James Edwards Motion Response

8/15/2019 James Edwards Motion Response

1/49

STATE OF MICHIGAN

IN THE THIRD JUDICIAL CIRCUIT COURT FOR WAYNE COUNTY

CIVIL DIVISION

JAMES EDWARDS, │ Case No. 16-004874-NO

│Plaintiff, │ Hon. Kathleen Macdonald│

v. ││

THE DETROIT NEWS, INC., ET AL., ││

Defendants. ││

BRISTOW LAW, PLLC HONIGMAN MILLER SCHWARTZ AND

By: Kyle James Bristow (P77200) COHN, LLPP.O. Box 381164 James E. Stewart (P23254)Clinton Twp., MI 48038 Leonard M. Niehoff (P36695)(P): (248) 838-9934 Andrew M. Pauwels (P79167)(E): [email protected] 315 E. Eisenhower Pkwy., Ste. 100 Attorney for James Edwards Ann Arbor, MI 48108

(P): (734) 418-4256 Attorneys for The Detroit News, Inc., and Bankole

Thompson

PLAINTIFF’S BRIEF IN OPPOSITION TODEFENDANTS’ MOTION FOR SUMMARY DISPOSITION

NOW COMES James Edwards (“Plaintiff”), by and through Attorney Kyle Bristow of

Bristow Law, PLLC, and hereby propounds upon The Detroit News, Inc., Bankole Thompson

(collectively “Defendants”), and this Honorable Court Plaintiff’s Brief in Opposition to

Defendants’ Motion for Summary Disposition:

I. STATEMENT OF FACTS

Plaintiff sued Defendants for falsely publishing in The Detroit News and on the website of

said newspaper that Plaintiff is a leader of the Ku Klux Klan — which is a terrorist organization

associated with criminality. (Exhibit A – Plaintiff’s Complaint). Prior to Defendants having

FILED IN MY OFF

WAYNE COUNTY CLE

5/26/2016 2:21:24

CATHY M. GARRE

16-004874-


2/49

2

published the statement that Plaintiff is affiliated with the Ku Klux Klan, no third-party has ever

stated as a fact that Plaintiff is a leader — or otherwise a member — of the Ku Klux Klan. (Exhibit

B – Affidavit of James Edwards).

Defendants allege in Defendants’ Motion for Summary Disposition that Plaintiff is a

“racist” and a “white supremacist” due to being a staunch conservative political activist with pro-

White racial views concerning affirmative action, immigration, and multiculturalism, and

therefore, Defendants are somehow legally privileged to publish to third-parties that Plaintiff is a

leader of the Ku Klux Klan. (Defendants’ Brief, passim). For the reasons set forth herein,

Defendants are mistaken.

The statement which Plaintiff maintains is actionable is as follows: “Of particular note to

some in the Jewish community is the unprecedented support the Trump campaign has received

among white supremacist groups like the Ku Klux Klan and its leaders like James Edwards,

David Duke and Thomas Robb, the national director of the Knights of the Ku Klux Klan in

Arkansas.” (Emphasis added.) (Exhibit A – Plaintiff’s Complaint, ¶ 18).

II. ISSUES PRESENTED

1. Whether the statement at issue in the instant civil action states that Plaintiff is formallyaffiliated with the Ku Klux Klan.

Plaintiff’s Response: Yes, when the context of the statement is considered, it isclear that readers would interpret it to mean that Plaintiff isan actual leader of the Ku Klux Klan — especially sinceDefendants also cited the names of two other people knownto be affiliated with said organization.

2. Whether Defendants falsely describing Plaintiff as a leader of the Ku Klux Klan constitutesopinion because the claim was made in an opinion piece.

Plaintiff’s Response: No, per legal authorities, false and derogatory statements offact are still actionable even if they are published in aneditorial and concern political subject matter.


3/49

3

3. Whether Defendants falsely describing Plaintiff as a leader of the Ku Klux Klan constitutesrhetorical hyperbole.

Plaintiff’s Response: No, legal authorities are clear insofar as falsely stating thatsomeone is affiliated with the Ku Klux Klan is inherently

defamatory and is not rhetorical hyperbole since the claim isobjectively verifiable — someone is either a member of theKu Klux Klan or they are not.

4. Whether Defendants falsely describing Plaintiff as a leader of the Ku Klux Klan issubstantially true.

Plaintiff’s Response: No, Plaintiff is not now — nor has Plaintiff ever been — amember or leader of the Ku Klux Klan.

5. Whether Plaintiff is “libel-proof ” since some left-wing organizations disparage Plaintiff’s

staunchly conservative political views as “white supremacist” and “racist.” Plaintiff’s Response: No, Plaintiff has received favorable recognition with regards

to Plaintiff’s conservative political activism and Plaintiff hasno criminal history, and so Plaintiff has a reputation to protect and which is subject to injury.

6. Whether Plaintiff is entitled to partial summary disposition being granted in Plaintiff’sfavor as to Defendants’ contention that the affirmative defenses of opinion, rhetoricalhyperbole, substantial truth, and “libel- proof plaintiff” are even viable in the instant civilaction.

Plaintiff’s Response: Yes, there is no material dispute as to the facts and Plaintiffis entitled to partial judgment as a matter of law.

III. LAW & ARGUMENT

Roman politician, lawyer, and philosopher Marcus Tullius Cicero is alleged to have opined

over two millennia ago, “When you have no basis for an argument, abuse the plaintiff.” In the

instant case, Defendants have no argument and have elected to follow Cicero’s advice by not only

abusing Plaintiff, but Plaintiff’s counsel as well by unprofessionally whining about Plaintiff’s

counsel’s completely irrelevant1 personal political views. (Defendants’ Brief, p 7, fn 14).

