The Volokh Conspiracy

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Linking Fired Women's Gymnastics Coach to Sex Abuser Larry Nassar Could Be "Libel by Implication"

So the Michigan Court of Appeals held Thursday, in a case brought by the former head women's gymnastics coach at Central Michigan University.


From Reighard v. ESPN, decided by Chief Judge Mark Boonstra and Judges Michael J.  Kelly & Brock Swartzle (Presiding Judge Boonstra also concurred separately to agree with Justices Thomas and Gorsuch's recent criticisms of the U.S. Supreme Court's libel jurisprudence, and with Justice White's past criticisms):

For 35 years, [Jerry] Reighard was the head women's gymnastics coach at Central Michigan University (CMU). On February 20, 2019, CMU announced that it had placed Reighard on paid administrative leave pending an investigation. No details regarding the investigation were disclosed in that announcement. However, citing confirmation by CMU's athletic director, multiple news articles reported on that date that the investigation had "nothing to do with [former gymnastics physician] Larry Nassar's case or sexual misconduct of any kind" or "Title IX."

Defendant Daniel Murphy is a reporter for defendant ESPN, Inc. In that capacity, Murphy had previously reported on issues relating to gymnastics, including coverage of Nassar's sexual abuse of gymnasts and John Geddert's reported physical and mental abuse of gymnasts…. On February 21, 2019, Murphy posted on Twitter consecutive tweets about two public announcements concerning women's gymnastics coaches in Michigan. The first tweet referred to an announcement by the Michigan attorney general:

Michigan's attorney general announced today her office is taking over an investigation of John Geddert, the 2012 Olympic team head coach and close friend of Larry Nassar. Several gymnasts have publicly abused [sic] Geddert of physically and mentally harming them.

The second tweet—which was posted within a minute of the first tweet—addressed CMU's announcement concerning Reighard:

On the same day as the AG's announcement, Central Michigan said it was putting longtime gymnastics coach Jerry Reighard on leave amid an internal review. No details of the review were shared, but Reighard has a long personal and professional relationship with Geddert.

Reighard requested a retraction of the tweets. Murphy then searched for and discovered the earlier reporting in which CMU had confirmed that its investigation of Reighard had nothing to do with Nassar or Title IX. Murphy also then spoke directly with a CMU representative, who again confirmed to Murphy that the investigation had nothing to do with Nassar or Title IX, and that by "Title IX," he meant "sexual misconduct."

Following that conversation, Murphy concluded that a retraction was unnecessary because there was nothing factually incorrect in the tweets. Instead, on March 11, 2021, he posted an additional tweet—which he testified was not meant as a retraction, but instead was intended to "add more information to [his] reporting"—on Twitter:

Central Michigan hopes to have its internal investigation of Jerry Reighard completed by the end of the semester. An athletic dept. spokesman confirmed today Reighard remains on paid leave and the investigation is not connected to the Larry Nassar scandal or sexual misconduct.

Murphy indicated that, based on what he had learned, he believed there might be a connection between the attorney general's announcement regarding the investigation into Geddert and CMU's announcement regarding its investigation into Reighard. In his view, his two initial tweets properly raised that question. He indicated that at the time of his tweets, he had no information suggesting that Reighard was "connected to Larry Nassar and Geddert in any sexual abuse scandal" or that Reighard had been accused of any kind of sexual abuse "in a criminal sense."

He acknowledged that, in his first tweet, he established a relationship between Nassar and Geddert, and in his second tweet, he established a relationship between Geddert and Reighard. But he denied that his tweets had linked the three men. Despite the reference to Nassar in the first tweet, he testified that he did not believe the thread raised any question as to whether the investigation into Reighard was related to Nassar or sexual-abuse allegations.

Murphy also testified, however, that he had not attempted to contact Reighard or CMU's athletic director before posting his tweets, because "[t]he information I needed was in a public press release." He also testified that he had not seen the earlier news reports confirming that there was no connection between the investigation of Reighard and sexual misconduct of any kind or the sexual-abuse scandal concerning Nassar. He testified that he did not know whether, had he known that information, he would have tweeted as he did. He indicated that he did not know whether it would have been important to include that information in his tweets, and that he could not say or control how anyone might read them….

On appeal, Reighard argues that, even if the statements in Murphy's tweets were not themselves materially false, the implications arising from the statements were false…. Reighard [argues, among other things, that the tweets defamatorily implied] … that there was a connection between Reighard being placed on administrative leave and Nassar or sexual-abuse allegations….

