FILED JULY 30, 2010 

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

SUPREME COURT 

DERITH SMITH, 

 Plaintiff-Appellant, 

v Nos. 138456 to 138458

ANONYMOUS JOINT ENTERPRISE, 

GEORGE PRESTON, MARY BARROWS, 

VILLAGE OF SUTTONS BAY, AND 

CHARLES STEWART, 

 Defendants, 

and 

DONALD BARROWS, JOHN STANEK, 

and NOEL FLOHE, 

 Defendants-Appellees. 

BEFORE THE ENTIRE BENCH 

WEAVER, J. 

In this case, we decide whether plaintiff, Derith Smith, presented clear and 

convincing evidence at trial to support the jury’s finding that defendants John Stanek, 

Donald Barrows, and Noel Flohe defamed plaintiff by mass-mailing copies of a 

Michigan Supreme Court

Lansing, Michigan

Opinion Chief Justice: 

Marilyn Kelly 

Justices: 

Michael F. Cavanagh 

Elizabeth A. Weaver 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

Diane M. Hathaway
2 

personnel report containing false information about her. After conducting an independent 

review of the record, we conclude there exists clear and convincing evidence that Stanek 

and Barrows acted with “actual malice,” but that plaintiff has failed to meet her 

evidentiary burden as to Flohe. 

Accordingly, we affirm the result reached by the Court of Appeals as to Flohe, but 

reverse the result it reached as to Stanek and Barrows. We remand this matter to the 

Court of Appeals for consideration of defendants’ other issues, including whether the 

handwritten caption on the mailed report constitutes a non-defamatory statement of 

opinion when considered in its context within the report as a whole, whether the caption 

is provable as false, and whether defendants are entitled to the protection afforded by 

Michigan’s statutory fair reporting privilege. 

I. FACTS AND PROCEDURAL BACKROUND 

This defamation action arises from the mass mailing of a personnel report written 

about plaintiff, Derith Smith. Plaintiff worked for the village of Suttons Bay (“the 

Village”) in Leelanau County. Plaintiff’s supervisor, Suttons Bay Village Manager 

Charles Stewart, composed the personnel report (“the Stewart report”), which includes 

allegations that plaintiff was an independent contractor but had been compensating 

herself as an employee. The Stewart report also includes allegations that plaintiff had 

never been issued a W-2 form, received benefits to which she was not entitled, paid 

herself at a higher rate than the rate for which she was approved, and was not a “team 

player.” Stewart presented his report to the Village Personnel Committee, and the 

Committee voted to terminate plaintiff’s employment. 
3 

Plaintiff filed a claim for unemployment compensation benefits. The Village 

opposed plaintiff’s claim, arguing that plaintiff was not an employee but rather an 

independent contractor and, therefore, not entitled to benefits. A subsequent 

investigation and review revealed that various allegations against plaintiff in the report 

were false. Accordingly, the Village withdrew its opposition to plaintiff’s claim. 

Plaintiff believed that she was wrongfully terminated, but did not institute a 

lawsuit against the Village because she had secured employment as the Elmwood 

Township supervisor in the November 2004 election. On May 17, 2005, while serving as 

Elmwood Township Supervisor, plaintiff received an anonymous mailing. The mailing 

included a copy of the Stewart report, with an additional handwritten caption stating, 

“Attention: Suttons Bay Villagers Alledged [sic] Misuse of Village Taxpayer Funds?” 

and “Derrick [sic] Smith.” Plaintiff later learned that copies of the Stewart report, 

including the caption, had been mailed to hundreds of citizens in Leelanau County. 

At the time of the mass mailing, defendants Stanek, Barrows, and Flohe were 

involved in an informal group of concerned Leelanau County citizens. The group met 

fairly regularly to discuss various issues, including local politics and elections. It is 

undisputed that Stanek, Barrows, and Flohe were displeased with plaintiff’s performance 

as township supervisor and were responsible for the mass mailing of the Stewart report.1

 

 1

 The trial testimony revealed apparent political discourse between plaintiff and 

defendants. Stanek and Flohe were Elmwood Township officials in 2003, and plaintiff 

was involved in a group of citizens that started a recall campaign against them. While 

both Stanek and Flohe survived the recall, they were defeated in the 2004 election. 
4 

The record establishes that Barrows contacted Suttons Bay Village Treasurer Jerry 

VanHuystee on several occasions in 2004, asking whether VanHuystee had any 

information about plaintiff. VanHuystee testified that he told Barrows that he did not 

know of anything illegal done by plaintiff. After several requests for information from 

Barrows, VanHuystee retrieved the Stewart report from the Village’s records and made a 

copy of it.2

 VanHuystee put the copy of the Stewart report in an envelope and marked it 

with Barrows’ name. VanHuystee then dropped off the envelope at his sister-in-law’s 

home, where Barrows was to pick it up. The copy of the Stewart report contained no 

handwritten caption at this time. 

Barrows testified that he picked up the envelope containing the Stewart report and 

brought a copy of the report to a citizens’ meeting held at Stanek’s office during the first 

week of May 2005. Stanek, Barrows, and Flohe were all present at this meeting, 

although the trial testimony indicated that Flohe arrived late. At this particular meeting, 

copies of the Stewart report were available for attendees to view, and there was 

discussion regarding whether the Stewart report should be mailed to other citizens. The 

trial testimony establishes that some attendees favored mailing the report, while others 

did not. George Preston was also present at this meeting, and he testified that he had 

 

Stanek and Barrows had been supporters of Flohe in his 2004 bid for re-election; 

however, plaintiff was elected to replace Flohe as Elmwood Township supervisor. 

2

 Plaintiff does not allege on appeal that the Stewart report was improperly 

obtained from the Village’s records or that it was not a “public record.” 
5 

expressed hesitation about mailing the Stewart report. Preston told the other attendees at 

the meeting that he would contact Stewart to verify the report’s accuracy. 

Preston and Stewart testified that Preston had contacted Stewart and informed him 

of the concerned citizens’ intent to mail the Stewart report. Stewart confirmed with 

Preston that plaintiff had done nothing illegal and that the report should not be 

distributed. Preston and Stanek both testified that Preston relayed this information to 

Stanek; however, the trial testimony is somewhat conflicting with regard to exactly when

he did so. 

Barrows testified that he nonetheless took a copy of the Stewart report to a copy 

shop and paid to have approximately 500 copies made. Approximately 420 of those 

copies were placed into envelopes and sealed by the store’s staff. The envelopes were 

placed in boxes along with the remaining 80 copies of the Stewart report. Barrows 

testified that on May 16, 2005, he took the boxes to Stanek’s office where he, Stanek, and 

Flohe worked together to stamp and label the stuffed envelopes. The envelopes were 

then taken to the post office and mailed to citizens in Leelanau County. Citizens within 

the county began receiving the mailings by May 17, 2005, while the remaining copies of 

the Stewart report were displayed at citizen and township meetings. 

Plaintiff subsequently brought a defamation claim against Stanek, Barrows, and 

Flohe.3

 Defendants moved for summary disposition, arguing that their actions were 

 3

 Plaintiff initially filed suit against the Village of Suttons Bay, Stewart, and 

Preston as well. However, those defendants were dismissed from the litigation. 
6 

covered by the fair reporting privilege, MCL 600.2911(3).4 The trial court denied 

summary disposition, ruling that plaintiff had alleged sufficient evidence, which, if 

believed by a jury, would show that defendants mailed the Stewart report with actual 

knowledge that it was false or with reckless disregard for the truth of the report.5

 The 

trial court additionally concluded that “if a jury finds that the publication was false and 

not made in good faith and with an honest belief that the report was true, the qualified 

privilege is defeated and damages may be awarded.” 

A jury trial was held, and a verdict was reached in favor of plaintiff. The jury 

awarded plaintiff monetary damages and a public apology in the form of a legal notice. 

The Court of Appeals reversed and remanded for entry of a judgment of no cause of 

action, concluding that defamation could not be established as a matter of law because 

 4

 MCL 600.2911(3) provides, in pertinent part: 

Damages shall not be awarded in a libel action for the publication or 

broadcast of a fair and true report of matters of public record, a public and 

official proceeding, or of a governmental notice, announcement, written or 

recorded report or record generally available to the public, or act or action 

of a public body, or for a heading of the report which is a fair and true 

headnote of the report. 

