Garvelink v. Detroit News

• Decision Date: 06 September 1994
• Docket Number: Docket No. 141515
• Citation: 206 Mich.App. 604,522 N.W.2d 883
• Parties: , 22 Media L. Rep. 2503 Roger GARVELINK, Plaintiff-Appellee, v. The DETROIT NEWS and Chuck Moss, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 883

522 N.W.2d 883

206 Mich.App. 604, 22 Media L. Rep. 2503

Roger GARVELINK, Plaintiff-Appellee, v. The DETROIT NEWS and Chuck Moss, Defendants-Appellants.

Docket No. 141515.

Court of Appeals of Michigan.

Submitted Jan. 18, 1994, at Detroit.

Decided Sept. 6, 1994, at 9:25 a.m.

Released for Publication Oct. 31, 1994.

Cross Wrock, P.C. by Jack O. Kalmink and Dirk H. Beckwith, Detroit, for plaintiff.

Butzel Long by James E. Stewart, Leonard M. Niehoff, and Kevin F. O'Shea, Detroit, for defendants.

Before JANSEN, P.J., and McDONALD and HOCKING, ^* JJ.

JANSEN, Presiding Judge.

Defendants appeal by leave granted from a May 31, 1991, order of the Oakland Circuit Court denying their motion for summary disposition pursuant to MCR 2.116(C)(8). We reverse.

Plaintiff Roger Garvelink was the superintendent of the Birmingham school system from March 1978 through June 1990. In March 1989, the Birmingham voters were presented with a millage proposal for a $65 million bond increase. The proposal produced some controversy, apparently stemming from a redistricting decision the school board made a year earlier, and the millage was defeated. Because of the millage defeat, plaintiff and others made a number of budget cuts amounting to $7 million. Plaintiff then sought to make further cuts of $5 million from the following year's budget.

On June 3, 1989, The Detroit News printed an editorial column, which appeared on the editorial page, by Chuck Moss under the heading, " 'Punishment Cuts' Work Like a Charm." In the column, Moss described an "interview" with "local Supt. Roger Gravelhead." In the interview, Dr. Gravelhead boasted about using the budget cuts to punish voters for rejecting the millage proposal and stated that educational professionals knew more about what students needed than the parents did. ¹

Plaintiff filed his complaint on June 1, 1990, alleging defamation. Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) on April 10, 1991, but the trial court denied the motion. This Court then granted defendants' application for leave to appeal on October 22, 1991.

On appeal, the trial court's grant or denial of summary disposition is reviewed de novo, because this Court must review the record to determine whether the moving party is entitled to judgment as a matter of law. Adkins v. Thomas Solvent Co., 440 Mich. 293, 302, 487 N.W.2d 715 (1992). MCR 2.116(C)(8) permits summary disposition in favor of a defendant when the plaintiff has failed to state a claim upon which relief can be granted. A motion pursuant to MCR 2.116(C)(8), therefore, determines whether the plaintiff's pleadings allege a prima facie case. Radtke v. Everett, 442 Mich. 368, 373, 501 N.W.2d 155 (1993). A court may grant a motionpursuant to MCR 2.116(C)(8) only where the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Wade v. Dep't of Corrections, 439 Mich. 158, 163, 483 N.W.2d 26 (1992).

Our review is also governed by the Supreme Court's pronouncements in defamation cases implicating the First Amendment. Courts must make an independent examination of the record to assure that the judgment does not constitute a forbidden intrusion on the field of free expression. New YorkTimesCo.v.Sullivan,376U.S.254,285,84S.Ct.710,728-29,11L.Ed.2d686 (1964); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958-59, 80 L.Ed.2d 502 (1984); Locricchio v. Evening News Ass'n, 438 Mich. 84, 110, 476 N.W.2d 112 (1991). Where a public official or public figure is involved in a defamation case, the public official or public figure must prove that the publication was a defamatory falsehood and that the statement was made with actual malice, that is, that it was made with knowledge that it was false or with reckless disregard of whether it was false or not. Sullivan, supra, 376 U.S. at 279-280, 84 S.Ct. at 725-26; Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In the instant case, it is undisputed that plaintiff is a public official.

