Short - Question on Malice

[jci63]

Michigan

Here's my question:

Circuit Judges statement:

Therefore, what's different today than it was before discovery had concluded was to indicate somebody has shot an albino deer is not to accuse them of a crime.

With that not being a part of the equation anymore, there is no per se slander or libel and it's down to actual malice

These statements would have me presume that I do not have to prove malice if the defendants statements falsely imputed the commission of a crime. (shooting an albino deer)

Going by the Judges ruling if someone falsely imputes the commission of a crime, malice is presumed!

 

[seniorjudge]

Michigan

Here's my question:

Circuit Judges statement:

Therefore, what's different today than it was before discovery had concluded was to indicate somebody has shot an albino deer is not to accuse them of a crime.

With that not being a part of the equation anymore, there is no per se slander or libel and it's down to actual malice

These statements would have me presume that I do not have to prove malice if the defendants statements falsely imputed the commission of a crime. (shooting an albino deer)

Going by the Judges ruling if someone falsely imputes the commission of a crime, malice is presumed!

Did you have a question?

 

[jci63]

Question:

If a persons words in Michigan, falsely impute the commission of a crime constitute defamation per se, and are actionable even in the absence of an ability to prove actual or special damages. As stated above by the Circuit Court Judge is malice presumed?

 

[seniorjudge]

I ain't gettin' sucked in by one of your ungodly posts:

https://forum.freeadvice.com/libel-slander-defamation-88/michigan-supreme-court-435986.html

 

[jci63]

Don't be scared***************************

Once this post is answered, it will end.

Hopefully not locked!

 

[gatorz]

Circuit Judges statement:
Therefore, what's different today than it was before discovery had concluded was to indicate somebody has shot an albino deer is not to accuse them of a crime.

With that not being a part of the equation anymore, there is no per se slander or libel and it's down to actual malice

As stated above by the Circuit Court Judge is malice presumed?

The plain wording of the judges statement indicates the judge ruled out slander/libel, and stated the only thing left on the table was whether or not there was actual malice.

The judge made no presumption of malice in this instance, other than the burden was on you to establish such. There should be caselaw in your state that articulates what elements are required to assert a claim of malice.

 

[jci63]

Perfect, Thank You

Happy Holidays

 

[seniorjudge]

The plain wording of the judges statement indicates the judge ruled out slander/libel, and stated the only thing left on the table was whether or not there was actual malice.

The judge made no presumption of malice in this instance, other than the burden was on you to establish such. There should be caselaw in your state that articulates what the elements of such a cause of action are.

I disagree.

 

[jci63]

seniorjudge : I disagree.

This should be good!

Why and on what basis?

Please explain**********************************************************************....

 

[quincy]

You are presuming wrong here, jci.

The judge merely ruled out the fact that to say someone killed an albino deer was defamation per se. He said that there was an "innocent" meaning to that statement. If there is an innocent meaning to a statement, and the innocent meaning is the meaning understood by the readers, then the statement is not defamation per se. If the statement is not defamation per se, then you need to demonstrate injury (which you did not do).

It is only when a statement is defamatory per se that injury does not have to be demonstrated.

Ruling that a statement is not defamation per se is a totally separate element from fault, which is the proof of negligence or actual malice on the part of the writer that you need for any libel action to be successful.

The judge was basically knocking off all of your elements one by one - no defamation per se, no fault, no case, summary disposition.

There are five elements that must be met in a defamation action - publication, identification, defamation, fault, and injury (damages). You were identified and the statement about you was published. But you failed to prove the statement about you was defamatory (at least on its face), and you failed to prove fault (actual malice) on the part of the letter writers, and you failed to prove injury (which needs to be demonstrated when a statement is not defamatory per se).

Had the statement been shown to be defamation per se, then no reputational injury would have needed to be shown - it would be presumed. But you still would have needed to show fault on the part of the letter writers. And, because you were ruled a limited public figure, you needed to show the higher standard of fault, actual malice. This would have been the case whether the statement was defamatory per se or not. If you had been ruled a private figure, you would have only needed to show negligence on the part of the letter writers.

