Full opinion text
LIVELY, Chief Judge. This is an appeal by the plaintiff from summary judgment in favor of the defendant WZZM-TV of Grand Rapids, Michigan, in an action claiming that a broadcast by the defendant invaded the plaintiff’s right of privacy. Jurisdiction is based on diversity of citizenship, and the substantive law of Michigan controls. This appeal was originally heard by a panel of the court and its opinion, reported at 715 F.2d 1059 (6th Cir. 1983), was vacated and rehearing en banc was granted in an order reported at 718 F.2d 802 (6th Cir.1983). I. The plaintiff Bichler was president and the principal shareholder of Rebel Promotions, Inc., a Michigan corporation which operated the Thunderbird Dinner Theater in Alpine Township, near Grand Rapids, Michigan. As general manager of the theater Bichler booked various productions, which were advertised in the local press. The productions were also reviewed, and news stories were run about the theater in The Grand Rapids Press, the only daily newspaper in the area. Bichler hired Jerry Moore and his production company to stage several plays at the theater, including “Hair” and “Jesus Christ Superstar.” Moore and Bichler had a dispute after which Bichler stopped payment on a $9,000 check to Moore. Moore then stopped work on “Hair” which was in production and called a press conference to announce the cancellation. The press conference was held at a motel where the cast was staying. In the presence of press representatives and with cameras “rolling” Moore announced to a group of cast members that the current production would cease and that the next scheduled one (“Jesus Christ Superstar”) would not begin, at least not on schedule. James Rummel, news anchorman for WZZM-TV, attended the conference. After it was over he interviewed Moore, some cast members and the motel manager. Moore told Rummel that he had not been paid for the current production and that he planned to sue Bichler for breach of- contract. Members of the cast confirmed that they had not been paid and that the cancellation of the production created hardships for them. Moore told Rummel that he was only a middleman; that the money came from Bichler and that Bichler was responsible for paying the salaries of the cast. The “innkeeper” told Rummel that payment for the rooms of the cast was in arrears and that this was also Bichler’s obligation. The press conference and interviews took place between 3 and 5 p.m. on January 21, 1976. Rummel immediately attempted to reach Bichler by calling the theater, his home and a listed place of business, all without success. Later in the evening Rummel drove to, the theater with a cameraman and found the building dark and locked. Rummel then returned to the WZZM studio and prepared for the 11 p.m. newscast. David Kowalczyk and his attorney arrived at the studio before air time and attempted to dissuade Rummel from using the story about the theater. Kowalc-zyk described himself as a “silent partner" in the dinner theater. He had advanced money to Bichler and was worried about the effect the story would have on the ability of the theater to continue operations. He had learned from Moore that WZZM planned to include the story in its newscast. Kowalczyk did not tell Rum-mel that the information from Moore was false. The gist of his and his attorney’s representation to Rummel was that the story “could be the straw that broke the camel’s back.” Kowalczyk wanted the story delayed for a day or two in order to locate Bichler and get his version of the matter. Rummel refused this request, sought as a personal favor, advising Kowalczyk that the story would run. The story was broadcast as a segment of the 11 o’clock news. The transcript of the broadcast is set forth in its entirety: “A report on the closing of the Thunderbird Dinner Theater.... And West Michigan’s only Dinner Theater locked its doors today____leaving a production company wondering what to do next____ With no advance warning .... the Thunderbird Dinner Theater locked its doors today____, leaving about 40 members of a New York based production company and advance ticket holders in the lurch. When we got word of the closing we drove out to the Thunderbird located north of Comstock Park on Alpine Avenue. All we found were locked doors and an empty parking lot. The news of the closing was broken to the members of the current east of “Hair ____ by the show’s producer Jerry Moore: The Thunderbird Theater has been having financial problems in recent weeks as has it’s [sic] owner Dick Bichler. Today, it was Bichler who was catching the blame and the wrath of the cast: The problem now becomes one of what to do for the members of the current production of ‘Hair’____and for the cast of the theater’s next scheduled production of ‘Jesus Christ Superstar.’ Most of them are without money and without plane tickets home ... all of which Bichler had contracted for. Bichler was unavailable for comment today. ... Producer Moore will file a lawsuit against him tomorrow charging breach of contract____ And there might be a few advance reservation holders who will be wanting their money back. According to Moore, more than 3000 dollars in advance tickets had been sold to ‘Jesus Christ Superstar’ ... slated to open January 28th” Rummel attempted to locate Bichler the following day, again without success. He also checked the public records and found outstanding claims against Bichler and his business enterprises. The story was “repackaged” and broadcast again at 5:30 that evening. The day following the second broadcast a local bank called its loan with the theater and repossessed personal property covered by security agreements from the theater premises. Other creditors removed equipment which had not been paid for and the building was largely stripped of its contents within a few weeks. The theater never reopened. II. A. In his complaint Bichler charged WZZM with defaming him “by defaming the business entity, the Thunderbird Dinner The-ater____” The defamation charged in the complaint consisted of opening the program with a reference to “a cooked chicken” (the Thunder Chicken Rock Theater was an adjunct enterprise), relying on information from Jerry Moore without checking out the facts and making the statement that the dinner theater had “in fact terminated its business for good, which statement was absolutely false and fallacious.” An action for libel was barred by limitations and, as developed in affidavits, depositions and other discovery Bichler’s claim was for invasion of privacy consisting of broadcasting embarrassing private facts about him and placing him in a false light in the public eye. The district court identified the portions of the broadcasts objected to as follows: The alleged disclosure of private facts complained of by plaintiff contained in the broadcast consists of the following: (1) “The Thunder Bird Theater has been having financial problems in recent weeks as has its owner Dick Bichler. Today it was Bichler who was catching the blame and the wrath of the cast.” The following statements are alleged to constitute publicity holding out plaintiff in a false light: (1) that plaintiff Bichler was having financial difficulties; (2) that the closing left ..'