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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