Lyons v. Globe Newspaper Co.

• Decision Date: 13 May 1993
• Citation: 612 N.E.2d 1158,415 Mass. 258
• Parties: , 21 Media L. Rep. 1977 Kenneth T. LYONS & another 1 v. GLOBE NEWSPAPER COMPANY & others. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1158

612 N.E.2d 1158

415 Mass. 258, 21 Media L. Rep. 1977

Kenneth T. LYONS & another ¹ v. GLOBE NEWSPAPER COMPANY & others. ²

Supreme Judicial Court of Massachusetts Suffolk.

Argued Jan. 6, 1993.

Decided May 13, 1993.

Jonathan M. Albano (E. Susan Garsh, with him), for defendants.

Neal M. Brown (Meryl A. Kukura, with him), for plaintiffs.

Before LIACOS, C.J., and WILKINS, ABRAMS and GREANEY, JJ.

LIACOS, Chief Justice.

This report comes to us on a stipulation of agreed facts, together with the pleadings and certain memoranda of law submitted to the trial judge. The underlying action is a defamation suit brought against Globe Newspaper Company, the publisher of The Boston Globe and The Boston Sunday Globe, and three of its reporters. The plaintiffs are the National Association of Government Employees, Inc. (NAGE), by its member union International Brotherhood of Police Officers, and the national president of NAGE (Lyons).

The facts are as follows. On June 2, 1990, the Massachusetts Democratic party held a political convention in Springfield to nominate candidates for State-wide office. Picketing organized by the Springfield police union precluded the convention from beginning at its scheduled time. For several hours, the picket line barred most delegates and candidates from the convention hall. The deadlock was broken in the early Following the judge's order, the convention was allowed to proceed. Four candidates competed for the gubernatorial nomination: Francis X. Bellotti, John H. Flood, Evelyn Murphy, and John Silber. Convention rules required that each individual candidate obtain at least 15% of the delegates' vote in order to qualify for the Democratic party's primary ballot. Francis X. Bellotti won the gubernatorial nomination. Both Evelyn Murphy and John Silber qualified for the party's primary ballot.

afternoon when a judge of the Superior Court ruled the picketing illegal and enjoined the police union from further demonstrating.

On the next day, the Boston Globe published an article on the convention and its disruption. See Appendix. The article stated that the picketing held the convention "hostage," and advanced three alternative explanations for the picketers' motives. First, the article referred to a labor dispute. Next, the article cited Democratic leaders' suspicion that members of the Republican party had "engineered the picketing as a political dirty trick." The Springfield police union, the article stated, had endorsed George Bush in the 1988 presidential elections. Thirdly, the article stated that "[c]ritics of Silber also voiced suspicions that his supporters promoted the picket line to undercut the convention. The Springfield police union is a member of the National Association of Government Employees which is headed by Silber supporter Kenneth Lyons." The article added that supporters of John Silber had doubted his ability to garner 15% of the vote, and had "tried to exploit the confusion caused by the police picket to do away with the 15 percent rule."

The article reported the statements of various individuals who denounced the picketing. Comments attributed to Luis Prado, the executive director of La Alianza Hispana of Roxbury and a former United Nations monitor in Nicaragua, were reported to state that Prado thought "the situation was far worse than the February elections in Nicaragua." The article also quoted him as saying that the "Sandinistas never dared to do anything like that. This is like using brute force in politics."

On June 14, 1990, the plaintiffs commenced the present action in the Superior Court. In their complaint, the plaintiffs alleged that the article defamed them by conveying to the readers that the plaintiffs had conspired with the Springfield police union, with John Silber, and with Republican leaders, to disrupt the convention and to attempt to cause its cancellation. The plaintiffs also alleged that the article implied that they had engaged in criminal behavior, namely, conspiring to deprive the Democratic delegates of their civil rights peaceably to assemble to nominate candidates for elections. ³

On October 9, 1990, the defendants moved to dismiss the complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). A judge of the Superior Court held a hearing and, with the agreement of the parties, treated the defendants' motion as one for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). The judge denied the motion and reported the "case" as well as ten questions of law with stipulated facts to the Appeals Court.

