A Claim for Defamation in the Internet Age
John S. McPhee, Collins Einhorn Farrell PC
In Redmond Funeral Home v Heller, __ Mich App __; __ NW2d ___ (2020) (Docket No. 347505), the Michigan Court of Appeals considered whether statements made by Theresa Heller on the internet constituted defamation. The court held that certain statements published by Theresa amounted to defamation per se, and that no reasonable fact-finder could conclude otherwise. The statements would so harm Redmond Funeral Home's reputation as to lower it in the estimation of the community and deter third-persons from associating or dealing with them. In other words, the internet isn't quite the freewheeling, "Wild West" as is often depicted. You can be held accountable for what you say and publish online.
Background on Redmond Funeral Home
Redmond Funeral Home arose from the death of Theresa's 12-year-old son, Charles Wolf. The medical examiner's office released Charles' body to Arthur McNabb, an employee of Redmond. The visitation and funeral occurred on July 31, 2015. It was undisputed that McNabb did not work Charles' visitation or funeral.
Afterward, Theresa discovered what she considered to be "outright lies" involved with the investigation of her son's death, and decided to investigate every name associated with the handling of her son's body. She obtained documents from the coroner's office that showed that McNabb signed for her son's remains. She subsequently discovered that McNabb was a convicted sex offender. After his conviction, the Board of Examiners and Mortuary Science revoked McNabb's license in 2007. The Board reinstated his license in October 2015. In November of 2015, Redmond appointed McNabb as the funeral director for one of its branch locations.
Police reports associated with McNabb's conviction show that he met a 15-year-old high school student at a computer game store. He admitted that he purchased items for the teen, and the teen told the investigating officer that McNabb performed a sex act on him. McNabb was convicted of two counts of third-degree criminal sexual conduct and was sentenced to prison.
In June of 2016, Theresa emailed Martha Redmond asking for information about her son's funeral.
In November of 2016, Redmond's lawyer sent Theresa a letter, noting she contacted the Paw Paw State Police Post no fewer than 37 times, had been seen driving by the funeral home on several occasions, and posted false claims on the internet. He demanded that she cease and desist all contact with Redmond or the funeral home. The following month, Theresa was again in contact with the State Police. That same month, she also filed a complaint against Redmond with the Department of Licensing and Regulatory Affairs.
In December of 2016, Theresa posted messages on Facebook describing McNabb as a "sick pedophile" who had "violent child porn".
Throughout the spring and summer of 2017, Theresa continued to post statements about Redmond and McNabb on the internet. In August of 2017, plaintiffs sued alleging that Theresa engaged in business defamation harming their business interests. Subsequently, the trial court granted Redmond's motion for partial summary disposition holding that four of the statements made by Theresa were defamatory as a matter of law, and that Redmond was entitled to summary disposition on those issues. Theresa appealed.
The Court of Appeals' Holding
The Court of Appeals affirmed the trial court's ruling regarding four specific statements made by Theresa that constituted defamation per se.
The elements of the cause of defamation are: (1) false and defamatory statements concerning the plaintiff; (2) an unprivileged communication to a third-party; (3) fault amounting to at least negligence on the part of the publisher; and (4) and that the statement was actionable without regard to special harm (defamation per se), or that the plaintiff suffered special harm. Smith v Anonymous Joint Enterprise, 487 Mich App 102; 793 NW2d 533 (2010).
The Court of Appeals affirmed the trial court's ruling that the four specific statements made by Theresa were defamation as a matter of law. Redmond Funeral Home, slip op at 15. Specifically, it cited Redmond's evidence that (1) on April 22, 2017, Theresa stated that she wanted to "spread the word about what happened to Charlie after he left us two summers ago", (2) on July 24, 2017, Theresa posted on Facebook that her son's "cousins and all his friends were exposed to this pervert at Charlie's funeral", and that "he didn't sodomize his customer's children? Some of your kids were at Charlie's funeral. How does that make you feel?", (3) on that same date, she stated that McNabb "hunts at fast food places, video and gaming stores, and funeral homes", and (4) on August 13, 2017 published on the internet that McNabb "targets young teenage boys who likes video games and nice shirts".
The Court of Appeals held that a reasonable fact-finder reading these statements could only conclude that Theresa was asserting that she had knowledge that McNabb was actively and presently hunting for teenage boys in order to commit criminal sexual conduct, and that he was doing so at Redmond's Funeral Home with Redmond's knowledge and support. No reasonable fact-finder could conclude other than that these statements would so harm Redmond's reputation so as to lower it in the estimation of the community and deter third-persons from associating or dealing with them.
On appeal, Theresa argued that her statements that McNabb was a pedophile are true because he has a 2006 conviction. However, all of the documents that she cited were acts that occurred more than ten years earlier. Furthermore, Theresa's social media posts were not confined to relating details from past events; rather, she explicitly and implicitly asserted that she had actual knowledge that McNabb continued to violate the law consistent with her beliefs that sex offenders "always reoffend", and that Redmond was facilitating his activities.
The Court held that a fact finder could find that other statements made by Theresa expressing her strong belief that McNabb posed a danger to the community, and that convicted sex offenders should not be employed at funeral homes amounted to rhetorical hyperbole or exaggerated commentary. These statements did not amount to an assertion of fact. But, since the four statements analyzed were defamatory as a matter of law, they were sufficient to uphold the trial court's order granting Redmond's motion for summary disposition on these issues.
As a published opinion, Redmond Funeral Home is an important case in providing guidance as to what constitutes defamation per se in the age of the internet. If you chose to publish defamatory statements as factual assertions on social media, it can be used against you in court. While it remains true that "everyone is entitled to their opinion", Theresa didn't couch the four cited accusations as opinions. The statements made were assertions of fact and actual knowledge that McNabb was actively and presently looking to commit crimes at Redmond's Funeral Home with Redmond's knowledge and support. Redmond Funeral Home is an important decision and a cautionary tale for users of social media such as Facebook, Twitter and blogs to distinguish the difference between what they think and what they know when posting on the internet.
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