Reighard v. ESPN, Inc.

Decision Date12 May 2022
Docket Number355053
PartiesJERRY REIGHARD, Plaintiff-Appellant, v. ESPN, INC., and DANIEL MURPHY, Defendants-Appellees.
CourtCourt of Appeal of Michigan — District of US

Isabella Circuit Court LC No. 2019-015498-CZ

Before: Boonstra, P.J., and M. J. Kelly and Swartzle, JJ.

Per Curiam

In this defamation action, plaintiff Jerry Reighard (Reighard) appeals by right the trial court's order granting defendants' motion for summary disposition under MCR 2.116(C)(10). We affirm in part, reverse in part, and remand for further proceedings.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

For 35 years, Reighard was the head women's gymnastics coach at Central Michigan University (CMU). On February 20, 2019, CMU announced that it had placed Reighard on paid administrative leave pending an investigation. No details regarding the investigation were disclosed in that announcement. However citing confirmation by CMU's athletic director, multiple news articles reported on that date that the investigation had "nothing to do with [former gymnastics physician] Larry Nassar's case or sexual misconduct of any kind" [1] or "Title IX"[2].

Defendant Daniel Murphy is a reporter for defendant ESPN, Inc. In that capacity, Murphy had previously reported on issues relating to gymnastics, including coverage of Nassar's sexual abuse of gymnasts and John Geddert's reported physical and mental abuse of gymnasts.[3] Indeed, Murphy's reporting in 2018 regarding the Nassar sexual abuse scandal has earned him and his ESPN colleagues multiple awards-including an IRE[4] Award for Sports Investigations and a Peabody Award.[5] Murphy also has co-authored a book entitled: Start by Believing: Larry Nassar's Crimes, the Institutions that Enabled Him, and the Brave Women Who Stopped a Monster. According to Murphy, the book refers to Geddert as one of the individuals who enabled Nassar.

On February 21, 2019, Murphy posted on Twitter[6] consecutive tweets about two public announcements concerning women's gymnastics coaches in Michigan. The first tweet referred to an announcement by the Michigan attorney general:

Michigan's attorney general announced today her office is taking over an investigation of John Geddert, the 2012 Olympic team head coach and close friend of Larry Nassar. Several gymnasts have publicly abused [sic] Geddert of physically and mentally harming them.

The second tweet-which was posted within a minute of the first tweet-addressed CMU's announcement concerning Reighard:

On the same day as the AG's announcement, Central Michigan said it was putting longtime gymnastics coach Jerry Reighard on leave amid an internal review. No details of the review were shared, but Reighard has a long personal and professional relationship with Geddert.

Reighard requested a retraction of the tweets. Murphy then searched for and discovered the earlier reporting in which CMU had confirmed that its investigation of Reighard had nothing to do with Nassar or Title IX. Murphy also then spoke directly with a CMU representative, who again confirmed to Murphy that the investigation had nothing to do with Nassar or Title IX, and that by "Title IX," he meant "sexual misconduct." Following that conversation, Murphy concluded that a retraction was unnecessary because there was nothing factually incorrect in the tweets. Instead, on March 11, 2021, he posted an additional tweet-which he testified was not meant as a retraction, but instead was intended to "add more information to [his] reporting"-on Twitter:

Central Michigan hopes to have its internal investigation of Jerry Reighard completed by the end of the semester. An athletic dept. spokesman confirmed today Reighard remains on paid leave and the investigation is not connected to the Larry Nassar scandal or sexual misconduct.

Reighard filed suit, alleging that Murphy's initial tweets constituted defamation per se and false light invasion of privacy.[7] After defendants answered the complaint, discovery ensued. Murphy testified at his deposition that, before publishing the tweets, confidential sources had informed him that Reighard had been placed on administrative leave, that Reighard, like Geddert, had a reputation for physically and mentally abusing gymnasts, and that Geddert and Reighard had a longstanding and friendly relationship. To verify the information, Murphy read CMU's announcement placing Reighard on administrative leave pending an investigation. He also reviewed a 2012 news article indicating that Reighard and Geddert had a professional relationship and that they were friendly with each other. He testified that it was important that he perform due diligence to confirm what he had been told, and that due diligence was important because "[i]t's my job." He also testified that his purpose was to establish a relationship between Reighard and Geddert.