The first tweet identified Geddert as the head coach of the 2012 Olympic team and that he was close friends with Nassar. At the time, it was well-known that Nassar had been the team physician for USA Gymnastics and had treated many gymnasts in his role as a physician at Michigan State University. The second tweet identified Reighard as CMU's "longtime gymnastics coach" and stated that Geddert and Reighard are also friends. Thus, reading the tweets in context, a reasonable reader could infer that all three men had been involved in gymnastics and were friends with each other.

Next, the first tweet stated that the attorney general was taking over an investigation into allegations that Geddert had physically and mentally harmed several gymnasts. Further, by mentioning Geddert's close association with Nassar, the tweet arguably implied a connection between the investigation into Geddert and Nassar's sexual-abuse convictions. The second tweet links to the first by referencing the attorney general's investigation. It then noted that Reighard had been placed on administrative leave pending an internal review.

It stated that no details of the review were shared by CMU; however, by using the word "but" in its final sentence, the tweet arguably implied that the reason Reighard was placed on administrative leave was related to a supposedly long, personal and professional relationship with Geddert. In doing so, a reasonable reader could read the tweets as implying that Reighard had engaged in the same type of misconduct for which the attorney general was criminally investigating Geddert—physically and mentally harming gymnasts. Further, a reasonable reader could conclude that Reighard was or could have been involved in sexual misconduct or in the Nassar sexual-abuse scandal.

We conclude, particularly in light of the manner in which the statements contained within the tweets were juxtaposed with one another, that the implication[] … that Reighard's placement on leave was related to Nassar or sexual abuse allegations … [is] {capable of defamatory meaning}. This is not so strained a reading of the tweets as to make summary disposition appropriate. Rather, we conclude that it is one that a reasonable jury should assess….

{We reject defendants' suggestion that the tweets at most raised a question, and that questions are not capable of defamatory meaning. First, the tweets did not pose a question. Second, "a blanket protection of defamation liability for any and all questions is inappropriate," just as it is inappropriate when statements are couched in terms of opinion. Finally, based on our independent review of the totality of the evidence, the tweets raised not mere questions but actionable implications that reasonably should be assessed by the fact-finder. Defendants' interpretation would effectively negate an entire area of Michigan jurisprudence—defamation by implication—an invitation that we decline.} …

[The falsity of the implication] that there was a connection between Reighard being placed on administrative leave and Nassar or sexual-abuse allegations … is uncontested. Moreover, the evidence reflects that CMU confirmed on February 20, 2021—as reported by multiple news outlets at that time—that its investigation into Reighard was not connected to Nassar or allegations of sexual abuse. Moreover, when Murphy contacted CMU after being asked to retract his tweets, he was provided with the same information. Reighard has therefore satisfied the "falsity" element with respect to the … complained-of implication.

The court also concluded that plaintiff could show that the implication was made with "actual malice," which in this context could be shown by evidence that the defendants "were reckless toward the implication":

[T]here is adequate circumstantial evidence for this [matter] to be decided by the fact-finder. As noted, for example, by using the word "but" in the final sentence of the second tweet, Murphy seemed to imply that Reighard was placed on administrative leave for reasons that were related to a supposedly long, personal and professional relationship with Geddert. And those assertions were neatly juxtaposed with an immediately-preceding statement establishing a personal relationship between Geddert and Nassar.

Moreover, while acknowledging that due diligence was an essential part of his job, and therefore that it was necessary for him to verify the information he had learned, [Murphy] pointedly did not attempt to contact either Reighard or CMU's athletic director before posting his tweets, and he did not do even the minimal due diligence that would have alerted him to the fact that CMU had already confirmed—as had been publicly reported—that its investigation of Reighard had nothing to do with Nassar or any sexual misconduct allegations.

We recognize that "failure to investigate the accuracy of a communication before publishing it" is not alone sufficient to establish actual malice. However, "a 'purposeful avoidance of the truth' is dissimilar from the mere 'failure to investigate,' and 'a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity' of a publication is sufficient to find reckless disregard." … [W]e conclude from the juxtaposition of the statements contained in the successive tweets, the use and positioning of the word "but" in the final sentence of the second tweet, and Murphy's failure to perform even basic due diligence—notwithstanding his acknowledgement of his professional duty to do so—to explore the accuracy of what we deem to be a reasonable interpretation of the defamatory implication of the tweets, that a reasonable fact-finder could find by clear and convincing evidence that Murphy had conveyed the implication of his tweets with actual malice.

Congratulations to Victor J. Mastromarco, Jr. and Mark Granzotto, who largely prevailed here.