J & J Construction Co. v. Bricklayers & Allied Craftsmen, Local 1

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________

FILED JULY 9, 2003

J & J CONSTRUCTION CO.,

Plaintiff-Appellant,

v No. 119357

BRICKLAYERS AND ALLIED CRAFTSMEN,

LOCAL 1 and MARK KING, jointly and

severally,

Defendants-Appellees.

___________________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

Plaintiff appeals the judgment of the Court of Appeals

regarding several issues involving the Petition Clause of the

First Amendment. We reverse that judgment and reinstate the

judgment of the trial court.

I. Facts and Procedural History

Plaintiff, a construction company, submitted a bid to

perform a masonry contract for the city of Wayne. Plaintiff

was the low bidder for the contract. Pursuant to the Wayne

City Charter, the city council was obligated to award the

contract to the lowest qualified bidder unless it determined

that the public interest would be better served by accepting

a higher bid. Wayne City Charter, § 13.1(d).1

Defendant Mark King,2 a Bricklayers & Allied Craftsmen

Union field representative with fifteen years experience as a

mason, discovered that plaintiff, a nonunion employer, was the

low bidder for the masonry contract. He thereafter set out to

dissuade the city council from awarding the contract to

plaintiff. In this effort, defendant presented privately to

the city manager, and to the city council in public session,

deceptive photographs of plaintiff’s masonry work that

suggested plaintiff’s workmanship was of poor quality. He

also represented that plaintiff might not be able to perform

the contract in a timely manner. After plaintiff attempted to

1
Section 13.1(d) specifically provides:

Purchases shall be made from the lowest

qualified bidder meeting specifications, unless the

Council shall determine that the public interest

will be better served by accepting a higher bid,

sales shall be made to the bidder whose bid is most

advantageous to the City. In any case where a bid,

other than the lowest, is accepted, the Council

shall set forth its reasons therefor in its

resolution accepting such bid.

2
Because the trial court found that King was acting in

his capacity as a union representative and thus on behalf of

the defendant union during the events at issue, we will refer

to both defendants in the singular.

2

respond to these allegations during the public meeting of the

council, defendant made reference to the fact that plaintiff

was a nonunion contractor that did not pay the prevailing wage

to its employees.

Because of its concerns regarding the allegations

defendant made against plaintiff, the city council referred

plaintiff’s bid to the city administration for further review.

Following that review, the city council awarded the masonry

contract to the second lowest bidder, stating in its

resolution that “the Council had concerns as to the low bidder

because of claims made about faulty workmanship and because of

concerns about noncompliance with the payment of prevailing

wages and fringe benefits . . . .”

Having lost the contract bid, plaintiff filed a complaint

against defendant for defamation and tortious interference

with business expectations. Applying an ordinary negligence

standard, the trial court found that defendant’s statements

regarding the quality of plaintiff’s workmanship and

plaintiff’s prospective ability to complete the job on time

were false and defamatory, but that plaintiff failed to meet

its burden of proving that defendant’s prevailing wage

statements were false. Regarding the defamation claim, the

trial court rejected defendant’s argument that a qualified

privilege existed because the statements were made while

3

petitioning the government, reasoning that the qualified

privilege “actual malice” standard was inapplicable because

plaintiff was a private, not a public, figure. Having found

defendant’s statements regarding plaintiff’s workmanship and

prospective ability to timely complete the project to be

false, defamatory, and unprivileged, the trial court held

defendant liable for defamation under MCL 600.2911(7).3

In addition, the trial court concluded that the

defamation formed the foundation for tortious interference

with business expectations. The court declined to protect

defendant from liability from this claim on the basis of the

principles of the Noerr-Pennington doctrine,4 which protect

petitioning activity from antitrust violations when the

petition concerns legislative or regulatory issues. The court

concluded that defendant’s statements were not made in an

3
MCL 600.2911(7) provides:

An action for libel or slander shall not be

brought based upon a communication involving a

private individual unless the defamatory falsehood

concerns the private individual and was published

negligently. Recovery under this provision shall

be limited to economic damages including attorney

fees.

4
The Noerr-Pennington doctrine is derived from two United

States Supreme Court cases pertaining to the Petition Clause

and antitrust laws: Eastern Railroad Presidents Conference v

Noerr Motor Freight, Inc, 365 US 127; 81 S Ct 523; 5 L Ed 2d

464 (1961), and United Mine Workers of America v Pennington,

381 US 657; 85 S Ct 1585; 14 L Ed 2d 626 (1965).

4

attempt to urge legislative or regulatory policy decisions.

In essence, the trial court applied what the Court of Appeals

and the parties have termed a “market participant” exception

to the Noerr-Pennington doctrine.5

The trial court awarded plaintiff damages of $57,888, the

loss of expected profits under the contract for both the claim

of defamation and the claim of tortious interference with

business expectations. Attorney fees of $104,286.95 and

interest of $26,044.51 were also awarded to plaintiff.

Defendant appealed, and the Court of Appeals affirmed in

part,6 reversed in part, and remanded for further proceedings.

The Court of Appeals concluded that where petitioning activity

is involved, the “actual malice” standard for defamation

5
The “market participant” exception to the Noerr-

Pennington doctrine, adopted in some jurisdictions, but

rejected in others, generally provides that a petitioner is

not insulated from liability for defamation while petitioning

the government where the governmental entity is acting as a

market participant, as opposed to making policy. 245 Mich App

722, 733-734; 631 NW2d 42 (2001), citing George R Whitten, Jr,

Inc v Paddock Pool Builders, Inc, 424 F2d 25 (CA 1, 1970)

(adopting an exception to Noerr-Pennington where the

government is performing a proprietary function); Greenwood

Utilities Comm v Mississippi Power Co, 751 F2d 1484, 1505 n 14

(CA 5, 1985) (expressly rejecting Whitten).

6
The trial court also rejected defendant’s argument that

plaintiff’s claims are preempted by the National Labor

Relations Act, 29 USC 151 et seq. The Court of Appeals

affirmed the trial court’s decision regarding this federal

preemption issue. Defendant has not cross-appealed on this

issue or moved to have it added as an issue of dispute before

this Court. Accordingly, we will not address that portion of

the judgment of the Court of Appeals.

5

claims established in New York Times Co v Sullivan, 376 US

254; 84 S Ct 710; 11 L Ed 2d 686 (1964), applies regardless

whether plaintiff is a private or public figure. Because the

trial court only issued a finding that defendant’s defamatory

statements were negligent, the Court of Appeals remanded the

case to the trial court for a determination whether

defendant’s conduct constituted “actual malice.”

Regarding the claim of tortious interference with

business expectations, the Court of Appeals held that “‘the

Noerr-Pennington doctrine is a principle of constitutional law

that bars litigation arising from injuries received as a

consequence of First Amendment petitioning activity,

regardless of the underlying cause of action asserted by the

plaintiffs.’” 245 Mich App 730, quoting Azzar v Primebank,

FSB, 198 Mich App 512, 517; 499 NW2d 793 (1993). Relying on

Azzar, the Court of Appeals concluded that defamation is

actionable on the basis of petition activity only where the

petitioning was actually a “sham.” Further, the panel

reversed the trial court’s application of the “market

participant” exception to the Noerr-Pennington doctrine,

writing that “[i]t is not obvious why different rights,

duties, or immunities should apply when one is lobbying for

political action in the form of outright commercial patronage,

as opposed to legislation or enforcement actions.” 245 Mich

6

App 736.