. about 40 members of a New York based production company and advance ticket holders in the lurch. (3) ... Most of them are without money and without plane tickets home ... all of which Bichler had contracted for. (4) ... More than $3,000 in advance tickets had been sold to Jesus Christ Superstar ... slated to open January 28th. (Inferring, according to plaintiff that these people also would be “waiting in the lurch for their money back.”) (5) Thunder Bird was a cooked chicken, and the place was closed. After considering the voluminous record compiled during the three and one-half years between the filing of the complaint and its decision, the district court concluded that the plaintiff had not raised a triable issue on either of his claims. The district court determined that the closing of the only dinner theater in Western Michigan was a newsworthy event, as had been its opening and continued operations. Exhibits were filed which showed substantial media coverage of those events. Bichler’s financial condition as the reported “owner” and “manager” of the theater was closely related to the financial condition of the theater and the story of its closing. Concerning the “private facts” claim the district court concluded that the reference to Bichler’s financial condition was neither highly offensive nor made “for its own sake,” and was privileged under Michigan law. The district court made alternative findings with respect to the “false light” claim. It concluded that Bichler was a public figure at least in the context of the theater business and that WZZM could not be held liable under Michigan law in the absence of a showing of actual malice. In the alternative the court found that even if Bichler were found to be a private person he was not entitled' to a trial without demonstrating that “evidence exists which creates a legitimate fact issue over whether WZZM knew that its broadcast would place plaintiff in a false light, or with reckless disregard of that result.” The court found that Michigan applies the same actual malice standard to claims of private individuals regardless of whether they are based on libel or on placing the plaintiff in a false light. After examining all the affidavits and discovery materials the district court concluded that the plaintiff had failed to come forward with evidence showing that WZZM acted with a “high degree of awareness of the probable falsity” of the report, or with “serious doubts” concerning its truth. To the contrary, this examination revealed that no one had told Rummel that his information concerning Bichler’s financial condition was false or that the circumstances surrounding the closing of the theater as reported by him were incorrect. On the other hand, Rummel checked the theater and found it closed, checked the facts with outside sources, attempted to contact Bichler for confirmation and, on January 22nd, made a personal check of public records which revealed that there were outstanding claims against Bichler or businesses controlled by him. B. On appeal Bichler argues that the statements in the broadcast were not privileged under Michigan law because they were not made in good faith, that the comments on Bichler’s personal finances were outside the scope of the privilege, that the district court erred in treating him as a public figure, and that summary judgment was improper because there were material issues of fact to be decided by a jury. In response WZZM argues that the broadcast concerned a newsworthy subject, that Bichler’s financial difficulties were a legitimate part of the broadcast and that such broadcasts are accorded a qualified privilege under Michigan law. The defendant now concedes that Bichler is not a public figure, but asserts that this makes no difference because the broadcaster’s privilege is lost only upon a showing of “actual malice” regardless of whether the plaintiff is a public figure or a private individual. WZZM further contends that summary judgment was proper because, in response to its motion, Bichler produced no evidence that the broadcast was made with actual malice. III. Consideration of Bichler’s claim and WZZM’s defense involves two distinct questions, and they must be considered separately. The first question is whether WZZM was entitled to the privilege it claimed. The existence of the privilege is a question of law, to be determined by the court upon examining the “occasion” of the publication. The “occasion” refers to the extrinsic circumstances in which the broadcast was made. Lawrence v. Fox, 357 Mich. 134, 139-40, 97 N.W.2d 719 (1959); Peisner v. Detroit Free Press, Inc., 82 Mich.App. 153, 163, 266 N.W.2d 693 (1978). If it is concluded that WZZM was entitled to the privilege, the second question is whether the privilege was lost through abuse, that is, by publishing the story of the theater’s closing with actual malice. This is a question of fact. A. In defamation actions Michigan has long recognized the common law defense of privileged communication. Although the claim in the present case is for invasion of privacy rather than libel, the Restatement of the Law recognizes that the same qualified privilege applies to the two types of claims. See Restatement (Second) of Torts, § 652G, comment a. (“[u]nder any circumstances that would give rise to a conditional privilege for the publication of defamation there is likewise a conditional privilege for the invasion of privacy.”) Bichler does not dispute that Michigan follows this rule and requires the same showing of actual malice to overcome the privilege regardless of whether the tort is libel or invasion of privacy. The Michigan privilege has been described as a qualified one which “extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty.” Bacon v. Michigan Central R.R. Co., 66 Mich. 166, 170, 33 N.W. 181 (1887). Newspapers and broadcasters have a qualified privilege to report on matters of public interest and the privilege applies equally in actions brought by public and private figures. See Lawrence v. Fox, 357 Mich, at 137, 97 N.W.2d 719; Peisner v. Detroit Free Press, Inc., 82 Mich.App. at 160, 266 N.W.2d 693; Weeren v. Evening News Association, 2 Mich.App. 74, 77, 138 N.W.2d 526 (1965), rev’d on other grounds, 379 Mich. 475, 152 N.W.2d 676 (1967). If the privilege attaches to a published report a newspaper or broadcaster is not liable for untruths, however harmful to the person defamed, unless the privilege has been forfeited for abuse, as by publication with actual malice. Bacon, 66 Mich. at 172-73, 33 N.W. 181; Peisner, 82 Mich.App. at 163-64, 266 N.W.2d 693. The district court held that broadcasts concerning the closing of the only dinner theater in Western Michigan dealt with a matter of legitimate concern to the public, particularly in view of the publicity which had attended its opening and its operations. Bichler contends that the district court erred in its determination because it considered only the “occasion” of the broadcast and did not inquire into the “good faith” of WZZM. This argument telescopes the two distinct and separate inquiries into one. Whether the publication is made in good faith addresses the question of malice, not the question of privilege. As the Michigan Supreme Court stated in Lawrence v. Fox, 357 Mich. at 140, 97 N.W.2d 719, “In making the determination as to the privilege of the occasion, the malice charged by the plaintiff is not considered.” The district court properly