Michigan court attempts to change defamation law, to detriment of free speech

Last week, FIRE filed an amicus curiae — “friend of the court” — brief with the Michigan Supreme Court, asking it to preserve the “actual malice” standard for defamation. 

But what is “actual malice,” and why does it matter?  

Defamation lawsuits — in which one is sued for publishing, tweeting, or publicly saying something that allegedly isn’t true — are a big deal. How big? In one recent case, the plaintiff is suing Fox News for over $1.6 billion. A billion and change may be small potatoes to Congress, but for most people and businesses, that’s game over. 

On its face, it makes sense that you can get sued for spreading false information about someone, especially if that person is harmed by it. In the Fox News case, for example, the plaintiff, a company that sells ballot-counting machines, claims that it lost over a billion dollars in profits and revenue because Fox News lied about its machines being used for voter fraud. (FIRE takes no position on whether those claims are true or false.) 

But what about when you say something that you think is true, which later turns out to be inaccurate? Can you be sued over an honest mistake?

Thankfully, in a 1964 case called New York Times Co. v. Sullivan, the U.S. Supreme Court stepped in to say: No, you can’t — so long as the inaccurate statement you made is about a public official.

Can you be sued over an honest mistake?

In that case, during the height of the civil rights movement, The New York Times ran a newspaper ad that included some incorrect details about government suppression of student protests in Alabama and police mistreatment of the Rev. Dr. Martin Luther King, Jr. A city commissioner in Montgomery, Alabama, sued the newspaper for defamation and won half a million dollars. But when The New York Times appealed the ruling, the U.S. Supreme Court reversed and ruled in favor of the newspaper. 

The reason? To stop self-censorship. The court feared that if publishers had to guarantee that every single thing they publish is true, “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 expenses of having to do so.” 

Put in simpler terms, the court recognized lawsuits are expensive — even if you win! Rather than paying to prove something is true in court, many people would say nothing at all. The result? Chilled speech, especially on the important issues of the day — an outcome incompatible with the First Amendment. 

To avoid this, the court implemented a new First Amendment standard for defamation. Even if one does publish something false about a public official, the publisher can only be sued for it if it was published with “actual malice” — in other words, if the publisher either knew the information was false or personally suspected that it could be false at the time it was published. Later cases expanded the “actual malice” standard to apply also to defamation of public figures and defamation related to hot topics in the news.

At FIRE, we think upholding this standard is important. It protects ordinary Americans in all types of situations. For example, if you duet a deepfake video of Tom Cruise on TikTok that you believe is real and it goes viral, he can’t sue you, because you genuinely thought it was him. Or, if you’re a student journalist and a trusted source shows you evidence the university president is stealing school funds, you can publish that story — even if your source ends up being wrong — because you truly believed there was evidence to back up your claim. 

Great, so Sullivan protects free and open debate on important issues. Then why is FIRE getting involved when the law is already settled? Unfortunately, the law became a little less settled this year in Michigan when its intermediate appellate court decided to throw the “actual malice” standard out the window in a case called Zabriskie v. American Civil Liberties Union of Michigan.

Michiganders will be forced to think twice before posting that controversial tweet — because the right of public debate in Michigan will be constantly under threat.

In Zabriskie, a police officer sued the American Civil Liberties Union of Michigan for defamation because it published a press release and public letter arguing that he may have engaged in illegal jury tampering. The ACLU-MI based that letter and press release on a court transcript that had a typo in it. Unfortunately, that typo made it seem like the police officer may have engaged in jury tampering, but he didn’t. 

This seems like the perfect case to apply the “actual malice” standard from Sullivan, right? But the Michigan Court of Appeals didn’t think so. While it cited Sullivan, the court didn’t actually use it. Instead, the court held that the ACLU-MI can be sued for defamation even though it genuinely believed that the court transcript was accurate and even when the speech in question concerned a public official. 

FIRE's amicus brief urges the Michigan Supreme Court to take up this appeal and affirm the Sullivan “actual malice standard” as the First Amendment requires. If not, Michiganders will be forced to think twice before posting that controversial tweet — because the right of public debate in Michigan will be constantly under threat.

Read FIRE's full brief