160 W. Fort Street, Detroit, MI 48226 | phone: 313-749-9979 | fax: 313-496-5445 | hfink@freepress.

com

Herschel Fink
Legal Counsel

May 3, 2019

Thomas W. Cranmer, Esq. Via Email and Mail

Miller Canfield, PLC
840 W. Long Lake Road, Suite 150
Troy, MI 48098

Re: Detroit Free Press

Dr. Sonia Hassan
Dear Mr. Cranmer:

The essential Constitutional requirement for a defamation claim involving a matter of

public interest, such as you threaten in your April 23 letter, is a “materially false” statement of
fact. You never identify one in your lengthy retraction demand on behalf of Dr. Sonia Hassan
regarding the Free Press stories of April 4 and 10, 2019 concerning Mayor Mike Duggan and the
Make Your Date (“MYD”) maternal health project.

Although much has been written and said about that over the past month, the Free Press’
coverage is succinctly summarized in the first paragraph of its first story on April 4, 2019:

“A charitable program run by a woman with close ties to Detroit Mayor

Mike Duggan received $358,000 in city grants and also benefitted from a
fundraising campaign that a top city official spearheaded at the mayor’s
direction, the Free Press has learned.”

That statement, and every single element in it, is undeniably true. The financial or
governance structure of the Make Your Date initiative (and how it evolved over time) is
irrelevant, although it is the sole focus of your letter. As the Free Press wrote in one of its most
recent reports on April 26:

“…representatives for the mayor’s office said the city has never
provided money directly to the Make Your Date nonprofit, insisting it is
dormant. Make Your Date is administered as a Wayne State program, city
and university officials said.

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 “However, the program is promoted as a nonprofit on a Wayne State
fundraising website and in fundraising materials. Make your Date is
registered as a nonprofit in state and federal reporting documents.
Regardless of how the program operates, contracts reviewed by the Free Press
show the money from the city went to Make Your Date.”

Make Your Date itself, whatever its structure, as well as the City and Mayor Duggan,
have long confused and conflated the original nonprofit corporation, set up in 2014 by Dr.
Hassan, which your letter claims is inactive, with the active Make Your Date program that
Wayne State claims to act for as “fiduciary” and administrator. The Free Press stories have
noted this conflation and pointed out how Make Your Date itself, the city and WSU throughout
their numerous promotional and fundraising activities, have referred to the program as a
“nonprofit” charitable organization, a 501(C)(3), utilized the same federally registered service
mark, and ignored any distinction. As a practical matter, there is none.

For example, Dr. Hassan’s original Make Your Date nonprofit corporation, which she
established, and which continues to exist, registered a federal service mark (No. 5,389,667),
which was granted by the U.S. Patent and Trademark Office on January 30, 2018. The “Make
Your Date” service mark includes a distinctive graphic, described in the federal registration as “a
graphic heart design superimposed within a pair of infant feet. The heart appears to be presented
in a dual offset design. The words ‘Make Your Date’ appear to the right of the graphic heart
design.”

The WSU-administered Make Your Date Program, which Dr. Hassan also serves as
director, utilizes that same service mark on all its promotional and fundraising materials.

The fact remains, as the Free Press story states, “regardless of how the program operates
… the money from the city went to Make Your Date.” Claiming there is a defamatory
distinction between the non-profit that Dr. Hassan established with Mayor Duggan’s assistance,
and the nonprofit program that it morphed into, which is currently administered with WSU and
with Dr. Hassan as its director is just a “strawman” issue (“an imaginary argument set up only to
be easily confuted”).

Your letter even misleadingly claims that the Make Your Date nonprofit corporation
established by Dr. Hassan “never had any association whatsoever with the City of Detroit.” The
story, however, details the numerous associations. The WSU program wouldn’t exist without the
original nonprofit.