1 See M Civ JI 2.04(2)(a) (“The lawyers’ statements, commentaries, and arguments are notevidence.”); M Civ JI 2.04(3)(b) (“Opinions of people outside of the trial are not evidence.”); MRE


4/49

4

For the reasons set forth infra, Defendants’ Motion for Summary Disposition is meritless:

(1) Plaintiff has unequivocally set forth within Plaintiff’s Complaint one or more claims upon

which relief can be granted — especially since only the Complaint is to be considered and the

allegations made within the Complaint must be accepted as absolutely true for purposes of MCR

2.116(c)(8) — and (2) Plaintiff — not Defendants — is entitled to partial summary disposition being

granted in Plaintiff’s favor as to Defendants’ contention that the affirmative defenses of opinion,

rhetorical hyperbole, substantial truth, and “libel- proof plaintiff” are even viable in the instant civil

action.

A. DEFENDANTS ARE NOT ENTITLED TOSUMMARY DISPOSITION PER MCR 2.116(C)(8)

1. Standard of Review

MCR 2.116(c)(8) permits summary disposition when “the opposing party has failed to state

a claim on which relief can be granted.” This Court Rule tests the legal sufficiency of the plaintiff’s

claim and results in a determination whether the plaintiff’s allegations are sufficient to establish a

prima facie case. Maiden v Rozwood , 461 Mich 109, 119; 597 NW2d 817 (1999); Spiek v

Department of Trasp, 456 Mich 331, 337; 572 NW2d 201 (1998). Such a motion should be granted

if the claim is so clearly unenforceable that no factual development could justify the plaintiff’s

claim for relief. Maiden at 119; Spiek at 337.

A motion brought via MCR 2.116(c)(8) is decided on the pleadings alone; no other

evidence may be considered. MCR 2.116(G)(5); Maiden at 119; Spiek at 337.

401 (“‘Relevant evidence’ means evidence having any tendency to make the existence of any factthat is of consequence to the determination of the action more probable or less probable than itwould be without the evidence.”); MRE 402 (“Evidence which is not relevant is not admissible.”).


5/49

5

When deciding a motion made under MCR 2.116(C)(8), the court must accept as true all

factual allegations contained in the complaint as well as any reasonable inferences that may be

drawn from those allegations. Singerman v Municipal Serv Bureau, 455 Mich 135, 139; 565

NW2d 383 (1997). The court may not consider the merits of the plaintiff’s factual allegations,

Mieras v DeBona, 452 Mich 278, 291; 550 NW2d 202 (1996), and it must construe those

allegations in the plaintiff’s favor. Wortelboer v Benzie County, 212 Mich App 208, 217; 537

NW2d 603 (1995). Mere conclusory statements without supporting allegations of fact are

insufficient to state a cause of action. Churella v Pioneer State Mut Ins Co, 258 Mich App 260,

272; 671 NW2d 125 (2003); Allegheny Ludlum Corp v Department of Treasury, 207 Mich App

604; 525 NW2d 512 (1994).

2. Analysis

Per the legal authorities set forth supra, only the allegations of Plaintiff’s Complaint are to

be considered by the Court for purposes of Defendants’ Motion for Summary Disposition per MCR

2.116(C)(8), said allegations must be accepted as true, and the issue for the Court to determine is

whether Plaintiff properly pled one or more causes of action. For the reasons set forth infra,

Plaintiff has properly pled counts in the alternative — as permitted by MCR 2.111(A)(2) — of

defamation (libel per se), defamation by implication (libel per se), and invasion of privacy (false

light). (Exhibit A – Plaintiff’s Complaint, ¶¶ 38-58).

The gist of Defendants’ Motion for Summary Disposition per MCR 2.116(C)(8) is that

since Defendants published derogatory materials about Plaintiff within an opinion piece, the

derogatory materials contained therein can only be considered to constitute opinion of the author.

(Defendants’ Brief, pp 13-15). Defendants’ rationale is not in accordance with legal authorities,

because a derogatory misstatement of fact contained within an otherwise opinion piece is still


6/49

6

actionable. See Dannis v C & G Publishing, Incorporated , 187 Mich App 691; 469 NW2d 331

(1991) (defendant sued for publishing editorial containing false and derogatory facts, but the jury’s

verdict in plaintiff’s favor was overturned for a reason other than that the statement of fact

constitutes opinion); Hodgins v Times Herald Co, 169 Mich App 245; 425 NW2d 522 (1988);

Gertz v Robert Welch, Inc, 418 US 323 (1974); Milkovich v Lorain Journal Co, 497 US 1, 2 (1990)

(“Simply couching a statement -- ‘Jones is a liar ’ -- in terms of opinion -- ‘In my opinion, Jones is

a liar ’ -- does not dispel the factual implications contained in the statement.”).

Within Defendants’ opinion piece which disparages Donald Trump — which Defendants

are clearly privileged by right to publish — , Defendants falsely stated as a fact that Plaintiff is aleader of the Ku Klux Klan — which Defendants are not privileged by right to publish.

(Exhibit A – Plaintiff’s Complaint, ¶ 18).

Defendants misleadingly contend within their Brief that when Defendants stated that

Plaintiff is a “leader” of the Ku Klux Klan, that Defendants merely meant that Plaintiff inspires

members of the Ku Klux Klan and not that Plaintiff is formally affiliated with said organization.

It is clear, however, from the wording of the article that readers would interpret “leaders” to mean

formal association with the organization, because Defendants listed Plaintiff’s name with two

people who are actually known to associate with the Ku Klux Klan: David Duke and “Thomas

Robb, the national director of the Knights of the Ku Klux Klan in Arkansas.” (Exhibit A –

Plaintiff’s Complaint, ¶ 18). This interpretation of the text of the article is a very reasonable

inference that a jury could make at trial, which the Court must accept for purposes of deciding

Defendants’ Motion for Summary Disposition. See Singerman at 139.

Plaintiff has properly pled the applicable elements for defamation and even pled that malice

occurred on the part of Defendants since Plaintiff is a public figure in the context of conservative


7/49

7

political activism — as is required by New York Times Co v Sullivan, 376 US 254 (1964). (Exhibit

A – Plaintiff’s Complaint, ¶¶ 38-51); Rouch v Enquirer & News, 440 Mich 238; 487 NW2d 205

(1992); Northland Wheels Roller Skaing Ctr v Detroit Free Press, 213 Mich App 317; 539 NW2d

774 (1995); Linebaugh v Sheraton Michigan Corp, 198 Mich App 335; 497 NW2d 585 (1993).

