Rouch v. Enquirer & News

487 N.W.2d 205, 440 Mich. 238

• Court: Michigan Supreme Court
• Decided: July 15, 1992
• Docket: 89799, (Calendar No. 2)
• Status: Published

Opinions

AFTER REMAND

Boyle, J.

A responsible press has always been regarded as the handmaiden of effective judicial administration .... Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. [Sheppard v Maxwell, 384 US 333, 350; 86 S Ct 1507; 16 L Ed 2d 600 (1966).]

In this case we are called upon to examine, the balance between protecting an individual’s reputation from false and defamatory statements and fostering energetic, tumultuous public debate to ensure continued scrutiny of police, prosecutors, and the courts through cherished constitutional rights guaranteeing freedom of speech and the press.¹ Newspapers have a 'longstanding tradition of reporting on criminal justice and police conduct. "With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.” Cox Broadcasting Corp v Cohn, 420 US 469, 492; 95 S Ct 1029; 43 L Ed 2d 328 (1975). Protecting that tradition without trampling the rights of individual citizens is the task facing this Court.

The plaintiff, David Rouch, was arrested, booked on a charge of first-degree criminal sexual conduct by the police upon authorization from an attorney in the prosecutor’s office, and released after an informal bond hearing by a magistrate acting in her formal capacity pursuant to MCR 6.104. The defendant newspaper, the Enquirer & News of Battle Creek, published an account of Rouch’s arrest, the charge against him, and his release on bond. Later, when Rouch appeared for his formal arraignment, he was told that the charges had been dropped. Rouch predicates his suit upon inaccuracies in the newspaper report.

Perhaps it is not surprising that with such important rights at stake, this controversy has required so much appellate court time.² When this Court first considered the case, it reviewed an abbreviated record prepared prior to a summary disposition motion to determine "the applicability of Michigan’s statutory 'public and official proceedings’ statute, MCL 600.2911(3); MSA 27A.2911(3), and the viability of its common-law qualified public-interest privilege.” 427 Mich 157, 160; 398 NW2d 245 (1986). With further factual development, the matter returns to this Court for additional review. We now consider whether the defendant published a materially false article. We need not reach the issue whether it was negligently published,³ and whether the more complete factual record brings the case within Michigan’s statutory privilege.⁴

We hold that the article was not materially false, ⁵ and we therefore reverse the decision of the Court of Appeals and remand for entry of judgment notwithstanding the verdict in favor of the defendant.

I

A. THE PROCEDURAL HISTORY

On December 5, 1980, David Rouch commenced this libel action against the Enquirer & News of Battle Creek by filing a complaint in the Calhoun Circuit Court. Rouch claimed that the newspaper had falsely published an article describing his arrest as a suspect for the rape of a seventeen-year-old girl who was baby-sitting for his former wife. After initial discovery, the newspaper filed a motion for summary disposition, seeking an order of no cause of action because the newspaper was entitled to qualified privilege under the terms of MCL 600.2911(3); MSA 27A.2911(3). In support of its motion, the newspaper relied on the depositions of the plaintiff, affidavits of the news reporter who authored the article, and a police sergeant who provided a copy of. the incident report with respect to Rouch’s arrest. Relying on Schultz v Newsweek, Inc, 668 F2d 911 (CA 6, 1982), the trial court ruled that the newspaper was entitled to a qualified privilege for matters of general public interest. As a result, the trial court concluded that the plaintiff was required to prove actual malice in order to sustain his claim. The trial court granted summary judgment in favor of the defendant on the basis that the plaintiff was unable to establish a genuine issue of material fact regarding the defendant newspaper’s malice.

The Court of Appeals reversed the ruling of the trial court, stating that the statutory privilege was unavailable on the basis that no warrant was issued in the case, that the common-law privilege to report matters in the public interest was unavailable because the details of the alleged crime fell outside the scope of matters promoting the public interest, and that the trial court erred in requiring a showing of malice.⁶ We granted the defendant leave to appeal.⁷

In Rouch v Enquirer & News of Battle Creek, 427 Mich 157; 398 NW2d 245 (1986) (hereafter Rouch I), we considered the scope of Michigan’s statutory privilege, the continued existence of Michigan’s qualified privilege in light of the constitutional dimensions of the law of defamation as developed by the United States Supreme Court in New York Times Co v Sullivan, 376 US 254; 84 S Ct 710; 11 L Ed 2d 686 (1964), and its progeny, and the burden of proving falsity. Writing for the majority, Justice Brickley considered the questions of privilege and discussed the applicability of the "official proceedings privilege” statute, MCL 600.2911(3); MSA 27A.2911(3). Justice Brickley concluded that an arrest,, absent judicial action, falls outside the scope of "public and official proceedings” as covered in Michigan’s statute.⁸ In rejecting an interpretation of Michigan’s statutory privilege that would reach arrests or police reports absent judicial action, Justice Brickley reasoned that the language "evoke[d] notions of adjudicatory action, rather than of government action generally.” 427 Mich 172. Justice Brickley further explored the effect of constitutional mandates on the availability of Michigan’s public-interest privilege. Concluding that the public-interest privilege had been largely subsumed by the more expansive constitutional protections afforded by the New York Times standard, we adopted the Gertz

9 negligence standard in place of the former public-interest privilege, 427 Mich 202, and remanded the case to the trial court for further proceedings, with the instruction that the plaintiff bore the burden of proving falsity.

