Lane v. Mpg Newspapers

• Decision Date: 16 January 2003
• Citation: 781 NE 2d 800,438 Mass. 476
• Parties: EUGENE T. LANE, JR. v. MPG NEWSPAPERS & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

438 Mass. 476

781 NE 2d 800

EUGENE T. LANE, JR. v. MPG NEWSPAPERS & others.¹

Supreme Judicial Court of Massachusetts, Plymouth.

December 3, 2002.

January 16, 2003.

Present: GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.

Frederick C. Grosser (Richard M. Bennett with him) for the plaintiff.

James C. Heigham (Sarah Chapin Columbia with him) for the defendants.

CORDY, J.

In this case we hold that persons who serve in elective public office, including that of town meeting representative, are "public officials" for purposes of our defamation law. 1. Background. The town of Plymouth (town) is governed by a board of selectmen (board) and a representative town meeting. According to the town charter, town meeting representatives "shall exercise all legislative powers of the town." There are 104 elected town meeting representatives, eight each from thirteen precincts.² They meet once a year to approve bylaws, budgets, and bond issues proposed by the board. Any Plymouth resident or taxpayer may speak at town meeting, but only the elected town meeting representatives may vote on the articles in the town meeting warrant. Town meeting representatives are not compensated for their service or their expenses. They are required to obtain only ten signatures to appear on the ballot, run in nonpartisan elections, and do not report their campaign finances to the office of campaign and political finance. If elected, they serve three-year terms.

The plaintiff, Eugene T. Lane, Jr., is a Plymouth town meeting representative. He does not campaign, raise funds, or publish position papers. In the 1994 election, Lane was elected on the receipt of 345 votes, representing less than one per cent of the total population of the town. Lane is also a Plymouth fire fighter and the son of the chairman of the board. With his brother, he operates a hydroseeding and landscaping business.

The defendant MPG Newspapers is the publisher of The Old Colony Memorial, a weekly newspaper. It employs the defendants Nan Anastasia, Phyllis Hughes, Charles Mathewson, and Mark Pothier.

On July 20, 1995, The Old Colony Memorial published a story that on July 9, 1995, Lane stole water from a town fire hydrant to fill the 500-gallon tank of his hydroseeding truck. The story, entitled "Firefighter Steals Hydrant Water" and subtitled "Selectman's Son Calls Newspaper Story Slander," mentioned in its first paragraph that Lane was a town meeting representative. As the subtitle of the article suggests, Mathewson, the author of the article, conducted an interview with Lane, who denied that he had been in the vicinity of the hydrant that day. After being contacted by Mathewson, however, Lane applied to the town water superintendent for and received a permit to take water from town hydrants. The newspaper delayed publication of the article until July 20 to allow Mathewson an additional week to conduct further fact checking.

Lane filed suit against the defendants in the Superior Court alleging libel and infliction of emotional distress.³ The parties filed cross motions for summary judgment. The motion judge ruled that Lane was neither a public official nor a public figure⁴ by virtue of his job as a fire fighter or his familial relationship to the chairman of the board. The judge also held that the record before him was insufficient to decide whether Lane's status as a town meeting representative made him a public official. Two years later the defendants again moved for summary judgment. On April 10, 2000, the motion judge, applying the criteria set forth in Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (1979), ruled that Lane, as a town meeting representative, was a public official. In addition, he found that Lane had no reasonable expectation of proving that the defendants published the article with actual malice, as required by New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964), and therefore granted summary judgment for the defendants on both the libel claim and the infliction of emotional distress claim.⁵ Lane appealed, and we transferred the case to this court on our own motion. Before us are two issues: (1) whether Lane is a public official, as that term is used in defamation law, due to his position as a town meeting representative; and (2) whether the motion judge properly granted summary judgment for the defendants. 2. Discussion. (a) In the absence of disputed material facts, the question whether a person is a public official is one of law, which we review de novo. See Stone v. Essex County Newspapers, Inc., supra at 862-863.

In New York Times Co. v. Sullivan, supra, the United States Supreme Court held that the protections afforded speech in the First Amendment to the United States Constitution require a public official to prove actual malice⁶ to sustain a claim for defamation based on criticism relating to his official conduct. Id. at 279-280. The Court's decision rested on a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," id. at 270, and on an understanding "[t]hat erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the `breathing space' that they `need... to survive.'" Id. at 271-272, quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963).

