MARK PORTER V GEOFFREY FIEGER
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STATE OF MICHIGAN
COURT OF APPEALS
MARK PORTER,
UNPUBLISHED
June 29, 2001
Plaintiff-Appellant,
v
GEOFFREY FIEGER and FIEGER, FIEGER &
SCHWARTZ, P.C.,
No. 221349
Oakland Circuit Court
LC No. 99-013594-NO
Defendants-Appellees.
Before: Sawyer, P.J., and Griffin and O’Connell, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s opinion and order granting defendants’
motion for summary disposition in this action for defamation and intentional infliction of
emotional distress. We affirm.
Plaintiff, a police officer who shot and killed an unarmed person while on duty, alleged
that defendant Geoffrey Fieger publicly, falsely, and maliciously referred to plaintiff as a
“murderer” and an “executioner.” Plaintiff brought this action against Fieger, as well as his law
firm, defendant Fieger, Fieger & Schwartz, P.C. The trial court granted defendants’ motion for
summary disposition pursuant to MCR 2.116(C)(8), holding that plaintiff was a public official
and that plaintiff was unable to prove that the statements were made with actual malice. The trial
court also dismissed plaintiff’s claim of intentional infliction of emotional distress because
plaintiff failed to offer evidence that he had experienced emotional suffering.
We review de novo the trial court’s decision whether to grant a motion for summary
disposition under MCR 2.116(C)(8). Beaty v Hertzberg & Golden, PC, 456 Mich 247, 253; 571
NW2d 716 (1997). Summary disposition is proper where, taking all factual allegations in the
complaint as true, the claim “is so clearly unenforceable as a matter of law that no factual
development could possibly justify recovery.” Simko v Blake, 448 Mich 648, 654; 532 NW2d
842 (1995). We also bear in mind that, because defamation actions necessarily implicate First
Amendment freedoms of speech and expression, summary disposition is an essential tool in
protecting against forbidden intrusions into those fields. Ireland v Edwards, 230 Mich App 607,
613; 584 NW2d 632 (1998). We hold that the trial court did not err by granting defendants’
motion for summary disposition.
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Not all defamatory statements are actionable. Id. at 614. Where a statement, although
factual and provably false, “could not be interpreted by a reasonable listener or reader as stating
actual facts about the plaintiff[,]” the statement is protected by the First Amendment. Id. at 617.
Thus, a statement that is simply “rhetorical hyperbole” is not actionable. Id. at 618-619;
Kevorkian v American Medical Ass’n, 237 Mich App 1, 7; 602 NW2d 233 (1999). For example,
in Ireland, supra at 610-611, the defendant, an attorney, made several statements to the media
during a child-custody battle between her client and the plaintiff. Some of the defendant’s
statements essentially claimed that the plaintiff never spent any time with the child, and this
Court held that these statements were not actionable, but amounted to “rhetorical hyperbole.” Id.
at 618-619. The statements “were obviously expressions of disapproval regarding the amount of
time plaintiff spent with her child, and, taken literally, they are patently false. However, any
reasonable person hearing these remarks in context would have clearly understood what was
intended.” Id. at 619.
Similarly, in Kevorkian, supra at 4-6, the defendants made statements to the effect that
the plaintiff, a well-known proponent of assisted suicide, was a killer and a murderer. This
Court, noting that its decision was strictly limited to the facts of the case, held that the trial court
should have granted the defendants’ motion for summary disposition. Id. at 10, 14. The panel
set forth many reasons for its decision, one of them being that the statements amounted to
“nonactionable rhetorical hyperbole” because they could not be understood as stating actual facts
about the plaintiff. Id. at 13. The panel noted that the plaintiff’s actions in assisting persons with
suicide “can be described as murder or mercy, and any reasonable person could understand that
both or neither could be taken as stating actual facts about [the] plaintiff.” Id. at 7. See also
Greenbelt Cooperative Publishing Ass’n, Inc v Bresler, 398 US 6, 14; 90 S Ct 1537; 26 L Ed 2d
6 (1970) (holding that a reference to the plaintiff’s negotiating position as “blackmail” was not
actionable, in that it “was no more than rhetorical hyperbole, a vigorous epithet used by those
who considered [the plaintiff’s] negotiating position extremely unreasonable”); Hodgins v The
Times Herald Co, 169 Mich App 245, 253-254; 425 NW2d 522 (1988) (holding that, although
direct accusations of criminal conduct are not protected as opinion, “[e]xaggerated language used
to express opinion, such as ‘blackmailer,’ ‘traitor’ or ‘crook,’ does not become actionable merely
because it could be taken out of context as accusing someone of a crime”).