On February 9, 1988, an eight-day trial commenced in circuit court. Witnesses included the news reporter responsible for the story, police officers, the plaintiff, the magistrate responsible for holding the informal bond hearing, and several expert witnesses. Significantly, John Bell, a Battle Creek police officer, testified that the prosecutor, Mr. Pattison, authorized Mr. Rouch to be arrested on the charge of first-degree criminal sexual conduct. The defendant introduced a copy of the police report that detailed the booking of Rouch for criminal sexual conduct on the basis of the authorization of Prosecutor Pattison. Officer Bell also explained that an arraignment for bond purposes was held before the magistrate.¹⁰ Adding to the factual record in Rouch £ which focused on the facts regarding the arrest and police reports, the trial record included testimony from the magistrate who was responsible for setting bond. The magistrate testified that one of her official duties was to set bond for persons being held in custody. Although the magistrate did not specifically recall the details of this hearing, the defendant introduced a bail bond form signed by Rouch which evidenced a $10,000 personal recognizance bond with appearance for arraignment required on December 28, 1979. The form detailed the offense as criminal sexual conduct in the first degree. The magistrate agreed that the form indicated that she had set bond and described the manner in which such bonds were set. She explained that to set bond, she would consider the length of the defendant’s residence in the community, his employment status, his reputation and character, his prior criminal record, his record of appearance or nonappearance on other occasions, the nature of the offense, and the probability of conviction.¹¹

The defendant renewed its motion for directed verdict incorporating all its prior arguments, and again raised the contention that the case fell within Michigan’s statutory privilege, relying particularly on the magistrate’s testimony as evidence of an official proceeding. The jury returned a verdict in favor of the plaintiff and awarded damages of one million dollars. The defendant unsuccessfully moved for judgment notwithstanding the verdict. A stay was granted, and the newspaper appealed in the Court of Appeals.

The Court of Appeals addressed numerous issues in affirming the jury verdict. The Court rejected the defendant’s contention that the plaintiff failed to prove that the article was materially false. The Court disagreed with the defendant’s assertion that the plaintiff failed to submit sufficient evidence to establish negligence. In addition, the Court disagreed with the defendant’s suggestion that publication of the article was within the protection of the official proceedings statute.

We granted the defendant leave to appeal. 437 Mich 1035 (1991).

B. THE FACTUAL BACKGROUND

This case began on December 21, 1979, with the arrest of David Rouch as a suspect in the rape of his former wife’s baby-sitter. Rouch was arrested without a warrant, held by the police, booked on the charge of first-degree criminal sexual conduct, as authorized by the prosecutor, and released on $10,000 personal recognizance bond after an informal hearing before a magistrate.¹² It is undisputed that Rouch was never formally arraigned on a warrant and that the police eventually pursued another suspect. The facts surrounding Rouch’s arrest were set forth in an article published by the Battle Creek News & Enquirer.¹³ Mr. Rouch conceded that the article in question and its references to his arrest, booking, and release on bond were accurate. Plaintiff complained, however, about three supposedly material errors. First, plaintiff contended that the article falsely asserted that Rouch was "charged” with sexual assault. Second, the plaintiff complained that the article falsely stated that he was identified by his children when, in reality, he was identified by his former wife’s children, his former stepchildren. Third, plaintiff complained that the article was inaccurate in that it asserted that the charge against Rouch was authorized by the Calhoun County Prosecutor’s office.

The facts regarding the manner in which the newspaper reporter received the information are in dispute. The reporter claimed that he contacted members of the Bedford Police Department in Calhoun County who relayed the information to him, and that he held the information until he was informed that court action had occurred and Rouch was released on bond with an arraignment set for the following week. Because the reporter could not identify with certainty to whom he spoke at the police department, and the officers who testified could not recall speaking with the reporter about this specific case, the plaintiff suggests that the reporter uncovered the information in some other way.¹⁴

II

A proper determination of the plaintiff’s defamation claims requires consideration of the elements of libel under Michigan law in light of the constitutional requirements and principles that shape libel law to be consistent with First Amendment strictures. Michigan adheres to the commonly accepted meaning of a defamatory communication set forth in the Restatement of Torts. Nuyen v Slater, 372 Mich 654, 662; 127 NW2d 369 (1964). 3 Restatement Torts, 2d, § 559, p 156, provides:

A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

In Locricchio v Evening News Ass’n, 438 Mich 84, 115-116; 476 NW2d 112 (1991), we enumerated four components for a cause of action for libel: 1) a false and defamatory statement concerning the plaintiff, 2) an unprivileged communication to a third party, 3) fault amounting to at least negligence on the part of the publisher, and 4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication.

In addition to satisfying Michigan’s common-law requirements for a libel cause of action, a litigant must comply with constitutional requirements. As we recognized in Locricchio, analysis under the constitution has focused on three elements: "the public- or private-figure status of the plaintiff, the media or nonmedia status of the defendant,[15] and the public or private character of the speech.” Id. at 118. In this case involving a private plaintiff, a media defendant, and a publication regarding an area of public concern, the constitution requires that the plaintiff bear the burden of proving falsity. Philadelphia Newspapers, Inc v Hepps, 475 US. 767; 106 S Ct 1558; 89 L Ed 2d 783 (1986). Further, after Gertz v Welch, Inc, 418 US 323, 347; 94 S Ct 2997; 41 L Ed 2d 789 (1974), invited states to "define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual,” this Court adopted negligence as the standard in Michigan. Rouch I, 427 Mich 195.¹⁶ Thus, the plaintiff must establish that the defendant’s publication of the communication at issue was negligent.¹⁷

The Court of Appeals affirmed the jury verdict in this case, ruling that the plaintiff met his burden of proving falsity, that sufficient evidence was submitted to establish the defendant’s negligence, and that the defendant could not invoke the protection of Michigan’s "official proceedings” statute, MCL 600.2911(3); MSA 27A.2911(3). Rouch v Enquirer & News (On Remand), 184 Mich App 19; 457 NW2d 74 (1990). We disagree with the ruling on material falsity.¹⁸

m

In Locricchio, 438 Mich 110-114, we held that in reviewing a libel case affecting constitutionally protected public discourse, an appellate court must independently review the record with regard to falsity. The concept of independent appellate review of the record reflects a longstanding concern that judges "exercise such review in order to preserve the precious liberties established and ordained by the Constitution.” Bose Corp v Consumers Union of United States, Inc, 466 US 485, 511; 104 S Ct 1949; 80 L Ed 2d 502 (1984). Since New York Times Co v Sullivan, supra at 285, the United States Supreme Court has emphasized the importance of careful appellate review of the evidence to ensure that constitutional principles are properly applied. There, the Court explained:

This Court’s duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across "the line between speech unconditionally guaranteed and speech which may legitimately be regulated.” . . . In cases where that line must be drawn, the rule is that we "examine for ourselves the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.” . . . We must "make an independent examination of the whole record,” ... so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.

