*1 Co. Newspaper Company J. Edward vs. The Globe
& others.1 August Suffolk. 1987. 1987. February & Present: Wilkins, JJ. Liacos, Abrams, Nolan, O’Connor, Practice, Civil, Summary judgment. Libel and Slander. Discussion of the propriety judge’s of a considering allowing and a motion
for summary judgment after judge another in the same court had denied it. [707-708]
Discussion of the distinction in the law of defamation between statements
of opinion and statements of fact. [708-710] In a by civil action a former public against official an artist and a newspaper for libel in publication on the page editorial of three allegedly defama- cartoons,
tory ruled, the judge correctly in granting the defendants’ motions summary judgment, for that the cartoons were expressions of opinion protected by the First Amendment to the Constitution of the United States. [710-713] J., concurring in part dissenting part, was opinion
Nolan, summary judgment should not have granted been with respect to one of the three cartoons. [735-736]
A certain cartoon published on the editorial page of a newspaper was not
actionable as libelous on the theory that it implied the existence of facts, defamatory undisclosed where the statement of opinion the cartoon conveyed clearly was based on uncontested facts published in the same newspaper the previous day. [713]
In a civil by action a former public against official a newspaper for libel
in the publication editorial, of an allegedly defamatory the judge correctly granted the defendant’s motion summary judgment where the edito- rial, which simply posed questions suggested answers about the way conducted, public business being was a statement of opinion pro- by tected the First Amendment. [713-714] In a civil action public former against official newspaper columnist for libel in publication of an allegedly defamatory column
on the “op-ed” page of the newspaper, correctly granted the defendants’ motions for summary judgment where a reasonable reader could only have understood the column as the writer’s own satirical commentary on the plaintiff and his administration. [714-715] Turner, Farrell, Robert L. David and Paul Szep.
King v. Globe Newspaper against a and a newspaper In a civil action a former official writer *2 article, in the allegedly defamatory judge for libel the of an publication concluded, correctly granting summary in the defendants’ motion for that, suggested plaintiff the article certain actions of the judgment, where for by loyalty were motivated to an associate rather than concern opinion no of it was good, corruption, but made public implication protected by the First Amendment. [715-716] judgment correctly for in a libel case judge hearing summary The motions plaintiff, a that the published newspaper ruled that statement in a article official, he judge change a a and demanded that public former “called case” a gang-rape unambiguously a decision he had rendered a was [716-717], judgment granting summary but he erred in statement of fact question jury where there was a for a resolve for defendants meaning defamatory whether words were of susceptible [717-719]. those disregard” constituting of the truth “actual malice” Discussion “reckless for a publication defamatory in the statement. [719-720] a false Summary judgment newspaper published in favor a had a was not where the appropriate statement of fact about official jury finding, a judge the motion would have warranted material before evidence, with convincing published clear that the statement was on sustaining burden of disregard falsity plaintiff’s reckless for its thus necessary malice” for him proving prevail. “actual [720-722] in the Court commenced Superior Department Civil action 4, on 1982. January Jr., J., P. a Lynch, James on motion
The case heard by was for summary judgment. for direct Court granted
The Judicial request Supreme review. appellate (Alan M. H. Cohen with him)
Robert Goldman plain tiff. Gorton, E. (Robin L. A. Driskel & Don Kociubes
Joseph III, him) with for the defendants. former Gov- This is libel action brought by
O’Connor, J. The Globe Edward J. King ernor of the Commonwealth against and The The Boston Globe publisher Newspaper Company, columnists, David (Globe), two Globe Globe Boston Sunday cartoonist, Turner, a Globe Paul L. Farrell Robert counts, In two counts. the first The is in twelve Szep. complaint article written that he libeled an by alleges the Globe on by Farrell and the defendant by November 1981. Counts 3 and 4 make the same allegations to an article written Farrell and respect by published by the Globe on November 1981. Counts 5 and 6 assert that was libeled a column authored by defendant by Turner and 10,1980. the Globe on published by Three January cartoons created the defendant and an editorial accom- Szep them, one of Globe, panying various dates in the appearing are the focus of Counts 7 12. through
The defendants filed a motion for summary judgment. motion was denied in the judge Court. More Superior later, however, than two years another allowed the same judge motion as to all counts. The second ruled that the cartoons *3 and the statements in challenged all but one of the articles were constitutionally of protected expressions He con- opinion. cluded article, that the statement in Farrell’s on 8, 1981, November libelous, the alleged by be was a statement of fact rather than but that it was neither opinion, actionable, nor malicious. To defamatory be a state- defamatory ment of fact about a official must have been made with malice. Sullivan, New York Times 254, Co. v. 376 U.S. 279- (1964). 280 The we appealed, granted appli- cation for direct review. We affirm appellate the judgment to all counts 2, Counts 1 and except counts based on 8, 1981, Farrell’s November article. We reverse the judgment 2, as to Counts 1 and and we remand the case to the Superior Court for trial on those counts.
We our review with begin a brief discussion of the propriety considered, of a judge’s having allowed, and then the defend- ants’ motion for after summary judgment another in the judge same court had denied it. there is no “Though reconsider duty case, issue, an law, or a of fact or question decided, once to do so remains in power the court until final judgment . . . .” 597, Peterson v. 306 Mass. Hopson, (1940). 601 “A should hesitate to judge undo his own work. . . . Still more should he hesitate to undo the work of another . . . But judge. until final . . . there judgment is no lack of and occa- power, sionally be exercised.” power may properly (Citations omit- ted.) Id. at Zweck, 603. See Dolan v. Von 19 Mass. Ct. App.
708
1032,
(1985),
1034
and cases cited.
his reluctance to
Noting
ruled,
a motion which another
had
entertain
judge
previously
concluded that
case
nevertheless
this
judge
presented “many
...
to take
‘fresh look’ at certain of the
reasons
compelling
reasons,
itself,
those
issues raised.” One of
sufficient
in
that
are
favored
summary judgment
especially
procedures
Cousens,
254,
v.
Mass.
defamation cases. Godbout
396
258
to take
in a
case
(1985).
a trial
meritless
“Allowing
place
an
on freedom of
‘would
serious
unjustified
damper
put
”’
Gazette,
Daily Hampshire
expression. Appleby
(1985),
Gov’t Employees,
National Ass’n
quoting
Mass.
Inc. v. Central
Broadcasting Corp.,
denied,
Even if a defendant
(1979),
cert.