Plaintiff has properly pled the applicable elements for invasion of privacy (false light).

(Exhibit A – Plaintiff’s Complaint, ¶¶ 52-58); Early Detection Ctr, PC v New York Life Ins Co,

157 Mich App 618, 630; 403 NW2d 830 (1986).

Although free speech is a right per the First and Fourteenth Amendments to the United

States Constitution, free speech is not unlimited, public figures can still sue for defamation if the

facts warrant it, and in light of Plaintiff’s Complaint properly setting forth claims upon which relief

can be granted — especially since the allegations must be accepted as true and reasonable inferences

thereof must be drawn from said allegations in Plaintiff’s favor—, Plaintiff’s claims should not be

dismissed per MCR 2.116(C)(8).

B. DEFENDANTS ARE NOT ENTITLED TO

SUMMARY DISPOSITION PER MCR 2.116(C)(10)

1. Standard of Review

A motion made per MCR 2.116(C)(10) tests the factual support of the movant’s claim.

Skinner v Square D Co, 445 Mich 154, 161; 516 NW2d 475 (1994); Babula v Robertson, 212 Mich

App 45, 48; 536 NW2d 834 (1995). Summary disposition under this subrule is available when,

“[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and th e

moving party is entitled to judgment or partial judgment as a matter of law.” MCR 2.116(C)(10),

see also Coblentz v City of Novi, 475 Mich 558; 718 NW2d 73 (2006); Haliw v City of Sterling

Heights, 464 Mich 297; 627 NW2d 581 (2001). “A genuine issue of material fact exists when the

record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon


8/49

8

which reasonable minds differ.” Attorney Gen v PowerPick Players’ Club of Michigan, LLC , 287

Mich App 13, 26-27; 783 NW2d 515 (2010) (quoting West v GMC 469 Mich 117, 118; 665 NW2d

468 (2003)).

A fact is material if it is “un ultimate issue upon which a jury’s verdict must be based.”

Estate of Neal v Friendship Manor Nursing Home, 113 Mich App 759, 763; 318 NW2d 694

(1992).

In reviewing a motion made per MCR 2.116(C)(10), the Court must consider the pleadings,

affidavits, depositions, admissions, and any other admissible evidence in favor of the nonmoving

party. MCR 2.116(G)(5); Maiden at 120. If after reviewing the admissible evidence and viewing

it in the light most favorable to the nonmoving party the Court is convinced that there is no genuine

issue of material act, the moving party is entitled to judgment as a matter of law. Quinto v Cross

& Peters Co, 451 Mich 358, 363; 547 NW2d 314 (1996); Helsel v Morconi, 219 Mich App 14,

17; 555 NW2d 852 (1996).

Under MCR 2.116(C)(10), courts are required to be “liberal in finding genuine issues of

material fact.” Jimkowski v Shupe, 282 Mich App 1; 763 NW2d 1 (2008). Nevertheless,

“Summary disposition is appropriate when the party opposing the motion fails to provide evidence

to establish a material factual dispute.” Porter v City of Royal Oak , 214 Mich App 478, 484; 542

NW2d 905 (1995). In deciding the motion, “[t]he trial court is not permitted to assess credibility,

to weight the evidence, or to determine the facts.” Henry Ford Health Sys v Esurance Ins Co, 288

Mich App 595, 598-599; 808 NW2d 1 (2010). If the evidence is conflicting, summary disposition

is improper. Hine v Volkswagon of America, Inc, 265 Mich App 432, 437; 695 NW2d 84 (2005).


9/49

9

Summary disposition under MCR 2.116(C)(10) is “suspect where motive and intent are at

issue or where the credibility of a witness is crucial.” Foreman v Foreman, 266 Mich App 132,

135; 701 NW2d 167 (2005).

When a motion for summary disposition is considered by the Court, the Court may award

judgment to the nonmoving party — even if the nonmoving party does not file its own motion for

summary disposition — if the Court determines that the nonmoving party is entitled to judgement

as a matter of law. MCR 2.116(I)(2); Charter Township of Meridian v Ingham County Clerk , 285

Mich App 581; 777 NW2d 452 (2009).

2. Analysis

a. Defendants Stating As Fact That Plaintiff Is A Leader Of The Ku Klux Klan Is Neither

Opinion Nor Rhetorical Hyperbole

Restatement of Torts, 2d, § 559, illustration 2 (1977) provides as an example of what

constitutes defamation: “An allegation of membership in the Ku Klux Klan is defamatory.”

(Emphasis added.) Liberty Lobby, Inc v Dow Jones & Co, Inc, 838 F2d 1287, 1294 (US App DC,

1988); see also Partington v Bugliosi, 825 F Supp 906, 915, fn 9 (D Hawai’i, 1993) (“[A] false

charge of membership in the Ku Klux Klan * * * [is] def amatory per se.”). In the instant case,

Defendants falsely accused Plaintiff of being a leader of the Ku Klux Klan, which is pretty much

the textbook definition of defamation as far as the American Law Institute — which publishes the

Restatement of Torts — is concerned. Needless to say, Michigan courts find the Restatement of

Torts to be extremely persuasive. See Roberts v Auto-Owners Ins Co, 422 Mich 594; 374 NW2d

905 (1985) (utilizing the Restatement of Torts to determine the elements of the common law tort

of intentional infliction of emotional distress).

Defendants are improperly trying to conflate being a “racist” or a “white supremacist”—

which are offensive rhetorical hyperbole slurs for people of a right-of-center political persuasion —


10/49

10

with membership or a leadership position with the Ku Klux Klan — which is neither opinion nor

rhetorical hyperbole since it is easily factually determinable. Defendants are not being sued for

calling Plaintiff “racist” or “white supremacist”— rather, Defendants are being sued for alleging

that Plaintiff is actively involved with the Ku Klux Klan — a terrorist organization well-known for

engaging in criminality. Defendants describing Plaintiff as “racist” and “white supremacist” is

constitutionally permissible, but Defendants crossed the Rubicon of constitutional protection when

Defendants stated as fact that Plaintiff is affiliated with the Ku Klux Klan.