determined the question of privilege by reference to the occasion, that is, the circumstances which became the subject of the broadcast. B. The district court did not err in holding that the broadcast was privileged. It dealt with a matter of legitimate public interest. Contrary to assertions made at oral argument, there is no requirement that a publication or broadcast deal with a “public controversy” in order to be privileged. The proper test is whether it deals with matters of public interest. In Lawrence v. Fox, 357 Mich, at 141, 97 N.W.2d 719, the court quoted with approval Prosser on Torts, [2d ed], § 95 as follows: The burden is upon the defendant in the first instance to establish the existence of a privileged occasion for the publication, by proof of a recognized public or private interest which would justify the utterance of the words. (Emphasis added). See also Peisner v. Detroit Free Press, 82 Mich.App. at 161, 266 N.W.2d 693 (“Qualified privilege of a newspaper to report on matters of public interest”); Schultz v. Reader’s Digest Ass’n, 468 F.Supp. 551, 560 (E.D.Mich.1979) (“events of legitímate public interest”). As this court wrote in Orr v. Argus-Press Co., 586 F.2d 1108, 1113 (6th Cir.1978): As a story about a matter of public concern, the article is protected under state law by the qualified privilege of “fair comment.” Lawrence v. Fox, 357 Mich. 134, 97 N.W.2d 719 (1959); Miner v. Detroit Post and Tribune Co., 49 Mich. 358, 363-65, 13 N.W. 773 (1882) (Cooley, J.). See Restatement of Torts, §§ 606, 607 at 275-85 (1938). Accord, Nuyen v. Slater, 372 Mich. 654, 127 N.W.2d 369 (1964); Bufalino v. Maxon Brothers, Inc., 368 Mich. 140, 153, 117 N.W.2d 150, 156 (1962). Everyone, citizen or reporter, has the right to comment on matters of public importance, and expressions of opinion and even misstatements of fact are not actionable in a libel suit unless made maliciously for the purpose of damaging another’s reputation. We believe WZZM carried its burden of establishing a privileged occasion and that the district court ruled correctly on this issue of law. C. The plaintiff next argues that even if the article was otherwise privileged, WZZM’s statements concerning his financial situation were not within the “scope” of the privilege. Bichler contends that disclosure of his financial condition was not a matter of sufficient public interest to justify clothing the “occasion” with a privilege and that there was no logical connection between disclosure of his financial condition and the matter of public interest. A similar argument was made and rejected in Schultz v. Newsweek, Inc., 668 F.2d 911, 915 (6th Cir.1982), where the plaintiff contended that he was an “incidental figure” in the article and therefore comments about him were outside the “scope” of the privilege. Bichler relies on Clark v. American Broadcasting Companies, Inc., 684 F.2d 1208, 1216 (6th Cir.1982), cert. denied, 460 U.S. 1040, 103 S.Ct. 1433, 75 L.Ed.2d 792 (1983), where a panel of this court wrote, “The qualified privilege does not extend, however, to plaintiffs who are not the focus of the alleged public interest publication.” Upon further consideration we can find no support for this limitation on the qualified privilege of publishers and broadcasters under Michigan law and to this extent Clark is disapproved. There is no requirement under Michigan law that the plaintiff be the “focus” of the publication in order for the privilege to attach. That is not to say that the privi-. lege extends to material which defames another and is not reasonably necessary to the development of the privileged subject matter of the publication. There must be some connection, and courts have expressed this requirement in different ways. For example, in the lower courts the plaintiff in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), claimed that even though the general subject matter of the article was of sufficient importance to be privileged the comments about him did not concern a matter of public interest. The court of appeals rejected this claim because the accusations against the plaintiff were “integral to the central thesis” of the article. Gertz v. Robert Welch, Inc., 471 F.2d 801, 806 (7th Cir.1972). The Supreme Court approved this holding. Gertz, 418 U.S. at 331 n. 4, 94 S.Ct. at 3002-3003 n. 4. Similar reasoning may be applied to the present case. Bichler was publicly identified as the “owner” and the “manager” of the theater. Moore told Rummel that Bichler was responsible for payment of past due salaries of the cast and the motel manager told him that Bichler was responsible for the unpaid room charges at the motel. The “central thesis” of the broadcast was that the theater was in financial trouble which caused it to close, and Bichler’s financial condition played an integral part in development of this thesis. We do not adopt “integral to the central thesis” of the article or broadcast as the only test. It is illustrative of the requirement that there be a reasonable relationship between the general privileged subject of the publication and the references to the plaintiff who claims injury. In summary, we find no error in the ruling by the district judge that WZZM was entitled to a qualified privilege in defense of Bichler’s claim. The remaining question is whether the district court correctly held that Biehler failed to present a jury question on the issue of malice. IV. The purpose of the communication privilege is to promote the free and open exchange of ideas. The privilege “provides the publisher a sanctuary of sorts” from the consequences of defamation actions. Lawrence v. Fox, 357 Mich, at 137, 97 N.W.2d 719. The publisher is not held to a standard of absolute truth; there is no liability for falsehood unless it is published with malice. We must first determine the proper definition of malice and then decide whether the plaintiff presented a triable issue in response to the defendant’s motion for summary judgment. A. A plaintiff who is a public official or a public figure may recover for defamation only upon showing that a publication was made with actual malice, that is, “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). The same constitutional standard applies in actions for invasion of privacy. Time, Inc. v. Hill, 385 U.S. 374, 387-88, 87 S.Ct. 534, 541-42, 17 L.Ed.2d 456 (1967). However, where the plaintiff is a private individual the states are free to define the standard of liability so long as they do not impose liability without fault on a publisher or broadcaster. Gertz v. Robert Welch, Inc., 418 U.S. at 347, 94 S.Ct. at 3010. It seems clear from recent decisions of the Michigan Court of Appeals that Michigan has determined that the definition of actual malice announced by the Supreme Court of the United States in New York Times Co. v. Sullivan should be applied to actions such as the present one. See Gaynes v. Allen, 128 Mich.App. 42, 47, 339 N.W.2d 678, 680 (1983) (“In Michigan, the New York Times standard has been extended to actions brought by private individuals to recover from media defendants for defamatory falsehoods concerning matters of public interest.”); Peisner v. Detroit Free Press, Inc., 104 Mich.App. 59, 64, 304 N.W.2d 814 (1981); see also, Schultz v. Newsweek, Inc., 668 F.2d at 918. While the existence of malice is a question of fact, as