We granted leave to appeal. 466 Mich 859 (2002).

II. Standard of Review

Plaintiff’s appeal raises three issues of federal

constitutional law7 regarding the Petition Clause: first,

whether a private-figure plaintiff must prove “actual malice”

in a defamation claim against a defendant whose contested

statements were made while petitioning the government; second,

considering the Noerr-Pennington doctrine, whether a cause of

action exists for tortious interference with business

expectations as the result of statements made by a defendant

while petitioning the government; and third, whether there

exists a “market participant” exception to the Noerr-

Pennington doctrine.

The protections provided by the First Amendment,

including the Petition Clause, have been extended to the

states by the Fourteenth Amendment. Whitehill v Elkins, 389

US 54, 57; 88 S Ct 184; 19 L Ed 2d 228 (1967). We review de

novo issues of constitutional law. McDougall v Schanz, 461

7
Const 1963, art I, § 3 provides that “[t]he people have

the right peaceably to assemble, to consult for the common

good, to instruct their representatives and to petition the

government for redress of grievances.” However, the parties

have neither rested their arguments on this state

constitutional right nor suggested that this provision is

interpreted any differently from the Petition Clause of the

First Amendment. Accordingly, our consideration is limited to

the federal constitutional issues presented.

7

Mich 15, 24; 597 NW2d 148 (1999).

III. Discussion

A. Defamation

The first issue presented is whether the private-figure

and public-figure dichotomy embodied in defamation case law on

freedom of speech and freedom of the press from the United

States Supreme Court extends to defamation involving the right

to petition. The United States Supreme Court has never been

squarely presented with, or decided, this question.8

However, we are guided by the general Petition Clause

defamation concepts announced in McDonald v Smith, 472 US 479;

105 S Ct 2787; 86 L Ed 2d 384 (1985). In rejecting an

8
While in this opinion we conclude that McDonald v Smith,

472 US 479; 105 S Ct 2787; 86 L Ed 2d 384 (1985), provides

sufficient guidance to resolve the pending issues, we believe

the Supreme Court has never directly addressed whether the

private-figure and public-figure doctrine of free speech and

free press defamation law announced in Gertz v Robert Welch,

Inc, 418 US 323; 94 S Ct 2997; 41 L Ed 2d 789 (1974),

discussed below, applies in a petition case.

The Court had no cause to discuss the Gertz doctrine in

McDonald, inasmuch as the McDonald plaintiff was a public

figure and, thus, defendant was constitutionally entitled to

the qualified immunity “actual malice” standard of New York

Times, as a result of the McDonald Court holding that the

Petition Clause provided no greater defamation protection than

the Free Speech Clause and the Free Press Clause. In

addition, under the state common law of North Carolina, which

was at issue in McDonald, “actual malice” was the governing

standard for both private-figure and public-figure defamation

actions. As a result, the fact pattern in McDonald did not

invite or require a discussion of the private-figure and

public-figure dichotomy.

8

argument that absolute immunity attaches to the right to

petition, the McDonald Court wrote:

To accept petitioner’s claim of absolute

immunity would elevate the Petition Clause to

special First Amendment status. The Petition

Clause, however, was inspired by the same ideals of

liberty and democracy that gave us the freedoms to

speak, publish, and assemble. These First

Amendment rights are inseparable and there is no

sound basis for granting greater constitutional

protection to statements made in a petition to the

President than other First Amendment expressions.

[McDonald, supra at 485 (internal citations

omitted; emphasis added).]

By this reasoning, at least regarding the constitutional

law of defamation immunity, the Court has made clear that it

considers the Petition Clause as offering no greater

protection than that of the Free Speech Clause and the Free

Press Clause. In so concluding, we believe the Court has

strongly signaled its view that all the Free Speech Clause and

Free Press Clause defamation doctrine developed in the past

forty years is to be imported without change to constitutional

adjudications arising under the Petition Clause.9

Accordingly, an analysis of relevant United States Supreme

Court case law on free speech and free press defamation is

essential. Production Steel Strip Corp v Detroit, 390 Mich

9
In interpreting the federal constitution, state courts

are not privileged to provide greater protections or

restrictions when the Supreme Court of the United States has

refrained from doing so. Arkansas v Sullivan, 532 US 769,

772; 121 S Ct 1876; 149 L Ed 2d 994 (2001).

9

508, 514; 213 NW2d 419 (1973).

Under long-settled constitutional principles concerning

the First Amendment rights of freedom of speech and freedom of

the press, a public-figure plaintiff must establish that a

defendant made defamatory statements with “actual malice” in

order to prevail in a defamation action. New York Times,

supra (establishing the “actual malice” standard for liability

for defamation of public officials); Curtis Publishing Co v

Butts, 388 US 130; 87 S Ct 1975; 18 L Ed 2d 1094 (1967)

(extending the “actual malice” standard to public figures).

“Actual malice” exists when the defendant knowingly makes a

false statement or makes a false statement in reckless

disregard of the truth. New York Times, supra at 280. In

other words, a defamation defendant is entitled to a qualified

privilege in the form of a heightened “actual malice” standard

required to be met by a public-figure plaintiff.

In contrast, a defamation defendant whose alleged

defamatory statements pertained to a private figure receives

no such constitutional protection under case law on freedom of

speech and freedom of the press. Rather, the states are left

to decide for themselves whether a private-figure plaintiff

must establish more than ordinary negligence as a predicate

for recovery for defamation. Gertz v Robert Welch, Inc, 418

10

US 323, 346-348; 94 S Ct 2997; 41 L Ed 2d 789 (1974).10 In

Rouch v Enquirer & News of Battle Creek, 427 Mich 157; 398

NW2d 245 (1986), this Court held that a defamation defendant

is not entitled to a qualified privilege in a case involving

a private-figure plaintiff under Michigan law, and thus

declined to extend greater protection than constitutionally

required under Gertz.11 More important, the Michigan

Legislature codified the Rouch holding in 1988, statutorily

providing that defamation of a private figure requires only a

showing of negligence, not actual malice. MCL 600.2911(7).12

Because the United States Supreme Court has concluded

that the right to petition should be accorded no greater

protection than the rights to free speech and free press,

10
Gertz specifically held that “so long as they do not

impose liability without fault, the States may define for

themselves the appropriate standard of liability for a

publisher or broadcaster of defamatory falsehood injurious to

a private individual.” Id. at 347. Accordingly, defamation

against a private figure still requires that fault be

established. In addition, private-figure plaintiffs may only

recover actual damages under a negligence standard for

defamation. In order to recover any presumed or punitive

damages, Gertz requires proof of actual malice. Id. at 350.

11
Where the alleged defamation concerns both a private

figure and a matter of private concern, the burden of proving

that the statement was not false rests with the defendant.

However, where the statements are of public concern, the

private-figure plaintiff bears the burden of proving falsity.

Rouch, supra at 181, citing Philadelphia Newspapers, Inc v

Hepps, 475 US 767; 106 S Ct 1558; 89 L Ed 2d 783 (1986). In

this case, plaintiff proved falsity at trial.

