WEAVER, J.
In this case, we decide whether plaintiff, Derith Smith, presented clear and convincing evidence at trial to support the jury's finding that defendants John Stanek, Donald Barrows, and Noel Flohe defamed plaintiff by mass-mailing copies of a personnel report containing false information about her. After conducting an independent review of the record, we conclude there exists clear and convincing evidence that Stanek and Barrows acted with "actual malice," but that plaintiff has failed to meet her evidentiary burden as to Flohe.
Accordingly, we affirm the result reached by the Court of Appeals as to Flohe, but reverse the result it reached as to Stanek and Barrows. We remand this matter to the Court of Appeals for consideration of defendants' other issues, including whether the handwritten caption on the mailed report constitutes a non-defamatory statement of opinion when considered in its context within the report as a whole, whether the caption is provable as false, and whether defendants are entitled to the protection afforded by Michigan's statutory fair reporting privilege.
This defamation action arises from the mass mailing of a personnel report written about plaintiff, Derith Smith. Plaintiff worked for the village of Suttons Bay ("the Village") in Leelanau County. Plaintiff's supervisor, Suttons Bay Village Manager Charles Stewart, composed the personnel report ("the Stewart report"), which includes allegations that plaintiff was an independent contractor but had been compensating
Plaintiff filed a claim for unemployment compensation benefits. The Village opposed plaintiff's claim, arguing that plaintiff was not an employee but rather an independent contractor and, therefore, not entitled to benefits. A subsequent investigation and review revealed that various allegations against plaintiff in the report were false. Accordingly, the Village withdrew its opposition to plaintiff's claim.
Plaintiff believed that she was wrongfully terminated, but did not institute a lawsuit against the Village because she had secured employment as the Elmwood Township supervisor in the November 2004 election. On May 17, 2005, while serving as Elmwood Township Supervisor, plaintiff received an anonymous mailing. The mailing included a copy of the Stewart report, with an additional handwritten caption stating, "Attention: Suttons Bay Villagers Alledged [sic] Misuse of Village Taxpayer Funds?" and "Derrick [sic] Smith." Plaintiff later learned that copies of the Stewart report, including the caption, had been mailed to hundreds of citizens in Leelanau County.
At the time of the mass mailing, defendants Stanek, Barrows, and Flohe were involved in an informal group of concerned Leelanau County citizens. The group met fairly regularly to discuss various issues, including local politics and elections. It is undisputed that Stanek, Barrows, and Flohe were displeased with plaintiff's performance as township supervisor and were responsible for the mass mailing of the Stewart report.
The record establishes that Barrows contacted Suttons Bay Village Treasurer Jerry VanHuystee on several occasions in 2004, asking whether VanHuystee had any information about plaintiff. VanHuystee testified that he told Barrows that he did not know of anything illegal done by plaintiff. After several requests for information from Barrows, VanHuystee retrieved the Stewart report from the Village's records and made a copy of it.
Barrows testified that he picked up the envelope containing the Stewart report and brought a copy of the report to a citizens' meeting held at Stanek's office during the first week of May 2005. Stanek, Barrows, and Flohe were all present at this meeting, although the trial testimony indicated that Flohe arrived late. At this particular meeting, copies of the Stewart
Preston and Stewart testified that Preston had contacted Stewart and informed him of the concerned citizens' intent to mail the Stewart report. Stewart confirmed with Preston that plaintiff had done nothing illegal and that the report should not be distributed. Preston and Stanek both testified that Preston relayed this information to Stanek; however, the trial testimony is somewhat conflicting with regard to exactly when he did so.
Barrows testified that he nonetheless took a copy of the Stewart report to a copy shop and paid to have approximately 500 copies made. Approximately 420 of those copies were placed into envelopes and sealed by the store's staff. The envelopes were placed in boxes along with the remaining 80 copies of the Stewart report. Barrows testified that on May 16, 2005, he took the boxes to Stanek's office where he, Stanek, and Flohe worked together to stamp and label the stuffed envelopes. The envelopes were then taken to the post office and mailed to citizens in Leelanau County. Citizens within the county began receiving the mailings by May 17, 2005, while the remaining copies of the Stewart report were displayed at citizen and township meetings.
Plaintiff subsequently brought a defamation claim against Stanek, Barrows, and Flohe.
