (1984); 184 Mich App

19; 457 NW2d 74 (1990); 427 Mich 157; 398 NW2d 245 (1986).

A-3

the case, it reviewed an abbreviated record prepared

prior to a summary disposition motion to determine

“the applicability of Michigan’s statutory ‘public and

official proceedings’ statute, MCL 600.2911(3); MSA

27A.2911(3), and the viability of its common-law quali-

fied public-interest privilege.” 427 Mich 157, 160; 398

NW2d 245 (1986). With further factual development, the

matter returns to this Court for additional review. We

now consider whether the defendant published a materi-

ally false article. We need not reach the issue whether it

was negligently published,? and whether the more com-

3 Because of our resolution of the material falsity issue, we

need not resolve the question of negligence. Nevertheless, we

observe that plaintiff’s theory regarding fault apparently was that

the newspaper reporter had been poorly trained and consequently

failed to further investigate information provided to him by the

police. The existence and scope of any constitutionally based doc-

trine of neutral reportage remains as yet undefined. See Smith v

Daily Mail Publishing Co, 443 US 97, 102; 99 S Ct 2667; 61 L Ed 2d

399 (1979) (“state action to punish the publication of truthful infor-

mation seldom can satisfy constitutional standards” ); The Florida

Star v BJF, 491 US 524; 109 S Ct 2603; 105 L Ed 2d 443 (1989); But-

terworth v Smith, 494 US 624; 110 S Ct 1376; 108 L Ed 2d 572

(1990); Landmark Communications, Inc v Virginia, 435 US 829; 98 S

Ct 1535; 56 L Ed 2d 1 (1978); Oklahoma Publishing Co v District

Court, 430 US 308; 97 S Ct 1045; 51 L Ed 2d 355 (1977); Greenbelt

Cooperative Publishing Ass'n y Bresler, 398 US 6; 90 S Ct 1537; 26 L

Ed 2d 6 (1970); and Cox Broadcasting Corp v Cohn, supra. Other state

and federal courts have questioned the extent to which newspapers

should be required to verify information obtained from govern-

mental sources such as police reports absent evidence that the pub-

lisher had good reason to suspect falsity. Torres-Silva v El Mundo,

Inc, 3 Media L Rep 1508, 1512 (PR, 1977); Wilson v Capital City

Press, 315 So 2d 393 (La App, 1975); Appleby v Daily Hampshire

Gazette, 395 Mass 32; 478 NE2d 721 (1985); LaMon v Butler, 44

Wash App 654; 722 P2d 1373 (1986); Walters v Sanford Herald, Inc,

31 NC App 233; 228 SE2d 766 (1976); Ricci v Venture Magazine, Inc,

574 F Supp 1563 ( D Mass, 1983). In this case, there was no sugges-

tion that the information was inherently implausible. Nor was there

any proof or allegation that cast doubt on the accuracy of the

police report regarding Rouch’s arrest.

A-4

plete factual record brings the case within Michigan's

statutory privilege.*

We hold that the article was not materially false,> and

we therefore reverse the decision of the Court of

Appeals and remand for entry of judgment notwith-

standing the verdict in favor of the defendant.

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 pub-

lished 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

4 In Rouch I, I was unwilling to hold that the statutory privilege

had been subsumed. The factual predicate for assertion of the

statutory privilege is contained in the record. Although I would con-

clude that the privilege is applicable to an informal arraignment for

bond purposes before a magistrate, see MCL 600.8511 et seg.; MSA

27A.8511 et seqg.; MCL 765.1; MSA 28.888, MCL 600.8512a; MSA

27A.8512(1), and MCR 6.104(G), a majority of the Court being

unpersuaded that we should reach this issue, the opinion does not

address it.

. Contrary to the observation in the separate dissent, the arrest

(which Justice Levin concedes it is not defamatory to describe as a

charge) was authorized by the prosecutor. The record establishes

that the Bedford Township police called the assistant prosecutor

before they took plaintiff into custody and that the prosecutor,

after being “briefed on the complaint and the circumstances sur-

rounding the arrest of suspect advised to lodge” plaintiff on a

charge of first-degree criminal sexual conduct. Indeed, the plaintiff

acknowledges that the prosecutor authorized the incarceration. If

what Justice Levin means is that the article should have reported

that the prosecutor authorized the incarceration of the plaintiff on

the charge of Criminal Sexual Conduct I, as plaintiff contends, we

respond to that argument in section IV. If what he means is that

there was governmental involvement in the lodging of the charge of

CSC I, that is true, and plaintiff does not contend otherwise.

A-5

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 MCL 600.2911(3); MSA 27A.2911(3). In support

of its motion, the newspaper relied on the depositions

of the plaintiff, affidavits of the news reporter who

authored the article, and a police sergeant who pro-

vided a copy of the incident report with respect to

Rouch’s arrest. Relying on Schultz v Newsweek, Inc, 668

F2d 911 (CA 6, 1982), the trial court ruled that the news-

paper was entitled to a qualified privilege for matters of

general public interest. As a result, the trial court con-

cluded that the plaintiff was required to prove actual

malice in order to sustain his claim. The trial court

granted summary judgment in favor of the defendant on

the basis that the plaintiff was unable to establish a

genuine issue of material fact regarding the defendant

newspaper’s malice.

The Court of Appeals reversed the ruling of the trial

court, stating that the statutory privilege was unavail-

able 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.® We

granted the defendant leave to appeal.’

In Rouch v Enquirer & News of Battle Creek, 427 Mich

157; 398 NW2d 245 (1986), (hereafter Rouch [), we consid-

ered the scope of Michigan's statutory privilege, the con-

tinued existence of Michigan's qualified privilege in light

of the constitutional dimensions of the law of defamation

6 137 Mich App 39.

7 429 Mich 937 (1985).

acne

A-6

as developed by the United States Supreme Court in New

York Times v Sullivan, 376 US 254; 84S Ct 710; 11 L Ed 2d

686 (1964), and its progeny, and the burden of proving fal-

sity. Writing for the majority, Justice Brickley considered

the questions of privilege and discussed the applicability

of the “official proceedings privilege” statute, MCL

600.2911(3); MSA 27A.2911(3). Justice Brickley concluded

that an arrest, absent judicial action, falls outside the

scope of “public and official proceedings” as covered in

Michigan's statute.® In rejecting an interpretation of

Michigan's statutory privilege that would reach arrests or

police reports absent judicial action, Justice Brickley rea-

soned that the language “evoke[d] notions of adjudica-

tory action, rather than of government action generally.”

427 Mich 172. Justice Brickley further explored the effect

of constitutional mandates on the availability of

Michigan's public-interest privilege. Concluding that the

public-interest privilege had been largely subsumed by

the more expansive constitutional protections afforded

by the New York Times standard, we adopted the Gertz®

negligence standard in place of the former public-interest

privilege, 427 Mich 202, and remanded the case to

the trial court for further proceedings, with the instruc-

tion that the plaintiff bore the burden of proving falsity.

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

8 Since our decision in Rouch I, the Legislature has amended

Michigan's statutory privilege to broaden its scope to cover matters

of public record, governmental notices, announcements, and written

or recorded reports or records generally available to the public.

MCL 600.2911(3); MSA 27A.2911(3), as amended by 1988 PA 396,

§ 1. See also Nichols, HB 4932 and the Rouch case: A Brief sketch of

Michigan libel law, 2 Det C L R 689.

9 Gertz v Welch, Inc, 418 US 323; 94 S Ct 2997; 41 L Ed 2d 789

(1974).

A-7

bond hearing, and several expert witnesses. Signif-

cantly, 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 conduct. The defendant introduced a copy of the

police report that detailed the booking of Rouch for

criimira' sexuat' comuuct’ or ule basis onthe auttioriza-

tion of Prosecutor Pattison. Officer Bell also explained

that the arraignment for bond purposes was held before

the magistrate.” Adding to the factual record in Rouch /,

which focused on the facts regarding the arrest and

police reports, the trial record included the testimony

from the magistrate who was responsible for setting

bond. The magistrate testified that one of her official

duties was to set bond for persons being held in cus-

tody. Although the magistrate did not specifically recall

the details of this hearing, the defendant introduced a

bail bond form signed by the defendant which evi-

denced a $10,000 personal recognizance bond with

appearance for arraignment required on December 28,

1979. The form detailed the offense as criminal sexual

conduct in the first degree. The magistrate agreed that

the form indicated that she had set bond and described

the manner in which such bonds were set. She ex-

plained that to set bond, she would consider the length

of the defendant's residence in the community, his

employment status, his reputation and character, his

prior criminal record, his record of appearance or non-

10 Bell explained that Magistrate Strong sometimes conducted

the proceeding to set a personal recognizance bond over the tele-

phone, and other times she did it in her office. Bell called the pro-

ceeding an “arraignment for bond purposes.” Magistrate Strong

agreed that she sometimes conducted the hearing by telephone.

When this was done, the sheriff's department would prepare the

form, and the defendant would sign it and be released.

A-8

appearance on other occasions, the nature of the of-

fense, and the probability of conviction."

The defendant renewed its motion for directed verdict

incorporating all its prior arguments, and again raised

the contention that the case fell within Michigan's statu-

tory privilege, relying particularly on the magistrate’s

testimony as evidence of an official proceeding. The

jury returned a verdict in favor of the plaintiff and

awarded damages of one million dollars. The defendant

unsuccessfully moved for judgment notwithstanding the

verdict. A stay was granted, and the newspaper

appealed in the Court of Appeals.

The Court of Appeals addressed numerous issues in

affirming the jury verdict. The Court rejected the defen-

dant’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 sug-

gestion 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 babysitter. Rouch was arrested without a

warrant, held by the police, booked on the charge of

first-degree criminal sexual conduct, as authorized by

u Michigan law authorizes magisirates to carry out a wide range

of judicial functions, including setting bond for defendants. See

MCL 600.8511 et seg.; MSA 27A.8511 et seg. See also MCL 765.1;

MSA 28.888 (which authorizes a magistrate to set bail and to let an

accused out of jail on recognizance).

A-9

the prosecutor, and released on $10,000 personal recog-

nizance bond after an informal hearing before a magis-

trate. It is undisputed that Rouch was never formally

arraigned on a warrant and that the police eventually

pursued another suspect. The facts surrounding Rouch’s

arrest were set forth in an article published by the

Battle Creek News & Enquirer.’ Mr. Rouch conceded

that the article in question and its references to his

arrest, booking, and release on bond were accurate.

Plaintiff complained, however, about three supposedly

material errors. First, plaintiff contended that the article

falsely asserted that Rouch was “charged” with sexual

assault. Second, the plaintiff complained that the article

falsely stated that he was identified by his children

when, in reality, he was identified by his former wife's

children, his former stepchildren. Third, plaintiff com-

plained that the article was inaccurate in that it

asserted that the charge against Rouch was authorized

by the Calhoun County Prosecutor's office.

The facts regarding the manner in which the news-

paper 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

I2 Bedford Township officers, the township where the crime

occurred, requested Emmett Township officers to arrest Rouch at

his home in Emmett Township. He was placed in the custody of the

Bedford Township police. Upon authorization from the Calhoun

County Prosecutor's office, Rouch was removed to the county jail in

Marshall and booked on a charge of CSC I. The magistrate for the

10th District Court in Calhoun County released Rouch on a personal

recognizance bond until his formal arraignment could be held.

13 ‘The full text of the article is set forth infra at 22-23 [original

Opinion pagination; of. pp A-20-A-22, infra).

iain

A-T0

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."

Il

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 defam-

atory 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 Assn, 438 Mich 84, 116; 476

NW2d 112 (1991), we enumerated four components for a

cause of action for libel: 1) a false and defamatory state-

ment concerning the plaintiff, 2) an unprivileged com-

munication 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

I4 We need not resolve this factual dispute in view of our reso-

lution of the other issues.

A-1]

comply with constitutional requirements. As we recog-

nized in Locricchio, analysis under the constitution has

focused on three elements: “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.” /d. at 118. In this case involving a private

plaintiff, a media defendant, and a publication regarding

an area of public concern, the constitution requires

that the plaintiff bear the burden of proving falsity.

