Lead Opinion
Mаjority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
Dissent: JABAR, J.
[¶ 1] Bruce and Dennis Plante appeal from the entry of a summary judgment in the Superior Court (York County, Douglas, J.) in favor of Ronald P. Long on their defamation action. The court concluded that the Plantes failed to make the necessary prima facie showing that Long acted with actual malice. We affirm the judgment.
I. BACKGROUND
[¶ 2] The following facts are taken from the parties’ statements of material fact and reflect the summary judgment record in the light most favorable to the plaintiffs as the “parties] against whom summary judgment was entered.”
[¶ 3] Bruce is the Assistant Fire Chief for the Town of Berwick. He also works as a delivery driver for Gagnon Propane and previously served on the Town’s Board of Selectmen. Dеnnis is the Fire Chief for the Town of Berwick. Long is a resident of Berwick and has a history of publicly criticizing the Berwick Fire Department, including its leadership, and opposing proposed fire department projects. The plaintiffs have both conceded that they are public figures.
[¶4] On October 27, 2011, Long was jogging with his wife on Worster Road in Berwick. Bruce, who was driving a propane truck down that road, “pulled wide around” Long, who waved. Bruce perceived Long’s wave and facial expression as harassing and was “upset.” He pulled the truck to a stop about 150 feet from Long and, while “hanging on the edge of the truck” and raising his voice due to the distance between them, twice yelled to Long, “[H]ey, are you looking for me?” After Long replied that he was not looking for Bruce and that he had “just [been] waving,” Bruce responded,' “[D]on’t bother.” Bruce got back in the truck and drove away. Although he had intended to “let Mr. Long know he wanted nothing to do with him,” Bruce had not intended to “instigate a fight.”
[¶ 5] The next day, Long sent an email to the chief and a captain of the Berwick Police Department alleging that Bruce was harassing him and recounting the events of
[¶6] At some point,
[¶ 7] On April 24, 2012, Long sent an email to the Berwick Board of Selectmen and others, stating in part that the Plantes had been following and harassing people. On May 23, 2012, Long sent an email to the Berwick police chief and copied another individual. The email stated in part that Bruce and Dennis had “lied, followed, intimidated, and harassed people to get ‘Their Cause’ pushed through.”
[¶ 8] In June of 2013, the Plantes filed a complaint against Long containing eight counts of libel and one count of punitive damages. Over the course of nearly three years, the parties engaged in a protracted discovery process and motion practice. Although they failed to reach complete agreement through alternative dispute resolution, they did stipulate to the dismissal of Counts' 1 and 7 of the complaint. In May of 2016,' Long filed a motion for summary judgment on the. remaining seven counts, which the court granted on November 7, 2016, after a nontestimonial hearing. The Plantes timely appealed.
.11. DISCUSSION
[¶ 9] This appeal requires us to determine, viewing the facts in the light most favorable to the Plantes as the nonmoving parties, whether any genuine issue of material fact exists and whether Long is entitled to judgment' as a matter of law. Diviney,
[¶ 10] The Plantes are public figures and, as we have explained,
[discussion of public officials and public figures on matters of public concern, the U.S. Supreme Court has declared, deserves special favor in a democratic society, and thus such discussion is subject to a conditional privilege — the “First Amendment privilege” — that cari be overcome only by clear and convincing evidence of [actual malice, i.e.,] knowledge or disregard of falsity.
Id. at 69 (quoting New York Times Co. v. Sullivan,
[¶ 11] In response to Long!s motion for summary judgment, the Plantes offered evidence contradicting Long’s accounts of the events in question and demonstrating a contentious history between the parties. See supra ¶¶ 4-7. If believed by a trier of fact, the same evidence that showed Long’s statements to be false and the relationship between Long and the Plantes to be contentious could also give rise to an inference that Long bore the Plantes ill will. Contrary to the Plantes’ assertions, however, the evidence of falsity, even combined with the inference of ill will; would not be sufficient to support a clear and convincing determination of actual malice.