with any issue otherwise requiring a jury’s determination, the question of malice may become one of law if the defendant moves for summary judgment and the plaintiff fails to establish the existence of a genuine issue as to any material fact. Rule 56(c), Fed.R.Civ.P.; Schultz v. Newsweek, Inc., 668 F.2d at 918 (“the function of summary judgment is to dispose of cases without trial when one party is unable to demonstrate the existence of a fatual dispute which, if present, would require resolution by a jury or other trier of fact.”). We look to the record, then, to determine whether Biehler demonstrated the existence of a genuine issue as to any material fact. B. Biehler argues that there was a genuine issue with respect to a material fact because Kowalczyk testified he told Rummel that Jerry Moore was a “noted liar” and Rummel denied that either Kowalczyk or his attorney made such a statement. An examination of Kowalczyk’s deposition does not support Bichler’s claim. What Kowalczyk said was that he considered Jerry Moore to be a noted liar, not that he told this to Rummel. Testifying that he asked Rummel to keep the story off the air, Kowalczyk said to his questioner, “... you know, he got all his information from Jerry Moore, and Jerry Moore is a noted liar, anyway, ...” Contrary to Bichler’s claim, neither he nor any other deponent or affiant stated that he advised Rummel that Moore was untrustworthy. Further, the evidence is uncontradicted that Rummel questioned members of the cast and the motel manager, all of whom verified the version given by Moore. It is also uncontradicted that Rummel tried repeatedly to contact Bichler for his version and eventually went to the theater and found it locked and dark. Bichler failed to produce any evidence that Rummel should have believed Moore was lying. Bichler also contends that the broadcast stated that the dinner theater was closed permanently whereas all Rummel had been told was that the current production was cancelled and the next one would not open on schedule. The corporation which owned the theater is not a party to this action and it is difficult to see how this error in the broadcast, if it was error, put Bichler in a false light. However, at this point in the inquiry we are not concerned with whether the entire broadcast was truthful. Once it has been determined that the broadcast is privileged the court does not speculate on whether it is truthful; it only looks to see if the defendant has lost its qualified privilege by making knowingly false statements or making statements with reckless disregard of whether they were false. Lins v. Evening News Ass’n, 129 Mich.App. 419, 436, 342 N.W.2d 573 (1983). The broadcast referred only to the fact that the theater locked its doors, leaving the cast of “Hair” and “Jesus Christ Superstar” stranded, and leaving advance ticket holders for “Superstar” in the lurch. The fact that some listeners might interpret this as meaning the theater was closing permanently is not in any way probative of the issue of malice. Bichler also asserts that summary judgment was improper because depositions of some possible witnesses had not been taken and their testimony might shed light on “unresolved material issues.” The motion for summary judgment was filed by WZZM on July 25, 1980. The order granting summary judgment was entered on October 22, 1981. Both before and after WZZM filed its motion the parties actively pursued discovery, and many depositions were filed. On September 2, 1980 the district court denied a motion by WZZM for a protective order to prevent Bichler from taking certain depositions. There is no indication in the record that the district court ever limited Bichler’s discovery or that Bichler ever sought to avoid submission of WZZM’s motion on the ground that discovery had not been completed. Finally, Bichler contends that summary judgment is improper where malice is the issue because “the subjective knowledge” of Rummel is material and malice may be inferred from proof of other facts. This argument is addressed to the first part of the New York Times test — published with actual knowledge of falsity. The Michigan Court of Appeals has affirmed summary judgment in libel actions where the controlling issue was whether a media defendant has lost its qualified privilege by publishing with actual malice. See Lins v. Evening News Ass’n, 129 Mich.App. at 437, 342 N.W.2d 573. The contrast between the present case and Arber v. Stahlin, 382 Mich. 300, 170 N.W.2d 45 (1969), cited by Bichler, where the Supreme Court of Michigan reversed summary judgment for media defendants, is striking. There, very detailed and specific affidavits pointed to the existence of a genuine issue of fact on the question of actual malice. That is not the case here. The affidavits and depositions are conclusory. Finally, the fact that a person’s mental state is involved does not preclude summary judgment in a federal court applying Rule 56, Fed.R.Civ.P. Senior District Judge Ralph Freeman dealt with a similar argument in Schultz v. Reader’s Digest Ass’n., 468 F.Supp. 551, 564 (E.D. Mich.1979): Although the Court recognizes that Michigan courts have generally held that actual malice is a jury question, Lawrence v. Fox, supra, federal courts applying Rule 56 have granted summary judgment in cases involving subjective intent, including libel eases involving questions of malice. See generally, 6, Pt. 2. Moore’s Federal Practice 1156.17[1] Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir.1972), cert, denied 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973). Accord, Schultz v. Newsweek, 668 F.2d at 917. We find nothing in this record which raises a factual question of whether Rum-mel made the broadcast with knowledge that the statements about Bichler were false. The alternative basis for a finding of malice under the New York Times test is that a publication is made “with reckless disregard of whether it is false or not.” The requirements for establishing malice by proof of reckless disregard were set forth in St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968): These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. Again, we find nothing in the record which indicates that Rummel or WZZM “in fact entertained serious doubts as to the truth” of the broadcast. As has been pointed out, Michigan has long recognized the desirability of public comment on issues of legitimate public interest. This is the reason for its common law communication privilege. By adopting the constitutional standard for measuring malice when a private individual claims injury from a publication or broadcast about a privileged matter of public interest Michigan has given further recognition to the necessity for a free play of ideas in an open society. WZZM established its right to rely on the privilege in this case, and Bichler failed to raise a genuine issue of abuse. V. The dissent of Judge Weick requires a response. It is written as if Michigan had chosen to adopt some standard other than the one established in New York Times v. Sullivan for defamation and invasion of privacy actions by private individuals against media defendants. Gertz permits a state to establish a less stringent standard, but Michigan has not done so. We noted Michigan’s move from common law “actual malice” to the New York Times standard