Free Speech

Libel Lawsuit Leads Court to Ban Even True Statements About Plaintiff's "Sex Offender Status"

Fortunately, the Michigan Court of Appeals has just reversed that injunction.

|The Volokh Conspiracy |

From Thursday's Redmond v. Heller (Mich. Ct. App.) (by Chief Judge Christopher M. Murray, joined by Judges Patrick M. Metter and Kirsten F. Kelly):

In these consolidated appeals involving allegedly defamatory publications, defendants, Theresa Heller and Dennis Lewis Wolf, separately appeal by right the trial court's judgment in favor of plaintiffs, Martha Redmond, Arthur McNabb, and Redmond Funeral Home…. The origins of this case arose from the death of Theresa and Dennis's twelve-year-old son, Charles Wolf, in July 2015. The medical examiner's office released Charles's body to McNabb of Redmond Funeral Home on July 28, 2015…. [McNabb was one of the people who prepared the body for the funeral.] …

After Theresa discovered what she considered to be the "outright lies" involved with the investigation into her son's death, she decided to investigate every name associated with the handling of her son's body. She obtained documents from the coroner's office and discovered that McNabb signed for her son's remains, and subsequently discovered that McNabb was a convicted sex offender. Theresa called [Martha] Redmond in the fall of 2015, to warn her about McNabb, and according to Theresa, Redmond lied, and said that she did not know that McNabb was a sex offender.

Police reports associated with McNabb's conviction show that McNabb met a 15-year-old high school student at a computer game store. [The general age of consent for sex in Michigan is 16.-EV] McNabb admitted that he purchased items for the teen, and the teen told an investigating officer that McNabb performed oral sex on him. The reports also suggest that McNabb engaged in grooming behavior, as a witness described McNabb as repeatedly hanging out at an Arby's restaurant, and interacting with a teen. McNabb was convicted of two counts of third-degree criminal sexual conduct [apparently in 2006], and was sentenced to prison.

After his conviction, the Board of Examiners in Mortuary Science Report revoked McNabb's license in November 2007, but the Board reinstated his license in October 2015. At a meeting held in November 2015, Redmond Funeral Home's board of directors appointed McNabb as the funeral director for one of its branch locations….

Theresa and various of her family members started posting various things online about McNabb—but not just about his 2006 conviction:

Theresa's social media posts were not confined to relating details from past events; she explicitly and implicitly asserted that she had actual knowledge that McNabb had continued to violate the law consistent with her belief that sex offenders always reoffend, and that Redmond was facilitating his activities. Instead, each of the statements at issue relate to present time, and were assertions of supposed fact about plaintiffs' current activities.

Redmond, McNabb, and the Redmond Funeral Home sued for libel; the trial court granted summary judgment in their favor, and also issued an injunction (after which the plaintiffs voluntarily dropped their damages claim):

[1.] Defendant Theresa Heller … [is] restrained from speaking, delivering, publishing, emailing or disseminating information in any manner regarding Arthur McNabb's sex offender status, his address and employment status to anyone anywhere.

[2.] Defendant Theresa Heller … [is] enjoined and restrained from defaming, stalking, harassing the plaintiffs, in any manner whatsoever, including through postings on the internet, as well as though unconsented contact with any of the plaintiffs.

The court of appeals rejected (quite rightly, I think), this injunction. Narrow injunctions forbidding the repetition of "specific speech that has already been determined by a finder of fact to be defamatory," the court said, might be restrictable—there's a difference of opinion among courts on the subject, which the court didn't resolve. But this particular injunction "cover[ed] certain speech that would be protected by the First Amendment":

For example, Theresa could speak about whether certain criminal sexual conduct convicts should be working in funeral homes by using McNabb as an example, but relaying only the information contained in the public domain, yet be brought into court for potential contempt hearings. Additionally, Theresa could state other nondefamatory commentary about Redmond and McNabb, or engage in other undefined "harassing" behavior, and be subject to censure by the court. In other words, the injunction potentially covers much more than the specific four statements found to be defamatory, and therefore does not survive constitutional scrutiny under the general antiprior restraint law under the First Amendment, or under the narrow exception recognized by many courts.

The court of appeals concluded, though, that some of the statements were false and defamatory factual assertions, which presumably means that the trial court could possibly issue "a more narrowly tailored injunction" against repeating them (again, the Court of Appeals didn't resolve whether such narrow injunctions would be constitutional):

In their motion for partial summary disposition, … plaintiffs had the burden to show that there was no material factual dispute concerning the elements of their defamation claim, i.e., that Theresa (1) made a false and defamatory statement about plaintiffs, (2) that she was not privileged to make and communicated it to a third party, (3) that she published the communication with fault amounting to, at the least, negligence, and (4) that the statement was actionable without regard to special harm (defamation per se), or that plaintiffs suffered special harm….

