Jones et al v. Scripps Media, Inc.
Filing
77
OPINION AND ORDER Granting Defendant's 64 Motion for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ODIS JONES, et al.,
Plaintiffs,
Case No. 16-cv-12647
Hon. Matthew F. Leitman
v.
SCRIPPS MEDIA, INC.
Defendant.
_________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (ECF #64)
Now more than ever, we depend upon the “free press” to “awaken[] public
interest in governmental affairs” and to “expos[e] corruption among public officers
and employees.” Estes v. State of Texas, 381 U.S. 532, 539 (1965). Indeed, “[t]he
press plays a unique role as a check on government abuse” and serves “as a watchdog
of government activity.” Leathers v. Medlock, 499 U.S. 439, 447 (1991).
In the Spring of 2016, Defendant Scripps Media, Inc., through its Detroit
television station WXYZ, performed this essential “watchdog” function by exposing
that the City of Detroit Public Lighting Authority (the “PLA”) had made suspicious
severance payments to certain departing employees. The payments were made while
Plaintiff Odis Jones served as Chief Executive Officer of the PLA. He personally
signed some of the agreements authorizing the payments, and he received one of the
payments when he left the PLA.
1
The severance payments raised “red flags” for a number of reasons, including
that some of them went to employees who had accused Jones of misconduct; that the
PLA did not publicly disclose the amount of the payments when they were made;
that the PLA required the departing employees, as a condition of receiving the
payments, to agree not to disclose the payments; that the departing employees likely
did not have a contractual right to any severance payments, much less the large
payments that they received; and that PLA officials refused to answer basic
questions about why the payments had been made.
In a three-part series of
broadcasts, WXYZ exposed the severance payments and the apparently-suspicious
circumstances surrounding them, and WXYZ suggested that the payments deserved
further scrutiny. “[I]nvit[ing] the public to ask” tough questions about the publiclyfunded payments, as WXYZ did, is “the paradigm of a properly functioning press.”
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1096 (4th Cir. 1993).
Sometimes, though, even a properly functioning press makes a mistake. That
happened here.
One of WXYZ’s reports contained one materially inaccurate
statement about Jones. In that report, WXYZ played a video clip depicting noted
employment lawyer Deborah Gordon as saying that Jones “violated the law” and
that the matter should be “referred to the AG [Attorney General]” (the “Gordon
Misquote”). In fact, Gordon said only that “if” Jones “violated the law,” a referral
to the Attorney General should be made. A WXYZ photographer mistakenly
2
eliminated the word “if” from the video clip of Gordon’s statement as he rushed to
edit the report for air. The Gordon Misquote created the misleading impression that
an authority on employment law had opined that Jones broke the law.
In this action, Jones and MVP Capital Ventures, LLC (“MVP”), an entity
owned in part by Jones, bring defamation and other claims against Scripps based
upon the Gordon Misquote and additional allegedly-false statements in the reports.
The Court previously dismissed the claims to the extent that they rest on any
statements in the reports other than the Gordon Misquote.
The Court now GRANTS Scripps’ motion for summary judgment on the
claims to the extent that they arise out of the Gordon Misquote. Jones’ claims based
upon the Gordon Misquote fail because he is a public figure, and he has not shown
that WXYZ acted with actual malice when it aired the misquote. MVP’s claims fail
because the Gordon Misquote did not concern MVP and did not give rise to any
actionable false implications about MVP. Accordingly, Plaintiffs have no viable
claims against Scripps.
3
I
A
In a previous Opinion and Order, the Court laid out in detail the background
facts relevant to this matter, including details about the PLA, employee severances
paid by the PLA, MVP, and the WXYZ broadcasts in question. (See Op. and Order,
ECF #28 at Pg. ID 487-98.) The Court incorporates that earlier recitation here and
sets forth below the facts that are central to the issues now before the Court.
In June 2013, Odis Jones became the Chief Executive Officer of the PLA.
(See Jones Employment Agreement, ECF #64-2.) The PLA was responsible for
restoring the public lighting system in the City of Detroit. Adam Troy served
alongside Jones as the PLA’s Chief Operating Officer from August 2014 until
August 2015. (See Troy Employment Agreement, ECF #64-4; Troy Severance
Agreement, ECF #64-6.)
In November 2015, two PLA employees, Dana Harvey and Sandra Hughes
O’Brien, threatened to file whistleblower lawsuits against the PLA based, in part,
upon their allegations that Jones had engaged in improper conduct while leading the
PLA. (See Draft Complaints, ECF ## 64-10, 64-11.) But Harvey and Hughes
O’Brien never filed those suits. Instead, they entered into severance agreements
with the PLA under which they received substantial severance payments – $123,000
for Hughes O’Brien and $77,000 for Harvey. (See Hughes O’Brien Severance
4
Agreement, ECF #64-12 at Pg. ID 1172; Harvey Severance Agreement, ECF #6413 at Pg. ID 1178.) The severance agreements contained confidentiality provisions
that prohibited Hughes O’Brien and Harvey from disclosing the terms of their
agreements and/or information learned during their employment. (See ECF #64-12
at Pg. ID 1174; ECF #64-13 at Pg. ID 1180.) Jones signed the agreements on behalf
of the PLA. (See id.)
Troy also entered into a severance agreement when he left the PLA. (See Troy
Severance Agreement, ECF #64-6.)
Under Troy’s agreement, he received a
severance payment of $58,000 even though he worked at the PLA for only one year.
(See id.) Troy’s severance agreement also contained a provision that required him
to “speak positively about” his experience at the PLA. (Id.) Jones signed Troy’s
severance agreement on behalf of the PLA. (See id.) At some point after Troy left
the PLA, he and Jones became partners in MVP. (See Jones Dep. at 29, ECF #64-3
at Pg. ID 1059 (describing Jones’ and Troy’s ownership stakes in MVP).)
In February 2016, Jones announced that he was resigning from the PLA to
pursue other opportunities. (See Jones Resignation Letter, ECF #64-15.) He also
entered into a severance agreement with the PLA at that time. (See Jones Severance
Agreement, ECF #64-17.) Under Jones’ agreement, the PLA paid him $250,000,
and it did so even though Jones’ employment contract did not entitle him to a
severance payment upon resignation. (See id. at Pg. ID 1195; Jones Employment
5
Agreement, ECF#64-2 at Pg. ID 1049; Jones Amended Employment Agreement,
ECF #64-19.)
