M Civ JI 118.06 Libel or Slander of Public Figure or Public Person (Actual Malice)

Because plaintiff was a [ public official / public figure ] at the time of the alleged [ libel / slander ], plaintiff must prove by clear and convincing evidence that:

(a) the statement was of and concerning [ him / her ], and

(i) the defendant had knowledge that the statement was false, or

(ii) the defendant acted with reckless disregard as to whether the statement was false.

“Reckless disregard” means that defendant must have made the statement with a high degree of awareness of its probable falsity, or must have entertained serious doubts as to the truth of the statement.

Comment

Although this instruction does not use the words “actual malice,” it does incorporate the definition of that term. Use of the term in jury instructions has been criticized. Harte-Hanks Communications, Inc v Connaughton, 491 US 657, 666 n7; 105 L Ed 2d 562, 576 n7; 109 S Ct 2678, 2685 n7 (1989); Masson v New Yorker Magazine, Inc, 501 US 496; 115 L Ed 2d 447; 111 S Ct 2419 (1991).

On the meaning of “reckless disregard,” see Harte-Hanks Communications, Inc, 491 US at 667, 692; 105 L Ed 2d 562; 109 S Ct 2678 (1989). Failure to give an instruction on “reckless disregard” has been criticized. Faxon v Republican State Committee, 244 Mich App 468; 624 NW2d 509 (2001).

The privilege to make communications about public figures or public persons is of constitutional magnitude. New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964). This constitutional privilege has been incorporated into Michigan law by case law, Arber v Stahlin, 382 Mich 300; 170 NW2d 45 (1969), and more recently by statute, 1988 PA 396, MCL 600.2911(6).

Nonmedia defendants are entitled to the constitutional privilege regarding defamatory publications that concern a public official or public figure. Dun & Bradstreet, Inc v Greenmoss Builders, Inc, 472 US 749; 105 S Ct 2939; 86 L Ed 2d 593 (1985). See also Vandentoorn v Bonner, 129 Mich App 198; 342 NW2d 297 (1983).

Whether a person is a public figure or public person is a question of law for the trial court and should not be submitted to the jury unless the facts are in dispute. Bufalino v Detroit Magazine, Inc, 433 Mich 766; 449 NW2d 410 (1989).

History

M Civ JI 118.06 was added August 1983. Amended November 1990, August 1991. Amended June 2003.