[¶ 12] The element of objective falsity is distinct from that of actual malice. At trial, a fact-finder must be presented with sufficient evidence to allow her to conclude that the defendant ‘“in fact entertained serious doubts as to the truth of his publication’ ” regardless “of the assumed objective falsity of the remarks.” Michaud,
[¶ 13] Nonetheless, the Plantes argue that we “reach[ed] too far” in Lester and that we should merge the elements of falsity and malice in cases involving “personal knowledge.” Their argument ultimately relies on language the United States Supreme Court included in a decision in which it reversed a libel judgment. See Time, Inc. v. Pape,
[¶ 14] Twelve years later, the Court again discussed the “eyewitness” inference mentioned in Pape and emphasized that its applicability was limited to circumstances where the events at issue are so defined or obvious that there is no room for ambiguity: . ■
[T]he only evidence of actual malice on which the District Court relied was the fact that the statement was an inaccurate description of what [the eyewitness] had actually perceived. [The eyewitness] of course had insisted “I know what I heard,” The trial court took him at his word, and reasoned that since he did know what he had.heard, and he knew that the meaning of the language employed did not accurately reflect what he heard, he must have realized the statement was inaccurate at the time he wrote it. Analysis of this kind may be adequate when the alleged libel purports to be an eyewitness or other direct account of-events that speak for themselves. Here, however, adoption of the language chosen was one of a number of possible rational interpretations of an event that bristled with ambiguities and descriptive challenges for. the writer. The choice of such language, though reflecting a misconception, does not place the speech beyond the outer limits of the First Amendment’s broad protective umbrella,
Bose Corp. v. Consumers Union of the U.S., Inc.,
[¶ 15] This restriction on the applicability of the eyewitness inference — that the inference may be made only when the events “speak for themselves” — is also found in two cases the Plantes rely on in their assertion that the falsity of Long’s
The inference depends for its validity on the premise that the eyewitness could not have perceived and understood anything but the truth. Thus, in reporting something else, the observer must have departed from the truth by design. The underlying premise is valid, however, only if the events were unambiguous and the setting was such that the observer could not have misperceived those events. Such conditions, however, cannot simply be assumed; as the proponent of the inference and the bearer of the burden of proof of actual malice, the plaintiff must demonstrate that they exist. No such showing was made here.
Id.
[¶ 16] The second is Ventura v. Kyle,
[¶ 17] Even assuming that these cases demonstrate that some other courts are moving towards a less rigorous review of the element of malice, neither provides any support for the Plantes because they have not carried their burden of showing that the events in question were unambiguous or that Long could not have misperceived them or, alternatively, that an event described by Long never occurred.
[¶ 18] According to his version of events, Bruce — who admits to being “upset” at the time and believing that Long was “harassing” him — pulled his truck over 150 feet from Long, “[hung] on the edge of the truck,” and yelled at Long, “[A]re you looking for me?” and “[D]on’t bother.” Bruce’s account of the incident is strikingly similar to Long’s and, given Bruce’s acknowledgement that he was upset and yelling and the considerable distance between the parties, what Bruce actually said could have been misperceivеd by Long. Cf. Mahoney,
The entry is:
Judgment affirmed.
Notes
. On appeal, Bruce challenges the court’s grant of summaiy judgment as to Counts 2 and 3 of the complaint, which concern emails sent by Long on October 28, 2011. Dennis challenges the judgment as to Counts 5 and 6, which concern emails sent by Long on April 24, 2012, and May 23, 2012. The Plantes also challenge the court's grant of summary judgment in Long's favor as to Count 9 for punitive damages. We address only those facts relevant to the counts at issue on appeal.
. Long attempted to have the suit dismissed in its entirety pursuant to the anti-SLAPP statute, 14 M.R.S. § 556 (2016). We affirmed the trial court's (Fritzsche, J.) determination that this attempt was not timely. Plante v. Long, Mem-15-91 (Nov. 10, 2015).
. The record provides no temporal information about this event.
. Although there are many factual disputes about what each party actually said or did during the incidents that Long complained about, a trier of fact who believed the Plantes’ versions of what occurred could rationally find that Long's statements describing the incidents were falsp,
.Long also asserts that his statements consisted of opinion rather than fact and were therefore not actionable. Because we conclude that the Plantes have failed to make the required prima facie showing of actual malice, however, we do not reach that issue.
. In its decision, the First Circuit referred to the need for "objective facts” that “should provide evidence of negligence, motive, and intent such that an accumulation of the évi-dence and appropriate inferences supports the existence of actual malice.” Bose Corp. v. Consumers Union of the U.S., Inc.,
. The Plantes also draw our attention to Welsh v. City and County of San Francisco,
. A third opinion of the United States Supreme Court also bears on Bruce’s claims on appeal. In Masson v. New Yorker Magazine, Inc.,
Although Long’s October 28, 2011, emails attributed the use of specific language to Bruce using quotation marks, Masson does not save Bruce’s claims from summary judgment. The differences between Long’s and Bruce’s accounts of the events of October 27, 2011, are not material. See supra ¶ 18. Given ■ the pаrties' underlying relationship, the addition or omission of a single instance of profanity and the words "[D]o you want some of this?”, are not significant; either version of events leads the reader to conclude that a hostile interaction took place alongside the road that day. See Masson,
Dissenting Opinion
dissenting.