Jones’ severance agreement also contained a confidentiality
provision. (See Jones Severance Agreement, ECF #64-17 at Pg. ID 1196.)
At some point in 2016, WXYZ investigative reporter Ronnie Dahl (“Dahl”)
began researching and preparing a series of reports about the PLA’s severance
payments to former employees, including Jones and Troy. Dahl’s investigation –
which included interviews with Gordon and with a law professor – revealed that
there were significant reasons to question the legality and propriety of the severance
payments.
Dahl also interviewed Lorna Thomas, M.D., the Chair of the PLA Board.
Dahl asked Dr. Thomas a number of questions about the legitimacy of the severance
payments. (See Broadcasts, ECF #64-33.) Dr. Thomas declined to discuss the
specifics of any of the severance payments or severance agreements because those
issues were, in her words, “personnel matter[s].” (See, e.g., April 29, 2016,
Broadcast,
ECF
#64-33
at
8:44;
also
https://www.youtube.com/watch?v=mXi1Apvx44k.)
available
online
at
When Dahl asked about
Hughes O’Brien’s and Harvey’s severance packages, Dr. Thomas said: “That is
again, a personnel matter. It doesn’t matter, pick any name you want. Susie Q. I’m
not going to discuss it with you.” (Id.)
6
In April and May of 2016, WXYZ aired Dahl’s three-part series concerning
the severances. WXYZ called the reports “Secret Severances.” The reports aired
on April 28, 2016, April 29, 2016, and May 9, 2016. The three reports raised
questions about whether the severance payments were appropriate uses of public
monies, whether the payments were lawful, and why the payments were not
disclosed to the public. Among other things, the reports questioned whether (1) the
payments to Hughes O’Brien and Harvey were part of an effort to conceal possible
wrongdoing within the PLA on Jones’ watch and/or by Jones and (2) Jones and Troy
improperly enriched themselves by taking severance payments to which they were
not entitled. The reports also explained that MVP was registered with the State of
Michigan one day before Jones signed Troy’s severance agreement and that Jones
and Troy became partners in MVP months after Troy received his severance
payment from the PLA. Finally, the April 29, 2016, report included the Gordon
Misquote.
B
After the “Secret Severances” reports aired, Jones and MVP filed this
defamation action against Scripps. In their First Amended Complaint, they identify
four classes of allegedly defamatory statements from the reports:
The Gordon Misquote. As noted above, the April 29, 2016, report
included the Gordon Misquote. That misquote depicted Gordon as
saying: “He violated the law, and other people got caught in the
7
crossfire. Bring those people back. Get rid of him. Turn it over to the
AG, and don’t waste any taxpayer money.” (See First Am. Compl. at
¶¶ 66-78, ECF #20 at Pg. ID 265-68.)1 The Plaintiffs contend that
Gordon never actually said that Jones violated the law, but instead said
only that “if” he had violated the law, then there should be
consequences for those actions. (See id. at ¶69, ECF #20 at Pg. ID 265.)
The Plaintiffs insist that Dahl and WXYZ “obscure[ed]” the word “if’
and “deceptive[ly] edit[ed]” Gordon’s statement “to give the
impression … that [it was] a flat declaration … without any context or
clarification.” (Id. at ¶¶ 66, 72, ECF #20 at Pg. ID 265-66.) The
Plaintiffs say that the “editing” was “undertaken with the malicious
intent to create the false impression[]” that Jones was a “lawbreaker.”
(Id. at ¶75, ECF #20 at Pg. ID 267.)
“Secret Severances.”
As noted above, WXYZ titled the reports
“Secret Severances” and used that term during the reports. Plaintiffs
say that the reports falsely portrayed Jones as participating in a
“shadowy and illegal scheme” to keep “secret” the severance payments
that he and the other PLA employees received. (Id. at ¶¶ 83-89, ECF
#20 at Pg. ID 269-72.) Plaintiffs contend that the severances were not
“secret” and that Jones was not involved in any effort to hide anything
from the public.
“Buying Silence.” As noted above, Jones received a payment under
his severance agreement.
In the reports, WXYZ highlighted that
1
Jones alleges that the “he” Gordon referred to was Jones himself. (See First Am.
Compl. at ¶68, ECF #20 at Pg. ID 265.) WXYZ has not contended that the “he” was
someone else.
8
payment and questioned whether the PLA made the payment in
exchange for Jones’ promise not to publicly disclose certain
information related to the PLA. The Plaintiffs allege that the reports
made “repeated slanderous assertions that [Jones] is a corrupt man who
can be bought.” (Id. at ¶90, ECF #20 at Pg. ID 272.) Specifically, the
Plaintiffs complain that the reports implied that the PLA “purchased”
Jones’ “silence” and “secrecy” through his severance payment. (Id. at
¶¶ 91, 99, ECF #20 at Pg. ID 272-73, 275.) Jones insists that his silence
was not “purchased” and that his severance had nothing to do with
remaining “quiet.”
“Jones Paying Off Troy.” As noted above, the PLA paid Troy a
$58,000 severance under an agreement that Jones signed on behalf of
the PLA. The reports identified the payment and asked the following
question concerning Jones’ connection to the payment: “Why did Jones
give him [Troy] $58,000 severance after less than a year on the job?”
(Id. at ¶100, ECF #20 at Pg. ID 275.) Jones says that WXYZ knew that
(1) the PLA Board was aware of and agreed with the terms of Troy’s
severance agreement and (2) the PLA, not Jones himself, made the
$58,000 payment to Troy. (See id. at ¶¶ 105-106, ECF #20 at Pg. ID
276.)
Jones maintains that the question was phrased “in [an]
inflammatory fashion to create the false implication that Jones [was] by
himself secretly using PLA funds to pay off his business partner.” (Id.
at ¶102, ECF #20 at Pg. ID 276-77.)
The Plaintiffs also complain that the reports showed images of MVP’s logo
and website while and/or shortly after the Gordon Misquote. (See, e.g., id. at ¶67,
9
ECF #20 at Pg. ID 265.) The Plaintiffs insist that this editing “falsely associate[d]”
MVP with the “incendiary statement[s]” about Jones and Troy and falsely implied
that MVP “is run by persons who have violated the law.” (Id. at ¶¶ 67, 76, ECF #20
at Pg. ID 265, 267.)