5

 The trial court specifically noted the following evidence presented by plaintiff: 

Barrows’ deposition testimony that it was his idea to mail the Stewart report to the 

masses and that he did so with Stanek and Flohe; a letter written by Stewart, but not sent, 

to Barrows in which Stewart recounts telling Preston prior to the mass mailing that 

plaintiff did not engage in any criminal wrongdoing; an email dated May 19, 2005, sent 

by Stewart to plaintiff, acknowledging that the allegations in the Stewart report were 

inaccurate; Stewart’s deposition testimony that he told Preston prior to the mass mailing 

that plaintiff did not engage in any wrongdoing; and Preston’s deposition testimony that 

he advised defendants not to send the mailing until he could investigate the truthfulness 

of the report; and Preston’s deposition testimony that he advised Stanek, among others, 

that the allegations of wrongdoing in the report were false. 
7 

defendants’ failure to investigate the contents of the report did not constitute the “reckless 

disregard” required for a finding of actual malice,6

 and defendants could not be held 

liable for relying on a report that they did not prepare.7

 The Court of Appeals noted that 

Stewart prepared the report, and it contained his “erroneous view of the status of 

plaintiff’s employment.”8

 With respect to the handwritten caption added to the report, 

the Court of Appeals concluded that it was merely an expression of opinion.9

 

This Court granted plaintiff’s application for leave to appeal to address whether 

the Court of Appeals erred in determining that plaintiff did not present sufficient 

evidence to support a finding of actual malice.10 

II. STANDARD OF REVIEW 

The inquiry into whether evidence in a defamation case is sufficient to support a 

finding of actual malice presents a question of law.11 To determine whether the 

 6

 A public official or public figure plaintiff may prevail in a defamation action if 

he or she establishes that the alleged defamatory statements were made with “actual 

malice.” New York Times Co v Sullivan, 376 US 254, 279-280; 84 S Ct 710; 11 L Ed 2d 

686 (1964). 

7 Smith v Anonymous Joint Enterprise, unpublished opinion per curiam of the 

Court of Appeals, issued February 3, 2009 (Docket Nos. 275297, 275316, and 275463), 

pp 5-6. 

8 Id. at 5. 

9 Id. 

10 Smith v Anonymous Joint Enterprise, 485 Mich 870 (2009). 

11 See Bose Corp v Consumers Union of United States, Inc, 466 US 485, 510-511; 

104 S Ct 1949; 80 L Ed 2d 502 (1984). 
8 

constitutional standard for defamation of a public figure12 has been satisfied, a reviewing 

court must consider the factual record in full.13 The reason for this “independent review” 

of the record is “[o]ur profound national commitment to the free exchange of ideas, as 

enshrined in the First Amendment . . . .”14 Therefore, we must analyze the alleged 

defamatory statements at issue and their surrounding circumstances to determine whether 

those statements are protected under the First Amendment.15

The importance of protecting First Amendment liberties through an application of 

the “independent review” standard is well-established.16 While this Court generally 

reviews questions of law de novo, “the independent review function is not equivalent to a 

‘de novo’ review of the ultimate judgment itself, in which a reviewing court makes an 

original appraisal of all the evidence to decide whether or not it believes that judgment 

should be entered for plaintiff.”17 If the reviewing Court determines that actual malice 

 12 The parties do not dispute that plaintiff’s status as an elected township official 

renders her a public figure or a public official. 

13 Harte-Hanks v Connaughton, 491 US 657, 688; 109 S Ct 2678; 105 L Ed 2d 

562 (1989). See also Bose Corp, 466 US at 511 (“Judges, as expositors of the 

Constitution, must independently decide whether the evidence in the record is sufficient 

to cross the constitutional threshold that bars the entry of any judgment that is not 

supported by clear and convincing proof of ‘actual malice.’”). 

14 Harte-Hanks, 491 US at 686. 

15 New York Times Co, 376 US at 285. 

16 See id. (stating that “[w]e 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”) (citation omitted). 

17 Bose Corp, 466 US at 514 n 31. 
9 

has been established with convincing clarity, the judgment of the trial court may only be 

reversed on the ground of some other error of law or clearly erroneous finding of fact.18

Likewise, an appellate court should not conduct an independent review of 

credibility determinations, disregard findings of fact, or create new findings of fact.19 

Instead, “the court should exercise independent judgment regarding whether, as a matter 

of constitutional law, the evidence in the record supports the verdict,”20 while giving “due 

regard” to the trial court’s “opportunity to observe the demeanor of the witnesses . . . .”21 

Credibility determinations made by the finder of fact must be examined to ascertain 

whether they are clearly erroneous.22 

III. ANALYSIS 

A. LEGAL BACKGROUND 

“‘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 

 18 Id. 

19 Locricchio v Evening News Ass’n, 438 Mich 84, 112 n 17; 476 NW2d 112 

(1991) (suggesting that the independent review standard does not extend to “credibility 

determinations”). 

20 Id. 

21 Bose Corp, 466 US at 499-500.

22 Harte-Hanks, 491 US at 688. 
10 

associating or dealing with him.’”23 Generally, to sustain a claim of defamation, the 

following elements must be established: 

(1) a false and defamatory statement concerning the plaintiff, (2) an 

unprivileged communication to a third party, (3) fault amounting at least to 

negligence on the part of the publisher, and (4) either actionability of the 

statement irrespective of special harm (defamation per se) or the existence 

of special harm caused by publication.[24]

In the seminal case of New York Times Co v Sullivan, the United States Supreme 

Court recognized the “profound national commitment to the principle that debate on 

public issues should be uninhibited, robust, and wide-open, and that it may well include 

vehement, caustic, and sometimes unpleasantly sharp attacks on government and public 

officials.”25 The Court concluded that a plaintiff who is a public official may only prevail 

in a defamation action if he or she establishes that the alleged defamatory statements 

were made with “actual malice.”26 “Actual malice” exists when the defendant knowingly 

makes a false statement or makes a false statement in reckless disregard of the truth.27 

The high threshold established by the “actual malice” standard was codified by our 

Legislature in MCL 600.2911(6), which provides: 

 23 Nuyen v Slater, 372 Mich 654, 662, n *; 127 NW2d 369 (1964) (citation 

omitted). 

24 Mitan v Campbell, 474 Mich 21, 24; 706 NW2d 420 (2005). 

25 New York Times, 376 US at 270. 

26 Id. at 279-280. See also Curtis Publishing Co v Butts, 388 US 130; 87 S Ct 

1975; 18 L Ed 2d 1094 (1967) (extending the New York Times actual malice standard to 

public figures). 

27 New York Times, 376 US at 280. 
11 

An action for libel or slander shall not be brought based upon a 

communication involving public officials or public figures unless the claim 

is sustained by clear and convincing proof that the defamatory falsehood 

was published with knowledge that it was false or with reckless disregard 

of whether or not it was false. 

Pursuant to this statute, a plaintiff who is a public official or public figure bears 

the burden of sustaining a defamation claim by clear and convincing proof that the 

alleged defamatory statement was made with actual malice, specifically, either 

knowledge that the statement was false or with reckless disregard of whether or not the 

statement was false. Clear and convincing proof is that which produces in the mind of 

the trier of fact a firm belief or conviction as to the truth of the precise facts in issue.28 

Evidence may be uncontroverted and yet not be clear and convincing.29 Conversely, 

evidence may be clear and convincing despite the fact that it has been contradicted.30

After New York Times, the United States Supreme Court clarified the scope of the 

actual malice standard. In St Amant v Thompson, the Court explained that “actual 

malice” is a subjective concept.31 However, a defendant in a defamation case cannot 

“automatically insure a favorable verdict by testifying that he published with a belief that 

the statements were true.”32 Instead, “[t]he finder of fact must determine whether the 

 28 In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995) (citation omitted). 

29 Id. 

30 Id. 

31 See St Amant v Thompson, 390 US 727, 731; 88 S Ct 1323; 20 L Ed 2d 262 

(1968). 

32 Id. at 732. 
12 

publication was indeed made in good faith.”33 The Court further held in Harte-Hanks, 

Inc v Connaughton that “only through the course of case-by-case adjudication can [a 

court] give content to [the actual malice] constitutional standard[].”34 The term “malice” 

in the actual malice standard does not equate to a showing of ill will.35 Rather, the 

standard requires a showing that, at minimum, the allegedly defamatory statements were 

made with a “reckless disregard for the truth.”36 

The manner in which a plaintiff may establish “reckless disregard for the truth” for 

purposes of the actual malice standard cannot necessarily be expressed in a singular 

definition.37 A plaintiff must prove something “more than a departure from reasonably 

prudent conduct.”38 Likewise, a plaintiff must present sufficient evidence to justify a 

conclusion that the defendant made the allegedly defamatory publication with a “high 

degree of awareness” of the publication’s probable falsity,39 or that the defendant 

“entertained serious doubts as to the truth” of the publication made.40 And while “courts 

 33 Id. 

34 Harte-Hanks, 491 US at 686. 

35 Id. at 666. 

36 Id. at 667. 

37 St Amant, 390 US at 730. 

38 Harte-Hanks, 491 US at 688. 

39 Garrison v Louisiana, 379 US 64, 74; 85 S Ct 209; 13 L Ed 2d 125 (1964). 

40 St Amant, 390 US at 731. The Supreme Court has additionally recognized that 

even a false statement may be protected from defamation claims if it cannot be 
13 

must be careful not to place too much reliance on such factors, a plaintiff is entitled to 

prove the defendant’s state of mind through circumstantial evidence, and it cannot be said 

that evidence concerning motive or care never bears any relation to the actual malice 

inquiry.”41

Finally, it is well settled that the failure to investigate the accuracy of a 

communication before publishing it, even when a reasonably prudent person may have 

done so, is not sufficient to establish that the defendant acted with reckless disregard for 

the truth.42 However, a “purposeful avoidance of the truth” is dissimilar from the mere 

“failure to investigate,” and “a deliberate decision not to acquire knowledge of facts that 

might confirm the probable falsity” of a publication is sufficient to find reckless 

disregard.43 Furthermore, when a defendant has reported a third party’s allegations, 

 

reasonably interpreted as stating actual facts about an individual. Milkovich v Lorain 

Journal Co, 497 US 1, 16-17; 11 L Ed 2d 1; 110 S Ct 2695 (1990). So too has our Court 

of Appeals. In Ireland v Edwards, 230 Mich App 607, 611-612; 584 NW2d 632 (1998), 

an attorney representing the father in a custody dispute commented on the mother’s 

actions and her fitness as a parent. The mother, in turn, filed a defamation claim against 

the attorney. The Court of Appeals concluded that many of the allegedly defamatory 

statements, when read or heard in context, “could not reasonably be understood as stating 

actual facts” about the mother and that the attorney’s statements about the time the 

mother spent with the child amounted to “‘rhetorical hyperbole.’” Id. at 618-619. Thus, 

the Court of Appeals concluded that the statements were not actionable. Id. at 619. 