As was rightfully observed by the United States District Court for the Eastern District of

California:

At the outset it is important to make clear that there is only one defamatorystatement at issue in this case; Defendant's statement that he was told (or that heknew for a fact) that Plaintiff was “a dangerous member of the Ku Klux Klan.” There is no dispute that this statement is both false and derogatory * * *. However,it is important to stress that it is the allegation of membership in the Ku Klux Klanthat is actionable; the allegation that a person is a “racist,” on the other hand is notactionable because the term “racist” has no factually-verifiable meaning. SeeOverhill Farms, Inc. V. Lopez, 190 Cal.App.4th 1248, 1262 (4 Dist. 2010)(“charging a person with being racist, unfair or unjust - without more - [...]constitute mere name calling and do not contain a provably false assertion of fact

”

as is required to state a claim for defamation).

Forte v Jones, Memorandum Opinion and Order on Defendant’s Motion for Summary

Judgment, 1:11-cv-0718-AWI-BAM (ED Cal, March 19, 2013); but see Armstrong v Shirvell , 596

Fed Appx 433, 442 (CA 6, 2015) (“Courts have held that words like ‘ liar ’ and ‘r acist’ have clear,

well understood meanings, which are capable of being defamatory. [(Citations omitted)].”).

Whether a derogatory statement made against public political figures constitutes opinion

or rhetorical hyperbole has been analyzed by courts. See Buckley v Littell , 539 F2d 882 (CA 2,

1976).


11/49

11

In Buckley, the United States Court of Appeals for the Second Circuit dealt with a case in

which William F. Buckley, Jr. (“Buckley”)— a prominent conservative activist of yesteryear —

sued Franklin H. Littell — a left-wing political detractor —for writing that Buckley is a “fellow

traveler ” of “fascism” and for stating that Buckley is a liar. Buckley at 887 and 895-896. The

Second Circuit observed that an allegation of “fascism” is not actionable because the word is

loosely defined — i.e., rhetorical hyperbole — , but that alleging that Buckley is a liar is actionable

because it is an “assertion of fact”— i.e., not rhetorical hyperbole. Buckley at 895. Said the Buckley

court:

We have a different factual context, however, concerned in the third alleged libel.For here appellant's book says, “Like Westbrook Pegler, who lied day after day inhis column about Quentin Reynolds and goaded him into a lawsuit, Buckley could

be taken to court by any one of several people who had enough money to hirecompetent legal counsel and nothing else to do.” This is an assertion of fact, namelythat Buckley had lied about and implicitly libeled several people who, if theywanted to and could afford it, could take him to court for his lies. As opposed tothe loosely definable, variously interpretable statements of opinion above referredto made inextricably in the contest of political, social or philosophical debate, inthis instance appellant's comment makes a factual assertion relating to Buckley's

journalistic integrity. See Restatement (Second) of Torts, supra § 566 & Comment.Even while Gertz v. Robert Welch, Inc., supra, in effect states that an expression of“ pure opinion” may not be the basis of an action for defamation, it also said, 418U.S. at 401, 94 S.Ct. at 3037, that “there is no constitutional value in falsestatements of fact.” Regardless of what other implicit but unelaboratedcomparisons Littell was attempting to draw between Buckley and Pegler, andregardless of whether he was attempting to say that Buckley lied about individuals precisely in the way that Pegler did, see note 2, supra, it seems to us that this thirdremark as it appears on its face states that Buckley was engaging in libelous

journalism. Given the proof of falsity which was presented and not successfullyrebutted, it is constitutionally as well as tortiously defamatory.

Buckley at 895-896.

In the instant case, Defendants stated as a fact within an otherwise opinion piece that

Plaintiff is a leader of the Ku Klux Klan. This is not rhetorical hyperbole, because it is “an assertion

of fact”— to use the language of the Second Circuit —, since this statement is not “loosely


12/49

12

definable.” Unlike slurs like “white supremacist,” “racist,” and “fascist”— which are “variously

interpretable statements of opinion” “made inextricably in the context of political * * *

debate”— , whether one is a leader or otherwise involved as a member of a Ku Klux Klan group is

easily objectively verifiable.

Likewise, in Gertz , the United States Supreme Court dealt with a defamation case in which

a conservative organization’s publication labeled the prominent left-wing plaintiff a “Leninist”

and a “Communist-fronter” who “had been an officer of the National Lawyers Guild, described as

a Communist organization that ‘ probably did more than any other outfit to plan the Communist

attack on the Chicago police during the 1968 Democratic Convention.’” Gertz at 326. The UnitedStates Supreme Court observed that “[t]hese statements contained serious inaccuracies” insofar as

the plaintiff had never engaged in criminal activity and had not been a member of the objectionable

organization. Id . After the United States Supreme Court remanded the case back for retrial, the

jury awarded the Gertz plaintiff four hundred thousand dollars ($400,000.00), which was affirmed

on appeal, after said plaintiff proved that the defendant acted with actual malice. Gertz v Robert

Welch, Inc, 680 F2d 527 (CA 7, 1982).

In Hodgins at 254-255, the Michigan Court of Appeals stated,

Direct accusations or inferences of criminal conduct or wrongdoing are not protected as opinion. Church of Scientology of California v. Flynn, 744 F.2d 694,698 (CA 9, 1984); Cianci v. New Times Publishing Co., 639 F.2d 54, 65 (CA 2,1980); Buckley v. Littell, 539 F.2d 882, 896 (CA 2, 1976), cert. den. 429 U.S. 1062,97 S.Ct. 785, 50 L.Ed.2d 777 (1977). There is no First Amendment protection for“a charge which could reasonably be understood as imputing specific criminalconduct or other wrongful acts.” Cianci, 639 F.2d at 64.