Of
it is much easier to
recognize
significance
the distinction between statements of
and statements
opinion
of fact than it
make the
case.
is to
distinction in particular
’ ”
is hard to draw a
line between ‘fact’ and
bright
‘opinion.
“[I]t
Newsweek, Inc.,
1300,
Cir.),
v.
(8th
Janklow
788 F.2d
denied,
Nevertheless,
(1986).
cert.
Numerous cases decided this court and iden- others have tified factors that tend to show whether statement particular is one of fact or of We shall discuss some of these opinion. factors in connection with our individual treatment car- toons articles in issue in this case. We note at this point, however, that the for which the distinction between purpose fact and is made is of in making opinion paramount importance Thus, distinction. distinction between fact and opinion here, in a libel case must reflect involving figure, public “a national commitment to the that debate profound principle uninhibited, issues should be robust and wide public open, vehement, caustic, and that it well include and sometimes may attacks on officials.” unpleasantly sharp government Sullivan, course, New York Times Co. at 270. Of supra distinction must also reflect our concern for the legitimate *5 of individuals to unsullied rights by defamatory reputations remarks. We must strive for an balance between appropriate those values. Stone v. Essex County competing Newspapers,
710 Evans, Inc., 849, 750 F.2d (1975). 855 Ollman v. denied, 970, (D.C. 1984), 1127 (1985). cert. 471 U.S. Cir. Thus, of in a criminal case the motive or intent while as a an act is treated ordinarily question defendant performing fact, official’s in a libel action a statement about a of as a of motive or intent is treated statement ordinarily opinion. Inc., Newsweek, 1302, 1305. v. at supra Janklow cartoons and articles We turn now to the alleged specific 12, 1981, the Globe be libelous. On May Szep suit, cartoon, attired in a a black striped depicting plaintiff shirt, words “Can Do” and a white necktie on which the appear. a hat with an attached The is holding pinwheel, to another to a officer who is reading he is handcuffed police list of the officer seated at a desk an appoint- apparent plaintiff’s “the The words beneath the cartoon: ees. following appear and forced resignation Stephen Guptill, appointment Clifford, the and forced resignation Stephen appointment DiSilva, the and forced of Thomas resignation appointment and forced of John Haggerty, ap- resignation appointment A forced Locke . ...” resignation Barry pointment A to this of this cartoon Appendix opinion. copy appears a statement can be construed In whether determining reasonably fact, it to consider “the medium as a statement of is appropriate disseminated.” Cole v. Westinghouse which the statement Co., 309, Control supra Broadcasting quoting Information 611 F.2d Corp., v. Genesis One Corp. Computer vehicles facts 1980). “Cartoons are seldom which (9th Cir. are deliberate are the contrary, they departures reported; quite and sometimes viciously, from designed forcefully, reality Co., 778 Keller v. Miami Herald Publishing opinion.” express are well (11th 1985). Cir. Reasonable readers F.2d exaggeration, aware that employ hyperbole, “[c]artoonists . . . .” Id. at 716. to communicate their messages caricature 467, 471-472, Chandler, 3d 13 Cal. See also Yorty App. cartoon makes contends that the “appointments” that he individuals government posi- a statement appointed to have at the time of engaged tions whom he knew appointment *6 Mass. 705 Co. v. Globe Newspaper had a conduct, the and that plaintiff or criminal in unethical However, mind. we agree state of criminally culpable of the is a statement unambiguously that the cartoon judge rhetorical use of “artistic cartoonist’s by opinion, expressed ill-ad- for several that the responsible plaintiff hyperbole,” observed, be un- it would As the vised appointments. that “the cartoon as a disclosure reasonable to interpret arrested, handcuffed, or was and charged, been had plaintiff conduct of his criminal, of criminal or unethical a or knew before their selection.” appointees 1979, cartoon, November is en-
Another Szep Bill,” and plaintiff titled School “King Signs Prayer depicts school at a desk presumably signing piece paper, named bill. He is flanked on one side by person prayer other side named and on the by person “Patronage” a satchel labeled carries in his “Cronyism.” “Patronage” pocket Raise,” arm as the holds the “Pay “Cronyism” plaintiff’s are the desk in Packets of money signs paper. plaintiff The the cartoon is “So Let Us front of “Cronyism.” caption A of the cartoon at the end of this Prey!” appears opinion copy as B. Appendix
As we observed in connection with the car- “appointments” toon, facts, seldom to disclose but rather cartoons are designed are understood reasonable viewers to be rhetori- ordinarily by cal, means exaggerated opinions. expressing Bill” cartoon that in reference to the “School Prayer argues that the on the table that “an inference exists money packets but to relate not to the Raise Bill Pay is ‘Cronyism’ holding Plaintiff received or was to re- allegedly monetary payments Bill. The linked arms of ceive for the School Prayer signing Plaintiff can indicate a direct or indirect only ‘Cronyism’ table Plaintiff’s correlation between the on the money Bill. The ‘So Let Us Prey!’ of the School signing Prayer caption on the that Plaintiff was by clearly implies preying exchange monetary enacting legislation compensation.” view, not In our We are plaintiff’s argument. persuaded of the cartoon advanced interpretation to be libelous must strained. Statements unreasonably alleged Media, Inc., be v. New Mass Lyons interpreted reasonably. (1983). The cartoon in cannot question as a fact that the be construed reasonably plain- representing *7 had been extortion or had a bribe to tiff of guilty accepted sign most, the school bill. At the the cartoon suggest may prayer the that the was motivated to school sign bill plaintiff prayer his interest in for the raise by attracting legislative support pay bill, which, view, in the cartoonist’s constituted preying But, Amendment the the First questioning public. protects of the motives of officials. See Janklow and public impugning Newsweek, Inc., (“It at 1305 is vital to our form of supra and, alike be free to discuss that and citizens government press fit, officials”). if see the motives of they impugn public which the was The final cartoon of complains plaintiff 1979. cartoon Globe on October by Szep published had an article On the Globe day, published pre- previous Team of detailing its investigative reporters pared by Spotlight Locke to efforts of Secretary Barry protect Transportation article, billboards slated for removal. The certain preserve officials, here, also that industry not challenged reported friends, contributed to the and relatives had plaintiff’s 18, the election On October Szep campaign. gubernatorial an editorial. The editorial cartoon was alongside the article and drew from relied on previous expressly on which caricatures of a billboard The cartoon depicts day. Locke, At holding bags money, appear. the plaintiff and the is the name “Ackerley,” the base of the billboard billboards can money your billboard “Ackerley put says, of this cartoon and too!” accompanying Copies pockets C and D to this opinion. editorial Appendices appear of the billboard industry that the resurgence editorial suggests reached what due to the fact that “industry money finally that The editorial asserts persons must be the right places.” Communications, one of the nation’s with “Ackerley associated into $7000 . plaintiff’s] firms . . dropped billboard largest [the ad- that, the plaintiff’s treasury” subsequently, campaign to the billboard actions favorable took several ministration industry. cartoon must be viewed as