In this case, plaintiff was a police officer who shot and killed an unarmed citizen.
Defendant Fieger’s references to plaintiff as a “murderer” and an “executioner” would be
understood by any reasonable listener as rhetorical hyperbole, designed to express the opinion
that the shooing was unjustified. Thus, Fieger’s statements could not be understood as stating
actual facts about plaintiff. Just as assisting someone to commit suicide may be viewed as mercy
or murder, a police shooting of an unarmed person may be viewed as protecting society or
murdering a citizen. Fieger’s statements, although certainly containing vigorous epithets, simply
conveyed disapproval of the shooting; therefore, they do not subject him to liability for
defamation. The freedom of expression guaranteed by the First Amendment protects a statement
that cannot be reasonably interpreted as stating actual facts about the plaintiff. Ireland, supra at
614.
The question whether a statement is an actionable defamatory statement may be decided
by a court as a matter of law. Id. at 619. Therefore, the trial court appropriately granted
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defendants’ motion for summary disposition. Although the trial court did not rely on this
reasoning, this Court will nonetheless affirm the correct result. Messenger v Ingham Co
Prosecutor, 232 Mich App 633, 643; 591 NW2d 393 (1998). Plaintiff’s allegations did not show
that defendants made an actionably false and defamatory statement concerning plaintiff. Thus,
plaintiff failed to satisfy the elements of a defamation claim, and summary disposition was
appropriate under MCR 2.116(C)(8).
We also note an alternative ground for granting summary disposition. Plaintiff, a police
officer, was a public official for purposes of defamatory statements relating to the performance of
his official duties. Thus, plaintiff was required to prove that the statements were made with
actual malice. Garvelink v The Detroit News, 206 Mich App 604, 608; 522 NW2d 883 (1994).
“Actual malice” means that a statement was made “with knowledge that it was false or with
reckless disregard of whether it was false or not.” New York Times Co v Sullivan, 376 US 254,
279-280; 84 S Ct 710; 11 L Ed 2d 686 (1964). In this case, the circumstances surrounding the
shooting were reasonably in dispute. Also, beyond mere conclusory allegations, plaintiff fails to
plead actual malice. Mere statements of the pleader’s conclusions will not survive a motion for
summary disposition. ETT Ambulance Service Corp v Rockford Ambulance, 204 Mich App 392,
395; 516 NW2d 498 (1994). Plaintiff fails to specifically plead factual allegations that defendant
Fieger knew that his statements were false or entertained serious doubts concerning the truth of
his statements. Ireland, supra at 622. Plaintiff claims that summary disposition was premature
because no discovery had taken place. However, because the motion was brought under MCR
2.116(C)(8), the court only looked to the pleadings. No factual development would justify
recovery. Plaintiff simply failed to state a claim on which relief could be granted.
Plaintiff argues that he was not a public official, because he was merely a street-level
policeman without control over the affairs of government. However, we need not decide this
issue because, in any event, summary disposition of plaintiff’s defamation claim was appropriate
because defendant Fieger’s statements were nonactionable rhetorical hyperbole. Because
plaintiff’s claim of intentional infliction of emotional distress is based on the same statements,
summary disposition of that claim was also appropriate. Ireland, supra at 624-625. First
Amendment protections are not exclusive to defamation claims. Collins v Detroit Free Press,
Inc, 244 Mich App 27, 36; 624 NW2d 761 (2001).
Affirmed.
/s/ David H. Sawyer
/s/ Richard Allen Griffin
/s/ Peter D. O’Connell
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