Author: LegalEase Solutions
Whether a defamation claim against Steve Conn, the DFT President, is viable, and whether Mr. Conn would be liable in his personal capacity or in his official capacity in such a suit.
The cause of action for defamation depends upon four requirements: (1) a false and defamatory statement, (2) unprivileged publication, (3) fault amounting to negligence on the part of the publisher and (4) actionability of the statement. Further, the fault which plaintiff needs to prove varies if the plaintiff is a public official. The ED Michigan court has held that the principal of a school is a public official (Williams v Detroit Bd of Ed, 523 F Supp 2d 602, 607 (ED Mich 2007).
In the instant case, Steve Conn, the President of the Detroit Federation of Teachers, is alleged to have circulated a flyer calling for an emergency rally against Ms. Frencher in which he accuses her of incompetence and abuse. If in fact that statement is false and defamatory, it satisfies the first element of defamation. Ms. Frencher can overcome the second element of privilege only by showing that Mr. Conn made the statement with actual malice. The third element of fault amounting to negligence is the most important element to be proved in the instant case. Assuming Ms. Frencher to be a public official, the requirement of fault is to be proved with clear and convincing evidence. The defamation claim against the President is viable only if Ms. Frencher is able to satisfy the four elements.
The courts have held that every one actively engaged in the publication of a libel is liable for it.
“The elements of a cause of action for defamation are (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod).” Burden v Elias Bros Big Boy Restaurants, 240 Mich App 723, 726; 613 NW2d 378, 381 (2000) (citing Ireland v. Edwards, 230 Mich.App. 607, 614, 584 N.W.2d 632 (1998)).
- The following cases explain the elements of defamation in a concise manner.
- Defamatory statement
“A communication is defamatory if, under all the circumstances, it tends to so harm the reputation of an individual that it lowers the individual’s reputation in the community or deters others from associating or dealing with the individual.” Kefgen v Davidson, 241 Mich App 611, 617; 617 NW2d 351, 356 (2000).
- Unprivileged publication
“An absolutely privileged communication is one for which no remedy is provided for damages in a defamation action because of the occasion on which the communication is made.” Couch v Schultz, 193 Mich App 292, 294; 483 NW2d 684, 685 (1992). “A privileged occasion is an occasion where the public good requires that a person be freed from liability for the publication of a statement that would otherwise be defamatory.” Id.
“However, absolute privilege against a defamation action is limited to narrowly defined areas.” Oesterle v Wallace, 272 Mich App 260, 264; 725 NW2d 470, 474 (2006).
“A plaintiff may overcome a qualified privilege only by showing that the statement was made with actual malice, i.e., with knowledge of its falsity or reckless disregard of the truth.” Prysak v RL Polk Co, 193 Mich App 1, 15; 483 NW2d 629, 636 (1992).
- Fault amounting at least to negligence
“The fault which a plaintiff must prove varies with whether the allegedly defamed person, plaintiff, is a public official or figure or a private person.” Postill v Booth Newspapers, Inc, 118 Mich App 608, 618; 325 NW2d 511, 516 (1982) (citing New York Times Co. v. Sullivan, 376 U.S. 254 (1964)). (Internal quotations omitted).
- Actionability of the statement
“The word actionable, when used at common law in conjunction with a claim of defamation per se, means that the person defamed may bring a civil action and receive at least nominal damages in the absence of any proof of actual or special damages.” Burden, supra, 240 Mich App at 728-29; 613 NW2d 378, 382 (2000) (internal quotations omitted).
In the instant case, the flyer allegedly sent by Mr. Conn accuses Ms. Frencher of regularly yelling at and threatening teachers. The statement further accused Ms. Frencher of incompetence and abuse. If the alleged communication is capable of harming the reputation of Ms. Frencher and lowering her reputation in the community, then it satisfies the first requirement of defamation.
Mr. Conn allegedly circulated the flyer to the entire network of teachers, students’ parents, and other members of the community. It is doubtful whether Mr. Conn would be able to defend the publication as privileged. If the flyer constitutes unprivileged communication, then the second requirement of defamation is also met.
The third requirement of fault amounting to negligence is the most important element to be satisfied in the instant case. The standards required to prove defamation against a public official are different from a private individual. Ms. Frencher must be able to prove by clear and convincing evidence that the publication was made with actual malice or reckless disregard for the truth.
If Ms. Frencher is able to meet the above three elements of defamation, then she has an actionable claim against Mr. Conn.
- (1) Whether Ms. Frencher, who is the principal of the school, is a public official?
“A public figure claiming defamation must prove by clear and convincing evidence that the publication was a defamatory falsehood and that it was made with actual malice through knowledge of its falsity or through reckless disregard for the truth.” Kefgen, supra, 241 Mich App at 624; 617 NW2d 351, 359 (2000) (citing MCL 600.2911(6)).
The question whether the principal of a school is a public official was answered in the affirmative in Williams v Detroit Bd of Ed, 523 F Supp 2d 602, 607 (ED Mich 2007).