Reiterating this conclusion in Time, Inc v Pape, 401 US 279; 91 S Ct 633; 28 L Ed 2d 45 (1971), the Court underscored its concern that an independent examination of the evidence be conducted. Writing for the majority, Justice Stewart stated:

Inquiries of this kind are familiar under the settled principle that "[i]n cases in which there is a claim of denial of rights under the Federal Constitution, this Court is not bound by the conclusions of lower courts, but will re-examine the evidentiary basis on which those conclusions are founded.” [Id. at 284.]

Justice Stewart recalled that the occasion for such review "frequently” arose in "the area of tension between the First and Fourteenth Amendments on the one hand and state defamation laws on the other . . . .” Id.

More recently, the United States Supreme Court revisited the question of the proper standard of appellate review in Bose Corp v Consumers Union of United States, Inc, supra. Bose rejected the imposition of the clearly erroneous standard of FR Civ P 52(a) in reviewing a determination of actual malice in cases governed by New York Times Co v Sullivan, supra. Recounting the lengthy tradition of independent review in the context of constitutional facts, the Bose Court characterized the requirement as "a rule of federal constitutional law” that "emerged from the exigency of deciding concrete cases; it is law in its purest form under our common-law heritage . . . reflecting] a deeply held conviction that judges — and particularly Members of this Court — must exercise such review in order to preserve the precious liberties established and ordained by the Constitution.” Bose at 510-511.

Likewise, the United States Supreme Court independently reviewed the record in Harte-Hanks Communications, Inc v Connaughton, 491 US 657; 109 S Ct 2678; 105 L Ed 2d 562 (1989), to conclude that the judgment was supported by clear and convincing proof of actual malice. The Court reiterated its conclusion in Bose that the sufficiency of evidence to support a finding of actual malice is a question of law. It emphasized the "unique character of the interest protected by the actual malice standard,” Harte-Hanks at 686. The Court predicated the rule requiring independent review on the difficulty in giving "content to these otherwise elusive constitutional standards,” coupled with the importance of "such elucidation ... in the area of free speech . . . .” Id.

Although the scope of this doctrine had not been clearly delineated by the United States Supreme Court, in Locricchio, we concluded that "an independent appellate review of the burden of proof with regard to falsity in private-figure, public-interest cases deters 'forbidden intrusion on the field of free expression’ as a logical corollary to independent review of actual malice.” Id. at 113 (quoting Sullivan at 285). We reasoned that Hepps abrogated the common-law presumption of falsity in libel cases, creating "an issue of constitutional fact regarding whether a plaintiff carries the burden of proving falsity.” 438 Mich 113.¹⁹ We considered that the absence of meaningful appellate review might result in upholding a jury verdict lacking adequate evidentiary support. We analogized this result to a "failure to review for clear and convincing evidence of actual malice,” id., and concluded that the promised protection for media defendants afforded by placing the burden of proof on the plaintiffs would "ring hollow” in the absence of meaningful review of the trial court’s finding regarding falsity. Id. at 114.²⁰

The Court has acknowledged that the "appropriate methodology for distinguishing questions of fact from questions of law has been, to say the least, elusive.” Miller v Fenton, 474 US 104, 113; 106 S Ct 445; 88 L Ed 2d 405 (1985). In discussing this problem, the Court at 114, stated:

At least in those instances in which Congress has not spoken and in which the issue falls somewhere between a pristine legal standard and a simple historical fact, the fact/law distinction at times has turned on a determination that, as a matter of the sound administration of justice, one judicial actor is better positioned than another to decide the issue in question. Where, for example, as with proof of actual malice in First Amendment libel cases, the relevant legal principle can be given meaning only through its application to the particular circumstances of a case, the Court has been reluctant to give the trier of fact’s conclusions presumptive force and, in so doing, strip a federal appellate court of its primary function as an expositor of law.

The Miller Court at 114, cited with approval Monaghan’s article discussing Constitutional fact review, 85 Colum L R 229 (1985). The author placed the Bose case within the context of numerous United States Supreme Court decisions establishing that "absent limiting legislation, federal appellate courts, particularly the Supreme Court” possess the authority to "sort out the relevant facts and apply to them the controlling constitutional norms.” Monaghan at 238. Monaghan explained that independent review enabled the appellate court to "elaborate the governing norm.” Id. at 236. Since law application is "situation-specific” and norm elaboration is often invisible or buried in a general verdict, Monaghan noted that unless appellate courts conduct independent review they are unable to carry out their law declaration function by providing general norm elaboration when they conclude that it is necessary.²¹ In accord with Monaghan’s view, the Miller Court emphasized the question of allocation of decision making embodied in the categorization of issues as fact/law or mixed fact/law questions.

We perceive an additional need for independent review grounded on the fear that juries may give short shrift to important First Amendment rights. The Miller Court recalled that the Court has tended to allocate decision making to appellate courts where necessary to avoid perceived shortcomings of the trier of fact and to allocate decision making to trial courts where the issue involves the credibility of witnesses. In the area of libel actions, we have acknowledged that independent review "reflects an inherent distrust of allocating unlimited decisional power to juries in the First Amendment context.” Locricchio, supra at 114, n 20. Even Justice Rehnquist, who dissented in Bose, supra, conceded that the doctrine of independent review of facts "exists ... so that perceived shortcomings of the trier of fact by way of bias or some other factor may be compensated for.” 466 US at 518.

We therefore independently review the whole record in this case to consider whether material falsity was shown.