See also MCL 600.2911(1).

In the instant case, Defendants accused Plaintiff of being affiliated with an organization

which is notorious for committing heinous crimes. See Virginia v Black , 538 US 343 (2003)


13/49

13

(describing history of the Ku Klux Klan’s “reign of terror”). There is clearly no First Amendment

protection for Defendants to falsely state as a fact that Plaintiff is a leader of or otherwise involved

with the Ku Klux Klan.

Just as it is actionable for a conservative organization to falsely state as a fact in an

otherwise opinion piece that a liberal activist is involved with a communist organization that

engages in criminal activity — see Gertz — , it is likewise actionable for a news organization and

left-wing journalist to falsely state as a fact in an otherwise opinion piece that a conservative

activist is involved with an organization which engages in criminal activity. What is good for the

goose is good for the gander — unless equal protection under the law is not afforded to politicallyright-of-center citizens of our country and the Court is prepared to so rule.

b. Defendants Stating As Fact That Plaintiff Is A Leader Of The Ku Klux Klan Is Not

Substantially True

As set forth supra, Defendants are erroneously trying to conflate being “racist” or “white

supremacist”— which are offensive slurs that arguably constitute constitutionally-protected

rhetorical hyperbole when used against right-wing political activists —

with membership or a

leadership position with the Ku Klux Klan — which is not rhetorical hyperbole since it is easily

factually determinable: a person is either affiliated with the repugnant criminally-inclined

organization or they are not. Being called a “racist” or “white supremacist” is qualitatively

different than being accused of being a member or leader of a criminal syndicate. Plaintiff is not

suing Defendants for calling or even implying that Plaintiff is “racist” or “white supremacist”—

rather, Plaintiff is suing Defendants for falsely stating as a fact that Plaintiff is a leader of the Ku

Klux Klan. (Exhibit A – Plaintiff’s Complaint, ¶¶ 38-58).

Minor inaccuracies in a published article cannot provide the basis for actionable

defamation if they are immaterial or if they “accurately describe the circumstances.” Duran v The


14/49

14

Detroit News, 200 Mich App 622, 633; 504 NW2d 715 (1993). In the instant case, it is not

immaterial that Defendants falsely alleged that Plaintiff is a leader of the Ku Klux Klan — which

is a noxious terrorist criminal organization — , and stating as a fact that Plaintiff has such

involvement with said organization does not “accurately describe the circumstances”: Plaintiff is

not now, nor has Plaintiff ever been, affiliated with the Ku Klux Klan, and Defendants have no

reason to believe otherwise and acted with malice. (Exhibit B – Affidavit of James Edwards).

The Michigan Supreme Court observed that a “statement is not considered false unless it

'would have a different effect on the mind of the reader from that which the pleaded truth would

have produced.'” Rouch at 238, 260 (quoting Masson v New Yorker Magazine, Inc, 501 US 496,517 (1991)). The pleaded truth in the instant civil action —“Plaintiff is not a leader of the Ku Klux

Klan”— would have produced a different effect on the minds of the readers than the false statement

made by Defendants —paraphrased, “Plaintiff is a leader of the Ku Klux Klan.”

Plaintiff’s views are not even Ku Klux Klan-like — Plaintiff does not advocate racial

violence, Plaintiff has never engaged in racial violence, Plaintiff has never engaged in criminal

activity, and although Plaintiff’s radio talk show advances right-wing views, it is nevertheless

mainstream enough that a significant number of prominent or mainstream personalities have

chosen to be interviewed by it — including but not limited to rock-and-roll legend Ted Nugent, Dr.

Alveda King — the niece of Rev. Dr. Martin Luther King, Jr. — , conservative African-American

activists Rev. Jesse Lee Peterson and Ezola Foster, conservative Native American activist David

Yeagley, Bay Buchanan — a former treasurer of the United States — , New York Times bestselling

author Jerome Corsi, Patrick Buchanan — a former candidate for U.S. president, MSNBC political

commentator, and New York Times bestselling author — , Dr. Paul Craig Roberts — a former U.S.


15/49

15

Assistant Secretary of Treasury for Economic Policy — , U.S. Congressman Walter Jones, and

actors Sonny Landham and Gary Sinese. (Exhibit B – Affidavit of James Edwards).

It is neither true nor substantially true that Plaintiff is now or was previously a member or

leader of the Ku Klux Klan. (Exhibit B – Affidavit of James Edwards). Since the evidence must

be considered in the light most favorable to Plaintiff — the nonmoving party — for purposes of

Defendants’ Motion for Summary Disposition per MCR 2.116(C)(10), Plaintiff’s Affidavit lays

waste to Defendants’ “substantially true” argument.

c. Plaintiff Is Not Libel-Proof

Defendants argue that Plaintiff is libel- proof. (Defendants’ Brief, pp 17-18). AlthoughDefendants are correct that some people in extremely rare situations are libel-proof — and cite the

example of convicted murderer Jack “Dr. Death” Kevorkian— , Plaintiff is not libel-proof: (1)

Plaintiff has no criminal record, (2) Plaintiff is a church-going family man, (3) Plaintiff has been

interviewed by CNN on national television for which Plaintiff was described as a “conservative

talk radio host” instead of a “Ku Klux Klan leader ” as Defendants represented Plaintiff to be, (4)

Plaintiff was named an “Honorary City Councilman” of Memphis, Tennessee, by said city council

for Plaintiff’s contributions to his community via Plaintiff’s conservative talk radio show, and (5)

Plaintiff’s conservative talk radio show has received a certificate of recognition by the Memphis

City Council for outstanding contributions to Plaintiff’s community. (Exhibit B – Affidavit of

James Edwards). To the best of Plaintiff’s knowledge, pr ior to Defendants, no one has ever falsely

stated that Plaintiff is a member or leader of the Ku Klux Klan. (Exhibit B – Affidavit of James

Edwards).