A jury trial was held, and a verdict was reached in favor of plaintiff. The jury awarded plaintiff monetary damages and a public apology in the form of a legal notice. The Court of Appeals reversed and remanded for entry of a judgment of no cause of action, concluding that defamation could not be established as a matter of law because defendants' failure to investigate the contents of the report did not constitute the "reckless disregard" required for a finding of actual malice,
This Court granted plaintiff's application for leave to appeal to address whether the Court of Appeals erred in determining that plaintiff did not present sufficient evidence to support a finding of actual malice.
The inquiry into whether evidence in a defamation case is sufficient to support a finding of actual malice presents a question of law.
The importance of protecting First Amendment liberties through an application of the "independent review" standard is well-established.
Likewise, an appellate court should not conduct an independent review of credibility determinations, disregard findings of fact, or create new findings of fact.
"`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.'"
In the seminal case of New York Times Co v. Sullivan, the United States Supreme Court recognized the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
Pursuant to this statute, a plaintiff who is a public official or public figure bears the burden of sustaining a defamation claim by clear and convincing proof that the alleged defamatory statement was made with actual malice, specifically, either knowledge that the statement was false or with reckless disregard of whether or not the statement was false. Clear and convincing proof is that which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the precise facts in issue.
After New York Times, the United States Supreme Court clarified the scope of the actual malice standard. In St. Amant v. Thompson, the Court explained that "actual malice" is a subjective concept.
The manner in which a plaintiff may establish "reckless disregard for the truth" for purposes of the actual malice standard cannot necessarily be expressed in a singular definition.
Finally, it is well settled that the failure to investigate the accuracy of a communication before publishing it, even when a reasonably prudent person may have done so, is not sufficient to establish that the defendant acted with reckless disregard for the truth.
Plaintiff first relies on evidence that, during a meeting at which all three defendants were present, Preston expressed hesitation about mailing the Stewart report and stated that he would speak to Stewart to verify the accuracy of the report's contents. Specifically, Preston testified that in response to a discussion about mailing the Stewart report, he informed others that it "probably wouldn't be a good idea" because "no one had any real knowledge if in fact [the] document was true or not."
Preston testified that his conversation with Stanek occurred sometime in the spring, and that while he cannot be certain of the month, he did not believe it was in June. In contrast, Stanek testified that he recalled that the conversation took place on June 13. In any event, Stanek did not deny that Preston informed him of Stewart's confirmation that plaintiff had not done anything illegal. If the jury believed that the conversation between Preston and Stanek did not take place before June 13, as Stanek asserts, plaintiff would not be able to establish that Stanek knew the allegations in the Stewart report were false before the mass-mailing. However, if the jury believed that the conversation between Preston and Stanek occurred at the May 9 meeting, then plaintiff would be able to establish that Stanek mailed the Stewart report despite the knowledge that it contained false information.
On this record, it is apparent that the jury did not believe that Preston waited until June 13 to tell Stanek about the Stewart report when citizens already started receiving the report by mail almost a month earlier on May 17 and expressed their concerns with its contents shortly thereafter. The testimony reveals that Preston already knew by May 2 or 4 that defendants were considering mailing the Stewart report, and that he had contacted Stewart about this at some point before May 17. Thus, the jury apparently did not believe Stanek's testimony that Preston did not report back to him until June 13, almost a month after the Stewart report had been distributed. Instead, the jury apparently chose to believe Preston's testimony that he told Stanek about the Stewart report in the spring, but that he did not think it was as late as June.
Here, the illogical timeline of events presented by Stanek, coupled with Preston's testimony that Stanek initially denied responsibility for the mailing and evidence that Stanek refused to make a retraction after admitting he knew that the contents of the Stewart report were false, lead us to conclude that the jury's finding that Stanek knew that the Stewart report contained false information or was aware of the reports probable falsity when he mailed copies of it was not clearly erroneous. We will not disturb the jury's credibility determinations in this regard.
Barrows testified that following plaintiff's election as township supervisor, he repeatedly asked VanHuystee, at least five times,
Barrows denied knowing that the statements in the Stewart report regarding
Indeed, Barrows' testimony provides a sound basis for the jury's finding of actual malice. The following exchange between plaintiff's counsel and Barrows is illustrative of Barrows' purposeful avoidance of the truth:
After considering the evidence presented, including this testimony, the jury apparently found that Barrows acted with actual malice. This conclusion is eminently reasonable given that Barrows conceded that Preston had recommended that he not send the report because he wanted to verify its accuracy. Thus, there was sufficient evidence to support the jury's conclusion that Barrows acted with reckless disregard for the truth of the statements in the Stewart report. Although the evidence was controverted, we conclude that plaintiff sustained her burden of presenting the jury with clear and convincing proof that Barrows acted with actual malice when mailing the Stewart report.
