427 Mass. 129 | Mass. | 1998
This matter arises from a report to the Appeals Court of the propriety of an order of a Superior Court judge denying the defendants’ motion for summary judgment. We allowed the defendants’ application for direct appellate review.
Facts.
The defendant Harvard Student Agencies, Inc., prepares, and the codefendant St. Martin’s Press, Inc., publishes annually a budget travel guide known as “Let’s Go: Egypt & Israel.” The 1989 edition stated, in reference to the plaintiff’s youth hostel: “Women should not stay here, nor should men who don’t want to encourage harassment. The manager, Itzik, was being sued on sexual harassment charges by 3 different women during the summer of 1988.” Similarly, the defendants’ 1990 edition opined, “Let’s Go strongly recommends that travelers DO NOT stay here. Don’t let the beautiful neighborhood and calm exterior fool you. If management changes, this could be a great hostel; check at the tourist office.”
These two statements were the basis of the plaintiff’s libel action. A judge subsequently dismissed the plaintiff’s claim as to the 1989 statement on the ground that a New York court had already deemed it time barred.* *
Discussion.
General Laws c. 231, § 92, provides: “The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved” (emphasis added). Thus, under the statute, if a plaintiff shows that the defendant acted with malice in making a defamatory statement, the plaintiff may recover — even if the statement is true.
The United States Supreme Court has consistently held in defamation cases that, in order to avoid offending a publisher or broadcaster’s First Amendment rights, a plaintiff must establish the existence of a “defamatory falsehood.” See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). Where the plaintiff is deemed a “public figure,” the Court has expressly concluded that the First Amendment “absolutely prohibits punishment of truthful criticism.” Garrison v. Louisiana, 379 U.S. 64, 78 (1964), citing New York Times Co. v. Sullivan, supra. If an individual “has published the truth, and no more [about a public person], there is no sound principle which can make him liable, even if he was actuated by express malice.”* **
In Materia v. Huff, 394 Mass. 328, 329 (1985), both the defendant and the plaintiff were candidates for elected office in their labor union. As such, they were “public figures.” Id. at 331-332. Citing the Court’s decisions in New York Times Co. v.
Although the Supreme Court has instructed that private figure plaintiffs may recover “on a less demanding showing than that required” in cases of public figure plaintiffs, Gertz v. Robert Welch, Inc., supra at 348, the falsity of the defendant’s defamatory statement regarding matters of public concern remains a prerequisite to recovery. In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-769 (1986), the Court held that, where “a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false.” There, a private individual filed a libel suit against a newspaper for its articles linking this individual to organized crime and influence peddling. Id. at 769. These articles, the Court determined, were “of public concern.” Id. at 776. Acknowledging the deterrent effect of placing the burden of proving truth on defendants who publish speech of public concern, the Court fashioned “a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.” Id. More recently, the Court, in Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990), concluded that Philadelphia Newspapers, Inc. v. Hepps, supra, stands for the proposition that “a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant is involved.” See Friedman v. Boston Broadcasters, Inc., 402 Mass. 376, 381 (1988) (“These were statements about a matter of public concern, and therefore ... in order for them to be the basis of a recovery from this media defendant, the plaintiffs must prove not only that the statements were defamatory, but also that they were false”).
Factually, the circumstances of the present case closely resemble those in Philadelphia Newspapers, Inc. v. Hepps, supra. The judge here correctly decided that, because the plaintiff had not “voluntarily inject[ed] himself” or become “drawn into a particular public controversy,” Gertz v. Robert Welch, Inc., supra
“Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as the large metropolitan publisher who utilizes the latest photocomposition methods. . . . Freedom of the press is a ‘fundamental personal right’ which ‘is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.’’ Lovell v. Griffin, 303 U.S. 444, 450, 452 (1938). See also Mills v. Alabama, 384 U.S. 214, 219 (1966); Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943). The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists.” (Emphasis added.)
Branzburg v. Hayes, 408 U.S. 665, 704-705 (1972). We feel compelled, therefore, by the Supreme Court’s view of the First Amendment to require that this plaintiff’s recovery be predicated, in part, on proof that the defamatory statements were untrue.
General Laws c. 231, § 92, offers a plaintiff the opportunity to recover for a defendant’s truthful defamatory statement made with malice. To apply this statute to the defendants’ truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment.
So ordered.
We acknowledge the amicus brief submitted on behalf of the defendants by the Massachusetts Newspaper Publishers Association. We also note that the
The judge ruled that, under the full faith and credit clause of the United States Constitution, Massachusetts courts must honor the judgment of a New York court, despite the fact that New York’s statute of limitations differs from that of Massachusetts. See Roche v. McDonald, 275 U.S. 449, 452 (1927). That ruling is not before us on appeal.
The defendants also maintained that their 1990 statement was not actionable because (1) it was merely an expression of opinion, and therefore
In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986), the Court acknowledged that “[o]ur opinions to date have chiefly treated the necessary showings of fault rather than of falsity. Nonetheless, as one might expect given the language of the Court in New York Times [Co. v. Sullivan, 376 U.S. 254, 279 (1964)] . . . , a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation.”
Where the relevant facts are not disputed, it is for the judge to determine whether a plaintiff is a public or private figure. See Rosenblatt v. Baer, 383 U.S. 75, 88 (1966); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 862 (1975). “We look ‘to the nature and extent of [the plaintiff’s] participation in the particular controversy giving rise to the defamation.’ ” Materia v. Huff, 394 Mass. 328, 331 (1985), quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974). When “an individual voluntarily injects himself or is drawn into a particular public controversy[, he] thereby becomes a public figure for a limited range of issues.” Gertz v. Robert Welch, Inc., supra at 351. See Bowman v. Heller, 420 Mass. 517, 523, cert. denied, 516 U.S. 1032 (1995).
“Whether . . . speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context ... as revealed by the whole record.” Dun & Bradstreet, Inc. v. Greenmoss Bldrs., Inc., 472 U.S. 749, 761 (1985), quoting Connick v. Myers, 461 U.S. 138, 147-148 (1983).
The Supreme Court has reserved judgment on the standards to be applied to nonmedia defendants. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 n.6 (1990); Philadelphia Newspapers, Inc. v. Hepps, supra at 779 n.4.