Defendants imply in their Brief that because some politically left-of-center organizations

opine that Plaintiff is “racist” or “white supremacist,” that Defendants are given carte blanche to


16/49

16

say whatever they want about Plaintiff irrespective of whether Defendants’ statements are true or

not. This yellow journalism defense is in accordance with neither the law nor common sense.

Like Defendants in the instant case, the defendant in Buckley unsuccessfully tried to allege

that the plaintiff is libel-proof and that the statements made against the plaintiff are not actionable.

Buckley at 888. Said the Second Circuit of Buckley:

Mr. Buckley, despite the fact that he has spent a life in politics as a principalspokesman for a controversial political position and is eminently prominent,obviously may be the target of libel; his reputation, however capable he may be ofanswering false and defamatory attack with the communications resources at hiscommand, is nevertheless one that could suffer under the onus of defamation. Thevictims of the era of McCarthyism who had occupied positions of prominence in

the radio, television and cinema fields are ample proof of that. The doctrine of“libel- proof” defendants that our Cardillo [v Doubledy & Co., 518 F2d 638 (CA 2,1975)] case enunciated is a limited, narrow one, which we will leave confined toits basic factual context.

Buckley at 888-889.

Defendants maintain that Plaintiff is a racist white supremacist whose reputation, therefore,

cannot be injured by Defendants calling him a leader of the Ku Klux Klan. (Defendants’ Br ief, pp

17-18). A virtually identical case was reviewed in 1996 by the Supreme Court of Montana, which

saw fit to rule that summary judgment being granted in the defendant’s favor by the trial court was

improper because a jury must decide whether the plaintiff was in fact defamed.

In Roots v Montana Human Rights Network , 275 Mont 408, 411-412; 913 P2d 638 (Mont

1996) (attached as Exhibit C),

[The plaintiff] was well known by the general public as an ultra right-wing politicalactivist [who] authored a publication entitled Whites and Blacks 100 Facts (andOne Lie), which is advertised for sale nationally. The publication lists “facts” aboutAfrican-Americans, such as: blacks have low I.Q.'s due to small foreheads; theyhave never invented anything; and they are more likely to have syphilis than whites.[The plaintiff] is a columnist in the Jubilee, wherein one of his columns states thatthe Holocaust was a hoax.


17/49

17

[The plaintiff] has been the subject of numerous news reports by a local televisionstation and a newspaper concerning his right-wing beliefs and criminal record.[The plaintiff] has been convicted of felony possession of an illegal firearm andmisdemeanor resisting arrest. [The plaintiff] was a member and president of theYoung Republicans at Eastern Montana College and was the subject of numerous

articles which appeared in the college's newspaper during 1993 and 1994. [The plaintiff] supported people who are openly members of the KKK and attendedseveral meetings held by the Montana militia. [The plaintiff] filed for a state senateseat but did not qualify as a candidate because of his felony conviction.

The controversially right-wing Roots plaintiff sued the defendant in that case because the

plaintiff was falsely accused by the defendant of being a member — much less a leader — of the Ku

Klux Klan. Roots at 411. The Roots plaintiff was permitted to proceed to trial despite clearly

having a right-wing reputation arguably more controversial than Plaintiff and — unlike Plaintiff — despite having a felonious criminal record.2

To support Defendants’ contention that Plaintiff’s reputation is so poor that Plaintiff is

libel-proof, Defendants mainly rely on the tabloid representations of the radically leftist Southern

Poverty Law Center (“SPLC”) and Anti-Defamation League (“ADL”). (Defendants’ Brief,

passim). The SPLC and ADL have been sued for engaging in horrific tortious conduct against

their political adversaries and have even been alleged to induce mentally unhinged people to

commit acts of violence — including mass shootings. See Quigley v Rosenthal , 43 F Supp 2d 1163

(D Colo, 1999) (ADL sued by Catholic family for disparaging them as “anti-Semitic” during a

vicious campaign of harassment); Quigley v Rosenthal , 327 F3d 1044 (CA 10, 2003) (Judgment

of jury in excess of ten million dollars against ADL not overturned on appeal); Family Research

Council. “Southern Poverty Law Center Linked to FRC Shooting in Chilling New Interrogation

Video.”


18/49

18

chilling-new-interrogation-video>. Accessed 21 May 2016. Deferring to the SPLC3 and ADL to

decide who is a right-wing extremist of ill repute makes about as much sense as deferring to the

John Birch Society to decide who is a communist. See Gertz .

Defendants allege that Plaintiff is a friend of David Duke (“Duke”) and imply that Plaintiff

can be called a Klansman through guilt-by-association. (Defendants’ Brief, p 4). Defendants are

blowing the Duke connection way out of proportion, because Duke ran for governor of the State

of Louisiana as a Republican in 1991 and received 671,009 votes — or thirty-nine percent (39%)

of all votes cast.4 Plaintiff resides in the State of Tennessee — a southern state — , and Duke is more

popular in the South — and therefore mainstream — than Defendants would like to have thisMichigan Court believe.5 Supporting or being a friend of Duke does not inherently make one a

member or leader of the Ku Klux Klan or any other organization engaged in criminal activity.

It is not factually true that Plaintiff is libel- proof as far as Plaintiff’s political activism is

concerned. (Exhibit B – Affidavit of James Edwards). Since the evidence must be considered in

the light most favorable to Plaintiff — the nonmoving party — for purposes of Defendants’ Motion

for Summary Disposition per MCR 2.116(C)(10), Plaintiff’s Affidavit trumps Defendants’ libel-

proof argument.

3 For more information about the SPLC, see “Profiteers of Hate – The Southern Poverty LawCenter – A Special Report.” The Social Contract Journal , Volume 20, Number 3. Spring 2010.Accessible at .4 This Court can take judicial notice — per MRE 201 — of public elections. See Wolverine GolfClub v Hare, 24 Mich App 711, 715, fn 2; 180 NW2d 820 (1970).5 Segregationist Governor George Wallace won the 1972 Michigan Democratic primary with 50.96 percent of the vote, and Donald Trump won the recent Michigan primary with 36.5 percent of thevote —and Defendants purport that Trump and his supporters are “racist.” (Defendants’ Brief, p13). In light of allegedly “racist” politicians performing well in Michigan elections now andyesteryear, Defendants cannot logically contend that supporting said politicians’ political viewsrenders one libel-proof as a political leper. That which is mainstream is clearly not libel-proof.


