Rouch v. Enquirer & News of Battle Creek

• Decision Date: 09 November 1984
• Docket Number: Docket No. 66177
• Citation: 137 Mich.App. 39,357 N.W.2d 794
• Parties: David J. ROUCH, Plaintiff-Appellant, v. ENQUIRER & NEWS OF BATTLE CREEK, Michigan, a Delaware corporation, Defendant-Appellee. 137 Mich.App. 39, 357 N.W.2d 794, 11 Media L. Rep. 1758
• Court: Court of Appeal of Michigan — District of US

Page 794

357 N.W.2d 794

David J. ROUCH, Plaintiff-Appellant, v. ENQUIRER & NEWS OF BATTLE CREEK, Michigan, a Delaware corporation, Defendant-Appellee.

Docket No. 66177.

137 Mich.App. 39, 357 N.W.2d 794, 11 Media L. Rep. 1758

Court of Appeals of Michigan.

Submitted June 7, 1983.

Decided Sept. 4, 1984.

Released for Publication Nov. 9, 1984.

[137 MICHAPP 41] John M. Jereck, Battle Creek, for plaintiff-appellant.

Sullivan, Hamilton, Ryan & Schultz by James M. Sullivan, Battle Creek, for defendant-appellee.

Before MAHER, P.J., and GRIBBS and SANBORN, ^* JJ.

SANBORN, Judge.

On June 14, 1982, the trial court granted summary judgment for defendant on the basis that plaintiff could not prove that defendant acted with actual malice in the publication of a defamatory news item. Plaintiff appeals as of right.

On December 22, 1979, defendant printed the following story under the headline, "Police arrest suspect in baby-sitter assault":

[137 MICHAPP 42] "A 43-year-old man has been arrested and charged with the sexual assault of a 17-year-old women [sic ] who was baby-sitting with his children at his ex-wife's house on North Finlay Avenue in Bedford Township.

"The suspect has been identified by Bedford Township police as David J. Rouch [plaintiff in the present case] of 631 Golden Ave. He is free on a $10,000 personal recognizance interim bond pending his arraignment in District 10 Court next week. Rouch is charged with first-degree criminal sexual conduct.

"Police said Rouch allegedly entered the house about 4 a.m. Friday and attacked the young woman. He is said to have used a knife to cut the victim's clothes off, police said.

"The victim later called a relative, who took her to Community Hospital and then called police. The suspect was identified by his children, according to police.

"Rouch was arrested at his home by Emmett Township police, who were informed where he lived by Bedford Township investigators.

"The charge against Rouch was authorized Friday by the Calhoun County Prosecutor's Office."

Defendant received the information printed in this story from the Bedford Township Police Department. ¹

The parties agree that the underlying facts behind[137 MICHAPP 43] the story are substantially false: plaintiff did not commit the rape. Although plaintiff was arrested for the crime, he was never charged. ² Instead, he was released after the Calhoun County Prosecutor's office refused to issue an arrest warrant. A few months later, somebody else was officially charged with the crime. Defendant printed a retraction on December 3, 1980--one day after plaintiff instituted this lawsuit.

Defendant asserted in the trial court, and now on appeal, that Michigan law extends to media defendants a qualified privilege to report newsworthy stories concerning private figure plaintiffs and, as such, that plaintiff here was obligated to prove actual malice to prevail. The trial court rejected the notion that Michigan law embodies a qualified privilege for newsworthy accounts, but held that Michigan does recognize a qualified privilege to report on matters of general public interest. The trial court agreed with defendant that, because the report of an arrest was of general public interest, defendant was entitled to a qualified privilege and, because plaintiff could not prove actual malice, granted defendant's motion for summary judgment.

In this appeal, we must address whether the trial court correctly determined that defendant enjoyed a qualified privilege in reporting that [137 MICHAPP 44] plaintiff had been arrested and charged with a sexual assault and the alleged circumstances of the assault, his identification, and his apprehension. Since defendant's brief implies that a qualified privilege to report such matters about a private figure plaintiff is constitutionally required, we turn to a consideration of the constitutional limitations on a state's power to define its own defamation laws.

