Armstrong v. Shirvell, 2015 U.S. App. LEXIS 1782 (6th Cir. Feb. 2, 2015):

Andrew Shirvell, an alumnus of the University of Michigan and a former Assistant Attorney General for the State of Michigan, engaged in an online and in-person "campaign" against Christopher Armstrong, the former president of the University of Michigan's student council. Shirvell appeals many aspects of the proceedings in the district court, which resulted in the jury finding him liable for defamation, false light invasion of privacy, intentional infliction of emotional distress, and stalking. Most of Shirvell's objections lack merit, and we therefore affirm in part. The district court committed plain error, however, in its treatment of the compensatory damages for false light. [*2]  We therefore reverse in part, vacate the judgment, and remand with instructions for the court to enter judgment in Armstrong's favor for the reduced amount of $3.5 million. This represents the total sum that the jury awarded, less the damages for false light.

I.

In 2010, Christopher Armstrong was elected president of the student council at the University of Michigan in Ann Arbor. The student council does not make University policy, but it works with, reports to, and advises the University on a range of issues.

Andrew Shirvell, a 2002 graduate of the University, worked as an Assistant Attorney General for the State of Michigan. In early 2010, Shirvell learned via an online newspaper report of Armstrong's election and also learned that Armstrong was openly gay. Shirvell began posting on his Facebook page about Armstrong, whom he had never met. Among other comments, Shirvell called Armstrong "dangerous" and a "radical homosexual activist" and a "major-league fanatic who is obsessed with imposing the radical homosexual agenda on the student body." Shirvell also set up a Facebook "fan page," entitled "Michigan Alumni and Others Against Chris Armstrong's Radical MSA Agenda," which purported [*3]  to "expos[e] the real Chris Armstrong." He urged others, via Facebook and email, to join the "pro-family" group in order to "fight[] against Satan's representative." Shirvell took to his personal Facebook page to express outrage when Facebook deleted his "fan page" about Armstrong. He wrote: "I will not be SILENCED by the likes of Armstrong. You're going down fruity-pebbles." His self-proclaimed "outrage" continued from there: "I better not see Chris Armstrong at MY [church] parish in Charlotte - that's all I got to say." He claimed that Armstrong was scared of him and--in commenting on another story involving gay students--"remember[ed] the good old days when 'guys' like this would get their asses kicked at school."

Not content with Facebook posting, Shirvell then established a blog entitled "Chris Armstrong Watch," which discussed Armstrong's "character and his agenda and other items." The blog purported to be a "watch site," providing "testimony" and "an expose of the REAL Chris Armstrong." The blog was accessible to the public from April 2010 until September 30, 2010, when Shirvell removed it from public view. The blog featured a picture of Armstrong's face next to a swastika. It called Armstrong "a [*4]  radical homosexual activist, racist, elitist, & liar." It attributed to Armstrong a "Nazi-like hatred of the First Amendment," explaining, "Much like Nazi Germany's leaders, many of whom were also homosexuals, Armstrong believes that any and all opposition must be suppressed by whatever means necessary." The blog further stated that Armstrong "mocks Christians," and called Armstrong an "anti-Christian bigot[]." One entry claimed that Armstrong attended an event "whose intent was to encourage underage drinking," and that Armstrong "spent most of this time [after the semester ended] engaging in underage binge-drinking." The blog made repeated references to Armstrong's participation in--and facilitation of--underage drinking. It alleged that Armstrong showed contempt toward law enforcement. Shirvell--re-posting online conversations between Armstrong and another student at the University--claimed that these conversations revealed Armstrong's "tendency toward sexual promiscuity," and thus labeled Armstrong "a perverted homosexual exhibitionist." Shirvell interpreted another online conversation as demonstrating that Armstrong had previously hosted an "orgy" in his college dormitory, at which "homosexual shenanigans" [*5]  were rampant. Days after this entry, Shirvell authored another blog post proclaiming: "Armstrong engages in sexual escapades at 'churches & children's playgrounds.'" He linked Armstrong to "possible involvement" in violent attacks against places of worship in the wake of California's passage of Proposition 8. He alleged that Armstrong used his welcome to freshmen as "a thinly veiled attempt to cause sexually confused, and perhaps some impressionable, 17-and-18-year-olds to experiment sexually with members of their own gender."