Philadelphia Newspapers, Inc v Hepps, 475 US 767; 106 5

Ct 1558: 89 L Ed 2d 783 (1986). Further, after Gertz v

Welch, Inc, 418 US 323, 347; 94S Ct 2997; 41 L Ed 2d 789

(1974), invited states to “define for themselves the

appropriate standard of liability for a publisher or

broadcaster of defamatory falsehood injurious to a pri-

vate individual,” this Court adopted negligence as the

standard in Michigan. Rouch /, 427 Mich 195.'® Thus, the

plaintiff must establish that the defendant's publication

of the communication at issue was negligent.”

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 estab-

lish the defendant's negligence, and that the defendant

could not invoke the protection of Michigan's “official

proceedings” statute, MCL 600.2911(3); MSA 27A.2911(3).

15 We noted in Locricchio that it is unclear whether the media

status of the defendant necessitates a higher level of protection.

427 Mich 90, n7. The United States Supreme Court has not yet

resolved the issue.

16 We reserved for another occasion the question whether the

standard of proof with regard to falsity or negligence is “clear and

convincing evidence” or some lesser standard. Locricchio, 438 Mich

123.

7 We note that both common-law and constitutional questions

regarding the availability of and necessary proofs for damages were

raised in this case. Because of our resolution of the other issues, we

leave these issues for another day.

+E.

A-12

Rouch v Enquirer & News (On Remand), 184 Mich App

19; 457 NW2d 74 (1990). We disagree with the ruling on

material falsity."*

Il

In Locricchio, 438 Mich 110-114, we held that in

reviewing a libel case affecting constitutionally pro-

tected public discourse, an appellate court must inde-

pendently 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 the 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 elabora-

tion of constitutional principles; we must also in

proper cases review the evidence to make cer-

tain that those principles have been constitution-

ally 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 ‘explain for ourself

[sic] the statements in issue and the circum-

18 The Court of Appeals also considered numerous trial court

rulings on negligence, the official proceedings statutes, evidentiary

matters, and instructional issues. Because we conclude that plain-

uff’s claim cannot survive review of the initial issue, we need not

reach these issues.

A-13

stances under which they were made to see...

whether they are of a character which the princi-

ples of the First Amendment, as adopted by the

Due Process Clause of the Fourteenth Amend-

ment, protect. ... We must ‘make an indepen-

dent 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 under-

scored 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 con-

clusions of lower courts, but it will re-examine

the evidentiary basis on which those conclu-

sions are founded. /d. 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...” /d.

More recently, the United States Supreme Court revis-

ited the question of the proper standard of appellate

review in Bose Corp v Consumers Union of the United

States, Inc, supra. Bose rejected the imposition of the

clearly erroneous standard of FR Civ P 52(a) in review-

ing 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

A-14

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 held conviction

that judges — and particularly Members of this Court

— must exercise such review in order to preserve the

precious liberties established and ordained by the Con-

stitution.” Bose at 510-511

Likewise, the United States Supreme Court indepen-

dently reviewed the record in Harte-Hanks Communica-

tions, 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 appel-

late 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.” /d. 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

A-15

proving falsity.” 438 Mich 113.'* We considered that the

absence of meaningful appellate review might result in

upholding a jury verdict lacking adequate evidentiary

support. We analogized this result to a “failure to review

for clear and convincing evidence of actual malice,” id.,

and concluded that the promised protection for media

defendants afforded by placing the burden of proof on

the plaintiffs would “ring hollow” in the absence of

meaningful review of the trial court’s finding regarding

falsity. /d. at 114.7

19 Constitutional facts have been defined as “facts fundamental

to the existence of a constitutional right — for example, whether a

confession was coerced or a film was obscene.” Louis, Allocating

adjudicatim decision making authority between the trial and appellate

levels: 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 pris-

oner’s confession is the product of coercion we are bound to make

our own examination of the record”); Norris vy 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 intermingied); 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 depor-

tation warrant).

20 We realize that the Harte-Hanks Court construed the require-

ment for an independent review more narrowly than Bose. This dif-

ferent emphasis formed the basis for disagreement between Chief

Justice Cavanagh and the majority in Locricchio. Chief Justice

Cavanagh contended that falsity involves “a classic issue of pure his-

torical fact,” while actual malice, like the voluntariness of a confes-

sion, involves a mixed fact /law question. Chief Justice Cavanagh

there urged this Court to reject mandatory independent review of

such pure historical facts in favor of applying a sufficiency-of-the

evidence standard that construes the evidence in the light most

favorable to the verdict. Locricchio at 136 (Cavanagh, C. J., concur-

ring in the result).

A-16

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:

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 distinc-

tion at times has turned on a determination that,

as a matter of 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 L

R 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.” /d. at 238. Monaghan explained that indepen-

dent review enabled the appellate court to “elaborate

the governing norm.” Monaghan, p 236. Since law appli-

cation is “situation-specific” and norm elaboration is

A-17

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 declara-

tion function by providing general norm elaboration

when they conclude that it is necessary.” 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 con-

text.” Locricchio, supra at 114, n20. 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.

We therefore independently review the whole record

in this case to consider whether material falsity was

shown.

21 Monaghan suggests that although it is clear that appellate

courts have the authority to conduct independent review, it is not

clear that they have the duty to do so. He argues that the judicial

role in preserving constitutional rights requires courts to “expound

and refine the applicable constitutional law” and elaborate the con-

stitutional norms when necessary. Monaghan, p 268.

A-18

IV

The common law has never required defendants to

prove that a publication is literally and absolutely accu-

rate in every minute detail. For example, the Restate-

ment of Torts provides that “[s]light inaccuracies of

expression are immaterial provided that the defamatory

charge is true in substance.”?* Michigan courts have tra-

ditionally followed this approach.** At early common

law, Michigan courts predicated a claim for libel on the

question whether the article was substantially true. In

McAllister v Detroit Free Press, 85 Mich 453, 460-461; 48

NW 612 (1891), this Court explained that liability could

not be imposed for a slight inaccuracy:

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 inaccu-

racy 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 deter-

mine its effect on the reader; if the literal truth pro-

duced the same effect, minor differences were deemed

immaterial.

22 3 Restatement Torts, 2d, § 581, comment f, p 237.

23 See, e.g., Hay v Reid, 85 Mich 296; 48 NW 507 (1891); Mc-

Allister v Detroit Free Press, 85 Mich 453; 48 NW 612 (1891); McGuire

v Vaughan, 106 Mich 280; 64 NW 44 (1895); Sanders v Evening News

Ass'n, 313 Mich 334; 21 NW2d 152 (1946).

?

¢

A-19

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.44 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 —-; 11S Ct 2419; 115 L Ed

9d 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 5 Ct

2432-2433. The Court explained:

fhe common law of libel takes but one

approach to the question of falsity, revardless of

the form of the communication. ... It overlooks

minor inaccuracies and concentrates upon the

substantial truth. ... The essence of that

inquiry, however, remains the same whether the

burden rests upon plaintiff or defendant. Minor

inaccuracies do not amount to falsity so long as

‘the substance, the gist, the sting, of the libelous

charge be justified”... Put another way, the

statement is not considered false unless it

‘would have a different effect on the mind of the

reader from that which the pleaded truth would

have produced.

Although Masson pertained to the falsity component of

an actual malice determination, it is clear that the con-

stitutional requirement for testing falsity mirrors

Michigan's common-law test.

The substantial truth doctrine is frequently invoked

to solve two recurring problems: minor inaccuracies

24 See Philadelphia Newspapers, Inc v Hepps, supra.

A-20

and technically incorrect or flawed use of legal termi-

nology. 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, and that the

article suggested that “his children” identified him as

the person who committed the crime when the iden-

tification was made by his former wife’s children. We

disagree.

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 com-

plained of by the plaintiff.

This is the text of the report and headline published

by the News & Enquirer 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

woman who was babysitting with Ais children at

his ex-wife's house on North Findlay Avenue in

Bedford Township.

The subject has been identified by Bedford

Township Police as David J. Rouch of 631 Golden

Avenue. He is free on a $10,000 personal recog-

nizance interim bond pending his arraignment in

District 10 Court next week. Rouch is charged

with first-degree criminal sexual conduct.

A-21

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.

The following version substitutes language that the

plaintiff asserts should have been used in the article:

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 with his ex-wife's children at

her house on North Findlay Avenue in Bedford

Township.

The subject has been identified by Bedford

Township Police as David J. Rouch of 631 Golden

Avenue. He is free on a $10,000 personal recog-

nizance interim bond pending his arraignment in

District 10 Court next week. Rouch is accused of

committing 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.

A-22

The suspect was identified by Ais ex-wife's chil-

dren, 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 author-

ized the incarceration of Rouch on allegaiions 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 con-

veyed 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 / as requiring

this result. It apparently concluded from the statement

in Rouch / that “plaintiff was never formally charged”

with the crime, that the use of the word “charged” was

false. Second, it relied upon a textual analysis of the

plain meaning of the word “charge,” questioning the

defendant's suggestion that “charge” is synonymous with

“accuse.” Conceding that Webster's New World Dictionary

of the American Language, Second College Edition (1984),

includes “accuse” as one of the possible meanings of

“charge,” the Court pointed out the additional listed

term “indictment.” It also referred to The Random House

College Dictionary, Revised Edition (1984), which defined

“charge” as “to accuse formally or explicitly” and as “an

accusation.” On the basis of these authorities, the Court

reasoned that “charge” carries a more serious connota-

tion than “accuse” and that the article’s use of the term

“in a much more specific and legal sense” was false. 184

Mich App 324. Finally, the Court of Appeals attempted to

2

A-23

draw an analogy with this Court’s reasoning regard-

ing the distinction between “proceedings” under the

privilege statute and mere apprehensions.

We cannot agree with this reasoning. The linchpin of

the Court of Appeals analysis is a formalistic interpreta-

tion 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, rep-

resented ‘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.

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 termi-

nology.2® We have recognized that the popular sense of

25 The precise meaning and choice of words employed is a crit-

ical factor in any evaluation of the falsity. We are mindful of the

inherent imprecision of language and the difficulties this poses to

any evaluation of the truth or falsity of an article, particularly one

that rests upon the use of a word with ambiguous implications. See,

generally, Schauer, Language, truth, and the First Amendment: An essay

in memory of Harry Canter, 64 Va L R 263, 268 (1978). Schauer con-

tends that “the choice of language may be as much a part of the

freedom protected by the first amendment as is the choice of the

underlying propositions which that language expresses.” To ensure

the requisite “breathing space” for free and robust debate on mat-

ters of public concern, we think it important to allow for impreci-

sion and ambiguity in the choice of language.

26 See, e.g., Vachet v Central Newspapers, Inc, 816 F2d 313, 316

(CA 7, 1987) (the gist of the article concerned the plaintiff's associ-

ation with a suspected rapist because he was arrested for harboring

a fugitive, but the “particulars of the arrest — whether it was pur-

suant to an arrest warrant or authorized by a state statute — are in-

(concluded on page A-24)

A-24

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 tech-

nical 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 judicial opinions to express any criminal pros-

ecution. The burden of this charge was that

Bailey had been prosecuted for malfeasance, and

we do not think there was any substantial vari-

ance 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.

(continued from page A-23)

offensive details of secondary importance” ); Simonson v United Press

Int'l, Inc, 654 F2d 478 (CA 7, 1981) (use of the technical term

“ruled” for remarks made by the judge during a sentencing hearing

and of “rape” where the defendant had pleaded no contest to a

charge of second-degree sexual assault was not enough to establish

falsity); Lambert v Providence Journal Co, 508 F2d 656 (CA 1, 1975),

cert den 423 US 828 (1975) (the use of the term “murder” where

the defendant denied guilt did not constitute an actionable innu-

endo regarding his guilt despite the article’s failure to use more

neutral term like “homicide” or “shooting death”); Piracci v Hearst

Corp, 263 F Supp 511 (D Md, 1966), aff’d 371 F2d 1016 (CA 4,

1967) (per curiam) (a newspaper report that the plaintiff was

arrested for “possession of marijuana” was substantially accurate

despite the fact that the actual charge was “delinquency due to the

act of possessing marijuana” ).

A-25

Another typical example involved reports of state-

ments 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 impression-

able 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, con-

tending 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 con-

tention 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 “rhetorical question’ should

not be seen as a ruling. /d. at 482.

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, plain-

tiff asserts that “charge” should be limited to circum-

stances in which a formal arraignment has been held.