We find further support for this conclusion in Harte-Hanks. In that case, the plaintiff, a candidate for an elective judicial office occupied by an incumbent, brought a defamation action against the defendant newspaper, which had published an article that damaged his personal and professional reputation. Shortly before the election, the plaintiff discovered evidence of a bribery
The defendant endorsed the incumbent in the election and arranged a meeting with Thompson to discuss the alleged bribery scheme. Thompson asserted that the plaintiff had promised her and Stephens gifts and other consideration in exchange for Stephens' statements implicating the incumbent's staff in the bribery scheme. Before printing an article concerning Thompson's allegations against the plaintiff, the defendant interviewed the plaintiff. The plaintiff categorically denied Thompson's assertion that he had offered an improper quid pro quo for Stephens' information, and provided the defendant with access to the tape recording of his interview with Stephens. The defendant did not listen to the recording. It nevertheless published a story alleging that the plaintiff had offered Thompson and Stephens jobs in exchange for their cooperation in building a bribery case against the incumbent's staff.
A jury returned a verdict for the plaintiff, and the Sixth Circuit Court of Appeals affirmed.
The Court initially noted that the jury's verdict was largely premised on credibility determinations. In concluding that the plaintiff had satisfied his burden of proving his case by clear and convincing evidence, the Court relied heavily on circumstantial evidence of the defendant's actual malice. Notably, the Court cited the defendant's failure to review the tape recording of the plaintiff's interview with Stephens that would have confirmed or refuted portions of its article. The Court reasoned that "one might reasonably infer . . . that the decision not to listen to the tapes was motivated by a concern that they would raise additional doubts concerning Thompson's veracity."
In this case, as in Harte-Hanks, Barrows could have readily confirmed the accuracy of the Stewart report by doing
The Stewart report contained relatively specific allegations of wrongdoing by plaintiff, including allegations of acts that would clearly constitute a misuse of taxpayer funds. Barrows knew that VanHuystee did not know of anything illegal done by plaintiff and that members of the group of concerned citizens that Barrows belonged to expressed concern about mailing the Stewart report and a desire to verify its accuracy. Thus, the jury was presented with relevant evidence aside from a mere allegation that Barrows obtained the Stewart report and mailed it without any investigation. As in Harte-Hanks, on the basis of the evidence presented and the testimony apparently believed by the jury, the jury in this case most certainly could have inferred that Barrows' decision not to confirm the accuracy of the report was motivated by a concern that doing so would raise additional doubts concerning its veracity. Therefore, we do not find the jury's credibility determinations clearly erroneous, and we agree with the jury's finding with regard to Barrows' liability.
In contrast to Stanek and Barrows, the evidence presented against Flohe is less convincing. Unlike for Stanek, there is no evidence indicating that Flohe was ever told that Stewart himself, as author of the report, confirmed that the report contained false information. In addition, unlike for Barrows, there is no evidence that VanHuystee had repeatedly informed Flohe that he had no knowledge of any illegal activity by plaintiff. Moreover, the evidence indicates that Flohe was not even present at the beginning of the meeting at which Preston expressed his reluctance to mail the report and indicated that he would verify its accuracy with Stewart. Thus, the record contains little, if any, evidence to counter Flohe's contention that he was unaware that the report contained false information. Accordingly, we conclude
For these reasons, we reverse the Court of Appeals' conclusion that plaintiff presented insufficient evidence of actual malice as to Stanek and Barrows, but affirm its conclusion that plaintiff presented insufficient evidence of actual malice as to Flohe.
Defendants additionally argue that they are not liable for the added handwritten caption because the caption is not defamatory.
However, we note that a statement of "opinion" is not automatically shielded from an action for defamation because "expressions of `opinion' may often imply an assertion of objective fact."
The handwritten caption "Attention: Suttons Bay Villagers Alledged [sic] Misuse of Village Taxpayer Funds?" and "Derrick [sic] Smith" may be defamatory if it implies that defendants have information that would indicate a misuse of taxpayer funds by plaintiff. The Court of Appeals noted that the caption is phrased in a manner which asserts that any misuse of funds is only alleged, and it is punctuated with a question mark, indicating that defendants are not conclusively stating that plaintiff misused taxpayer funds.