Shirvell also reported on an alleged romantic relationship between Armstrong and another student. Shirvell claimed that the other student was "not out of the closet," but that Armstrong "basically seduced" the student and quickly became obsessed with him. Explaining that the other student, "[t]hanks in large part to Armstrong's influence . . . has indeed morphed into a proponent of the radical homosexual agenda," Shirvell called Armstrong "a very, very twisted sick individual who is manipulative and cunning in a most devilish way."

Shirvell also appeared on television to rant about Armstrong. In September 2010, in an interview on local station WXYZ, he said that Armstrong [*6]  held the presidential position in order "to promote special rights for homosexuals at the cost of . . . heterosexual students." Shirvell later appeared in front of a national audience with CNN's Anderson Cooper. Standing by his blog and Facebook posts, Shirvell told Cooper that he had "gotten stuff from third-party sources," and argued that Armstrong was not giving interviews because "he can't defend what's on the blog." When Cooper suggested that Shirvell was a bigot, Shirvell retorted, "The real bigot here is Chris Armstrong." Two days later, back before a national audience on Comedy Central's The Daily Show, Shirvell said that Chris was "acting like a gay Nazi," and that this explained his decision to include a picture of Armstrong next to a swastika on the blog.

Across these various forums, Shirvell attempted to justify his commentary by pointing to several purportedly legitimate concerns. Shirvell, a proud Roman Catholic, apparently feared that Armstrong would discriminate against Christian, pro-life, and pro-family people. In one post, Shirvell warned that these groups would be "violently persecuted." Second, he claimed that "Armstrong's radical agenda includes mandating 'gender-neutral' [*7]  housing" at the University, an initiative that Shirvell opposed. Third, he believed that Armstrong would use his platform as president to "promote the homosexual lifestyle." Finally, Shirvell opposed Armstrong's membership in a student group known as the Order of the Angell, an organization that--according to Shirvell--was known as "the University of Michigan's version of the KKK," and had "a well-documented history of racism and elitism." Shirvell claimed that Armstrong lied before the election about his intentions to join the group.

In addition to broadcasting his views, Shirvell tracked Armstrong down in Ann Arbor. At first, Shirvell posted flyers around campus and in students' mailboxes. He soon discovered Armstrong's off-campus residence and made an appearance at a party there. On several occasions, he marched up and down the street outside Armstrong's house, protesting. Fearing for his safety and that of his roommates when they needed to leave their home, Armstrong called the campus Department of Public Safety and received an escort. Shirvell later followed Armstrong to two campus events in the space of a day, holding a sign that branded Armstrong a racist liar and advertised the [*8]  Chris Armstrong Watch blog. On one occasion, Shirvell stood outside Armstrong's residence while Armstrong was hosting a party, called police to complain about the noise, then filmed the ensuing proceedings and posted about the party on his blog. On one occasion, while Armstrong was speaking at a rally, Shirvell heckled him and took pictures of him. After discovering online that Armstrong planned to attend a friend's birthday party, Shirvell went, uninvited, to the party. Armstrong and his friends became concerned.

Shirvell approached students outside of an Ann Arbor night club on one occasion--while holding a sign saying "Chris Armstrong is a racist liar," and quizzed them about their online conversations. Shirvell told one student that he planned to go to her house the following day because he had heard she was hosting a party. The friend, afraid that Shirvell might endanger her guests, decided to cancel the party. Another time, Shirvell learned that Armstrong's friends were celebrating a birthday at a bar. He showed up at the bar, then followed the group to another bar around a mile away. When confronted, he lied about his identity, then asked for Armstrong. Shirvell believed Armstrong [*9]  was supposed to be with the group, and produced a printed Facebook invitation to prove it.

Shirvell continued to monitor Armstrong's activities even while Armstrong was off campus. In the summer of 2010, Shirvell learned that Armstrong was working as an intern in Washington, D.C., in the office of then-Speaker Nancy Pelosi. In a blog post entitled "Pelosi's Office Reconsiders Armstrong's Internship; Currently Investigating His Ties to Racist Student Group," Shirvell explained that he personally contacted a Pelosi aide, provided him with documents about Armstrong's membership in the Order of the Angell, and was assured that the aide would investigate further. In several phone calls and messages to Pelosi's office, Shirvell accused Armstrong of being a racist and of having lied to minority students' faces.

