Can't PM and what is this Conversation thing?

[Quaere]

I sent a note to something called a "conversation" which I thought must be replacing PMs. Then I got a bunch of comments on various posts I know nothing about, so now I am really confused.

Next I tried to PM a couple of peeps here and none of those peeps has PM's authorized. So how does one take a conversation to a private mail?

Quaere

 

[quincy]

Nice site, Q.

But you are wrong about defamation per se. And Michigan defamation laws are different than some other states, as is how the Supreme Court operates, so I would do some serious reviewing prior to advising jci.

You can have a "conversation" with someone now, by posting messages to them and then answering - and the entire conversation shows up when you click on either name, but it certainly is not a private conversation. I don't know about PMing.

 

[Quaere]

As you can see, I just opened it for JCI, but the need has arisen in the past and I figure I may as well have one place to continue conversations.

Anyone that cares to take a conversation there is welcome to do so. I get tired of the arbitrary and unexplained censorship on this site (which is why I expressed my regret that you are putting so much helpful info here).

We'll have to agree to disagree about defamation per se since neither of us are willing to find the citations to prove the argument.


Thanks for explaining the conversation feature. I saw something about a blog so I thought maybe there was one huge running chat going on somewhere.

Quaere

 

[quincy]

Libel per se v. libel per quod -

see:
Muzikowski v Paramount Pictures Corp, 322 F.3d 918 (7th Cir. 2003)
Smith v Smith §42 N.E.292 (N.Y. 1923)
Braun v Armour & Co, 173 N.E.843 (N.Y. 1930)
Prosser, Libel Per Quod, 46 Va. L. Rev. 839 (1960), page 781, 782
The Spurious Role of Libel Per Quod, 79 Harv. L. Rev. 733 (1966)
Restatement (Second) of Torts, §569
Reed v Melnick, 471 P.2d 178 (N.M. 1970)
33 Am.Jur. Libel and Slander §5
Ma rtin v Outboard Marine Corp, 15 Wis. 2d. 452, 113 N.W. 2d. 135, 138 (1962)
Morrison v Ritchie & Co, 39 Scot.L.R. 432 (1902)
53 C.J.S. Libel and Slander §8a
Electric Furnace Corp v Deering Milliken Research Corp, 325 F2d 761, 764-765 (6th Cir 1963)
Pitts v Spokane Chronicle Co, 63 Wash. 2d 763, 388 P.2d 976 (1964)
Firestone v Time, Inc, 414 F.2d 790, 791 (5th Cir 1969)

and so on.

 

[Quaere]

Quincy, these cites are not too helpful, for reasons I explained on another board. I do appreciate the effort though.

Quaere

 

[Just Blue]

I sent a note to something called a "conversation" which I thought must be replacing PMs. Then I got a bunch of comments on various posts I know nothing about, so now I am really confused.

Next I tried to PM a couple of peeps here and none of those peeps has PM's authorized. So how does one take a conversation to a private mail?

Quaere

Just below (in user profile) the members name is "send message"...Click there and if the member has pm available it will show.

 

[quincy]

Quaere, I read your other message. I will leave it to you to take from the sources and cases I cited above the applicable portions. Michigan's newspapers are undergoing a bit of a crisis right now , and I am going to be concentrating on that for awhile.

I am pretty sure I pointed jci to many of the pages and paragraphs and sections and comments in the earlier Michigan Supreme Court thread, however, and I believe I quoted from some of the various opinions by some of the various judges in some of the various cases I cited, and I quoted, I believe, from some of the sources I cited, as well.

Perhaps re-reading that thread can be of assistance to you.

The general rule is that, even if a statement falls into one of the limited "per se" categories (loathesome disease, criminal offense, et al), if the statement can reasonably be interpreted in an innocent way, it will not be actionable per se. To be a per se statement, it must be SO harmful to the reputation that damages are presumed, and when an innocent meaning is possible, damages will NOT be presumed. If it is judged not to be per se, it can still be defamatory - but damages will need to be demonstrated.

I KNOW I went over all of this in the last thread. . . . .

 

[Quaere]

Thank you for the info Baystategirl!

Quincy:

>>The general rule is that, even if a statement falls into one of the limited "per se" categories (loathesome disease, criminal offense, et al), if the statement can reasonably be interpreted in an innocent way, it will not be actionable per se.

You are combining two separate questions of law and treating them as if they are one. It doesn’t work that way.

You have to approach the alleged defamation in an orderly manner.
The easiest element to dispense with is the requirement that the statement was communicated to a third party.