The First Amended Complaint contains four counts against WXYZ, each
brought under Michigan law:
Defamation (both Plaintiffs) (see id. at ¶¶ 120-135, ECF #20 at Pg. ID
281-87);
Interference with Advantageous Business Relations (both Plaintiffs)
(see id. at ¶¶ 136-142, ECF #20 at Pg. ID 287-88);
False Light Publicity Invasion of Privacy (both Plaintiffs) (see id. at ¶¶
143-148, ECF #20 at Pg. ID 288-89); and
Intentional Infliction of Emotional Distress (Jones only) (see id. at ¶¶
149-154, ECF #20 at Pg. ID 289-90.)
C
On January 10, 2017, WXYZ filed a motion to dismiss all four counts of the
First Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (See ECF #24.)
On April 4, 2017, this Court issued an Opinion and Order granting in part and
denying in part WXYZ’s motion to dismiss. (See Op. and Order, ECF #28.) The
Court dismissed Jones’ intentional infliction of emotional distress claim because
10
Jones failed to plead that WXYZ had engaged in outrageous conduct. (See id. at Pg.
ID 522.) The Court also dismissed Plaintiffs’ defamation, false light, and tortious
interference claims to the extent that they were based upon the “Secret Severance,”
“Buying Silence,” and “Jones Paying Off Troy” statements described above. (See id.
at Pg. ID 507-09.) The Court held that Plaintiffs could not proceed with their claims
based upon those statements because the Plaintiffs’ allegations did not demonstrate
that the statements were materially false. (See id.)
The Court left intact Plaintiffs’ defamation, false light, and tortious
interference claims only to the extent that they were based on the Gordon Misquote.
The Court held that Plaintiffs had sufficiently alleged the falsity of that statement by
pleading that (1) Gordon qualified her statement concerning lawbreaking with the
word “if” and (2) WXYZ eliminated that word so as to falsely portray that Gordon
had, in fact, opined that Jones broke the law. (See id. at Pg. ID 513-16.) The Court
also held that Jones was a public figure and that he had sufficiently alleged that
WXYZ acted with actual malice in airing the Gordon Misquote. (See id. at Pg. ID
516-18.)
D
Following this Court’s ruling on the motion to dismiss, the parties conducted
discovery, and that discovery revealed how WXYZ came to air the Gordon
Misquote.
11
1
As noted above, while investigating the severance payments, Dahl
interviewed Gordon, a distinguished employment lawyer. During that interview,
Dahl asked Gordon to opine on the legality and propriety of the severance payments.
In response, Gordon was careful not to directly accuse Jones of breaking the law.
As Gordon later explained, she “didn’t have any proof [that Jones violated the law]
at the time,” so she did not “say he broke the law.” (Gordon Dep. at 32, ECF #68-11
at Pg. ID 1631.) Instead, Gordon said: “If he violated the law, and other people got
caught in the crossfire. Bring those people back. Get rid of him. Turn it over to the
AG, and don’t waste any taxpayer money.” (Raw Footage, ECF #64-32 (emphasis
added).) While Gordon did not say that Jones violated the law, she did express
serious concerns about the severance payments. For instance, she said: “It’s bad.
It’s really bad. Because not only are they wasting taxpayer money, but the other
thing they’re doing is covering up possible illegal action by a public employee.” (See
Raw Footage, ECF #64-31.)
After Dahl completed the Gordon interview, she added several of Gordon’s
statements – including the “if he violated the law” statement and the “it’s bad”
statement – to her interview log. Dahl used that log to keep track of key statements
made during recorded interviews. The log identified the speakers, set forth the
statements verbatim, and listed the time-stamp identifying the spot on the video at
12
which the statements appeared. (See Log, ECF #64-30.) Dahl accurately reproduced
Gordon’s “if he violated the law” statement verbatim – including the word “if” – on
her interview log. (See id.)
2
WXYZ aired the first “Secret Severances” report on April 28, 2016. That
report was what is known within WXYZ as a “special project.” (See Dep. of Dave
Manney, former WXYZ Producer, at 77, ECF #64-25 at Pg. ID 1243.) Special
projects involve extended research and preparation, and WXYZ promotes them in
advance of their airing. (See Dep. of WXYZ editor Randy Lundquist at 10, 58, ECF
#64-27 at Pg. ID 1249-50.) WXYZ editor Randy Lundquist edits most of the
station’s special projects reports. (See id. at 58, ECF #64-27 at Pg. ID 1250.) He
edited the April 28, 2016, “Secret Severances” report. (See id.)
WXYZ aired the second “Secret Severances” report during its 6:00 p.m.
broadcast on April 29, 2016. Unlike the first report, the second report included “day
of” material – video that is recorded and prepared for broadcast the same day that it
is recorded. (See Dep. of Derrick Lee, former WXYZ photographer, at 20, ECF #6428 at Pg. ID 1254; Dahl Dep. at 74, ECF #68-2 at Pg. ID 1359.) The “day of”
material in the second report was a pre-taped interview with City of Detroit Mayor
Michael Duggan. (See Dahl Dep. at 79, ECF #64-20 at Pg. ID 1216.) Because the
second report included the “day of” material, it was not produced and edited in the
13
same manner as the first report. Dahl wrote the script for the second report shortly
before it aired, and photographer Derrick Lee, not special projects editor, Randy
Lundquist, made the final edits for the report. (See Lee Dep. at 50, ECF #64-28 at
Pg. ID 1256.)
Dahl completed the script for the second report and emailed it to Lee for final
editing at 5:25 p.m. (See Email, ECF #64-29.) Notably, Dahl did not include
Gordon’s “if he violated the law” statement in her script. (See Email, ECF #64-29;
Lee Dep. at 65-66, ECF #64-28 at Pg. ID 1260.) Instead, Dahl used Gordon’s “it’s
bad” statement. (See Email, ECF #64-29.)
After receiving Dahl’s draft script, Lee attempted “to edit the video to fit the
script.” (Lee Dep. at 24, ECF #64-28 at Pg. ID 1255.) But he ran into a problem.
The video footage accompanying Gordon’s “it’s bad” statement showed the back of
Gordon’s head, and Lee “didn’t like” that shot angle. (Id. at 90-91, ECF #64-28 at
Pg. ID 1266.) Lee “didn’t want [his] video to be on air with the back of a head and
shaking.” (Id.) Lee then consulted with Dahl about replacing the “it’s bad” quote
with a different quote from Gordon that Dahl had “time code[d]” on her interview
log. (Id. at 71, 91, ECF #64-28 at Pg. ID 1261, 1266.)
