Bryan Punturo v. Brace Kern ( 2020 )

Order Michigan Supreme Court
Lansing, Michigan
December 11, 2020 Bridget M. McCormack,
Chief Justice
158749 David F. Viviano,
Chief Justice Pro Tem
158755-6
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
BRYAN PUNTURO, FAWN PUNTURO, and Elizabeth T. Clement
B & A HOLDINGS, LLC, d/b/a PARKSHORE Megan K. Cavanagh,
Justices
RESORT, LLC,
Plaintiffs-Appellees,
v SC: 158749
COA: 338727
Grand Traverse CC: 17-032008-CZ
BRACE KERN,
Defendant-Appellant,
and
SABURI BOYER and DANIELLE KORT,
f/k/a DANIELLE BOYER,
Defendants.
_________________________________________/
BRYAN PUNTURO, FAWN PUNTURO, and
B & A HOLDINGS, LLC, d/b/a PARKSHORE
RESORT, LLC,
Plaintiffs-Appellees,
v SC: 158755
COA: 338728
Grand Traverse CC: 17-032008-CZ
BRACE KERN and SABURI BOYER,
Defendants,
and
DANIELLE KORT, f/k/a DANIELLE BOYER,
Defendant-Appellant.
_________________________________________/
BRYAN PUNTURO, FAWN PUNTURO, and
B & A HOLDINGS, LLC, d/b/a PARKSHORE
RESORT, LLC,
Plaintiffs-Appellees,
v SC: 158756
COA: 338732
Grand Traverse CC: 17-032008-CZ
BRACE KERN and DANIELLE KORT,
f/k/a DANIELLE BOYER,
Defendants,
2
and
SABURI BOYER,
Defendant-Appellant.
_________________________________________/
On November 12, 2020, the Court heard oral argument on the applications for
leave to appeal the October 16, 2018 judgment of the Court of Appeals. On order of the
Court, the applications are again considered, and they are DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
CLEMENT, J. (concurring).
I concur with the Court’s order denying leave to appeal. While the text of the fair-
reporting-privilege statute at issue, currently codified at MCL 600.2911(3), is not all that
clear, there is reason to believe that the statutory privilege only applies to media
defendants, and is thus inapplicable to the instant defendants. When, as here, the Court
of Appeals allows a suit to move forward, I am content to deny leave and not have this
Court articulate any binding precedent. I write separately to discuss why I believe the
statute can be read as inapplicable to defendants themselves, in lieu of the Court of
Appeals’ conclusion that defendants’ remarks did not factually satisfy the statute’s
protection, and to ask the Legislature to clarify the intended scope and application of the
statute.
The fair-reporting privilege we are concerned with generally protects certain libel
defendants from liability so long as what they publish is “fair and true.” It was originally
enacted in 1931 PA 279, and at that time provided:
No damages shall be awarded in any libel action brought against a reporter,
editor, publisher or proprietor of a newspaper for the publication therein 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: Provided, however, That this privilege shall not apply to a libel
contained in any matter added by any person concerned in the publication;
or in the report of anything said or done at the time and place of the public
and official proceeding which was not a part thereof.
Under this version of the statute, it only applied to newspapers—specifically, “a reporter,
editor, publisher or proprietor of a newspaper.” They were protected for their reporting
on “any public and official proceeding,” so long as they provided “a fair and true report”
of the proceeding. See McCracken v Evening News Ass’n, 3 Mich App 32, 38 (1966)
(“The statute protects newspaper publishers if the article is a fair and true report of the
public and official proceeding.”) This protection included a proviso, however, that it did
not extend to “a libel contained in any matter added by any person concerned in the
3
publication.” Thus, media defendants who made “a fair and true report of . . . public and
official proceeding[s]” could not add libelous matter to the report—such as defamatory
editorial remarks mixed in with the fair and true reporting of what happened—and be
insulated from liability.