The next question is whether the statement was capable of defamatory meaning. Michigan does not appear to have its own test for this question, but the US Court of Appeals for the Sixth Circuit came out with two defamation decisions this year.

The first 2008 case was Jolliff v. N.L.R.B., 513 F.3d 600, 610 (6th Cir. 2008), where the Sixth Circuit finally developed a test for determining whether a statement is capable of defamatory meaning. This test is applied in EVERY defamation case, because the defamatory potential of a statement must be determined BEFORE a determination of whether the defamation qualifies as per se or per quod.

The court parses the language of the statement under a multi-factor test:
(1) The common usage or meaning of the allegedly defamatory words themselves, whether they are commonly understood to be loose, figurative, or hyperbolic words;
(2) The degree to which the statements are verifiable, whether the statement is objectively capable of proof or disproof;
(3) The immediate context in which the statement occurs; and
(4) The broader social context into which the statement fits.

Once a court decides the “capable of defamatory meaning” question in the affirmative, the next question is whether the statement made about plaintiff, imputed a crime, bad business practices, a loathsome disease, or unchastity to the plaintiff. If so, the statements are capable of being defamatory per se.

There is never any focus on whether the statement could have an innocent meaning. It is a given that it may have been innocent. The question for the court and later for the jury, is whether it is capable of defamatory meaning and whether a reasonable person would have understood it to have that meaning.

>>To be a per se statement, it must be SO harmful to the reputation that damages are presumed, and when an innocent meaning is possible, damages will NOT be presumed. If it is judged not to be per se, it can still be defamatory - but damages will need to be demonstrated.

A possible innocent meaning is not determinative of anything at any point. If the jury does not interpret a statement as making a negative accusation against plaintiff, there has been NO DEFAMATION of any kind, so there will be no inquiry re. damages.

It is unusual to find a private plaintiff suing a private defendant so you will probably find the Sixth Circuit’s opinion in Ogle v. Hocker very informative. The case was decided on 5-29-08.

 

[quincy]

Well, first of all, newspapers in America are screwed.

Second, Quaere, do you even read what I have posted??? Ogle v Hocker, Michigan Supreme Court thread, page 6, post #80. Read by me a LONG time ago, and recommended to jci for his review.

Third, read number one of the four factor test. "The common usage or meanings of the words." Is the word capable of a defamatory meaning, and is that how the readers understand it? The trial court determined that the use of the word albino was figurative and commonly used to describe color and not the specific protected species of deer illegal to shoot in Michigan.

THAT is what I have been saying. ACK!

When there are TWO meanings to a word, it is NOT defamation per se, unless that is the way the word is commonly used and that is the common meaning of the word and that is how its use is understood. "Rapist" is always understood in a defamatory sense when applied to a person. There is only one meaning to "He is a rapist." It cannot have an innocent meaning.

However, to say someone "shot an albino deer" is NOT always understood, by the general populace, to apply to a criminal act. In fact, to say "He shot an albino deer" is not defamatory AT ALL in Michigan now, because there is no law against shooting an albino deer.

THAT is why jci needs to show the court that the readers in the community where the letters were published KNEW that killing an albino deer was illegal. Without that knowledge, the statements made by the letter writers could not be actionable and the statements made are substantially true. Jci's reputation may be harmed, but he was not defamed.

THAT is how the trial court erred. There are two meanings, and it should have been left for a jury to decide in what sense the word "albino" was used.

If the word albino is used in an innocent sense, and not in the technical, legal sense (and laymen are not expected to write in a technical, legal sense), then jci has no action he can pursue with any chance of success.

 

[jci63]

All of the Defendants themselves or family members are hunters, in the Michigan 2004 Hunting and trapping guide, it was clearly stated under the Protected Wildlife Order - all white or albino deer may not be taken at anytime.

Protected Wildlife – 2004

Eagles, hawks, owls, swans, spruce and sharp-tailed grouse, wolverines, lynx, moose, cougars, cub bears, and sows accompanied by cubs, and all white or albino deer may not be taken at anytime.

 

[quincy]

Exactly, jci. And the trial court judge erred in determining that it could sometimes be legal in Michigan to shoot an albino deer. And that was a false determination that he based on the testimony, only, of a witness - who falsely said that sometimes it is okay to shoot an albino deer in Michigan - and not on the law. The trial court judge took what the DNR witness said as the truth and he ran with it.

The problem you face, though, as I have said all along - if anyone has even read what I wrote - is that both the writers and the readers MAY have thought the word "albino" was used in a descriptive (or figurative) sense only - that you shot a white deer. In that sense, the statements can be seen as substantially true. If the writers, as laymen, are not held to the same technical or legal knowledge as an attorney, then they are often excused for using a technical term in the wrong way.