Nevertheless, even a statement of opinion may be defamatory when it implies assertions of objective facts. Noting that context matters in analyzing an allegedly defamatory statement, the First Circuit has held that a statement must be examined "in its totality in the context in which it was uttered or published."
We agree that allegedly defamatory statements must be analyzed in their proper context. To hold otherwise could potentially elevate form over substance. Thus, on remand, the handwritten caption in this case should be viewed in context with the Stewart report as a whole, instead of relying merely on the use of a question mark as punctuation and use of the word "Alledged [sic]," to determine whether it is capable of defamatory meaning.
Finally, we note that the Court of Appeals failed to address the issue of the falsity of the handwritten caption. Such an inquiry is required for plaintiff to sustain her defamation claim, and must be addressed by the Court of Appeals on remand.
Plaintiff presented clear and convincing evidence to support the jury's finding that both Stanek and Barrows acted with actual malice. We reach this conclusion after conducting an independent review of the record and giving due regard to the ability of the finder of fact—the jury—to view the witnesses' demeanor and to make appropriate credibility judgments. The dissent's approach to the independent review function is mistaken and reaches out to conduct essentially a de novo review in order to replace, with the dissent's own, all of the jury's findings as to the defendants' liability.
Therefore, we reverse the Court of Appeals' conclusion that Stanek and Barrows are not liable for defaming plaintiff. However, we also conclude that the record does not contain sufficient evidence to support the jury's finding that Flohe acted with actual malice. Therefore, we affirm the Court of Appeals' conclusion that Flohe is not liable for defaming plaintiff.
Accordingly, we remand this matter to the Court of Appeals for consideration of defendants' additional arguments, including whether the added handwritten caption on the Stewart report constitutes a non-defamatory statement of opinion when considered in its context within the Stewart report as a whole, whether the caption is provable as false, and whether defendants are entitled to the protection afforded by
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
MARILYN J. KELLY, C.J., and MICHAEL F. CAVANAGH and HATHAWAY, JJ., concurred with WEAVER, J.
CORRIGAN, J. (concurring in part and dissenting in part).
In this defamation action, we consider whether the Court of Appeals erred by determining that plaintiff Derith Smith, a public official, failed to present clear and convincing evidence to support a finding of actual malice at trial. I concur with the majority that plaintiff did not satisfy her evidentiary burden regarding defendant Noel Flohe. I dissent, however, from the majority's conclusion that plaintiff presented clear and convincing evidence that defendants John Stanek and Donald Barrows acted with actual malice when they mailed copies of a public record—a report critical of plaintiff's job performance written by her former supervisor, Suttons Bay Village Manager Charles Stewart. I would affirm the result reached by the Court of Appeals concerning each of the three individual defendants because my independent review of the record reveals that plaintiff failed to present clear and convincing evidence that Stanek and Barrows acted with actual malice.
As the majority explains, to prevail in a defamation action, a plaintiff who is a public official must establish that a defendant made a false and defamatory statement with "actual malice."
Application of the heightened actual malice standard in cases involving political speech reflects our "profound national commitment to the principle that debate on public issues should be uninhibited, robust,
"There is little doubt that `public discussion of the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule,' and the strongest possible case for independent review" of the actual malice determination.
When determining whether a public official plaintiff has satisfied the heightened actual malice standard, "the reviewing court must consider the factual record in full."
In New York Times Co v. Sullivan, the United States Supreme Court recognized that "erroneous statement[s] [are] inevitable in free debate, and that [these statements] must be protected if the freedoms of expression are to have the `breathing space' that they `need . . . to survive.'"
The matters at issue here lie at the heart of our political discourse and are subject to the expansive protections enshrined in the First Amendment.