12
See n 3.

11

McDonald, supra at 485, we conclude that the private-figure

and public-figure dichotomy that applies to defamation claims

involving the Free Speech Clause and the Free Press Clause,

Gertz, supra at 342-347, also applies to defamation claims

involving the Petition Clause. Accordingly, we reverse the

judgment of the Court of Appeals that the “actual malice”

qualified immunity standard of New York Times applies in

Petition Clause defamation cases regardless whether the

plaintiff is a private or public figure. Extending Gertz in

the manner suggested by McDonald, a defamation defendant whose

statements about a private figure are made while petitioning

the government is not constitutionally entitled to a qualified

immunity in the form of the heightened “actual malice”

standard. Because MCL 600.2911(7) provides no greater

protection for such defendants, the Court of Appeals erred.

The trial court’s decision concerning plaintiff’s defamation

claim is reinstated.

B. Tortious Interference With Business Expectations

Although we maintain reservations about the judgment of

the Court of Appeals regarding the claim of tortious

interference with business expectations, concerning the Noerr-

Pennington doctrine and any “market participant” exception to

that doctrine, we need not review those issues here.

The trial court awarded damages for lost business profits

12

under alternative theories of defamation and tortious

interference with business expectations based on defamation.

Attorneys fees were awarded pursuant to MCL 600.2911(7), which

pertains to defamation actions. In light of our reversal of

the judgment of the Court of Appeals regarding defamation and

the resulting reinstatement of the trial court’s decision on

that claim, the full judgment amount awarded by the trial

court to plaintiff is restored.

Accordingly, our disposition of the remaining federal

constitutional issues raised by the parties and decided by the

Court of Appeals will not alter the ultimate resolution of

this case. This Court will not unnecessarily decide

constitutional issues, People v Riley, 465 Mich 442, 447; 636

NW2d 514 (2001), and it is an undisputed principle of judicial

review that questions of constitutionality should not be

decided if the case may be disposed of on other grounds.

MacLean v Michigan State Bd of Control for Vocational Ed, 294

Mich 45, 50; 292 NW 662 (1940).

For these reasons, we decline to address the federal

constitutional issues presented concerning the Noerr-

Pennington doctrine and the suggested “market participant”

exception to that doctrine. Although we question the analysis

of the Court of Appeals regarding those issues, our resolution

of the case makes it unnecessary for us to address them.

13

 Conclusion

The Court of Appeals incorrectly concluded that the

private-figure and public-figure dichotomy present in freedom

of speech and freedom of the press case law is inapplicable to

defamation claims involving the right to petition. In

McDonald, supra at 485, the United States Supreme Court stated

that “there is no sound basis for granting greater

constitutional protection to statements made in a petition

. . . than other First Amendment expressions.” Accordingly,

it is clear that the constitutional rules regarding defamation

claims involving the Free Speech Clause and the Free Press

Clause are applicable to defamation claims involving the

Petition Clause.

The private-figure and public-figure dichotomy being one

of the constitutional rules, we hold that private-figure

defamation plaintiffs are only constitutionally required to

prove ordinary negligence in order to establish defamation in

cases involving the right to petition. No qualified immunity

is constitutionally provided to defamation defendants whose

statements about private figures are made while petitioning

the government. Because MCL 600.2911(7) does not provide

greater protection for defamation defendants than

constitutionally required, ordinary negligence is the standard

required to be met by private-figure defamation plaintiffs in

14

cases involving the Petition Clause.

For these reasons, we reverse and vacate the judgment of

the Court of Appeals and reinstate the judgment of the trial

court.

Robert P. Young, Jr.

Maura D. Corrigan

Elizabeth A. Weaver

Clifford W. Taylor

Stephen J. Markman

15

 S T A T E O F M I C H I G A N

SUPREME COURT

J & J CONSTRUCTION CO.,

Plaintiff-Appellant,

v No. 119357

BRICKLAYERS AND ALLIED CRAFTSMEN,

LOCAL 1 and MARK KING, jointly and

severally,

Defendants-Appellees.

___________________________________

YOUNG, J. (concurring).

Given that we are constrained to follow our best

understanding of the United States Supreme Court’s direction

concerning the Petition Clause, I write separately to suggest

that a proper application of the rules of constitutional

interpretation produces a result contrary to that reached in

McDonald v Smith, 472 US 479; 105 S Ct 2787; 86 L Ed 2d 384

(1985). I believe that, under an originalist interpretation

of the Petition Clause, the defendant union and union

representative would enjoy an absolute immunity from

plaintiff’s suit for their petitioning activity. Should the

Supreme Court of the United States seek to revisit its

Petition Clause jurisprudence, there is significant,

persuasive historical evidence suggesting that the

contemporary understanding of the Petition Clause as announced

in McDonald is incompatible with the original understanding of

the Petition Clause.

If our majority has correctly determined that McDonald

stands for the proposition that, at least concerning

defamation immunity, the sibling clauses of the First

Amendment have no distinctive meaning under our Constitution,

I believe McDonald was incorrectly decided. Further, an

attempt to import constitutional law on defamation involving

free speech and free press to situations involving the right

to petition raises questions about the soundness of such a

principle, as exemplified by our application of the private­

figure and public-figure dichotomy to the present case.

Accordingly, by laying out the historical record

supporting a conclusion based on an originalist understanding

of the Petition Clause, it is my hope that the United States

Supreme Court may choose an alternative course to the one

suggested by McDonald.

I. The Petition Clause

A. The Rules of Constitutional Interpretation

In interpreting a constitution, the primary objective is

to discern the original intent of the constitutional text.

See, e.g., Utah v Evans, 536 US 452, 491; 122 S Ct 2191; 153

2

L Ed 2d 453 (2002) (Thomas, J., concurring in part and

dissenting in part, joined by Kennedy, J.); McIntyre v Ohio

Elections Comm, 514 US 334, 359; 115 S Ct 1511; 131 L Ed 2d

426 (1995) (Thomas, J., concurring in judgment, quoting South

Carolina v United States, 199 US 437, 448; 26 S Ct 110; 50 L

Ed 261 [1905]); Michigan United Conservation Clubs v Secretary

of State, 464 Mich 359, 373; 630 NW2d 297 (2001) (YOUNG , J.,

concurring); People v DeJonge, 442 Mich 266, 274-275; 501 NW2d

127 (1993). See also, 1 Story, Commentaries on the

Constitution of the United States (4th ed, 1873), § 426, p 315

(Justice Story stated that the Constitution must “have a

fixed, uniform, permanent, construction . . . not dependent

upon the passions or parties of particular times, but the same

yesterday, to-day, and forever”); Bork, The Tempting of

America (New York: The Free Press, 1990), ch 7, pp 143-160;

Scalia, A Matter of Interpretation (Princeton, NJ: Princeton

University Press, 1997), pp 37-47. Further, the rights

created under the Bill of Rights must be preserved as they

existed in 1791. McIntyre, supra at 371-372 (Scalia, J.,

dissenting, joined by Rehnquist, C.J.) (stating that the

traditional view held by the Court and society is that the

Constitution’s original meaning is unchanging); Curtis v

Loether, 415 US 189, 193; 94 S Ct 1005; 39 L Ed 2d 260 (1974)

(a common-law action that becomes statutory is nonetheless

3

protected by the Seventh Amendment’s right to trial by jury);

Story, supra. This principle of interpretation follows

inexorably from the fact that the People provided an explicit

method and means for amending the Constitution. US Const, art

V.

The questions presented in this case concern the meaning

of the Petition Clause of the First Amendment. Accordingly,

a thorough analysis of both the history of the practice of

petitioning the government before its codification in 1791 as

a part of the First Amendment and the common understanding of

the text of the Petition Clause at that time is in order.