So your defamation action failed at the trial court level and in the court of appeals in several ways - but there were errors made by the judges, I believe, that may have made a difference in the outcome.

In your original defamation action, you probably should have said that the statements made about you were defamatory, NOT defamatory per se, because the statements become defamatory only when combined with extrinsic facts. These facts were probably known to the writers and the readers of the statements (ie. that killing albino deer was illegal and that stating someone killed an albino deer was to accuse them of a crime), but it should have been for a jury to decide what meaning was the common meaning. And determining that you were a private figure and not a public figure should have been argued. And you probably should have demonstrated reputational injury (loss of income to your business as a result of the defamation, loss of esteem in the community, any other losses attributable to the statements made about you), even if this would not have been entirely necessary had the judge ruled the statements were defamation per se. It supports the fact that you were reputationally injured. A statement that is defamation per se only means that your case will not be dismissed solely on the basis that you did not prove injury, as injury will be presumed in this instance.

Since you went for the defamation per se, and since you did not argue successfully about the public figure designation, you wound up with a determination that the statements about you were not defamatory because they could have an innocent meaning, and you wound up with the need to show the statements were published with actual malice (which is almost impossible to show).

At any rate, to answer your question, fault is NOT presumed. That always needs to be shown, defamation per se or not. Only INJURY is presumed with defamation per se.

And you still need to meet all of the other elements of defamation for an action to be successful. One element missing and you lose.

By the way, are you the one having problems finding Joliff v. NLRB? Just google "Joliff v. NLRB" and you should come up with the case. It talks about actual malice in some detail, I believe. If you need an actual link, I can provide one - but googling should get you the case link.

I don't know why the other thread was locked . . . . ??

 

[jci63]

Due to conflicting answers, this post will continue with more information provided.

gatorz - The plain wording of the judges statement indicates the judge ruled out slander/libel, and stated the only thing left on the table was whether or not there was actual malice.

The judge made no presumption of malice in this instance, other than the burden was on you to establish such. There should be caselaw in your state that articulates what elements are required to assert a claim of malice.

Comment to gatorz: The judge makes the statement that previously he was under the opinion that shooting an albino deer was illegal and basicly due to DNR testimony they educated him to the beleive that to indicate somebody has shot an albino deer is not to accuse them of a crime. Therefore no more defamation per se.

Then he states "With that not being a part of the equation anymore, there is no per se slander or libel and it's down to actual malice" Going by the Judges ruling if someone falsely imputes the commission of a crime, malice is presumed! Only after the defamation per se is illiminated, does he go onto the question of actual malice.

seniorjudge -

I disagree.

Comment to seniorjudge: I would love to hear you input on this topic.

quincy

- You are presuming wrong here, jci.

The judge merely ruled out the fact that to say someone killed an albino deer was defamation per se. He said that there was an "innocent" meaning to that statement. If there is an innocent meaning to a statement, and the innocent meaning is the meaning understood by the readers, then the statement is not defamation per se. If the statement is not defamation per se, then you need to demonstrate injury (which you did not do).

Comment to quincy: I believe you have the Appeals Courts determination mixed up with the Circuit Courts findings. I have posted the complete Circuit Courts statements below.

Here is the Circuit Court Judges complete statement for granting summary disposition.

Court Transcript 11-20-06
Page 45, lines 1-25 / page 46, lines 1-18

THE COURT: Thank you.

Well, I mean the case involves some letters that were written to the Editor and published regarding the killing of this deer. The plaintiff, jci63, killed an unusual deer in the Alanson area.

He did become somewhat of a limited public figure by his own doing in taking the deer around and displaying it and generated quite a bit of interest in the local community, so he did place himself in the spotlight or limelight. By doing that he was a limited public figure to that degree.

Previously these motions for summary disposition when they were brought I was of the opinion that an albino deer was illegal to shoot and therefore looking at things in a light most favorable to the non-moving party, the letters could be interpreted as accusing the plaintiff of having committed a crime which is per se libel or slander.