After reviewing five possible replacement quotes from Gordon on Dahl’s
interview log, Lee decided to replace Gordon’s “it’s bad” quote with another one of
Gordon’s statements that was filmed from a better angle. (See id. at 89, 91-92, ECF
14
#64-28 at Pg. ID 1266.) He settled on Gordon’s “if he violated the law” statement
because the video footage containing that statement – which showed the side of
Gordon’s head rather than the back of her head – “looked good, and [Lee is] all about
esthetics [sic].” (Id. at 84, 90, ECF #64-28 at Pg. ID 1264, 1266.) When Lee told
Dahl that he was going to replace Gordon’s “it’s bad” quote, Dahl responded,
“sounds good.” (Id. at 71, ECF #64-28 at Pg. ID 1261.) While Lee discussed the
footage change with Dahl, he made the decision to switch the clips on his own
authority. (See id.)
Lee made the final edits to the April 29, 2016, report under “deadline
pressure.” (Id. at 88, ECF #64-28 at Pg. ID 1265.) He had to “put together [the]
story pretty quickly” because he received the draft script at 5:25 p.m., and the report
was scheduled to air on the 6:00 p.m. broadcast. (Id. at 88-89, ECF #64-28 at Pg. ID
1265-66.) Lee made his “best” effort to accurately insert Gordon’s “if he violated
the law” quote into the report. (Id. at 88, ECF #64-28 at Pg. ID 1265.) And he
believed that he succeeded. To this day, Lee believes that the word “if” is audible
in the Gordon statement as aired in the April 29, 2016, report and that the report does
not accuse Jones of violating the law. (Id. at 72-73, ECF #64-28 at Pg. ID 1261-62.)
Despite Lee’s “best” efforts, he did not accurately capture Gordon’s entire “if
he violated the law” quote in the report. Lee’s editing obscured the word “if” in
15
Gordon’s statement, resulting in the Gordon Misquote.2 (See April 29, 2016,
Broadcast,
ECF
#64-33
at
8:53;
also
available
at
https://www.youtube.com/watch?v= mXi1Apvx44k). In the story as broadcast,
Gordon appears to say of Jones: “He violated the law, and other people got caught
in the crossfire. Bring those people back. Get rid of him. Turn it over to the AG,
and don’t waste any taxpayer money.” (Id.)
During his deposition, Lee explained that when he made the edits, he was not
“try[ing] to make false accusations. That [was] not my purpose.” (Lee Dep. at 88,
ECF #64-28 at Pg. ID 1265.) Indeed, Lee did not see his job as influencing the
content of the story. As he put it, “I just shoot and edit, Man.” (Id. at 72, ECF #6428 at Pg. ID 1261.) Moreover, Lee did not know who Odis Jones was, did not know
whether Jones had broken the law, and had never been told that Jones had broken
the law. (See id. at 72-73, 93, ECF #64-28 at Pg. ID 1261-62, 1267.)
E
On May 16, 2018, WXYZ filed a motion for summary judgment on Plaintiffs’
remaining claims – which, based upon the Court’s earlier ruling, all arise out of
WXYZ’s use of the Gordon Misquote. (See Defs.’ Mot. for Summ. J., ECF #64.)
2
At various points in these proceedings, Scripps has contended that the word “if” is
audible in the April 29, 2016, report and that there simply is no misquote of Gordon.
At best, however, reasonable listeners could differ about whether the word “if” is
audible. For purposes of the pending summary judgment motion, the Court draws
the inference in favor of Jones, as it must, that the word “if” is not audible.
16
The Court held a hearing on the motion for summary judgment on September 19,
2018. (See ECF #72.) At the conclusion of the hearing, the Court asked the parties
to file supplemental briefs that focused on the viability of MVP’s claims. The parties
filed their supplemental briefs on October 17, 2018 (see Pls.’ Suppl. Br. at ECF #74
and Defs.’ Suppl. Br. at ECF #73), and their replies on November 7, 2018 (see Pls.’
Reply Br. at ECF #76 and Defs.’ Reply Br. at ECF #75).
II
A movant is entitled to summary judgment when it “shows that there is no
genuine dispute as to any material fact . . . .” SEC v. Sierra Brokerage Servs., Inc.,
712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986)) (quotations omitted). When reviewing the record, “the
court must view the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.” Id. “The mere existence of a scintilla
of evidence in support of the [non-moving party’s] position will be insufficient; there
must be evidence on which the jury could reasonably find for [that party].”
Anderson, 477 U.S. at 252. Summary judgment is not appropriate when “the
evidence presents a sufficient disagreement to require submission to a jury.” Id. at
251-252. Indeed, “[c]redibility determinations, the weighing of the evidence, and
the drafting of legitimate inferences from the facts are jury functions, not those of a
judge . . . .” Id. at 255.
17
III
A
The Court first addresses Jones’ claim that WXYZ defamed him by airing the
Gordon Misquote.
1
Under Michigan law, a plaintiff must prove the following elements to prevail
on a claim for defamation:
1) a false and defamatory statement concerning the
plaintiff, 2) an unprivileged communication to a third
party, 3) fault amounting to at least negligence on the part
of the publisher, and 4) either actionability of the
statement irrespective of special harm or the existence of
special harm caused by publication.
Nichols v. Moore, 477 F.3d 396, 399 (6th Cir. 2007) (quoting Rouch v. Enquirer &
News, 487 N.W.2d 205, 211 (Mich. 1992)). A statement “is defamatory under
Michigan law ‘if it tends so to harm the reputation of another as to lower him in the
estimation of the community or deter third persons from associating or dealing with
him.’” Falls v. Sporting News Pub. Co., 834 F.2d 611, 615 (6th Cir. 1987) (quoting
Nuyen v. Slater, 127 N.W.2d 369, 374 (Mich. 1964)). Michigan law imposes
liability only for statements that are materially false. See Rouch, 487 N.W.2d at 208,
214-15. The test for materiality “look[s] to the sting of the [statement] to determine
its effect on the reader; if the literal truth produced the same effect, minor differences
[are] deemed immaterial.” Id. at 214-15.
18
In addition to satisfying the common-law requirements of defamation under
Michigan law, a defamation plaintiff “must also satisfy the constitutional
requirements of the First Amendment.” Nichols, 477 F.3d at 399. Under the First
Amendment, “a statement on matters of public concern must be provable as false
before there can be liability under state defamation law.” Milkovich v. Lorain
Journal Co., 497 U.S. 1, 19 (1990). Moreover, “if the plaintiff is a public figure, he
must show by clear and convincing evidence that the defamatory statements were
made with ‘actual malice.’” Nichols, 477 F.3d at 399 (quoting New York Times v.