IV

The common law has never required defendants to prove that a publication is literally and absolutely accurate in every minute detail. For example, the Restatement of Torts provides that "[sjlight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance.”²² Michigan courts have traditionally followed this approach.²³ At early common law, Michigan courts predicated a claim for libel on the question whether the article was substantially true. In McAllister v Detroit Free Press Co, 85 Mich 453, 460-461; 48 NW 612 (1891), this Court explained that liability could not be imposed for a slight inaccuracy:

It is sufficient for the defendant to justify so much of the defamatory matter as constitutes the sting of the charge, and it is unnecessary to repeat and justify every word of the alleged defamatory matter, so long as the substance of the libelous charge be justified. ... [A] slight inaccuracy in one of its details will not prevent the defendant’s succeeding, providing the inaccuracy in no way alters the complexion of the affair, and would have no different effect on the reader, than that which the literal truth would produce ....

Thus, the test looked to the sting of the article to determine its effect on the reader; if the literal truth produced the same effect, minor differences were deemed immaterial.

In contrast to the early common law, where falsity was presumed and the defendant was required to prove substantial truth as a defense, the burden of proving falsity has now been shifted to the plaintiff.²⁴ Despite this constitutionally required alteration in the allocation of the burden of proof, the definition of falsity remains based on the common-law doctrine. Masson v New Yorker Magazine, Inc, 501 US —; 111 S Ct 2419; 115 L Ed (1991). In determining the falsity component of an actual malice finding, the United States Supreme Court grounded the concept of falsity on its historical definition of falsity in common-law libel. Masson, 111 S Ct 2432-2433. The Court explained:

The common law of libel takes but one approach to the question of falsity, regardless of the form of the communication. ... It overlooks minor inaccuracies and concentrates upon substantial truth. . . . The essence of that inquiry, however, remains the same whether the burden rests upon plaintiff or defendant. Minor inaccuracies do not amount to falsity so long as "the substance, the gist, the sting, of the libelous charge be justified.” . . . Put another way, the statement is not considered false unless it "would have a different effect on the mind of the reader from that which the pleaded truth would have produced.”

Although Masson pertained to the falsity component of an actual malice determination, it is clear that the constitutional requirement for testing falsity mirrors Michigan’s common-law test.

The substantial truth doctrine is frequently invoked to solve two recurring problems: minor inaccuracies and technically incorrect or flawed use of legal terminology. This case raises both questions. The Court of Appeals held that "whether the article is read for its gist or simply for the information presented as fact, plaintiff has met his burden of proving falsity.” 184 Mich App 32. In reaching this result, the Court of Appeals focused on the assertions that the article indicated that plaintiff was "charged” with the crime of first-degree criminal sexual conduct, sexual assault, that "charges” had been authorized by the prosecutor when no formal arraignment had occurred, and that the article suggested that "his children” identified him as the person who committed the crime when the identification was made by his former wife’s children. We disagree.

In order to properly evaluate the falsity of the article, we have reproduced the language from the article as published in the newspaper followed by a version that contains language which corrects the inaccuracies complained of by the plaintiff.

. This is the text of the report and headline published by the Enquirer & News of Battle Creek:

POLICE ARREST SUSPECT IN BABY-SITTER ASSAULT

A 43-year-old man has been arrested and charged with the sexual assault of a 17-year-old wom[a]n who was baby-sitting with his children at his ex-wife’s house on North Finlay Avenue in Bedford Township.

The suspect has been identified by Bedford Township police as David J. Rouch of 631 Golden Ave. He is free on a $10,000 personal recognizance interim bond pending his arraignment in District 10 Court next week. Rouch is charged with first-degree criminal sexual conduct.

Police said Rouch allegedly entered the house about 4 a.m. Friday and attacked the young woman. He is said to have used a knife to cut the victim’s clothes off, police said.

The victim later called a relative, who took her to Community Hospital and then called police. The suspect was identified by his children, according to police.

Rouch was arrested at his home by Emmett Township police, who were informed where he lived by Bedford Township investigators.

The charge against Rouch was authorized Friday by the Calhoun County Prosecutor’s Office. [Emphasis added.]

The following version substitutes language that the plaintiff asserts should have been used in the article:

POLICE ARREST SUSPECT IN BABY-SITTER ASSAULT

A 43-year-old man has been arrested and accused of sexual assaulting a 17-year-old woman who was babysitting his ex-wife’s children at her house on North Finlay Avenue in Bedford Township.

The suspect has been identified by Bedford Township police as David J. Rouch of 631 Golden Avenue. He is free on a $10,000 personal recognizance interim bond pending his arraignment in District 10 Court next week. Rouch is accused of committing first-degree criminal sexual conduct.

Police said that Rouch allegedly entered the house about 4 a.m. Friday and attacked the young woman. He is said to have used a knife to cut the victim’s clothes off, police said.

The victim later called a relative, who took her to Community Hospital and then called police. The suspect was identified by his ex-wife’s children, according to police.

Rouch was arrested at his home by Emmett Township police, who were informed where he lived by Bedford Township investigators.

The Calhoun County Prosecutor’s Office authorized the incarceration of Rouch on allegations of criminal sexual conduct in the first degree.

We cannot agree that the gist or sting of the article is changed by these minor differences.

The primary criticism that plaintiff raises is with the use of the word "charges,” absent formal arraignment. The Court of Appeals concluded that the message conveyed to readers of the article by the several references to "charge” or "charges” was materially false. First, it interpreted this Court’s opinion in Rouch I as requiring this result. It apparently concluded from the statement in Rouch I that "plaintiff was never formally charged” with the crime, that the use of the word "charged” was false. Second, it relied upon a textual analysis of the plain meaning of the word "charge,” questioning the defendant’s suggestion that "charge” is synonymous with "accuse.” Conceding that Webster’s New World Dictionary of the American Language, Second College Edition (1984), includes "accuse” as one of the possible meanings of "charge,” the Court pointed out the additional listed term "indictment.” It also referred to The Random House College Dictionary, Revised Edition (1984), which defined "charge” as "to accuse formally or explicitly” and as "an accusation.” On the basis. of these authorities, the Court reasoned that "charge” carries a more serious connotation than "accuse” and that the article’s use of the term "in a much more specific and legal sense” was false. 184 Mich App 34. Finally, the Court of Appeals attempted to draw an analogy with this Court’s reasoning regarding the distinction between "proceedings” under the privilege statute and mere apprehensions.