I. INTRODUCTION
[¶ 20] I respectfully dissent because the Court has improperly used summary judgment to resolve factual disputes regarding motivation, knowledge, ' or intent. The
II. DISCUSSION
[¶ 21] The Court correctly sets out the actual malice element of the Plantes’ defamation claim against Long, that the Plantes must provе “that the defamatory material was published with actual malice.” Ballard v. Wagner,
• [¶ 22] Although “[fjalsity and actual malice are distinct concepts,” and therefore each must be proven to establish a claim for defamation of a public official, “[i]t may be possible, as the United States Supreme Court has suggested, that proof of falsity will support an inference of actual malice when the alleged libel purports to be an eyewitness or other direct account of events that speak for themselves.” Mahoney v. Adirondack Publ’g Co.,
[¶ 23] In Ventura v. Kyle, a case discussed by the Court, Court’s Opinion ¶ 16, and relied upon by the Plantes to support their assertion that the falsity of Long’s statements may be sufficient to prove actual malice, the United States District Court for the District of Minnesota considered a defamation case concerning an autobiography written by Chris Kyle containing a passage in which he claimed to have punched former wrestler, actor, and Minnesota Governor Jesse Ventura in the midst of a scuffle at a bar.
[¶24] Ventura is unlike Michaud v. Town of Livermore Falls, in which we held that where a “meeting led to high emotions and resulted.in widely varying perceptions and interpretations of the participants’ conduct, depending upon each viewer’s degree and position of involvement,” there was no proof of knowledge or reckless disregard for the falsity of a letter criticizing a plaintiff who had been a participant at the meeting.
[¶ 25] We have- applied a similar reasoning when determining whether an allegedly defamatory statement consisted of opinion alone, and was therefore- not actionable, or consisted of facts and was therefore actionable. Lester v. Powers,
[¶ 26] We have held in many cases that issues of intent or animus can rаrely be decided as a matter of law. See, e.g., Beal v. Bangor Publ’g Co.,
[¶ 27] Therefore, we must here consider whether there is any dispute of fact presented in the parties’ statements of material facts from which a jury could infer that Long knew his versions of the event he described in his emails were false. The jury should decidе whether Long intended to state .definitive facts in his emails, or instead intended to state his perception or opinion of the , events giving rise to the emails. Although the Plantes contend that Long made many defamatory statements, this case revolves around two events — an incident between Long and Bruce, and an incident between Long and Dennis. First, Long’s October 28, 2011, emails referenced an encounter on October 27, 2011, in which Long alleged that Bruce saw Long out jogging while Bruce was driving a propane delivery truck, got out of the truck, and screamed profanity-laced threats at Long. Second, Long’s April 24, 2012, emails referenced an encounter where Long asserted that Dennis followed him. If the evеnts referenced by these emails are ambiguous or susceptible to misperception, there can be no inference that Long acted with actual malice because his emails, though possibly false, show only a misinterpretation of eyents. See Ventura, 8 F.Supp.3d at 1121; see also McMurry v. Howard Publ’ns, Inc.,
[¶ 28] Counts 2 and 3 claimed as defamatory Long’s emails of October 28, 2011 — to the chief of police, a police captain, and Bruce’s employer at Gagnon Propane— which recounted Long’s version of the October 27 incident. Long’s emails both contained the subject line “Harassment complaint” and indicated that he wanted to file a harassment complaint — and possibly seek a restraining order — against Bruce. Long asserted in the emails that as he and his wife were jogging, Bruce passed them driving a truck, to which Long waved. The emails then stаte that Bruce stopped his vehicle, hung out the side, and screamed, “Hey do you want some of this? Are you fucking looking for me?” After Long ignored him, Bruce got much louder and screamed, “Hey I said do you want some of this? Are you looking for me?” to which Long replied, “No, just waving.” According to the emails, Bruce then responded, “Don’t bother,” got back into the truck, and left. Additionally, the emails state that Bruce “is clearly mentally unstable” and that Long “fear[s] what he is capable of doing.” Long admitted to the content of the emails in his response to the Plantes’ statement of material facts.
[¶ 29] The Plantes’ statement of material facts, however, describes an event with significant differences from that indicatеd by Long’s emails. According to the Plantes, Long smirked at Bruce as Bruce was driving by, Bruce stopped the truck to ask if Long was looking for him, and Long replied “no, I was just waving,” after which Bruce told him “don’t bother” and drove away. The Plantes denied that Bruce used profanities during the encounter and denied that he “screamed” at Long.