41 Harte-Hanks, 491 US at 668, citing Herbert v Lando, 441 US 153, 160; 160 L 

Ed 2d 115; 99 S Ct 1635 (1979). See also Battaglieri v Mackinac Ctr for Pub Policy, 261 

Mich App 296, 306; 680 NW2d 915 (2004), which noted that circumstantial evidence 

may be introduced to show actual malice because it would be rare for a defendant to 

admit that he or she acted with actual malice. 

42 St Amant, 390 US at 731, 733. 

43 Harte-Hanks, 491 US at 692. 
14 

reckless disregard for the truth of the allegations “may be found where there are obvious 

reasons to doubt the veracity of the informant or the accuracy of his reports.”44 

B. APPLICATION OF ACTUAL MALICE STANDARD 

1. STANEK 

Plaintiff first relies on evidence that, during a meeting at which all three 

defendants were present, Preston expressed hesitation about mailing the Stewart report 

and stated that he would speak to Stewart to verify the accuracy of the report’s contents. 

Specifically, Preston testified that in response to a discussion about mailing the Stewart 

report, he informed others that it “probably wouldn’t be a good idea” because “no one 

had any real knowledge if in fact [the] document was true or not.”45

With regard to Stanek’s liability, both Preston and Stanek testified that, at a 

monthly Elmwood Township meeting, Preston informed Stanek that he had spoken with 

Stewart and that Stewart confirmed that plaintiff had not done anything illegal. There 

were two monthly meetings at which this conversation could have occurred–either that of 

May 9, 2005 or June 13, 2005. 

 44 St Amant, 390 US at 732. 

45 Preston additionally testified that there were probably less than 10 people 

present at the meeting, and he “definitely” thought that the group heard him say he 

wanted to investigate the accuracy of the Stewart report. Barrows testified that he heard 

Preston say that he would talk to Stewart about the report. In addition, Barrows testified 

that there was debate about whether the Stewart memo should be sent out or not. Stanek, 

however, testified that those who expressed hesitance to mail the Stewart report did not 

indicate their reasons, and that he did not hear Preston say he would talk to Stewart about 

the report. 
15 

Preston testified that his conversation with Stanek occurred sometime in the 

spring, and that while he cannot be certain of the month, he did not believe it was in June. 

In contrast, Stanek testified that he recalled that the conversation took place on June 13. 

In any event, Stanek did not deny that Preston informed him of Stewart’s confirmation 

that plaintiff had not done anything illegal. If the jury believed that the conversation 

between Preston and Stanek did not take place before June 13, as Stanek asserts, plaintiff 

would not be able to establish that Stanek knew the allegations in the Stewart report were 

false before the mass-mailing. However, if the jury believed that the conversation 

between Preston and Stanek occurred at the May 9 meeting, then plaintiff would be able 

to establish that Stanek mailed the Stewart report despite the knowledge that it contained 

false information. 

On this record, it is apparent that the jury did not believe that Preston waited until 

June 13 to tell Stanek about the Stewart report when citizens already started receiving the 

report by mail almost a month earlier on May 17 and expressed their concerns with its 

contents shortly thereafter. The testimony reveals that Preston already knew by May 2 or 

4 that defendants were considering mailing the Stewart report, and that he had contacted 

Stewart about this at some point before May 17. Thus, the jury apparently did not believe 

Stanek’s testimony that Preston did not report back to him until June 13, almost a month 

after the Stewart report had been distributed. Instead, the jury apparently chose to 
16 

believe Preston’s testimony that he told Stanek about the Stewart report in the spring, but 

that he did not think it was as late as June.46

Here, the illogical timeline of events presented by Stanek, coupled with Preston’s 

testimony that Stanek initially denied responsibility for the mailing and evidence that 

Stanek refused to make a retraction after admitting he knew that the contents of the 

Stewart report were false, lead us to conclude that the jury’s finding that Stanek knew 

that the Stewart report contained false information or was aware of the reports probable 

falsity when he mailed copies of it was not clearly erroneous. We will not disturb the 

jury’s credibility determinations in this regard.47

 46 We reject the concurrence/dissent’s proclamation that Preston’s testimony—

that the conversation took place in “late spring, so that’s May, June”—somehow 

definitively means that the earliest the conversation could have occurred was the third 

week of May. Tempting as it may be, we likewise decline to substitute our subjective 

interpretation of the record for that of the jury. Findings of fact, although not necessarily 

immune from review, and the opportunity to observe first-hand the demeanor of 

witnesses, even in the context of defamation claims subject to enhanced First 

Amendment scrutiny, remain inherently within the province of the jury. See Steadman v 

Lapensohn, 408 Mich 50, 53-54; 288 NW2d 580 (1980); Cochrane v Wittbold, 359 Mich 

402, 408; 102 NW2d 459 (1960); Bose Corp, 466 US at 512.

47 Harte-Hanks, 491 US at 688; Locricchio, 438 Mich at 112 n 17. Although the 

concurrence/dissent iterates on five separate occasions that it has conducted an 

independent review of the record, it does not appreciate the scope of that review. 

Specifically, it does not recognize that an independent review of the record is not the 

equivalent of having carte blanche to adjudicate the merits of a case. Indeed, it is the 

concurrence/dissent that does not heed well-established U.S. Supreme Court precedent 

holding that, 

in cases involving the area of tension between the First and Fourteenth 

Amendments on the one hand and state defamation laws on the other, we 

have frequently had occasion to review “the evidence in the . . . record to 

determine whether it could constitutionally support a judgment” for the 
17 

Moreover, we are satisfied that this evidence constitutes clear and convincing 

evidence that Stanek acted with actual malice. Although it is contradicted by Stanek’s 

own testimony that he did not have knowledge of the Stewart report’s falsity, his denial 

of such knowledge is not, in and of itself, sufficient to defeat plaintiff’s claim that Stanek 

had the requisite knowledge to support a defamation claim.48 The jury was undoubtedly 

presented with conflicting testimony here. Similarly, in Harte-Hanks, evidence was 

presented that, if believed, could effectively refute the claim of actual malice. However, 

as the United States Supreme Court explained in Harte-Hanks, we should not substitute 

the judgment of the jury with our own judgment of which testimony was most credible.49 

Accordingly, we do not find the jury’s credibility determinations clearly erroneous and, 

therefore, we agree with the jury’s finding with regard to Stanek’s liability. 

 

plaintiff. [Time, Inc v Pape, 401 US 279, 284; 91 S Ct 633; 28 L Ed 2d 45 

(1971).] 

Thus, the proper inquiry, misunderstood by the concurrence/dissent, is to ensure 

that a constitutionally sufficient quantum of evidence supports a judgment consistent with 

First Amendment principles. 

48 St Amant, 390 US at 732 (“The defendant in a defamation action brought by a 

public official cannot . . . automatically insure a favorable verdict by testifying that he 

published with a belief that the statements were true. The finder of fact must determine 

whether the publication was indeed made in good faith.”). 

49 On the issue of credibility determinations in defamation actions, the Ninth 

Circuit has stated, “we read Bose and Harte-Hanks as creating a ‘credibility exception’ to 

the New York Times rule of independent review.” Newton v Nat’l Broadcasting Co, 930 

F2d 662, 671 (CA 9, 1990). Noting that the fact-finding function involves “‘credibility 

determinations, the weighing of the evidence, and the drawing of legitimate inferences 

from the facts,’” id. at 671 n 13 (citation omitted), the court explained that the United 

States Supreme Court had drawn a thin line “between highly deferential review of 

credibility determinations and less deferential review of the factfinder’s evaluation of 

other evidence relevant to the actual malice issue.” Id. at 672. 
18 

2. BARROWS 

Barrows testified that following plaintiff’s election as township supervisor, he 

repeatedly asked VanHuystee, at least five times,50 for information about plaintiff. 

Specifically, Barrows inquired whether plaintiff had been involved in any criminal 

activity. VanHuystee testified that he told Barrows on each of the five occasions that he 

did not know of any illegal conduct by plaintiff. Furthermore, VanHuystee testified that 

the occasions on which he told Barrows that plaintiff had not been involved in illegal 

activity were prior to May 16, 2005, the date on which Stanek, Barrows, and Flohe 

mailed the Stewart report. 

Barrows denied knowing that the statements in the Stewart report regarding 

plaintiff were false. Yet Barrows’ denial of such knowledge is not, in and of itself, 

sufficient to defeat plaintiff’s claim that he had the requisite knowledge to support a 

defamation claim.51 Not only was Barrows aware of Preston’s initial hesitation to mail 

the Stewart report, but VanHuystee repeatedly told Barrows that he did not know of any 

illegal activity by plaintiff. 