Sullivan, 376 U.S. 254, 280 (1964)). A speaker/publisher acts with “actual malice”
when it makes or publishes a statement “with knowledge that it was false or with
reckless disregard of whether it was false or not.” Sullivan, 376 U.S. at 280 (1964).
“Reckless disregard,” in this context, “cannot be fully encompassed in one infallible
definition.” 390 U.S. 727, 730 (1968) (internal quotations omitted). But at a
minimum, “reckless disregard” may be found only where there is “sufficient
evidence to permit the conclusion that the defendant in fact entertained serious
doubts as to the truth of his publication.” Id. at 731. To publish “with such doubts
shows reckless disregard for truth or falsity and demonstrates actual malice.” Id.
2
WXYZ is entitled to summary judgment on Jones’ defamation claim because
Jones – whom the Court has already determined to be a public figure – has failed to
19
establish by clear and convincing evidence that WXYZ acted with actual malice
when it aired the Gordon Misquote. As described in detail above, the Gordon
Misquote was the result of an accidental editing error that photographer Derrick Lee
made under time pressure as he was trying to improve the aesthetics of the report.
There is no evidence that Lee was attempting to manipulate the content of Gordon’s
statement nor that Lee even understood that his edit resulted in the Gordon Misquote.
On the contrary, in undisputed testimony, Lee explained that he made his best effort
to accurately capture Gordon’s statement, that he thought he had successfully done
so, and that he saw his sole role as to “shoot and edit,” not to influence the content
of the report. (Lee Dep. 72-73, 88, 93, ECF 64-28 at Pg. ID 1261-65.) At most, the
evidence in this record establishes that Lee acted negligently when he edited
Gordon’s statement to obscure the word “if.” But “mere negligence does not
suffice” to show actual malice. Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
510 (1991).3
3
In Plaintiffs’ response to Scripps’ motion for summary judgment, they submitted
an affidavit from J. Stott Matthews, the “Managing Partner of Spectrum Computer
Forensics and Risk Management, LLC, a firm specializing in computer forensics,
electronic discovery, and computer security.” (Matthews Aff. at ¶2, ECF #68-21 at
Pg. ID 1668.) Matthews opines that Lee “could have made the entirety of the word
‘if’ audible by simply cutting the video at an earlier point, by adding five to ten
frames.” (Id. at ¶9, ECF #68-21 at Pg. ID 1669-70.) Plaintiffs cite Matthews’
affidavit as evidence that, at a minimum, Lee acted recklessly when he made the edit
that resulted in the Gordon Misquote. (See Pls.’ Opp’n to Summ. J., ECF #68 at Pg.
ID 1338-39.) The Court declines to consider the affidavit for two reasons. First, in
the affidavit, Matthews offers expert analysis concerning video editing, but Plaintiffs
20
Jones counters that even if Lee did not act with actual malice, Dahl did. And
Jones insists that Dahl’s purported malice is sufficient to sustain his defamation
claim based upon the Gordon Misquote. The Court disagrees.
Jones’ focus on Dahl’s alleged actual malice is misplaced because Dahl was
not responsible for the Gordon Misquote. As noted above, Dahl did not propose
using Gordon’s statement that became the Gordon Misquote – her draft script
included Gordon’s “it’s bad” statement, not Gordon’s “if he violated the law”
statement. And Dahl did not make the final decision to switch to the “if he violated
the law” statement. Lee did. Most importantly, there is no evidence connecting
Dahl to Lee’s edit that obscured the word “if” and created the Gordon Misquote.
While Lee told Dahl that he was going to switch video clips from the Gordon
interview, Dahl had no reason to believe that the switch would result in the Gordon
Misquote. Dahl had accurately listed Gordon’s “if violated the law” quote in full on
her interview log, and nothing that Lee said or did put Dahl on notice that Lee would
materially alter that quote when lifting it from her interview log and inserting it into
the April 29, 2016, report. Moreover, there is no evidence that Dahl knew before
the April 29, 2016, report aired that Lee had mis-edited the quote. Simply put, Dahl
neither disclosed him as an expert as required by Rule 26(a)(2)(A) of the Federal
Rules of Civil Procedure nor served an expert report concerning his opinions as
required by Rule 26(a)(2)(B). Second, the affidavit does not contain sufficient
information to support a finding that Matthews, who heads a computer forensics
firm, is qualified to offer an expert opinion concerning video editing.
21
did not cause, contribute to, know about, or have reason to anticipate or suspect the
Gordon Misquote in advance. Therefore, Jones may not rely upon Dahl’s alleged
state of mind in order to establish that WXYZ acted with actual malice when it aired
the Gordon Misquote.4
Jones also argues that WXYZ acted with actual malice by “purposeful[ly]
avoid[ing] the truth.” (Pls.’ Opp’n to Summ. J., ECF #68 at Pg. ID 1339-40 (citing
Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989)).) Jones
contends that the “truth” was set forth in an investigative report by PLA General
Counsel Tiffany Sadek (the “Sadek Report”). (See id.; Sadek Report at ECF #64-9.)
In the Sadek Report, Sadek (1) reviewed the allegations of lawbreaking made by
whistleblowers Hughes O’Brien and Harvey and (2) concluded that Jones did not
violate the law as they alleged. (See Sadek Report, ECF #64-9.) Jones argues that
WXYZ “continuously ignored” the Sadek Report and “derided [it] as the work of a
compromised insider,” and he contends that WXYZ’s treatment of the report shows
4
In any event, Jones has failed to show by clear and convincing evidence that Dahl
acted with actual malice. He highlights that Dahl allegedly harbored ill-will and
personal animus towards him. (See Pls.’ Opp’n to Summ. J., ECF #68 at Pg. ID
1341.) But “[a]ctual malice under the New York Times standard should not be
confused with the concept of malice as an evil intent or a motive arising from spite
or ill will.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991). And
while it “cannot be said that evidence concerning motive or care never bears any
relation to the actual malice inquiry,” Harte-Hanks Commc’ns, Inc. v. Connaughton,
491 U.S. 657, 668 (1989), Jones has not made a persuasive showing that Dahl’s
alleged negative feelings for him led her to recklessly disregard the alleged falsity
of anything in WXYZ’s reports.
