Scholz v. Delp, 41 N.E.3d 38

Background

Tom Scholz founded the rock band Boston; lead singer Brad Delp died by suicide on March 9, 2007.
The Boston Herald published three entertainment-column articles reporting views that band tensions and the removal of Fran Cosmo from a tour may have contributed to Delp’s suicide; articles relied on interviews with Delp’s ex-wife Micki and unnamed “insiders.”
Scholz sued Micki for defamation; he also sued the Herald and its columnists for defamation and intentional infliction of emotional distress based on the same reported statements. The cases were consolidated; summary judgment was granted for Micki by one judge (later appealed) and for the Herald by another judge on the ground the articles were nonactionable opinion. Scholz sought direct appellate review.
The Superior Court concluded the challenged statements were speculative opinions or statements based on disclosed nondefamatory facts, not verifiable false facts imputing responsibility for Delp’s suicide.
The court also allowed the Herald’s motion for costs; Scholz challenged the reasonableness and allocation of deposition and transcript costs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Herald articles are actionable statements of fact or protected opinion	Scholz: articles (and headline) implied Scholz was responsible for Delp’s suicide and thus asserted defamatory facts	Herald: statements were opinion/speculation based on disclosed facts and cautionary language; not verifiable false facts	Held: Articles are nonactionable opinion/speculation based on disclosed nondefamatory facts; summary judgment for Herald affirmed
Whether use of sources like “insiders” implies undisclosed defamatory facts	Scholz: “insiders” wording implies undisclosed facts tying Scholz to responsibility	Herald: articles disclosed the factual bases (quotes, context, Micki’s views) so no inference of undisclosed defamatory facts	Held: No reasonable inference of undisclosed defamatory facts; nexus between disclosed facts and opinion was apparent
Whether Micki’s statements (as reported) are actionable	Scholz: Micki’s on-the-record statements attributed causation to band tensions and thus defamed Scholz	Micki: her statements were opinions/speculation about Delp’s motives or nondefamatory facts (e.g., Delp was upset)	Held: Micki’s statements likewise nonactionable (opinion or nondefamatory disclosed facts); summary judgment for Micki affirmed
Whether award of costs to Herald was improper or excessive	Scholz: many depositions and transcripts were unnecessary because ruling rested on the articles; costs should be reduced or limited	Herald: deposition and transcript costs were reasonably incurred and may be taxed even if depositions not used at trial	Held: Award of $132,163.89 was not an abuse of discretion; costs properly assessed after evaluation

Key Cases Cited

Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 (trial court summary judgment standard in Massachusetts)
Ravnikar v. Bogojavlensky, 438 Mass. 627 (2003) (elements and fault standards for defamation; public-figure malice rule)
King v. Globe Newspaper Co., 400 Mass. 705 (1987) (distinguishing opinion and fact in defamation law)
Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinion/fact analysis; no wholesale opinion immunity if false factual assertions implied)
Cole v. Westinghouse Broadcasting Co., 386 Mass. 303 (1982) (statements that cannot be proved false are nonactionable)
Lyons v. Globe Newspaper Co., 415 Mass. 258 (1993) (weight to cautionary language and context in opinion analysis)
Dulgarian v. Stone, 420 Mass. 843 (1995) (opinions based on disclosed nondefamatory facts are protected)
Howell v. Enterprise Publ. Co., 455 Mass. 641 (2010) (context and rhetorical style inform whether audience perceives opinion)
Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993) (interpretation of motives is speculative and nonactionable)
Yohe v. Nugent, 321 F.3d 35 (1st Cir. 2003) (statements of pressure or motive not necessarily defamatory)
Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (emotional-distress claims derivative of defamation principles; parody/opinion protection)