B. The Original Understanding of the Petition Clause

1. The Pre-1791 History of the Petition Right

The right to petition has historical roots in Anglo-

American constitutional history dating back to 1013. Smith,

“Shall make no law abridging . . .”: An analysis of the

neglected, but nearly absolute, right of petition, 54 U Cin L

R 1153, 1154-1155 (1986) (discussing English nobles’ petition

to Aethelred the Unready in 1013). Even before democracy was

practiced in Great Britain, petitioning was recognized as a

right granted by the royal sovereign to his subjects, as

evidenced in the Magna Carta of 1215. Id. at 1155.

Developing through the centuries, “petitioning reached

enormous popularity” during the era of the Civil War and

4

Interregnum in England. Id. at 1157. In fact, James I

expressly provided “the Right of his subjects to make their

immediate Addresses to him by Petition.” Id., quoting 5 Parl

Hist Eng App ccxiv (1701) (Proclamation 10 July, 19 Jac).

Charles I followed suit and it is documented as late as 1644

that he invited petitioning and promised that such petitioning

would be heard. Id.

In the case of Lake v King, 1 Wms Saund 131, 85 Eng Rep

137 (1668), whether a defamation action could lie where the

alleged defamatory statements were made while petitioning

Parliament was at issue.1 In Lake, as in the present case,

the libel at issue was civil in nature. Defendant King’s

petition to Parliament allegedly defamed plaintiff Lake, yet

it was held that because the defendant was petitioning

Parliament, his statements were immune from liability. Thus,

Lake established that absolute immunity from defamation

1
Although I realize that the Supreme Court in White v

Nichols, 44 US (3 How) 266, 289; 11 L Ed 591 (1845), labeled

Lake “anomalous” and inconsistent with “modern adjudications,”

I note that constitutional interpretation inquiries are

directed at the original understanding of a provision.

Accordingly, that Lake proved to be inconsistent with post­
1791 adjudications should be of no consequence where there is

no record of Lake’s vitality being questioned before 1791.

Nor does the absence of any pre-1791 challenge to Lake warrant

that its rule of law be considered “anomalous.” This is

particularly evident where subsequent events can be relied on

as an indication that Lake was considered sound. See the

discussion below regarding The Case of the Seven Bishops, 12

Howell’s State Trials 183 (1688), and the establishment of the

English Bill of Rights.

5

actions attaches to a petition, regardless whether the

petition contains libelous statements. Id.

If there were any question that petitioners in England

were protected from defamation liability following Lake, The

Case of the Seven Bishops, 12 Howell’s State Trials 183

(1688), and the monumental pivot in English constitutional

history that immediately followed Seven Bishops appear to have

resolved the matter. In April 1688, James II decreed that all

churches read a declaration, “Liberty of Conscience,” at

divine services, which directive many bishops and clergy

refused to follow. After seven bishops petitioned to be

relieved from the King’s mandate, they were prosecuted for

seditious libel. Smith, supra at 1160-1161.

A central inquiry in Seven Bishops was whether the

defendants were “petitioning” the King. Seven Bishops, supra

at 320-321. Defense counsel advanced that the King’s

indicting document—the information—was insufficient inasmuch

as it presented the bishops’ allegedly libelous statements in

an excerpted fashion, separated from the petition as a whole.

The King’s prosecutors argued that the defamatory statements

were delivered in the pretense of a petition and thus only the

libelous paragraphs were germane. The resolution of this

question was dispositive because unpopular political speech

and press were prosecuted as seditious libel during this

6

period in English history. Smith, supra at 1180.

Accordingly, if the bishops’ statement was not properly

communicated pursuant to the recognized petition right,

namely, in a petition, the bishops were not immune and could

have been rightly prosecuted for seditious libel. Following

a lengthy discourse, the entire petition was permitted to be

introduced into evidence and provided to the jury for its

deliberations. The jury returned a verdict of not guilty.

Id. at 1161.

Notwithstanding the verdict in Seven Bishops, James II

appealed to the army to enforce his Liberty of Conscience

decree. In response to the King’s appeal, much of the army

declined, laying down their arms. Thereafter,

[a] convention of the peers and representatives of

the realm resolved on January 28-29, 1689, that

James II had broken the “original contract between

King and people.” The crown was offered to William

and Mary upon the condition that they accept the

Declaration of Rights; acceptance was given on

February 13, 1689. The Declaration of Rights

provided “that it is the right of the subjects to

petition the king, and all commitments and

prosecutions for such petitioning is illegal.”

[Smith, supra at 1162 (emphasis added).]

The adoption of this petition right in the English Bill

of Rights evinces a clear understanding that the rule of Lake,

that petitions to Parliament may not be the subject of

defamation actions, was also the rule concerning petitions to

the king. As the English codified petition right provided in

7

1689, it is the “right of the subjects to petition the king,

and all commitments and prosecutions for such petitioning are

illegal.” Schnapper, “Libelous” petitions for redress of

grievances–Bad historiography makes worse law, 74 Iowa L R

303, 315 (1989), quoting An Act declaring the Rights and

Liberties of the Subject and Settling the Succession of the

Crown (The Declaration of Rights), 1 W & M, sess 2, ch 2

(1688-1689), 9 Statutes at Large 67, 69 (Pickering 1764).

That the people of England intended their petitions to be

immune from all penalty seems unquestionable in light of the

textual language of the 1689 Declaration of Rights,

particularity given the English people’s awareness of the

Seven Bishops case and the historical events it prompted.2

Thus, Lake, the dispositive inquiry in Seven Bishops

regarding whether the defendants’ speech was in petition form,

and the historical effect of Seven Bishops are instructive

about the scope and meaning of the petition right before 1791.

First, they crystalize the common-law understanding in late

seventeenth-century England that speech was absolutely immune

when made in petition form. Second, the historical role that

Seven Bishops had in inducing the creation of the English Bill

2
Defense counsel in Seven Bishops proclaimed to the Court

that the dispute was “a case of the greatest consequence that

ever was in Westminster-hall . . . or in this court.” Seven

Bishops, supra at 239.

8

of Rights (Declaration of Rights) and the explicit inclusion

of the right to petition in the English Bill of Rights

immediately following the Seven Bishops decision reinforce the

foundational understanding of the importance and full scope of

the right to petition. Finally, the elementary distinctions

maintained between the freedoms of speech and press and the

right to petition in the seventeenth century is evident in

Lake and Seven Bishops, where the outcomes were influenced by

whether the defendants’ statements were made while petitioning

because the same subject matter spoken outside the petitioning

activity was not protected. Smith, supra at 1177, 1180.

“The American colonies adopted and adapted the right to

petition from petition’s English precursors.” Mark, The

vestigal constitution: The history and significance of the

right to petition, 66 Fordham L R 2153, 2161 (1998). “In no

case did the colonial affirmation of the right narrow the

English right.” Id. at 2175. Indeed, our Declaration of

Independence is the most famous example of the colonists’

commonplace use of petitioning as a recognized political

right:

We have Petitioned for Redress in the most

humble terms: Our repeated Petitions have been

answered only by repeated injury.

Following the drafting of the Constitution in 1787 and

its ratification in 1789, it became clear that the Anti­

9

Federalists would demand amendments to the Constitution to

assure the continued protection of the well-understood natural

rights that a self-governing people do not forfeit to their

government. Mark, supra at 2207. Regarding consideration of

the petition right, what arose was a focus on the role of the

petition right in the new national governmental experiment

and, more directly, an exhaustive dialogue regarding whether

any petitioning should be accompanied by the power to instruct

the people’s representatives. Instruction was ultimately

rejected.