The one constant or “association” between the Make Your Date corporation set up by Dr.
Hassan in 2014 and the Make Your Date program she currently directs with WSU providing
“fiduciary” services, is Dr. Hassan herself. It was Mayor Duggan who publicly stated he
“handpicked” Dr. Hassan to direct the city’s full-term birth initiative. The first Free Press story,

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documented by public records and emails, spells out in detail the relationship that your letter
claims never existed:

An email obtained by a Freedom of Information Act request shows that

Duggan ordered the city’s chief development officer to raise money for Make
Your Date, which is a nonprofit medical organization according to state and
federal records, where Dr. Sonia Hassan serves as president and director. ***
But the city’s financial support, attempted fundraising campaign and Duggan’s
repeated promotion of Make Your Date raises ethics questions about whether the
mayor used city resources to benefit Hassan’s program. *** But the records
obtained in late March revealed a significant commitment of resources from the
development office at the mayor’s direction. *** The fundraising campaign
Duggan ordered began with an email introduction between the city’s development
officer and Hassan. The email’s subject line was “Make Your Date
Fundraising.” *** The fundraising effort was eventually deemed unnecessary,
officials stress, but not before several city staffers collaborated on the campaign.
The effort did not result in any donations. However, Make Your Date has raised
more than $1.5 million since its inception. *** In addition, the mayor’s office
vehemently denied the city ever provided money directly to the Make Your Date
nonprofit. The city contends Make Your Date is administered as a Wayne State
University program, sentiments echoed by university officials. *** “All funding
went solely to the institution of Wayne State University,” Wiley wrote in an email.
*** Donors at the 2017 annual gala were directed to make their checks payable
to Make Your Date Detroit, “a 501(c)(3) organization,” which is the IRS
designation for a nonprofit. *** Make Your Date’s own website describes its
purpose as: “The Wayne State University School of Medicine is raising funds to
support Make Your Date Detroit, a free program to help pregnant women ensure
a safe delivery. Mothers-to-be can take advantage of this powerful and free
nonprofit program, offered through the City of Detroit, for assistance in
delivering healthy full-term babies on or after their due date.” *** Duggan
wasn’t just supportive of an effort to tackle preterm births – he approached WSU
about creating a program to address it, according to a statement from the
mayor’s office. *** Ultimately, the city’s fundraising efforts for Make your Date
did not raise any money. *** “After those initial meetings, Wayne State
philanthropy staff concluded they already had strong relationships with the
potential funders and did not need (the city) to solicit funds for ‘make Your
State,” Wiley said.

Your “strawman” is the false claim that the Free Press was referring to Dr. Hassan’s
“original” MYD nonprofit corporation, and not Dr. Hassan’s subsequent WSU backed MYD
nonprofit program. But, it’s a distinction without a difference.

Similarly, your letter (p.7), makes the claim that “Dr. Hassan was defamed by the Free
Press’ intentional misrepresentation that the Make Your Date Program was being funded and
run, not by Wayne State University, but by a dormant non-profit corporation headed by Dr.
Hassan.” The claim is preposterous considering the extraordinary detailing of the relationships
by the Free Press in its stories, and notwithstanding Dr. Hassan’s refusal to be interviewed.

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 Again on p. 8, you trot out your strawman to falsely claim, “What the Free Press
reporters did was reprehensible – they took multiple references to the Make Your Date program
and falsely represented to the public that those references were to the Make Your Date
nonprofit.” And, nonsensically, you add, “The defamation that occurred is a direct result of the
reporters falsely equating the WSU Make Your Date program with the never-activated Make
Your Date nonprofit.” Of course it was activated years ago, and remains so, although you have
also claimed that it is simply “dormant,” or as WSU General Counsel Louis Lessem told the Free
Press, which is quoted in the story, “It is not evident to me that dissolving the corporation would
serve to advance the Program’s ends or benefit those who it serves.”)

