Battaglieri v. Mackinac Center For Public Policy, No. 245862 (Mich. 3/18/2004)
| Decision Date | 18 March 2004 |
| Docket Number | No. 245862.,245862. |
| Parties | LUIGI BATTAGLIERI and MICHIGAN EDUCATION ASSOCIATION, Plaintiffs-Appellees, v. MACKINAC CENTER FOR PUBLIC POLICY, Defendant-Appellant. |
| Court | Michigan Supreme Court |
Appeal from Ingham Circuit Court, LC No. 02-000326-NZ.
Before: Sawyer, P.J., and Bandstra and Meter, JJ.
Defendant Mackinac Center for Public Policy (Mackinac) appeals by leave granted from the trial court's order denying its motion for summary disposition of plaintiffs' invasion of privacy claims. Plaintiffs alleged that a publication by Mackinac gave rise to both "appropriation" and "false light" claims of invasion of privacy. We conclude that plaintiffs' appropriation claim must fail because Mackinac's publication was protected by the First Amendment as its subject matter was a matter of legitimate public concern. We further conclude that the false light claim must fail because plaintiffs failed to produce sufficient evidence that Mackinac acted with actual malice. We reverse.
Plaintiff Luigi Battaglieri is president of the Michigan Education Association (MEA), a union representing many Michigan teachers. Defendant Mackinac is a self-described "think tank," a research and advocacy group that oftentimes advances public policy positions adverse to those of the MEA on education issues.
On September 27, 2001, Battaglieri held a press conference to announce the establishment of a competing MEA think tank, the Great Lakes Center for Education Practice and Research (Great Lakes). During the press conference, Battaglieri characterized the opening of Great Lakes as "the MEA [taking] on . . . Mackinac Center" and discussed an analysis undertaken by Great Lakes that criticized research conducted by Mackinac on various education policy questions.
At issue here is a statement made by Battaglieri:
And so, quite frankly, I admire what they've done over the past couple of years [,] entering into the field as they have, and pretty much being the sole provider of . . . research to the community . . . to the public, to our members, to legislators and so on.
Mackinac later used part of this remark in its "Freedom Fund" letter as follows:
By all measures . . . the Mackinac Center has had an outstanding year . . . and the people of Michigan are the beneficiaries. But you don't need to take my word for it.
This fall . . . Luigi Battaglieri, President of the Michigan Education Association, stated, "Frankly, I admire what the Mackinac Center has done." Mr. Battaglieri, whose union is generally at odds with the Mackinac Center, said this with respect to how Mackinac Center research has shaped education reform in Michigan and around the nation.
The Freedom Fund letter was mailed to some 20,000 addresses as part of Mackinac's annual year-end fundraising campaign.
As the above shows, Mackinac's publication did not misquote the portion of Battaglieri's comments that was included in the letter and plaintiffs do not so allege. Instead the complaint alleges that the Mackinac publication was an "invasion of privacy, misappropriation of another's name for commercial benefit" and that it was an "invasion of privacy—false light."
Following discovery, defendant moved for summary disposition of plaintiffs' claims pursuant to MCR 2.116(C)(8) and (10). The trial court denied both motions and defendant now appeals by leave granted.
An order granting summary disposition is reviewed de novo on appeal. Michigan Mut Ins Co v Dowell, 204 Mich App 81, 86; 514 NW2d 185 (1994). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests whether there is factual support for a claim. Id. at 85. The motion may be granted when, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence presented. Id. Giving the benefit of the doubt to the nonmoving party, the court must determine whether a record might be developed that would leave open an issue on which reasonable minds might differ. Id.
The Michigan Supreme Court has recognized the right of privacy and that tort claims can be brought for invasions of that right under the two theories advanced by plaintiffs here. As noted in Tobin v Civil Service Comm, 416 Mich 661, 672; 331 NW2d 184 (1982):
The common-law right of privacy is said to protect against four types of invasion of privacy.
1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness. [Citations and quotation marks omitted; Emphasis added.]