Indeed, Barrows’ testimony provides a sound basis for the jury’s finding of actual 

malice. The following exchange between plaintiff’s counsel and Barrows is illustrative 

of Barrows’ purposeful avoidance of the truth: 

 50 In response to a question asking whether Barrows recalled talking to 

VanHuystee on five different occasions and requesting information showing that plaintiff 

had done something illegal, Barrows answered, “It could have been more than five, I 

don’t remember.” 

51 See St Amant, 390 US at 730. 
19 

Q: Did you hear Mr. Preston say that the group when he said don’t 

send it, I’m going to go investigate, some of the group at least some 

members he didn’t know how many, agreed that he should do that, did you 

hear him testify to that? 

A: Yes, I did. 

Q: And, did you agree, were you one of those people that Mr. 

Stewart agreed Mr. Stewart should go check—Mr. Preston should go check 

with Mr. Stewart, or didn’t you agree with that? 

A: I think it was neutral, I didn’t care whether he went or not. 

Q: You didn’t disagree with him going? 

A: I didn’t care. I said he was going to do it, it wasn’t anything of 

real interest to me. 

* * * 

Q: What I’m asking about the meeting, didn’t [Preston] tell you at 

the meeting, you knew at the meeting he said don’t send it I’m going to go 

investigate, right? 

A: That could very well be, I mean, that’s something that— 

Q: And, that you know that those statements were made by Mr. 

Preston before the mailing went out, correct? 

A: Oh, yes, sure. 

Q: And, we know the mailing occurred on May 15 or 16, right? 

A: Right 

Q: No doubt about that because we have the envelope, right? 

A: That’s right. 

Q: So to wrap all those little beads together, you knew before you 

sent that mailing at least one person looked at it, said don’t send it, I’m 

going to investigate, I’m going to go to the guy that wrote this memo, you 

knew that, right? 
20 

A: Yes. 

After considering the evidence presented, including this testimony, the jury 

apparently found that Barrows acted with actual malice. This conclusion is eminently 

reasonable given that Barrows conceded that Preston had recommended that he not send 

the report because he wanted to verify its accuracy. Thus, there was sufficient evidence 

to support the jury’s conclusion that Barrows acted with reckless disregard for the truth of 

the statements in the Stewart report. Although the evidence was controverted, we 

conclude that plaintiff sustained her burden of presenting the jury with clear and 

convincing proof that Barrows acted with actual malice when mailing the Stewart report. 

We find further support for this conclusion in Harte-Hanks. In that case, the 

plaintiff, a candidate for an elective judicial office occupied by an incumbent, brought a 

defamation action against the defendant newspaper, which had published an article that 

damaged his personal and professional reputation. Shortly before the election, the 

plaintiff discovered evidence of a bribery scheme involving a member of the incumbent 

judge’s staff. The plaintiff located a witness to that bribery, Patsy Stephens, and taperecorded a four-hour interview of her during which she provided details of the bribery 

scheme. Eight people were present during that interview, including Stephens’ sister, 

Alice Thompson. 

The defendant endorsed the incumbent in the election and arranged a meeting with 

Thompson to discuss the alleged bribery scheme. Thompson asserted that the plaintiff 

had promised her and Stephens gifts and other consideration in exchange for Stephens’ 
21 

statements implicating the incumbent’s staff in the bribery scheme. Before printing an 

article concerning Thompson’s allegations against the plaintiff, the defendant interviewed 

the plaintiff. The plaintiff categorically denied Thompson’s assertion that he had offered 

an improper quid pro quo for Stephens’ information, and provided the defendant with 

access to the tape recording of his interview with Stephens. The defendant did not listen 

to the recording. It nevertheless published a story alleging that the plaintiff had offered 

Thompson and Stephens jobs in exchange for their cooperation in building a bribery case 

against the incumbent’s staff. 

A jury returned a verdict for the plaintiff, and the Sixth Circuit Court of Appeals 

affirmed.52 The United States Supreme Court granted certiorari to consider whether the 

lower courts had properly applied the New York Times actual malice standard and 

whether the plaintiff had presented clear and convincing evidence to support the jury’s 

verdict. 

The Court initially noted that the jury’s verdict was largely premised on credibility 

determinations. In concluding that the plaintiff had satisfied his burden of proving his 

case by clear and convincing evidence, the Court relied heavily on circumstantial 

evidence of the defendant’s actual malice. Notably, the Court cited the defendant’s 

failure to review the tape recording of the plaintiff’s interview with Stephens that would 

have confirmed or refuted portions of its article. The Court reasoned that “one might 

reasonably infer . . . that the decision not to listen to the tapes was motivated by a concern 

 52 Connaughton v Harte-Hanks Communications, Inc, 842 F2d 825 (CA 6, 1988). 
22 

that they would raise additional doubts concerning Thompson’s veracity.”53 The Court 

further stated: 

It is also undisputed that [the plaintiff] made the tapes of the 

Stephens interview available to the [defendant] and that no one at the 

newspaper took the time to listen to them. Similarly, there is no question 

that the [defendant] was aware that . . . Stephens was a key witness and that 

they failed to make any effort to interview her. Accepting the jury’s 

determination that [the defendant’s] explanations for these omissions were 

not credible, it is likely that the newspaper’s inaction was a product of a 

deliberate decision not to acquire knowledge of facts that might confirm the 

probable falsity of Thompson’s charges. Although failure to investigate 

will not alone support a finding of actual malice, the purposeful avoidance 

of the truth is in a different category.[54]

In this case, as in Harte-Hanks, Barrows could have readily confirmed the 

accuracy of the Stewart report by doing exactly what Preston had done—contact Stewart 

directly. It appears the jury found that Barrows made a conscious decision not to hear 

from the person most capable of confirming the truth or falsity of the report. This is 

significant in light of the fact that at a meeting, Preston impressed on Barrows (and 

others, including Stanek) that the report should not be distributed because its accuracy 

had not been verified. And given the fact that Barrows repeatedly sought out 

VanHuystee and VanHuystee told Barrows on at least five separate occasions that he did 

not know of anything illegal done by plaintiff, the jury had ample evidence from which it 

could conclude that Barrows acted in purposeful avoidance of the truth. 

 53 Harte-Hanks, 491 US at 684. 

54 Id. at 692 (citations omitted). 
23 

The Stewart report contained relatively specific allegations of wrongdoing by 

plaintiff, including allegations of acts that would clearly constitute a misuse of taxpayer 

funds. Barrows knew that VanHuystee did not know of anything illegal done by plaintiff 

and that members of the group of concerned citizens that Barrows belonged to expressed 

concern about mailing the Stewart report and a desire to verify its accuracy. Thus, the 

jury was presented with relevant evidence aside from a mere allegation that Barrows 

obtained the Stewart report and mailed it without any investigation. As in Harte-Hanks, 

on the basis of the evidence presented and the testimony apparently believed by the jury, 

the jury in this case most certainly could have inferred that Barrows’ decision not to 

confirm the accuracy of the report was motivated by a concern that doing so would raise 

additional doubts concerning its veracity. Therefore, we do not find the jury’s credibility 

determinations clearly erroneous, and we agree with the jury’s finding with regard to 

Barrows’ liability.55

 55 The concurrence/dissent’s claim that the Stewart report was available to the 

public under FOIA is inapposite to whether any of the defendants acted with actual 

malice. Moreover, the concurrence/dissent relies heavily on the fact that Barrows 

testified that he had no reason to investigate the veracity of the Stewart report. But it 

does not consider the central tenet of St Amant, 390 US at 732, that 

[t]he defendant in a defamation action brought by a public official 

cannot . . . automatically insure a favorable verdict by testifying that he 

published with a belief that the statements were true. The finder of fact 

must determine whether the publication was indeed made in good faith. 

Professions of good faith will be unlikely to prove persuasive, for example, 

where a story is fabricated by the defendant, is the product of his 

imagination, or is based wholly on an unverified anonymous telephone call. 

Nor will they be likely to prevail when the publisher’s allegations are so 

inherently improbable that only a reckless man would have put them in 
24 

3. FLOHE 

In contrast to Stanek and Barrows, the evidence presented against Flohe is less 

convincing. Unlike for Stanek, there is no evidence indicating that Flohe was ever told 

that Stewart himself, as author of the report, confirmed that the report contained false 

information. In addition, unlike for Barrows, there is no evidence that VanHuystee had 

repeatedly informed Flohe that he had no knowledge of any illegal activity by plaintiff. 

Moreover, the evidence indicates that Flohe was not even present at the beginning of the 

meeting at which Preston expressed his reluctance to mail the report and indicated that he 

would verify its accuracy with Stewart. Thus, the record contains little, if any, evidence 

to counter Flohe’s contention that he was unaware that the report contained false 

information. Accordingly, we conclude that while the jury apparently did not find 

Flohe’s testimony to be credible, there was not clear and convincing evidence remaining 

to support its finding that Flohe acted with actual malice. 