University authorities were concerned about Shirvell's actions. Beginning in June 2010, University police reports detail Shirvell's ongoing harassment of Armstrong. Ann Arbor police also became involved. In July 2010, police asked Shirvell to stop contacting Armstrong, but Shirvell continued, undeterred. In the fall of 2010, the University police issued Shirvell a trespass warning, banning [*10]  Shirvell from the University campus. The warning was later modified, allowing Shirvell onto campus, but still requiring him to avoid contact with Armstrong. The police were familiar with peaceful protests on campus but believed Shirvell's conduct was different. The Deputy Chief of the University police testified that the warning was necessary because Shirvell was "obsessed with" Armstrong, and was perceived as a threat to him. Despite this, the prosecutor's office declined to issue a criminal warrant against Shirvell. The Deputy Chief believed that Shirvell's sole reason for focusing on Armstrong was "that he was against him being gay." Even at the time of trial--after Armstrong had graduated and the trespass warning had expired--the Deputy Chief remained concerned about Armstrong's safety.

In April 2011, Armstrong sued Shirvell in Michigan state court for defamation, intentional infliction of emotional distress, abuse of process, false light, intrusion, and stalking. Shirvell removed the case to federal court. Armstrong later dismissed the abuse of process claim and the court granted summary judgment on the intrusion claim. The court denied Shirvell's motion for summary judgment on the [*11]  remaining claims. Armstrong requested that Shirvell retract certain statements, but Shirvell refused.

A jury trial occurred in August 2012. Shirvell moved for judgment as a matter of law at the close of Armstrong's evidence and renewed the motion at the close of all evidence. The court took the motions under advisement. The jury found Shirvell liable on all counts. On the defamation claim, the jury found that Shirvell made some of his defamatory statements negligently and made others with actual malice. The jury marked on the verdict form the statements that were made with actual malice and the ones that were made with negligence and also indicated that eleven specific statements constituted defamation per se. The jury awarded $4.5 million in total damages.²

2   The jury awarded $750,000 in compensatory damages and $500,000 in exemplary damages for defamation, $1,000,000 in compensatory damages for casting Armstrong in a false light, $1,750,000 in compensatory damages for intentional infliction of emotional distress, and $100,000 [*12]  in compensatory damages and $400,000 in exemplary damages for stalking.

Thereafter, the district court entered an order denying Shirvell's oral motion for judgment as a matter of law. The court entered judgment for Armstrong for $4.5 million plus interest. The court also denied Shirvell's post-judgment motion for judgment as a matter of law and his motion for a new trial or remittitur.

Shirvell filed a timely notice of appeal. He brings a litany of challenges, attacking the sufficiency of the evidence on several claims and many of the district court's legal rulings. We address each challenge in turn.

***

Shirvell also challenges the exemplary damages awards for both stalking and defamation.⁸ Again, Shirvell did not waive these arguments entirely, as he did not invite the district court's alleged errors, but he also failed to specifically object to the court's treatment of the exemplary damages awards at trial.⁹ We therefore review for plain error. See Reynolds, 184 F.3d at 594. We hold that neither the district court's handling of the exemplary damages for defamation nor its instructions on the exemplary damages for stalking constitute plain error.

8   Armstrong meets the basic state law requirements for recovery of exemplary and punitive damages. See Mich. Comp. Laws § 600.2911(2)(b); Peisner v. Detroit Free Press, Inc., 364 N.W.2d 600, 606 (Mich. 1984). He requested a retraction and gave Shirvell a reasonable time to retract his statements. As discussed, Armstrong also demonstrated that Shirvell acted with actual malice.

9   As discussed, after the parties each filed proposed instructions and objected to each other's proposals, they acquiesced to some extent in the district court's plan to use the Michigan's Model Civil Jury Instructions. See supra n.6. Here, Shirvell [*52]  did not invite the error because the district court confused punitive and exemplary damages in a manner inconsistent with the Michigan Model Civil Jury Instructions. Hence, even though Shirvell did not specifically object to the offending instruction, he also did not affirmatively waive his objection.