The billboard protected expres- with the that the sion of We do not agree opinion. in return for him cash bribes ... cartoon depicts “accepting ” Communications. of the efforts of Ackerley support Rather, facts we with the that alleged figura- agree “[t]he (that and Locke cartoon tively conveyed cash contributions and/or from Ac- received payoffs personal do not flow from a form of kerley) simply expression draws overstatement and extravagant symbolism clearly upon to make its The cartoon more than nothing Szep’s point. implies editorial that the association judgment Ackerley plaintiff’s raised concern.” questions
A statement cast in the form of an opinion may imply existence of undisclosed facts on which the defamatory opinion based, Al to be and thus be actionable. See *8 purports may Co., 735; v. v. Globe at doupolis Newspaper supra Fleming (1983); Mass. v. 390 187 Cole Benzaquin, Westinghouse Co., 312-313; at v. Boston Broadcasting supra Myers Co., 338-339; National Ass’n Gov’t Magazine supra v. at 227- Inc. Central Employees, Broadcasting Corp., supra 228; But, (Second) (1977). § Restatement of Torts the billboard cartoon does not the existence of undisclosed imply facts. On the the the cartoon was based on contrary, clearly facts disclosed in the that had been the report published previous which are not contested here. day,
The contained the statements in the editorial accompanying billboard cartoon also fall the ambit of within protected opinion. The theme of the editorial is a condemnation of the primary actions, billboard industry’s lobbying objectives, practices. The focuses on the statement plaintiff especially appearing . . . editorial’s fourth that says paragraph “apparently reached what must be the industry money finally right places.” him The contends that the editorial accuses corruptly interests in furthering industry’s exchange campaign The clear that the au- contributions. word makes “apparently” most, thor or at of the statement is indulging speculation, Moreover, editorial out the deduction. reasons why spells (1) that deduction was made: associated with money billboard was contributed to the industry plaintiff’s gubernato- rial (2) and the campaign, interest public opinion were to favorable treatment for opposed so some industry, other reason for its must be resurgence editorial supposed. answers, simply as a posed questions suggested matter of about the opinion, business was way public conducted. being The First Amendment such discussion. protects 10, 1980,
On the Globe January on its op-ed page a column authored the defendant Robert L. Turner. A copy of the column E appears this Appendix following opinion. column, The entire labeled “Political Circuit Robert L. By Turner,” consists of a fictitious release press purporting have been issued It introduces the release with plaintiff. words, ais statement from “Following Gov. Edward J. on the of his Ronald C. Brinn.” departure press secretary, Construed the “Press Release” literally, column attrib- falsely utes to the various statements which have discred- may ited him. Such false attribution can be See defamatory. Barnicle, However, Schrottman 386 Mass. Co., as we held in just Myers v. Boston Magazine (1980), that, context, read in the statement that a sportscast- er “is enrolled in a course for remedial could not speaking” sense, too, be in a literal so reasonably literal interpreted construction of release” as with the “press originating plain- tiff would have been unreasonable. A reasonable reader could have understood the column as Turner’s own only commentary *9 administration. on the and his Reasonable readers to read columnists’ views and “expect to factual news stories” anon opinions opposed op-ed page. Co., v. Globe Mass. 735 Aldoupolis Newspaper Furthermore, column, the entire above appearing name, Turner’s consisted of the fictitious release. Clearly, press Turner was the “voice” as a device to employing plaintiff’s his own ideas. It have been different if convey the might column the release and then to presented press proceeded Also, and comment on it. as in at analyze Myers, supra the release” contains numerous obvious “press attempts humor, which find one would not in an authentic expect Mass. Newspaper The release to concern the release. departure press purports words, the “Good It begins press secretary. plaintiff’s riddance,” to blame on the press secretary mishaps proceeds that Turner believed to be misunderstandings obviously flaws press secretary plaintiff’s performance. me to cut off referred to as “the hard-boiled who told grinch Inn a before Christmas.” The funds to the Pine Street week that, in obvious fashion release also declares tongue-in-cheek about the if the was informed press secretary poorly plaintiff’s administration, it not fault because the plain- plaintiff’s in this administra- tiff “told him to read the Somebody papers. tion read the The column concludes with the ought papers.” Edward italicized “For recorded of Gov. actuality proposal, — release, J. this call ‘Dial-a-Govemor’ King reading press 1-800-632-8222.” We are satisfied that a reasonable reader would have Turner’s column as satire. recognized Contrary contention, no words to that effect plaintiff’s cautionary words, See, were the use of regarding necessary. cautionary Co., v. Globe Aldoupolis supra. 22, 1981,
On November an article Globe writ- ten the defendant Farrell. The article is reproduced Ap- F. The article focuses on one David Thissen pendix primarily and his with various and it discusses relationship figures, fact that remained to the controversial loyal Thissen adverse In the despite possible political consequences. seventh of the article’s seventeen the Farrell article paragraphs, Thissen, has never run from even states: “The governor away in the face of recommendations et al that he strong by Hanley himself would be off some distance better between putting Thissen. This manifests towards as- King personal loyalty in- sociates never was more than the recent during apparent over a bill for fighting industry. satisfactory racing Despite his close association with out-of-state dog racing promoter Keelan, Eddie has made no secret of his efforts to do Keelan’s on the that would benefit bidding legislation greatly the harness track at owned Keelan and his Foxborough partners.” *10 400 Mass.