As in Simonson, the word at issue in this case encom-

passes 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

A-26

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

iudicial process is issued. For example, the Legislature

used “charge” to describe the disposition of a person

following arrest without a warrant. See MCL 764.13; MSA

28.871(1).7* Similarly, Michigan Court Rules use “charge”

to mean accuse. See MCR 6.106(E)(8).78 Panels of the

Court of Appeals and this Court’s Criminal Jury Instruc-

tions likewise use “charged” as a synonym for accusa-

tions made by the police in conjunction with arrests

made without a warrant.” Thus, the popular and legal

sense of the term “charge” may not be identical before

the police act on an accusation; once the police act on an

accusation, the popular and legal terms are synonymous.

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

27 The statute provides:

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. )

28 The rule provides that the court shall consider “the nature

of the offense presently charged and the apparent probability of

conviction” along with other factors when deciding whether a

person is entitled to release on personal recognizance, conditional

release, or release on money bail.

29 See, e.g., People v Suchodolski, 22 Mich App 389, 394-395; 178

NW2d 524 (1970). See also Michigan Criminal Jury Instructions (2d

ed), § 3.5(4) (the “fact that the defendant is charged with a crime

... is not evidence” ).

A-27

points in the proceedings to describe the accusations

brought against him.*° 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.”*' In addition,

the police reports used “charge” to describe the accusa-

tions against Rouch.**

The word “charge” is an umbrella term covering all

stages of the charging process. It is used by the law in

contradistinction to a conviction. Even if plaintiff's argu-

ment that “charge” connotes a more serious formal

involvement of judicial process than “accuse” were Cor-

rect as a matter of law, we think it apparent that the

word may be used in a popular sense as a synonym for

accuse. While one meaning of “charge” is simply

“accuse,” carrying it with no intimation of governmental

involvement, here, if the word “charge” is measured by

the gist of what happened, there was not only a charge

30 plaintiff testified that a police officer told him that he “was

getting picked up on a sexual charge or something.” He also stated

that he asked “what the charge was” and was told “it was a sexual

assault on a child.” He further commented that he was told “that,

you know, the charge that they — that I was being charged with.”

When asked when he understood that he was arrested and charged,

plaintiff explained that he was told that “we're charging you with

this, and that’s what they said.”

31 After trial, plaintiff apparently sought to shift the emphasis

of his claim to the question whether, in publishing an account of

his arrest, the article suggesting that he had actually committed the

crime, rather than that the reporting of his arrest and subsequent

release on bond included materially false details. The trial court

considered this broader argument, but ultimately based its ruling on

the narrower ground that the details in the article were materially

false.

32 The Bedford Township police report stated that the “Bed-

ford Township Police wanted Mr. Rouch picked up on this charge.”

The 10th District Court Bail Bond form also stated that Rouch had

secured his release “from custody pending final disposition of the

charge or charges.”

A-28

or accusation by an individual, but a booking by the

police, an authorization by the prosecution to lodge the

suspect on the charge, and an involvement by the mag-

istrate recognizing these actions. Thus, even if “charge”

connotes the existence of governmental involvement,

that was present here.*?

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 mat-

ters, newspapers would be forced to recapitulate tech-

nical 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 pop-

ular or lay terminology would be fraught with peril, and

newspapers would do so at their risk. As one court

remarked, there is “no authority for plaintiff's contention

that a newspaper article reporting a judicial proceeding

must indicate every possible interpretation of every

word used in a complaint or other legal document.” *4

33 All the elements necessary to obtain a formal warrant were

present. The only thing lacking was the officer’s appearance before

the magistrate to swear to what was in the complaint. In 1 Criminal

Procedure, § 14, p 21, LaFave and Israel state that in “most jurisdic-

tions, the post-arrest issuance of a warrant is viewed as an unneces-

sary formality, and the magistrate’s finding of probable cause will

combine with the complaint to authorize continuing custody.”

34 Handelsman v San Francisco Chronicle, 11 Cal App 3d 381, 387;

90 Cal Rptr 188 (1970) (ruling that use of the criminal term “theft”

was not substantially untrue despite the fact that the complaint

involved a civil action for conversion). See also Hopkins v Keith, 348

So 2d 999, 1002 (La App, 1977), writ not considered 350 So 2d 893

(La, 1977) (an article that reported that the plaintiff had been con-

victed for “running a gambling game” when he had merely for-

feited bond on the charge was substantially true).

A-29

We agree. Having conducted an independent review of

the record to determine whether use of the word

“charge” rendered the article materially false, we con-

clude that it did not.

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 conciuded that this consti-

tuted 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 arti-

cles 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 that the discrepancy was “an infini-

tesimal aberrant grain of sand hidden in an entire

seashore of reprehensible conduct and truths ...

505 So 2d 112.% .

35 See also Stevens v Independent Newspapers, Inc, 15 Media L

Rep 1097 (Del Super Ct, 1988) (a newspaper inaccurately reported

that the plaintiff had used a state car to drive seventy-two miles to

work when in fact the distance was only fifty-five miles); Brueggemeyer

v Associated Press, 609 F2d 825 (CA 5, 1980) (news reports that the

court ordered restitution might equal $700,000 were substantially

(concluded on page A-30)

A-30)

Like courts in other jurisdictions, Michigan courts

have found substantial truth despite minor inaccura-

cies in the details of an article. McCracken v Evening

News Assn, 3 Mich App 32; 141 NW2d 694 (1966), epito-

mizes 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 sub-

stantially untrue, noting that this constituted “an inac-

curacy 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.%

The essence of plaintiff's argument is that the state-

ment 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 identifica-

tion of persons who knew him. While we might agree

that a reader acquainted with the facts might have more

reason to suspect the motives of the identifiers, this is

an argument regarding the weight of the identification,

not its truth or falsity.

(continued from page A-29)

accurate despite the fact that the case involved only 1400 customers

with a right to press claims involving purchases that averaged only

$500); Gomba v McLaughlin, 180 Colo 232; 504 P2d 337 (1972) (a

newspaper account that accurately reported that the plaintiff

assaulted an elderly gentleman, but misstated the geographic loca-

tion where the assault occurred, was substantially true ).

3® See also Shutt v Harte-Hanks Communications, Inc, 7 Media L

Rep 2559 (ED Mich, 1981) (a headline inaccurately reported that

during a blackout the plaintiff had used the city’s generator to light

his home, but in fact he had used it to power his home freezer).

A-31

In sum. neither of the asserted errors, taken individu-

ally 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 |. 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 pro-

nouncements on the subject, we conclude that the evi-

dence was not sufficient to establish material falsity.

Accordingly, because we disagree with the reasoning

and result of the Court of Appeals, we vacate its opin-

ion and remand this matter to the trial court for entry

of judgment in favor of the defendant.

/s/ Patricia J. Boyle

/s/ Robert P. Griffin

/s/ Conrad L. Mallett, Jr.

/s/ James H. Brickley

RILEY. J. (concurring)

Although | agree essentially with the opinion of

the majority, ! write separately to make the following

obser vations.

| concur in the result reached by the majority that

this Court has a constitutional duty to independently

evaluate the evidence in defamation cases and that, in

A-32

this case, plaintiff failed to establish material falsity. |

also agree with the majority that the decision of the

Court of Appeals must be vacated. However, as a

threshold matter, I suggest that plaintiff's failure to

allege and identify in his pleading, supplemental

pleading, and answers to defendant's interrogatories,

specifically which statements he considered to be mate-

rially false and how the newspaper either was negligent

or reckless in publishing the story, were proper

grounds for summary judgment by the trial court.

I

In Locricchio v Evening News Ass'n, 438 Mich 84, 116;

476 NW2d 112 (1991), we reviewed our common-law

precedent! and listed the four components required to

state a cause of action for libel: (1) a false and defama-

tory 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 pub-

lisher, and (4) either actionability of the statement irre-

spective 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 publica-

tion. Locricchio, supra at 116. Inherent in these require-

ments 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

MacGriff, we held that the plaintiff's failure to directly

identify the defamatory statements entitled the defend-

ant to summary judgment. /d. at 204. In subsequent

Nuyen v Slater, 327 Mich 654, 662, n*; 127 NW2d 369 (1964).

\

A-33

cases, the Court of Appeals routinely followed this rule

by affirming trial court rulings that granted summary

judgment to defamation defendants.”

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 mate-

rial fact. The conflict betan with Parks v Johnson, 84

Mich App 162, 169; 269 NW2d 514 (1978), wherein a

Court of Appeals panel held that because courts are lib-

eral in finding the existence of a genuine issue of mate-

rial 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 Assn,

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

2 De Guvera v Sure Fit Products, 14 Mich App 201, 206; 165

NW2d 418 (1968) (“‘[t]he law requires the very words of the libel to

be set out in the declaration in order that the court or judge may

judge whether they constitute a ground of action”’); Pursell v

Wolverine-Pentronix, Inc, 44 Mich App 416, 421; 205 NW2d 504 (1973)

(applying the De Guvera-MacGriff rule to slander actions); Hernden v

Consumers Power Co, 72 Mich App 349, 356; 249 NW2d 419 (1976) (a

plaintiff's failure to allege “where, when or to whom this statement

[publication that the plaintiff was fired for lack of productivity] was

published, or that there even was a publication to anyone other than

the plaintiff himself”); Led! v Quik Pik Food Stores, Inc, 133 Mich

App 583, 589-590; 349 NW2d 529 (1984) (referring to Hernden and

Pursell with approval, the Led! Court held that the failure of a plain-

tiff to set forth with specificity the necessary elements of a defama-

tion cause of action: the defamatory words complained of, the

connection of the defamatory words with the plaintiff, and the pub-

lication of the alleged defamatory words, entitled the defendant to

summary judgment).

A-34

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 sup-

porting 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 con-

trolling 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 vein, MCR 2.111(B)(1), and its predecessor

GCR 1963, 111.1(1) requires plaintiffs to state in their

pleadings “[{a] statement of the facts, without repetition,

on which the pleader relies in stating the cause of action,

with the specific allegations necessary reasonably to

inform the adverse party of the nature of the claims the

adverse party is called on to defend” (emphasis added).

Failure to identy a false statement should result in sum-

mary disposition in favor of the defendant pursuant to

MCR 2.116(C)(8).

I]

In the instant case, plaintiff, deemed a private person

implicated in a matter of public concern,’ filed his com-

3 Rouch v Enquirer & News of Battle Creek, 427 Mich 157, 204;

398 NW2d 245 (1986).

A-35

plaint dated December 2, 1980, alleging that defendant

defamed him by stating that he was arrested, charged,

and released on $10,000 personal recognizance bond for

sexually assaulting the baby-sitter of his children.

Shortly thereafter, defendant sent plaintiff a set of inter-

rogatories requesting him to “[sJet forth separately

each statement of fact in the article which Plaintiff

alleges was false, separately quoting each alleged false

statement of fact,” and then to “describe the exact

nature and extent of the alleged falsity.” In his answers,

plaintiff apparently understood this to mean that the

issue of falsity went to the question whether he com-

mitted the assault, which he did not, and because he

had not, the article was materially false.

Upon receiving the answers, defendant forwarded a

supplemental set of interrogatories requesting plaintiff

Plaintiff's complaint, dated December 2. 1980, alleged the fol-

lowing facts.

“3 That on or about December 22, 1979, said Defend-

ant falsely and/or maliciously published an article con-

cerning 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 identi-

fied 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 sex-

ually assaulted and raped a 17-year old woman who was

babysitting his children.

“5

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.

A-36

to specifically describe which statement in the article

was false. Plaintiff objected to the supplemental inter-

rogatories, arguing that the question “deal[s] with legal

principles or at least the application of facts to legal

principles which only Plaintiff's attorney is qualified to

answer ... .”. Defendant responded with a motion for

summary judgment alleging first, that the article is sub-

stantially true — because the falsity issue did not relate

to whether he committed the assault, but rather to

whether the defendant’s report of plaintiff's arrest was

accurate — and, second, that it is privileged under

Michigan's common-law qualified privilege and the offi-

cial proceedings act, MCL 600.2911(3); MSA 27A.2911(3).

Plaintiff also moved for summary judgment alleging that

defendant admitted in its affirmative defense that the

story was false, and, therefore, the only issue at trial

was damages.