We cannot agree with this reasoning. The linchpin of the Court of Appeals analysis is a formalistic interpretation of the word "charge” that belies any attempt to ascertain the "gist” or "sting” of the article to the lay reader. The United States Supreme Court has cautioned that recovery can be refused for "choice of language which, though perhaps reflecting a misconception, represented 'the sort of inaccuracy that is commonplace in the forum of robust debate to which the New York Times rule applies.’ ” Masson, 111 S Ct 2434, quoting Bose, 466 US 513.²⁵

Technical inaccuracies in legal terminology employed by nonlawyers such as those at issue here fall within this category. Numerous courts have rejected claims of falsity when based on a misuse of formal legal terminology.²⁶ We have recognized that the popular sense of a term may not be technically accurate. See, e.g., Bailey v Kalamazoo Publishing Co, 40 Mich 251, 255-256 (1879). The Court reasoned:

A prosecution before a justice is not in a technical sense an indictment, but it serves a similar purpose. Grand juries are seldom summoned now, and very few cases are tried at the circuit on indictment. Informations have generally superseded the old method. Yet we use the term "indictment” in ordinary conversation and often in judicial opinions to express any criminal prosecution. The burden of this charge was that Bailey had been prosecuted for malfeasance, and we do not think there was any substantial variance between the charge and proof. The popular sense was made out by showing the prosecution for misconduct.

Thus, if technical and common parlance yield different interpretations of the same word, the constitutionally required breathing space affords protection of the writer’s choice.

Another typical example involved reports of statements made by a trial judge at a sentencing hearing of a defendant who had pleaded no contest to a charge of second-degree sexual assault. Simonson v United Press Int’l, Inc, 654 F2d 478, 479-480 (CA 7, 1981). The article had set forth the judge’s comment regarding a "sexually permissive” community and questioning whether a severe sentence should be imposed on "an impressionable person 15 or 16 years of age,” who responded. The plaintiff, the trial judge, was recalled from office after the report. He sued the newspaper for defamation, contending that its description of a sexual assault as "rape” and its use of the word "ruled” when describing the judge’s comments constituted defamation. The Simonson court rejected this argument, noting that rape in its common usage included nonconsensual sex and that intercourse had occurred without the consent of the victim. The court further rejected the judge’s contention that he never "ruled” that sexual assault was a "normal reaction to prevalent sexual permissiveness,” but simply remarked on this during the hearing. Noting that a plain and ordinary meaning of "ruling” might include statements and comments made by a judge when sitting on the bench, the court rejected the judge’s contention that his "rhetorical question” should not be seen as a ruling. Id. at 482.

Just as the judge in Simonson asserted that "ruling” should be reserved for words uttered by the judge as a formal decree and that "rape” should not be used for a no-contest plea to second-degree sexual assault, plaintiff asserts that "charge” should be limited to circumstances in which a formal arraignment has been held. As in Simonson, the word at issue in this case encompasses the formal legal sense as well as a broader lay sense. Just as the Simonson court concluded that use of a word in accord with one of its meanings could not be deemed materially false, so too do we conclude that use of "charge” absent formal arraignment cannot be deemed materially false.

Not only does "charge” in a popular sense accord with the newspaper’s use of the term, it accords with the legal description of the status of an arrestee before judicial process is issued. For example, the Legislature used "charge” to describe the disposition of a person following arrest without a warrant. See MCL 764.13; MSA 28.871(1).²⁷ Similarly, Michigan Court Rules use "charge” to mean accuse. See MCR 6.106(E)(8).²⁸ Panels of the Court of Appeals and this Court’s Criminal Jury Instructions likewise use "charged” as a synonym for accusations made by the police in conjunction with arrests made without a warrant.²⁹ Thus, the popular and legal sense of the term "charge” may not be identical before the police act on an accusation; once the police act on an accusation, the popular and legal terms are synonymous.

Furthermore, both testimony and documents from the trial illustrate the numerous uses to which the word can be put. Plaintiff himself used "charge” at numerous points in the proceedings to describe the accusations brought against him.³⁰ Furthermore, plaintiff conceded that "the article in question and its reference to the Plaintiff being arrested and being charged [with] esc and thereafter released on bond were true.”³¹ In addition, the police reports used "charge” to describe the accusations against Rouch.³²

The word "charge” is an umbrella term covering all stages of the charging process. It is used by the law in contradistinction to a conviction. Even if plaintiff’s argument that "charge” connotes a more serious formal involvement of judicial process than "accuse” were correct as a matter of law, we think it apparent that the word may be used in a popular sense as a synonym for accuse. While one meaning of "charge” is simply "accuse,” carrying with it no intimation of governmental involvement, here, if the word "charge” is measured by the gist of what happened, there was not only a charge or accusation by an individual, but a booking by the police, an authorization by the prosecution to lodge the suspect on the charge, and an involvement by the magistrate recognizing these actions. Thus, even if "charge” connotes the existence of governmental involvement, that was present here.³³

At best, one might conclude that the use of "charge” in its technical formal sense was inaccurate. We cannot accept this as a basis for liability. To do so would totally eviscerate the "breathing space” that the constitution requires in order to protect important First Amendment rights. When writing about criminal justice or legal matters, newspapers would be forced to recapitulate technical legal terminology employed by courts or law enforcement personnel even where popular words might be clearer for the lay reader. Attempting to reframe legal documents and events with legal significance into popular or lay terminology would be fraught with peril, and newspapers would do so at their risk. As one court remarked, there is "no authority for plaintiff’s contention that a newspaper article reporting a judicial proceeding must indicate every possible interpretation of every word used in a complaint or other legal document.”³⁴ We agree. Having conducted an independent review of the record to determine whether use of the word "charge” rendered the article materially false, we conclude that it did not.