There is no that the disagreement legislation which article refers is a bill which racing passed Legislature the fall of but which the as Governor refused to plaintiff Also, without sign amendments. it to be appears undisputed that the bill track gave additional Raynham dog racing dates which with the schedule of Keelan’s harness competed race track at and that the Foxborough, plaintiff predicated amendments, of the bill on three one of which would approval have aided the track at certain dates Foxborough by preserving free of from the and Taunton competition nearby Raynham tracks. to the article challenge focuses the state- plaintiff’s upon
ment that he did Keelan’s in connection “bidding” racetrack that statement legislation. Reasonably interpreted, assert that the took on that may position legislation Keelan, was motivated by loyalty self-in- by perhaps terest, But, rather than concern for the as the good. public concluded, and as we said judge school regarding prayer cartoon, the First Amendment as supra protects opinion discussion about the motives of officials. The article does not that the acted to a imply pursuant corrupt scheme to obtain benefits personal exchange political favors. The article that the have been suggests plaintiff may too bound but it makes no tightly loyalties, personal impli- cation of corruption. we come to the Farrell article
Finally, 8, 1981, November of which G copy appears Appendix herein. This article is the of the first counts in the two subject It is entitled “Ed not King’s plaintiff’s complaint. promises in bank.” The last two of the article are as money paragraphs follows: “It has taken some time to figures political long realize that on a street and all King regards operates one-way (cid:127) — n officers, other state officials elected constitutional duly elected and other members of the legislators, judges judiciary — executive, as subordinates of the with their function principal him, to serve the master.
“That attitude never was more in evidence condescending than in October when called a and demanded that *11 717 Mass. 705 400 Co. v. Globe Newspaper The in a case. he had rendered a decision gang-rape he change 1) original and two things: King’s judge acquiesced proved 2) He is unfit to a colossal blunder. of him was appointment remain on the bench.” referred, five men had the article pleaded
In the case to which unnatural and malicious destruc- of rape, guilty charges rape, had been sentenced. plaintiff tion of they property, of the sen- disapproval publicly repeatedly expressed critical he had He released of letters tences copies imposed. Justice of the Court written to the Administrative Superior However, for to the Judicial Conduct Commission. purposes defendants concede that of the motion the summary judgment call the did not sentencing judge. plaintiff did the that We with the as judge, motion agree plaintiff, “called a and demanded the statement that the judge he had rendered in a case” that he a decision change gang-rape fact. This was a statement statement of unambiguously neither that a verifiable event had occurred. There was specific, in nor in the context of the meaning anything imprecision Indeed, article that that the statement was not factual. suggested statement, context, functions as factual for the support attitude to author’s critical characterization of plaintiff’s are factors that we have ward other State officials. These pre as one to establish a statement viously recognized tending of fact rather than of for First Amendment opinion purposes. Co., 733-734; See v. Globe Aldoupolis Newspaper supra 175, (1983); Lyons Mass. 180-181 390 Fleming Benzaquin, Media, Inc., 51, (1983); 60 National v. New Mass Mass. Broadcasting Ass’n Gov’t Inc. v. Central Corp., Employees, Thus, 220, (1979). the defendants are not Mass. 228-229 on the allegedly entitled to summary judgment ground libelous statement was a statement of constitutionally protected pure opinion. then, whether, for summary
We to a consideration proceed, was nondefama- the statement question judgment purposes, be libellous unless as the concluded. “Words may tory, sense, in a defamatory ‘cannot be understood reasonably they or, are it in another unless they incapable way, express whether, The test is defamatory meaning. in the cir-
cumstances, discredits the writing in the minds of considerable and any class of respectable community.’” Restaurants, Inc., Smith v. Suburban 374 Mass. (1978), Co., Muchnick v. Post quoting Publishing 305-306 “If a publication both susceptible *12 and harmless it defamatory a meanings, presents question the trier of fact and cannot be ruled non-libellous as matter of . law. . . Inferences which be drawn a might considerable by and of the respectable segment can make a community publi- cation actionable. . . . Words be actionable even if may they do not tend to a or hold him damage plaintiff’s reputation up to ridicule in the at or all community reasonable large among it is to do so people; a considerable and enough among respect- able class of (Citations omitted.) Id. at 530. See people.” also Inc., 849, Stone v. Essex County Newspapers, (1975).
In that the concluding statement was not challenged suscep- tible of reasoned that an aver- defamatory meaning, judge reader would age not between the “judiciously distinguish numerous, visible actions taken and the highly plaintiff him,” action attributed single and that an falsely average reader would not such a regard call “to telephone complain about an and controversial decision as unpopular reflecting where, here, . . disgrace . . . upon governor. especially undertook a course of plaintiff vigorously action for public which such a call (if unsuitable) would be a culmina- logical tion.” view,
In our Farrell’s statement that the “called a and demanded that he judge decision he had rendered change in a case” was of a gang-rape susceptible defamatory meaning. that, A would be warranted in jury finding although general decision, with the a considerable public unhappy judge’s of the would respectable segment community “judiciously between the dis- distinguish” plaintiff’s vigorous public decision, hand, with the on the one agreement the plaintiff’s to interfere with the of the attempt independence judiciary, Furthermore, die other. of the fact that the light independence
King Globe v. the cornerstone of a society governed of the judiciary to conclude law, not be unreasonable for jury it would same in the of that would be discredited eyes as a result of the false disclosure of the community segment in an had misused the of his office attempt that he power his decision. change pressure 8,1981, with to Farrell’s November Our final respect inquiry for the defendants is article is whether summary judgment con- because there is no issue genuine nevertheless appropriate “actual malice” in the statement Farrell’s making cerning dam- as a cannot recover figure, question. plaintiff, Times Co. v. without “actual malice.” New York ages proving Sullivan, Actual malice is 376 U.S. proved that the falsehood was “by showing defamatory that it was false or reckless disregard knowledge whether it was false.” Stone v. Essex County Newspapers, Inc., Sullivan, New York Times Co. supra citing *13 at 279-280. supra Catrett, 317,