Calhoun Circuit Court Judge Stanley Everett denied

both motions, but ordered plaintiff to answer defen-

dant’s supplemental interrogatories. At this hearing,

Judge Everett recognized that plaintiff had failed to

plead with specificity the defamatory statements pub-

lished, 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 deter-

mine if the article, taken as a whole, is materially false.‘

5 As he explained:

“How is it different, Mr. Jereck, from the ordinary negli-

gence case in which the interrogatory may say, specify what

acts on the part of the defendant you claim were negligent?

(concluded on page A-37)

Cae ot un ape y hn ee A ke ee

A-37

Plaintiff's counsel again argued that his client’s guilt or

innocence of the underlying assault is determinative

regarding whether the article is materially false. Defense

counsel posited in response that “the Judge put his

finger on it when [he] made the analogy to the negli-

gence case. All that [plaintiff's] complaint says is that ..

_ the publication was made maliciously. Now, under the

[Court] Rules, ... there has to be some showing of fals-

ity and knowledge of falsity, and so on, ... to make out

a case [for] libel ... .”

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 judg-

ment. 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.”® Plaintiff

responded by alleging that the article was not privi-

leged under the official proceedings act, that the article

was defamatory because it falsely accused him of a

(continued from page A-36)

Now, the term negligence has a special meaning in the law,

it is a little more [sic] — 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.”

6 Defense counsel proceeded with the argument:

“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

(concluded on page A-38)

A-38

crime he did not commit, and that the paper failed

to make an effort to assess the truthfulimess of the

report.

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 dis-

regard whether they were false or not.”?

(continued from page A-37)

of falsity or reckless disregard of falsity. It is our position,

Your Honor, that none of the answers to the interrogato-

ries that are on file in any way establish that at the time

that the news story was published, that anyone at the news-

paper knew that the matter — material was false or had

reckless disregard of the falsity.”

It is also important to recognize that defense counsel did not rely

on the official proceedings act.

7 The court concluded with the following thoughts:

“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 sug-

gests there was an actual knowledge of the falsity of the

statement or anything to suggest there was reckless disre-

gard of the truthfulness or falsity of the statements. Conse-

quently, 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 the plaintiff

that he can substantiate malice; and, therefore, that the

defendant is entitled to have the matter dismissed by way

of summary judgment.”

|

:

:

A-39

lil

Thus, | write separately to indicate my agreement

with the trial court and to emphasize my belief that

althowgh this Court abandoned the “actual malice” stan-

dard for private person-public interest defamation

actioms in Rouch /® and adopted the “negligence” stan-

dard of liability, defendant was, nevertheless, entitled to

summary disposition, as a matter of law, on the basis of

our common-law precedent? and our court rules.'® The

relatively simple requirement of pleading facts to sup-

port allegations of material falsity, negligence, or reck-

less disregard for the truth should be followed by

plaintiffs in defamation actions, and, pursuant to MCR

2.116(C)(8), defendant should have been entitled to sum-

mary disposition on this ground alone a decade ago.

/s/ Dorothy Comstock Riley

/s/ Robert P. Griffin

8 Rouch, n3 supra.

9 MacGriff, supra at 204-205.

10 MCR 2.111(B)(1). See also Niehoff, The Michigan law of

Defamation, 1985 Det C L R 975, 980-982.

-

CAVANAGH, C.J. (dissenting).

| respectfully dissent. | 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. | disagree,

however, with the majority's conclusion that there

is insufficient evidence of material falsity.

/

The disputed article in this case does contain inaccu-

racies. The defendant concedes that the plaintiff was

A-40

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

Prosecutor's Office.” Under long-established principles

of defamation law, however, the issue is not merely

whether there are inaccuracies but whether the inaccur-

acies 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 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 pur-

poses, in relation and comparison to the concededly

| The Court of Appeals stated that this Court had rejected the

approach requiring material falsity:

“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 distin-

guish, 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.

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. Nev-

ertheless, the Court of Appeals applied the test for material falsity

and concluded that the plaintiff should prevail under either test:

“[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.

Accordingly, this error by the Court of Appeals does not require

reversal.

A-41

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, 112, 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 inde-

pendent appellate review ... . The indepen-

dent 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 judg-

ment 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, ade-

quately 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

A-42

reader.” Indeed, when the entire newspaper article con-

sists of only ten sentences, and those ten sentences

contain six factual inaccuracies, this Court should not

lightly overturn the jury’s conclusion that the overall

effect was materially false.

Il

Turning now to a review of the evidence in this case,

the Court of Appeals declared that the article was mate-

rially 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 stepchil-

dren 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 materi-

2 The trial court’s instructions to the jury included:

“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 matérially false and tended to harm the Plain-

tiff’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?”

A-43

ally false statement; would it create a different impres-

sion in the mind of the reader than would the actual

truth? | would conclude that the evidence supports

such a finding. A man’s children would presumably

know him very well by sight, and their reported identifi-

cation of him would likely be treated by the reader as

deserving of exceptional credibility because it “would

seem to eliminate the possibility that there might have

been a mistaken identification.” 184 Mich App 36. In

light of the “sting” of the entire article, that there was

more involved than a mere apprehension of a suspect,

this statement would have had a strong effect on the

mind of the reader. This Court previously declared that

both the fact of the arrest and “the facts used to estab-

lish the probable cause for the arrest” are of public

concern. Rouch I, 427 Mich 206. Certainly identification

by one’s own children would affect probable cause for

the arrest and, in determining whether the reasons for

the arrest were materially false, the misidentification of

the stepchildren as children is not inconsequential.

Even if this question is seen as a close one, | cannot

conclude that the reader would not have a different

reaction than if the literal truth had been reported.

Therefore, the jury’s determination should stand.

The second aspect of falsity flows from the declara-

tion 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 “news-

papers should not be held to technical legal language.

A-44

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 nonlawyers and the general public,

when the article declared that the prosecutor had

authorized the charge, the allegations became one of

formal charges, not merely suspicion.* The effect on the

mind of the reader was materially different from the

effect that would have resulted from the actual truth.

Indeed, the last sentence of the article strongly sug-

gests that the term “charged” was being employed in

the formal sense; the article claimed that “[t]he charge

against Rouch was authorized Friday by the Calhoun

County Prosecutor’s office.” Within this context the

term “charge” would normally be interpreted to mean

formal charges. Since no formal charges were ever pur-

sued, this could properly have been considered by the

jury to constitute a material falsity.

A final note in this area is that | believe it is inappro-

priate for the majority to focus merely on the definition

of the single word “charge.” Slip op at 23.* Michigargs

3 The Court of Appeals eloquently summed up the evidence on

this point:

“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 the plaintiff was

charged with a sex crime, and the final paragraph says that

the prosecutor’s office authorized the charge. The prose-

cutor, 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).

4 The Court of Appeals also rejected the argument based on

the definition of the word “charge” considered in isolation:

(concluded on page A45)

A-45

law of libel requires an examination of the article as a

whole. See Gustin v Evening Press Co, 172 Mich 311, 314;

137 NW 674 (1912) (“To test its libelous quality, a publica-

tion must be considered as a whole ...”); O'Connor v

Sill, 60 Mich 175, 181; 27 NW 13; 27 NW 162 (1886) (“The

article ... must all be read together. Parts of it cannot be

severed ...”). Read as a whole, the article conveyed the

impression that there was overwhelming evidence and

that judicial proceedings had been instituted against

Rouch. The effect of this on the mind of the reader is dif-

ferent from that of a “mere apprehension.” Rouch J, 427

Mich 172. The “sting” that results from this impression of

formal charges created a substantially different effect on

the mind of the reader. The evidence demonstrated, and

the jury obviously found, that the article as a whole con-

veyed an impression quite different from that which the

actual truth would have produced.

| would affirm the judgment of the Court of Appeals.

/s/ Michael F Cavanagh

/s/ Charles L. Levin

(continued from page A44)

“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 ... . [Wle

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 accu-

sation, the article, as written, and particularly the last para-

graph, certainly uses the term in a much more specific and

legal sense.” Id. at 33-34.

A-46

LEVIN, J. (separate opinion).

| have signed the Chief Justice's opinion.

/

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,”' | 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 govern-

mental official responsible for the administration of jus-

tice 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

! Slip op, p 7.

A-47

import and sting of the article. As stated by the Chief

Justice, the article read as a whole conveyed “the

impression that there was overwhelming evidence and

that judicial proceedings had been instituted against

Rouch.””

Rouch was arrested and detained at 5:25 a.m. by

police officers without prior authorization by the prose-

cutor. After Rouch arrived at the station house, a police

officer telephoned an assistant prosecutor who autho-

rized the officer to further detain Rouch.* The prose-

cutor 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 state-

ments in the news article, that Rouch had been

“arrested and charged” with first-degree criminal sexual

conduct and that the “charge against Rouch was autho-

rized” by the prosecutor, implied‘ falsely that a prose-

cutor had authorized the police to arrest Rouch on

charges of CSC-1.

Il

The concurring opinion overlooks the distinction

between stating a cause of action and providing a

2 Slip op, p 7.

3 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 CSC Ist.”

‘ “The dispositive question in the present case then

becomes whether or not a reasonable factfinder could con-

clude 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

__, —; 110 S Ct 2695; 111 L Ed 2d 1, 19 (1990).

A-48

“statement of the facts, without repetition, on which the

pleader relies in stating the cause of action.”*

A motion of the Enquirer and News of Battle Creek seek-

ing summary disposition on the ground that Rouch had

“failed to state a claim on which relief can be granted”®

5 MCR 2.111(B)(1).

6 MCR 2.116(C)(8).

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 attor-

neys, Sullivan, Hamilton, Ryan & Schulz and moves the

Court that an Order be ertered granting a summary judg-

ment 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 interrogato-

ries dealing with Plaintiff’s assertion of malice on the part

of Defendant.

“That the Court denied the Motion for Summary Judg-

ment 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 know-

ledge 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.”

gle

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A-49

could not properly be granted because of any failure in

the complaint filed by Rouch adequately to state the

facts on which he relied in seeking to state a cause of

action.

A claim that a pleader has failed adequately to state

facts may be raised at the trial level by a motion to cor-

rect or strike pleadings pursuant to MCR 2.115. If the

motion is granted, the pleader may as of course file an

amended pleading more fully stating the facts on which

the pleader relies.’

The plaintiff's answers to interrogatories fully sup-

ported the cause of action stated in the complaint.®

7 MCR 2.115 and MCR 2.116(1)(5).

8 The interrogatories directed to plaintiff read 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 fo)-

lowing 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 immedi-

ately upon receipt thereof, if the Plaintiff directly or indi-

rectly obtains further or different information, from the

time the answers are served to the time of trial.

“I. 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

(continued on page A-50)

A-50

A claim that the facts have not been adequately

stated cannot properly be raised after the trial has

(continued from page A49)

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

Baitle 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.”

The answer to interrogatories reads 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:

“I. 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.

“ce. 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 chil-

dren 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 | are false.

“3. My attorney advises me that we intend to rely on

both the claim of common law malice and an affir-

mative claim of actual malice.

(continued on page A-51)

A-51

commenced, let alone for the first time in the Supreme

Court and without even an assignment of error. Ordi-

(continued from page A-50)

“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

read as follows:

“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:

“j. In answering these Interrogatories, based on what I

have been told by my attorney, that actual malice (knowl-

edge 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 suffi-

cient cause or excuse) are more often than not supported

by the same factual basis except in ususual 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, | 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 defen-

dants 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 chargesd 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;

- (concluded on page A-52)

A-52

narily, the allegations in the complaint are fleshed out

during the discovery process, at status conferences,

and in mediation statements. The approach of the con-

(continued from page A-51)

“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 ques-

tion, Defendant made no investigation whatsoever to

determine whether or not the facts as published were

true;

“es

i. That Defendant only made a telephonic inquiry

of police departments to acquire the information

published;

“5

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;

“I. 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;

oe

m. That Defendant has no standards, instruc-

tions, or guidelines to protect private citizens such as

the Plaintiff from libelous publications;

oe

n. That despite a remand from Plaintiff, Defend-

ant failed to publish a retraction;

oe

o. That Defendant has not at any time, by con-

duct or otherwise, demonstrated the slightest interest

or concern or 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-53

curring opinion, if observed generally, would elaborate

on motion practice, to the dismay of bench and bar,

and would needlessly increase the paper flow and the

already heavy cost of litigation.

iil

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.