In this case, all three individual defendants were politically active residents of Elmwood Township. Stanek, a township trustee from 1998 to 2004, survived a 2003 recall campaign in which plaintiff was involved. He lost his bid for reelection in 2004, and his slate was replaced by a group of candidates that included plaintiff. Flohe was the township supervisor until
Plaintiff received a copy of the Stewart report on May 17, 2005 and filed suit in July 2005. Plaintiff's suit proceeded to trial, and the jury returned a verdict in favor of plaintiff. The jury ordered that Stanek pay plaintiff $40,000 in noneconomic damages and $4,000 in campaign expenses and that Barrows pay plaintiff $45,000 in noneconomic damages and $4,000 in campaign expenses. By contrast, the jury only assessed $10,000 in noneconomic damages and $4,000 in campaign expenses against Flohe. However, the jury also mandated that each individual defendant publish a public apology to plaintiff in the form of a legal notice to appear in two local newspapers: the Traverse City Record-Eagle and the Leelanau Enterprise.
Although I generally agree with the majority's explication of the actual malice standard, I disagree with the majority's application of that standard to defendants Stanek and Barrows on this record. The record does not show "with convincing clarity"
Suttons Bay Village Manager Charles Stewart, plaintiff's former supervisor, drafted the report about plaintiff's tenure with the Village. Stewart addressed the report to the Village's personnel committee, which voted to terminate plaintiff after reviewing it. The Stewart report remained on file thereafter. In the report, Stewart stated that: (a) the Village hired plaintiff as an independent contractor, but plaintiff received benefits available to full-time employees although she had not received W-2 forms; (b) when the Village Council declined to reappoint plaintiff as clerk, she delayed responding to the Village's part-time job offer until Stewart was away from the office, at which time plaintiff directly contacted the Council president
At trial, Stewart acknowledged that the report contained misinformation. For example, Stewart eventually located plaintiff's W-2 forms, which confirmed her status as an employee, rather than an independent contractor. However, Stewart testified that other aspects of the report were true, including his belief that plaintiff took purposeful steps to avoid a reduction in pay by directly contacting the Council president in his absence. Plaintiff did not dispute the basic facts involving her pay rate as described in the Stewart report. Nor did she dispute the specific facts surrounding the statements in the Stewart report that Stewart continued to maintain were true. Rather, plaintiff testified that she did not intend to circumvent efforts to lower her pay rate by directly contacting the Council president in Stewart's absence. In its decision regarding defendants' motions for summary disposition, the trial court held that "[t]he Stewart report was not a disciplinary report, was not required to be destroyed, and was subject to disclosure under FOIA." Plaintiff never appealed this adverse ruling.
Plaintiff did not present clear and convincing evidence that defendant Stanek acted with actual malice. The testimony of retired police officer George Preston does not establish with convincing clarity that Stanek knew that the Stewart report contained defamatory falsities when he mailed it. Nor does Preston's testimony show that Stanek recklessly disregarded its truth or falsity, i.e., that he "entertained serious doubts as to the truth"
Preston testified that he attended an informal gathering of 10 or 12 people at Stanek's shop in early May 2005 "where some neighbors got together and were talking about current issues going on in Elmwood Township." At this gathering, copies of the Stewart report were distributed, and the attendees began discussing it. When Preston saw a copy of the Stewart report, he "became kind of interested, being a [retired] police officer." Preston volunteered to contact Suttons Bay Village Manager Charles Stewart and ask Stewart about "the contents of this information."
Preston's testimony certainly does not establish with convincing clarity that Stanek acted with actual malice in disseminating the Stewart report. Although Preston told Stanek that the Stewart report had no substance "as far as the criminal aspect," Preston unambiguously testified that he never told Stanek or anyone else that the Stewart report contained falsities.
Moreover, the testimony concerning the timeline of events is anything but clear and convincing. The majority deduces that the conversation between Preston and Stanek occurred at the monthly Elmwood Township meeting on May 9, 2005, and not the monthly Elmwood Township meeting on June 13, 2005. The majority reasons that because Preston spoke to Stanek on May 9 or before he mailed the Stewart report, Stanek mailed the Stewart report knowing that it contained defamatory falsities. Yet, Stanek testified with a firm recollection that this conversation occurred on June 13. Preston had no clear recollection of the date. But neither Preston nor Stanek testified in a manner that comports with the majority's dubious conclusion that the two men spoke on May 9—before the Stewart report was mailed.
It is undisputed that the informal gathering at Stanek's shop occurred during the first week of May 2005 and that plaintiff received the Stewart report in the mail on May 17, 2005. Several witnesses testified that the informal gathering at Stanek's shop occurred on May 2 or May 4. Preston testified that he waited a minimum of two weeks after the gathering before contacting Stewart. Preston further testified that after his telephone conversation with Stewart, he approached Stanek some time in "late spring, so that's May, June."