In (1986), Celotex v. 477 U.S. 322-323 Corp. that, (c), Court held under Fed. R. Civ. P. 56 Supreme when a not the burden of at trial demonstrates party having proof that the that burden has insufficient evidence to having party it, sustain is entitled to moving party summary judgment. observed, As the Court of the of the principal purposes “[o]ne rule is to isolate and summary judgment dispose factually claims or at 323-324. Even defenses.”Id. unsupported applying do, standard, the Celotex which we are not bound to Corp. we are satisfied that the material before the demonstrates of clear and evidence of Farrell’s availability convincing reckless for the truth. See Anderson v. Lobby, disregard Liberty Inc., 242, (1986); U.S. 252-254 Gov’t 477 National Ass’n of Inc. v. Central Mass. 379 Employees, Broadcasting Corp., 220, (1979). 231
The test to determine “reckless disregard” entirely subjec- Inc., tive. Stone v. Essex at 867. County Newspapers, supra The Court has of reckless disregard Supreme spoken of a statement as awareness of falsity “subjective defamatory Welch, Inc., 323, (Gertz v. Robert 418 U.S. probable falsity” 720 [1974]);
335 n.6 of awareness of . . . “high degree probable (Garrison Louisiana, 64, [1964]), U.S. falsity” 379 74 (Curtis Butts, “awareness of Co. v. probable falsity” Publishing 130, 388 U.S. [1967]). 153 Court has also said Supreme that, to raise the whether a defendant question statement with reckless for its defamatory disregard falsity, must be sufficient evidence to the conclusion permit “[t]here that the defendant in fact entertained serious doubts as to truth of his with such doubts shows publication. Publishing reckless for truth or and demonstrates actual disregard falsity 727, malice.” Amant v. (1968). St. 390 U.S. Thompson, U.S., Inc., In Bose v. Consumers Union 466 U.S. Corp. 485, Court, (1984), 511 n.30 New York citing Supreme Sullivan, Welch, Inc., Times Co. v. Gertz v. Robert supra; and St. Amant v. defined actual supra, Thompson, supra, again malice as serious doubt of the truth of publication despite Lando, See also Herbert v. 441 U.S. publication. (1979), Amant v. St. at 731. This quoting Thompson, supra court, too, has St. Amant reckless disre quoted describing for truth or as “serious doubts as to the truth” of gard falsity Inc., See Stone v. Essex publication. County Newspapers, 867; at v. Boston Herald-Traveler supra Twohig Corp., Mass. We that standard here. apply Stone, 867-868, As we observed find supra jury may that the author of a statement entertained serious doubts about the truth of his or her statement “on the basis of an inference evidence, drawn from since it would be rare objective perhaps for a defendant in such a circumstance to admit to had having *14 serious, review, then, unresolved doubts.” We must the mate whether, rials before the to determine “considered judge put favor,” an demon in indulgence may plaintiff’s they strate to a to a clear and jury convincing degree presence Cousens, malice on Farrell’s Godbout v. supra part. Inc., 477 U.S. 258-259. See Anderson v. Liberty Lobby, 255-256
Our review focuses on the of Farrell deposition testimony and State Treasurer Robert Crane. Farrell testified that Crane source, source, that the was his and his only stating plaintiff
King v. Globe Newspaper had called the who had over trial and judge rape presided demanded that the his decision. Crane testified judge change that, conversation, a luncheon he had told Farrell that during it was Crane’s that the Governor was “understanding upset it, and called the about raised hell said it was a judge, lousy decision, and should it be After that he changed.” testifying Farrell,” was unable “the to recall used to Mr. language [he] asked, “Now, Crane was that Mr. said told Farrell you you that had heard that had you Governor King telephoned [the was, Did I understand judge]? Crane’s answer you correctly?” “You did.” That evidence warrant that would Farrell findings knew that Crane was not to have witnes- purporting personally conversation, sed the that he and was reported only repeating what he had been told. From Crane did what not as well say said, as from what a he also would be in jury warranted finding that Crane’s statement to Farrell that Crane’s source suggested was neither the nor the judge. that, Farrell,
Crane testified when he Crane did spoke been, not that, know who informant had and at the time testified, he he did not know the informant’s identity. Farrell’s he was that never Crane who testimony asked Crane’s informant been, him, had that never Crane told that Farrell never spoke information, to the verify that Farrell never that, asked else to do so. also anyone Farrell testified in his thirty-five he had never heard years journalistic experience occurrence, of a similar would that he as “serious” regard a chief a executive’s that decision demanding judge change in a criminal case.
It would be reasonable infer from deposition testimony Farrell, that an a fact experienced journalist, published known, which, in had conduct if would engaged discredit him the considerable eyes respectable of the that Farrell knew that his statement segment community, effect, conduct, to have that and that he knew that the likely occurred, Also, if it had would have been unusual. highly would be that Farrell jury finding warranted verification, and statement without or challenged investigation with the that the information he had was hear- knowledge only *15 multi-level, Crane disclosed his source that neither
say, perhaps or for the of reliability nor vouched for his source’s reliability source, one, and that the to his source’s if there report or to have been fabrication Crane was as likely speculation to have been the truth. defamation said: “The defendant in a
The Court has Supreme . . a official cannot . automatically action brought by he with a that insure favorable verdict by testifying The finder of fact must a belief that the statements were true. in good was indeed made determine whether the publication faith will be to per- faith. Professions good unlikely prove suasive, is fabricated the defend- where story example, ant, or is based wholly is the his imagination, product Nor will be an unverified call. anonymous they likely telephone are so when publisher’s allegations inherently prevail them in reckless man would have only put improbable Likewise, there recklessness be found where circulation. may of the informant or are obvious reasons to doubt veracity omitted). (footnote Amant v. of his St. accuracy reports” Here, reasons to Farrell had obvious 732. Thompson, supra Crane, but of Crane’s doubt the not veracity accuracy, informant the chain other informants in undisclosed and any we are satisfied that the evidence have of communication. We of actual malice discussed would warrant jury’s finding clear and evidence. convincing 12 is af- Counts respect through judgment reversed, 1 and
firmed. The as Counts judgment Court for trial. the case is remanded to Superior
So ordered. *16 Co. Appendix A. resignation appointment Stephen Guptill, appointment and and "... forced of resignation Clifford, Stephen apointment resignation Thomas forced of forced DiSilva, appointment resignation Haggerty, appointment John forced Barry resignation Locke ...” forced v. Globe Newspaper
Appendix
B.
*17
Appendix
C.
*18
Mass.
