Schrottman v. Barnicle

• Decision Date: 29 June 1982
• Citation: 386 Mass. 627,437 N.E.2d 205
• Parties: , 8 Media L. Rep. 2068 Edward A. SCHROTTMAN v. Michael BARNICLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 205

437 N.E.2d 205

386 Mass. 627, 8 Media L. Rep. 2068

Edward A. SCHROTTMAN v. Michael BARNICLE.

Supreme Judicial Court of Massachusetts Suffolk.

Argued March 1, 1982.

Decided June 29, 1982.

James F. McHugh, Boston (William G. Southard, Boston, with him), for defendant.

Ellen Y. Suni, Boston (Jack I. Zalkind, Boston, with her), for plaintiff.

Before HENNESSEY, C. J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

This case, which began as a claim of libel and invasion of privacy against a newspaper, an editor, and a reporter, was tried without jury before a judge of a District Court sitting by assignment in the Superior Court who found for the plaintiff against the reporter. The principal issue on appeal is whether the rule of Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161 (1975), that a "private" person may recover for libel upon proof of negligence, should apply retroactively to the defendant's newspaper article. We conclude that the Stone negligence standard should apply to this case and that the evidence is sufficient to warrant a finding of negligence. We remand the case to the Superior Court for findings by the trial judge on the issue of negligence.

The plaintiff is the proprietor of a gasoline station on Blue Hill Avenue in Dorchester. On January 8, 1973, Michael Barnicle, a columnist for the Boston Globe newspaper and a stranger to the plaintiff, visited the plaintiff's gasoline station. At the time, Barnicle was gathering information for one of a series of articles on "regular working people in the neighborhoods who are not usually covered by newspapers." He engaged the plaintiff in a conversation about the neighborhood and the plaintiff's life and business.

On January 30, 1973, an article by Barnicle, entitled "Blue Hill Av.: changing scene, way of life," appeared in the Boston Globe newspaper. The article attributed several remarks to the plaintiff, notably the statement that "life on Blue Hill avenue in 1972 ... is 'o.k. if you're a nigger.' " ¹ The plaintiff brought this action against Barnicle, the Boston Globe, and Thomas Winship (editor of Boston Globe), charging that the article had caused him mental suffering, as well as loss of business and reputation.

At trial, much of the testimony centered on what the plaintiff had said in his conversation with Barnicle on January 8. The plaintiff asserted that he had not made the statement quoted above, and had not used the term "nigger." Barnicle maintained that he had. The plaintiff also denied certain information recited in the article, such as a statement that he had moved to the suburbs for fear that his wife and children would be mugged in the Blue Hill Avenue area. On other points, the parties' descriptions of the interview were similar.

The parties presented various evidence bearing on the methods by which Barnicle gathered and recorded information. Barnicle testified that he had, in the course of one day, interviewed a number of business proprietors on Blue Hill Avenue. He had then returned to his office to write the article, relying on a combination of notes and memory. Although Barnicle asserted that he had taken notes during his interview with the plaintiff, the plaintiff testified, and the judge found, that Barnicle had taken no notes in the plaintiff's presence.

The judge also had before him Barnicle's notes, which covered seven interviews. The phrase "o.k. if you're a nigger" appears on the third page of the notes, but is not set off by quotation marks. The plaintiff's name is interlineated just above the phrase, but appears again several lines below. The balance of the notes between the plaintiff's name and that of the next interview subject mention some but not all of the statements and information attributed to the plaintiff in the article.

Pursuant to a pretrial order, the parties submitted to the judge a stipulation listing six questions, which they described as the "factual issues presented." Following this list, the judge found that (1) the article was libelous, because it attributed to the plaintiff a racial epithet that suggested he was a bigot, and therefore held him up to scorn, hatred, ridicule, or contempt by respected members of the community; (2) Barnicle had not identified himself to the plaintiff as a reporter and had received no permission from the plaintiff to publish the statements in the article; (3) the article addressed a matter of public interest; (4) the defendant Thomas Winship had not actively participated in publication of the article; (5) the "things attributed to [the plaintiff] in the article, in their most essential parts, were not said by him"; and (6) the plaintiff had suffered mental anguish and damage to his reputation. The judge then entered judgment in the plaintiff's favor against Barnicle in the amount of $25,000, based on the claim of libel. ² He also entered judgments in favor of the defendants Boston Globe newspaper and Thomas Winship. Barnicle appealed, and we transferred the case to this court on our own motion.