in Schultz v. Newsweek: The privilege of fair comment is not absolute, but may be lost by abuse. It is lost if the utterance or publication is made with actual malice. Lawrence v. Fox, supra, 357 Mich, at 141, 97 N.W.2d 719. Though “actual malice” was equated with bad faith, ill will and personal hostility at one time, more recent Michigan decisions have indicated clearly that the definition of New York Times has been adopted. Compare Lawrence v. Fox, supra, 357 Mich, at 141, 97 N.W.2d 719 with Arber v. Stahlin, 382 Mich. 300, 308, 170 N.W.2d 45 (1969), cert, denied, 397 U.S. 924, 90 S.Ct. 927, 25 L.Ed.2d 103 (1970), and Peisner v. Detroit Free Press, 104 Mich.App. 59, 64, 304 N.W.2d 814 (1981). Thus the district court properly based its decision only on evidence which would support a claim that the defendants acted with knowledge that the statements objected to were false or with reckless disregard of whether they were false or not. 668 F.2d at 918. To suggest at this late date that the Michigan Supreme Court would revert to the Lawrence standard— enunciated before New York Times v. Sullivan — ignores not only Schultz but also Michigan appellate decisions. The dissent fails to explain why we should ignore the forthright announcement of the Michigan Court of Appeals in recent decisions that since federal decisions like New York Times v. Sullivan, supra, and its progeny, Michigan now follows what is referred to as the New York Times standard of actual malice, that is, publication with knowledge of falsity or in reckless disregard of whether it was false or not. Lins v. Evening News Ass’n, 129 Mich. App. 419, 434, 342 N.W.2d 573 (1983). See Gaynes v. Allen, 128 Mich.App. 42, 47, 339 N.W.2d 678, 680 (1983); Peisner v. Detroit Free Press, Inc., 104 Mich.App. 59, 64, 304 N.W.2d 814 (1981); Wynn v. Cole, 91 Mich. App. 517, 523, 284 N.W.2d 144 (1979). Cf. Arber v. Stahlin, 382 Mich. 300, 170 N.W.2d 45 (1969). As the dissent itself points out, this court is bound to follow considered pronouncements of state law by state appellate courts absent indication from the state’s highest court that a contrary rule would be adopted. The dissent argues for a rule which would so chill the activities of news dispensers as to render them toothless tigers. Rummel was reporting that day’s news on January 21, 1979. He made several attempts to contact Bichler, without success, and then actually drove to the theater to find out for himself if it had closed, as reported by Moore. He found a dark theater. When Kowalczyk went to the studio shortly before air time he did not deny the truth of the report of the theater’s closing. All he did was to ask Rummel not to run the story as a personal favor to him. The financial problems of both Bichler and the theater (and of Kowalczyk) already existed when Rummel came on the scene. Contrary to the dissent’s version, these problems were not created by the broadcast. Kowalczyk had a large investment in the theater which he was in danger of losing. The dissent would apparently favor a rule that a reporter who obtained all the verification available must nevertheless kill a story of general public interest believed to be true in order to protect the investment of an acquaintance. Kowalc-zyk gave no real reason; his vague reference to Moore’s alleged unreliability and his unsubstantiated belief that Bichler could clear things up did not require Rum-mel to withhold the story. The dissent would also apparently require the media to “unscramble the egg” in each story, separating out all that might be personally embarrassing to anyone involved. The matter of Bichler’s personal finances was so intertwined with the story of the theater’s problems that the two were inseparable. To require such a parsing of information would be absurd. A story must be presented, as nearly as possible, in its entirety so the reader or listener receives it as an intelligible whole rather than as fragments. The dissent implies that Bichler called Rummel between the two broadcasts and attempted to stop the second one. This is completely unsupported by the record. The reference to his call is so vague that it could not be treated by the district or this court as having established excessive publication, as argued by the dissent. Michigan has struck a balance between the public’s right to be informed on matters of general interest and each individual’s right of privacy. In doing so Michigan determined that a media defendant shall be held liable only upon a showing of publication with actual knowledge of falsity or in reckless disregard of the truth or falsity of matters published. The dissent would alter that balance by lowering the threshold which a private plaintiff must cross in order to recover. This court may not change the balance which the State has adopted. The judgment of the district court is affirmed. . The transcript of the broadcast does not contain any reference to "cooked chicken.” In the absence of affidavits or other evidence, I am satisfied it was not included in the WZZM broadcast.
KEITH, Circuit Judge, with whom GEORGE CLIFTON EDWARDS, Jr., Circuit Judge, joins, concurring in part and dissenting in part. I concur in the result reached by the majority. However, I cannot join in that part of the opinion which disapproves of language set forth in Clark v. American Broadcasting Companies, Inc., 684 F.2d 1208, 1216 (6th Cir.1982), cert, denied, 460 U.S. 1040, 103 S.Ct. 1433, 75 L.Ed.2d 792 (1983). A panel of this Court in Clark stated, “the qualified privilege does not extend, however, to plaintiffs who are not the focus of the alleged public interest publication.” 684 F.2d at 1216. The majority would have us believe that this requirement has no basis in Michigan law. To the contrary, a majority of the panel in Clark specifically relied upon the Michigan Supreme Court’s opinions in Bowerman v. Detroit Free Press, 287 Mich. 443, 283 N.W. 642 (1939) and Timmis v. Bennett, 352 Mich. 355, 89 N.W.2d 748 (1958) in support of a “focus” requirement. In Timmis, the Michigan Supreme Court held, in effect, that in order for a qualified privilege to apply, the alleged defamatory statement must be limited in its scope to that which is in the public interest. 352 Mich. at 369, 89 N.W.2d at 755. This holding was an elaboration on what the court had said two decades earlier in Bowerman. The defendant in Bowerman published a newspaper article concerning a judicial proceeding. The article was inaccurate, and contained libelous language. Nevertheless, the defendant argued that there was a qualified privilege to report on judicial proceedings. The court first recognized that the “extrinsic circumstances in the instant case are that defendant’s newspaper was reporting a judicial proceeding which created a qualified privilege.” 