400
705
Appendix
D.
game
The old billboard
later,
be
of a billboard scandal. And
just
Sooner
there
had to
the sniff
or
brings
good
days
lobbyist
old
when the
there is one and it
back those
now
king
goodies
Legislature.
for his
in the
always
pals
was
and there were
During
may someday
“good
be labeled Massachusetts’
years
decade,”
has
on
run. Local
industry
the billboard
been
government
they’d
long enough
square-foot
captive
that decided
been
communities
backing
up
and the courts were
them
huckstering
agencies
found that state
offending signs
legislators
removed. Some
even
they
get
moved to
when
a
just
without a free lunch or
free billboard
they
get along
discovered
could
election time.
before
stand;
its
it
industry
up
billboard
had folded
barker’s
It was not that the
and
regulate
money
its excesses
lot of
fought every attempt
spent
Yet,
standing
lobbyists.
while there are still some
billboards
lawyers and
state,
local,
coming
they have been
regulations,
or federal
in violation
want
where
did not
them.
places
people
down from the
—
now,
tide
turned
not because
barely year,
has
But
in the
space
objected, demanding that the billboards
got
up
and local officials
people
detailed,
Spotlight Team has
but
as The Globe’s
put
up,
apparently,
be
back
right places.
be the
industry money finally reached what must
because
Co.,
Advertising
locally-owned Donnelly
year
August the
ago
One
last
firm,
$9
advertising
bought
out for million
major
the state’s
billboard
Communications,
largest billboard firms.
one of the nation’s
by Ackerley
Quinn
its lobbying
Robert H.
to do
Ackerley
up
Speaker
former House
signed
Then,
its
seven of
just
September primary,
before the
at the State House.
relatives)
J.
(and
King,
discovered Edward
their friends and
executives
$7000 into
governor,
dropped
just
underdog
time
an
candidate
campaign treasury.
games.
come
the old
A bill
Beacon Hill closet
all
And back out
King’s signature
allow
and into law with
through
Legislature
zips
King’s transportation
a court order.
despite
resort
to remain
ski
billboard
moves to block the removal of 95
secretary
Barry
close adviser
Locke
*19
And
top
beautification law.
to
highway
the federal
that violate
billboards
—
— now,
talking
weaken-
starts
about
anyway
the administration
it off
Advertising Board.
powers
watchdog
of the
Outdoor
ing
Meanwhile,
enlarging signs without
industry
posting
is
or
apparently
—
or
knowingly
space
free
either
providing
billboard
permits,
—
Finnegan
candidate David
oversight
mayoral
Boston
very expensive
and Means chairman.
Ways
of the House
just
to be brother
happens
who
but,
industry
advertising
big
bucks
And
Because billboard
why?
and,
constituency
despite
with not much of a
curiously,
industry
an
400 employ-
with no more than
supporters,
its
House
claims of
State
piteous
industry source.
according to an
present,
ees at
Those factors prompted the billboard
act
did
industry
past
as it
in the
way
and the
it
will
apparently
operate
continue to
until it
be
can
compelled
to obey
local,
wishes
local communities and the
set by
standards
state,
regulations.
game
federal
It will
abe
hard
tough
win
league,
the victory
but
will worth
be
it.
*20
King
E. Appendix charge a new ‘can-do’ man in There’s NEWS RELEASE press House
To: The State Jan.
Date: King J.
From: Gov. Edward King
Contact: Gov. Edward J. J. Following departure from Gov. Edward is a statement secretary, C. Brinn. press his Ronald riddance.
“Good administration, big roadblock is removed. Ron Brinn out of the “With pal around with my message people be to out to get Now I’ll able way. in the year. getting I to last But Ron way kept tried all reporters tax if $500 million rollback “Clearly, property I could have made the about Ron was only up par. patronage! And talk performed Ron had Haggerty and DiSilva Guptill that I hire and Clifford and one who insisted — big help and Ron’s no the MBTA’s a headache and Foster. And now Navy he’s a man. fact, “Ron, off funds grinch who told me to cut was the hard-boiled a week before Christmas. to the Pine Street Inn my why ratings find have very don’t have to look far to out “Clearly, we terrific; Ron just substance has been polls. in the plummeting been image. didn’t communicate the between any poor more talk about communication
“And let’s not have me, that he move his spring It Ron who insisted last Ron and either. was — three bus of the State House about down to the nether reaches offices close. getting felt he had been too an ride from me. Ron stops and elevator activities, my it’s not about administration “If Ron wasn’t well informed Somebody ought in this administration to read the papers. fault. I told him to read the papers. communications, thing straight. For get let’s one “While we’re on bad him, Ron, faults, I offered or even as he said. ‘displace’ all I didn’t fire Building handing releases in the Saltonstall good job press him a out perfectly someplace. months, friendly but dying get press, I’ve been
“All these aside, himself. wanting spotlight me shouldering Ron kept there to deal wrong jumped When Ron out got “And idea. people shouting firings and to face the demonstration Guptill with the and Clifford mothers, cowering my office and had fed thought I was people welfare my at the bit to demonstrate champing I was Actually Ron to the wolves. approach problem-solving. ‘can-do’
King v. Co. Globe Newspaper Ron is the one with accuracy, I must reveal this: the sake of “For — The Globe smeared only, please. and tail meat lobster salad taste for nice, Page I wanted big lobster on One. terribly picture with that me — they paid that when the truth taxpayers to the to tell the public, to talk wife and Tommy McGee and his trooper $260 me and a for dinner for son, $52 per person. cold cuts that cost only it wasn’t lobster at all. It was Burke, my secretary early. Marty press lesson my “I should have learned actually until he started working seemed to be out during campaign, to set both get rid of him. I tried Naturally, I had to talking reporters. it didn’t work. embarrassing public, them in but Marty straight by and Ron brought him over from big be a mistake. When I “Ron turned out to MassPort, Logan coordinate activities at press the most he’d ever done was there. He’d never worked smashed into the sea wall Airport when DC-9 a real disaster. on, the best now Ed will have things “Now will be different. From King.” Ed PR man in the business: King reading press this actuality For a recorded of Gov. Edward J. —
release, call “Dial-a-Govemor” 1-800-632-8222. political Robert L. Turner is a Globe columnist.
F.