[¶30] There is no question that Long and the Plantes gave very - different versions of what occurred on October 27, 2011. If Long is believed, Bruce intimidated and harassed him with provoking language, screaming, “Are you fucking looking for me?” and “Hey do you want some of this?” Long treated this as threatening language, stating in his email that he feared what Bruce was “capable of doing.” If Bruce is believed, the exсhange was less provocative: Bruce inquired in a raised voice whether Long was looking for him, but he did not scream profanities or yell “do you want some of this?” Long’s use of quotation marks in his email makes it clear that there- was no misunderstanding of what he heard, and that he was directly attributing to Bruce the threatening language and behavior. Long’s use of quotation marks is evidence that Long was not simply stating his perception of what happened, rather, it was a precise description of the event. His version of the encounter is not an ambiguous interpretation; it is an unambiguous transcript of Bruce’s words — one that the Plantes dispute. See Mahoney,
[¶ 31] Because “words and punctuation express meaning,” and “quotations may be a devastating instrument for conveying false meaning,” Masson v. New Yorker Magazine,
B. Counts 5 and 6: Long’s Encounter with Dennis
[¶ 32] Count 5 alleges that Long’s statements in his April 24, 2012, email to the Berwick Board of Selectmen — stating that both Bruce and Dennis were following and harassing Berwick residents — is defamatory. Count 6 similarly alleges as defamatory Long’s May 23, 2012, email to the chief of police stating that Bruce and Dennis “lied, followed, intimidated, and harassed people” in Berwick. The Plantes contend that summary judgment for Counts 5 and 6 was inappropriate as to Dennis because “the only information Long had of Dennis following someone was a single occurrence where [Long] claims to have been followed by Dennis.”
[¶ 33] Long admitted to the Plantes’ statement of material fact that he has never been followed by Bruce, and in his deposition, Long recounted only one occasion on which he was ever followed by Dennis. He stated that he was driving in Berwick towаrd Rochester when he noticed Dennis following in a white SUV “no more than four or five feet” behind him, and that he pulled over to the side of the road to let Dennis pass.
[¶ 34] Dennis provided a very different version of the incident. Dennis acknowledged that he was in a vehicle behind Long, but he stated that there were two cars between them and that when he and Long turned right at an intersection, the other two cars turned left, so that Dennis’s vehicle pulled up behind Long’s. According to Dennis, Long pulled to the side of the road, at which point Dennis passed him, and then Long then followed him, making several identical turns, and following Dennis onto a dead end road into an industrial park, including a U-turn out of the industrial park. Dennis stated that Long stopped only when Dennis pulled to the side of the road to let him pass.
[¶35] As with the October 28 emails related to the October 27 jogging incident, Long and the Plantes present two very different versions of the facts. Taking the facts and all reasonable inferences in the light most favorable to the Plantes, see Budge v. Town of Millinocket,
[¶ 36] It is up to the jury to determine the credibility of the parties and decide who has told the truth. See State v. Hodsdon,
III. CONCLUSION
[¶ 37]-The dissent in Stanley v. Hancock County Commissioners stated that: .
recently, liberal use of summary judgment practice to resolve factual disputes regarding motivation or intent — almost always in favor of a defendant — has been sharply criticized as violative of both the basic purpose of the summary judgment rule and the essential right to a trial by jury guaranteed by our state and federal, constitutions and our civil rules. Arthur R. Miller, one .of the preeminent civil practice, scholars of our time, observes that: “Overly enthusiastic use of summary judgment means that trialworthy cases will be terminated .pretrial on motion papers, possibly compromising the litigants’ constitutional rights to a day in- court and jury trial.”
when viewing the material on a pretrial motion without the safeguards and environment of a trial setting, courts may be tempted to treat the evidence in a piecemeal rather than cumulative fashion, draw inferences against the nonmoving ■party, or discount the nonmoving party’s evidence by weighing it against contradictory evidence. Judges are human, and their personal sense of whether a plaintiffs claim seems “implausible” can subconsciously infiltrate even the most careful analysis. Encouraged by systemic concerns suggesting that summary judgment is desirably efficient, judges may be motivated to seek out weaknesses in the nonmovant’s evidence, effectively reversing the historic approach.
Miller at 1071.
[¶38] Here, the Cоurt has compared Long’s versions with the Plantes’ versions and determined that the two are similar enough that the Plantes cannot prove that Long fabricated his version of the evénts. I disagree. Long’s assertions in his emails that he felt intimidated by the Plantes’ behaviors do not automatically transform his statements about the events to which he and the Plantes were eyewitnesses into misperceptions or statements of opinion. Long’s emails recount facts regarding the incidents, and several of those facts are material and disputed by the Plantes. Because the Plantes are the nonmoving party, they are entitled to all favorable inferences and, in this case, to have their claims heard by a jury.
[¶ 39] For these reasons I would vacate the court’s summary judgment and remand for trial.