Howe v. Detroit Free Press, Inc.

• Decision Date: 27 September 1996
• Docket Number: No. 185550,185550
• Citation: 555 N.W.2d 738,219 Mich.App. 150
• Parties: , 25 Media L. Rep. 1602 Virgil M. HOWE, Plaintiff-Appellant/Cross-Appellee, v. DETROIT FREE PRESS, INC., Defendant-Appellee/Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 738

555 N.W.2d 738

219 Mich.App. 150, 25 Media L. Rep. 1602

Virgil M. HOWE, Plaintiff-Appellant/Cross-Appellee, v. DETROIT FREE PRESS, INC., Defendant-Appellee/Cross-Appellant.

No. 185550.

Court of Appeals of Michigan.

Submitted Sept. 4, 1996 at Detroit.

Decided Sept. 27, 1996, at 9:15 a.m.

Released for Publication Nov. 22, 1996.

Lopatin, Miller, Freedman, Bluestone, Herskovic & Heilmann by Richard E. Shaw, Detroit, for plaintiff-appellant/cross-appellee.

Honigman Miller Schwartz and Cohn by Herschel P. Fink, Detroit, for defendant-appellee/cross-appellant.

Before CAVANAGH, P.J., and MURPHY and C.W. SIMON, Jr., ^* JJ.

MURPHY, Judge.

Plaintiff appeals as of right the trial court's order of dismissal and entry of judgment in favor of defendant. We affirm.

This defamation action is based upon a newspaper article originally published in the San Jose (California) Mercury News on July 20, 1986, regarding major league baseball pitcher Steve Howe, son of plaintiff Virgil Howe, and his struggles with cocaine and its effect on his baseball career. In the article, reporter Mike Antonucci wrote that Steve Howe "was the eldest of five children in a family that was a prisoner of his father's drinking problems." The article also credited Steve Howe as stating that his mother was forced to serve her children powdered milk "because his father was drinking up so many paychecks it was difficult coming up with a combined house and car payment of $84 a month." Defendant obtained the story through KTN News Wire, an international news wire service, and reprinted the article on July 23, 1986.

Plaintiff filed the instant action on February 26, 1987. Defendant requested that the trial court rule as a matter of law that plaintiff was a public figure. If plaintiff was a public figure, he would have to prove defendant acted with actual malice. See New Franklin Enterprises v. Sabo, 192 Mich.App. 219, 222, 480 N.W.2d 326 (1991). The trial court ruled that plaintiff was a limited-purpose public figure. Thereafter, plaintiff, acknowledging that he could not prove actual malice, stipulated an order of dismissal. In a previous motion for summary disposition, defendant asserted the "wire-service defense," which we will discuss, and argued that, as a matter of law, it could not have been negligent. In that previous motion, the trial court ruled that although the wire-service defense should be recognized, there were factual questions in this case that precluded granting summary disposition on that basis.

On appeal, plaintiff challenges the trial court's ruling that he was a limited-purpose public figure. Defendant alleges that, even if plaintiff was not a limited-purpose public figure, the wire-service defense precludes liability as a matter of law. We agree with defendant and hold that even assuming, without deciding, that plaintiff is not a limited-purpose public figure, but a private figure, the wire-service defense precludes liability in this case. Therefore, because the wire-service defense issue is dispositive, we need not address plaintiff's claim.

In a libel suit against a media defendant, a private-figure plaintiff must show that the challenged statement was false and that the media defendant was negligent in reporting it. Howe v. Detroit Free Press, 440 Mich. 203, 226-227, 487 N.W.2d 374 (1992). ¹ In this case, plaintiff argues that defendant was negligent in failing to conduct an independent investigation to verify the assertions made in the article. Defendant argues that it could not have been negligent, as a matter of law, by simply republishing an article obtained by a reputable wire service. Defendant's argument is based on the wire-service defense, which Michigan courts have yet to address. We hereby recognize the defense.

The wire-service defense originated in the case of Layne v. Tribune Co., 108 Fla. 177, 146 So. 234 (1933). In that case, the Supreme Court of Florida held:

The mere reiteration in a daily newspaper, of an actually false, but apparently authentic news dispatch, received by a newspaper publisher from a generally recognized reliable source of daily news, such as some reputable news service agency engaged in collecting and reporting the news, cannot through publication alone be deemed per se to amount to an actionable libel by indorsement, in the absence of some showing from the nature of the article published, or otherwise, that the publisher must have acted in a negligent, reckless careless manner in reproducing it to another's injury. [Id. at 186, 146 So. 234.]

The defense is available where a local news organization reproduces, without substantial change or knowledge of falsity, an apparently accurate wire release by a reputable news-gathering agency. Winn v. Associated Press, 903 F.Supp. 575, 579 (S.D.N.Y.1995). There must be nothing on the face of the wire release that would put the local news organization on notice that the story may be inaccurate. Brown v. Courier Herald Publishing Co., Inc., 700 F.Supp. 534, 537 (S.D.Ga.1988).

We note that the wire-service defense is not so much a defense as it is a definition of a local news organization's duty: ²

[T]he wire service defense merely refines the definition of the duty of a local news media organization to avoid publishing false material. Stated simply, when a local media organization receives a wire service release, it has a duty to read the release to ensure that the face of the story itself does not contain any inconsistencies. The local media organization also has a duty to refrain from publishing the news story if the news organization knows the story is false or if the release itself contains unexplained inconsistencies. The local media organization does not have a duty, however, to independently verify the accuracy of the wire service release. [Id.]

The rationale behind the defense is that no local news organization could assume the burden of verifying every news item reported to it by established news-gathering agencies and continue to satisfy the demands of modern society for up-to-the-minute global information. Layne, supra at 188, 146 So. 234. Requiring local news organizations to independently verify the accuracy of every wire-service release it desires to reproduce would force smaller publishers to confine themselves to stories about purely local events and would make it difficult for smaller, local news organizations to compete with publishers who could afford to either verify every story or assume the risk of litigation. Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 39, 478 N.E.2d 721 (1985).

Such a defense is consistent with the custom and practice of the newspaper industry, in which reliance on the accuracy of wire-service articles is commonplace. Id. We also consider the defense to be consistent with Michigan law. A duty, in negligence cases, may be defined as " 'an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.' " Antcliff v. State Employees Credit Union, 414 Mich. 624, 630-631, 327 N.W.2d 814 (1982), quoting Prosser, Torts (4th ed), § 53, p 324. The standard of conduct to which an actor must conform to avoid being negligent is that of a reasonable man under like circumstances. Antcliff, supra at 631, 327 N.W.2d 814. "This is the so-called standard of care against which a defendant's conduct is compared."...