[P]laintiffs identified several statements by Theresa that they claimed were false and defamatory. Specifically, in the trial court's decision it cited to plaintiffs' evidence that (1) on April 22, 2017, Theresa stated that she wanted "to spread the word about what happened to Charlie after he left us two summers ago," (2) on July 24, 2017, Theresa posted on Facebook that her son's "cousins and all his friends were exposed to this pervert at Charlie's funeral," and that "he didn't sodomize his customers' children? Some of your kids were at Charlie's funeral. How does that make you feel?", (3) on that same date she stated that McNabb "hunts at fast food places, video and gaming stores, and funeral homes", and (4) on August 13, 2017, Wolf published on the Internet that McNabb "targets young teenage boys who like video games and nice shirts." Plaintiffs also set forth specific allegations and evidence about the frequency of these and other statements, Theresa continually contacting the funeral home and police agencies, and other allegedly harassing behavior….

Upon review of the evidence submitted to the trial court, we conclude that as to the four statements listed above, no reasonable juror could conclude other than that the statements Theresa and Wolf posted to social media were defamatory…. [Theresa] did not couch these accusations as opinions and, even if she had, they clearly implied an assertion of fact that could be proven false. A reasonable fact-finder reading these statements could only conclude that Theresa was asserting that she had knowledge that McNabb was actively and presently hunting for teenaged boys in order to commit criminal sexual conduct, and that he was doing so at Redmond's funeral home with Redmond's knowledge and support….

On appeal, Theresa argues that her statements that McNabb is a pedophile are true because he has a 2006 conviction of criminal sexual conduct involving a 15-year-old boy. She also asserts … that everything she stated came from police reports or the website maintained under the [Sexual Offender Registration Act], and is therefore true. However, all of the documents she cites describe acts that occurred more than 10 years earlier—none of the reports or documents she cites involve present activity. For that reason, evidence as to what is contained on the registry or in police reports is not evidence creating a material issue of fact that her statements were true.

{In MCL 28.721a, the Legislature stated its determination that "a person who has been convicted of committing an offense covered by this act poses a potential serious menace and danger to the health, safety, morals, and welfare of the people, and particularly the children, of this state." This legislative policy does not provide private citizens with the unfettered right to assume that all convicted sex offenders were in fact reoffending and, on the basis of that assumption, publicize false accusations of criminal conduct. The same is true of the court decisions that Theresa cites, as they do not stand for the proposition that private persons may make false and defamatory statements about a sex offender's current conduct on the basis of the sex offender's past conduct.} …

[But e]xcept for the statements noted above, the remainder of Theresa's statements were strongly worded, and suggested that McNabb posed an imminent danger to children. The nature of the remarks might justify a reasonable fact-finder in finding that Theresa's remarks were defamatory, or that Theresa was merely expressing her strong belief that a convicted sex offender should not be employed at a funeral home. In other words, a reasonable fact-finder could find that these remaining statements, which were undoubtedly offensive to ordinary sensibilities, were nevertheless hyperbolic, or amounted to exaggerated commentary. Consequently, on those statements, there was a question of material fact as to whether the statements were defamatory, which precluded the trial court from granting plaintiffs' motion for summary disposition in its entirety….

Thanks to Prof. Eric Goldman for the pointer.

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  1. A lot of legal reasoning is wrong, especially the perceived dangerousness of people forced to register on this government blacklist.

    Also, a person with a conviction against a 15 year old would not qualify for a diagnosis of pedophilia. Making blanket assumptions all registrants are pedophiles are like claiming all black men steal or all Hispanics are “illegals.”

    It is obvious this trashy woman is engaging in targeting harassment of a registered person, and honestly, I’d be happy if she was behind bars.

    1. I don’t know about behind bars, but this woman has obviously convinced herself of things for which there’s no evidence. (Just for openers, it’s a pretty big leap to assume that because someone once had sex with a 15-year-old that they’ve now moved on to necrophilia.)

      As with religious belief, she’s entitled to believe whatever she wants, right up until the point that she begins to injure other people. Which she has.

      1. “As with religious belief, she’s entitled to believe whatever she wants, right up until the point that she begins to injure other people.”

        Technically, not true. The clearest exception to this is if everything she said was factually true. Even if she believed it, and even it it was damaging to say it (to the other party), it would still be allowed. Even if it’s not factually true, but is but was just opinion, it would still be allowed, even it it was damaging.