22
that it did not care about the truth. (Pls.’ Opp’n to Summ. J., ECF #68 at Pg. ID
1340.)
The avoidance-of-the-Sadek-Report theory of actual malice cannot save
Jones’ defamation claim for two reasons. First, there is a disconnect between this
theory and the undisputed evidence as to how the Gordon Misquote ended up in the
April 29 report. As described above, the evidence shows that a last-minute editing
error by Lee caused the Gordon Misquote, and there is no evidence that Dahl (or
anyone else at WXYZ) was aware of or contributed to that error. Thus, even if Dahl
and others at WXYZ did fail to acknowledge and/or did deride the Sadek Report, as
Jones alleges, that conduct played no role in the airing of the Gordon Misquote.
Second (and in any event), WXYZ did not ignore the Sadek Report. Dahl
mentioned the report in the May 9, 2016, report and told her viewers that Sadek “dug
through it all” and concluded that “Jones did nothing wrong.” (See May 9, 2016,
Broadcast,
ECF
#64-33
at
13:21;
also
available
at
https://www.wxyz.com/news/tonight-at-11-secret-deals-cost-taxpayers-more-than500k.)
WXYZ
also
posted
the
Sadek
Report
on
its
website.
(https://www.wxyz.com/news/tonight-at-11-secret-deals-cost-taxpayers-morethan-500k.) Dahl did raise questions about Sadek’s impartiality, but those questions
were not unfair given that Sadek had done work for Adam Troy and MVP before
she joined the PLA. (See Troy Dep. at 97-100, ECF #68-9 at Pg. ID 1621-22.)
23
Indeed, WXYZ was under no obligation to accept Sadek’s findings at face value or
to refrain from raising concerns about Sadek’s possible bias. That WXYZ presented
reasons for discounting the Sadek Report is not evidence of actual malice.
On this record, no reasonable juror could find by clear and convincing
evidence that WXYZ acted with actual malice when it aired the Gordon Misquote.
WXYZ is therefore entitled to summary judgment on Jones’ defamation claim. See
Anderson, 477 U.S. at 254 (holding that summary judgment should be granted
against public figure on defamation claim where the evidence “is of insufficient
caliber or quantity to allow a rational finder of fact to find actual malice by clear and
convincing evidence.”).
B
Jones’ two additional claims – for tortious interference with adventagous
business relations and false light publicity invasion of privacy – fall along with his
defamation claim. The tortious interference claim is not viable because “[i]t is wellestablished in Michigan law that once a defamation claim falls, all related tortious
interference claims fall with it.” Hazime v. Fox TV Stations, Inc., 2013 WL 4483485,
at *14 (E.D. Mich. Aug. 19, 2013) (citing Lakeshore Cmty. Hosp., Inc. v. Perry, 538
24
N.W.2d 24, 27 (Mich. App. 1995)).5 Likewise, Jones’ false light claim fails as a
matter of law because, as described above, Jones failed to present evidence sufficient
to support a finding by clear and convincing evidence that WXYZ acted with actual
malice. See Battaglieri v. Mackinac Ctr. For Pub. Policy, 680 N.W.2d 915, 920-21
(Mich. App. 2004) (holding that a public figure bringing a false light claim under
Michigan law must prove by clear and convincing evidence that the defendant acted
with actual malice).
IV
A
The Court next turns to MVP’s defamation claim arising out of the Gordon
Misquote. Plaintiffs insist that this claim is viable because the defamatory sting of
the Gordon Misquote “attach[ed]” to MVP. (See Pls.’ Suppl. Br. at ECF #74 at Pg.
ID 1803.) The Court disagrees.
As explained below, the Gordon Misquote did not concern MVP. Moreover,
the references to MVP that followed the Gordon Misquote, when understood in their
proper context, did not connect the misquote to MVP in a manner that defames MVP.
For these reasons, MVP’s defamation claim arising out of the Gordon Misquote fails
5
See also Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 535
(6th Cir. 2014) (holding that where defamation claim failed due to insufficient
evidence of actual malice, court did not need to separately address parallel state-law
tortious interference claim because it “fail[ed] along with the defamation claim”).
25
as a matter of law. See Nichols, 477 F.3d at 399 (explaining that under Michigan
law, an essential element of a defamation claim is “a false and defamatory statement
concerning” the plaintiff).
1
To begin, it is clear that the Gordon Misquote, standing alone, did not concern
MVP. As the Restatement (Second) of Torts explains, a statement made about a
corporate officer or shareholder “concerns” the relevant corporation only where the
statement “also reflect[s] discredit upon the method by which the corporation
conducts its business.” Restatement (Second) of Torts § 561 (1997) comment (b)
(emphasis added). Indeed, “[a] corporation is not defamed by, and has no cause of
action for, communications defamatory of its agents, officers, stockholders, or
promoters unless such communications also reflect discredit upon the method by
which the corporation conducts its business.” 50 Am. Jur. Libel and Slander § 328
(2018) (emphasis added).6 Stated another way, “[w]ords spoken or written of a
stockholder or office give no right of action to [a] corporation unless spoken or
6
See also 53 C.J.S. Libel and Slander § 60 (2018) (“An imputation defamatory to
its officers or members does not constitute defamation of the corporation itself, at
least unless it suffers special damage. However, an accusation of misconduct on the
part of corporate officers when acting as and for the corporation, which discredits
the corporation in its trade or business, is a defamation against the corporation.”)
(Emphasis added.)
26
written in direct relation to the trade or business of the corporation.” Life Printing
& Pub. Co. v. Field, 64 N.E.2d 383, 384 (Ill. App. 1946) (emphasis added).
Here, the Gordon Misquote did not address the method by which MVP
conducted its business. The Gordon Misquote focused solely on Jones. And it
addressed his alleged misconduct while employed by the PLA – before he became a
partner in MVP and began running MVP’s private development business. Indeed, a
key point of the Gordon Misquote was to raise concern about the possible “waste”
of “taxpayer money” by a public agency. Because the Gordon Misquote did not
impugn the manner in which MVP conducted its private operations, the misquote
did not “concern” or defame MVP. MVP therefore may not pursue a defamation
claim based upon the Gordon Misquote.
The court in Afftrex, Ltd. v. General Electric Co., 555 N.Y.S.2d 903 (N.Y.
App. Div. 1990), reached the same conclusion under similar circumstances. The
corporate plaintiff in that case, Afftrex Limited, brought a defamation claim based
upon a “statement made during a management seminar conducted by defendant
General Electric Company.” Id. at 904. In the alleged statement, an employee of
General Electric said: “Bill Button, the owner of Afftrex, is also an evil man.