Appendix MISSING VIP David Farrell When the S.S. Volendam sailed from Commonwealth Pier on Gov. King’s Edward J. fortnight ago, “Cruise To Nowhere” fundraiser a there Thissen, (Dick) missing was one VIP from the passenger list. David R. firm, controversial head of the Desmond & Lord architectural which ran aground during long investigation by Commission on State Special *22 and County Buildings year, last the to the passed up opportunity spend friend, night Bay King, longtime in Massachusetts with partner business companion. vacation conditions, Under normal Thissen would have been aboard the liner bash, during all-night governor’s the which cost to the re-elec- contributors $200. tian campaign Thissen,
But merged these are not usual times for whose firm hard-pressed with years ago John Carl Wamecke & Associates two when it became apparent probe by that the of Desmond & Lord the Ward commission was having devastating ability effect on D & L’s to attract new architectural owner, Wamecke, business in this area. Thissen and the new firm’s John Carl jobs have collaborated on several architectural awarded firm Thissen’s old during past two decades. Thissen, visible, personable highly political The once has become a avoiding spotlight possible. recluse of sorts and is as much as He still at at he University many swims Club but is seldom seen of the haunts frequent. used to long ago governor regular
It wasn’t that he and the dined on a basis at changed metropolitan various restaurants in the area. But all that has because impact notoriety of the adverse the Ward commission has had on Thissen ability’s generate to business for the Wamecke firm. [sic] wedding reception, for an occasional fundraiser or the two friends
Except did, rarely get together, they popular Anthony’s as once at such restaurants as Jimmy’s Pier 4 and Harborside. The last time this occurred was about 10 ago Secretary Hanley weeks when of Administration and Finance Edward wedding reception daughters invited Thissen to the for one of his at Pier itself, That, never associated with or surprising Hanley 4. was since has Hanley places an admirer of Thissen. much of the blame for privately been King’s image on Thissen. the deterioration of Thissen, away strong ran from even in the face of governor has never by Hanley putting et al that he would be better off some recommendations loyalty King himself and Thissen. This manifests personal distance between during in-fight- more than the recent apparent towards associates never was racing industry. Despite bill for the his close associ- ing satisfactory over a Mass. 705 Keelan, made racing promoter King Eddie has dog ation with out-of-state legislation would bidding of his to do Keelan’s no secret efforts Foxborough owned Keelan and his greatly benefit harness track partners. to for the
King slips They Saratoga still town with Thissen. went out of the Easter last August they every holidays races last as do summer. Over Christmas, they And this do they were at the races Florida. spring, Christmas, together are in Miami for the winter every they expected be racing season. King’s join invitation to him at Miami pass-up Dolphins-
Thissen’s Sundays indicative of game ago plan Patriots football here two is Thissen’s gubernatorial make himself scarce as the 1982 builds. campaign more very golfing partner Speaker He is a friend and of US House Thomas close Jr., puts embarrassing O’Neill fact which him in an middle as (Tip) P. gover- Lt. Gov. P. O’Neill 3d to wrest the upcoming battle Thomas from Over the three decades since the elder O’Neill norship intensifies. House, has been of the Massachusetts Thissen an intimate. speaker son, difficult Thissen is that O’Neill’s What makes the situation (and attacking King former Michael S. governor, lieutenant has been Gov. result, Thissen, Dukakis) late. increasing tempo As a who has been O’Neills, generous governor donor to the and both will campaign a most with giving equal have to sit out the battle and content himself them contributions.
Dukakis, meanwhile, the close between planning relationship make *23 King campaign ex-gov- and Thissen of his own for another term. The part are also that the Thissen association campaign strategists assuming ernor’s family with the O’Neill will not be overlooked electorate. links, expected King-Thissen particularly Dukakis is to focus on the their efforts to undermine and thwart the work of the Ward commission and 1980. relationships. They and close are in
Thissen still maintain business Dwight Evans. players the coal business with Red Sox Carl Yastrzemski Yastrzemski, $300,000, according in a The four have invested some to They Virginia recently replaced West coal mine which has not done well. general manager get coal in an effort to more operations production profits. side, Thissen, always eye for invest- sharp good On the who has had a ments, men Bruins’ relationships continues other such as develop Paul president Mooney. the Ward commission allegation by
Still unresolved and ahead of him is the cam- King’s $1100 that former to Gov. illegally firm contributed through a secretary. Desmond & Lord The commission referred paign Bellotti, a decision Atty. expected matter to Gen. Francis X. who is make iton soon. political
David Farrell is a Globe columnist.
Appendix G. Ed King’s promises not money in bank
David Farrell After the controversial Primary Source liquor squeaked through bill October, House and Senate at the end of chain Freddy store owner Martig- sigh netti breathed a of relief. All that he needed signature was the of Gov. King. Edward J. Martignetti and governor had discussed the bill and Martignetti’s industry problems on several during occasions recent years. And he had King’s word that he sign would the measure. having That was like money in the bank.
Martignetti and King good had been High friends since their BC days Freddy when and twin King. brother Joe met The Freddy Martignettis and the Kings socialized over the years, at house and other parties get-togethers. The athletic prowess Martignetti of the children was another bond with the governor, who is well known for his partiality to and idolization of athletes. recently, King Most Freddy spent considerable time together at the wedding and for reception Martignetti one of the children ago. several weeks
Now years, first time in seven Freddy Martignetti could see some daylight long in his battle with the State Alcoholic Beverages Control (ABCC) Commission and the courts over the package number of he stores may legally operate. opponents
Bill’s knew their man 56-year-old Martignetti knew that the commission decisions which get mandated him to rid of some of his stores because he spirit violated the three-stpre stand, of the statute would no matter what to the happened Primary Source bill. measure,
But enactment and signing of the whose main provision would wholesalers, bar retail dealing outlets from with out-of-state also would mean that the limit scrapped three-license would be and raised to a seven- license plateau. Martignetti thus would be able to reshuffle his empire and get his business back to the it peak enjoyed successful before the ABCC against moved him. Martignetti,
But while Bruce Wright, proponents Sam Stone and other Primary laboring diligently get legislation Source were so through *24 Senate, Gordon, by the House and led opponents, Whitehall’s Marvin came with a up strategy appeal only governor clever that would have to a of King’s peculiar makeup.