Were the 1931 language still in effect, we would not be hearing this case—there
would be no dispute that it did not protect these defendants, who are not “reporter[s],
editor[s], publisher[s] or proprietor[s] of a newspaper.” But the statutory language was
amended, by 1988 PA 396. It now provides:
Damages shall not be awarded in a libel action for the publication or
broadcast of a fair and true report of matters of public record, a public and
official proceeding, or of a governmental notice, announcement, written or
recorded report or record generally available to the public, or act or action
of a public body, or for a heading of the report which is a fair and true
headnote of the report. This privilege shall not apply to a libel which is
contained in a matter added by a 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 or governmental notice, announcement,
written or recorded report or record generally available to the public, or act
or action of a public body, which was not a part of the public and official
proceeding or governmental notice, announcement, written or recorded
report or record generally available to the public, or act or action of a public
body. [MCL 600.2911(3)].
The immunity from damages is no longer specific to newspapers and their employees, but
rather applies to any “publication or broadcast” of certain “fair and true report[s].” The
amendment also broadened the subject matter of those “fair and true report[s]” beyond
“any public and official proceeding,” and now includes “matters of public record” or “a
governmental notice, announcement, written or recorded report or record generally
available to the public, or act or action of a public body.” The denial of protection to “a
libel contained in any matter added by any person concerned in the publication” was
recast as no longer in the form of a proviso, consistent with the modern preference
against provisos. See 1A Singer & Singer, Sutherland Statutory Construction (7th ed),
§ 21:11, p 173 (characterizing provisos as “lazy drafting practice” that “make a statute
hard to understand” and “may also produce unanticipated consequences”).
Obviously, the deletion of the newspaper-specific language in 1988 PA 396 can be
read as broadening the fair-reporting privilege of MCL 600.2911(3) to any “publication
or broadcast” of an account of the proceedings listed. Defendants argue accordingly that
their remarks to the media—made with the expectation that those remarks would be
repeated—qualifies as a sort of publication or broadcast of those remarks. However, I
believe there are clues in and around 1988 PA 396 suggesting that the fair-reporting
4
privilege is only enjoyed by media defendants, and I am consequently content to deny
leave in this case and let this suit move forward.
First, the apparent thrust of 1988 PA 396 was the expansion of the fair-reporting
privilege’s scope beyond an account of “any public and official proceeding” to include
“matters of public record” or “a governmental notice, announcement, written or recorded
report or record generally available to the public, or act or action of a public body.” This
expansion was adopted in response to this Court’s decision in Rouch v Enquirer & News
of Battle Creek, 427 Mich 157 (1986). See Northland Wheels Roller Skating Ctr, Inc v
Detroit Free Press, Inc, 213 Mich App 317, 323 n 4 (1995), quoting House Legislative
Analysis, HB 4932 (June 15, 1988) (identifying Rouch as the Legislature’s motivation for
1988 PA 396 and noting that the legislative analysis called our Rouch decision “unduly
restrictive”). The Rouch plaintiff was arrested for the rape of his children’s babysitter,
although in the end, charges were not filed against him and in fact charges were
ultimately filed against someone else. That said, the day after his arrest, the newspaper
reported that he had been “ ‘arrested and charged with the sexual assault of a 17-year-old
women [sic] who was baby-sitting with his children . . . .’ ” Rouch, 427 Mich at 160.
The reporter had received this information from the police department, which the reporter
would habitually call in the morning to find out what had happened in the last 24 hours.
Id. at 161. Rouch sued for libel. The newspaper cited the statute as a defense, saying that
it had given “a fair and true report” of a “public and official proceeding”—Rouch’s arrest
and the police understanding of the situation. This Court rejected that argument,
concluding “that an arrest that amounts to no more than an apprehension is not a
‘proceeding’ under the statute,” meaning that “the information orally furnished to the
defendant in support of it does not, as such, enjoy the privilege afforded by the ‘public
and official proceedings’ statute.” Rouch, 427 Mich at 172-173. The Legislature then
expanded the statute’s scope beyond “proceedings” to, among other things, matters of
public record—such as the fact of the arrest and the government’s understanding of what
motivated it. It strikes me as unlikely that the Legislature, in responding to Rouch, also
intended to overhaul the immunity being conferred by expanding it beyond the
journalism context.