For these reasons, we reverse the Court of Appeals’ conclusion that plaintiff 

presented insufficient evidence of actual malice as to Stanek and Barrows, but affirm its 

conclusion that plaintiff presented insufficient evidence of actual malice as to Flohe. 

 

circulation. Likewise, recklessness may be found where there are obvious 

reasons to doubt the veracity of the informant or the accuracy of his reports. 
25 

C. DEFAMATORY MEANING OF HANDWRITTEN CAPTION 

Defendants additionally argue that they are not liable for the added handwritten 

caption because the caption is not defamatory.56 The caption added to the Stewart report 

states, “Attention: Suttons Bay Villagers Alledged [sic] Misuse of Village Taxpayer 

Funds?” and “Derrick [sic] Smith” written next to the line stating, “Subject: Personnel 

meeting scheduled for August 10, 2004.” The Court of Appeals conclusively determined 

that the caption alone is incapable of defamatory meaning as a matter of law because the 

term “alleged” was used and a question mark was included, indicating that the caption 

was nothing more than an expression of opinion. 

However, we note that a statement of “opinion” is not automatically shielded from 

an action for defamation because “expressions of ‘opinion’ may often imply an assertion 

of objective fact.”57 As explained by the United States Supreme Court, the statement “In 

my opinion Jones is a liar” may cause just as much damage to a person’s reputation as the 

statement “Jones is a liar.”58 If a statement of opinion is about a matter of public 

concern, it is protected speech under the First Amendment, unless it can be objectively 

proven to be false.59 Thus, a statement of opinion that can be proven to be false may be 

 56 All defendants deny responsibility for writing the caption on the Stewart report 

and deny knowing who wrote it. We note that this is irrelevant to our analysis, as 

defendants all admit to mailing the report and it is undisputed that the mailed copies 

include the handwritten caption.

57 Milkovich, 497 US at 18. 

58 Id. at 18-19. 

59 Id. at 19-20. 
26 

defamatory because it may harm the subject’s reputation or deter others from associating 

with the subject. The dispositive question with regard to the handwritten caption is 

whether a reasonable factfinder could conclude that the statement implies a defamatory 

meaning.60

The handwritten caption “Attention: Suttons Bay Villagers Alledged [sic] Misuse 

of Village Taxpayer Funds?” and “Derrick [sic] Smith” may be defamatory if it implies 

that defendants have information that would indicate a misuse of taxpayer funds by 

plaintiff. The Court of Appeals noted that the caption is phrased in a manner which 

asserts that any misuse of funds is only alleged, and it is punctuated with a question mark, 

indicating that defendants are not conclusively stating that plaintiff misused taxpayer 

funds. 

Nevertheless, even a statement of opinion may be defamatory when it implies 

assertions of objective facts. Noting that context matters in analyzing an allegedly 

defamatory statement, the First Circuit has held that a statement must be examined “in its 

totality in the context in which it was uttered or published.”61 In addition, the First 

Circuit has explained that a court must consider all the words used in allegedly 

defamatory material, “not merely a particular phrase or sentence.”62 This Court has 

similarly supported the notion that “context” must be considered when an alleged 

 

60 See id. at 21. 

61 Amrak Productions, Inc v Morton, 410 F3d 69, 72-73 (CA 1, 2005). 

62 Id. at 73. 
27 

defamatory statement is reviewed for a determination of whether it implies a defamatory 

meaning.63 

We agree that allegedly defamatory statements must be analyzed in their proper 

context. To hold otherwise could potentially elevate form over substance. Thus, on 

remand, the handwritten caption in this case should be viewed in context with the Stewart 

report as a whole, instead of relying merely on the use of a question mark as punctuation 

and use of the word “Alledged [sic],” to determine whether it is capable of defamatory 

meaning. 

Finally, we note that the Court of Appeals failed to address the issue of the falsity 

of the handwritten caption. Such an inquiry is required for plaintiff to sustain her 

defamation claim, and must be addressed by the Court of Appeals on remand. 

IV. CONCLUSION 

Plaintiff presented clear and convincing evidence to support the jury’s finding that 

both Stanek and Barrows acted with actual malice. We reach this conclusion after 

conducting an independent review of the record and giving due regard to the ability of the 

finder of fact—the jury—to view the witnesses’ demeanor and to make appropriate 

credibility judgments. The dissent’s approach to the independent review function is 

 63 See, e.g., Gustin v Evening Press Co, 172 Mich 311, 314; 137 NW 674 (1912) 

(noting that a publication must be considered as a whole when testing its libelous 

quality); O’Connor v Sill, 60 Mich 175, 181; 27 NW 13 (1886) (noting that an allegedly 

defamatory article must be read as a whole, without severing parts of it). 
28 

mistaken and reaches out to conduct essentially a de novo review in order to replace, with 

the dissent’s own, all of the jury’s findings as to the defendants’ liability.64 

Therefore, we reverse the Court of Appeals’ conclusion that Stanek and Barrows 

are not liable for defaming plaintiff. However, we also conclude that the record does not

contain sufficient evidence to support the jury’s finding that Flohe acted with actual 

malice. Therefore, we affirm the Court of Appeals’ conclusion that Flohe is not liable for 

defaming plaintiff. 

Accordingly, we remand this matter to the Court of Appeals for consideration of 

defendants’ additional arguments, including whether the added handwritten caption on 

the Stewart report constitutes a non-defamatory statement of opinion when considered in 

its context within the Stewart report as a whole, whether the caption is provable as false, 

and whether defendants are entitled to the protection afforded by Michigan’s statutory 

fair reporting privilege. 

 64 The dissent’s approach does not acknowledge or apply the guidance provided by 

the United States Supreme Court and this Court regarding credibility determinations 

made by the fact-finder—the jury—in defamation cases. See Bose Corp, 466 US at 514 

n 31. An appellate court should not conduct an independent review of credibility 

determinations, disregard findings of fact, or create new findings of fact. Locricchio, 438 

Mich 84, 112 n 17. Credibility determinations made by the finder of fact must be 

examined to ascertain whether they are clearly erroneous. Harte-Hanks, 491 US at 688. 

The jury in this case was presented with conflicting testimony and was required to assess 

the credibility of the witnesses. Giving due regard to the jury’s credibility 

determinations, we conclude that the evidence presented supports the jury’s verdict with 

regard to Stanek and Barrows, but not with regard to Flohe. 
29 

Affirmed in part, reversed in part, and remanded for further proceedings consistent 

with this opinion. 

KELLY, C.J., and CAVANAGH and HATHAWAY, JJ., concurred with WEAVER, J. 
S T A T E O F M I C H I G A N 

SUPREME COURT 

DERITH SMITH, 

 Plaintiff-Appellant, 

v No. 138456-8 

ANONYMOUS JOINT ENTERPRISE, 

GEORGE PRESTON, MARY BARROWS, 

VILLAGE OF SUTTONS BAY, and 

CHARLES STEWART, 

 Defendants, 

and 

DONALD BARROWS, JOHN STANEK, 

and NOEL FLOHE, 

 Defendants-Appellees. 

CORRIGAN, J. (concurring in part and dissenting in part). 

In this defamation action, we consider whether the Court of Appeals erred by 

determining that plaintiff Derith Smith, a public official, failed to present clear and 

convincing evidence to support a finding of actual malice at trial. I concur with the 

majority that plaintiff did not satisfy her evidentiary burden regarding defendant Noel 

Flohe. I dissent, however, from the majority’s conclusion that plaintiff presented clear 

and convincing evidence that defendants John Stanek and Donald Barrows acted with 

actual malice when they mailed copies of a public record—a report critical of plaintiff’s 

job performance written by her former supervisor, Suttons Bay Village Manager Charles 
2 

Stewart. I would affirm the result reached by the Court of Appeals concerning each of 

the three individual defendants because my independent review of the record reveals that 

plaintiff failed to present clear and convincing evidence that Stanek and Barrows acted 

with actual malice. 

I. ACTUAL MALICE STANDARD 

As the majority explains, to prevail in a defamation action, a plaintiff who is a 

public official must establish that a defendant made a false and defamatory statement 

with “actual malice.”1

 “‘Actual malice’ exists when the defendant knowingly makes a 

false statement or makes a false statement in reckless disregard of the truth.”2

 The 

Legislature codified the heightened actual malice standard in MCL 600.2911(6), which 

mandates that a plaintiff who is a public official sustain a defamation claim “by clear and 

convincing proof that the defamatory falsehood was published with knowledge that it was 

false or with reckless disregard of whether or not it was false.”3

 Clear and convincing 

proof is “evidence that ‘produce[s] in the mind of the trier of fact a firm belief or 

conviction as to the truth of the allegations sought to be established, evidence so clear, 

 1 New York Times Co v Sullivan, 376 US 254, 279-280; 84 S Ct 710; 11 L Ed 2d 

686 (1964). 

