KONIAK v. HERITAGE NEWS (ON REM)

ON REMAND

PER CURIAM.

Pursuant to an order of the Supreme Court, this matter was remanded to us for reconsideration in light of Rouch v Enquirer News of Battle Creek (After Remand), 440 Mich. 238; 487 N.W.2d 205 (1992). 441 Mich. 858 (1992). Originally, we reversed the trial court's order granting summary disposition to defendants pursuant to MCR 2.116(C)(10) with regard to both claims in this defamation action. Koniak v Heritage Newspapers, Inc, 190 Mich. App. 516; 476 N.W.2d 447 (1991). On remand, we affirm the trial court's grant of summary disposition regarding both claims.

After considering the elements of libel under Michigan law in light of the requirements of the First Amendment of the United States Constitution, the Supreme Court in Rouch applied the substantial truth doctrine in determining whether the defendant had published a materially false article about a defamation case involving a private plaintiff and a media defendant in a matter of public interest or concern. Under the substantial truth doctrine, the test to determine material falsity is whether the evidence supports a finding that the "sting" or "gist" of the article would have a different effect upon the mind of the reader than would the literal truth. Rouch, p 259. Under the test, minor differences are immaterial if the literal truth produces the same effect. Id. The Court noted that the substantial truth doctrine is typically invoked where there are minor inaccuracies and "technically incorrect or flawed use of legal terminology." Id., p 260. Although the popular sense of a legal term may not be technically accurate, the Court stated that "if technical and common parlance yield different interpretations of the same word, the constitutionally required breathing space affords protection of the writer's choice." Id., p 265. To determine whether the plaintiff carried the burden of showing material falsity under the substantial truth doctrine, an independent review of the entire record is conducted. Id., p 258.

In Rouch, the Court concluded that the evidence was not sufficient to establish material falsity because the gist or sting of the article was not changed by various "minor inaccuracies," such as the statements that the plaintiff had been identified by his children as the assailant, when in fact it was his former stepchildren who had identified him, and that the plaintiff was arrested and charged with sexual assault, when he was in fact merely arrested. Although the Court conceded that the use of "charge" in its technical formal sense might be considered inaccurate, this misuse could not serve as a basis of liability, because it "would totally eviscerate the `breathing space' that the constitution requires in order to protect important First Amendment rights." Id., p 268.

Applying the Rouch analysis to this case, we believe that defendants' article stating that plaintiff had allegedly assaulted his stepdaughter thirty to fifty times since the spring of 1985 was close enough to the truth about the nature of the criminal sexual conduct charges to justify summary disposition pursuant to MCR 2.116(C)(10) with regard to that cause of action. Although the record of the preliminary examination revealed that the complainant testified that the plaintiff assaulted her only eight times, we are persuaded that in light of Rouch the gist or sting of the article was substantially accurate. As the trial court noted in this case, whether plaintiff assaulted his stepdaughter once, eight times, or thirty times would have little effect on the reader. After an independent review of the entire record, we conclude that defendants are not liable because the inaccurate statements reporting the criminal sexual conduct charges constituted minor differences that do not support a finding of material falsity.

With regard to the article describing the assault and battery plea proceedings, we now believe that summary disposition was properly granted. A plea of nolo contendere (no contest) is an implied confession of guilt and, for purposes of sentencing, is equivalent to a plea of guilty. MCL 767.37; MSA 28.977. The only difference, in theory, between a plea of nolo contendere and a plea of guilty is that, unlike a plea of guilty, a plea of nolo contendere cannot be used in evidence against the defendant as an admission in a subsequent civil or criminal case.

We believe it is logical for a reporter to conclude, and accurate for an article to state, that by pleading nolo contendere to the charge plaintiff was thus "willing to accept the consequences of the conviction." The plaintiff pleaded nolo contendere pursuant to a plea bargain, and by offering the plea he accepted the bargained-for consequences. The fact that the trial court did not formally accept the plea and place the defendant on six months' probation, but, rather, took the plea under advisement for six months, is a subtle distinction not readily apparent to a layman. We believe this is a typical example of a "technically incorrect or flawed use of legal terminology" that should cause us to invoke the substantial truth doctrine. This was a minor inaccuracy that did not materially alter the gist or sting of the article. Arguably, the defendant pleaded nolo contendere, and was placed on an informal probation, and a special term of the probation was a requirement that there be "no contact between the defendant and the complainant for a period of six months." Presumably the trial court would have accepted the plea and imposed some additional penalty if the defendant had violated the terms of the probation.

The jacket of the criminal file specifically states that plaintiff had pleaded nolo contendere to the assault and battery charge and the trial court's memo, inserted in the file, reflects that the plea was tendered as part of a plea bargain. The court's memo goes on to state that the

Court reviewed statements and police reports with no objection from defense for purpose of establishing factual basis, — after review by Court plea taken under advisement for a period of six months, if no further charges, dismiss. Bond continued. Appearance required.

The article was written immediately after the judge issued his ruling, and before the six-month period had expired. We believe the memo is ambiguous and a reporter might conclude that defendant would be dismissed if there were no further charges, and not realize that the offense itself would be dismissed.

In short, we cannot say that the article had a different effect upon the mind of the reader than would the literal truth. A journalist's report need not describe legal proceedings in technically precise language. This article was substantially true, and would not tend to prejudice the plaintiff any more than a similar article using technically precise language describing the literal truth.

Affirmed.