Apparently, the magic word here is “program.” You seem to argue that “program” refers
exclusively to the WSU affiliated MYD program founded and directed by Dr. Hassan, while
references to “nonprofit” refer exclusively to the “dormant” MYD corporation which Dr. Hassan
founded, registered a federal service mark for, and public records still reflect her as president.

The question is whether it is equally “reprehensible” for the “program” to continue – as it

does in its gala fundraising and other promotional material – to falsely equate itself with the
federal service mark of the dormant “nonprofit,” and to advertise that “Make Your Date is a not-
for-profit organization,” and “Make Your Date Detroit is a 501(c)(3) organization”?

Your letter makes the groundless claim that the Free Press story “suggests” that Dr.
Hassan benefitted personally from the City of Detroit contributions to Make Your Date. It does
no such thing, and as you acknowledge it stated the opposite; that “Make Your Date used the city
grants for many purposes – nurses’ labor costs, office supplies, computer equipment and
advertising were among the expenses, records show. There has been no suggestion that Make
Your Date or Hassan have misused any funds.”

Finally, you claim that “false allegations that the never-activated nonprofit registered by
Dr. Hassan was the recipient of the city’s funding and support is baseless and libelous, causing
Dr. Hassan enormous public embarrassment.” We all know that is not what caused Dr. Hassan
“enormous public embarrassment.” The Free Press had no role in that, other than to report what
had already been made extravagantly public by others, replete with mobile video displays and
airborne banners.

You also claim that the “embarrassment has been compounded by the fact that Dr.
Hassan has become the subject of a City of Detroit Inspector General (OIG) Investigation into
whether the City of Detroit provided ‘preferential treatment to the Make Your Date non-profit.’”
That frames the issue too narrowly. The question is whether any program run by a person with
whom Mayor Duggan is reputed to enjoy a very personal relationship received preferential
treatment, whether just a “dormant” nonprofit, or a WSU nonprofit “program.” It is the same
question, and there is no distinction.

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 But, let’s get to the point: Dr. Hassan is not the “subject” of the OIG investigation.
That’s Mayor Duggan. It is his ethics that have been questioned, not Dr. Hassan’s, who the story
only lauds for her good works, accomplishments and service. The Free Press has in no way
diminished or questioned that. It has not “defamed” her.

ANALYSIS

The Free Press Stories Are Not ‘of and Concerning’ Dr. Hassan

The U.S. Supreme Court has declared that a defamation claim is “constitutionally
defective” if the allegedly defamatory statements are not “of and concerning” the plaintiff who is
pursuing the claim. New York Times Co. v Sullivan, 376 US 254, 288-89 (1964). See also, Hall
v. Citizens Insurance Company of America, 141 Mich App 676, 685 (1985); Postill v Booth
Newspapers, Inc., 118 Mich App 608, 618 (1982). Where statements are “not ‘of and
concerning plaintiff,’ no defamation action lies.” Dougherty v Capitol Cities Communications,
Inc., 631 F Supp 1566, 1569 (ED Mich 1986).

Any fair reading of the Free Press stories on the Make Your Date controversy reflects
that the criticism is all directed at Mayor Duggan. It is his ethics and potential conflicts that the
Inspector General is examining. No one is questioning Dr. Hassan. While the coverage may be
uncomfortable for her for totally different reasons, there is nothing remotely untrue and
defamatory in the Free Press stories that is of and concerning her. She has no defamation claim
against the Free Press.

Lack of Claimed Falsity Precludes Any Action

The essential element of a defamation action, as noted above, is a materially false

statement of fact, of and concerning the plaintiff. Even if the alleged false statements were of
and concerning her, Dr. Hassan could never maintain a defamation claim without also showing a
materially false statement of fact. You have not done so.

Her constitutional burden is not only to plead and prove material falsity, Philadelphia
Newspapers v. Hepps, 475 U.S. 776 (1986), but, as most circuits have held, to do so by clear and
convincing evidence. Buckley v. Littell, 539 F.2d 882, 789-90 (2d Cir. 1976), cert denied, 429
U.S. 1062 (1977).