In Michigan, exemplary damages are "a species of 'actual' (i.e., compensatory) damages awarded to compensate plaintiff for the increased injury to feelings directly attributable to defendant's fault." Peisner, 364 N.W.2d at 603. Punitive damages--which punish the defendant--are available only when the legislature has expressly authorized them. Gilbert v. DaimlerChrysler Corp., 685 N.W.2d 391, 400 (Mich. 2004). The legislature has expressly authorized punitive damages for defamation, Mich. Comp. Laws §§ 600.2911(2)(b), but has not done so in the case of stalking. See id. § 600.2954 (authorizing exemplary damages for stalking, but not punitive damages). The district court did not explicitly instruct the jury that it could award punitive damages on any claim, and no punitive damages line appears on the verdict form.

The district court's jury instructions with regard to damages are not an example of clarity. The court first discussed exemplary damages in the context of the defamation claim and arguably defined them correctly. [*53]  Then the district court began to discuss exemplary damages in the context of the stalking claim and gave a muddled instruction that used the words "punish" and "punitive" and mixed concepts of punitive and exemplary damages. The verdict form contained a line only for the possible award of exemplary damages and, as we have noted, did not mention punitive damages.

There is additional ambiguity in the jury instructions. Read differently, the defamation instruction was not correct either. Even though we interpret the use of the word "punish" to apply to the stalking instruction that begins immediately after it, others could read that paragraph as a transitional one that applies to exemplary damages for both defamation and stalking.

Whatever interpretation is given to the jury instructions, the jury instructions relating to exemplary damages are erroneous because they mix two forms of damages, one of which was not before the jury. We decline to reverse, however, concluding that they do not rise to the level of plain error. Our power to review a claim based on plain error "is discretionary and should be exercised only in those situations in which the failure to do so would result in a manifest [*54]  miscarriage of justice." Finch v. Monumental Life Ins. Co., 820 F.2d 1426, 1432 (6th Cir. 1987) (internal quotation marks omitted). Plain error requires "an obvious and prejudicial error." See Reynolds, 184 F.3d at 594 (internal quotation marks omitted). The burden is on the party claiming error to demonstrate that the error is so severe that he would have prevailed had the error not occurred. See Puckett v. United States, 556 U.S. 129, 135 (2009) ("[The appellant] must demonstrate that the error 'affected the outcome of the district court proceedings.'" (quoting United States v. Olano, 507 U.S. 725, 734 (1993)); Mesman v. Crane Pro Servs., 512 F.3d 352, 357 (7th Cir. 2008) (explaining that the error must have been "so strong that we can say that had it not been for an erroneous instruction [they] would surely have prevailed at trial"). In exercising our discretion, we also consider "the costs of correcting an error." Alsobrook v. UPS Ground Freight, Inc., 352 F. App'x 1, 3 (6th Cir. 2009) (quoting Fed. R. Civ. P. 51 advisory committee's note (2003)).

Here, it is unclear what effect, if any, the district court's error had on the jury's verdict. The court had given a correct definition of exemplary damages immediately before the errors in the instructions occurred, whether or not the erroneous language was intended to apply to stalking only or to both stalking and defamation. The stalking verdicts--both of compensatory and exemplary damages--were relatively modest compared with the jury's verdicts on other claims. And the court [*55]  never instructed the jury specifically that punitive damages were an option on any claim.

And importantly, the costs of correcting the district court's error with respect to the stalking verdict are relevant. Here, the costs of correcting the error would be extreme. When we reverse based on district-court error, we "must consider whether 'it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.'" Yehia v. Rouge Steel Corp., 898 F.2d 1178, 1184 (6th Cir. 1990) (quoting Gasoline Prods. v. Champlin Refinin Co., 283 U.S. 494, 500 (1931)). The exemplary damages issue in this case is intertwined with the compensatory damages issue. Exemplary damages compensate the plaintiff for the increased injury to his feelings due to the defendant's fault. Peisner, 364 N.W.2d at 603. The new jury would therefore need to distinguish between the injuries included in the compensatory damages from the increased injuries to be provided as exemplary damages. The issues of exemplary and compensatory damages--along with the issue of Shirvell's fault for the stalking--are not distinct and separable. A new trial would need to encompass all of them. A significant amount of evidence would have to be presented to demonstrate the circumstances of the stalking and the damages that [*56]  Armstrong sustained as a result. Indeed, it would be impossible to present the evidence of stalking in a vacuum. Essentially, the whole case would be retried. This would entail significant costs for the parties, the court, and others involved in the process. Moreover, our disposition of this matter does not result in any injustice to either party that we can discern--and certainly not a manifest one.