/s/ Charles L. Levin

A-54

ORDER DENYING REHEARING

(State of Michigan — Supreme Court)

(Entered August 24, 1992)

(DAVID J. ROUCH, Plaintiff-Appellee, v ENQUIRER & NEWS

OF BATTLE CREEK MICHIGAN, A Delaware Corporation,

Defendant-Appellant — SC: 89799; CoA: 108595; LC: 80-

1263 CZ; 87-412 CZ; Rehearing No. 273)

Michael FE Cavanagh, Chief Justice;

Charles L. Levin, James H. Brickley, Patricia J. Boyle,

Dorothy Comstock Riley, Robert P. Griffin, Conrad L.

Mallett, Jr., Associate Justices.

In this cause, a motion for rehearing is considered and,

on order of the Court, it is hereby DENIED.

(Certification Omitted)

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A-55

ORDER FOR JUDGMENT NOTWITHSTANDING VERDICT

(State of Michigan — Circuit Court - County of Calhoun)

(Dated September 9, 1992)

(DAVID J. ROUCH, Plaintiff, v ENQUIRER AND NEWS OF

BATTLE CREEK, MICHIGAN, a Delaware Corporation,

Defendant — Circuit Court Numbers: 80-1263 CZ 87-

412 CZ; Michigan Supreme Court No.: 89799; Court of

Appeals No.: 108595; HON: STEPHEN B. MILLER)

At a session of said Court, held in the Circuit Court-

rooms in the City of Battle Creek, Michigan, this 9th

day of September, 1992,

PRESENT: HONORABLE STEPHEN B. MILLER, CIRCUIT JUDGE

THE ABOVE entitled case having been tried and the

jury having rendered its verdict in favor of Plaintiff and

against Defendant, and upon appeal to the Michigan

Supreme Court, that Court having entered its order

remanding this matter to this court for entry of a judg-

ment in favor of Defendant and against Plaintiff notwith-

standing the verdict of the jury previously entered, and

a Motion for Rehearing having been filed in the Supreme

Court by Plaintiff-Appellee and the Court having entered

its Order denying said Motion for Rehearing under date

of August 24, 1992.

IT IS ORDERED that notwithstanding the verdict of the

jury, that Plaintiff recover nothing against Defendant,

and judgment be entered in favor of Defendant, dis-

missing Plaintiff's action with prejudice, with costs to

be taxed.

IT IS FURTHER ORDERED that the stay bond on appeal,

given by Defendant as principal and Continental Casu-

alty Company as surety under date of April 28, 1988, be

and the same is hereby cancelled and set aside, and

A-56

neither the principal nor surety shall have any further

obligation under said bond.

/s/ Honorable Stephen B. Miller,

Circuit Judge

(Certification Omitted)

A-57

PROCEEDINGS IN THE CALHOUN COUNTY, MICHIGAN

CIRCUIT COURT, BEFORE STANLEY EVERETT, JUDGE,

ON JUNE 7, 1982 (RE: DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT)

(State of Michigan — Circuit Court - County of Calhoun -

File No. 80-1263 CZ)

x * *

(14) * * * THECOURT: Well, I think we are all

aware of the fact the law as relates to libel and privilege

of the newspaper has changed substantially, and while

at one time qualified privilege which you are arguing

here may have been limited to public persons, it cer-

tainly appears to me that it does not at this time. In

Schultz, the court said the privilege attaches to reports

on matters of general public interest (15) even though

the plaintiff is a private individual. Incidentially, | don't

find anyplace in which they refer to newsworthy

accounts, but rather matters of general public interest.

That seems to me clear the reporting of arrests on

criminal proceedings involving charges is a matter of

general public interest.

Now, it is, of course, a qualified privilege, and it does

not protect the paper where there was malice as that

term is used in the law of libel; and that means more

than — or is not limited to personal hostility or dislike

of the person about whom the matter is published, but

rather extends to the fact defendants acted with know-

ledge that the statements objected to were false or reck-

less disregard whether they were false or not. | don't

find in the answers to the interrogatories any allegation

which suggests that the statements were known to be

false on the part of the people involved in its publica-

tion or with reckless disregard whether they were false

or not. Now, many of the things set forth which you

read, Mr. Jereck, relate to events after the publication

A-58

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 (16) with a specific criminal offense of some

significance. | 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. Conse-

quently, | am satisfied — and | am relying on particu-

larly on Schultz vs. Newsweek Incorporated, which is

the most recent decision which has been called to my

attention, at least, in this evolving state of law. ] am sat-

isfied 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.

Now, having said that, | cannot preclude the defen-

dant from — or would not seek to preclude him from, if

he is able to do so, find some evidence by way of —

some sworn evidence to refute the claims of the

reporter in this case, but it’s kind of like filing an

amended complaint, | guess. You certainly have the

right to do it here. You'd have to file something beyond

— something beyond the complaint to challenge the

affidavit. If you wish the opportunity to do it, | would

say summary judgment will enter in thirty days unless

additional material is submitted on the part of the

plaintiff to establish malice in this case.

oh pi EN MN

A-59

ORDER FOR SUMMARY JUDGMENT

(State of Michigan - Circuit Court - County of Calhoun)

(Dated June 14, 1982)

(DAVID J. ROUCH, Plaintiff, vs ENQUIRER & NEWS OF

BATTLE CREEK, MICHIGAN, a Delaware corporation, Defen-

dant — File No. 80-1263 CZ)

At a session of said Court, held in the Circuit Courtrooms in

the City of Marshall, Michigan, this 14 day of June, 1982,

PRESENT: HONORABLE STANLEY EVERETT, Circuit Judge

This matter having come on to be heard upon Defen-

dant’s Motion for Summary Judgment and Affidavits and

Exhibits and Briefs having been filed and the Court

having heard arguments of counsel and it having been

made to appear to the Court that Plaintiff has not

raised a genuine issue of material fact on the question

of malice on the part of the Defendant and the Court

having dictated its finding upon the record and the

Court being fully advised in the premises,

IT IS ORDERED that summary judgment of no cause for

action be entered in favor of Defendant and against

Plaintiff. This Order for Summary Judgment shall be of

full force and effect, unless Plaintiff shall, within thirty

(30) days of the date of this Order, file additional mate-

rial sufficient to establish a genuine issue of material

fact on the question of malice on the part of Defendant

and. in default thereof, this Order shall stand as a judg-

ment of no cause for action in favor of Defendant and

against Plaintiff.

/s/ Stanley Everett,

Circuit Judge

(Certification Omitted)

A-60

PROCEEDINGS IN THE CALHOUN COUNTY, MICHIGAN

CIRCUIT COURT, BEFORE STANLEY EVERETT, JUDGE,

ON JULY 19, 1982 (RE: RECONSIDERATION OF

SUMMARY JUDGMENT FOR DEFENDANT)

(State of Michigan - Circuit Court - County of Calhoun -

File No. 80-1263 CZ)

7 2 @&

(7) * * * THE COURT: If you are correct on that,

you are going to win your appeal, Mr. Jereck; but I'm

satished that the law is, under the circumstances of this

case, there is a privilege, that there must be a showing

of malice. The only issue which has been argued — or

really has been argued recently until your final com-

ments, is there any basis within the complaint or the

proceedings up until this point which could indicate

that you have the prospect of setting forth facts fro

which it could be concluded there was malice as that

term is defined in the libel law, and | haven't been

shown that which I believe could satisfy the require-

ments of malice, that there are proofs which would sup-

port it. Now, if malice is not in the case, that is a

mistake on my part; but if it is, | don't think there’s any

basis that you have shown to this date that there can

be proofs to support that.

MR. JERECK: Just for the record, you say you find (8)

there's a privilege.

THE COURT: | think there is, yes.

MR. JERECK: What privilege is that, so everybody can

have the benefit of that.

THE COURT: What do you mean, what kind of privi-

lege?

MR. JERECK: Conditional privilege we are dealing

with or —

THE COURT: It was simply a newsworthy event which

they had the right to publish.

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A-61

MR. JERECK: I just want the record to be clear on

that your Honor, where you found privilege

THE COURT: I guess the last time on that, | allowed a

certain period of time before judgment would enter. |

don't see any reason to hold it up further.

MR. JERECK: | don't either, your Honor.

THE COURT: Have you prepared an order?

MR. SULLIVAN: I have not, your Honor.

THE COURT: All right, if you will prepare it

A-62

ORDER DENYING MOTION FOR RECONSIDERATION

(State of Michigan — Circuit Court - County of Calhoun)

(Dated July 26, 1982)

(DAVID J. ROUCH, Plaintiff, vs ENQUIRER & NEWS OF

BATTLE CREEK, MICHIGAN, a Delaware corporation, Defen-

dant — File No. 80-1263 CZ)

At a session of said Court, held in the Circuit Court-

rooms in the City of Battle Creek, Michigan, this 26th

day of July, 1982,

PRESENT: HONORABLE STANLEY EVERETT, Circuit Judge

On reading and filing Plaintiff's Motion for Reconsider-

ation of the Order for Summary Judgment previously

entered in this case and the Brief in support thereof

and Defendant’s Answer and Brief in Support of Answer

and the Court having heard arguments of counsel and

the Court being fully advised in the premises,

IT IS ORDERED that the Plaintiff's Motion for Reconsid-

eration be and the same is hereby denied.

/s/ Stanley Everett,

Circuit Judge

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A-63

OPINION

(State of Michigan — Court of Appeals)

(Filed September 4, 1984)

(DAVID J. ROUCH, Plaintiff-Appellant, -v- ENQUIRER & NEWS

OF BATTLE CREEK, MICHIGAN, a Delaware corporation,

Defendant-Appellee — No. 66177)

BEFORE: R. M. Maher, P.J.,

and R.S. Gribbs and K.N. Sanborn,* JJ.

SANBORN, J.

On June 14, 1982, the trial court granted summary

judgment for defendant on the basis that plaintiff could

not prove that defendant acted with actual malice in the

publication of a defamatory news item. Plaintiff appeals

as of right.

On December 22, 1979, defendant printed the fol-

lowing story under the headline, “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

women [sic] who was baby-sitting with his chil-

dren 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 [plaintiff in

the present case] 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.

* Circuit judge, sitting on the Court of Appeals by assignment.

A-64

“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 chil-

dren, 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.”

Defendant received the information printed in this story

from the Bedford Township Police Department.!

The parties agree that the underlying facts behind the

story are substantially false: plaintiff did not commit

the rape. Although plaintiff was arrested for the crime,

I We note that defendant does not argue that it cannot be found

liable (absent malice) simply because it was merely repeating what a

police officer told its reporter. Defendant cannot escape liability

merely because it repeated only what the police told it because a

defendant is liable even if the libel is merely a repetition of what

another person said. Brewer vy Chase, 121 Mich 526; 80 NW 575

(1899); Burt v McBain, 29 Mich 260 (1874); 53 CJS, Libel and

Slander, section 86, p 138. See also, Gilman v McClatchy, i111 Cal

606, 612; 44 P 241, 242 (1896):

“If A. says B. is a thief, and C. publishes the statement

that A. said B. was a thief, in a certain sense this would be

the truth, but not in the sense that the law means. It would

constitute no defense to C., for it would be a repetition by

him of a slanderous charge. His defense must consist in

showing that in fact B. was a thief.” (Under modern law, he

could also defend by showing that he had not acted negli-

gently. )

ts Hatha pati NL neti ey 2

A-65

he was never charged.” Instead, he was released after

the Calhoun County Prosecutor's office refused to issue

an arrest warrant. A few months later, somebody else

was Officially charged with the crime. Defendant printed

a retraction on December 3, 1980 — one day after plain-

tiff instituted this lawsuit.

Defendant asserted in the trial court, and now on

appeal, that Michigan law extends to media defendants

a qualified privilege to report newsworthy stories con-

cerning private figure plaintiffs and, as such, that plain-

tiff here was obligated to prove actual malice to prevail.