For both public officials and public figures, a showing of actual malice is subject to a clear and convincing standard of proof. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). The question whether the evidence in a defamation case is sufficient to support a finding of actual malice is a question of law. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S.Ct. 2678, 2694-95, 105 L.Ed.2d 562 (1989).

Keeping these principles in mind, the Supreme Court has further recognized constitutional limits on the type of speech that may be the subject of defamation actions. In cases where the statements cannot reasonably be interpreted as stating actual facts about the individual, those statements are protected under the First Amendment. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 2706-07, 111 L.Ed.2d 1 (1990); Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970). Defendants argue that there was no defamatory falsehood because the column could not reasonably be interpreted as stating actual facts about plaintiff and, therefore, the issue of actual malice need not be considered.

We are required to conduct an independent review of the column and pleadings to ensure against the forbidden intrusion on the field of free expression and to examine the statements and the circumstances under which they were made to determine whether they are of a character that the principles of the First Amendment protect. See Sullivan, supra, 376 U.S. at 285, 84 S.Ct. at 728-29; Locricchio, supra, 438 Mich. at 110, 476 N.W.2d 112. Therefore, it is the function of this Court to review the column to determine whether it could reasonably be understood as describing actual facts about plaintiff. Although plaintiff argues that there is a material factual dispute for the jury to determine, that is the appropriate standard for a motion for summary disposition pursuant to MCR 2.116(C)(10), but this case is before us by way of a motion pursuant to MCR 2.116(C)(8). Furthermore, where there are First Amendment implications such as whether a satirical column in a newspaper is capable of bearing a defamatory falsehood by implying the assertion of undisclosed facts, this is a question of law and the court must consider whether the alleged defamatory expression could reasonably be understood as describing actual facts about the plaintiff. See Hoppe v. Hearst Corp., 53 Wash.App. 668, 770 P.2d 203 (1989).

After reviewing the column and the pleadings, we hold as a matter of law that the column cannot reasonably be interpreted as stating actual facts about plaintiff and it is, therefore, protected speech. The tenor of the column is satirical. The Random House College Dictionary (1988) defines satire as "the use of ridicule in exposing, denouncing, or deriding vice, folly, etc." and "a literary composition, in verse or prose, in which human folly, vice, etc. are held up to scorn, derision, or ridicule." Similarly, a lampoon is a form of satire, "often political or personal, characterized by the malice or virulence of its attack." Id. As the Supreme Court noted in Falwell, supra, 485 U.S. at 54, 108 S.Ct. at 881.

... The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events--an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.

Thus, in this area of parodies, political cartoons, and satirical columns, especially involving public officials, while the tenor of the column may be caustic or even vicious, the Supreme Court has clearly recognized that "[t]he sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those who are 'intimately involved in the resolution of important public questions....' " Falwell, supra at 51, 108 S.Ct. at 879.

The column appeared on the editorial page, uses an obviously fictitious name (Gravelhead), and presents a mock interview. No reasonable reader would believe that a school superintendent would have actually made the comments in the column. The column's tone is humorous and the writing style suggests that the column did not concern actual events. The column was written after controversial budget cuts had been made and after a proposed school millage increase recently had been defeated. Thus, in the context of a controversial school millage proposal, school budget cuts, and because the column appeared on the editorial page, a reader is prepared for exaggerations, mischaracterizations, and biases of the writer. Hoppe, supra.

Also of importance, the column appeared on the editorial page, where a reader expects to find the opinions and biases of the individual writers. The appearance on an editorial page clearly indicates to any reader that the opinions of the writer will be reflected in the column as opposed to only facts. This column did not appear in the general news articles section and is therefore easily distinguishable as opinion-writing because of its appearance on the editorial page. We emphasize that the appearance of the column on the editorial page, where a reader expects to find the opinions and biases of the writer, is important and may be considered even though this case is before us by way of a motion for summary disposition pursuant to MCR 2.116(C)(8). In Moldea v. New York Times Co., 306 U.S.App.D.C. 1, 22 F.3d 310 (C.A.D.C.1994), the court upheld a grant of summary judgment in favor of the New...