Plaintiff’s additional complaint falls within the second category of cases arising under the substantial truth doctrine, those that involve minor inaccuracies. Plaintiff protests the article’s suggestion that he was identified by his children, rather than the children of his former wife. The Court of Appeals concluded that this constituted material falsity because it seemed to eliminate the possibility that there was a mistaken identification. We cannot accept this reasoning.

Numerous courts have considered the falsity of articles in which the gist of the story was accurate, but minor inaccuracies marred the report. Drury v Feeney, 505 So 2d 111 (La App, 1987), cert den 506 So 2d 1225 (1987), is illustrative. Despite the defendant’s failure to report precisely the nature of the plaintiff’s conviction, the court found that the article was substantially true. The article described the plaintiff’s conviction of "21 counts of mail fraud to cheat insurance companies and his clients of money in car accident suits.” Actually, the plaintiff had been convicted for failure to disclose to his clients a fee-splitting arrangement. In colorful language, the court concluded that the discrepancy was " 'an infinitesimal aberrant grain of sand hidden in an entire seashore of reprehensible conduct and truths ....’” 505 So 2d 112.³⁵

Like courts in other jurisdictions, Michigan courts have found substantial truth despite minor inaccuracies in the details of an article. McCracken v Evening News Ass’n, 3 Mich App 32; 141 NW2d 694 (1966), epitomizes the reasoning that undergirds such a finding. The defendant newspaper reported that the plaintiff was charged with "$100,000 fraud” when, in fact, he had altered construction invoices in an amount between $37,000 and $39,000. The Court of Appeals rejected the plaintiff’s claim that the article was substantially untrue, noting that this constituted "an inaccuracy that does not alter the complexion of the affair and would have no different effect on the reader than that which the literal truth would produce.” 3 Mich App 40.³⁶

The essence of plaintiff’s argument is that the statement in the article that his children had identified him would eliminate in the reader’s mind the possibility of a mistake. We think the gist or sting of the article was that plaintiff was arrested on the basis of the identification of persons who knew him. While we might agree that a reader acquainted with the facts might have more reason to suspect the motives of the identifiers, this is an argument regarding the weight of the identification, not its truth or falsity.

In sum, neither of the asserted errors, taken individually or as a group, alters the gist or sting of the article. The sting of the article was that the plaintiff had been identified by persons to whom he was well known and was charged with esc i. That is true. The question whether a formal warrant had been issued or an arraignment held, like the question whether it was his children or former stepchildren who identified him, did hot affect the article’s substantial truth. Thus, the Court of Appeals erred in affirming the trial court judgment on this issue.

v

After painstaking review of the whole record in light of Michigan libel law and the latest constitutional pronouncements on the subject, we conclude that the evidence was not sufficient to establish material falsity.

Accordingly, because we disagree with the reasoning and result of the Court of Appeals, we vacate its opinion and remand this matter to the trial court for entry of judgment in favor of the defendant.

Brickley, Griffin, and Mallett, JJ., concurred with Boyle, J.

1 Both of these values are explicitly embodied in Const 1963, art 1, § 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.

2 This case began more than a decade ago and has been considered twice by the Michigan Court of Appeals and once by this Court. See 137 Mich App 39; 357 NW2d 794 (1984); 184 Mich App 19; 457 NW2d 74 (1990); 427 Mich 157; 398 NW2d 245 (1986).

3 Because of our resolution of the material falsity issue, we need not resolve the question of negligence. Nevertheless, we observe that plaintiff’s theory regarding fault apparently was that the newspaper reporter had been poorly trained and consequently failed to further investigate information provided to him by the police. The existence and scope of any constitutionally based doctrine of neutral reportage remains as yet undefined. See Smith v Daily Mail Publishing Co, 443 US 97, 102; 99 S Ct 2667; 61 L Ed 2d 399 (1979) ("state action to punish the publication of truthful information seldom can satisfy constitutional standards”); The Florida Star v BJF, 491 US 524; 109 S Ct 2603; 105 L Ed 2d 443 (1989); Butterworth v Smith, 494 US 624; 110 S Ct 1376; 108 L Ed 2d 572 (1990); Landmark Communications, Inc v Virginia, 435 US 829; 98 S Ct 1535; 56 L Ed 2d 1 (1978); Oklahoma Publishing Co v District Court, 430 US 308; 97 S Ct 1045; 51 L Ed 2d 355 (1977); Greenbelt Cooperative Publishing Ass’n v Bresler, 398 US 6; 90 S Ct 1537; 26 L Ed 2d 6 (1970); Cox Broadcasting Corp v Cohn, supra. Other state and federal courts have questioned the extent to which newspapers should be required to verify information obtained from governmental sources such as police reports absent evidence that the publisher had good reason to suspect falsity. Torres-Silva v El Mundo, 3 Media L Rptr 1508, 1512 (PR, 1977); Wilson v Capital City Press, 315 So 2d 393 (La App, 1975); Appleby v Daily Hampshire Gazette, 395 Mass 32; 478 NE2d 721 (1985); LaMon v Butler, 44 Wash App 654; 722 P2d 1373 (1986); Walters v Sanford Herald, Inc, 31 NC App 233; 228 SE2d 766 (1976); Ricci v Venture Magazine, Inc, 574 F Supp 1563 (D Mass, 1983). In this case, there was no suggestion that the information was inherently implausible. Nor was there any proof or allegation that cast doubt on the accuracy of the police report regarding Rouch’s arrest.