The pleadings now before me really, I guess, have educated me to the extent that the DNR has indicated these are the individuals in charge of enforcement that an albino deer -- what is technically an albino deer can be a legal target and legal kill if it has a certain amount of that brown coloration or stain on it, and there is nothing to refute that that's the law. I mean, that is what the DNR testified to.

There is nothing on the opposite side that indicates that's wrong. That an albino deer regardless of amount of staining or quantity of staining or however it comes about is always an illegal kill. That's not the case on this record. It appears that it can be a legal kill. Therefore, what's different today than it was before discovery had concluded was to indicate somebody has shot an albino deer is not to accuse them of a crime.

As the DNR has testified to, there are instances where shooting an albino deer can be an illegal act. With that not being a part of the equation anymore, there is no per se slander or libel and it's down to actual malice and when I read these letters I don't find that to be the case together with the attachments to the pleadings on these motions for summary disposition, so I'm going to grant the motions for summary disposition.

 

[cyjeff]

oh goody.

I love doing homework.

 

[quincy]

You know, jci, I can tell you a hundred times, apparently, that the statements made in the letters were not defamation per se - and you are not going to believe me. So I will not even deal with that subject any more. If you wish to call the statements made about you defamation per se, hoping that a court will eventually agree with you and determine you do not need proof of reputational injury, so be it.

You have been given enough information in all of the threads and posts to answer the questions you have posed here yourself, I would think. And Quaere is apparently ready, willing and able to provide you with more (mostly accurate ) information on the other site.

I suggest you re-read the case law provided here already - it deals with each issue you have asked about. The case law shows what a court looks at when determining if actual malice has been demonstrated, how a court differentiates between a public figure and a private figure, and how a court determines what is defamation per se and what is not (and why, even if a statement falls into a per se category, it may not be considered a defamation per se statement).

You have been provided with the five elements that must be met in order to have a chance of succeeding in a defamation action. You have, to date, been able to demonstrate to a trial court and to a court of appeals that you were identified (one element) and that letters were published about you (another element). You have not shown the statements were defamatory (element three), that the statements injured your reputation (element four), or that the letters were published with any sort of negligence or malice (element five).

Jci, I KNOW you are working frantically to get your application in proper form with proper proofs, but the information really has been provided to you already - certainly at least once and probably three or four times.

There has been no conflicting answers here (or on the other site). Actual malice (or fault) needs to be proved. It is not presumed - ever. Whatever you think the judge said in the portion quoted above really does not matter. You need to prove fault. Period.

 

[jci63]

I will take your advise and re-read all the post regarding defamation per se and malice.

Thank you for you patience and advise.

 

[jci63]

MSA 24A.2911(1) any idea where I can find information regarding this?

I found it on page 3 on http://www.false-accusation.com/documents/Burden_and_Roby_Vs_Elias_Brothers.pdf

and I need a link to - Peisner v Detroit Free Press, 304 N.W>2d 814 (mich. App 1981)


A Michigan Court argued that although the malice must exist at the time at the time of the original libelous publication, the failure to retract was relevant and admissible on the question of that malice. - Peisner v Detroit Free Press, 304 N.W>2d 814 (mich. App 1981)

Brown v Fawcett Publishers Inc. The Florida Supreme Court held that the failure of the defendant to print a retraction according to Florida's retraction law would be "some evidence of actual malice on the part of the defendant." 196 So 2d 465, 473 (Fla. 1967)

Mahnke v Northwest Publishers Inc. - The Minnesota Supreme Court held that failure to retract was some, but not conclusive, evidence to show actual malice. 160 N.W.2d 1 (Minn. 1967)

Please explain this statement:

(b) Exemplary and punitive damages shall not be recovered in actions for libel unless the plaintiff, before instituting his or her action, gives notice to the defendant to publish a retraction and allows a reasonable time to do so, and proof of the publication or correction shall be admissible in evidence under a denial on the question of the good faith of the defendant,