Second, 1988 PA 396 applies only to a “publication or broadcast.” On the one
hand, this is certainly a change from 1931 PA 279, which applied only to newspapers.
But it appears to me to be an effort at modernizing the fair-reporting privilege rather than
changing its fundamental character. The reference to a “publication or broadcast” seems
likely to me to be the Legislature’s effort at accommodating the substantial changes in
major forms of media between 1931 and 1988, in particular the dramatic expansion of
radio and television journalism. I can say from firsthand experience in the legislative-
drafting process that the Legislature, when it decides to make some substantive change to
a law, will often also take up other forms of clean-up, to modernize the law—whether to
render the language gender-neutral, move away from disfavored phrasings (such as the
use of shall), or update a law’s text to conform to how it is actually applied. For this
5
statute to apply to these defendants, it would be more natural for it not to refer to
“publication or broadcast” at all, and simply read “[d]amages shall not be awarded in a
libel action for a fair and true report of matters of public record” and so on. The fact that,
instead, it says that “[d]amages shall not be awarded in a libel action for the publication
or broadcast of a fair and true report of matters of public record” suggests to me that the
Legislature was aiming to protect media defendants which control the means of
publishing or broadcasting information.
Third, the statute still requires that the protected communication be a “fair and true
report.” Because the original statute applied only to newspapers, the “report” mentioned
then could have only been a report in the sense of journalism. See, e.g., The American
Heritage Dictionary of the English Language (5th ed) (defining the verb “report” as “[t]o
write or provide an account or summation of for publication or broadcast”). In this
context, requiring that it be “fair and true” appears to be an allusion to a journalist’s
professional responsibilities and an effort to avoid protecting “yellow journalism.” It
seems unlikely to me that the Legislature, in making changes responsive to our Rouch
decision, also aimed to transform the character of the sort of “report” that the statute
shields to include nonjournalistic “reports.” This is all the more so since the report still
must be “fair and true”—this seems to me to continue alluding to a journalist’s
professional duties, rather than requiring an inquiry about whether an individual has
“fairly” characterized his or her own actions to decide whether the statutory protection
applies.
Fourth, the Legislature’s adjustment of the former proviso also suggests to me that
not every change to the text of this statute can be taken at face value, because the change
to the proviso has rendered it nearly unintelligible. Under 1931 PA 279, the fair-
reporting privilege did not “apply to a libel contained in any matter added by any person
concerned in the publication.” This was using “matter” in the sense of “[s]omething
printed or otherwise set down in writing: reading matter.” American Heritage
Dictionary. In this sense, “matter” is roughly synonymous with “content”—thus, it could
be rewritten to say that the privilege did not “apply to a libel contained in any content
added [to the published report] by any person concerned in the publication.” In this sense
of the word “matter,” it is an uncountable noun, and we cannot grammatically speak of
“one matter” or “one content” any more than we can speak of “one beef” or “one
concrete.” Our case reports have many references to “libelous matter” in this sense of
libelous published content.1 After 1988 PA 396, this language now reads, “This privilege
1
See, e.g., Taylor v Kneeland, 1 Doug 67, 75 (Mich, 1843), quoting Thomas v Croswell,
7 Johns 264, 270-271 (NY, 1810); Lewis v Soule, 3 Mich 514, 517, 520-522 (1855);
Leonard v Pope, 27 Mich 145, 150 (1873); Scripps v Reilly, 35 Mich 371, 394 (1877);
Scripps v Reilly, 38 Mich 10, 25, 29 (1878); Maclean v Scripps, 52 Mich 214, 247
(1883); Peoples v Detroit Post & Tribune Co, 54 Mich 457, 458 (1884); Bacon v Mich
Central R Co, 66 Mich 166, 173 (1887); Park v Detroit Free Press Co, 72 Mich 560, 569
6
shall not apply to a libel which is contained in a matter added by a person concerned in
the publication.” Postamendment, the statute has apparently changed the sense of the
word “matter,” because it now takes the indefinite article a (“contained in a matter
added”) and thus must be a countable noun. The apparent sense of “matter” here may be
something like “[a] subject of concern, feeling, or action[.]” American Heritage
Dictionary. This creates an interpretive problem—how does “a person concerned in the
publication” go about adding “a subject of concern” to an account of “a public and
official proceeding” or the other activities to which the fair-reporting privilege applies?
