King v. Globe Newspaper Co.

• Decision Date: 17 August 1987
• Citation: 400 Mass. 705,512 N.E.2d 241
• Parties: , 14 Media L. Rep. 1811 Edward J. KING v. The GLOBE NEWSPAPER COMPANY et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 241

512 N.E.2d 241

400 Mass. 705, 14 Media L. Rep. 1811

Edward J. KING v. The GLOBE NEWSPAPER COMPANY et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 5, 1987.

Decided Aug. 17, 1987.

Robert H. Goldman (Alan M. Cohen, Lowell, with him), for plaintiff.

Joseph L. Kociubes (Robin A. Driskel and Don E. Gorton, III, Boston, with him), for defendants.

Before WILKINS, LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

This is a libel action brought by former Governor of the Commonwealth Edward J. King against The Globe Newspaper Company, publisher of The Boston Globe and The Boston Sunday Globe (Globe), two Globe columnists, David Farrell and Robert L. Turner, and a Globe cartoonist, Paul Szep. The complaint is in twelve counts. In the first two counts, the plaintiff alleges that he was libeled by an article written by the defendant Farrell and published by the Globe on November 8, 1981. Counts 3 and 4 make the same allegations with respect to an article written by Farrell and published by the Globe on November 22 1981. Counts 5 and 6 assert that the plaintiff was libeled by a column authored by the defendant Turner and published by the Globe on January 10, 1980. Three cartoons created by the defendant Szep and an editorial accompanying one of them, appearing on various dates in the Globe, are the focus of Counts 7 through 12.

The defendants filed a motion for summary judgment. The motion was denied by a judge in the Superior Court. More than two years later, however, another judge allowed the same motion as to all counts. The second judge ruled that the cartoons and the challenged statements in all but one of the articles were constitutionally protected expressions of opinion. He concluded that the statement in Farrell's article, published on November 8, 1981, alleged by the plaintiff to be libelous, was a statement of fact rather than opinion, but that it was neither defamatory nor malicious. To be actionable, a defamatory statement of fact about a public official must have been made with malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). The plaintiff appealed, and we granted his application for direct appellate review. We affirm the judgment as to all counts except Counts 1 and 2, the counts based on Farrell's November 8, 1981, article. We reverse the judgment as to Counts 1 and 2, and we remand the case to the Superior Court for trial on those counts.

We begin our review with a brief discussion of the propriety of a judge's having considered, and then allowed, the defendants' motion for summary judgment after another judge in the same court had denied it. "Though there is no duty to reconsider a case, an issue, or a question of fact or law, once decided, the power to do so remains in the court until final judgment...." Peterson v. Hopson, 306 Mass. 597, 601, 29 N.E.2d 140 (1940). "A judge should hesitate to undo his own work.... Still more should he hesitate to undo the work of another judge.... But until final judgment ... there is no lack of power, and occasionally the power may properly be exercised." (Citations omitted.) Id. at 603, 29 N.E.2d 140. See Dolan v. Von Zweck, 19 Mass.App.Ct. 1032, 1034, 477 N.E.2d 200 (1985), and cases cited. Noting his reluctance to entertain a motion on which another judge had previously ruled, the judge nevertheless concluded that this case presented "many compelling reasons ... to take a 'fresh look' at certain of the issues raised." One of those reasons, sufficient by itself, is that summary judgment procedures are especially favored in defamation cases. Godbout v. Cousens, 396 Mass. 254, 258, 485 N.E.2d 940 (1985). "Allowing a trial to take place in a meritless case 'would put an unjustified and serious damper on freedom of expression.' " Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 37, 478 N.E.2d 721 (1985), quoting National Ass'n of Gov't Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 233, 396 N.E.2d 996 (1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980). Even if a defendant in a libel case is ultimately successful at trial, the costs of litigation may induce an unnecessary and undesirable self-censorship. See New York Times Co. v. Sullivan, supra, 376 U.S. at 279, 84 S.Ct. at 725-26. We agree with the judge that a second look at the motion for summary judgment was appropriate. This is particularly true in light of the considerable discovery that took place following the first judge's denial of the motion.