4 In Rouch I, I was unwilling to hold that the statutory privilege had been subsumed. The factual predicate for assertion of the statutory privilege is contained'in the record. Although I would conclude that the privilege is applicable to an informal arraignment for bond purposes before a magistrate, see MCL 600.8511 et seq.; MSA 27A.8511 et seq., MCL 765.1; MSA 28.888, MCL 600.8512a; MSA 27A.8512(1), and MCR 6.104(G), a majority of the Court being un-. persuaded that we should reach this issue, the opinion does not address it.

5 Contrary to the observation in the separate dissent, the arrest (which Justice Levin concedes it is not defamatory to describe as a charge) was authorized by the prosecutor. The record establishes that the Bedford Township police called the assistant prosecutor before they took plaintiff into custody and that the prosecutor, after being "briefed on the complaint and the circumstances surrounding the arrest of suspect advised to lodge” plaintiff on a charge of first-degree criminal sexual conduct. Indeed, the plaintiff acknowledges that the prosecutor authorized the incarceration. If what Justice Levin means is that the article should have reported that the prosecutor authorized the incarceration of the plaintiff on the charge of Criminal Sexual Conduct I, as plaintiff contends, we respond to that argument in section iv. If what he means is that there was governmental involvement in the lodging of the charge of esc i, that is true, and plaintiff does not contend otherwise.

6 137 Mich App 39.

7 422 Mich 937 (1985).

8 Since our decision in Rouch I, the Legislature has amended Michigan’s statutory privilege to broaden its scope to cover matters of public record, governmental notices, announcements, and written or recorded reports or records generally available to the public. MCL 600.2911(3); MSA 27A.2911(3), as amended by 1988 PA 396, § 1. See also Nichols, HB 4932 and the Rouch case: A brief sketch of Michigan libel law, 1989 Det C L R 689.

9 Gertz v Welch, Inc, 418 US 323; 94 S Ct 2997; 41 L Ed 2d 789 (1974).

10 Bell explained that Magistrate Strong sometimes conducted the proceeding to set a personal recognizance bond over the telephone, and other times she did it in her office. Bell called the proceeding an "arraignment for bond purposes.” Magistrate Strong agreed that she sometimes conducted the hearing by telephone. When this was done, the sheriff’s department would prepare the form, and the defendant would sign it and be released.

11 Michigan law authorizes magistrates to carry out a wide range of judicial functions, including setting bond for defendants.. See MCL 600.8511 et seq.; MSA 27A.8511 et seq. See also MCL 765.1; MSA 28.888 (which authorizes a magistrate to set bail and to let an accused out of jail on recognizance).

12 Bedford Township officers, the township where the crime occurred, requested Emmett Township officers to arrest Rouch at his home in Emmett Township. He was placed in the custody of the Bedford Township police. Upon authorization from the Calhoun County Prosecutor’s office, Rouch was removed to the county jail in Marshall and booked on a charge of CSC I. The magistrate for the 10th District Court in Calhoun County released Rouch on a personal recognizance bond until his formal arraignment could be held.

13 The full text of the article is set forth infra at 261.

14 We need not resolve this factual dispute in view of our resolution of the other issues.

15 We noted in Locricchio that it is unclear whether the media status of the defendant necessitates a higher level of protection. 438 Mich 90, n 7. The United States Supreme Court has not yet resolved the issue.

16 We reserved for another occasion the question whether the standard of proof with regard to falsity or negligence is "clear and convincing evidence” or some lesser standard. Locricchio, 438 Mich 123.

17 We note that both common-law and constitutional questions regarding the availability of and necessary proofs for damages were raised in this case. Because of our resolution of the other issues, we leave these issues for another day.

18 The Court of Appeals also considered numerous trial court rulings on negligence, the official proceedings statutes, evidentiary matters, and instructional issues. Because we conclude that plaintiff’s claim cannot survive review of the initial issue, we need not reach these issues.

19 Constitutional facts have been defined as "facts fundamental to the existence of a constitutional right — for example, whether a confession was coerced or a film was obscene.” Louis, Allocating adjudicative decision making authority between the trial and appellate levels: A unified view of the scope of review, the judge/jury question, and procedural discretion, 64 NC L R 993, 995, n 13 (1986). The doctrine of independent review of constitutional facts has arisen in First Amendment and other constitutional contexts. See, e.g., Jacobellis v Ohio, 378 US 184, 190; 84 S Ct 1676; 12 L Ed 2d 793 (1964) (the court has an "obligation to test challenged judgments against the guarantees of the First and Fourteenth Amendments,” and in doing so "cannot avoid making an independent constitutional judgment on the facts of the case”); Payne v Arkansas, 356 US 560, 562; 78 S Ct 844; 2 L Ed.2d 975 (1958) ("where the claim is that the prisoner’s confession is the product of coercion we are bound to make our own examination of the record”); Norris v Alabama, 294 US 587; 55 S Ct 579; 79 L Ed 1074 (1935) (appellate courts have the duty to analyze the facts to safeguard constitutional rights where the facts and conclusions of law are intermingled); Ng Fung Ho v White, 259 US 276; 42 S Ct 492; 66 L Ed 938 (1922) (sanctioning constitutional fact review of a challenge to an administrative deportation warrant).

20 We realize that the Harte-Hanks Court construed the requirement for an independent review more narrowly than Bose. This different emphasis formed the basis for disagreement between Chief Justice Cavanagh and the majority in Locricchio. Chief Justice Cavanagh contended that falsity involves "a classic issue of pure historical fact,” while actual malice, like the voluntariness of a confession, involves a mixed fact/law question. Chief Justice Cavanagh there urged this Court to reject mandatory independent review of such pure historical facts in favor of applying a sufficiency-of-the evidence standard that construes the evidence in the light most favorable to the verdict. Locricchio at 136 (Cavanagh, C.J., concurring in the result).

21 Monaghan suggests that although it is clear that appellate courts have the authority to conduct independent review, it is not clear that they have the duty to do so. He argues that the judicial role in preserving constitutional rights requires courts to “expound and refine the applicable constitutional law” and elaborate the constitutional norms when necessary. Monaghan at 268.

22 3 Restatement Torts, 2d, § 581A, comment f, p 237.