Should the availability of the privilege turn on whether the report discusses multiple
“subjects of concern” as opposed to confining itself to whatever “subject of concern” was
the primary motivation of the “public and official proceeding” the report is about? It
seems unlikely to me that the Legislature intended to alter the sense of the word
“matter”—and thus the scope of this provision—via the insertion of the indefinite article
“a” before the word “matter,” and create such interpretive challenges. Rather, I suspect
that this was a poorly executed effort at eliminating the proviso without intending to
change its substantive meaning. And the poor execution of this change is a signal to me
that many of the other changes introduced by 1988 PA 396 should be read as narrowly as
the text permits.
I readily acknowledge that each of these observations about 1988 PA 396 is
rebuttable. First, while the context of the Legislature’s action suggests it was responding
to Rouch and unlikely to have intended the sort of broadening of this statute that would
benefit the instant defendants, unlikely is not impossible. We have held in the past that
the Legislature has made what were likely inadvertent changes with substantive
consequences to our laws. See, e.g., People v Pinkney, 501 Mich 259 (2018) (suggesting
that the Legislature probably inadvertently failed to maintain forgery as a crime under the
Michigan Election Law). Second, if you squint, the “publication or broadcast” language
could be construed as applying against a speaker or writer as well as a publisher or
broadcaster, because a defendant in a defamation suit can be held liable for someone
else’s publication of defamatory remarks if the defendant made the defamatory remarks
intending that they be published. Thus, in Wheaton v Beecher, 66 Mich 307, 311 (1887),
the defendant gave an interview to the Detroit Evening News making remarks about the
plaintiff, and we held that the defendant could be sued because “[t]here was testimony in
(1888); Smith v Smith, 73 Mich 445, 446 (1889); Wheaton v Beecher, 79 Mich 443, 446
(1890); Long v Tribune Printing Co, 107 Mich 207, 215 (1895); Long v Evening News
Ass’n, 113 Mich 261, 263 (1897); Burr’s Damascus Tool Works v Peninsular Tool Mfg
Co, 142 Mich 417, 421 (1905); Flynn v Boglarsky, 164 Mich 513, 516, 518 (1911);
Bennett v Stockwell, 197 Mich 50, 55 (1917); Bowerman v Detroit Free Press, 287 Mich
443, 450-452 (1939); Powers v Vaughan, 312 Mich 297, 304-306 (1945); Sanders v
Evening News Ass’n, 313 Mich 334, 340, 342 (1946); Davis v Kuiper, 364 Mich 134,
137-139, 145 (1961); Bufalino v Maxon Bros, Inc, 368 Mich 140, 150 (1962).
7
the case offered by the plaintiff tending to show that the defendant authorized the
publication of the libel . . . .” Third, it is not impossible for one to make a “report” about
one’s own doings. The word can be defined as “[a] spoken or written account of an
event, usually presented in detail,” American Heritage Dictionary, and there is no strictly
logical reason one cannot offer such an account of one’s own activities. And fourth, the
Legislature could have meant to change the sense of the word “matter” in MCL
600.2911(3) by inserting the word “a” in front of it, obliging us to (perhaps) determine
whether a “report” dared to touch on multiple “subjects of concern” and forfeit the
privilege.
Yet while each observation is rebuttable, the combination of them is, in my view,
compelling. Beginning from the meaning that 1931 PA 279 had—protecting only media
defendants—the fact that 1988 PA 396 only applies to a “publication or broadcast,” and
still requires a “report,” reads to me more like an effort at preserving the statute’s
application to media defendants rather than eliminating it. This is even more apparent
when considering that 1988 PA 396 was prompted by and responsive to our Rouch
decision, which had nothing to do with the contested aspects of the statute’s scope
regarding whom the privilege protects (indeed, the defendant in Rouch was a media
defendant). And the grammatically challenged rewritten proviso both suggests that the
statute’s text does not reflect the Legislature’s intent and counsels against this Court
definitively interpreting what may be an effectively “broken” statute, making denying
leave here a prudent exercise of our discretionary control of our docket. Moreover,
should the Legislature revisit this statute, it would have a chance to review the proper
scope of its application in a media environment that has changed dramatically since 1988;
the rise of the Internet and the nontraditional journalism it facilitates invites a
reassessment of this privilege.