Because of his being an evil man, he too was fired from his [previous] job.” Id.
Afftrex Limited alleged that the statement was false – because Button was not, in
fact, fired from his prior position for any evil acts or misconduct – and that the false
27
reference to its owner, Button, defamed the company. The court held that while
Button, individually, could pursue a defamation claim based upon this statement,
Afftrex Limited could not do so because “the allegedly defamatory words reflect
directly on Button and his former employment, not upon Afftrex.” Id. Therefore,
even though the speaker identified Button as the owner of Afftrex, “the statement
was insufficiently ‘of and concerning’ Afftrex to such an extent that it cannot form
the basis of an action for defamation [by Afftrex].” Id.
Here, like the allegedly defamatory statement in Afftrex, the Gordon Misquote
casts aspersions on Jones’ actions during his prior employment, not on the
operations of, or his role in directing, his current company (i.e., MVP). Thus, as in
Afftrex, MVP may not pursue a defamation claim based upon the Gordon Misquote.
Plaintiffs have cited one case in which a court has allowed a corporate entity
to assert a defamation claim based on a statement concerning its shareholder, see
Balestriere, PLLC v. CMA Trading, Inc., 2014 WL 929813 (S.D.N.Y. Mar. 7, 2014),
but that case is distinguishable. The plaintiff in Balestriere, PLLC was a law firm.
It sued certain former clients based upon emails that the clients wrote about John
Balestriere, a partner in the firm and its namesake. In the emails, the former clients
made allegedly false statements about conduct that Balestriere engaged in while
serving as their lawyer. The court held that the law firm could assert a defamation
28
claim based upon these statements because they concerned Balestriere’s work on
behalf of the firm, which shared his name:
The e-mail in this case asserted that John Balestriere had
engaged in certain misconduct, but the reference implicitly
was to actions that he had taken in carrying out the
business of his law firm, Balestriere PLLC. Although the
e-mail did not so state on its face, the pertinent inquiry is
whether the libel designates the plaintiff in such a way as
to let those who knew him understand that he was the
person meant. Given the link of the names Balestriere and
Balestriere PLLC and the fact that Mr. Balestriere was
carrying out the business of the firm in engaging with
Eben, a person who knew of these circumstances could
reasonably infer that the statement reflected not only on
Mr. Balestriere himself but also on the firm, which he was
representing in his dealings with Eben and CMA.
Balestriere PLLC, 2014 WL 929813, at *18 (emphasis added).
Unlike the allegedly-defamatory statements in Balestriere PLLC, the Gordon
Misquote does not pertain to alleged misconduct that (1) was undertaken by Jones
on behalf of MVP or (2) could be attributed to MVP. These contrasts with the
defamatory statement in Balestriere, PLLC, underscore that the Gordon Misquote
did not concern MVP. For that reason, MVP may not assert a defamation claim
based upon the misquote, standing alone.7
7
Plaintiffs cite several other cases in support of their contention that MVP may assert
a defamation claim arising out of the Gordon Misquote, but none of those cases
involve a corporate entity asserting a defamation claim based upon a statement
concerning its shareholder. Moreover, those cases are distinguishable on other
grounds and/or are not persuasive on the precise issue presented here. In several of
the cases, the courts allowed plaintiffs to assert defamation claims based upon
29
2
Plaintiffs argue that MVP may assert a defamation claim arising out of the
Gordon Misquote even though, standing alone, it did not concern MVP. They insist
that WXYZ defamed MVP by following the Gordon Misquote with an “immediate
reference” to Troy’s severance payment and to the formation of MVP. (See Pls.’
allegations of misconduct against entities that shared essentially the same name as
the plaintiffs and conducted the same business as the plaintiffs. See, e.g., Golden
Bear Distributing Sys. Of Texas, Inc. v. Chase Revel, Inc., 708 F.2d 944, 948-49 (5th
Cir. 1983) (holding that where two corporations with the “same name” were
mentioned in an article that linked their marketing practices and then described fraud
committed by one of the corporations, the second corporation could bring a
defamation claim because a reasonable reader could infer that the article was
accusing that corporation of fraud); Patzer v. Liberty Communications, Inc., 650
P.2d 141 (Or. App. 1982) (holding that an individual who was the sole owner of a
construction company that bore his name could bring a defamation claim based upon
a statement concerning the company’s work “because [since] plaintiff’s surname is
part of the corporation name, it is possible that persons hearing the remarks would
understand them to refer to plaintiff.”) These cases do not apply here because Jones
and MVP do not share the same name, and, more importantly, because the Gordon
Misquote related to Jones’ alleged misconduct while acting for a different entity than
MVP in an entirely different line of work. The decision in Caudle v. Thomason, 942
F.Supp. 635 (D.D.C. 1996), is also inapposite. The plaintiff in that case was the
president and chief executive officer of a small company. He asserted a defamation
claim based upon statements alleging poor performance by the company while under
his direction. The court denied a motion to dismiss the claim. It held the plaintiff
could assert a defamation claim based upon the statements because he alleged that
he, personally, “made all business decisions which are the subject matter of” the
statements. Id. at 638. The court held that in light of that allegation, a reader could
infer that the plaintiff, personally, “was responsible for or involved with the
[company’s] alleged wrongdoings.” Id. Here, unlike in Caudle, there is no overlap
between the Gordon Misquote that Jones violated the law while running the PLA,
on one hand, and the operations of MVP, on the other hand.
30
Suppl. Br. at ECF #74 at Pg. ID 1803.) The “reference” to the Troy payment and to
MVP’s formation that followed the Gordon Misquote is as follows:
Dahl: “More mystery surrounds the $58,000 handed to
Chief Operating Officer Adam Troy. He got the money
after less than a year on the job. It was signed by his boss,
Odis Jones, and months later the two became partners in a
company called MVP Capital.
[Showed screenshot of MVP logo]
Dahl: Curiously, the company was registered with the
state one day before Jones signed Troy’s severance deal.”
(April 29, 2016, Broadcast, ECF #64-33 at 9:01; also available at
https://www.youtube.com/watch?v=mXi1Apvx44k.)