No discussion is recorded that challenged the protective

scope of the petition right recognized under English law and

practiced in the colonies, including the protection from

defamation under the case law of Seven Bishops and Lake.

Schnapper, supra at 345 (1989) (stating that “there is

absolutely no contemporaneous history suggesting that anyone

connected with the framing and approval of the petition clause

harbored any objection to or intended any limitation on the

right to petition as it had existed under English law prior to

the Revolution and as it continued in the several states.”).

Accordingly, the lack of any discussion regarding limiting the

petition right as it was understood at that time undoubtedly

suggests that the Petition Clause that was ratified as a part

of the First Amendment, in 1791, embodied the same petition

10

right present in the English Bill of Rights and freely

practiced in colonial America.

In fact, even codified qualifications on the petition

right found in several colonial and early state declarations

of rights were not included in the First Amendment Petition

Clause.3 Smith, supra at 1181-1182. Without textual

references in the Petition Clause itself suggesting otherwise,

and the rejection in the adopted Petition Clause of any of the

minor qualifications that were prescribed by individual

colonies and states, the compelling conclusion is that the

First Amendment drafters and ratifiers intended the broad

petition protection that had been recognized in England and

practiced in the colonies.

This conclusion is fortified by the contentious debate

that occurred regarding the lack of a Bill of Rights in the

original Constitution. Bowen, Miracle at Philadelphia

(Boston: Atlantic-Little Brown, 1966), ch XXI, pp 243-253.

Anti-Federalists were astounded that the proposed Constitution

failed to expressly protect the rights of free people that

3
While there existed a few qualifications on the form and

manner of presentation of petitions that were unique to

individual colonial states, none addressed defamation.

Several colonies and states required that a petition be

submitted in an “orderly and peaceable manner.” Smith, supra

at 1181-1182. This requirement was consistent with statutory

requirements that accompanied the English Bill of Rights, but

it did not concern the content of the petition.

11

dated back to the Magna Carta. Id. at 245; The Federalist

(New York: Barnes & Nobel, Wright ed, 1996), p 15. The

Federalist response was not, however, that these rights should

not be protected or should be protected differently than they

had been in the past. Rather, the Federalists advanced, inter

alia, that the rights of man were so well established and

understood that the listing of them was not only unnecessary,

as the federal government could not touch them, but dangerous

inasmuch as it would be impossible to list all the natural

rights of man. Hamilton, Federalist No 84 (available at

Wright ed, supra at 535); Bowen, supra at 245.

Therefore, the 1787-1789 debate whether to include a bill

of rights in the Constitution reveals that neither the

Federalists nor Anti-Federalists questioned the vitality of

the various rights specifically proposed to be listed in such

a bill of rights, rights that were eventually adopted in 1791.

Rather, these rights were admitted to exist and be preserved

as rights natural to all men in the new Constitution, and the

debate on these rights concerned only whether they should be

constitutionally codified. Accordingly, this 1787-1789

discussion of the rights that were eventually incorporated as

the Bill of Rights in 1791 is persuasive support for the

proposition that the drafters and ratifiers of the Petition

Clause clearly understood what the petition right meant: what

12

it had always meant.

In colonial America, two characteristics of the petition

right further disclose the broad reach and distinctive role

the right was understood to have in our new republic. First,

just as the petition right protected the king’s subjects in

England from prosecution for libel, petitioning was available

in America to the enfranchised as well as the disenfranchised.

Petitioning was apparently one of the few mechanisms by which

the disenfranchised joined the enfranchised in the political

life of colonial America. Mark, supra at 2169-2170. In fact,

the right to petition was considered so fundamental to the

operation of government that in documented cases “women, free

blacks, and even slaves, were allowed to petition” in colonial

America, as were prisoners. Smith, supra at 1172; see also

Mark, supra at 2181-2184 (citing Bailey, Popular Influence

Upon Public Policy: Petitioning in Eighteenth Century Virginia

[Westport, CT: Greenwood Press, 1979], pp 43-46).4

This broad availability of the right of petitioning

government was contemporaneous with explicit statutory

limitations on freedom of speech and press that were enacted

4
At least in colonial Virginia, the right to petition was

not limited by class, sex, or race. Bailey, supra at 43. In

fact, Bailey documents that after the Virginia legislature was

given authority over the manumission of slaves in 1776,

petitions increased from blacks both free and enslaved. Id.

at 44.

13

and practiced in colonial America. Smith, supra at 1171

(discussing licensing of the press and punishment for

offensive political speech in Massachusetts, Pennsylvania, and

New York as late as the early 1720s); see also Garry, The

American Vision of a Free Press (1990). “Seditious libel laws

existed in all of the colonies, and punishment for statements

critical of the government was an accepted, lawful practice

which continued even after the framing and ratification of the

First Amendment.” Spanbauer, The First Amendment right to

petition government for a redress of grievances: Cut from a

different cloth, 21 Hastings Const L Q 15, 37 (1993). Yet,

the presentation of a petition to the government was not

considered a “publication” under the libel laws in both

England and colonial America. Id. at 38; see also Clar,

Comment, Martin v City of Del City: A lost opportunity to

restore the First Amendment right to petition, 74 St John’s L

R 483 (2000).

In addition, while there is a clear indication that the

First Amendment drafters rejected the idea that the people

could “instruct” their representatives, the understanding of

the petition right in 1787 was that petitioning was such an

influential force in the idea of self-government that it

included the right to consideration and response. Mark, supra

at 2204-2212. In other words, the filing of a petition with

14

the government entitled the petitioner to legislative

consideration of the petition, as well as a legislative

response to the petition.

Interestingly, one of the most powerful indications of

the breadth of, and political importance attached to, the

right of petition in the early days of the United States

occurred within its first years of founding and immediately

before the adoption of the Bill of Rights. The filing of the

Quaker petitions in the 1st Congress in 1790, concerning

demands for ending the practice of slavery, occasioned what

many congressional members considered a constitutional crisis

that might destroy the fragile new national government. See

Ellis, Founding Brothers (New York: Knopf, 2000), ch 3, pp 81­

119. What is remarkable for constitutional analysis is not

that such politically and constitutionally explosive petitions

were filed, but why the petitions were not simply ignored by

America’s new Congress and why none of the Quaker petitioners

was threatened with prosecution for defamation or sedition.

It is well understood that one of the significant

constitutional compromises that was struck in order to gain

approval within the Constitutional Convention (and eventually

among the colonies that were to adopt the proposed

constitution) was the Sectional Compromise. The question of

how to address the slavery issue in a national government

15

proved to be impossible for the drafters to wholly resolve.

Ellis, supra at 85-86. Consequently, the Sectional Compromise

placed the issue of the slave trade beyond the powers of the

federal government until 1808, by adding article I, § 9, cl 1,

to the Constitution.5 Ellis, supra at 85-86. It was believed

that by thus placing the importation-of-slaves question beyond

congressional reach the issue of slavery would not raise its

divisive and insoluble head, at least in the early days of the

Union. Bowen, supra at 200-204. However, the founders and

ratifiers who so believed had not reckoned on the passionate

abolitionist Quakers of the Northeast who well understood and

would exercise their right to petition. Ellis, supra at 81.