MARKMAN, J. (dissenting).
This case involves claims of defamation by plaintiff Bryan Punturo against
defendants, Brace Kern, Saburi Boyer, and Danielle Kort. The Court of Appeals
affirmed the trial court’s holding that defendants’ statements to the news media
concerning their antitrust lawsuit against Punturo were not protected under the fair-
reporting privilege, MCL 600.2911(3). Because I would conclude that the statements fall
within the protections of the fair-reporting privilege, I respectfully dissent from this
Court’s order of denial. Instead, I would reverse the Court of Appeals and remand to the
trial court for entry of an order granting summary disposition in favor of defendants.
Punturo owns ParkShore Resort on Grand Traverse Bay, and Boyer owns a
parasailing business on a beach near the resort. In 2014, Boyer signed a “Parasailing
Exclusivity Agreement,” wherein he agreed to pay $19,000 per year to Punturo for three
years. In exchange, Boyer would buy parasailing equipment from Punturo’s son and
Punturo would not compete with Boyer’s business. When Boyer stopped making
8
payments in accordance with the agreement, Punturo allegedly threatened Boyer and his
then wife, Kort, demanding that they continue payments. After one allegedly threatening
e-mail from Punturo, Boyer contacted Kern, a local attorney. Kern believed that Punturo
had violated the Michigan Antitrust Reform Act, MCL 445.771 et seq., and reported the
findings to the Michigan Attorney General. Soon thereafter, the Attorney General
investigated Punturo and filed a criminal extortion charge. Boyer and Kort then retained
Kern to file a lawsuit against Punturo, alleging antitrust violations, extortion, and
intentional infliction of emotional distress.
While this lawsuit was pending, Kern and his clients spoke to certain news outlets
about it. According to the complaint, some of Kern’s statements to the media were
reported as follows:
“Kern said the correspondence proved Punturo flagrantly violated
state antitrust laws.” “The contract itself is an agreement to limit
competition,” Kern said. “So that violates the (Michigan) Antitrust Reform
Act in [and] of itself.”
* * *
Kern called the charge against Punturo “a long time coming” for
Boyer and Boyer’s wife. “It’s a vindicating day for my clients,” he said.
“There was extortion for the past two years.”
* * *
The Boyers’ civil attorney, Brace Kern, says, “Extortion is one
aspect of our case, but ours seeks to prove that the unlawful contract that
Mr. Punturo extorted my clients into the signing anti-trust laws [sic] and
there’s also a claim for intentional affliction [sic] of emotional distress.”
* * *
Brace Kern represents Traverse Bay Parasailing, saying Punturo
violated anti-trust laws and caused emotional distress. “Today is a
vindicating day for my clients, and it’s been a long time coming. They are
glad that the attorney general takes anti-trust violations and extortion
seriously. This is something that I don’t think Traverse City needs or
wants, so it’s nice to see them put an end to this conduct,” says [Kern].
* * *
Attorney Brace Kern represents the alleged victim—Saburi Boyer—
in an ongoing civil case. “Essentially what he did was tell my client, ‘Give
me $19,000 a year or I’m going to run you out of business with unfair
competition . . . below cost prices,’ [”] says Kern. Kern says Punturo
threatened in telephone messages to “make your life a living hell.”
9
* * *
. . . “As soon as I saw the contract, I’m like, ‘This is an antitrust violation,
this is a covenant not to compete, this is extortion,’ [”] Kern said.
In addition to Kern’s statements, Boyer also provided a number of statements to
the media concerning the lawsuit:
Boyer maintains he wasn’t trying to corner the market and that he
only paid Punturo out of fear. “I felt like I was being extorted through this
entire timeline,” Boyer said. “When I was going through it, I felt like it
was going on every day.”