In Nichols v Moore, 396 F.Supp.2d 783, 787-8 (E.D. Mich 2005), the federal court, citing
Michigan law, held:

Truth is an absolute defense to an action for defamation, regardless of the

speaker’s motivation. Philadelphia Newspapers, Inc. v Hepps, 475 U.S. 767,
770, 106 S.Ct.. 1558, 89 L.Ed.2d 783 (1986). The Court finds that “‘truth’ means
substantial truth, as the Michigan Court of Appeals has set forth, [i]f the gist, the
sting, of the [statement] is substantially true, the defendant is not liable.” Fisher v

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 Detroit Free Press, 158 Mich. App. 409, 414, 404 N.W.2d 765 (Mich. App.
1987). “[L]iability should not be imposed for slight inaccuracies. Rather, the
Court must examine the sting of the article and its effect on the reader. Minor
differences are deemed immaterial.” Duran v Detroit News, 200 Mich. App. 622,
633, 504 N.W.2d 715 (Mich. App. 1993). (Emphasis added.)

In Collins v Detroit Free Press, 245 Mich App 27 (2001), the Michigan Court of Appeals
emphasized that “for purposes of establishing a prima facie case of defamation, 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,’” (quoting from Masson v New Yorker Magazine,
501 U.S. 496, 517 (1991)). 245 Mich App at 34.

The applicable law confers considerable latitude upon news organizations in reporting on
public affairs, and requires only “substantial,” not literal, accuracy. So long as a literally
accurate account would have no appreciably different effect on the reader, the story will not be
actionable. Rouch v Enquirer & News of Battle Creek (After Remand), 440 Mich 238, 258-260
(1992). See, also, McCracken v Evening News Association, 3 Mich App 32 (1966), Koniak v
Heritage Newspaper (After Remand), 198 Mich App 577 (1993) lv den., 508 NW2d 5500 (1993).
Fisher v Detroit Free Press, 158 Mich App 409 (1987), lv den., 428 Mich 914 (1987), Butcher v
Heritage Newspapers, 190 Mich App 309 (1991), lv den., 439 Mich 89 (1991).

Here, it isn’t even a question of whether the handful of statements in the article that
mention Dr. Hassan were “substantially” true, which they were. They were literally true, and
your letter simply does not claim otherwise. The strawman device of claiming that the Free
Press referred to the wrong Make Your Date organization is transparently frivolous, since they
are synonymous. (And Make Your Date is not Dr. Harran.) The gist or sting of the claimed libel
is the same, regardless of which entity is claimed to be the subject.

Libel Rules of Construction Require that Stories Be Read as a Whole

Basic libel law also requires an allegedly defamatory statement to be viewed in the
context of the entire article, or articles. Taking a sentence or word out of context is not allowed
in determining the defamatory character of the article. A fair reading of the entire article or
articles results in no defamatory meaning.

Dr. Hassan Is a Classic Limited Purpose Public Figure Who Could Not Establish
Constitutional Malice to Prevail in a Public Interest Libel Action

Despite your protestations that Dr. Hassan is “not a public figure” and is purely a private
person, for constitutional libel law purposes you are simply wrong. At least for purposes of
discussing her involvement in maternal health issues and the Make Your Date controversy, she is
the classic “limited purpose public figure.” (There is no need to also analyze whether her
association with Mayor Duggan also makes her an involuntary public figure. She earns the grade
on her own.)

Dr. Hassan’s WSU CV is replete with the makings of a limited public figure. In addition
to her academic and professional achievements, she is clearly a significant player in the Detroit
community, from charities to speeches, to television and newspaper and magazines interviews

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(independent of the current controversy)., and to social affairs. Her fundraising and her
involvement with Mayor Duggan are other indicia of her status.