The trial court rejected the notion that Michigan law

embodies a qualified privilege for newsworthy accounts,

but held that Michigan does recognize a qualified privi-

lege to report on matters of general public interest. The

trial court agreed with defendant that, because the

report of an arrest was of general public interest, defen-

dant was entitled to a qualified privilege and, because

plaintiff could not prove actual malice, granted defend-

ant’s motion for summary judgment

In this appeal, we must address whether the trial

court correctly determined that defendant enjoyed a

qualified privilege in reporting that plaintiff had been

arrested and charged with a sexual assault and the

alleged circumstances of the assault, his identification,

2 By itself, this particular inaccuracy is not libelous. If the gist,

the sting, of the article is substantially true, the defendant is not

liable. McCracken v Evening News Ass'n, 3 Mich App 32; 144 NW2d

694 (1966); Gomba v McLaughlin, 180 Colo 232; 504 P2d 337, 339

(1973). Whether or not the article is substantially true is a legal

question. Fendler vy Phoenix Newspapers, Inc, 130 Ariz 475; 636 P2d

1257 (1981); Anderson v Stanco Sports Library, Inc, 542 F2d 638 (CA

4, 1976). In this limited context, the sting is the fact of the arrest.

To most of the reading public, the additional fact of being formally

charged by the prosecutor adds little. The fact that he did not

commit the rape and that none of the underlying facts of the story

are true, however, defeats the defense that the article was substan-

tially true.

A-66

and his apprehension. Since defendant's brief implies

that a qualified privilege to report such matters about a

private figure plaintiff is constitutionally required, we

turn to a consideration of the constitutional limitations

on a state’s power to define its own defamation laws.

As recently as 1957, the United States Supreme Court

flatly concluded “that libelous utterances are not within

the area of constitutionally protected speech.” Roth v

United States, 357 US 476, 483; 77 S Ct 1304; 2 L Ed 2d

1498 (1957). However, in the next decade, the constitu-

tional revolution in defamation law wrought profound

changes to the common law of nearly every state. In

New York Times Co v Sullivan, 376 US 254, 279-280; 84 S

Ct 710; 11 L Ed 2d 686 (1964), the Supreme Court held

that the First Amendment prohibits a public official

from recovering damages for defamation unless he can

prove that the defamatory statements were made with

“actual malice,” which was defined as knowledge that

the statement was false or reckless disregard of

whether it was false.*

The New York Times’ decision was subsequently

extended by the United States Supreme Court in Assoct-

ated Press v Walker, 388 US 180; 87 S Ct 1975; 18 L Ed 2d

1094 (1967), to include “public figures” within the group

of defamation plaintiffs who were required to prove

“actual malice” as this term is used in New York Times.

Thereafter, in the plurality opinion of Justice Brennan in

Rosenbloom v Metromedia, Inc, 403 US 29; 91 S Ct 1811;

29 L Ed 2d 296 (1971), three members of the Court said

that if the communication involves matters of public or

3 Reckless disregard of the truth was later equated with “false

statements made with the high degree of awareness of their prob-

able falsity”. Garrison v Louisiana, 379 US 64, 78; 85 S Ct 209; 13 L

Ed 2d 125 (1964). See also, Curtis Publishing Co v Butts, 388 US 130,

153; 87 S Ct 1975; 18 L Ed 2d 1094 (1967) and St Amant v

Thompson, 390 US 727, 731; 88A S Ct 1323; 20 L Ed 2d 262 (1968).

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A-67

general concern, even a private figure plaintiff is

required to prove New York Times’ actual malice.

In Gertz v Robert Welch, Inc, 418 US 323; 94 S Ct 2997:

41 L Ed 2d 780 (1974), however, the Court rejected the

views of Justice Brennan as expressed in Rosenbloom.

Instead, the Court left it to the states to define the

scope of their defamation laws where private figure

plaintiffs are involved subject to only two constitutional

limitations:* (1) that liability may not be imposed

against media defendants without fault and (2) that

punitive damages may not be imposed against media

defendants unless New York Times’ actual malice is

*|Wle conclude that the States should retain substantial

latitude in their efforts to enforce a legal remedy for

defamatory falsehood injurious to the reputation of a pri-

vate individual.

* * &

“|Sjo long as they do not impose liability without fault,

the States may define for themselves the appropriate stan-

dard of liability for a publisher or broadcaster of defama-

tory falsehood injurious to a private individual. This

approach provides a more equitable boundary between the

competing concerns involved here. It recognizes the

strength of the legitimate state interest in compensating

private individuals for wrongful injury to reputation, vet

shields the press and broadcast media from the rigors of

strict liability for defamation.

ee @

“Our accomodation of the competing values at stake in

defamation suits by private individuals allows the States to

impose liability on the publisher or broadcaster of defama-

tory falsehood on a less demanding showing than that

required by New York Times. This conclusion is not based

on a belief that the considerations which prompied the

adoption of the New York Times privilege for defamation of

public officials and its extension to public figures are

wholly inapplicable to the context of private individuals.

Rather, we endorse this approach in recognition of the

strong and legitimate state interest in compensating private

individuals for injury to reputation.” 418 US 323, 345-349;

94S Ct 2997, 3010-3011; 411 L. Ed 2d 780, 809-810.

A-68

proven.® Clearly, then, contrary to the apparent position

of defendant, there is no federal constitutional privilege

to report on matters of public interest.®

Defendant next argues that even if no federal constitu-

tional privilege to report on matters of public interest

exists, Michigan has nevertheless provided a common-

law qualified privilege which would protect defendant

from liability for negligence in printing its story. If a

news story is qualifiedly privileged, the plaintiff must

Here, plaintiff, not a public figure, is requesting neither.

© Following Gertz, a few courts have adopted a standard in

accord with the Rosenbloom plurality and have required a private

figure plaintiff to prove New York limes’ actual malice or something

very close to it in order to prevail in actions against media defen-

dants where the allegedly defamatory publication involves a matter

of legitimate public concern or interest. See Chapadeau vy Utica

Observer-Dispatch, Inc, 38 NY2d 196; 341 NE2d 569 (1975), [gross

irresponsibility]; Walker y Colorado Springs Sun, Inc, 188 Colo 86; 538

P2d 450, cert den 423 US 1025; 96 S Ct 649; 46 L Ed 2d 399 (1975);

Aafco Heating & Air Conditioning Co v Northwest Publications, Inc, 162

Ind App 671; 321 NE2d 580 (1974), cert den 424 US 913; 96 S Ct

1112; 47 L Ed 2d 318 (1976). The vast majority of the states to con-

sider this issue, however, have adopted a negligence standard for

determining if a defendant is liable to a private figure plaintiff for

a defamatory falsehood. See, e.g., Peagler vy Phoenix Newspapers, Inc,

114 Ariz 309; 60 P2d 1216 (1977); Phillips v The Evening Star News-

paper, 424 A2d 78 (DC App, 1980); Cahill vy Hawaiian Paradise Park

Corp, 56 Haw 522; 545 P2d 1356 (1975); Troman v Wood, 62 Ill 2d

184; 340 NE2d 292 (1975); Gobin v Globe Publishing Co, 216 Kan

223; 531 P2d 76 (1975); McCall v Courier-Journal and Louisville Times

Co, 623 SW2d 882 (Ky, 1981), cert den 456 US 975; 102 S Ct 2239;

72 L Ed 2d 849 (1982); Jacron Sales Co v Sindorf, 276 Md 580; 350

A2d 688 (1976); Stone v Essex County Newspape:s, Inc, 367 Mass 849;

330 NE2d 161 (1975); Maloney & Sons, Inc v E W Scripps Co, 43 Ohio

App 2d 105; 334 NE2d 494 (1974), cert den 423 US 883; 96 S Ct 151;

46 L Ed 2d II! (1975); Martin v Griffin Television, Inc, 549 P2d 85

(Okl, 1976); Memphis Publishing Co v Nichols, 569 P2d 85 (Tenn,

1978); Foster v Laredo Newspapers, Inc, 541 SW2d 809 (Tex, 1976),

cert den 429 US 1123; 97 S Ct 1160; 51 L Ed 2d 573 (1977); Seegmiller

v KSL, Inc, 626 P2d 968 (Utah, 1981); Taskett v King Broadcasting

Co, 86 Wash 2d 439; 546 P2d 81 (1976); Denny v Mertz, 106 Wis 2d

636; 318 NW2d 141 (1982), cert den _. US __; 103 S Ct 179; 74 L

Ed 2d 147 (1982).

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A-69

show malice to recover for libel. Edwards v Chandler, 14

Mich 471; 90 A Dec 249 (1866); Tumbarella v The Kroger

Co, 85 Mich App 482; 271 NW2d 284 (1978), lv den 406

Mich 939 (1979). Whether or not a qualified privilege

exists is a legal question. Cochrane v Wittbold, 359 Mich

402, 407; 102 NW2d 459 (1960); Tocco v Piersante, 69

Mich App 616; 245 NW2d 356 (1976), lv den 399 Mich

882 (1977). A qualifiedly privileged story is not action-

able if honestly believed to be true and published in

good faith. Lawrence v Fox, 357 Mich 134, 142; 97 NW2d

719 (1959). This privilege is not limited to public indi-

viduals. Peisner v Detroit Free Press, Inc, 82 Mich App

153; 266 NW2d 693 (1978).

In this case, defendant argues that its story is pro-

tected by two separate qualified privileges. The first is

the qualified privilege for accurately and fairly reporting

judicial proceedings as provided by MCL 600.2911(3);

MSA 27A.2911(3). The second is the privilege in

Michigan to report matters in the public interest, as set

forth in Lawrence v Fox, supra. We will address each

argument in turn.

MCL 600.2911(3); MSA 27A.2911(3) states:

“No damages shall be awarded in any libel

action brought against a reporter, editor, pub-

lisher, or proprietor of a newspaper for the pub-

lication in it of a fair and true report of any

public and official proceeding, or for any heading

of the report, which is a fair and true headnote

of the article published. This privilege shall not

apply to a libel which is contained in any matter

added by any person concerned in the publica-

tion or contained in the report of anything said

or done at the time and place of public and offi-

cial proceeding which was not a part of the

public and official proceeding.”

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We do not agree with defendant that this privilege

applies in the present case. Because “a warrant [was]

never issued, there [were] no official proceedings that

(could have been] reported and this statute is not

applicable”. McCracken v Evening News Ass'n, 3 Mich

App 32, 39; 144 NW2d 694 (1966).7 Although the privi-

lege to accurately and fairly report judicial proceedings

does permit a newspaper to report that a particular

individual has been arrested for a particular crime,

Piracct v The Hearst Corp, 263 F Supp 511 (D Md, 1966),

as long as the matter has not advanced beyond the

arrest, the privilege does not cover reporting the partic-

ular details of the alleged crime. As stated in 3 Restate-

ment Torts, 2d, section 611:

“Report of Official Proceeding or Public

Meeting. The publication of defamatory matter

concerning another in a report of an official action

or proceeding or of a meeting open to the public

that deals with a matter of public concern is privi-

leged if the report is accurate or a fair abridge-

ment of the occurrence reported.”

Comment h to this section provides:

“An arrest by an officer is an official action,

and a report of the fact of the arrest or of the

7 Ina similar vein, publishing a charge found in a bill of com-

plaint is not privileged. Park vy The Detroit Free Press Co, 72 Mich

560; 40 NW 734 (1888); Nixon vy Warner Communications, Inc, 435 US

589, 598; 98 S Ct 1306, 1312; 55 L Ed 2d 570, 580 (1978).

Likewise, the federal constitutional privilege to fairly and accu-

rately report judicial proceedings has never been extended to cover

proceedings before a warrant has even been sworn out. Cox Broad-

casting Corp v Cohn, 420 US 469; 95 S Ct 1029; 43 L Ed 2d 328

(1975), and Nebraska Press Ass'n v Stuart, 427 US 539; 96 S Ct 2791;

49 L Ed 2d 683 (1976), both cited by defendant, are distinguish-

able. Cox Broadcasting, a right to privacy case rather than a defama-

tion case, involved the newspaper’s right to reveal a rape victim's

name obtained from public documents. Nebraska Press involved a

newspaper’s right to cover a criminal trial.