* * *
“He basically ran over me verbally, and I froze,” says Boyer. “My
wife told me I turned white as a ghost. I froze up, didn’t have much at all
to say, [h]e told me he was going to make my life a living hell, that he was
going to crush me and everything that mattered to me, and that he was
going to bury me by the end of this. I just froze up and took it. I realized
that he was very motivated to hurt me. Whether that was business or
personal, I was in fear.’ ”
Further, there was one statement that was attributed to both Boyer and his wife:
The Boyers say they were tired of living in fear and went to a lawyer
who discovered anti-trust law violations and went to the attorney general.
Eventually, the criminal charges and the civil suit against Punturo were dismissed.
Thereafter, Punturo filed the present defamation action, arguing that the various
statements to the news media that he had committed antitrust violations and extortion
were defamatory and that he is entitled to damages. Kern, Boyer, and Kort all claimed
that the fair-reporting privilege protected such statements. Relying on Bedford v Witte,
318 Mich App 60 (2016), the trial court concluded that the privilege was not applicable.
However, it denied both parties’ motions for summary disposition, ruling that there were
questions of fact concerning other aspects of the defamation claim, and the Court of
Appeals affirmed. Punturo v Kern, unpublished per curiam opinion of the Court of
Appeals, issued October 16, 2018 (Docket Nos. 338727, 338728, and 338732).
A defamatory communication is “one which tends so to harm the reputation of
persons . . . as to lower them in the estimation of the community or to deter others from
associating or dealing with them.” Locricchio v Evening News Ass’n, 438 Mich 84, 115
(1991) (cleaned up). Such a claim requires proof of four elements:
(1) a false and defamatory statement concerning the plaintiff, (2) an
10
unprivileged communication 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 publication. [Smith v Anonymous Joint
Enterprise, 487 Mich 102, 113 (2010) (quotation marks and citation
omitted).]
The issue before this Court is the second element of the defamation claim: whether
defendant’s communications are “privileged,” specifically with regard to the fair-
reporting privilege under MCL 600.2911(3), which provides in part:
[D]amages shall not be awarded in a libel action for the publication or
broadcast of a fair and true report of matters of public record, a public and
official proceeding, or of a governmental notice, announcement, written or
recorded report or record generally available to the public, or act or action
of a public body, or for a heading of the report which is a fair and true
headnote of the report.
MCL 600.2911(3) further provides:
This privilege shall not apply to a libel which is contained in a matter added
by a 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 or governmental notice, announcement, written or recorded
report or record generally available to the public, or act or action of a public
body, which was not a part of the public and official proceeding or
governmental notice, announcement, written or recorded report or record
generally available to the public, or act or action of a public body.
Thus, to be afforded the protections of the fair-reporting privilege, the statements
must constitute: (1) a “fair and true report” (2) that pertains to “matters of public record,”
“a public and official proceeding,” or a “record generally available to the public.” MCL
600.2911(3). There is no dispute that Boyer and Kort’s lawsuit, and in particular their
complaint, against Punturo alleging antitrust violations and extortion satisfied the second
prong of this privilege. The question then turns on whether the statements by Kern,
Boyer, and Kort constituted “fair and true reports” of the lawsuit, in particular, of its
complaint alleging antitrust violations and extortion.2
The Court of Appeals has previously explained what entails a “fair and true
report”:
2
The parties do not dispute that this case involves a “libel action,” as required under the
statute. MCL 600.2911(3).
11
The information obtained and published must substantially represent
the matter contained in the court records. This Court has held that such a
standard is met, and a defendant is not liable, where the “gist” or the “sting”
of the article is substantially true, that is, where the inaccuracy does not
alter the complexion of the charge and would have no different effect on the
reader than that which the literal truth would produce, absent proof that
such variance caused the plaintiff damage.
Under this test, minor differences are deemed immaterial if the
literal truth produces the same effect. To determine whether the plaintiff
carried the burden of showing material falsity under the substantial truth
doctrine, this Court must independently review the entire record.
[Northland Wheels Roller Skating Ctr, Inc v Detroit Free Press, Inc, 213
Mich App 317, 325-326 (1995) (quotation marks, citations, and emphasis
omitted).]