The Williams court observed that “[n]either the Sixth Circuit nor the Michigan courts have addressed whether a school principal is a public official for purposes of a defamation claim.” Id., 523 F Supp 2d at 608 (ED Mich 2007). The court then quoted Vermont Supreme:
Because [the principal] had responsibility for and control over the governmental function of education, his position as principal has such apparent importance that it justifies an independent public interest beyond the general public interest in the qualifications and performance of all government employees. … A contrary holding would stifle public debate about important local issues.
Id., 523 F Supp 2d at 610 (ED Mich 2007) (quoting Palmer v. Bennington Sch. Dist., Inc., 159 Vt. 31, 38, 615 A.2d 498, 503 (1992).
Following the Vermont Supreme Court, the ED Michigan court held “that principals are public officials to the extent their defamation claims involve communications relating to their conduct as principals.” Id.
Thus, “[t]o prevail in a defamation claim, a plaintiff who is considered to be a ‘public official’ or ‘public figure’ must prove that the defendant acted with ‘actual malice’ when publishing the alleged defamatory material.” Id., 523 F Supp 2d at 607-08 (ED Mich 2007) (quoting Sullivan, supra 376 U.S. at 279–280 (1964)).
- Burden of proof in the case of a public official
Michigan Court of Appeals has held that “[g]iven plaintiff’s status as a public figure, a mere inference is insufficient to prove defamation. Plaintiff is required to prove by clear and convincing evidence that the alleged defamatory communications were made with actual malice.” Kefgen, supra, 241 Mich App at 631; 617 NW2d 351, 363 (2000).
The standard of proof required for a public official to prove defamation was discussed in Sullivan, supra, 376 U.S. 254 (1964). The Postill court, discussing Sullivan observed:
The Sullivan Court determined that the First Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, does not permit a public official who has been defamed in his role as a public official to maintain an action for defamation unless he proves that the defendant acted with actual malice … This term has a definition with constitutional implications and varies from common-law malice … The proof of this element has to be presented with convincing clarity.
Postill, supra, 118 Mich App at 619; 325 NW2d 511, 516 (1982) (citing Sullivan, supra, 376 U.S. at 285-86) (internal quotations omitted).
Thus, “[t]he proofs necessary in a defamation action involving a public official, which we shall call constitutional defamation, therefore, are stricter than those necessary in a common-law action involving private citizens.” Postill, supra, 118 Mich App at 619. In the instant case, following Williams, Ms. Frencher is a public official. The facts leading to the alleged flyer involve her communications as the principal of the school. Further, being a public official, clear and convincing evidence is required to prove that Mr. Conn acted with actual malice and reckless disregard in sending out the flyer. Note that this difference affects the legal standard of burden of proof. The burden of proof in the case of Ms. Frencher is stricter than the proof necessary in an action involving private citizens.
- Actual malice and reckless disregard
“Actual malice is defined as knowledge that the published statement was false or as reckless disregard as to whether the statement was false or not.” Ireland, supra at 622, 584 N.W.2d 632 (quoting Grebner v. Runyon, 132 Mich.App. 327, 332-333, 347 N.W.2d 741 (1984)).
“‘Reckless disregard’ is not measured by whether a reasonably prudent man would have published or would have investigated before publishing, but by whether the publisher in fact entertained serious doubts concerning the truth of the statements published.” Id.
“However, a ‘purposeful avoidance of the truth’ is dissimilar from the mere ‘failure to investigate,’ and ‘a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity’ of a publication is sufficient to find reckless disregard.” Smith v Anonymous Joint Enter, 487 Mich 102, 117; 793 NW2d 533, 542 (2010) (quoting Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 692 (1989)).
In the instant case, Mr. Conn allegedly failed to inquire into the version of Ms. Frencher on the incidents that led to the publication of the flyer. On receiving the information from Ms. Jamison, Mr. Conn published the flyer and organized the rally. Ms. Frencher, in order to satisfy actual malice, needs to prove that Mr. Conn made ‘a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity’ as indicated by the Smith court.
- Liability of the defendant
“[U]nder Michigan law, the act of signing a libelous letter is enough to subject one to liability because everyone ‘actively connected with and engaged in the publication of a libel are responsible for the results.’” Moellers N Am, Inc v MSK Covertech, Inc, 912 F Supp 269, 272 (WD Mich 1995) (quoting Bowerman v. Detroit Free Press, 279 Mich. 480, 491, 272 N.W. 876 (1937)).
In the instant case, the flyer published by Mr. Conn contains allegedly defamatory statements. Being the publisher of the flyer, Mr. Conn is liable for defamation, irrespective of formal or individual capacity.
Ms. Frencher needs to satisfy that the statements in the flyer tend to lower her reputation in the community and that Mr. Conn has acted with actual malice and reckless disregard in publishing the flyer containing defamatory communication. However, being a public official, Ms. Frencher has to satisfy the element of malice of Mr. Conn by clear and convincing evidence, a standard that is higher than for a member of the general public.
If Ms. Frencher satisfies the requirements of defamation, Mr. Conn will be liable for the same on the ground that Michigan courts subject everyone actively connected with the publication of a libel with liability.