2 J & J Constr Co v Bricklayers & Allied Craftsmen, Local 1, 468 Mich 722, 731; 

664 NW2d 728 (2003), citing New York Times, 376 US at 280. 

3

 MCL 600.2911(6) provides: 

An action for libel or slander shall not be brought based upon a 

communication involving public officials or public figures unless the claim 

is sustained by clear and convincing proof that the defamatory falsehood 

was published with knowledge that it was false or with reckless disregard 

of whether or not it was false. 
3 

direct, and weighty and convincing as to enable [the factfinder] to come to a clear 

conviction, without hesitancy, of the truth of the precise facts in issue.’”4

Application of the heightened actual malice standard in cases involving political 

speech reflects our “profound national commitment to the principle that debate on public 

issues should be uninhibited, robust, and wide-open, and that it may well include 

vehement, caustic, and sometimes unpleasantly sharp attacks on government and public 

officials.”5

 This Court has distinguished between regulation of political speech and 

commercial speech, stating that: 

Political speech is “‘at the core of our electoral process and of the 

First Amendment freedoms’ . . . an area of public policy where protection 

of robust discussion is at its zenith.” Because the central purpose of the 

First Amendment speech clause is to protect core political speech, we 

determined that political speech may not be regulated in the same manner 

that commercial speech is regulated.[6]

“There is little doubt that ‘public discussion of the qualifications of a candidate for 

elective office presents what is probably the strongest possible case for application of the

New York Times rule,’ and the strongest possible case for independent review” of the 

actual malice determination.7

 4 In re Chmura (After Remand), 464 Mich 58, 72; 626 NW2d 876 (2001), quoting 

In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995). 

5 New York Times, 376 US at 270.

6 In re Chmura (After Remand), 464 Mich at 65, quoting Meyer v Grant, 486 US 

414, 425; 108 S Ct 1886; 100 L Ed 2d 425 (1988). 

7 Harte-Hanks Communications, Inc v Connaughton, 491 US 657, 686-687; 109 S 

Ct 2678; 105 L Ed 2d 562 (1989), quoting Ocala Star-Banner Co v Damron, 401 US 

295, 300; 91 S Ct 628; 28 L Ed 2d 57 (1971). 
4 

When determining whether a public official plaintiff has satisfied the heightened 

actual malice standard, “the reviewing court must consider the factual record in full.”8

 

The requirement of independent review “assigns to judges a constitutional responsibility 

that cannot be delegated to the trier of fact, whether the factfinding function be performed 

in the particular case by a jury or by a trial judge.”9

 In Locricchio v Evening News Ass’n, 

this Court observed that the independent review requirement “reflects an inherent distrust 

of allocating unlimited decisional power to juries in the First Amendment context.”10 

One year after Locricchio, this Court expanded its discussion about the importance of 

independent review, stating that “[w]e perceive an additional need for independent 

review grounded on the fear that juries may give short shrift to important First 

Amendment rights.”11

In New York Times Co v Sullivan, the United States Supreme Court recognized 

that “erroneous statement[s] [are] inevitable in free debate, and that [these statements] 

 8 Harte-Hanks, 491 US at 688; see also Locricchio v Evening News Ass’n, 438 

Mich 84, 110; 476 NW2d 112 (1991), quoting New York Times, 376 US at 285 (“[New 

York Times] mandate[s] that reviewing courts . . . ‘examine for [themselves] 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 . . . protect.’”) 

(quotation marks omitted). 

9 Bose Corp v Consumers Union of United States, Inc, 466 US 485, 501; 104 S Ct 

1949; 80 L Ed 2d 502 (1984).

10 Locricchio, 438 Mich at 114 n 20. 

11 Rouch v Enquirer & News of Battle Creek (After Remand), 440 Mich 238, 258; 

487 NW2d 205 (1992). Rouch further observed that “[e]ven 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.’” Id., quoting Bose, 466 US at 518. 
5 

must be protected if the freedoms of expression are to have the ‘breathing space’ that 

they ‘need . . . to survive.’”12 Absent such protection, “would-be critics of official 

conduct may be deterred from voicing their criticism, even though it is believed to be true 

and even though it is in fact true, because of doubt whether it can be proved in court or 

fear of the expense of having to do so.”13 That is, not protecting false defamatory 

statements would “dampen[] the vigor and limit[] the variety of public debate.”14 

Because such an outcome cannot be tolerated under the First Amendment, “neither 

factual error nor defamatory content suffices to remove the constitutional shield from 

criticism of official conduct . . . .”15 Instead, a plaintiff who is a public official must 

establish actual malice before recovering damages for a defamatory falsehood.16

The matters at issue here lie at the heart of our political discourse and are subject 

to the expansive protections enshrined in the First Amendment.17 Nonetheless, the 

 12 New York Times, 376 US at 271-272, quoting NAACP v Button, 371 US 415, 

433; 83 S Ct 328; 9 L Ed 2d 405 (1963). 

13 New York Times, 376 US at 279.

14 Id. 

15 Id. at 273. 

16 Id. at 279-280. 

17 The constitutional right guaranteeing the freedom of speech is embodied 

explicitly in both the United States Constitution and the Michigan Constitution. US 

Const, Am I (“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.”); 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 
6 

majority imposes liability on two of the three individual defendants because they failed to 

personally investigate information criticizing a political opponent contained in a public 

record. In so doing, the majority punishes defendants’ exercise of their First Amendment 

rights to engage in political speech and to distribute a public record, contrary to wellestablished United States Supreme Court precedent.18 Moreover, the majority shirks its 

“constitutional responsibility” to independently review the whole factual record,19 and the 

majority also wrongly defers to the jury’s verdict when such deference is not owed.20

II. ACTUAL MALICE STANDARD AS APPLIED 

In this case, all three individual defendants were politically active residents of 

Elmwood Township. Stanek, a township trustee from 1998 to 2004, survived a 2003 

recall campaign in which plaintiff was involved. He lost his bid for reelection in 2004, 

and his slate was replaced by a group of candidates that included plaintiff. Flohe was the 

 

right; and no law shall be enacted to restrain or abridge the liberty of speech or of the 

press.”). 

18 Harte-Hanks, 491 US 657; Bose, 466 US 485; New York Times, 376 US 254. 

19 Bose, 466 US at 501. 

20 The Locricchio Court explained: 

“It is worth noting in this connection that the doctrine of independent 

review reflects an inherent distrust of allocating unlimited decisional power 

to juries in the First Amendment context. Thus, “much of contemporary 

first amendment doctrine, theory, and commentary is devoted to protecting 

speech from the jury. . . . The common wisdom is that if juries were given 

more decisional power in [First Amendment cases], either by increasing the 

range of issues they could consider or by granting juries greater immunity 

from appellate review, free speech would suffer a crippling blow.” Schauer, 

The role of the people in First Amendment theory, 74 Cal L R 761, 765 

(1986).” [Locricchio, 438 Mich at 114 n 20.] 
7 

township supervisor until plaintiff was elected to replace him in 2004. Barrows, another 

political opponent of plaintiff’s, expressed his concern that plaintiff’s job performance in 

Elmwood Township would be similar to her previous tenure as clerk in the Village. He 

sought information about plaintiff’s track record in the Village from Jerry VanHuystee, 

Suttons Bay Village’s appointed treasurer. VanHuystee furnished Barrows with the 

publicly available Stewart report, which criticized plaintiff’s job performance in the 

Village. Indeed, the Stewart report caused plaintiff’s termination from her position in the 

Village. Defendants subsequently mailed approximately 450 copies of the Stewart report 

to local residents, local government officials, and plaintiff. Before defendants mailed the 

Stewart report, someone had modified it with a handwritten caption, stating “Attention: 

Suttons Bay Villagers Alledged [sic] Misuse of Village Taxpayer Funds?” and “Derrick 

[sic] Smith.” 

Plaintiff received a copy of the Stewart report on May 17, 2005 and filed suit in 

July 2005. Plaintiff’s suit proceeded to trial, and the jury returned a verdict in favor of 

plaintiff. The jury ordered that Stanek pay plaintiff $40,000 in noneconomic damages 

and $4,000 in campaign expenses and that Barrows pay plaintiff $45,000 in noneconomic 

damages and $4,000 in campaign expenses. By contrast, the jury only assessed $10,000 

in noneconomic damages and $4,000 in campaign expenses against Flohe. However, the 

jury also mandated that each individual defendant publish a public apology to plaintiff in 

the form of a legal notice to appear in two local newspapers: the Traverse City RecordEagle and the Leelanau Enterprise. 
8 

Although I generally agree with the majority’s explication of the actual malice 

standard, I disagree with the majority’s application of that standard to defendants Stanek 

and Barrows on this record. The record does not show “with convincing clarity”21 that 

defendants acted with actual malice when they mailed the Stewart report. The “clear and 

convincing” evidentiary standard requires that plaintiff satisfy “the most demanding 

standard applied in civil cases.”22 After performing an independent review of the record, 

I cannot conclude that plaintiff satisfied this exacting standard. While plaintiff proffered 

some evidence of actual malice, that evidence is not “so clear, direct . . . weighty and 

convincing” that I can unhesitatingly state that either Stanek or Barrows acted with actual 

malice when they disseminated the Stewart report.23

Suttons Bay Village Manager Charles Stewart, plaintiff’s former supervisor, 

drafted the report about plaintiff’s tenure with the Village. Stewart addressed the report 

to the Village’s personnel committee, which voted to terminate plaintiff after reviewing 

it. The Stewart report remained on file thereafter. In the report, Stewart stated that: (a) 

the Village hired plaintiff as an independent contractor, but plaintiff received benefits 

available to full-time employees although she had not received W-2 forms; (b) when the 

Village Council declined to reappoint plaintiff as clerk, she delayed responding to the 

 21 See Bose, 466 US at 514 (“Appellate judges . . . must exercise independent 

judgment and determine whether the record establishes actual malice with convincing 

clarity.”). 