Notwithstanding clause 1 of article I, § 9, upon receipt

of the Quaker petitions, one personally endorsed by Benjamin

Franklin, the 1st Congress was immediately convulsed over how

to proceed. Id. at 81-119. There was much debate about

whether the Quaker petitions should be read in the House

chamber because of their potential to rekindle a question the

drafters of the Constitution, a number of whom were members of

the 1st Congress, were unable to resolve other than by

5
“The Migration or Importation of such Persons as any of

the States now existing shall think proper to admit, shall not

be prohibited by the Congress prior to the Year one thousand

eight hundred and eight, but a Tax or duty may be imposed on

such Importation, not exceeding ten dollars for each Person.”

US Const, art I, § 9, cl 1.

16

constitutionally deferring its consideration for twenty years.

Ellis, supra. Eventually, the Congress resolved to refer the

Quaker petitions to a special committee for a more private

consideration. Thereafter, the 1st Congress adopted a

resolution permanently precluding the consideration of the

slavery question.6 Id.

Again, even given the constitutional crisis that the

Quaker petitions posed for the new national government, the

remarkable thing about this historic episode is that there

does not appear to be any indication that the 1st Congress

believed it could simply ignore the petitions, despite Article

I, § 9, cl 1. More important, these petitioners were not

prosecuted for what at least the southern members of Congress

undoubtedly considered libelous, seditious statements.

2. The Text of the Petition Clause

As a textual matter, I note that although the United

States Supreme Court has stated that all the First Amendment

6
A good deal of the congressional time and activity was

devoted to the debate on the Quaker petitions, with veiled

threats of secession made by southern members of Congress if

any aspect of slave practices were disturbed by the federal

legislature. Ellis, supra. Eventually, by resolution, the

1st Congress adopted an amended recommendation of the

committee formed to consider the Quaker petitions. Ellis,

supra at 118 (citing De Pauw, 3 Documentary History of the

First Federal Congress of the United States [Baltimore: John

Hopkins Univ Press, 1972], p 341). That resolution forbade not

only congressional consideration of the issue of slavery until

1808, but banned its consideration forever. Ellis, supra at

118.

17

rights are cut from the same cloth, McDonald v Smith, supra at

482, the clauses are nonetheless distinct in their natures.7

The First Amendment provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

Inasmuch as the First Amendment protects the “freedom of

speech,” the word “speech” has often been dissected in order

to determine what constitutes speech. In this pursuit, the

United States Supreme Court has often focused on the subject

of the speech. See, e.g., Miller v California, 413 US 15; 93

S Ct 2607; 37 L Ed 2d 419 (1973) (obscenity); Virginia State

Bd of Pharmacy v Virginia Citizens Consumer Council, Inc, 425

US 748; 96 S Ct 1817; 48 L Ed 2d 346 (1976) (commercial

speech); Chaplinsky v New Hampshire, 315 US 568; 62 S Ct 766;

7
At the least, the presentation of the Petition Clause as

one separate from the clauses concerning freedom of speech in

the First Amendment alerts us textually that the purpose and

intent of the Petition Clause must be distinct from its

sibling clauses. Higginson, A short history of the right to

petition government for the redress of grievances, 96 Yale L

J 142, 155-156 (1986). Further, I note that whereas the Free

Speech Clause and the Free Press Clause are separated by a

comma, both are separated from the Petition Clause by a semi­
colon. See Kesavan & Paulsen, Is West Virginia

constitutional?, 90 Cal L R 291, 334-352 (2002) (discussing,

inter alia, the interpretation of the sixty-five semi-colons

contained in the original constitution, particularly the

punctuation of US Const, art IV, § 3 concerning the creation

of new states).

18

86 L Ed 1031 (1942) (fighting words); RAV v City of St Paul,

505 US 377; 112 S Ct 2538; 120 L Ed 2d 305 (1992) (hate

speech). In fact, case law on freedom of speech has developed

a bifurcated analysis differentiating whether contested

regulations on expression are “content-neutral” or “content­

based.” See, e.g., Tribe, American Constitutional Law (2d ed),

§ 12-2, pp 791-792.

However, while the text of the Free Speech Clause fairly

invites an analytical focus on the subject of speech, the text

of the Petition Clause, the right “to petition,” denotes a

focus not on the identity of the speaker or subject matter,

but the identity of the listener. The text of the First

Amendment accordingly implies that where the government is the

listener, the speaker’s right to petition the government is at

issue.

This textual distinction is not, in my opinion, without

significance. Rather, it signals the original intent of the

Petition Clause to protect citizen input when presented in the

form of a petition to government, regardless whether it would

be considered “speech” or “press” under the sibling clauses of

the First Amendment.

3. Post-1791 Development

While petitioning in colonial America afforded even the

disenfranchised access to the People’s representatives,

19

petitioning eventually atrophied as a popular tool of self­

governance at the center of our republican form of government

with the increased emphasis on voting and the expansion of

rights of enfranchisement in the United States.8 Mark, supra

at 2154, 2158-2160. Because petitioning itself has receded in

its political prominence, it is not hard to understand why,

especially with the enormous expansion of protections now

accorded under the Free Speech Clause and the Free Press

Clause during the last century, the Petition Clause has lacked

apparent independent political importance in constitutional

adjudication. Despite what I believe is a compelling

historical and textual case for according the Petition Clause

distinctive meaning,9 by the twentieth century, the federal

judiciary had all but relegated the Petition Clause to the

8
See, e.g., the Fifteenth, Nineteenth, and Twenty-Sixth

Amendments, which extended the right to vote to individuals

regardless of race, color, or previous servitude and to women

and citizens eighteen years old and older.

9
Further, it seems illogical that the founders, wary of

an overpowering and unaccountable federal government, would

create immunity from defamation for governmental actors under

the Speech and Debate Clause, US Const, art I, § 6, cl 1, but

expose the People to defamation when petitioning. Barr v

Mateo, 360 US 564; 79 S Ct 1335; 3 L Ed 2d 1434 (1959).

Consider a mutually libelous exchange between a citizen and a

congressman at a congressional hearing. While the congressman

would be absolutely immune from liability because of the

Speech and Debate Clause, under McDonald’s interpretation of

the Petition Clause, the citizen would face potential

liability. Such an outcome seems incompatible with the

founders’ understood view that the People are the masters and

the government the servant.

20

status of a step-sibling without independent identity or

import apart from the Free Speech Clause and the Free Press

Clause of the First Amendment. Our contemporary Petition

Clause jurisprudence is thus entirely anchored in that

developed under the other First Amendment clauses. See, e.g.,

McDonald, supra.

4. Resolution

Although I would adhere to the principle that a

constitutional provision is to be interpreted consistently

with its original understanding,10 I acknowledge that our

obligation is to follow the United States Supreme Court’s

interpretation of this constitutional provision. In light of

the Court’s holding that absolute immunity from defamation

does not exist for petition activity in McDonald, I accept as

I must the analysis offered in my majority opinion.

10
While I acknowledge that contemporary, postratification

judicial interpretations of a constitutional provision could

permissibly aid an effort to determine the original intent of

a provision, I suggest that such consideration is misplaced

where the original intent can be surmised from the

preratification understanding of the provision’s meaning.

Inasmuch as McDonald essentially ignores the preratification

understanding of the petition right, I find its concentration

on the postratification case law insufficient and unjustified.