Thus, to determine whether the reports here are both “fair and true,” one must
consider the context in which the statements were made and compare those statements to
the underlying complaint. See Smith, 487 Mich at 129 (2010) (“[A]llegedly defamatory
statements must be analyzed in their proper context.”).3 If the statements substantially
represent what is set forth in the complaint, then defendants have provided a “fair and
true report” of the official proceeding. That is, such statements were “true” to the
complaint. Upon review of the underlying complaint, it is clear, in my judgment, that the
statements to the news media were nearly word-for-word recitations of the allegations in
the complaint. The complaint details the underlying facts and circumstances of the case,
3
Punturo argues that the statements from Kern and his clients were not “reports” at all.
“Report” is defined as a “detailed account or statement.” Merriam-Webster’s Collegiate
Dictionary (11th ed). Kern’s and his clients’ statements to the news media were
“detailed accounts or statements” on the lawsuit against Punturo. Even if a “report” must
be officially reported-- for instance, in a news outlet-- certainly the statements here meet
this standard because they were reported in the news media. What the statute does not
do, as it has in previous versions, is to protect news reporters exclusively. Compare MCL
600.2911(3), as enacted (“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 . . . .”) (emphasis added),
with the current version of MCL 600.2911(3) (“Damages shall not be awarded in a libel
action for the publication or broadcast of a fair and true report of matters of public record,
[or] a public and official proceeding . . . .”); see also Amway Corp v Proctor and Gamble
Co, 346 F3d 180, 189 (CA 6, 2003) (Schwarzer, J., concurring) (“[A]s
amended, . . . [MCL 600.2911’s] protection extended to anyone against whom damages
might be awarded in a libel action for a publication or broadcast, not simply members of
the newspaper trade.”). For these reasons, I find Punturo’s argument unavailing.
12
including the assertedly inappropriate comments that Punturo made to Boyer and Kort
throughout their dealings. Most significantly, the complaint asserts in no uncertain terms
that Punturo sought to extort them. For instance, the complaint stated, “Through threats
of physical, financial and reputational harm to Plaintiffs, [Punturo] coerced and extorted
Plaintiffs . . . .” Further, the complaint stated that Punturo “received, as proceeds of
extortion . . . , over $35,500 in cash from Plaintiffs.” And it claimed that Punturo
engaged in “threats, coercion, extortion, [and] antitrust violations . . . .” Indeed, the
complaint sets forth statements that can only be viewed as more harmful than what was
allegedly reported to the media. For example, according to the complaint, Punturo said,
“You instilled this hatred within me, you defaulted on your agreement to abate me, and
now you will realize my resolve to witness your demise.” And it further claimed that
Punturo exploited Boyer’s need for chemotherapy treatments as “a point of leverage to
compel the payment of extortion money . . . .” Overall, defendants’ statements to the
media substantially align with the allegations in the complaint. There are numerous
declaratory sentences in the complaint that are nearly identical to the statements
subsequently provided to the media. These statements had substantially the same effect
as if the complaint itself had been published in the news media or as if each statement to
the media had effectively been preceded by, or couched within the semantic context, “We
allege in our complaint . . . .” For that reason I would conclude that the fair-reporting
privilege does protect defendants’ statements to the news media as “fair and true” reports
of the official proceeding to which they pertain.
Also for this reason, I do not believe defendant’s statements constitute “matter
added by a person concerned in the publication . . . which was not a part of the public and
official proceeding . . . or record generally available to the public . . . .” MCL
600.2911(3). The statements align with the underlying allegations in the complaint, and
thus nothing was “added.” By the proposition of not “adding” new matter, I do not
believe that the statute is intended to refer to the force or dynamism or degree of
emphasis brought to bear by the person making the statement, but rather to the terms and
provisions of the substantive public record. The Court of Appeals here relied on Bedford
to hold that the privilege did not apply because the statements were made “with certainty”
(a specific point of emphasis the Court repeated throughout its opinion) and thus went
beyond the public record. While I cannot fault that court for following its own published
precedent, I respectfully disagree with a significant element of that precedent, in
particular, Bedford’s assertion that a statement goes beyond the public record when it is
merely uttered with “certainty.”