A-71

charge of crime made by the officer in making or

returning the arrest is therefore within the privi-

lege covered by this Section. On the other hand

statements made by the police or by the com-

plainant or other witnesses or by the prose-

cuting attorney as to the facts of the case where

the evidence expected to be given are not yet

part of the judicial proceeding or of the arrest

itself and are not privileged under this Section.” *

Therefore, if defendant is to be protected from its

own negligence in its reporting of the details of the

alleged offense, the protection must be provided by the

second, common-law, privilege asserted by defendant —

the qualified privilege to report matters in the public

interest. Defendant claims that stories about crime are

necessarily matters of public interest, and argues that

the specific details of the alleged crime fit within this

description and thus reporting the details is qualifiedly

privileged.

To a certain extent, criminal matters are within the

public interest. In Miner v The Detroit Post & Tribune Co.

49 Mich 358, 364; 13 NW 773 (1882), the Supreme Court

held that the defendant had a privilege to bring to

See also, Prosser, Torts (4th ed), section 21, pp 831-832:

“Thus it is the prevailing view, with some few courts to

the contrary, that a pleading or a deposition filed in a case

but not yet acted upon may not be reported under the

claim of privilege. * « * The same is of course true of

the preliminary statements of police, or any other evidence

not yet given.” (Footnotes omitted. )

And | Harper and James, The Law of Torts, section 5.24, p 433:

“(T]he publication of a petition, and answer, a deposi-

tion or an affidavit before a hearing has been held, does

not receive the protection of a privilege. The same is true,

as a general rule, of investigations and other activities of

the police before a warrant is issued or any other official

action taken.”

A-72

public light a judicial officer’s order which jailed a

person even though no charge had first been filed

against him and no bail had been required to be set:

“Few duties can be plainer than to challenge public

attention to the official disregard of the principles

which protect public and personal liberty.” Likewise, in

Stice v Beacon Newspaper Corp, Inc, 185 Kan 61; 340 P2d

396; 76 ALR 2d 687 (1959), the Supreme Court of Kansas

held that a current news story involving a continuing

violation of the law, like a police burglarly ring, is also

qualifiedly privileged.

Relying on Schultz v Newsweek, Inc, 668 F2d 911, 918

(CA 6, 1981), which construed Michigan law, defendant

argues that the courts in Michigan require nonpublic

figure plaintiffs to prove that media defendants who have

published a defamatory news story of general public

interest acted with actual malice: “The privilege attaches

to reports on matters of general public interest even

though the plaintiff is a private individual.” In our

opinion, Schultz is distinguishable. The sole state court

decision of any precedential value cited by the Schultz

Court as support for the proposition that media defen-

dants in Michigan enjoy a qualified privilege to report on

matters of general public interest is Peisner v Detroit Free

Press, Inc, supra. \n Peisner, this Court quoted extensively

from Lawrence v Fox, supra, as to the nature of the

Michigan qualified privilege to report on matters in the

public interest. There, the Supreme Court explicitly relied

upon 3 Restatement Torts, section 619, comment (a), in

holding that whether or not a qualified privilege exists is

a question of law to be resolved under the rules set forth

in sections 585-599 of the Restatement. 357 Mich 134, 140-

141. 3 Restatement Torts, section 598° provides:

9 3 Restatement Torts, 2d, section 598, is identical to the

wording appearing in the original Restatement.

A-73

“Communication to One Who May Act in the

Public Interest.

“An occasion makes a publication conditionally

privileged if the circumstances induce a correct

or reasonable belief that

“(a) there is information that affects a suffi-

ciently important public interest, and

“(b) the public interest requires the communica-

tion of the defamatory matter to a public

officer or a private citizen who is autho-

rized or privileged to take action if the

defamatory matter is true.”

Comment (b) to this section provides in pertinent part:

“The rule stated in this Section is applicable

when any recognized interest of the public is in

danger, including the interest in the prevention

of crime and the apprehension of criminals, the

interest in the honest discharge of their duties

by public officers, and the interest in obtaining

legislative relief from socially recognized evils.”

As the Restatement implies, there is an important dis-

tinction between matters which truly promote the

10 In Gaynes v Allen, 128 Mich App 42; 339 NW2d 678 (1983),

the defendants had published a newsletter informing its members

and the public about the quality of health care. One particular

article accused the plaintiff of professional negligence. In ruling

that the defendants are entitled to a qualified privilege to write its

story, this Court stated:

“Ophthalmologists and the general public have a vital

interest in the proper delivery of eye care services and in

being informed of the level of competence of health care

deliverers. The issue to which the allegedly defamatory article

addressed itself is one deserving of robust public debate. We

hold the published information was a matter of legitimate

public concern and that defendants had a qualified privilege

to publish it.” 128 Mich App 48-49. (Emphasis supplied. )

A-74

public interest and matters which are merely interesting

to the public. Under the Restatement formulation,

media defendants enjoy a qualified privilege to report

on matters which advance an important societal or

public interest,’ not a qualified privilege to report on

every matter which may be of interest to the public.

See also, Timmis v Bennett, 352 Mich 355, 368-369; 97

NW2d 719 (1958); Postill v Booth Newspapers, Inc, 118

Mich App 608, 619; 325 NW2d 511 (1982), lv den 417 Mich

1050 (1983); Walker v Cahalan, 97 Mich App 346, 356;

296 NW2d 18 (1980), revud on other grounds 411 Mich

857; 306 NW2d 99 (1981), cert den 454 US 1032; 102 S Ct

5970; 70 LE2d 476 (1981). A privilege extends only so far

as the reason for it applies. Timmis, supra. Hence, “[t]he

public needs to know what goes on in court but does

not need to know that A has slandered or libeled B out-

side of court”. Lubore v Pittsburgh Courier Publishing Co,

Inc, 91 App DC 311; 200 F2d 355 (1952). See also, Clark v

American Broadcasting Companies, Inc, 694 F2d 1208 (CA

6, 1982), cert den __ US __; 103 S Ct 1433; 75 L Ed 2d

792 (1983). In other words, a matter is not necessarily

privileged merely because it in some way relates to the

public interest. Rancho La Costa, Inc v Superior Court of

Los Angeles County, 106 Cal App 3d 646, 666; 165 Cal

Rptr 347, 360 (1980), app dis 450 US 902; 101 S Ct 1336;

67 L Ed 2d 326 (1981).

Both Fox and Peisner involved published reports con-

cerning a threat to a recognized societal or public

interest. In Fox, the media defendants had reported that

plaintiff, a deputy superintendent of police in Detroit,

had engaged in fraud, corruption, protection of crimi-

nals, perjury and deceit. Indeed, “few offenses known to

the litany of prostitution of public trust were omitted”.

Fox, supra, 135. Clearly, under the Restatement view, the

defendants in Fox were entitled to claim a qualified priv-

ilege since the matters reported concerned the public

A-75

interests in the prevention of crime, apprehension of

criminals, and the honest discharge by high-ranking

police officials of their duties. In Peisner, the newspaper

defendant ran an article which accused the plaintiff of

failing to raise the issue of judicial misconduct on

appeal of an indigent defendant's criminal conviction

because the plaintiff was the judge’s longtime friend’

and former campaign manager. Thereafter, upon plain-

tiff's written request for a retraction, the defendant ran

an editorial deploring the “buddy system” of judicial

appointments. Again, under the Restatement approach,

the newspaper defendant enjoyed a qualified privilege

to report on a matter which, if true, clearly threatened

the recognized societal interest in ensuring equal jus-

tice of the law to all criminal defendants. 82 Mich App

153, 163. See also, Hayes v Booth Newspapers, Inc, 97

Mich App 758, 774; 295 NW2d 858 (1980), and Postill,

supra, 619.

Contrary to defendant's assertion, Schultz did not rule

that a story is qualifiedly privileged merely because it

covers a subject found to be generally interesting. In

Schultz, the defendant published a series of articles

dealing with the disappearance of Jimmy Hoffa. Specifi-

cally, the news articles called the plaintiff an underworld

figure who was a key figure in causing the disappearance

of Jimmy Hoffa. The plaintiff conceded that the subject

of Hoffa's disappearance was a matter of public interest

as covered by the qualified privilege provided in

Michigan. He then argued, however, that the defendant

was not protected by this privilege as to him because he

was merely an “incidental” or “peripheral” figure in the

investigation and that the scope of the privilege was a

jury question. The Schultz Court disagreed and found

“no support for the * * * contention that the ‘scope’ of

the privilege in cases involving matters of general public

interest is a question of fact”. 668 F2d 911, 918.

A-76

Clearly, stories about organized crime and the disap-

pearance of Jimmy Hoffa deal with matters the discus-

sion of which advances public concerns. After all, Hoffa

was a major public figure and his disappearance led to

an intense police investigation. On the other hand, the

present case, involves a nonpublic-figure plaintiff who

had already been “apprehended”. Reporting to the

public what he had allegedly done advanced no public

concern.

Although information given to police officers regard-

ing criminal activity is absolutely privileged, Shingle-

meyer v Wright, 124 Mich 230; 82 NW 887 (1900),

newspaper accounts of these accusations are not even

qualifiedly privileged. Jastrzembski v Marxhausen, 120

Mich 677; 79 NW 935 (1899); Sciansi v New Times Pub-

lishing Co, 639 F2d 54 (CA 2, 1980); Fullerton v Berthi-

aume, 6 Que CS 342, 343 (1894). Furthermore, in both

Sherwood v Evening News Ass'n, 256 Mich 318; 239 NW

305 (1931),"" and Davis v Marxhausen, 86 Mich 282; 49

NW 50 (1891), the Supreme Court held that the defen-

dants were not privileged to report information

received from the police that the plaintiffs had been

involved in criminal activity. The defendants had incor-

rectly reported that the plaintiffs had been arrested.

One of the cases relied upon in Lawrence v Fox, supra,

is McAllister v The Detroit Free Press Co, 76 Mich 338; 43

ll Defendant contends that Sherwood is a “classic expression of

the doctrine of liability without fault” and, as such, is “no longer

valid law”. Assuming, arguendo, that defendant has correctly charac-

terized Sherwood in this regard, the fact that Gertz, supra, no longer

allows the states to impose liability on media defendants without

fault hardly means that every holding in Sherwood is no longer valid.

No Michigan Supreme Court precedents have subsequently held

that media defendants enjoy a qualified privilege to report on mat-

ters uncovered from police gossip or in conversation with the police.

Just as the discovery of one rotten apple in a bushel is no reason to

throw out the bushel, one overruled proposition in a case is no

reason to ignore all the other holdings appearing in that decision.

A-77

NW 431 (1889), which has strikingly similar circum-

stances to the instant case. There, plaintiff had been

arrested in Windsor, Ontario. Sometime earlier, a post

office in Bothwell, Ontario had been robbed. Although

the plaintiff was in fact arrested (and later released) for

violating a Canadian postage stamp law, the article,

based on information from the police, tied plaintiff to

the post office robbery. The Supreme Court held that

no qualified privilege applied:

“It is argued that a newspaper in this day and

age of the world, when people are hungry for the

news, and almost every person is a newspaper

reader, must be allowed some latitude and more

privilege than is ordinarily given under the law

of libel as it has heretofore been understood. In

other words, because the world is thirsting for

criminal items, and the libel in a newspaper is

more far-reaching and wide-spread than it used

to be when tales were only spread by the mouth.

or through the medium of books or letters, there

should be given greater immunity to gossip in

the newspaper, although the harm to the person

injured is infinitely greater than it would be if

published otherwise.

“The greater the circulation the greater the

wrong, and the more reason why greater care

should be exercised in the publication of per-

sonal items. No newspaper has any right to trifle

with the reputation of any citizen, or by careless-

ness or recklessness to injure his good name

and fame or business. And the reporter of a

newspaper has no more right to collect the sto-

ries on the street, or even to gather information

from policemen or magistrates out of court, about

a citizen, and to his detriment, and publish such

A-78

stories and information as facts in a newspaper,

than has a person not connected with a news-

paper to whisper from ear to ear the gossip and

scandal of the street. If true, such publication or

such speaking may be privileged, but if false, the

newspaper as well as the citizen must be respon-

sible to any one who is wronged and damaged

thereby.

“It is indignity enough for an honest man to be

arrested and put in prison for an offense of

which he is innocent, and for which indignity oft-

times he has no redress, without being further

subjected to the wrong and outrage of a false

publication of the circumstance of such arrest

and imprisonment, looking towards his guilt,

without remedy. And no sophistry of reasoning,

and no excuse of the demand of the public for

news, or of the peculiarity and magnitude of

newspaper work, can avail to alter the law,

except, perhaps, by positive statute, which is

doubtful, so as to leave a party thus injured

without any recompense for a wrong which can

even now, as the law stands, never be adequately

compensated to one who loves his reputation

better than money.” 76 Mich 338, 355-356.