Schnapper, supra (stating that McDonald fails “to discuss any

seventeenth- or eighteenth-century materials that might reveal

the contemporaneous understanding of the petition clause, but

relies instead solely on postratification materials,” id. at

305, and concluding that “[h]ad McDonald written his letter .

. . to President Washington or to George III, rather than to

President Reagan, a libel action by Smith would have been

dismissed out of hand,” id. at 343).

21

 However, I believe the history and text of the petition

right, as analyzed above, support an interpretation that the

Petition Clause is distinct from its First Amendment siblings

and therefore deserves consideration regarding whether

distinct treatment in the constitutional law of defamation is

warranted under the Petition Clause. For this reason, I

believe McDonald was incorrectly decided.

II. Application of the McDonald Principle

While I concur in the majority opinion because of the

clear direction provided by McDonald, in addition to my

original-intent analysis, I believe there are meritorious

arguments for declining to extend the private-figure and

public-figure defamation distinction to cases involving the

right to petition. Further, the flaw of the McDonald

principle that the First Amendment clauses are to be treated

without distinction in defamation cases is exposed, in my

opinion, by the extension of the private-figure and public­

figure dichotomy to petition-right cases—particularly the

present case.

The rationale for the private-figure and public-figure

dichotomy announced in Gertz v Robert Welch, Inc, 418 US 323;

94 S Ct 2997; 41 L Ed 2d 789 (1974), seems potentially

misplaced in petition settings where the alleged defamation

damages derive from the resulting actions of the government.

22

Gertz reasoned that private individuals are more vulnerable to

defamation than public figures because public figures have

“significantly greater access” to the media and can use the

media to counteract false statements. Gertz, supra at 344.11

It is arguable that the Gertz “access to the media”

rationale in the free speech and free press contexts is ill­

fitted to the right to petition context, particularly where a

plaintiff’s damages are a product of the adverse actions of

government, albeit induced by a third party. Unlike

falsehoods disseminated by or in the media, access to city

council meetings is not similarly limited. City council

meetings are generally not run so that only public figures can

be heard and private figures ignored. A central purpose of a

11
I recognize that Gertz also opined that public figures

deserve less protection against defamation because they have

“voluntarily exposed themselves to increased risk of injury

from defamatory falsehood[s],” Gertz, supra at 345, unlike

private persons. While this reasoning would appear to provide

an alternative Gertz-based avenue for extending the private­
figure and public-figure dichotomy to the Petition Clause, I

suggest that this rationale is also perhaps misplaced in a

petition setting like the present one.

Although it is well established in the case law on

freedoms of speech and press that a private figure who throws

himself into a public dispute can become a limited purpose

public figure for defamation qualified immunity purposes,

Gertz, supra at 351, plaintiff in this case petitioned the

city council to award him a public contract. It appears

questionable to me that one who invites comment from his

fellow citizens by petitioning the government on a public

issue, seeking the fruits of a taxpayer-funded construction

project, remains a private figure.

23

public meeting of the city council is to allow citizenry input

and to maximize the exposure of the government’s decision­

making in an open meeting.

In fact, the access to respond to defamatory statements

in a petition context is evident in the present case, where

plaintiff was given the opportunity at the city council

meeting to answer defendant’s assertions. Further, the

Petition Clause itself protected plaintiff’s right to deliver

a written petition to the city council in order to answer the

defamatory statements made by defendant. For these reasons,

it is questionable whether the rationale for the private­

figure and public-figure dichotomy announced in Gertz, and

applied in defamation actions involving freedom of speech or

freedom of press, provides a solid foundation for the private­

figure and public-figure standard in the right to petition

context. This extension is particularly questionable where

the damages are a result of a decision made by the listener,

a city council, to which both plaintiff and defendant have

constitutionally guaranteed access under the Petition Clause.

III. Conclusion

An analysis of the original understanding of the Petition

Clause leads to the conclusion that McDonald was incorrectly

decided. Consistent with its preratification history and its

text, I believe that the Petition Clause offers protections

24

distinct from its sibling clauses under the First Amendment

and that the defendant union representative’s statements were

absolutely immune from defamation liability.

However, McDonald provides this Court with clear

direction about whether the private-figure and public-figure

dichotomy of free speech and free press defamation law is to

be extended to petition right defamation cases. As this Court

is bound by McDonald because of the Supremacy Clause of the

United States Constitution,12 I reluctantly but obediently

agree with the analysis set forth in my majority opinion.

Robert P. Young, Jr.

12
US Const, art VI, cl 2.

25

 S T A T E O F M I C H I G A N

SUPREME COURT

J & J CONSTRUCTION CO,

Plaintiff-Appellant,

v No. 119357

BRICKLAYERS AND ALLIED CRAFTSMEN,

LOCAL 1 and MARK KING, jointly and

severally,

Defendants-Appellees.

___________________________________

CAVANAGH, J. (dissenting).

I agree with the majority’s observation that the United

States Supreme Court has never been squarely presented with

the question whether the public-figure and private-figure

dichotomy embodied in the case law on defamation involving

First Amendment’s Free Speech Clause and Free Press Clause

should extend to defamation cases involving the Petition

Clause. However, I disagree with the majority’s conclusion

that McDonald v Smith, 472 US 479; 105 S Ct 2787; 86 L Ed 2d

384 (1985), requires application of the public-figure and

private-figure dichotomy to Petition Clause defamation cases.

While, arguably, McDonald may allow application of the

dichotomy to Petition Clause defamation cases, it certainly

does not require it. Further, the principles expressed by our

high court do not support the majority’s conclusion. Because

I do not agree with the majority’s assertion that McDonald

forces states to import the public-figure and private-figure

dichotomy to Petition Clause defamation cases, and because I

recognize the historical significance of the Petition Clause,

as well as the fact that the text and structure of the

Petition Clause in the Michigan Constitution differ from the

text and structure of the First Amendment of the United States

Constitution, I respectfully dissent. I would ask the parties

for additional briefing regarding the effect of the Petition

Clause in the Michigan Constitution.

I. THE PETITION CLAUSE: IS THERE A PUBLIC-FIGURE VERSUS

PRIVATE-FIGURE DISTINCTION?

The majority acknowledges that the defamation action in

McDonald was brought pursuant to North Carolina’s common law,

which requires a showing of “actual malice” to recover for

defamation, regardless of whether the plaintiff is a public or

a private figure.1 The majority concludes that this

1
Plaintiff’s cause of action in this case, by contrast,

arises under Michigan’s defamation statute, MCL 600.2911(7),

which provides:

An action for libel or slander shall not be

(continued...)

2

application of state law by the United States Supreme Court

“strongly signaled its view that all Free Speech Clause and

Free Press Clause defamation doctrine developed in the past

forty years is to be imported without change to constitutional

adjudications arising under the Petition Clause”2 and rejects

an alternative interpretation, instead relying on Arkansas v

Sullivan, 532 US 769; 121 S Ct 1876; 149 L Ed 2d 994 (2001).

The majority states:

In interpreting the federal constitution,

state courts are not privileged to provide greater

protections or restrictions when the Supreme Court

of the United States has refrained from doing so.

[Ante at 11 n 9.]

In Sullivan, the United States Supreme Court reversed the

Arkansas Supreme Court’s holding that it was free to interpret

the United States Constitution to provide greater protection

than United States Supreme Court federal constitutional

precedent provides. The Sullivan Court noted that such a

possibility was foreclosed by Oregon v Hass, 420 US 714; 95 S

Ct 1215, 43 L Ed 2d 570 (1975):

We reiterated in Hass that while “a State is

1
(...continued)

brought based upon a communication involving a

private individual unless the defamatory falsehood

concerns the private individual and was published

negligently. Recovery under this provision shall

be limited to economic damages including attorney

fees.