                See Mass.R.Civ.P. 64, 365 Mass. 831 (1974). 4  We transferred the case to this court on our own motion
                

The defendants urge us to hold that the denial of their summary judgment motion was error because the challenged portions of the article constitute expressions of opinion protected by the First Amendment to the United States Constitution, art. 16 of our Declaration of Rights, and the common law of this Commonwealth.

The plaintiffs argue in response that the challenged article implies that "NAGE and Lyons used their influence, brute force, and the police apparatus, and resorted to violence and intimidation in order to subvert the rules in an effort to prohibit the Democratic State Convention from taking place, all with the ultimate goal of illegally getting Silber on the ballot; not unlike the infamous 'Reichstag Fire.' " The plaintiffs also claim that the article accuses them of "subversive conduct" and of criminal acts exceeding "the level of atrocities committed by the Sandinistas." Such accusations, they contend, constitute actionable statements of defamatory facts. Relying in part on the decision of the United States Supreme Court in Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), the plaintiffs contend that they have a cause of action for defamation even if we characterized the challenged statements as expressions of opinion.

In National Ass'n of Gov't Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 227, 396 N.E.2d 996 (1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980), we adopted the principles governing expressions of opinion set forth in § 566 of Restatement (Second) of Torts (1977). We held that "[a] defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." We explained that, under this rule, " '[a] simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is. But an expression of opinion that is not based on disclosed or assumed facts and therefore implies that there are undisclosed facts on which the opinion is based, is treated differently.' Thus if I write, without more, that a person is an alcoholic, I may well have committed a libel prima facie; but it is otherwise if I write that I saw the person take a martini at lunch and accordingly state that he is an alcoholic." Id. 379 Mass. at 227-228, 396 N.E.2d 996, quoting Restatement (Second) of Torts § 566 comment c, second par. (1977). See Myers v. Boston Magazine Co, 380 Mass. 336, 339, 403 N.E.2d 376 (1980). ⁵

In order to receive protection under these principles, a challenged statement first must qualify as an expression of opinion. If "the statement unambiguously constitutes either fact or opinion," this issue is a question of law for the court to decide. Myers, supra at 339, 403 N.E.2d 376, quoting Good Gov't Group of Seal Beach, Inc. v. Superior Court, 22 Cal.3d 672, 682, 150 Cal.Rptr. 258, 586 P.2d 572 (1978), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). 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." Fleming v. Benzaguin, 390 Mass. 175, 180-181, 454 N.E.2d 95 (1983), quoting Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 309, 435 N.E.2d 1021, cert. denied, 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603 (1982). See Myers v. Boston Magazine Co., supra, 380 Mass. at 341-342, 403 N.E.2d 376.

Applying these principles, we conclude that the statements challenged in the present case could be understood only as expressions of opinion and reasonably could not be construed as stating facts. The article stated that Silber critics "voiced suspicion" that his supporters had sought to undercut the convention. The word "suspicion," defined as the act of "suspecting ... something wrong ... without proof or on slight evidence," see Webster's Third New Int'l Dictionary 2304 (2d ed. 1959), plainly cautioned the reader that the article referred to a theory rather than to facts. The article discussed three alternative explanations for the picketers' motives, thereby confirming that the writer was engaging in speculation. Finally, the reported suspicion was uttered in the context of a heated political campaign and a labor dispute. The ordinary reasonable reader would be particularly skeptical of politically self-serving statements made in this context. See National Ass'n of Gov't Employees, supra, 379 Mass. at 229, 396 N.E.2d 996. ⁶

We turn next to the issue whether the expressions of opinion found in the challenged article were based on disclosed nondefamatory facts or whether they implied "that there are undisclosed facts on which the opinion is based." Id. 379 Mass. at 227, 396 N.E.2d 996, quoting ...