        1. Armchair Lawyer, fact and opinion are mutually exclusive. It can be one or the other, but not both. In a defamation case, opinion is protected; false facts are not. Thus, “Senator Bedfellow molests 6 year olds” is a question of fact — Senator Bedfellow either does, or does not, molest six year olds; there is no middle ground. “Senator Bedfellow is a vile, contemptible human being” is protected opinion. “Senator Bedfellow is a vile, contemptible human being because he molests six year olds” is a combination of the two, but each of the two components of that statement is either one or the other.

          So, it’s irrelevant what her beliefs are if we’re talking about allegations of fact. Someone who is honestly mistaken in believing that Senator Bedfellow molests six year olds is still defaming Senator Bedfellow if he makes a false claim that Senator Bedfellow molests six year olds. The damage done to his reputation is just as great as it would have been had the speaker been telling a deliberate lie.

          And, going back to my original statement, you’re entitled to believe whatever you want, so long as you don’t injure anyone, is correct. If you’re defaming someone, you’ve injured them as soon as the defamatory statement comes out of your mouth.

          In the case of this woman, some of the things she said were statements of fact and some were statements of opinion. She’s accountable for the statements of fact.

          1. You really need to be more careful with your English.

            There are in fact, three separate categories. True facts, opinion, and false facts. What I was referencing were the first two. True facts and opinion. Both of which are protected, EVEN IF THEY injure another person.

            Let’s use a few simple examples.

            1. I leave a post on Yelp about a restaurant, saying the food is horrible and terrible. This is a statement of opinion. It is what I believe. It damages the restaurant. It is still protected

            2. I leave a post on Yelp about a restaurant. “This restaurant is horrible and terrible. It gave me food poisoning.” This is a both a statement of opinion (horrible and terrible) and fact (food poisoning). It damages the restaurant. It is what I believe. Whether or not is is protected depends on if the factual statement is true or not.

            The point being made here is, someone can believe something, it can damage someone, and it can still be protected. It very much depends on what was said and done.

            1. Anyone who writes the following paragraph:

              “Technically, not true. The clearest exception to this is if everything she said was factually true. Even if she believed it, and even it it was damaging to say it (to the other party), it would still be allowed. Even if it’s not factually true, but is but was just opinion, it would still be allowed, even it it was damaging.”

              which is only barely understandable, and then tells me that I should be more careful with my English has at least provided me with some amusement, even if you didn’t accomplish anything else today.

              Since your initial paragraph was completely unreadable, I did the best I could.

              1. His initial paragraph is

                You really need to be more careful with your English.

                which you have just proven is factually true by your statement

                Since your initial paragraph was completely unreadable, I did the best I could.

                1. “Initial paragraph” means the paragraph I quoted. Please tell me you’re not really stupid enough to have not gotten that, and that you’re only yanking my chain.

              2. If it was “completely unreadable,” then how did you respond intelligently with anything other than “I can’t understand that” (or some varient thereof)?

                Perhaps, if you had questions about what was written, you should’ve asked for clarification?

                Or perhaps I should just use little words and very short sentences when responding to you?

                1. The problem is not the size of the words. The problem is sentence structure, syntax and organization. That I more or less figured out what you meant doesn’t change that.

        2. The problem isn’t that SHE thinks that sex offenders always reoffend, the problem is that a substantial portion of the population believes this. Because they believe this stating truthfully that “this guy is a registered sex offender” equates to the false claim “this guys is currently engaged in sex offenses” to a substantial number of people.
          So what you have here is a question of fact… is the intent of this woman to spread the fear that this RSO is currently engaging in offenses? If so, is that fear factual? If it isn’t are there damages resulting? Publication of false claims causing actual damages = defamation. To have issued an order telling her to stop, the court’s factfinder must have found libel in play.

      2. The boy was 15. The age of consent is 16. How close to 16 was he? 3 months? 6 months? 9 months? Statutory rape? Yes. Pedophilia? NO WAY! When are all these armchair experts on paraphilias ever going to accept that pedophilia refers specifically and exclusively to men or women who have a primary sexual attraction for prepubescent children?

        15 is below the legal age of 16. No argument there. A violation of the letter of the law to be sure. However, the boy was old enough to know what he was doing and a few days, weeks, or months isn’t going to make this big, huge magical difference in his mental maturity or lack thereof. The boy made a voluntary decision, otherwise the man would have been facing an entirely different set of charges.

    2. All men are potential rapists and all white men are racists. Shame on you for defending a pedophile!

      1. Sad thing is that many believe this to be true.

      2. “Shame on you for defending a pedophile!”

        15-year-olds are past sexual maturity and therefore of no particular interest to pedophiles.

      3. Drop dead, you trolling jerk.

    3. You’re the dude who molested an 11 year old, right? I can see why you’d want to advocate a very restrictive definition of “pedophilia”, but I think most members of the public are going to continue applying it to adults who sexually abuse children, like you and Mr. McNabb.