Accordingly, we decline to reverse for plain error and affirm the exemplary damages award for stalking.

With respect to the exemplary damages for defamation, Shirvell again failed to object, so plain error review applies. In this context, there was no plain error because punitive damages are available for defamation. Thus, to the extent that the jury might have included some amount intended to punish within its $500,000 award of "exemplary" damages for defamation, this was permissible. Even if read to contain error in the defamation instruction, the instructions are unlikely to have led to a substantive problem with the damages award. Thus, the error was not prejudicial. See Reynolds, 184 F.3d at 594. Moreover, the same concerns about costs that exist with a retrial of the stalking damages apply equally to the defamation [*57]  claim.

Shirvell argues, however, that any punitive element to the $500,000 "exemplary" damages award for defamation is excessive, and thus unconstitutional.¹⁰ He argues that the district court should have remitted the exemplary damages award for this reason. A punitive damages award violates the Due Process Clause of the Fourteenth Amendment if it is "grossly excessive" in relation to the state's interests in punishment and deterrence. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996). Three factors are relevant in determining whether punitive damages are excessive: "'(1) the degree of reprehensibility of the conduct; (2) the disparity between the harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages and the civil penalty imposed in comparable cases.'" Sykes v. Anderson, 625 F.3d 294, 322-23 (6th Cir. 2010) (quoting Gibson v. Moskowitz, 523 F.3d 657, 664 (6th Cir. 2008)).

10   Shirvell's argument about the constitutionality of the exemplary damages applies equally to the exemplary damages awarded for stalking, to the extent that those included any punitive element. However, we do not consider those here because we have already held that the suggestion of a punitive element in the stalking context constituted error, albeit not plain error. Even if we were to consider the constitutionality of the stalking damages in this section, we [*58]  would hold that they were not excessive.

Even assuming that the jury awarded the entire $500,000 "exemplary" damages award as a punitive sum, the award here was not excessive. "Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." BMW, 517 U.S. at 575. Shirvell's conduct here was highly reprehensible. It involved an ongoing pattern of intentional misconduct. While Shirvell claimed that his conduct was political in nature, it was in fact highly personal. It was instigated by, and largely focused on, Armstrong's sexual orientation. Although Shirvell claimed that his only goal was to persuade Armstrong to resign his position, Shirvell's conduct was grossly excessive, reaching far beyond Armstrong's leadership and agenda and striking at the core of his personal life. It resulted in--and was calculated to result in--distress and intimidation, not just for Armstrong, but also for his family and friends.

Next, there was a "reasonable relationship" between the actual and punitive damages. See BMW, 517 U.S. at 581. As discussed, Armstrong suffered significant harm. He was awarded $750,000 in compensatory damages for defamation, 150% of the [*59]  punitive damages award. See id. ("[E]ven though a punitive damages award of 'more than 4 times the amount of compensatory damages' might be 'close to the line,' it did not 'cross the line into the area of constitutional impropriety.'" (quoting Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24 (1991)). This court has previously affirmed punitive damages totaling more than the actual damages in a defamation case. See Glennon v. Dean Witter Reynolds, Inc., 83 F.3d 132 (6th Cir. 1996) (affirming a punitive award of $750,000 and $728,250 in compensatory damages because an arbitration panel afforded meaningful review of those awards).

Glennon also demonstrates that the punitive damages award in this case was not excessive in relation to awards in similar cases. The defendant in that case, a securities dealer and the plaintiff's former employer, falsely stated that the plaintiff, a former branch manager, was "under internal review for fraud or wrongful taking of property, or violating investment related statutes, regulations, rules or industry standards of conduct." Id. at 135. Shirvell's conduct in this case was at least as reprehensible as the employer's conduct in Glennon. Shirvell falsely accused Armstrong of committing serious crimes, and harmed his reputation in ways that would affect his social life and his career prospects. [*60]

The application of the three BMW factors indicates that the award of exemplary damages, even if it contained punitive elements, was not constitutionally suspect. We therefore affirm the award.