287 Mich. at 447, 283 N.W. at 644. The Bowerman court then held that the newspaper article was not within the scope of the qualified privilege. A requirement that the privilege apply only to individuals who are the focus of the publication, clearly falls within the parameters of the language set forth in Timmis and Bowerman. Focus is simply another way of stating there must be a reasonable relationship between the controversy and the individual for the privilege to apply. Indeed the majority concedes there is a need to establish, in some fashion, this relationship. “There must be some connection [between the defamatory material and the public interest publication], and courts have expressed this requirement in different ways.” Maj.op. at 1012. As an example the majority refers to Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In Gertz, the Seventh Circuit found that accusations against the plaintiff set forth in an article were “integral to the central thesis of the article” and, therefore, the privilege applied. Gertz v. Robert Welch, Inc., 471 F.2d 801, 806 (7th Cir.1972), cert, denied, 459 U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983). The Supreme Court upheld this analysis. Gertz, 418 U.S. at 331 n. 4, 94 S.Ct. at 3002 n. 4. To my way of thinking, “integral to the central thesis” is not so distinguishable from “focus” as to warrant this Court’s disapproval. These are only two of what would seem to be many ways for expressing the need to establish a relationship between the controversy and the privilege. Because of the majority’s insistence upon challenging this portion of Clark, I cannot join in the majority opinion. It is so ORDERED.
NATHANIEL R. JONES, Circuit Judge, dissenting. I must respectfully dissent from the majority’s holding on the scope of Michigan’s qualified privilege for reporting on matters of public interest. There is no dispute that Michigan law provides such a privilege to the media when reporting on matters of public interest even when they involve stories about private individuals. Peisner v. Detroit Free Press, 82 Mich.App. 153, 266 N.W.2d 693 (1978). When properly invoked, this privilege shields the media from liability for publishing private information about a private individual or placing a private individual in false light absent a showing of actual malice, ie., that the publication was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” Peisner, 82 Mich.App. at 163, 266 N.W.2d at 698. It is equally clear that this qualified privilege is not unlimited in scope such that the media may publish any information it so desires. Instead, a statement is privileged only to the extent that it is limited in its scope to the public issue addressed in the publication. Timmis v. Bennett, 352 Mich. 355, 369, 89 N.W.2d 748, 755 (1958). The majority defines the scope of the privilege as extending to all statements which bear a reasonable relationship to the general privileged subject matter of the publication. The majority concludes that the statements about Bichler’s personal financial condition played an “integral part” in the development of the “central thesis” of the broadcast, i.e., the theater’s financial troubles. Supra, at 1012. Although this definition of the scope of Michigan’s qualified privilege may be preferred by the majority, our task in this case is not to define the scope of the privilege ourselves, but to ascertain how the Michigan Supreme Court would define the scope. See City of Aurora v. Bechtel Corp., 599 F.2d 382, 386 (10th Cir. 1979). Granted this task is made more difficult by the apparent dearth of Michigan caselaw defining the limits of the privilege. As Judge Weick points out in his dissent, however, we are not unguided in our attempt. The right to withhold embarrassing private facts from public view and the right not to be placed in a false light are both encompassed within the constitutionally protected right to privacy. See Pallas v. Crowley, Milner & Co., 322 Mich. 411, 33 N.W.2d 911 (1948). Defining the proper scope of Michigan’s qualified privilege requires a balancing between the individual’s right to privacy and the public’s need to know. Peisner, 82 Mich.App. at 161-63, 266 N.W.2d at 697-98. In Weeren v. Evening News Association, 379 Mich. 475, 152 N.W.2d 676 (1967), the Michigan Court reversed a grant of summary judgment and remanded for trial on the plaintiff’s action for defamation and invasion of the right to privacy. While recognizing therein that an individual could waive his right to privacy, it was written that such waiver carries with it the right to an invasion of privacy only to such an extent as may be legitimately necessary and proper in dealing with the matter which has brought about the waiver. [The right to privacy] may be waived for one purpose, and still asserted for another... 379 Mich, at 502, 152 N.W.2d 676 (Black, J.). It is clear that Bichler waived his right to privacy insofar as it relates to his management of the theater and any statements concerning the theater’s problems are appropriately shielded by Michigan’s qualified privilege. It is equally clear that Bichler has never done anything which could be construed as waiving his right to privacy concerning his personal financial affairs. Thus statements concerning Bichler’s personal finances are not shielded by the privilege and the district court erred in requiring him to prove that these statements were published with malice. Accordingly, I would reverse the grant of summary judgment and remand for trial under the proper standard of liability.
KRUPANSKY, Circuit Judge, with whom NATHANIEL R. JONES, Circuit Judge, joins, dissenting. Because the majority has erroneously concluded that the state qualified privilege of fair comment applies to the WZZM reports on Bichler’s personal financial affairs, I must respectfully dissent. Inasmuch as the salient facts have been accurately compiled in the majority opinion and in Judge Weick’s dissent, their duplication at this point would serve no useful purpose. Michigan has long recognized the venerable doctrine of a qualified privilege of fair comment. See, e.g., Miner v. Detroit Post & Tribune Co., 49 Mich. 358, 13 N.W. 773 (1882). The “doctrine of qualified privilege may properly be regarded as including statements made in good faith by a citizen of the community having, or claiming to have, special knowledge or information bearing on such matters of public concern and communicated to others concerned or interested”. Timmis v. Bennett, 352 Mich. 355, 369, 89 N.W.2d 748, 755 (1958). In Timmis v. Bennett, the unanimous state supreme court identified six elements of the qualified privilege: (1) a good faith communication, (2) a cognizable interest to be upheld, (3) a communication which is limited in scope to the interest advanced, (4) a proper occasion for the publication, (5) a publication in the proper manner, and (6) a publication only to appropriate parties. The Timmis v. Bennett court further held that the existence of the privilege was an issue of law. However, once the existence of the privilege was established, the plaintiff would bear the burden of demonstrating actual malice. The issue of actual malice becomes a jury question if the evidence merely raised a probability of malice. 