The majority also accords great weight to Preston's testimony that Stanek initially denied responsibility for the anonymous mailing. The majority's misplaced reliance on Preston's testimony about Stanek's initial denial of responsibility ignores the United States Supreme Court's observation that a defendant's repeated attempts to maintain that the inaccurate was accurate "does not establish that he realized the inaccuracy at the time of publication."
I also reject the majority's conclusion that plaintiff presented clear and convincing
The majority relies on the testimony of Suttons Bay Village Treasurer Jerry VanHuystee to conclude that Barrows acted with actual malice. VanHuystee furnished the Stewart report to Barrows. However, VanHuystee's testimony does not establish with convincing clarity that Barrows acted with reckless disregard in disseminating the Stewart report. VanHuystee testified that as the appointed Village treasurer, he never supervised plaintiff; moreover, he was not in contact with anyone who did supervise plaintiff. As the majority notes, Barrows asked VanHuystee at least five times whether plaintiff had engaged in illegal conduct during her tenure with the Village. VanHuystee repeatedly responded that "as far as I know [plaintiff] hadn't done anything illegal," but VanHuystee also specifically told Barrows that he had no idea.
The majority's reliance on Preston's testimony to establish that Barrows mailed the Stewart report with actual malice is similarly misplaced. Barrows testified that he heard Preston say that he wanted to talk to Stewart during the informal gathering at Stanek's shop, but Barrows also testified that he did not think he heard Preston say "don't send the memo." Preston further testified that the only defendant with whom he spoke after his conversation with Stewart was Stanek. He never spoke to Barrows. Moreover, Preston testified that he had no knowledge of any falsities in the Stewart report, and as a result, he never told anyone else, including Barrows, that the Stewart report contained falsities. Stewart confirmed that
I also disagree with the majority's perplexing assertion that Barrows' testimony reveals his "purposeful avoidance of the truth" consistent with Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). In Harte-Hanks, the United States Supreme Court concluded that "[a]lthough failure to investigate will not alone support a finding of actual malice, the purposeful avoidance of the truth is in a different category."
In Harte-Hanks, the defendant newspaper gathered the facts that were ultimately reported; drafted the offending statements; actually heard from the plaintiff himself and five other witnesses that the offending statements were untrue; failed to examine evidence in the defendant's possession corroborating plaintiff's story; and opted not to contact the key witness in the story it was creating, although it contacted the other parties involved. As the Supreme Court explained, "[i]t is utterly bewildering in light of the fact that the Journal News committed substantial resources to investigating Thompson's claims, yet chose not to interview the one witness who was most likely to confirm Thompson's account of the events."
In stark contrast to the defendants in Harte-Hanks, defendants here distributed a public record prepared by a government official in the course of his duties and available to the public under FOIA; defendants were never told by anyone that the contents of the report were untrue; they were not given any reason to believe that the contents of the report were untrue; and they did not fail to view evidence in their possession that indicated that the contents of the report were untrue. No evidence whatsoever reflects that Barrows entertained serious doubts about the veracity of the Stewart report before its publication or that he mailed the Stewart report with a high degree of awareness of its probable falsity. In fact, Barrows testified that he had no reason to investigate the Stewart report because he recognized that it came from a reliable source. When asked whether he would have treated the
Finally, it is axiomatic that the mere failure to investigate before publication will not support a finding of reckless disregard.
After independently reviewing the record, I cannot conclude that plaintiff presented clear and convincing evidence that either Stanek or Barrows acted with actual malice in disseminating the Stewart report. There is no evidence that either defendant knew about the misinformation contained in the Stewart report regarding plaintiff's status as an employee, her W-2 forms, and her right to employee benefits when they mailed this public record. Accepting that Stanek and Barrows were political opponents who bore ill will toward plaintiff and knew that she had not been criminally prosecuted for any improprieties during her tenure in Suttons Bay Village, the record contains no evidence that either defendant entertained serious doubts about the truth of the Stewart report. Accordingly, I would affirm the result reached by the Court of Appeals concerning each of the three individual defendants.
YOUNG and MARKMAN, JJ., concurred with CORRIGAN, J.
Thus, the proper inquiry, misunderstood by the concurrence/dissent, is to ensure that a constitutionally sufficient quantum of evidence supports a judgment consistent with First Amendment principles.