But all of this can be argued in your next trial, should the Supreme Court decide there were errors made in the lower courts that could have affected the outcome of your case.

I see that Quaere is assisting you on the other site. Good. And the form you are using for your appeal is good. Your review of the other cases was worthwhile.

I will let you and Quaere look up the relevant portions of the cases cited, and he can guide you in how to get them to support your issues. The private figure/public figure issue and how to determine if a word with two meanings can be defamatory issue are both ones the Michigan Supreme Court may want to tackle.

By the way, Quaere and I disagree occasionally, but that is what makes for court cases. There will always be different interpretations of the law. Quaere's interpretations just happen to be wrong.

 

[Quaere]

Quincy, I KNOW newspapers are screwed. The world is changing, rapidly. Don't dispair too much, the newspaper ceased to be unbiased sources of news fifty years ago. The Internet is now the ONLY place where powerful people have no control over the real news getting out.

I read every word you have written in this thread. Forgive me if I don’t remember every cite that has been given, but as I said before, when you cite something you have to let us know exactly what you are trying to prove with the cite.

>>"The common usage or meanings of the words."

Notice the plural? WordS.

You understand the case perfectly, it is just the way you are explaining it that strikes me as a little convoluted. You and I and JCI are probably the only ones here that have the faintest idea what we are talking about anyway, lol, so I’m giving up on getting you to see what is wrong with your explanation.

Have a great holiday!

Quaere

 

[quincy]

Here's a case you can use for your "two meanings" issue: Washington Post Co. v Chalmer, 1919, 250 U.S. 290, 39 S.Ct. 448, 63 L.Ed:987.

"A publication claimed to be defamatory must be read and construed in the sense in which readers to whom it is addressed would ordinarily understand it. . .When thus read, if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not. If, upon the other hand, it is capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those to whom it is addressed or by whom it may be read."

The trial and appeals court excised the jury's role in your case, by assuming (based erroneously on the DNR witness testimony) that the publication unambiguously carried no defamatory meaning.

Your argument to the Supreme Court is that whether a statement injures a reputation depends on the opinions of those to whom it is published. The statements in the letters regarding your shooting of an albino deer should have been submitted to a jury to determine whether it was understood by the "common mind" to be defamatory.

And, again, look at Prosser, Law of Torts, section 106 at 765 (1963): "If the language used is open to two meanings, it is for the jury to determine whether the defamatory sense was the one conveyed."


I just saw your post, Quaere, and I agree we are probably the only ones who know what we are talking about. Also note how nicely I am avoiding any argument with you over newspapers being biased sources of news!

You have a great holiday, too!

That's it for now.

 

[quincy]

Jci, although this is a wee bit premature , I think you might benefit from reading about what happens after you've won your grant for leave to appeal from the Supreme Court.

http://www.michbar.org/journal.pdf/pdf4article422.pdf

 

[jci63]

after you've won your grant for leave to appeal from the Supreme Court.

Thats the spirit! Thanks for the article - Be careful What You Ask For



The Court Rules state:

The argument must include a statement of the applicable standard or standards of review and supporting authorities.

Please explain****************************...

I have case law for each argument, what is applicable standard or standards of review?

D. LEGAL ARGUMENTS

STANDARD OF REVIEW

A Trial Court’s decision on a motion for summary disposition is reviewed de novo. Auto Club Group Insurance Company v Burchell, 249 Mich App 468; 642 NW 2d 406 (2001). The Trial Court’s interpretation of a statute, which is a question of law, is also reviewed de novo. Miller v Mercy Memorial Hospital Corp, 466 Mich 196; 644 NW2d 730 (2002).

(1) THE APPEALS COURT ERRED BY AFFIRMING THE TRIAL COURTS FINDING THAT PLAINTIFF/APPELLANT QUALIFIES AS A LIMITED PUBLIC FIGURE.


OR


LEGAL ARGUMENTS
STANDARD OF REVIEW

The review of a grant or denial of summary disposition is de novo in determining whether the moving party is entitled to judgment as a matter of law. According to Maiden v Rozwood 461 Mich 109, 118 (1999), in making this determination, the Court reviews the entire record to determine whether Defendant was entitled to summary disposition.

(1) THE APPEALS COURT ERRED BY AFFIRMING THE TRIAL COURTS FINDING THAT PLAINTIFF/APPELLANT QUALIFIES AS A LIMITED PUBLIC FIGURE.