The judge allowed the defendants' motion for summary judgment with respect to Counts 3 through 12 on the ground that the cartoons and articles which those counts addressed were constitutionally protected expressions of opinion. In his thorough and scholarly memorandum of decision, the judge focused on the critical distinction in the law of defamation between statements of opinion and statements of fact. See Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 308, 435 N.E.2d 1021, cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603 (1982). Statements of fact may expose their authors or publishers to liability for defamation, but statements of pure opinion cannot. Statements of pure opinion are constitutionally protected. Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 733, 500 N.E.2d 794 (1986). Pritsker v. Brudnoy, 389 Mass. 776, 778, 452 N.E.2d 227 (1983). "Under the First Amendment there is no such thing as a false idea. However 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. But there is no constitutional value in false statements of fact." (Footnote omitted.) Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974).

Of course, it is much easier to recognize the significance of the distinction between statements of opinion and statements of fact than it is to make the distinction in a particular case. "[I]t is hard to draw a bright line between 'fact' and 'opinion.' " Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302 (8th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 272, 93 L.Ed.2d 249 (1986). Nevertheless, sensible lines must be drawn. "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." Aldoupolis v. Globe Newspaper Co., supra 398 Mass. at 733, 500 N.E.2d 794, citing Myers v. Boston Magazine Co., 380 Mass. 336, 339, 403 N.E.2d 376 (1980). However, the determination whether a statement is a factual assertion or is a statement of pure opinion is a question of fact if the statement reasonably can be understood both ways. See Aldoupolis, supra; Myers, supra 380 Mass. at 339-340, 403 N.E.2d 376. Therefore, in an action of libel, the defendant is entitled to summary judgment if the challenged statement cannot reasonably be construed as a statement of fact.

Numerous cases decided by this court and others have identified factors that tend to show whether a particular statement is one of fact or of opinion. We shall discuss some of these factors in connection with our individual treatment of the cartoons and articles in issue in this case. We note at this point, however, that the purpose for which the distinction between fact and opinion is made is of paramount importance in making the distinction. Thus, the distinction between fact and opinion in a libel case involving a public figure, as here, must reflect "a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, supra 376 U.S. at 270, 84 S.Ct. at 721. Of course, the distinction must also reflect our concern for the legitimate rights of individuals to reputations unsullied by defamatory remarks. We must strive for an appropriate balance between those competing values. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 855, 330 N.E.2d 161 (1975). Ollman v. Evans, 750 F.2d 970, 974 (D.C.Cir.1984), cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985). Thus, while in a criminal case the motive or intent of the defendant in performing an act is ordinarily treated as a question of fact, in a libel action a statement about a public official's motive or intent is ordinarily treated as a statement of opinion. Janklow v. Newsweek, Inc., supra at 1302, 1305.

We turn now to the specific cartoons and articles alleged to be libelous. On May 12, 1981, the Globe published a Szep cartoon, depicting the plaintiff attired in a striped suit, a black shirt, and a white necktie on which the words "Can Do" appear. The plaintiff is holding a hat with an attached pinwheel, and he is handcuffed to a police officer who is reading to another officer seated at a desk an apparent list of the plaintiff's appointees. The following words appear beneath the cartoon: "the appointment and forced resignation of Stephen Guptill, the appointment and forced resignation of Stephen Clifford, the appointment and forced resignation of Thomas DiSilva, the appointment and forced resignation of John Haggerty, the appointment and forced resignation of Barry Locke...." A copy of this cartoon appears as Appendix A to this opinion. In determining whether a statement can reasonably be construed as a statement of fact, it is appropriate to consider "the medium by which the statement is disseminated." Cole v. Westinghouse Broadcasting Co., supra 386 Mass. at 309, 435 N.E.2d 1021, quoting Information Control Corp. v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980). "Cartoons are seldom vehicles by which facts are reported; quite the contrary, they are deliberate departures from reality designed forcefully, and sometimes...