1. Retroactive Application of Negligence Standard.

There is no question that the plaintiff is a private person and that under current standards, a private person may recover for libel upon proof that the defendant acted negligently in publishing defamatory material. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 851, 858, 330 N.E.2d 161 (1975). Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789 (1974). Barnicle contends, however, that his conduct should be judged by the standard of liability prevailing in 1973, when he wrote the article at issue. He further argues that the law in 1973 required proof of "actual malice" in any libel action in which the allegedly libelous publication addressed matters of public concern, even though the plaintiff was a private person. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44, 91 S.Ct. 1811, 1820, 29 L.Ed.2d 296 (1971) (opinion of Brennan, J.).

Decisional law is generally applied "retroactively" to past events. Tucker v. Badoian, 376 Mass. 907, 919, 384 N.E.2d 1195 (1978) (Kaplan, J., concurring). In an ideal world, courts are said to find and declare law, rather than to create new law that might surprise past actors. 1 W. Blackstone, Commentaries * 69. See Mishkin, Forward: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56, 58-60 (1965); Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L.J. 907, 945-946 (1962). Moreover, retroactive application of decisional law provides the necessary incentive to those aggrieved to press for change and improvement in law, and is consistent with the institutional duty of courts to resolve disputes brought before them. See Mishkin, supra at 60-62, 70-72; Note, supra at 912. Nevertheless, it is sometimes necessary to depart from the general rule of retroactivity, in order to protect the reasonable expectations of parties. E.g., Johnson Controls, Inc. v. Bowes, 381 Mass. 278, --- - ---, Mass.Adv.Sh. (1980) 1831, 1835-1836, 409 N.E.2d 185; Rosenberg v. Lipnick, 377 Mass. 666, 671, 389 N.E.2d 385 (1979); Tucker v. Badoian, supra, 376 Mass. at 918-919, 384 N.E.2d 1195 (Kaplan, J. concurring). See Traynor, Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility, 28 Hastings L.J. 533, 545-546 (1977) (reliance on law in planning private conduct more likely in fields of contract and property than in tort).

In McIntyre v. Associates Financial Servs. Co. of Mass., Inc., 367 Mass. 708, 328 N.E.2d 492 (1975), we summarized the principles that determine whether an exception to retroactivity is warranted. The applicability of newly announced decisional law to past events should depend on (1) the extent to which the decision creates a novel and unforeshadowed rule; (2) the benefits of retroactive application in furthering the purpose of the new rule; and (3) the hardship or inequity likely to follow from retroactive application. Id. at 712, 328 N.E.2d 492. On this analysis, we conclude that the negligence standard established in Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161 (1975), should apply to the present case. Accord, Taskett v. King Broadcasting Co., 86 Wash.2d 439, 448-450, 546 P.2d 81 (1976).

Application of the first McIntyre factor to the present case is complicated by a dispute as to what standard Stone displaced, and which party was aided by the change. Some discussion of chronology is necessary to explain the problem. Before 1964, the First Amendment to the United States Constitution was not thought to affect recovery for defamation. Publication of a defamatory falsehood was sufficient ground for liability, even when the defendant was not at fault in any degree. See Sweet v. Post Publishing Co., 215 Mass. 450, 452-455, 102 N.E. 660 (1913); Burt v. Advertiser Newspaper Co., 154 Mass. 238, 242-245, 28 N.E. 1 (1891). In 1964, the Supreme Court held, in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), that defamatory falsehoods concerning a public official are privileged unless published with "actual malice." Under the "actual malice" standard, a public official can recover for defamation only upon proof that the defendant acted with knowledge of the falsity of his statements, or with reckless disregard of the truth. Id. at 279-280, 84 S.Ct. at 725-726. See St. Amant v. Thompson, 390 U.S. 727, 730-731, 88 S.Ct. 1323, 1325-1326, 20 L.Ed.2d 262 (1968) (subjective standard); Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094 (1967) (actual malice standard applies to "public figures" as well as public officials).

In 1971, the Court decided Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811 29 L.Ed.2d 296 (1971). In Rosenbloom, a plurality of three Justices expressed the view that the actual malice standard...