      1. Hunch: The Volokh Conspiracy’s self-described decency standards won’t lead to editing or removal of this accusation of a heinous crime, let alone the banning of the author.

        Just don’t make fun of conservatives, noscitur, and you’ll be free to comment as you wish at the Volokh Conspiracy, without worry about attention from the Conspiracy’s Board of Censors.

        1. I’m not sure I follow.

          Oncefallen.com is maintained by Derek W. Logue, who was convicted of molesting an 11 year old girl in Alabama. (He’s popped up on similar posts in the past, which is how I recognized the name.) He admits as much on his website (although predictably he attempts to minimize the gravity of his conduct). So I’m not sure why noting the same would subject my comment to editing or removal, much less banning.

          1. Because the good Reverend Artie is a troll, I am guessing not a Reverend at all.

            1. You think?????

  2. the trial court granted summary judgment in their favor, and also issued an injunction (after which the plaintiffs voluntarily dropped their damages claim)

    Since the injunction has now been struck down, can the plaintiffs revive their damages claim? It seems very unfair if they cannot. That would be a real bait and switch.

    1. It would be a bait and switch, and they should be able to get their damages claim back. However, even if they did not, it sounds like this woman intends to keep right on doing what she’s doing, so there will probably be more than sufficient grounds for further libel suits.

      1. I want to know WHY…

        A funeral home is a *business* and they clearly have a disgruntled customer. I’m inclined to wonder why. I’m inclined to wonder why she took the time & effort to find out about the sex conviction in the first place — that’s not something that a grieving parent usually does without a really good reason.

        1. I dunno. I’ve had about a thousand cases in Children’s Court. I’ve seen parents make some wacky accusations. Not remotely based on any factual basis. Who knows where in their brain they get that seed planted? (I am, of course, NOT talking about the cases where the basis IS well-founded, or is at least plausible . . . those make up the vast majority of accusations adults throw around.

          IMO (and experience) grieving parents are, almost by definition, not in their right minds…at least for a while. So, I am surprised that you are surprised that this woman might latch onto something unreasonable and worry it like a dog with a bone. I don’t think anyone here thinks that this woman is consciously lying with her accusations . . . like a certain unnamed orange-faced politician, she truly believes her delusions. So, there is more sadness than pity, I suspect. (A party being willing to drop the damages part of the claim against this woman suggests that everyone understands that this woman is still grieving, still not in her right mind, and deserves at least a soupcon of sympathy/empathy from all of us.)

          1. Do you believe that certain unnamed orange-faced politician truly believes all of his libels? Given how baseless and outrageous some have been, I don’t imagine that he really does, though WTF knows with any confidence what is in his head.

        2. Apparently she think he molested her son’s corpse. He’s a “pedophile” therefore he must also be a necrophiliac.

        3. https://www.erikscause.org/2389
          Her kid strangulated himself, as part of an auto-erotic asphyxia activity.

          1. Did he do this in the funeral home? If not, what does the funeral home have to do with it.

            1. That’s just add inflammation and shame the funeral home for daring to give a “registered sex offender” a job. That’s just to shame the funeral home for hiring him in the first place.

              Even though the TRUE EXPERTS WHO WORK IN THE TRENCHES TREATING INDIVIDUALS WITH PARAPHILIAS have proven time and time and time again that stable, safe housing, steady employment, and a POSITIVE, NON-ENABLING support system all work in concert to REDUCE a registrant’s risk of re-offending, society is determined to ostracize and banish these individuals to the very fringe of society and keep them there. With sex crimes there is no path back; no path to redemption.

              However, as the RESTRAINTS AND DISABILITIES inflicted by the various sex offender registry schemes become more numerous and onerous (burdensome) more and more of these draconian byzantine codes are starting to crumble in court under their own weight. More and more courts are starting to recognize that the breadth and scope of the restrictions (work, residency, and presence restrictions) have become so burdensome that they now outstrip any of the stated purposes for their existence. When that happens, the law then becomes punitive (punishing) in its intent and effects.

              Look at the 6th Circuit’s ruling against the MI S.O.R. That’s just one, I don’t have time to list all the court rulings that have been entered against various aspects of the sex offender registry laws across the country.

              Personally, I think that part is hilarious. The public with their insatiable desire to punish these people unendingly coupled with career politicians don’t have enough sense to stop while they’re still ahead. They keep piling on the restrictions year after year, legislative term after legislative term. There comes a point when these laws will literally crumble under their own weight. Then what will the public and their politicians do when that happens?

              The world didn’t come to an end BEFORE these ubiquitous registry laws came on the scene and I’m confident the world would still carry on and survive without them once again.

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