" See New York Times Co v Sullivan, 376 US 254, 279-280; 84 S Ct 710; 11 L Ed 2d 686 (1964); J J Constr Co v Bricklayers Allied Craftsmen, 468 Mich 722, 731; 664 NW2d 728 (2003); Lins v Evening News Ass'n, 129 Mich App 419; 342 NW2d 573 (1983). It bears noting that the peer review immunity statute was amended to include the malice exception to immunity after the seminal New York Times v Sullivan case was decided.
[Constitutional Limitations, ch 7, § 2 (1868) (citations omitted).] See also Weimer v. Bunbury, 30 Mich 201, 218 (1874); People v. Quider, 172 Mich 280, 289; 137 NW 546 (1912); J J Constr Co v. Bricklayers Allied Craftsmen, 468 Mich 722, 733-734; 664 NW2d 728 (2003). Justice WEAVER characterizes judicial restraint of the type described by Justice COOLEY, and honored by judges from time immemorial, as "dodging" the issue.
Because we conclude that the prosecutor's questions did not affect the outcome of the lower court proceedings, it is unnecessary to determine if the prosecutor's questions were permissible and "it is an undisputed principle of judicial review that questions of constitutionality should not be decided if the case may be disposed of on other grounds." J J Constr. Co. v. Bricklayers and Allied Craftsmen, 468 Mich 722, 734; 664 NW2d 728 (2003). In response to the partial concurrence and partial dissent, we can only state that it is not to "evade" a constitutional issue for this Court, after full consideration of the arguments, to reach the conclusion that a matter may adequately be resolved by means other than constitutional analysis.
The plaintiffs "offered nothing to show that allowing immunity for the private defendants in these cases would abuse the First Amendment into becoming the ultimate weapon—both a sword for achieving evil and a shield for preventing liability." Id. at 702 (internal quotation marks omitted); see also J & J Constr. Co. v. Bricklayers & Allied Craftsmen, Loc. 1, 245 Mich.App. 722, 631 N.W.2d 42, 47-50 (2001) (applying the doctrine to a tortious interference claim), rev'd on other grounds, 468 Mich. 722, 664 N.W.2d 728 (2003).
Therefore, in order to prevail on his defamation case, he was required to establish that defendant made defamatory statements with "actual malice." J & J Constr Co v Brick Layers and Allied Craftsman, Local 1, 468 Mich 722, 731; 664 NW2d 728 (2003). The trial court granted defendant summary disposition because it determined that plaintiff failed to show the existence of a genuine question of material fact on the issue of "actual malice."
By contrast, a plaintiff who is a private figure need show only negligence on the part of the defendant. Mich. Comp. Laws § 600.2911(7); see also J & J Constr. Co. v. Bricklayers and Allied Craftsmen, Local 1, 664 N.W.2d 728, 731-32 (Mich. 2003). Whether a plaintiff is a private or public figure is a question of law.
However, where the statements are of public concern, the private-figure plaintiff bears the burden of proving falsity." J J Constr. Co. V. Bricklayers Allied Craftsmen, Local 1, 468 Mich. 722, 732 n. 11, 664 N.W.2d 728 (2003) (citations omitted). The district court did not reach this issue.
The Michigan Supreme Court has repeatedly emphasized the general rule that a defamation defendant is not entitled to a qualified privilege in a case involving a private-figure plaintiff, even if the private-figure plaintiff was defamed in the course of a discussion of an issue of public concern. Rouch v. Enquirer & News, 427 Mich. 157 (1986); Lakeshore Community Hosp. v. Perry, 212 Mich.App. 396 (1995); J & J Constr. Co. v. Bricklayers & Allied Craftsmen, Local 1, 468 Mich. 722 (2003). The Michigan Legislature codified this standard in 1988, statutorily providing that defamation of a private figure requires only a showing of negligence, not actual malice.
Further, “[u]nder M.C.L. § 600.2911(7), defamation of a private figure [such as Smith] requires a showing of negligence.” Compuware Corp. v. Moody's Invs. Servs., Inc., 371 F.Supp.2d 898, 902 (E.D. Mich. 2005), aff'd 499 F.3d 520 (6th Cir. 2007) (citing J & J Const. Co. v. Bricklayers and Allied Craftsmen, Local 1, 468 Mich. 722, 664 N.W.2d 728 (2003)). See also M.C.L. § 600.2911(7) (“An action for libel or slander shall not be brought based upon a communication involving a private individual unless the defamatory falsehood concerns the private individual and was published negligently.”).
However, where the statements are of public concern, the private-figure plaintiff bears the burden of proving falsity.” J & J Constr. Co. v. Bricklayers & Allied Craftsmen, Local 1, 468 Mich. 722, 732 n. 11, 664 N.W.2d 728, 734 n. 11 (2003) (citing Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157, 181, 398 N.W.2d 245 (1986), citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986)). The plaintiff's status has some implication with respect to the element of fault, as well. A private party plaintiff, regardless of whether the statement is one of public or private concern, need only show negligence and is “not required to show malice on the part of the defendant.”