2
Ante at 10.

3

 free as a matter of its own law to impose greater

restrictions on police activity than those this

Court holds to be necessary upon federal

constitutional standards,” it “may not impose such

greater restrictions as a matter of federal

constitutional law when this Court specifically

refrains from imposing them.” [Sullivan at 772,

quoting Hass at 719 (emphasis in original).]

The majority’s reliance on Sullivan is misplaced for two

reasons. First, requiring all plaintiffs to prove that

defamatory statements were made with actual malice in Petition

Clause defamation cases would not impose a “greater

restriction” than that imposed by the United States Supreme

Court in McDonald. In fact, it would apply the same standard

utilized by the Court in McDonald. The majority’s reliance on

Sullivan is also misplaced because the United States Supreme

Court has not “specifically refrained” from applying the

actual-malice standard to private-figure plaintiffs in

Petition Clause defamation claims. This remains, as

acknowledged by the majority, a question not yet decided by

the United States Supreme Court.

Further, in McDonald, the United States Supreme Court

held that the right to petition should be accorded no greater

protection than other First Amendment expressions, inasmuch as

absolute immunity was held inappropriate. McDonald did not

hold that the right to petition was limited to the same

protection as the rights to free speech and free press. The

4

Court did not indicate a clear intent to import the veritable

plethora of jurisprudence surrounding the rights to free

speech and free press into Petition Clause defamation.

Moreover, the principles articulated in McDonald do not

support the interpretation employed by the majority. The

question the Court was presented with in McDonald was

whether the Petition Clause of the First Amendment

provides absolute immunity to a defendant charged

with expressing libelous and damaging falsehoods

in letters to the President of the United States.

[McDonald at 480.]

The Court repeatedly examined the claim of absolute

immunity in light of the actual-malice standard. Reviewing

early state libel cases, the McDonald Court determined that

there were conflicting views of the privilege afforded

petitioners: some states afforded petitioners absolute

immunity, while others allowed recovery for petitioning

activity performed “maliciously, wantonly, and without

probable cause . . . .” Id. at 483, quoting, Gray v Pentland,

2 Serg & R 23 (Penn, 1815). The McDonald Court also noted

that in White v Nicholls, 44 US (3 How) 266; 11 L Ed 591

(1845), it did not recognize an absolute privilege, rather it

concluded that “the defendant’s petition was actionable if

prompted by ‘express malice . . . .’” McDonald at 484. The

McDonald opinion does not mention negligence; it simply holds

that there is not absolute immunity for Petition Clause

5

defamation.

As scholars have noted:

The text [of McDonald] merely requires proof

of actual malice ‘defined...in terms...consistent

with New York Times v. Sullivan.’ If the Court had

intended to establish the entire public/private

figure [dichotomy] for Petition Clause [defamation]

cases, [it] would have discussed Gertz v Robert

Welch, Inc. [Gary, First Amendment Petition Clause

immunity from tort suits: In search of a consistent

doctrinal framework, 33 Idaho L R 67, 110

(1996)(citations omitted).]

McDonald is more commonly interpreted as employing the

actual-malice standard of New York Times Co v Sullivan, 376 US

254; 84 S Ct 710; 11 L Ed 2d 686 (1964); to interpret McDonald

as incorporating the public-figure and private-figure

dichotomy is a misreading of the case. Gary at 109; see also,

4 Rotunda & Nowak, Treatise on Constitutional Law (3d ed),

§ 20.53, p 690 n 3 (The Petition Clause does not require state

libel law to expand the qualified privilege already afforded

by New York Times.).

Justice Brennan’s concurrence in McDonald provides useful

insight, he stated:

There is no persuasive reason for according

greater or lesser protection to expression on

matters of public importance depending on whether

the expression consists of speaking to neighbors

across the backyard fence, publishing an editorial

in the local newspaper, or sending a letter to the

President of the United States. It necessarily

follows that expression falling within the scope of

the Petition Clause, while fully protected by the

actual-malice standard set forth in New York Times

6

 Co v Sullivan, is not shielded by an absolute

privilege. [McDonald at 490.]

“This forceful statement suggests that actual malice is

the standard for petitioning activity, regardless of the

status of the plaintiff.” Gary at 112.

Thus, while it is clear that the United States Supreme

Court intended that a defendant claiming immunity from

defamation on the basis of the Petition Clause not be afforded

absolute immunity, it is not at all clear that the Court

intended the qualified immunity to apply differently depending

on whether the plaintiff is a public or a private figure. The

majority’s assertion that McDonald requires the states to

import the public-figure and private-figure dichotomy

applicable in free-speech and free-press cases is simply not

supported by a careful reading of that case.

II. MICHIGAN’S PETITION CLAUSE

While I recognize the principles underlying, and the

historical significance of, the Petition Clause, as outlined

by Justice Young in his concurring opinion, I am reluctant to

question the wisdom of the United States Supreme Court in

interpreting the federal constitution. However, on the basis

of the principles noted in Justice Young’s concurring opinion,

I think the bench and bar in this state would benefit from a

thorough analysis of the protections afforded petitioners

under the Michigan Constitution. Because this Court was not

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presented with such an analysis, I would request additional

briefing from the parties.

Notably, the structure of Const 1963 differs from the

federal constitution. Each right included in the federal

constitution’s First Amendment is expressed as a separate

clause in Const 1963, art 1, the Declaration of Rights. Const

1963, art 1, in pertinent part, provides:

Sec 2. No person shall be denied the equal

protection of the laws; nor shall any person be

denied the enjoyment of his civil or political

rights or be discriminated against in the exercise

thereof because of religion, race, color or

national origin. The legislature shall implement

this section by appropriate legislation.

Sec 3. The people have the right peaceably to

assemble, to consult for the common good, to

instruct their representatives and to petition the

government for redress of grievances.

Sec. 4. Every person shall be at liberty to

worship God according to the dictates of his own

conscience. . . .

Sec. 5. Every person may freely speak, write,

express and publish his views on all subjects,

being responsible for the abuse of such right; and

no law shall be enacted to restrain or abridge the

liberty of speech or of the press.

By contrast, the First Amendment to the federal constitution

provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances. [US Const,

Am I.]

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Because McDonald’s determination that the rights to free

speech and free press and the right to petition were

inseparable was based on the structure of the Petition Clause,

and because the structure of Michigan’s Petition Clause is

decidedly different from the federal clause, I would inquire

whether the framers of the Michigan Constitution intended to

afford greater protection to petitioners by creating a

distinct clause. Because this issue was not briefed by the

parties, and, thus, is not properly before the Court, I would

ask the parties for further briefing on the issue.

III. CONCLUSION

I do not agree with the majority that McDonald requires

states to impose the public-figure and private-figure

dichotomy when deciding Petition Clause defamation cases.

Further, McDonald can be and has been interpreted as

establishing that, whenever the right to petition is

exercised, that right is afforded the protection of the

actual-malice standard. Because I believe it may be

significant that the text and structure of Michigan’s Petition

Clause differs from the federal constitution’s First Amendment

and because I recognize the historical significance of the

right to petition in a democratic society, I would request

additional briefing.

Michael F. Cavanagh

Marilyn Kelly

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