Murphy indicated that, based on what he had learned, he believed there might be a connection between the attorney general's announcement regarding the investigation into Geddert and CMU's announcement regarding its investigation into Reighard. In his view, his two initial tweets properly raised that question. He indicated that at the time of his tweets, he had no information suggesting that Reighard was "connected to Larry Nassar and Geddert in any sexual abuse scandal" or that Reighard had been accused of any kind of sexual abuse "in a criminal sense." He acknowledged that, in his first tweet, he established a relationship between Nassar and Geddert, and in his second tweet, he established a relationship between Geddert and Reighard. But he denied that his tweets had linked the three men. Despite the reference to Nassar in the first tweet, he testified that he did not believe the thread raised any question as to whether the investigation into Reighard was related to Nassar or sexual-abuse allegations.

Murphy also testified, however, that he had not attempted to contact Reighard or CMU's athletic director before posting his tweets, because "[t]he information I needed was in a public press release." He also testified that he had not seen the earlier news reports confirming that there was no connection between the investigation of Reighard and sexual misconduct of any kind or the sexual-abuse scandal concerning Nassar. He testified that he did not know whether, had he known that information, he would have tweeted as he did. He indicated that he did not know whether it would have been important to include that information in his tweets, and that he could not say or control how anyone might read them.

Defendants moved for summary disposition under MCR 2.116(C)(10), arguing that the tweets did not assert any defamatory or materially false facts, that they did not constitute defamation by implication, and that Reighard-a limited-purpose public figure-could not demonstrate that Murphy had acted with actual malice. Reighard responded that the tweets contained materially false facts[8] and that they had implied that he was guilty of physical and sexual abuse like Geddert and Nassar. He also argued that he was not a limited-purpose public figure, but that even if he were, Murphy had acted with actual malice when posting the tweets.

Following a hearing, the trial court granted defendants' motion, concluding there were no genuine issues of material fact regarding Reighard's defamation and false light claims because the tweets were substantially true and, even if they were not, Reighard was a limited-purpose public figure and there was no evidence that Murphy had acted with actual malice.[9] Reighard moved for reconsideration, arguing that the trial court had failed to address his claim for defamation by implication. The trial court denied the motion. This appeal followed.

II. STANDARD OF REVIEW

Reighard argues that the trial court erred by granting defendants' motion for summary disposition. This Court reviews de novo a trial court's decision on a motion for summary disposition and whether the trial court properly applied the constitutional standard for defamation. Redmond v Heller, 332 Mich.App. 415, 438; 957 N.W.2d 357 (2020). Summary disposition under MCR 2.116(C)(10) is appropriate when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." "A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." Johnson v Vanderkooi, 502 Mich. 751, 761; 918 N.W.2d 785 (2018) (quotation marks, citation, and alteration omitted). The trial court must consider the "pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Latham v Barton Malow Co, 480 Mich. 105, 111; 746 N.W.2d 868 (2008).

III. ANALYSIS
A. DEFAMATION AND THE FIRST AMENDMENT

The law of defamation lies at a crossroads with that of the First Amendment. The First Amendment, of course, protects, in part, freedom of speech and freedom of the press. U.S. Const, Am I ("Congress shall make no law . . . abridging the freedom of speech, or of the press.").[10]

The law of defamation arises-as a matter of state common law-from the world of tort. It seeks to protect against injury to reputation caused by the publication of falsehoods:

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. [3 Restatement Torts, 2d, §559 at 156.]

Thus "[a] communication is defamatory if it tends to lower an individual's reputation in the community or deters third persons from associating or dealing with that individual." Ireland v Edwards, 230 Mich.App. 607, 614; 584 N.W.2d 632 (1998)....

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