The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.