“The classification of a plaintiff as a public or private figure is a question of law to be

determined initially by the trial court and then carefully scrutinized by an appellate court.”
Marcone v Penthouse, 754 F2d 1072, 1081 n 4 (3rd Cir. 1985), cert den, 106 SCt 182 (1985).
Similarly, Lins v Evening News Assoc., 129 Mich App 419, 431-432 (1983); Buffalino v Detroit
Magazine, 433 Mich 766, 774 (1989). See also the Court of Appeals decision in Hamilton v The
Detroit News, Inc., No. 278989, 2008 WL 3979477, at *1 (Mich Ct App, August 26, 2008),
discussing the indicia of public figure status at Slip Opinion pp. 3-4.

While public figures are not automatically barred from suing for defamation, their right to
do so was sharply limited by the Supreme Court in the seminal case of New York Times v.
Sullivan, 376 U.S. 254 (1964) and numerous subsequent cases so that debate on public issues
would have sufficient “breathing room” and be “uninhibited, robust and wide-open.”

The constitutional requirement for a public figure plaintiff to state a libel claim requires
proof by clear and convincing evidence that the speaker had actual knowledge of falsity or “. . .
in fact entertained serious doubts as to the truth of his publication,” St. Amant v Thompson, 390
US 727, 731 (1968), or had a “high degree of awareness of probable falsity.” Garrison v
Louisiana, 379 US 64, 74 (1964). Later in Bose v Consumers Union of the U.S., Inc., 466 US
485, 511 (1984), the Supreme Court restated the meaning of actual malice:

The burden of proving “actual malice” requires the plaintiff to

demonstrate with clear and convincing evidence that the defendant
realized that his statement was false or that he subjectively entertained
serious doubt as to the truth of his statement.

466 US at 511, n 30.

Michigan decisions are, of course, in accord. In Gaynes v Allen, 128 Mich App 42
(1983), the Michigan Court of Appeals held:

In order to satisfy the “reckless disregard” test of actual malice,

plaintiff was required to present evidence that the article was
published with a high degree of awareness of probable falsity and that
defendants in fact entertained serious doubts as to the truth of the
matters published. Garrison v Louisiana, 379 US 64, 74; 855 SCt
209; 13 L Ed 125 (1964); St. Amant v Thompson, 390 US 727, 731;
88 SCt 1323; 20 L Ed 262 (1968).

128 Mich App at 52.

“The test laid down in New York Times is not keyed to ordinary care; defeasance of the
privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.”
Garrison v. Louisiana, 379 US 64, 79 (1964); New York Times v. Sullivan, 376 US 254, 288
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(1964). Failure to investigate or investigate fully does not amount to reckless disregard. St.
Amant v. Thompson, 390 US 727, 731 (1968); even sloppy investigation is not evidence of actual
malice. Lins v Evening News, supra.

But, this is merely an academic exercise here. There was no false statement of fact in the
Free Press story. Even if there were, however, any false statement would be privileged and
unactionable.

One More Word on the Importance of a Free Press

Earlier this year, Eastern District of Michigan federal Judge Matthew Leitman issued an
opinion that’s worth reading on the importance of the First Amendment, watchdog journalism
and the analysis of libel claims under it (and, I appreciate Judge Leitman citing and relying upon
my Falls and Nichols cases in doing so). In Jones v Scripps Media, Inc., No. 16-CV-12647,
2019 WL 265280 (ED Mich, January 18, 2019), the Court held in dismissing a libel claim
despite the fact that the story contained a factual error (something missing here):

Now more than ever, we depend upon the “free press” to “awaken[] public
interest in governmental affairs” and to “expos[e] corruption among public
officers and employees.” Estes v State of Texas, 381 U.S. 532,539 (1965).
Indeed, “[t]he press plays a unique role as a check on government abuse” and
serves “as a watchdog of government activity.” Leathers v Medlock, 499 U.S.
439, 447 (1991).

Very truly yours,

S/ Herschel P. Fink

Herschel P. Fink
Legal Counsel
Detroit Free Press, Inc.