As recently as 1957, the United States Supreme Court flatly concluded "that libelous utterances are not within the area of constitutionally protected speech". Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957). However in the next decade, the constitutional revolution in defamation law wrought profound changes to the common law of nearly every state. In New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686 (1964), the Supreme Court held that the First Amendment prohibits a public official from recovering damages for defamation unless he can prove that the defamatory statements were made with "actual malice", which was defined as knowledge that the statement was false or reckless disregard of whether it was false. ³

The New York Times decision was subsequently extended by the United States Supreme Court in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), to include "public figures" within the group of defamation plaintiffs who were required to prove "actual malice" as this term is used in New York Times. Thereafter, in [137 MICHAPP 45] the plurality opinion of Justice Brennan in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), three members of the Court said that if the communication involves matters of public or general concern, even a private figure plaintiff is required to prove New York Times actual malice.

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), however, the Court rejected the views of Justice Brennan as expressed in Rosenbloom. Instead, the Court left it to the states to define the scope of their defamation laws where private figure plaintiffs are involved, subject to only two constitutional limitations: ⁴ (1) that liability may not be imposed against media defendants without fault and (2) that punitive damages may not be imposed against media defendants unless New York Times actual malice is proven. ⁵ Clearly, then, contrary to the apparent position of [137 MICHAPP 46] defendant, there is no federal constitutional privilege to report on matters of public interest. ⁶

Defendant next argues that even if no federal constitutional privilege to report on matters of public interest exists, Michigan has nevertheless provided a common-law qualified privilege which would protect defendant from liability for negligence in printing its story. If a news story is qualifiedly privileged, the plaintiff must show malice to recover for libel. Edwards v. Chandler, 14 Mich. 471, 90 Am.Dec. 249 (1866); Tumbarella v. The Kroger Co., 85 Mich.App. 482, 271 N.W.2d 284 (1978), lv. den. 406 Mich. 939 (1979). Whether or not a qualified privilege exists is a legal question. [137 MICHAPP 47] Cochrane v. Wittbold, 359 Mich. 402, 407, 102 N.W.2d 459 (1960); Tocco v. Piersante, 69 Mich.App. 616, 245 N.W.2d 356 (1976), lv. den. 399 Mich. 882 (1977). Publication of a qualifiedly privileged story is not actionable if honestly believed to be true and published in good faith. Lawrence v. Fox, 357 Mich. 134, 142, 97 N.W.2d 719 (1959). This privilege is not limited to public individuals. Peisner v. Detroit Free Press, Inc., 82 Mich.App. 153, 266 N.W.2d 693 (1978).

In this case, defendant argues that its story is protected by two separate qualified privileges. The first is the qualified privilege for accurately and fairly reporting judicial proceedings as provided by M.C.L. Sec. 600.2911(3); M.S.A. Sec. 27A.2911(3). The second is the privilege in Michigan to report matters in the public interest, as set forth in Lawrence v. Fox, supra. We will address each argument in turn.

M.C.L. Sec. 600.2911(3); M.S.A. Sec. 27A.2911(3) states:

"No damages shall be awarded in any libel action brought against a reporter, editor, publisher, or proprietor of a newspaper for the publication in it of a fair and true report of any public and official proceeding, or for any heading of the report which is a fair and true headnote of the article published. This privilege shall not apply to a libel which is contained in any matter added by any person concerned in the publication or contained in the report of anything said or done at the time and place of the public and official proceeding which was not a part of the public and official proceeding."

We do not agree with defendant that this privilege applies in the present case. Because "a warrant [was] never issued, there [were] no official proceedings that [could have been] reported and this statute is not applicable". McCracken v. Evening News Ass'n, 3 Mich.App. 32, 39, 141 N.W.2d 694 [137 MICHAPP 48] (1966). ⁷ Although the privilege to accurately and fairly report judicial proceedings does permit a newspaper to report that a particular individual has been arrested for a particular crime, Piracci v. The Hearst Corp., 263 F.Supp. 511 (D.Md., 1966), as long as the matter has not advanced beyond the arrest, the privilege does not cover reporting the particular details of the alleged crime. As stated in 3 Restatement Torts, 2d, Sec. 611:

"The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported."

Comment h to this section provides:

"An arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege covered by this Section. On the other hand statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of [137 MICHAPP 49] the judicial proceeding or of the arrest itself and are not privileged under this Section." ⁸

Therefore, if defendant is to be protected...