89 N.W.2d at 753 (citing Bacon v. Michigan Central R.R. Co., 66 Mich. 166, 33 N.W. 181 (1887)). Primarily, Bichler challenges the existence of (a) the station’s cognizable interest in his personal financial affairs, and (b) a communication limited in scope to the interests advanced. Bichler contends that, in order for WZZM-TV to have had a legitimate interest which would immunize its report, there must have been a “logical nexus” between the theater and his personal financial condition. The majority opinion conducts no real analysis of this issue. Instead, the majority merely concludes that because the broadcast “deal[t] with matters of public interest____ WZZM carried its burden of establishing a privileged occasion”. Maj.op. at 1012. Thereafter, the majority reluctantly concedes “[tjhere must be some connection” between the individual finances and the theater, id. at 1012, and in a conclusory summary states that “Bichler’s financial condition played an integral part in” the subject of the broadcast. Id. at 1012. Thus, the majority has conveniently assumed, without factual support, the relevance of Bichler’s financial condition, which was the precise issue presented to the en banc court. It must be conceded that, absent the closing of the theater, Bichler’s personal financial predicament would not have been subject to the fair comment privilege. Accordingly, to invoke the privilege, WZZM was mandated the burden of proving a rational relationship between the closing of the theater and Bichler’s private affairs. Manifestly, no such proof appears on the appellate record. The Thunder Bird was a corporation. Bichler was merely a shareholder. He was not the sole owner of the theater. Further, WZZM was acutely aware of the fact that Bichler was not either the de facto or de jure owner of the theater. Additionally, the record is significantly devoid of any inference that Rummel obtained or attempted to obtain any information whatsoever connecting Bichler’s personal affairs to the corporate affairs of the Thunder Bird. It is hornbook law that a corporation is a distinct legal entity apart from its shareholders and I can discern no rational relationship between the activities of a corporation and the financial affairs of its shareholders. Rummel used the artifice of the theater’s closing to publicly humiliate Bichler with an unverified assumption that the individual’s asserted financial straits had resulted in the closing of the Thunder Bird, leaving innocents “in the lurch”. As a result, Bichler was visited with immediate, devastating and insurmountable economic repercussions from his personal creditors. The “thesis” of the news report was not, as the majority erroneously and without support hypothecates, “that the theater was in financial trouble which caused it to close”. Maj.op. at 1012. Instead, Rum-mel’s “story” was that Biehler’s personal turmoil had somehow impacted the viability of the Thunder Bird. As previously noted, no individual ever suggested this connection to Rummel and no attempt was made by Rummel to verify the severe implication of the newscast’s integration of Bichler’s personal finances in the report on the theater’s closing. Bichler’s personal integrity was called into question by the news report and he was cast in a negative and false light before his community. Without having provided even the most remote justification to include the plaintiff’s alleged personal misfortunes in a report about the corporation, WZZM failed to demonstrate the cognizable interest necessary to invoke the common law privilege. I would therefore reverse the trial court’s contrary determination. In reaching this result, I would not characterize news reporters as “toothless tigers”, since I am mindful of the important role that the media serves in today’s society. However, as must all societal institutions, it must employ its important privileges with an equally crucial regard for the responsibility inherent in its power. In this case this journalist acted not only unprofessionally, but with a willful disregard for the facts and circumstances of the case, and in such an irresponsible manner as to cause severe damage and irreparable injury to the plaintiff. Such willful disregard should not and is not condoned, whether in the common law, state or federal enactments, within the context of this case. Accordingly, I respectfully dissent. . The fair comment privilege is of ancient origin and was treated as needful of little explication in Toogood v. Spyring, 149 Eng.Rep. 1044 (Ex. 1834); therein it was observed that a publication is privileged when it is, fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. . To the extent that Judge Weick’s dissent asserts a factual issue as to the existence of malice arising from the Bichler deposition testimony, I join with Judge Weick in urging that summary judgment was an inappropriate vehicle for disposing of this case. The majority’s bland assertion that the testimony was vague and insufficient is a mechanism of avoidance. . As the majority noted, when Kowalczyk asked Rummel to delay the report, Kowalczyk did so as a result of his shareholder interest in the Thunder Bird. Maj. op at 1016. . The majority insists that it would not have been possible to report the putatively legitimate story — the theater’s closing — without the egregious commentary upon Bichler’s personal affairs. Maj. op. at 1015. This is another example of the majority’s predeliction for assuming the conclusion. In fact the two items were not inseparable. The Thunder Bird’s relationship with Playmoore Productions — the impetus for the story — was obtained from Moore; the plight of Bichler personally was revealed by court records. Thus, the sources, as well as the substance, of the items were distinct. Justicious editing of the broadcast could have avoided this lawsuit. Instead, an over eager television reporter invented connections without justification and aired a damaging unverified news report. No privilege should prevent WZZM from being held accountable for the resulting losses. . I also join fully Judge Jones' eloquent dissent.
WEICK, Senior Circuit Judge, dissenting: I respectfully dissent. The district court erred grievously in granting summary judgment in favor of the Defendant-Appel-lee T.V. station and against the Plaintiff-Appellant Richard Bichler, a private and not public figure; and in requiring Bichler to prove actual malice to recover. Bichler’s right to privacy guaranteed by the Constitution of the United States, as well as by Michigan law, was grossly violated by the ruling of the district court. Bichler’s thea-tre corporation, and Bichler personally were rendered insolvent, and Bichler’s privacy was irresponsibly and irreparably invaded, as a direct and proximate result of the false, defamatory and libelous broadcasts of the T.V. station instigated by one Jerry Moore, who did not tell the truth. The T.V. station, which refused to print a retraction or even to discuss the story with Bichler, either knew it was false, or in the exercise of ordinary and reasonable care and good faith could have ascertained that it was false, defamatory and libelous by making an appropriate investigation. The station failed and neglected to properly carry out such investigation. In my opinion, neither the United States Constitution nor Michigan law permit the withdrawal in this case of Bichler’s right to privacy from the protection afforded by Michigan to unreasonable invasions of that right. The truth is that Bichler did sufficiently prove malice, and that there were factual issues which Bichler was entitled to have submitted for determination by a jury at trial. It was error for the district court to undertake to determine them as a matter of law, and it is error for this court to affirm the district court’s grant of summary judgment. I. Surely Richard Bichler never imagined that hiring Jerry Moore and his production company to stage plays at the Thunderbird Dinner Theatre would result in