19/49

19

d. Defendants’ Motion For Summary Disposition Per MCR 2.116(C)(10) Must Be Denied

Because The “Evidence” Defendants Attached To It Is Inadmissible

As set forth supra, Defendants must support their Motion for Summary Disposition per

MCR 2.116(C)(10) with admissible evidence. MCR 2.116(G)(6); Maiden at 120.

Other than submitting as proofs to support Defendants’ Motion for Summary Disposition

Plaintiff’s Complaint— which must be viewed in the light most favorable to Plaintiff — ,

correspondence exchanged between the Parties’ attorneys— which is irrelevant and inadmissible6,

much less hearsay — , and two articles Defendants published that mention Plaintiff — one of which

is completely irrelevant in the instant case — , Defendants only attached to their Brief an affidavit

from “the Manager of Litigation Support” who works for Defendants’ attorneys’ law firm.

(Defendants’ Brief, Ex G). The affidavit attached to Defendants’ Brief is not admissible evidence

because a legal assistant is merely an agent of an attorney and representations and arguments of

counsel in their Briefs do not constitute record evidence. Hazle v Ford Motor Co, 464 Mich 456,

474; 628 NW2d 515 (2001); North River Ins Co v Endicott , 151 Mich App 707, 714; 391 NW2d

454 (1986) (an affidavit signed by a counsel stating only that the content of the motion is true to

his knowledge is insufficient for purposes of supporting a motion for summary disposition under

MCR 2.116(C)(10)).

IV. CONCLUSION

For the reasons set forth herein, Defendants are not entitled to summary disposition per

MCR 2.116(C)(8) or (10).

Whether a privilege — such as whether the published derogatory statement constitutes

opinion, rhetorical hyperbole, or is substantially true, or if the plaintiff is libel-proof — exists is a

6 See M Civ JI 2.04(2)(a) (“The lawyers’ statements, commentaries, and arguments are notevidence.”).


20/49

20

question of law for the court. Prysak v RL Polk Co, 193 Mich App 1; 483 NW2d 629 (1992); New

Franklin Enters v Sabo, 192 Mich App 219; 480 NW2d 326 (1991). However, if the facts needed

to make that determination are disputed, they must be submitted to a jury. Bufalino v Detroit

Magazine, 433 Mich 766; 449 NW2d 410 (1989).

Defendants’ Motion for Summary Disposition should be denied in its entirety, a period of

time for discovery should occur, and the instant civil action should proceed to trial by jury as was

respectfully demanded by Plaintiff. (Exhibit A – Plaintiff’s Complaint, p 12).

In light, however, of legal authorities making it abundantly clear that falsely calling

someone a member of the Ku Klux Klan is inherently defamatory, and Plaintiff’s Affidavitevincing that Plaintiff has a reputation to protect and that Plaintiff is not a member or leader of the

Ku Klux Klan, Plaintiff does pray that this Court will grant partial summary disposition in

Plaintiff’s favor per MCR 2.116(I)(2) by decreeing that the derogatory statement at issue in the

instant civil action does not constitute mere opinion nor rhetorical hyperbole nor is substantially

true and that Plaintiff is not libel-proof — thereby precluding Defendants from raising such

affirmative defenses when Defendants are made to file their forthcoming answer to Plaintiff’s

Complaint. No material dispute as to the facts exist as to these issues and the law and admissible

evidence conclusively show that Plaintiff is entitled to partial judgment as a matter of law.

Respectfully submitted,

BRISTOW LAW, PLLC

/s/ Kyle James BristowKyle James Bristow (P77200)P.O. Box 381164Clinton Twp., MI 48038(P): (248) 838-9934(E): [email protected]

Dated: May 26, 2016 Attorney for James Edwards


21/49

EXHIBIT A

Plaintiff’s Complaint


22/49

FILED IN MY OFF

WAYNE COUNTY CLE

4/18/2016 12:10:58

CATHY M. GARRE

16-004874-

db


23/49


24/49


25/49


26/49


27/49


28/49


29/49


30/49


31/49


32/49


33/49


34/49


35/49


36/49


37/49


38/49


39/49


40/49


41/49


42/49


43/49


44/49


45/49

275 Mont. 408 (Mont. 1996), 95-490, Roots v. Montana Human Rights Network

Page 408

275 Mont. 408 (Mont. 1996)

913 P.2d 638

Roger ROOTS, Plaintiff and Appellant,

v.

The MONTANA HUMAN RIGHTS NETWORK, Defendant and Respondent.No. 95-490.

Supreme Court of Montana.

March 21, 1996

Submitted on Briefs Feb. 15, 1996.

[913 P.2d 639]

Page 409

Appeal from the District Court of the Thirteenth Judicial District, In and for the County of

Yellowstone; The Honorable Diane G. Barz, Judge presiding.

Page 410Roger Roots, Billings, pro se.

Calvin J. Stacey, Stacey & Walen, Billings, John G. Crist, Dorsey & Whitney, Billings, for

Respondent.

TURNAGE, Chief Justice.

Roger Roots filed a complaint in the Thirteenth Judicial District Court, Yellowstone County,

alleging that the Montana Human Rights Network (MHRN) defamed him by publishing a booklet in

which it described him as an organizer for the Ku Klux Klan (KKK). The court granted summary

judgment for MHRN. We vacate and remand.

The issue is whether summary judgment was proper. MHRN is a private nonprofit Montana corporation. In May 1994, it published a booklet entitled

A Season of Discontent, in which it described Roots as "Roger Roots, Billings Ku Klux Klan

organizer."

