Saying Three People Alleged Biased Treatment May Be Libelous If Only One So Alleged

From Dearborn Hills Civic Ass'n, Inc., v. Scripps Media Inc., decided Thursday by the Court of Appeals of Michigan (Presiding Judge Christopher Murray and Judges Mark Cavanagh, and Thomas Cameron):

This case arises from a July 15, 2020 news story that aired on WXYZ-Detroit … entitled: "Claims of Unfair Treatment Made by Homeowners Disputed by [DHCA]." DHCA is an organization of volunteers tasked with monitoring and enforcing deed restrictions in the Dearborn Hills neighborhood of Dearborn, Michigan….

The news story included interviews with three homeowners who live in the Dearborn Hills neighborhood—Mariam Sleiman, Lindsey Mahanna, and Nasser Beydoun (collectively, the "homeowners"). Defendants' story represented that these homeowners believed DHCA had unfairly targeted Arab-American homeowners. The homeowners' complaints arose from earlier legal actions by DHCA against them. Each of the homeowners had sought DHCA's approval to make certain renovations to their homes, but DHCA denied their requests on the basis of certain deed restrictions. When the homeowners refused to comply with DHCA's denials, DHCA filed suit. DHCA prevailed after a court in the respective actions found DHCA was within its authority to enforce the deed restrictions.

[WXYZ anchor Dave] LewAllen introduced the news story stating: "[O]nly on Seven tonight, a legal battle between a Dearborn civic association overseeing home improvements and some property owners claiming unfair treatment based on their ethnicity. Seven Action News reporter Simon Shaykhet goes digging for answers in Dearborn and he has both sides of the story." The story cut to Shaykhet who reported:

Three Dearborn homeowners we talked to today say they are being unfairly targeted because they are Arab-American when it comes to fixing up their homes. They say the civic association in Dearborn Hills is preventing them from doing so. But an attorney for the civic association says that couldn't be further from the truth.

… The news story then cut to a segment featuring statements by Shaykhet and the three homeowners, which provided:

[Mahanna]: When they find out what their name is they felt like … the whole tone of them changed, the tone of their personality changed and their treatment of them.

[Sleiman]: I see so many houses in the area they have double doors, they want me to take down my double doors. I mean there's houses they don't have windows on the upper level of their homes, they want me to cut down my brick now and add new windows.

[Shaykhet]: Nassar Beydoun says improvements on the back of his home don't harm scenery nearby, nor violate any rules. And he got these permits from the city. He tells us he feels personally wronged by those in power.

[Beydoun]: There's one or two individuals that basically look at your plans and they decide if they like 'em or not. There's not a set of guidelines or building specifications.

[Shaykhet]: Others say the color of their brick or style of front entrance are reasons for projects being shut down in the last couple of years, despite the fact that other work just like it was allowed. We reached an attorney for the civic association who denies those claims.

{The homeowners each recounted how DHCA had denied their respective requests for renovations. The story also included an interview with [DHCA board member and legal counsel] Margot Cleveland who wholly denied the allegations of discrimination, claiming DHCA's denials of any home renovation projects were solely based on an objective set of criteria….}

Plaintiffs assert that there is a conflict between Shaykhet's statement that "three" homeowners alleged discrimination, when, in fact, only one homeowner—Mahanna—made any allegation of discrimination. Specifically, plaintiffs emphasize that neither Sleiman nor Beydoun made any claim of discrimination. Plaintiffs challenge the truthfulness of the new story in light of Shaykhet's assertion that all three homeowners featured in the new story believed DHCA engaged in discrimination….

[J]ournalists enjoy some measure of discretion in presenting information, and defendants' failure to publish any communications by Sleiman and Beydoun alleging discrimination could be a product of this discretion. Yet, on this record, the news story included only one homeowner who specifically alleged discrimination, while the other two homeowners featured in the news story did not. As plaintiffs argue, the clear inconsistency between defendants' assertions in the story and the actual allegations made by Sleiman and Beydoun featured in the story could be revealed in discovery….

Construing the evidence in a light most favorable to plaintiffs, we conclude the evidence fails to conclusively demonstrate defendants' news report about the homeowners' beliefs about DHCA's conduct was substantially true. The trial court's grant of summary disposition was premature because there remained a question of fact about the homeowners' beliefs. We reverse the trial court's grant of summary disposition against DHCA and remand for further proceedings as to the limited issue of defamation by defendants against DHCA….

Presiding Judge Murray joined the per curiam opinion, but elaborated:

As recounted by the majority, if the "gist" of a news story was substantially true, a defamation claim would not survive. The lead-in to the challenged news story indicated that there were three neighbors who viewed plaintiff civic association as engaging in discriminatory practices against them because they were Arab-American. Thus, the "gist" of the story was that three neighbors a collective group and not just one neighbor—were complaining of illegal discrimination against the same entity. But what the broadcasted news story showed the viewer was only one homeowner even coming close to suggesting decisions by plaintiff civic association were because of race. So the broadcasted interviews did not supply a factual basis for the lead-in.

{If only one neighbor claimed discrimination, it could reasonably be viewed as either an isolated incident of alleged discrimination or as merely a disgruntled homeowner involved in a property dispute. If two or three actually made these allegations, it would be more consistent with the lead-in. In other words, it was the number of homeowners, and what they were allegedly claiming, that made up the storyline.}

Discovery must be undertaken to resolve whether Beydoun or Sleiman (or both) told the reporter that plaintiff civic association denied them permits because they are Arab-American. If those allegations were made to the reporter, but didn't make it onto the broadcast, defamation will be difficult to prove. But if they did not make such statements, it would be for a jury to determine whether the "gist" of the story was substantially true.

Congratulations to Margot Cleveland, who represented both DHCA and herself, and who prevailed on this issue.