23 See, e.g., Hay v Reid, 85 Mich 296; 48 NW 507 (1891); McAllister v Detroit Free Press Co, 85 Mich 453; 48 NW 612 (1891); McGuire v Vaughan, 106 Mich 280; 64 NW 44 (1895); Sanders v Evening News Ass’n, 313 Mich 334; 21 NW2d 152 (1946).

24 See Philadelphia Newspapers, Inc v Hepps, supra.

25 The precise meaning and choice of words employed is a critical factor in any evaluation of the falsity. We are mindful of the inherent imprecision of language and the difficulties this poses to any evaluation of the truth or falsity of an article, particularly one that rests upon the use of a word with ambiguous implications. See, generally, Schauer, Language, truth, and the First Amendment: An essay in memory of Harry Canter, 64 Va L R 263, 268 (1978). Schauer contends that "the choice of language may be as much a part of the freedom protected by the first amendment as is the choice of the underlying propositions which that language expresses.” To ensure the requisite "breathing space” for free and robust debate on matters of public concern, we think it important to allow for imprecision and ambiguity in the choice of language.

26 See, e.g., Vachet v Central Newspapers, Inc, 816 F2d 313, 316 (CA 7, 1987) (the gist of the article concerned the plaintiff’s association with a suspected rapist because he was arrested for harboring a fugitive, but the "particulars of the arrest — whether it was pursuant to an arrest warrant or authorized by a state statute — are inoffensive details of secondary importance”); Simonson v United Press Int’l, Inc, 654 F2d 478 (CA 7, 1981) (use of the technical term "ruled” for remarks made by the judge during a sentencing hearing and of "rape” where the defendant had pleaded no contest to a charge of second-degree sexual assault was not enough to establish falsity); Lambert v Providence Journal Co, 508 F2d 656 (CA 1, 1975), cert den 423 US 828 (1975) (the use of the term "murder” where the defendant denied guilt did not constitute an actionable innuendo regarding his guilt despite the article’s failure to use a more neutral term like "homicide” or "shooting death”); Piracci v Hearst Corp; 263 F Supp 511 (D Md, 1966), aff’d 371 F2d 1016 (CA 4, 1967) (per curiam) (a newspaper report that the plaintiff was arrested for "possession of marijuana” was substantially accurate despite the fact that the actual charge was "delinquency due to the act of possessing marijuana”).

27 The statute provides:

A peace officer who has arrested a person for an offense without a warrant shall without unnecessary delay take the person arrested before a magistrate of the judicial district in which the offense is charged to have been committed, and shall present to the magistrate a complaint stating the charge against the person arrested. [Emphasis added.]

28 The rule provides that the court shall consider "the nature of the offense presently charged and the apparent probability of conviction” (emphasis added) along with other factors when deciding whether a person is entitled to release on personal recognizance, conditional release, or release on money bail.

29 See, e.g., People v Suchodolski, 22 Mich App 389, 394-395; 178 NW2d 524 (1970). See also Michigan Criminal Jury Instructions (2d ed), § 3.5(4) (the "fact that the defendant is charged with a crime ... is not evidence”).

30 Plaintiff testified that a police oificer told him that he "was getting picked up on a sexual charge or something.” He also stated that he asked "what the charge was” and was told "it was a sexual assault on a child.” He further commented that he was told "that, you know, the charge that they — that I was being charged with.” When asked when he understood that he was arrested and charged, plaintiff explained that he was told that "we’re charging you with this, and that’s what they said.”

31 After trial, plaintiff apparently sought to shift the emphasis of his claim to the question whether, in publishing an account of his arrest, the article suggested that he had actually committed the crime, rather than that the reporting of his arrest and subsequent release on bond included materially false details. The trial court considered this broader argument, but ultimately based its ruling on the narrower ground that the details in the article were materially false.

32 The Bedford Township police report stated that the "Bedford Township Police Department wanted Mr. Rouch picked up on this charge.” The 10th District Court Bail Bond form also stated that Rouch had secured his release "from custody pending final disposition of the charge or charges.”

33 All the elements necessary to obtain a formal warrant were present. The only thing lacking was the officer’s appearance before the magistrate to swear to what was in the complaint. In 1 Criminal Procedure, § 1.4, p 21, LaFave and Israel state that in "most jurisdictions, the post-arrest issuance of a warrant is viewed as an unnecessary formality, and the magistrate’s finding of probable cause will combine with the complaint to authorize continuing custody.”

34 Handelsman v San Francisco Chronicle, 11 Cal App 3d 381, 387; 90 Cal Rptr 188 (1970) (ruling that use of the criminal term "theft” was not substantially untrue despite the fact that the complaint involved a civil action for conversion). See also Hopkins v Keith, 348 So 2d 999, 1002 (La App, 1977), writ not considered 350 So 2d 893 (La, 1977) (an article that reported that the plaintiff had been convicted for "running a gambling game” when he had merely forfeited bond on the charge was substantially true).

35 See also Stevens v Independent Newspapers Inc, 15 Media L Rptr 1097 (Del Super Ct, 1988) (a newspaper inaccurately reported that the plaintiff had used a state car to drive seventy-two miles to work when in fact the distance was only fifty-five miles); Brueggemeyer v Associated Press, 609 F2d 825 (CA 5, 1980) (news reports that the court ordered restitution might equal $700,000 were substantially accurate despite the fact that the case involved only 1400 customers with a right to press claims involving purchases that averaged only $500); Gomba v McLaughlin, 180 Colo 232; 504 P2d 337 (1972) (a newspaper account that accurately reported that the plaintiff assaulted an elderly gentleman, but misstated the geographic location where the assault occurred, was substantially true).

36 See also Shutt v Harte-Hanks Communications, Inc, 7 Media L Rptr 2559 (ED Mich, 1981) (a headline inaccurately reported that during a blackout the plaintiff had used the city’s generator to light his home, but in fact he had used it to power his home freezer).