With respect to the fourth of these causes of action, Mackinac does not argue that its use of Battaglieri's name and statement in the Freedom Fund letter falls outside the purview of the appropriation tort. Instead, it contends that its use of Battaglieri's name and statement is protected under the First Amendment because the letter concerned a matter of legitimate public concern. We agree.
The invasion of privacy cause of action for appropriation is founded upon "the interest of the individual in the exclusive use of his own identity, in so far as it is represented by his name or likeness, and in so far as the use may be of benefit to him and or to others." 3 Restatement, Torts, 2d, § 652C, comment a. The right protected by the tort "is in the nature of a property right" which the tort recognizes as being violated whenever "the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit." Id. at comment a, comment b. Thus, in contrast to the other forms of invasion of privacy, there need be no allegation that a statement about a plaintiff was an intrusion upon seclusion or private matters or that it was in any way false. Instead, any unauthorized use of a plaintiff's name or likeness, however inoffensive in itself, is actionable if that use results in a benefit to another.
Perhaps because this theory of liability is so far reaching, courts1 that have recognized the appropriation tort have also uniformly held that the First Amendment bars appropriation liability for the use of a name or likeness in a publication that concerns matters that are newsworthy or of legitimate public concern. See, e.g., Dickerson & Assoc, LLC v Dittmar, 34 P3d 995, 1003 (Colo, 2001); Haskell v Stauffer Communications, Inc, 26 Kan App 2d 541, 545; 990 P2d 163, 166 (1999); Lane v Random House, Inc, 985 F Supp 141, 146 (D DC 1995). "If a communication is about a matter of public interest and there is a real relationship between the plaintiff and the subject matter of the publication, the matter is privileged." Haskell, supra. The privilege exists because dissemination of information regarding matters of public concern is necessary for the maintenance of an informed public. Pierson v News Group, Inc, 549 F Supp 635, 639 (SD Ga, 1982).
Whether the privilege applies depends on the character of the publication. Dickerson, supra. A defendant can be Tellado v Time-Life Books, Inc, 643 F Supp 904, 909-910 (D NJ 1986). The question whether a publication is sufficiently a matter of public interest to be protected by the privilege is ordinarily decided by the court as a question of law. Dickerson, supra; Tellado, supra at 910; see also Haskell, supra at 546.
Having reviewed the Freedom Fund letter at issue here, we conclude that the privilege applies to protect Mackinac from liability for appropriating plaintiff's name and likeness. Clearly, the letter conveyed a great deal of information about public policy questions facing Michigan in education and other areas of general interest. Its reference to plaintiff and his statement was made in the context of that, to illustrate how well Mackinac has been doing in advocating for the policies it supports. Further, plaintiff Battaglieri's action in calling the press conference itself illustrates that the educational issues addressed in the letter were of public interest, so much so that the founding of a think tank to advocate a competing viewpoint on those issues was newsworthy.
We acknowledge that the Freedom Fund letter also had a "pecuniary" or "commercial" purpose to the extent that it was also a clear request for charitable contributions to support Mackinac's work. Nonetheless, a publication that has "commercial undertones" may still be protected if it concerns a legitimate matter of public concern. See, e.g., Ault v Hustler Magazine, Inc, 860 F2d 877, 883 (CA 9, 1988).2 "The cases uniformly apply a newsworthiness privilege to matters . . . even though they are published to make a profit." Haskell, supra at 545. A different approach "would preclude the publication of much news and other matters of legitimate public concern." Dickerson, supra at 1004.
In sum, the Freedom Fund letter did, as defendants argue, have a fundraising purpose. Nonetheless, the publication also attempted to educate its readers on a number of public policy issues. It further tried to convince its readers that Mackinac had the right answers to those policy questions and was effectively advocating for appropriate solutions. Accordingly, we conclude that the publication falls squarely within the protection of the First Amendment for discourse on matters of public interest. The trial court erred in failing to grant defendant summary disposition on the...
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