the thea-tre’s untimely demise. The public interest in the opening and operations of the Thunderbird, as evidenced in the coverage given the theatre and its shows by the local media, adequately documents the benefit to Grand Rapids from Bichler’s ill-fated attempts to contribute to the cultural diversity of the community. And so it was, when on January 21,1979, the theatre gave Jerry Moore a check for $9000 for the services of the cast and for their expenses for the previous week. The court notes that it was this check upon which Bichler stopped payment. The reasons for this exercise of purely private business judgment, however, are ignored by the majority: Bichler stopped payment because at about the time that the check was issued, a garnishment pursuant to a judgment rendered against Moore in Flint, Michigan, was served upon Bichler for indebtedness of Moore and his Playmore Productions; and because Bichler also evidently became aware that certain of Moore’s invoices submitted for payment were not true invoices. Apparently there was no written contract governing Moore’s obligations to the Thunderbird Dinner Theatre. However, testimony before the district court indicated that it was Moore, not Bichler, who was responsible for paying the gross costs, travel expenses and lodging of the cast. Bichler would then remit a portion of the play’s proceeds to Moore, from which Moore would recover his costs, with the remainder representing the profits of Play-more Productions. It was not Bichler, but the disgruntled liar Moore, who decided to unilaterally announce that the theatre’s present production of “Hair” was to be cancelled. Moore, of course, held a press conference to make sure that his announcement about the decision to terminate production would place Bichler in the most unfavorable light. James Rummel, the news anchorman from WZZM-TV, whom Moore invited to attend, took what Moore told him at face value. After confirming what Moore reported only with some of the members of Moore’s production company and the “innkeeper,” unsuccessfully attempting to contact Bichler only in Grand Rapids from where he had departed, and finding locked doors at the theatre, Rummel prepared for WZZM’s 11:00 newscast. What happened between Rummel and Bichler’s corporate partner, David Kowalc-zyk, shortly before the broadcast is unclear. It is undisputed that Kowalczyk told Rummel that he had no independent knowledge of the closing. Rummel’s affidavit, dated July 24, 1980, stated that Kowalczyk asked that the story not be aired as a personal favor, and that Kowalczyk had not told Rummel the report was false. In Rummel’s deposition taken one month earlier, June 17, 1980, he stated that he did not actually remember Kowalczyk telling him the story was false. Kowalczyk stated in his deposition that although he wasn’t certain, he felt sure he had told Rummel that Moore’s story was not true. Kowalczyk further stated that Rummel told him “he [Rummel] was making news, that was his job.” In any event, Rummel’s broadcast about the closing of the Thunderbird went on as planned, reporting not only on the closing of the show, but on Appellant Bichler’s personal financial problems, his contractual unreliability as related by the production members, and his seeming penchant for leaving everyone involved with the Thunderbird Dinner Theatre, including the advance ticket holders, “in the lurch.” Rummel was not totally insensitive to the fact that the substance of his broadcast made substantial danger to Bichler’s reputation apparent. Prior to “repackaging” the broadcast for the next day’s 5:30 newscast, Rummel again attempted to contact Bichler, unsuccessfully, and also checked the public records which showed lawsuits filed against Bichler and some liens filed against his assets. The second broadcast of the story, however, found its content essentially unchanged. As the majority notes, the day following the second broadcast a local bank called its loan with the theatre and repossessed personal property covered by security agreements from the theatre premises. Other creditors followed suit, removing equipment which had not been paid for. The building was largely stripped of its contents within a few weeks. Needless to say, the reclaimed property was essential to the financial viability of the theatre, and the Thunderbird Dinner Theatre never reopened its doors to the public. II. Richard Bichler’s suit, however, was not founded solely upon the damage inflicted by the broadcasts on the financial viability of the theatre. The cause for invasion of privacy was based upon the damage to Bichler's reputation by the publication of embarrassing private facts, and by placing Bichler in a false light in the public eye. On appeal, the defendants conceded that Bichler was not a public figure but a private individual. I assume the majority agrees that the newscasts touched on personal, private matters. The court’s analysis may be summarized as follows: First, under Michigan law, because the closing of the dinner theatre was a matter of legitimate public interest, and because Bichler’s involvement with the the-atre, including his personal financial problems and contractual imbroglio with Moore, was reasonably related to the general privileged subject, then WZZM was entitled to a qualified privilege in defense of Bichler’s claim. Second, because the only way to defeat this claim under Michigan law was through a showing of actual malice, and since the record presented no triable questions of fact on that issue, the district court correctly granted summary judgment to Appellees. The effect of the majority’s opinion is to leave unprotected the private aspects of a private individual’s life, in the absence of a showing of malice, so long as those aspects are “reasonably related” to a matter of public interest. The abrogation of the private individual’s right to privacy by this court is grounded in the conclusion that Michigan has chosen to protect (and thereby promote) its vigorous press, at the expenses of hapless victims like Richard Bidder. It is contended on appeal that because jurisdiction is based on diversity of citizenship, the substantive law of Michigan controls. However, an extensive review of the decisions of the highest court of the State of Michigan leads me to conclude that the Michigan Supreme Court would not strike the same balance that this court has struck in reliance on the Michigan Court of Appeals, and that invasions of privacy like those suffered by Appellant Bichler are entitled to far greater protection than this court’s resolution affords. In so concluding, I first direct the court’s attention to the decisions of the Supreme Court of the United States, not for a statement on the controlling substantive Michigan law, but for instructive guidance to those issues with which this court must concern itself to properly resolve Mr. Bichler’s claim. A. The Supreme Court’s attempt to reconcile the law of defamation with the First Amendment was first elaborated in New York Times Co. v. Sullivan, supra, in which it held that a publisher of defamatory falsehoods about a public official is constitutionally protected from liability for defamation unless actual malice is proved. This principle was extended to cases involving defamed public figures in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18