22 In re Martin, 450 Mich at 227. 

23 Id. 
9 

Village’s part-time job offer until Stewart was away from the office, at which time 

plaintiff directly contacted the Council president without Stewart’s knowledge to 

authorize a higher pay rate; (c) plaintiff did not exert more than the minimum effort 

necessary to perform her job; and (d) plaintiff was not a “team player.” 

At trial, Stewart acknowledged that the report contained misinformation. For 

example, Stewart eventually located plaintiff’s W-2 forms, which confirmed her status as 

an employee, rather than an independent contractor. However, Stewart testified that 

other aspects of the report were true, including his belief that plaintiff took purposeful 

steps to avoid a reduction in pay by directly contacting the Council president in his 

absence. Plaintiff did not dispute the basic facts involving her pay rate as described in 

the Stewart report. Nor did she dispute the specific facts surrounding the statements in 

the Stewart report that Stewart continued to maintain were true. Rather, plaintiff testified 

that she did not intend to circumvent efforts to lower her pay rate by directly contacting 

the Council president in Stewart’s absence. In its decision regarding defendants’ motions 

for summary disposition, the trial court held that “[t]he Stewart report was not a 

disciplinary report, was not required to be destroyed, and was subject to disclosure under 

FOIA.” Plaintiff never appealed this adverse ruling. 

A. DEFENDANT JOHN STANEK 

Plaintiff did not present clear and convincing evidence that defendant Stanek acted 

with actual malice. The testimony of retired police officer George Preston does not 

establish with convincing clarity that Stanek knew that the Stewart report contained 

defamatory falsities when he mailed it. Nor does Preston’s testimony show that Stanek 
10 

recklessly disregarded its truth or falsity, i.e., that he “entertained serious doubts as to the 

truth”24 of the Stewart report or mailed the Stewart report despite having a “high degree 

of awareness of [its] probable falsity.”25

Preston testified that he attended an informal gathering of 10 or 12 people at 

Stanek’s shop in early May 2005 “where some neighbors got together and were talking 

about current issues going on in Elmwood Township.” At this gathering, copies of the 

Stewart report were distributed, and the attendees began discussing it. When Preston saw 

a copy of the Stewart report, he “became kind of interested, being a [retired] police 

officer.” Preston volunteered to contact Suttons Bay Village Manager Charles Stewart 

and ask Stewart about “the contents of this information.”26 Preston wanted “to ensure 

that [Stewart] did type this and the information inside is what [Stewart] had put in.” 

Preston testified that he waited a “[m]inimum [of] two weeks before I even talked to 

[Stewart] on the telephone.” He also testified that Stewart never told him that the report 

 24 See St Amant v Thompson, 390 US 727, 731; 88 S Ct 1323; 20 L Ed 2d 262 

(1968) (“There must be sufficient evidence to permit the conclusion that the defendant in 

fact entertained serious doubts as to the truth of his publication.”). 

25 See Garrison v Louisiana, 379 US 64, 74; 85 S Ct 209; 13 L Ed 2d 125 (1964) 

(stating that “only those false statements made with the high degree of awareness of their 

probable falsity demanded by New York Times may be the subject of either civil or 

criminal sanctions.”). 

26 When asked whether the other attendees heard him volunteer, Preston responded 

“[d]efinitely, yes.” Barrows confirmed that he heard Preston say that he wanted to talk to 

Stewart, but Barrows did not think that he heard Preston make statements about not 

sending the report. By contrast, Stanek testified “I did not hear [Preston] say he was 

going to talk to Mr. Stewart,” and Flohe testified that he also did not hear any talk about 

Preston contacting Stewart. 
11 

contained falsities. As a result, Preston never told anyone else, including Stanek, that the 

Stewart report contained falsities.27 Instead, Preston told Stanek that the Stewart report 

had “no substance to it as far as the criminal aspect.” Preston also informed Stanek that 

because there had been no criminal investigation, he personally “felt that it wasn’t right 

to send that [report] out.” Preston testified that he conveyed this message to Stanek at a 

monthly Elmwood Township meeting that occurred in “late spring, so that’s May, June,” 

but Preston did not recall the exact date of this conversation.28

Preston’s testimony certainly does not establish with convincing clarity that 

Stanek acted with actual malice in disseminating the Stewart report. Although Preston 

 27 Preston testified in pertinent part: 

“Q. You hadn’t received any information from Mr. Stewart that 

anything in the memo was false? 

A. No, I did not. 

Q. So you did not have any knowledge that anything in the memo 

was false, to convey to Mr. Stanek or anyone else, correct? 

A. That’s correct. 

Q. And, in fact, when you pulled Mr. Stanek aside after this meeting, 

where he spoke at length, you did not tell him anything in the memo was 

false, correct? 

A. That’s correct.” 

28 At trial, Preston vacillated about when he spoke with Stanek. When asked 

whether the conversation took place during the monthly Elmwood Township meeting in 

May 2005, Preston responded “I couldn’t tell you what month it is, but I know it was in 

late spring.” Preston later testified “I don’t think it did go in the month of June. I think it 

was several weeks, so if that was May 2nd it would have probably been within the month 

of May.” 
12 

told Stanek that the Stewart report had no substance “as far as the criminal aspect,” 

Preston unambiguously testified that he never told Stanek or anyone else that the Stewart 

report contained falsities.29 Stewart confirmed that he “did not specify” to Preston what 

misinformation appeared in the report. Stewart also testified that he never spoke with 

Stanek about the report and that he never attempted to inform Stanek that the report 

contained falsities. The majority emphasizes Preston’s concern with the “criminal 

aspect” of the Stewart report. However, the Stewart report does not address whether 

plaintiff engaged in criminal activity or should be criminally prosecuted. The five-page 

Stewart report does not contain the words “crime” or “criminal.” Stewart testified that 

the report discussed perceived ethical violations by plaintiff. When asked whether he 

asserted that plaintiff had engaged in illegal conduct in the report, Stewart testified “I 

don’t believe that’s even in the memo.” In any event, Preston never told Stanek that the 

Stewart report contained falsities or that the veracity of the Stewart report had been called 

into question. Instead, Preston informed Stanek of his personal opinion about the 

“criminal aspect” of the Stewart report. Preston’s act of volunteering to contact Stewart 

 29 In response to another series of questions about his conversation with Stewart 

and his subsequent communication with others, Preston testified: 

“Q. Sure, exactly. But [Stewart] never told you there was anything 

false in that memo, did he? 

A. He did not. 

Q. As a consequence you never told anybody after that, anybody you 

talked to, about the conversation with Mr. Stewart. You never said to them, 

Mr. Stewart said there is something false in the memo? 

A. That’s correct, I never said that.” 
13 

and later sharing his personal opinion about the Stewart report with Stanek does not 

supply clear and convincing evidence that Stanek mailed the Stewart report with actual 

malice, i.e., either knowing the report contained defamatory falsities or recklessly 

disregarding its falsity. 

Moreover, the testimony concerning the timeline of events is anything but clear 

and convincing. The majority deduces that the conversation between Preston and Stanek 

occurred at the monthly Elmwood Township meeting on May 9, 2005, and not the 

monthly Elmwood Township meeting on June 13, 2005. The majority reasons that 

because Preston spoke to Stanek on May 9 or before he mailed the Stewart report, Stanek 

mailed the Stewart report knowing that it contained defamatory falsities. Yet, Stanek 

testified with a firm recollection that this conversation occurred on June 13. Preston had 

no clear recollection of the date. But neither Preston nor Stanek testified in a manner that 

comports with the majority’s dubious conclusion that the two men spoke on May 9—

before the Stewart report was mailed. 

It is undisputed that the informal gathering at Stanek’s shop occurred during the 

first week of May 2005 and that plaintiff received the Stewart report in the mail on 

May 17, 2005. Several witnesses testified that the informal gathering at Stanek’s shop 

occurred on May 2 or May 4. Preston testified that he waited a minimum of two weeks 

after the gathering before contacting Stewart. Preston further testified that after his 

telephone conversation with Stewart, he approached Stanek some time in “late spring, so 
14 

that’s May, June.”30 Thus, the earliest week in which Preston could have telephoned 

Stewart is the third week of May 2005—one week after the Elmwood Township meeting 

on May 9, 2005. That is, under Preston’s timeline of events, Preston telephoned Stewart 

no earlier than May 16 or May 18, 2005, and Preston shared his personal opinion with 

Stanek some time thereafter. Consequently, Preston’s testimony actually corroborates 

Stanek’s recollection that the conversation took place on June 13, 2005. If the 

conversation between Preston and Stanek occurred on June 13, Preston did not speak to 

Stanek until after defendants disseminated the Stewart report, and there is no basis to 

conclude, as the majority summarily does, that Stanek knew that the Stewart report 

contained defamatory falsities when he mailed it. The actual testimony on the record, 

and not the majority’s distortion of it, provides yet another basis to conclude that plaintiff 

did not present clear and convincing evidence that Stanek acted with actual malice. 