The public official in the New York Times case was an elected commissioner of the city of Montgomery, Alabama, and there was no need for the Court to decide whether everyone holding a public position, elected or appointed, was a "public official" for defamation purposes. Consequently, it noted that it was not establishing a test to determine "how far down into the lower ranks" public official status extended. Id. at 283 n.23. Since the decision in New York Times Co. v. Sullivan, supra, there has been decisional law both in State and Federal courts regarding whether certain public employees are "public officials" for defamation purposes. See, e.g., Rosenblatt v. Baer, 383 U.S. 75, 85-86 (1966) (stating that public official status "at the very least" applies to appointed government employees who have substantial responsibility for or control over conduct of government affairs); Rotkiewicz v. Sadowsky, 431 Mass. 748 (2000); Coughlin v. Westinghouse Broadcasting & Cable Inc., 603 F. Supp. 377, 387 (E.D. Pa.), aff'd, 780 F.2d 340 (3d Cir. 1985) (holding police officer to be public official); Nodar v. Galbreath, 462 So. 2d 803, 808 (Fla. 1984) (holding public high school teacher not to be public official); Johnston v. Corinthian Television Corp., 583 P.2d 1101, 1102 (Okla. 1978) (holding public school coach to be public official). In attempting to answer this question, courts have fashioned a variety of "tests" focusing on an employee's responsibilities and status. For example, in Rotkiewicz v. Sadowsky, supra, this court concluded that a police officer was a public official, and enumerated the following factors to be considered in making such a determination:

"`The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.' ... Some of the other relevant considerations ... are the government employee's ability to set policy guidelines that are of importance to public debate; ... the impact of the government position on everyday life; the potential for social harm from abuse of the government position; as well as the employee's access to the press" (citations omitted).

Id. at 753, quoting Rosenblatt v. Baer, supra at 86-87 n.13.⁷

Notably, none of the defamation cases decided by the United States Supreme Court since New York Times Co. v. Sullivan, supra, on the question "how far down into the lower ranks" a public employee must be to escape the public official label, has involved an elected official. See, e.g., Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) (nonelected professor and psychoanalyst); Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (nonelected high school wrestling coach); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (nonelected prominent attorney); Curtis Publ. Co. v. Butts, 388 U.S. 130 (1967) (nonelected public university athletic director); Rosenblatt v. Baer, supra (nonelected county recreation area supervisor).⁸ Similarly, defamation cases decided by our appellate courts have dealt exclusively with the status of appointed public employees. See, e.g., Rotkiewicz v. Sadowsky, supra (police officer); Stone v. Essex County Newspapers, Inc., supra (nonelected local redevelopment authority member); Netherwood v. American Fed'n of State, County & Mun. Employees, Local 1725, 53 Mass. App. Ct. 11 (2001) (nonelected regional school district director of maintenance and transportation).

When they have addressed the status of elected officials, cases decided in Federal jurisdictions are uniform in either deciding or assuming that elected officials are public officials for defamation purposes. See, e.g., Garcia v. Board of Educ. of the Socorro Consol. Sch. Dist., 777 F.2d 1403, 1408 (10th Cir. 1985) (elected school board members); Fadell v. Minneapolis Star & Tribune Co., 557 F.2d 107, 108 (7th Cir. 1977) (elected township tax assessor); Dostert v. Washington Post Co., 531 F. Supp. 165, 166 n.1 (N.D. W. Va. 1982) (elected judge). State courts have been similarly consistent. See Nodar v. Galbreath, supra at 808 n.3 (distinguishing nonelected public school teacher from elected superintendent); Flannery v. Allyn, 75 Ill. App. 2d 365, 373 (1966) ("little doubt that a Commissioner of Police, who was an elected official, is a public official"); Beeching v. Levee, 764 N.E.2d 669, 679 (Ind. Ct. App. 2002) ("elected school board members could easily be determined to be `public officials' because of their elective office"); Sassone v. Elder, 601 So. 2d 792, 797 (La. Ct. App. 1992) (New York...