(Emphasis supplied.)

Although no recent Michigan decision has addressed

the issue of whether media defendants have a qualified

privilege to report the details of a crime before the case

has advanced to a judicial proceeding, recent decisions

from other jurisdictions support the rule of McAllister

and Sherwood. In Phillips v The Evening Star Newspaper

Co, 424 A2d 78 (DC App, 1980), the defendant reported

that plaintiff had been arrested after shooting and

killing his wife during a quarrel. The defendant had

A-79

obtained this information from a “hot line” maintained

by the public information office of the District of

Columbia (“D.C.”) Police Department. Whenever an

event occurred which the public information officer of

the DC. Police Department deemed newsworthy, he pre-

pared a written report and transmitted orally the infor-

mation over the “hot line phone”. In fact, in Phillips,

plaintiff had been arrested for homicide, but the killing

was later reclassified as an accidental shooting. There

was no proven basis for the “hot line” report that the

shot had been fired “during an argument”. The Phillips

Court rejected the contention made by the defendant

therein that the newspaper enjoyed a qualified privilege

to report information gathered from the police “hot

line”.

In Hornby v Hunter, 385 SW2d473 (Tex Civ App, 1964),

a deputy sheriff had told the defendant reporter that a

warrant had been issued for the arrest of plaintiff for

Stealing a car. In fact, no warrant for stealing a car had

ever been issued, although one had been issued against

plaintiff for receiving and concealing stolen property.

The Texas court held that even though the publication

had been made in good faith, the defence. ant was liable

for actual damages. In so ruling, the court specifically

mentioned the conflict between the two competing

interests herein involved:

“[O]ne, the interest of an individual and his

right to remain undamaged in his reputation in

the community as a result of any libelous state-

ments with reference to him, and the other fun-

damental principle involved with the other

competing interests, the right of a free press to

carry on its business in an ordinary fashion in a

businesslike way and to disseminate the news

and to publish and circulate that news without

A-80

fear or restraint so far as reporting accurately,

fearlessly and completely.” 385 SW2d 473, 477.

The Texas court resolved this particular conflict by

ruling that “a false statement of fact, concerning an indi-

vidual even if made as a result of a communication from

a public official is not privileged as a fair comment

upon matters of public concern’. /d.

Likewise, in Lancour v Herald & Globe Ass'n, 111 Vt

371; 17 A2d 253; 132 ALR 486 (1941), the Supreme Court

of Vermont struck the same balance. There, the news-

paper article not only merely reprinted what the police

officers had told the defendant, but it stated that these

matters were “alleged by authorities”. However, merely

printing “it is alleged” did not absolve the defendant of

liability: “‘An accusation purporting to rest on hearsay

is nonetheless defamatory.” 11] Vt 371, 380; 17 A2d 253,

257. After noting the conflict also mentioned in Hornby,

supra, the Lancour court reached the same result:

“But weighing the social values involved, it

seems better to confide in the diligence and dis-

cretion of such officials, rather than that any

person should be subjected to unmerited

obloquy through the publication of false accusa-

tions made to them in the course of their investi-

gations, the tendency of which is, in the words of

Ellenborough, C.J., in Rex v. Fisher, 2 Camp. 563,

571, ‘to prejudice those whom the law still pre-

sumes to be innocent and to poison the sources

of justice.” 111 Vt 371, 385-386; 17 A2d 253, 259.

See also, Williams v WCAU-TV, 555 F Supp 198 (ED Pa,

1983); Lambert v Providence Journa! Co, 508 F2d 656 (CA

1, 1975), cert den 423 US 828; 96 S Ct 45; 46 L Ed 2d 45

(1975); O'Neal v The Tribune Co, 176 So 2d 535 (Fla App,

1965); Christy v Stauffer Publications, Inc, 437 SW2d 814

A-81

(Tex, 1969); Commercial Publishing Co v Smith, 149 F 704

(CA 6, 1907). Contra, Brown v Johnson Newspapers Corp,

84 App Div 2d 636; 444 NYS2d 493 (1981); Turnbull v

Herald Co, 459 SW2d 516 (Mo App, 1970): Kilgore v Koen,

133 Ore 1; 288 P 192 (1930); McClure v Review Publishing

Co, 38 Wash 160; 80 P 303 (1905).

We conclude that, in Michigan, where. as here, the

media defendants’ publication is not wrapped in a quali-

fed privilege, a private-figure plaintiff need only prove

negligence in order to prevail.

In the present case, the details of plaintiff's alleged

crime were merely matters that the public would find

generally interesting and not matters “deserving of

robust public debate”. The fact that defendant had been

arrested for raping his ex-wife's teen-age baby sitter and

cutting off the baby sitter’s clothes with a knife does

not contribute to the public’s interest in reducing or

detecting crime. Instead, it merely maximizes the

damage to plaintiff's reputation. Thus. considering the

obvious harm to plaintiff's reputation, we conclude that

the balance should be struck in plaintiff's favor.

This holding does not preclude a newspaper from

ever printing the facts of an alleged crime by a non-

public-figure plaintiff. A newspaper may avoid liability

for negligence in printing such details by either

reporting the fact of an individual's arrest, without men-

tioning the details of the crime (and thus be protected

by the official proceedings Privilege), see, e.g, 3

Restatement Torts, 2d, sec 611, comment h. p 301, or by

reporting the details of the alleged crime without

naming the suspect until the matter has advanced to

official proceedings (and so avoiding the possibility that

the article is even libelous).

Unfortunately, in this case, defendant chose to print

the details of the crime and specifically named plaintiff

A-82

as the suspect. Naturally, this approach maximized the

potential of harm to plaintiff's reputation. We believe

that the individual's right to be compensated for such

an injury outweighs the relatively slight impingement

(as in this case) on a newspaper's right to report such

matters: “The public interest does not require that the

right to enjoy a good name shall be made subservient

to the right of free speech.” Lancour, supra, 111 Vt 371,

386; 17 A2d 253, 259.

Therefore, we hold that the trial judge erred by ruling

that plaintiff must show that defendant possessed

malice when it printed its article. Instead, plaintiff need

only show that defendant was negligent in printing the

defamatory matter in order for plaintiff to recover his

actual damages. 3 Restatement Torts, 2d, section

S80B(c).

Reversed and remanded for proceedings consistent

with this opinion. Plaintiff may tax costs.

/s/ Richard M. Maher

/s/ Roman S. Gribbs

/s/ Kenneth N. Sanborn

A-83

OPINION

(State of Michigan —- Supreme Court)

(Filed December 26, 1986)

(DAVID J. ROUCH, Plaintiff-Appellee, v ENQUIRER & NEWS

OF BATTLE CREEK, Michigan, A Delaware Corporation,

Defendant-Appellant — No. 75044)

G. Mennen Williams, Chief Justice; Charles L. Levin,

James H. Brickley, Michael F. Cavanagh, Patricia J.

Boyle, Dorothy Comstock Riley, Dennis W. Archer,

Associate Justices.

BEFORE THE ENTIRE BENCH

BRICKLEY, J.

In this case, arising out of an alleged false newspaper

defamation of a private individual who was arrested but

not formally charged for rape, it is necessary to deter-

mine the applicability of Michigan’s statutory “public

and official proceedings” statute, MCL 600.2911 (3); MSA

27A.2911 (3), and the viability of its common-law quali-

fied public-interest privilege. Because this case was

decided on the basis of summary judgment, only these

privilege questions are before us.

/

INTRODUCTION

The facts in this case are undisputed. On December

21, 1979, the Emmett Township police arrested the plain-

tiff, David J. Rouch, in connection with the rape of a

woman in Bedford Township. At the time of the rape,

the victim had been babysitting Mr. Rouch’s step-chil-

dren at his ex-wife's home. A standard incident report

prepared by the Bedford Township Police Department

indicated the name of the complaining party and victim,

A-84

that Mr. Rouch was a suspect, that the “charge” was

“CSC in the lst degree,” that the injury involved

“penis/vaginal penitration [sic],” and that a “knife with

approx. 6 inch blade” was used as a weapon. Although

he was arrested, plaintiff in fact was never formally

charged with the crime, and ultimately, someone else

was. The Calhoun County Prosecutor’s Office had appar-

ently refused to issue a warrant after plaintiff's arrest.

On December 22, 1979, the defendant newspaper pub-

lished the following article:

“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-

women [sic] who was baby-sitting with his chil-

dren 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 recog-

nizance 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 chil-

dren, according to police.

“Rouch was arrested at his home by Emmett

Township police, who were informed where he

lived by Bedford Township investigators.

A-85

“The charge against Rouch was authorized

Friday by the Calhoun County Prosecutor's Office.”

The defendant’s reporter had received the information

contained in the article from the Bedford Township

Police Department.

The reporter's affidavit indicated that he customarily

telephoned the police department in the morning to

receive information about newsworthy police activities

during the preceding twenty-four hours. He indicated

that, on the occasion in question, he had spoken with

one or two officers and that he was informed of the

details that were contained in the article. The reporter

also said that he spoke with the Emmett Township

police who confirmed that the arrest had been made. A

year later, plaintiff commenced this action for libel.

The plaintiff's complaint alleged that the article was

false and defamatory. In its motion for summary judg-

ment, defendant argued that the article was entitled to

a qualified privilege under Michigan law, and that, in the

absence of proof of malice, it could not be the basis of

an action for libel. The trial court agreed. On June 14,

1982, Calhoun Circuit Judge Stanley Everett granted the

defendant’s motion for summary judgment of no cause

of action. The order indicated that unless the plaintiff,

within thirty days, established a genuine issue of mate-

rial fact on the question of malice on the part of the

defendant, the order would stand.

The trial court relied on Schultz v Newsweek, Inc, 668

F2d 911 (CA 6, 1982), a federal case interpreting

Michigan law, as support for its finding of a qualified

privilege. The court indicated that the privilege covers

“matters of general public interest” and that the

“reporting of arrests on criminal proceedings involving

charges is a matter of general public interest.”

A-86

The Court of Appeals reversed. Rouch v Enquirer &

News of Battle Creek, 137 Mich App 39; 357 NW2d 794

(1984). Approaching the issue of privilege first from a

constitutional perspective, the Court outlined the his-

tory of United States Supreme Court cases on the sub-

ject and concluded that

“there is no federal constitutional privilege to

report on matters of public interest.” Rouch,

supra, p 46.

The Court observed that the majority of states that

have ruled on the issue have adopted a negligence stan-

dard for determining whether a defendant is liable to a

private-figure plaintiff for a defamatory falsehood. See

id, p 46, n6.

Regarding the statutory qualified privilege contained

in MCL 600.2911(3); MSA 27A.2911(3), the Court held

that because no warrant was issued in this case, there

were no “official proceedings” and the statute was inap-

plicable. Referring to the general privilege to report

judicial proceedings, the Court found that that privilege

is limited to the fact of the arrest only, and not the

“particular details of the alleged crime.” /d., p 48 (citing

3 Restatement Torts, 2d, § 611, comment [h]).

Finally, the Court considered the application of a

common-law privilege to report matters in the public

interest. It assumed the existence of such a privilege in

Michigan, but found that the details contained in the

instant article did not fall within the privilege. The

Court reasoned,

“{T]here is an important distinction between

matters which truly promote the public interest

and matters which are merely interesting to the

public.” /d., p51 (citing 3 Restatement Torts, 2d,

§ 598, comment [b]}).

A-87

The Court of Appeals concluded,

“[I]n Michigan, where, as here, the media

defendants’ publication is not wrapped in a qual-

ified privilege, a private-figure plaintiff need only

prove negligence in order to prevail.

“In the present case, the details of plaintiff's

alleged crime were merely matters that the

public would find generally interesting and not

matters ‘deserving of robust public debate. The

fact that plaintiff had been arrested for raping

his ex-wife's teenage baby sitter and cutting off

the baby sitter’s clothes with a knife does not

contribute to the public’s interest in reducing or

detecting crime. Instead, it merely maximizes the

damage to plaintiff's reputation. Thus, consid-

ering the ob

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