In Bedford, the defendants were attorneys who had filed a complaint in federal
court on behalf of their clients alleging, inter alia, a violation of the Racketeer Influenced
and Corrupt Organizations Act, 18 USC 1961 et seq., and malicious prosecution.
Bedford, 318 Mich App at 63. One of the attorneys who filed the lawsuit spoke to a
reporter for a CBS affiliate in an interview and proclaimed that “we can say with
certainty” that the defendants (the plaintiffs in the subsequent defamation action) had
13
broken the law by obstructing justice, committing bribery, and perpetrating mail and wire
fraud. Id. In the subsequent defamation action, the plaintiffs argued that the attorneys
had knowingly and maliciously made false statements against them to the media in the
television interview. Id. The attorneys’ defense was that the statements had been
protected under the fair-reporting privilege. Id. at 65-66. Bedford held:
As noted in Amway [Corp v Proctor & Gamble Co], 346 F3d [180,
187 (CA 6, 2003)], “[t]he statute excepts from the privilege libels that are
not a part of the public and official proceeding or governmental notice,
written record or record generally available to the public.” In this case,
viewing the defamation complaint in the light most favorable to plaintiffs,
[the attorney’s] comments did not merely summarize what was alleged—
but not yet adjudicated—in the federal complaint. He stated that “we can
say with certainty” that plaintiffs broke the law in various ways. Given the
level of certainty expressed, we conclude that his words did alter the effect
the literal truth would have on the recipient of the information, and thus the
“fair and true” standard in MCL 600.2911(3) was not satisfied. Northland
Wheels, 213 Mich App at 325. These statements went beyond the public
record. See Amway, 346 F3d at 187. Accordingly, defendants were not
entitled to claim the fair-reporting privilege with regard to the television
interview . . . . [Bedford, 318 Mich App at 71.]
In my view, the “certainty” principle established in Bedford is nowhere grounded
within the statute.4 Rather, the statute only requires the allegedly libelous statements to
constitute “fair and true” reports of the proceedings. MCL 600.2911(3). There is no
requirement that an attorney or litigant qualify his or her own statements by explicitly
prefacing them as only “allegations,” for they quite obviously are only allegations.
Rather, the statements viewed in the required statutory context need only align with what
has been set forth in the complaint. The Court of Appeals in both Bedford and in this
case failed to take into account the self-evident context in which defendant’s statements
were made. They were made during interviews regarding an ongoing lawsuit, and the
reasonable reader or listener of such statements is fully equipped to comprehend that
these statements were mere allegations, just as all lawsuits until adjudicated are
composed of mere allegations. Having to assess the “level of certainty,” or the quantum
of certainty or tentativeness, expressed in every such statement would give rise to an
increasingly vague and arbitrary rule that would leave many litigants and their attorneys
open to confusion and uncertain liability whenever they speak to the media about an
ongoing lawsuit. Moreover, such a standard would have the effect of potentially
4
Which is not to say that the exercise of good lawyerly judgment and professionalism
would not generally counsel reasonably measured and tempered characterizations of a
client’s claims.
14
“chilling” speech on the part of any person who reports on an official or public
proceeding. “The special protected nature of accurate reports of judicial proceedings has
repeatedly been recognized,” and “the First and Fourteenth Amendments command
nothing less than that the States may not impose sanctions on the publication of truthful
information contained in official court records open to public inspection.” Cox
Broadcasting Corp v Cohn, 420 US 469, 492, 495 (1975). Simply put, I believe the
statements here were “true,” in the sense that they accurately reflected the nature of the
allegations made by defendants, and they were “fair,” in the sense that any reader or
listener would clearly understand that these were merely allegations made in the course
of a lawsuit. Thus, I believe these statements fall readily within the ambit of protections
of the fair-reporting privilege. I would therefore reverse the judgment of the Court of
Appeals and remand to the trial court for entry of an order granting summary disposition
to defendants.
ZAHRA and BERNSTEIN, JJ., join the statement of MARKMAN, J.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 11, 2020
t1208
Clerk