A month later, Roots brought this action for defamation and "invasion of privacy/malicious

harassment/creation of a climate of fear." He originally named four defendants. By the time of the

ruling herein appealed, the action had been narrowed to a libel case against MHRN.

The District Court described Roots as a man who

has become well known by the general public as an ultra right-wing political activist. [He] authored

a publication entitled Whites and Blacks 100 Facts (and One Lie), which is advertised for salenationally. The publication lists "facts" about African-Americans, such as: blacks have low I.Q.'s

due to small foreheads; they have never invented anything; and they are more likely to have

syphilis than whites. [Roots] is a columnist in the Jubilee, wherein one of his columns states that

the Holocaust was a hoax.

[Roots] has been the subject of numerous news reports by a local television station and a

newspaper concerning his right-wing beliefs and criminal record. [He] has been convicted of felony

possession of an illegal firearm and misdemeanor resisting arrest. [He] was a member and


46/49

president of the Young Republicans at Eastern Montana College and was the subject of numerous

articles which appeared in the college's newspaper during 1993 and 1994. [He] supported people

who are openly members of the KKK and attended several meetings held by the Montana militia.

[He] filed

Page 411

for a state senate seat but did not qualify as a candidate because of his felony conviction.

The District Court ruled that Roots is a public figure for limited purposes. It concluded,therefore, that to succeed in this [913 P.2d 640] action, he must prove not only the falsity of the

statement that he was an organizer for the KKK, but also, by clear and convincing evidence, that

the MHRN acted with malice in publishing the statement.

The court ruled that Roots had not met his burden of showing that the statement was false or

that MHRN acted with malice. It granted summary judgment for MHRN.

Was summary judgment proper?

Summary judgment is proper when the pleadings, depositions, answers to interrogatories,

admissions, and any affidavits on file show that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. This Courtreviews a summary judgment decision under the same standard as that used by the district court

in making the decision. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

Roots accuses MHRN of defaming him by naming him as a KKK organizer in its booklet A

Season of Discontent. Defamation is defined as either libel or slander. Section 27-1-801, MCA.

Libel is a false and unprivileged publication by writing which exposes a person to hatred,

contempt, ridicule or obloquy; causes the person to be shunned or avoided; or tends to injure the

person's occupation. Section 27-1-802, MCA.

The right to free speech under the First Amendment to the United States Constitution places

limits on the application of state defamation laws. New York Times Co. v. Sullivan (1964), 376U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. A public figure cannot recover damages upon a claim for

defamation without a showing of actual malice. Sullivan, 376 U.S. at 279-80, 84 S.Ct. at 725-26.

This standard also applies to limited purpose public figures, or persons who have voluntarily

injected themselves or are drawn into a particular public controversy and become a public figure

for a limited range of issues. See, Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct.

2997, 41 L.Ed.2d 789.

In this case, the District Court ruled as a matter of law that Roots was a public figure for

limited purposes

because he ran for public office, was the president of the Young Republicans, published acontroversial book, and appeared as a

Page 412

regular columnist in the Jubilee and as the subject of numerous newspaper and television reports.

Our review of the record convinces us that a genuine issue of material fact exists as to

whether Roots became a public figure for a limited purpose or remained a private figure involved

in matters of public concern.

The First Amendment protects statements of opinion on matters of public concern where they


47/49

do not contain a provable false factual connotation or where they cannot reasonably be interpreted

as stating actual facts about an individual. Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 18-

20, 110 S.Ct. 2695, 2705-06, 111 L.Ed.2d 1, 17-18. The statement that Roots is an organizer for

the KKK contains a factual connotation which may be proven false. The statement can also be

reasonably interpreted as stating an actual fact about Roots. We conclude, as did the District

Court by implication, that the First Amendment does not shield MHRN from this action.

The District Court relied upon Philadelphia Newspapers, Inc. v. Hepps (1986), 475 U.S. 767,106 S.Ct. 1558, 89 L.Ed.2d 783, for the rule that the plaintiff in a defamation action concerning a

matter of public concern has the burden of proving the falsity of the alleged defamatory statement.

In cases in which the fact finding process is unable to conclusively resolve whether the statement

is true or false, the plaintiff's action must fail. Hepps, 475 U.S. at 776, 106 S.Ct. at 1563.

When summary judgment was entered in the present case, though, the fact finding process

had not yet been completed. While discovery had been conducted, trial had not yet been held. We

conclude that the District Court's reliance upon Hepps was misplaced.

As the party moving for summary judgment, MHRN bore the burden of establishing the

absence of genuine issues of material [913 P.2d 641] fact. Matter of Estate of Lien (1995), 270Mont. 295, 298, 892 P.2d 530, 532. The facts MHRN adduced in support of its statement that

Roots was a KKK organizer establish that Roots shared viewpoints with the KKK. They do not

necessarily establish that he was an organizer for the KKK. Any factual inferences which can be

drawn must be resolved in favor of Roots, the nonmoving party. Lien, 892 P.2d at 532.

Roots filed affidavits in which he denied having ever organized meetings or rallies or

distributed literature for the KKK, and stated that he had "never ordered, requested, or urged any

human being to join the Ku Klux Klan [or] ... support the Ku Klux Klan." He also filed an affidavit by

his friend John Abarr, who stated:

Page 413That I am a member of the Knights of the Ku Klux Klan, National Office in Harrison, Arkansas....

That Roger Roots has resisted all attempts by me to get him to join the Knights of the Ku Klux

Klan.

While the affidavits filed by Roots do not definitively disprove that he is an organizer for the

KKK, they demonstrate an issue of fact as to the truth or falsity of the statement.

Because the record discloses genuine issues of material fact as to whether Roots is a public

figure for limited purposes and as to the truth or falsity of MHRN's description of him as an

organizer for the KKK, we hold that entry of summary judgment for MHRN was improper. The

judgment for MHRN is therefore vacated and this case is remanded for further proceedingsconsistent with this opinion.

GRAY, TRIEWEILER, LEAPHART and ERDMANN, JJ., concur.


48/49


49/49

Documents

James Edwards Motion Response