Aldoupolis v. Globe Newspaper Co.

• Citation: 398 Mass. 731,500 N.E.2d 794
• Parties: , 13 Media L. Rep. 1779 Sharon ALDOUPOLIS, administratrix, 1 v. The GLOBE NEWSPAPER COMPANY et al. 2
• Decision Date: 03 December 1986
• Court: United States State Supreme Judicial Court of Massachusetts

Page 794

500 N.E.2d 794

398 Mass. 731, 13 Media L. Rep. 1779

Sharon ALDOUPOLIS, administratrix, ¹ v. The GLOBE NEWSPAPER COMPANY et al. ²

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 8, 1986.

Decided Dec. 3, 1986.

S. Elaine McChesney (Carol J. Paquin, Boston, with her), for defendants.

Stephen Hrones, Boston, for plaintiff.

Before HENNESSEY, C.J., and LIACOS, NOLAN and LYNCH, JJ.

NOLAN, Justice.

The defendants, Globe Newspaper Company and Ellen Goodman, appeal from the denial of their motion for summary judgment in a defamation action brought by Alexander Aldoupolis. Aldoupolis claimed that he was defamed by a column written by Goodman and published in the Boston Globe on July 26, 1983. We reverse and order judgment to be entered for the defendants. The facts can be summarized as follows.

About six weeks prior to the publication of Goodman's column entitled, "There's a moral in the case of the beaten-up car," Aldoupolis and four other defendants were acquitted of rape charges. The criminal trial was popularly referred to as the "Holbrook Five" rape case, and Goodman's column was a commentary about the outcome of the criminal trial. The criminal charges were initially brought against Aldoupolis and the others because of an incident which took place on January 23, 1980. See Aldoupolis v. Commonwealth, 386 Mass. 260, 435 N.E.2d 330, cert. denied sub nom. Savoy v. Massachusetts, 459 U.S. 864, 103 S.Ct. 142, 74 L.Ed.2d 120 (1982). Aldoupolis and several friends met a woman in a bar and accompanied her to a wooded area in Holbrook. Aldoupolis admitted having sexual relations with the woman, but he claimed that the woman had consented. At the trial, the complaining witness (victim) did not testify, and the two issues which arose were the victim's consent and the credibility of the Commonwealth's chief witness, a participant in the incident who had been granted immunity. Ultimately, Aldoupolis and the other defendants were acquitted of the rape charges, but were found guilty of malicious destruction of property for damaging the victim's car. ³ About six weeks later, Goodman's column appeared in the Boston Globe on the page opposite the editorial page, commonly called the "op-ed" page. ⁴ The following portion of the article is challenged by Aldoupolis as being defamatory: "What is agreed upon by everyone is that the men took turns. While one was jumping her, the others were jumping on her car."

A motion for summary judgment is particularly appropriate in defamation cases because if the allegedly libelous material is not actionably defamatory, there is no genuine issue of material fact for trial. Godbout v. Cousens, 396 Mass. 254, 258, 485 N.E.2d 940 (1985). See Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974).

We begin by noting that statements of pure opinion as distinguished from mixed opinion are protected by the First Amendment to the United States Constitution and are, therefore, not actionable in a defamation suit. Pritsker v. Brudnoy, 389 Mass. 776, 778, 452 N.E.2d 227 (1983). The reason for this protection is that, "[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340, 94 S.Ct. 2997, 3006-3007, 41 L.Ed.2d 789 (1974). In accord with Gertz, several of our recent opinions have found statements which were challenged as defamatory to be nonactionable statements of opinion. See, e.g., Myers v. Boston Magazine Co., 380 Mass. 336, 341, 403 N.E.2d 376 (1980) (statement in a satirical magazine article that a sports announcer was "enrolled in a course for remedial speaking" [he was not so enrolled] was opinion); Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 305-306, 435 N.E.2d 1021 (1982) ("sloppy and irresponsible reporting" and "history of bad reporting techniques" were statements of opinion). Similarly, statements that plaintiff restaurant owners were "pigs" and that a State trooper who stopped a radio commentator for a traffic violation was a "dictator" were held to be nonactionable statements of opinion. Pritsker v. Brudnoy, supra, 389 Mass. at 782, 452 N.E.2d 227. Fleming v. Benzaquin, 390 Mass. 175, 183, 454 N.E.2d 95 (1983). Thus, if Goodman's statement that Aldoupolis took a turn "jumping" the woman is an opinion, the suit must be dismissed. In passing, it may be noted that nowhere in the column does Aldoupolis's name appear, or the names of the other defendants or the name by which the group was known in the newspaper reports of the case, the "Holbrook Five."

The determination whether a statement is a factual assertion or an opinion is a question of law if the statement unambiguously constitutes either fact or opinion. Myers, supra, 380 Mass. at 339, 403 N.E.2d 376. However, if a statement is susceptible of being read by a reasonable person as either a factual statement or an opinion, it is for the jury to determine. Id. at 339-340, 403 N.E.2d 376. In resolving whether the statement constitutes an opinion or an assertion of fact as a matter of law, the court must "examine the statement in its totality in the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published." Id. at 341-342, 403 N.E.2d 376, quoting Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980).

In applying this test, we conclude that the statement challenged by the plaintiff cannot reasonably be read as anything but a statement of opinion. The plaintiff urges us to focus on the two sentences at the beginning of the fifth paragraph of Goodman's column. However, we review the statement in its totality and in the context in which it was uttered or published. Read in context, the challenged statement is part of an opinion by Goodman that the judicial system treats automobiles better than it does women. This is evident from the comparison of an automobile and a woman which Goodman makes throughout the column. She uses the rhetorical device of personification to make an automobile a person and by an adroit cadence of parallel sentences compares the favorable treatment of a motor vehicle to the shabby treatment of women in rape cases. We must also consider cautionary terms used in a challenged statement, and here Goodman clearly stated that the plaintiff was found "innocent of damaging the woman." Finally, we must consider the medium by which the challenged statement is disseminated and the audience to which it is published. This inquiry confirms our conclusion that Goodman's column was a statement of opinion. The statement was disseminated to its readers on the op-ed page of the Boston Globe. The op-ed page consists of signed columns by a host of writers who express their opinions on a variety of topics. Moreover, readers of the op-ed page no doubt expect to read columnists' views and opinions as opposed to factual news stories. Although the appearance of the column on the op-ed page, without more, is not at all dispositive, it is nevertheless some indication that the statements made in the column are opinions. See Loeb v.Globe Newspaper Co., 489 F.Supp. 481, 483, 486 (D.Mass.1980) (defendant entitled to summary judgment because statements were opinions).

Further to the point is the absence of undisclosed, defamatory facts. Goodman recited the facts and the result of the criminal cases and left the reader in no position to draw inferences as to undisclosed, defamatory facts. See Fleming v. Benzaquin, supra, 390 Mass. at 187, 454 N.E.2d 95; Restatement (Second) of Torts § 566 (1977). Thus, the statements challenged by the plaintiff are...