King being by was interest of pressured public groups some his own sign advisers to the bottle bill that strongly opposed by liquor was so all interests, included, Martignetti Primary on both sides of the Source con- troversy. To make it that he appear seriously weighing was the merits of
King Globe bill, Michigan to review that state’s excellent King even went to the bottle with its bottle law. experience by its as an anti-con- Primary painted opponents Source had been
Since and send price liquor hike the of in Massachusetts sumer bill which would stores, not blunt the antici- liquor why here to New Hampshire consumers Primary veto outrage over a bottle bill with veto pated consumer King asked. Source? was public had the all summer with his well-arches- governor, who teased bill, against his stand the bottle “rethinking” previous
trated charade about outcry against the his inviting mitigating at the jumped prospect pitch his to the consumer on rejection legislation of the anti-litter with Source. Primary by King liquor legislation
It was fashioned his didn’t matter to that by precisely along own commission and tailored lines dictated him. special chairman, Larkin, by That ABCC John labored for panel, King’s headed King. the bill for produce months Martignetti Freddy
So it was on the eve of Halloween when learned that King, pal, Ed his veto Source. planned Primary it,” he Martignetti everyone I believe told ran “I’m sick. can’t stunned during into next hours. longtime He that welch on the commit- couldn’t believe his friend could Sure, many go
ment and back on his word. he had heard some of the stories King’s unreliability, about he either didn’t believe them or didn’t want but to, any transcended assumption possibility on the his bond with “Eddie” by governor. of a run-out
At he isn’t least alone Martignetti finally King Wednesday in to to discuss got When see last matter, blow King by answer was the same. tried to soften the Martignetti’s suggesting special message that he could send a take care of in, but there package problem, Martignetti knowing store wasn’t taken by no chance such a could survive itself. proposal many former Martignetti join growing people, Thus does list of of them governor, chief duped friends of the who have been executive. The Hurleys, long list et al is too to detail this of Walter Paul Heffemans Boston, Rich, grew governor in East is the space. up Frank who King’s often failure to group. got keep most notable of the He burned so against to run him. his word and commitments that he decided Tobin, Mayor a former Quincy next walkout will embrace Arthur King’s clerk/magistrate Quincy to be expected appointed state who had senator District Court. year, King died earlier this confided Dinny Ryan
When former clerk position. seat So certain that Tobin was in the driver’s intermediaries last week. commitment that he did not seek re-election was Tobin of that Nominating Judicial had faithful servants on his But now has — an court with another candidate this one assistant up Committee come *25 King v. Globe Co. Newspaper — in Plymouth County clerk and Tobin will be The upcoming sacrificed. bypass of Tobin has governor’s already worsened the poor relations in the Senate where Tobin a popular member. And it relegated has Senate Bulger’s President William M. break with King point-of-no-retum to status. Intermediaries have trying been heal the chasm Bulger between King, but no avail. Now their differences are irreconcilable. leader,
In dealings with the Senate with House W. Speaker Thomas virtually everyone McGee and else in state government, King has dem- onstrated an attitude which exchange demands total obeisance in for what- ever patronage governor cmmbs the sees dispense. fit to It has taken some political figures long King time realize that operates — n one-way regards on street and other duly all state officials elected officers, legislators, constitutional elected judges other members of — executive, judiciary as subordinates of the with their principal function him, to serve the master.
That condescending attitude never was inmore evidence than in October when called a change demanded that he a decision he had rendered in gang-rape judge acquiesced case. The and proved things: two 1.) King’s original him appointment 2.) was a colossal blunder. He is unfit to remain the bench.
David political Farrell is a Globe columnist. Mass. 705 *26 in I in and dissenting Nolan, agree J. (concurring part part). should be remanded that the case the court’s determination with 2, 1 and the counts for trial on counts to the Court Superior Farrell he was libeled the the that alleges in which 8, with the court’s 1981. I also agree column of November sum- correctly that the Court granted determination Superior counts to 3 6 and through with counts mary judgment respect however, with the court’s 12.1 disagree, disposition 9 through C) which billboard cartoon Ackerley (Appendix regarding and 8. I think that there is of counts 7 Because is the subject resolved, I from that issue of fact to be dissent a material affirms the of of the court’s which granting opinion portion on those counts. summary judgment in a action if the challenged A exists defamation jury question of an reader as is read being average statement susceptible factual or an v. Globe Aldoupolis either a statement opinion. Co., 731, v. (1986). Mass. 733-734 Myers 398 Newspaper Co., 336, (1980). A Boston 339-340 Magazine and, is the law of like other form cartoon libel subject any “it be found if it of libelous may maliciously presents depiction, Chandler, Yorty fact material which is false.” as defamatory McMillen, 467, (1970). 13 Cal. 3d See Russell v. App. 1984); (Sec- Ct. (Colo. 685 P.2d Restatement App. § In the court ond) of Torts 566 comment d Yorty, that cartoon falsely which public suggested “apolitical depicts for or a taking official franchises selling personal gain, bribe, record, or an or a altering attorney police a defenseless will not be shooting exempt officer prisoner, laws of because the merely charge from redress under the libel in linear rather than in verbally is form graphically depicted Such is nature of statement.” at 472. Yorty, supra written the facts disclosed in the cartoon here. Notwithstanding editorial, inter- reader could have average accompanying the Governor and the Secre- that cartoon as that stating preted bribes exchange cash tary Transportation accepted Communications and actions favorable Ackerley taking assertions, billboard to the defendants’ Contrary industry. with associated in the cartoon suggests nothing persons Ackerley Communications contributed toward the merely Gov- emor’s The use of the word campaign. “pockets,” along depiction cash the hands bags of the Governor and (who had Secretary no fund to campaign contribu- accept tions), could lead the reader to average conclude that Ackerley Communications bribed the Governor and his cabinet secretary. “[Wjhen an more ‘opinion’ than a something de- generally remark is laden rogatory content, with factual such [and] crimes, commission charging of serious the First Amend- ment confers no absolute Cianci v. immunity.” New Times Co., Publishing 639 F.2d (2d 1980). Cir. Since the *27 reader could have average the cartoon as interpreted charging crime, a serious it is for the to determine jury whether the cartoon was in fact defamatory.
I also think there is an issue of fact for the on whether jury the defendants acted with actual malice in the Ack- publishing cartoon. Actual erley malice is proved “by that the showing falsehood was defamatory that it knowledge was false or reckless disregard whether it was false.” Stone Inc., v. Essex County Newspapers, In this case both the cartoonist and the editor of the editorial were aware that page had not Ackerley in actually put money of the Governor or pockets Secretary Transportation, neither the yet cartoonist nor the editor took to disclose any steps this addition, fact in the cartoon. In both the cartoonist and the editor could not remember whether read the entire they news on which the cartoon was story based. If the were jury to conclude that the cartoon made false and state- defamatory fact, ments of would also be jury warranted in drawing inferences from these in Thus, omissions malice. I finding would remand the case for trial on the cartoon as Ackerley well on the Farrell column. “The of the freedom protection of a does not responsible we insulate press require from for libel the artists liability whose venom and whose pens drip skill drawing far exceeds their cartooning sense of re- for the truth and the sponsibility, respect of their under- depth issues.” standing J., Yorty, supra 479 (Compton, result). concurring