The majority also accords great weight to Preston’s testimony that Stanek initially 

denied responsibility for the anonymous mailing. The majority’s misplaced reliance on 

Preston’s testimony about Stanek’s initial denial of responsibility ignores the United 

States Supreme Court’s observation that a defendant’s repeated attempts to maintain that 

the inaccurate was accurate “does not establish that he realized the inaccuracy at the time 

of publication.”31 Stanek’s after-the-fact denial of responsibility for the mailing is 

 30 Admittedly, Preston’s testimony about when he spoke with Stanek varied. See 

note 28 of this opinion. 

31 See Bose, 466 US at 512 (“[Defendant employee] had made a mistake and when 

confronted with it, he refused to admit it and steadfastly attempted to maintain that no 
15 

irrelevant in determining whether plaintiff presented clear and convincing evidence that 

Stanek acted with actual malice when he mailed the Stewart report. 

B. DEFENDANT DONALD BARROWS 

I also reject the majority’s conclusion that plaintiff presented clear and convincing 

evidence that defendant Barrows acted with actual malice. The majority concedes that 

Barrows did not know that the Stewart report contained defamatory falsities at the time of 

its dissemination.32 Therefore, the salient issue is whether plaintiff presented sufficient 

evidence to support a finding that Barrows recklessly disregarded the truth or falsity of 

the Stewart report. My independent review of the record reveals that plaintiff did not 

establish with convincing clarity that Barrows mailed the Stewart report “with reckless 

disregard of whether or not it was false.”33

The majority relies on the testimony of Suttons Bay Village Treasurer Jerry 

VanHuystee to conclude that Barrows acted with actual malice. VanHuystee furnished 

the Stewart report to Barrows. However, VanHuystee’s testimony does not establish with 

convincing clarity that Barrows acted with reckless disregard in disseminating the 

Stewart report. VanHuystee testified that as the appointed Village treasurer, he never 

 

mistake had been made—that the inaccurate was accurate. That attempt failed, but the 

fact that he made the attempt does not establish that he realized the inaccuracy at the 

time of publication.”) (emphasis added). 

32 When the trial court issued its bench ruling on Barrows’ motion for a directed 

verdict, the court concluded that although the evidence permitted “an inference” that 

Barrows acted with reckless disregard, there was no evidence that Barrows had actual 

knowledge of falsity. Plaintiff did not appeal this adverse ruling. 

33 MCL 600.2911(6). 
16 

supervised plaintiff; moreover, he was not in contact with anyone who did supervise 

plaintiff. As the majority notes, Barrows asked VanHuystee at least five times whether 

plaintiff had engaged in illegal conduct during her tenure with the Village. VanHuystee 

repeatedly responded that “as far as I know [plaintiff] hadn’t done anything illegal,” but 

VanHuystee also specifically told Barrows that he had no idea.34 VanHuystee also 

testified that he did not even know that the Stewart report existed when he responded to 

Barrows’ questions about plaintiff. Significantly, VanHuystee never testified that he told 

Barrows that the Stewart report contained falsities or that it merited further investigation 

based on VanHuystee’s review of the document. To the contrary, VanHuystee testified 

that he only procured a copy of the Stewart report “to stop [Barrows] from asking me” 

about plaintiff. Additionally, no evidence explains why VanHuystee, a disinterested 

party, would furnish the Stewart report to Barrows if VanHuystee doubted its veracity. 

Consequently, I cannot conclude that VanHuystee’s testimony clearly established that 

Barrows mailed the Stewart report with reckless disregard of its falsity. 

 34 VanHuystee testified in pertinent part: 

“Q. So when you say that Mr. Barrows asked you whether [plaintiff] 

had done anything illegal you didn’t know one way or another, did you? 

A. That’s correct. 

Q. You told him, I don’t know of anything she did illegal? 

A. That’s correct. 

Q. But you also told him I don’t have any idea? 

A. That’s correct.” 
17 

The majority’s reliance on Preston’s testimony to establish that Barrows mailed 

the Stewart report with actual malice is similarly misplaced. Barrows testified that he 

heard Preston say that he wanted to talk to Stewart during the informal gathering at 

Stanek’s shop, but Barrows also testified that he did not think he heard Preston say “don’t 

send the memo.” Preston further testified that the only defendant with whom he spoke 

after his conversation with Stewart was Stanek. He never spoke to Barrows. Moreover, 

Preston testified that he had no knowledge of any falsities in the Stewart report, and as a 

result, he never told anyone else, including Barrows, that the Stewart report contained 

falsities. Stewart confirmed that he, too, had no contact with Barrows about the report 

before the mailing. The majority’s reliance on Preston’s testimony is misplaced because 

nothing in Preston’s testimony demonstrates that Barrows “in fact entertained serious 

doubts as to the truth of his publication”35 or that Barrows mailed the Stewart report with 

the requisite “high degree of awareness of [its] probable falsity.”36

I also disagree with the majority’s perplexing assertion that Barrows’ testimony 

reveals his “purposeful avoidance of the truth” consistent with Harte-Hanks 

Communications Inc v Connaughton, 491 US 657; 109 S Ct 2678; 105 L Ed 2d 562 

(1989). In Harte-Hanks, the United States Supreme Court concluded that “[a]lthough 

failure to investigate will not alone support a finding of actual malice, the purposeful 

 35 St Amant, 390 US at 731. 

36 Garrison, 379 US at 74.
18 

avoidance of the truth is in a different category.”37 The majority suggests that Barrows 

purposefully avoided the truth because he did not contact Stewart directly. In so doing, 

the majority conflates Barrows’ failure to investigate with the “purposeful avoidance of 

the truth” illustrated by the unique facts in Harte-Hanks. 

In Harte-Hanks, the defendant newspaper gathered the facts that were ultimately 

reported; drafted the offending statements; actually heard from the plaintiff himself and 

five other witnesses that the offending statements were untrue; failed to examine 

evidence in the defendant’s possession corroborating plaintiff’s story; and opted not to 

contact the key witness in the story it was creating, although it contacted the other parties 

involved. As the Supreme Court explained, “[i]t is utterly bewildering in light of the fact 

that the Journal News committed substantial resources to investigating Thompson’s 

claims, yet chose not to interview the one witness who was most likely to confirm 

Thompson’s account of the events.”38 “By the time the November 1 story appeared, six 

witnesses had consistently and categorically denied Thompson’s allegations, yet the 

newspaper chose not to interview the one witness that both Thompson and Connaughton 

claimed would verify their conflicting accounts of the relevant events.”39 In addition, the 

defendant newspaper had in its possession tapes that would have either verified or 

disproved its story and yet did not listen to these tapes before publishing its story. 

 37 Harte-Hanks, 491 US at 692 (citation omitted). 

38 Id. at 682. 

39 Id. at 682-683. 
19 

In stark contrast to the defendants in Harte-Hanks, defendants here distributed a 

public record prepared by a government official in the course of his duties and available 

to the public under FOIA; defendants were never told by anyone that the contents of the 

report were untrue; they were not given any reason to believe that the contents of the 

report were untrue; and they did not fail to view evidence in their possession that 

indicated that the contents of the report were untrue. No evidence whatsoever reflects 

that Barrows entertained serious doubts about the veracity of the Stewart report before its 

publication or that he mailed the Stewart report with a high degree of awareness of its 

probable falsity. In fact, Barrows testified that he had no reason to investigate the 

Stewart report because he recognized that it came from a reliable source. When asked 

whether he would have treated the Stewart report differently if its origins appeared 

dubious, Barrows responded, “Certainly. You couldn’t pay any credence to it.” In this 

case, however, Barrows reiterated that “[t]he copy came to me through a reliable source, 

Mr. VanHuystee” and that “I had no doubt it was reliable.” 

Finally, it is axiomatic that the mere failure to investigate before publication will 

not support a finding of reckless disregard.40 In the same fashion, the mere fact that 

Preston expressed his hesitance about mailing the Stewart report and chose to contact 

Stewart does not impose a similar requirement on Barrows because reckless disregard is 

“not measured by whether a reasonably prudent man would have published, or would 

 40 Id.; see also St Amant, 390 US at 731 (“[R]eckless conduct is not measured by 

whether a reasonably prudent man would have published, or would have investigated 

before publishing.”). 
20 

have investigated before publishing.”41 Under these facts, plaintiff did not present clear 

and convincing evidence that Barrows either attempted to purposefully avoid the truth or 

that Barrows mailed the Stewart report in reckless disregard for its falsity. 

III. CONCLUSION 

After independently reviewing the record, I cannot conclude that plaintiff 

presented clear and convincing evidence that either Stanek or Barrows acted with actual 

malice in disseminating the Stewart report. There is no evidence that either defendant 

knew about the misinformation contained in the Stewart report regarding plaintiff’s status 

as an employee, her W-2 forms, and her right to employee benefits when they mailed this 

public record. Accepting that Stanek and Barrows were political opponents who bore ill 

will toward plaintiff and knew that she had not been criminally prosecuted for any 

improprieties during her tenure in Suttons Bay Village, the record contains no evidence 

that either defendant entertained serious doubts about the truth of the Stewart report. 

Accordingly, I would affirm the result reached by the Court of Appeals concerning each 

of the three individual defendants. 

YOUNG and MARKMAN, JJ., concurred with CORRIGAN, J. 

 41 St Amant, 390 US at 731.