Plaintiffs insist that when
WYXZ placed these statements after the Gordon Misquote, WXYZ falsely implied
that (1) Gordon deemed the payment to Troy unlawful and (2) MVP “benefitted
from,” and was founded in connection with, the payment that Gordon found
unlawful. (See Pls.’ Suppl. Br. at ECF #74 at Pg. ID 1803, 1805.) The Court
disagrees. Neither of these implications reasonably arises from a full and fair
viewing of the report.
The segments of the report that immediately preceded the Gordon Misquote
made clear that Gordon was addressing the severance payments to Hughes O’Brien
and Harvey, not the payment to Troy or the formation of the MVP. Those preceding
segments provided as follows:
31
[Cut to interview with Mayor Duggan]
Dahl: Well what’s the purpose of the confidentiality
agreements? Is this shut up money?
Mayor Duggan: You’ll have to talk to them about that.
So that’s between the Board and the staff.
[Cut to interview with Gordon]
Dahl: But noted employment lawyer Deb Gordon, who
reviewed the documents for Action News, has a theory.
Gordon: It’s an exchange for giving up your rights to file
a lawsuit and to ask you – insist that you remain quiet.
Dahl: And indeed, documents obtained by the
investigators reveal Hughes O’Brien and Harvey
threatened whistleblower lawsuits, claiming they
witnessed illegal activities at the PLA. The suits were
drafted but never filed.
[Cut to interview with Dr. Thomas]
Dahl: Were you aware that Dana Harvey and Sandra
Hughes O’Brien were threatening to file a lawsuit against
the PLA, and following that threat, they then walked away
with some pretty hefty severance packages. Were they
paid to keep their mouths shut?
Dr. Thomas: That is again, a personnel matter. It doesn’t
matter, pick any name you want. Susie Q. I’m not going to
discuss it with you.
(April
29,
2016, Broadcast,
ECF
#64-33
at 7:58; also available at
https://www.youtube.com/watch?v=mXi1Apvx44k.) After these segments, WXYZ
cut immediately to the Gordon Misquote in which, again, she says: “[Jones] violated
32
the law, and other people got caught in the crossfire. Bring those people back. Get
rid of him. Turn it over to the AG, and don’t waste any taxpayer money.” (See id.
at 8:53; emphasis added.)
In this context, the Gordon Misquote cannot reasonably be understood as
referring to the payment to Troy or the founding of MVP. Hughes O’Brien and
Harvey – as the whistleblowers who reported Jones and then left the PLA – are the
only individuals to whom Gordon could be referring when she suggests that certain
former employees got “caught in the crossfire” of Jones’ alleged lawbreaking and
should be brought “back.” Indeed, it would be unreasonable to conclude that Gordon
was referring to Troy – identified in the report as Jones’ ally and business partner –
as someone who got caught in the “crossfire” of Jones’ alleged lawbreaking and who
should be brought “back.” In short, given the set-up of the Gordon Misquote, it is
clear that the misquote has nothing to do with Troy’s departure from the PLA and/or
the formation of MVP.
And WXYZ did not connect the Gordon Misquote to those issues by
“immediately follow[ing]” the misquote with a reference to them. Rather, WXYZ
drew a clear distinction between the potential lawbreaking addressed in the Gordon
Misquote, on one hand, and the severance payment to Troy and formation of MVP,
on the other hand. Immediately after the Gordon Misquote, Dahl said: “More
mystery surrounds the $58,000 handed to [PLA] Chief Operating Officer Adam
33
Troy.” (See id. at 9:01; emphasis added.) “More mystery” connotes “mystery”
above, beyond, and apart from the wrongdoing addressed in the preceding Gordon
Misquote.
Thus, even though WXYZ followed the Gordon Misquote with
references to Troy’s severance payment and the founding of MVP, WXYZ presented
the payment and founding as matters separate from the illegalities addressed by
Gordon. Since WXYZ did not imply that Gordon deemed the payment to Troy
unlawful or the founding of MVP tainted in any way, MVP may not pursue a claim
of defamation based upon such implications.
MVP has no viable claim for
defamation.
B
MVP likewise does not have a viable claim for tortious interference with
advantageous business relations arising out of the Gordon Misquote. That claim
fails as a matter of law because the defamation claim based upon the misquote fails.
See, e.g., Hazime, 2013 WL 4483485, at *14 (“It is well-established in Michigan law
that once a defamation claim falls, all related tortious interference claims fall with
it”) (citing Lakeshore Cmty. Hosp, 538 N.W.2d at 27)).
C
Finally, Scripps is entitled to summary judgment on MVP’s false light claim
based upon the Gordon Misquote. In order to prevail on that claim, MVP must prove
that, among other things, WXYZ acted with “knowledge of” or “in reckless
34
disregard as to the falsity of the publicized matter.” Early Detection Ctr., P.C. v.
New York Life Ins. Co., 403 N.W.2d 830, 835 (Mich. Ct. App. 1987) (citing
Sawabini v. Desenberg, 372 N.W.2d 559 (Mich. Ct. App. 1985)); Dadd v. Mount
Hope Church, 780 N.W.2d 763, 763 (Mich. 2010) (approving false light jury
instruction that “plaintiff must prove by a preponderance of the evidence that the
defendant must have known or acted in reckless disregard of the falsity of the
information and the false light in which the plaintiff would be perceived.”). For the
reasons explained above in Section III(A)(2), MVP has not presented sufficient
evidence to support a finding – under any standard – that WXYZ aired the Gordon
Misquote with knowledge or reckless disregard of its falsity.8 Thus, Scripps is
entitled to summary judgment on MVP’s false light claim.
8
In Section III(A)(2), the Court addressed whether Jones had shown that WXYZ
acted with actual malice. The analysis in that section applies here because in relevant
part the test for false light liability parallels the “actual malice” standard applied by
the Supreme Court in defamation actions. See Sullivan, 376 U.S. at 280 (1964)
(defining “actual malice” as making or publishing a statement “with knowledge that
it was false or with reckless disregard of whether it was false or not”). Moreover,
while the Court was applying the clear and convincing evidence standard in Section
III(A)(2), the Court’s analysis in that section reveals that that there is a complete
lack of evidence that WXYZ aired the Gordon Misquote with knowledge or reckless
disregard of its falsity. Thus, even though MVP’s burden – as a private actor – is to
prove WXYZ’s state of mind by a preponderance of the evidence, it cannot clear
that hurdle.
35
V
IT IS HEREBY ORDERED that WXYZ’s motion for summary judgment
(ECF #64) is GRANTED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 18, 2019
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on January 18, 2019, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
(810) 341-9764
36
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?