Myers v. Boston Magazine Co., Inc.

• Decision Date: 03 April 1980
• Parties: , 6 Media L. Rep. 1241 James D. MYERS, Jr. v. BOSTON MAGAZINE COMPANY, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 376

403 N.E.2d 376

380 Mass. 336, 6 Media L. Rep. 1241

James D. MYERS, Jr. v. BOSTON MAGAZINE COMPANY, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 7, 1980.

Decided April 3, 1980.

Joyce Wheeler Poulin, Cambridge, for plaintiff.

Joseph D. Steinfield, Boston, for defendant.

Before QUIRICO, BRAUCHER, KAPLAN, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

The plaintiff (Myers) commenced this action on May 23, 1977, in the Superior Court for Suffolk County. His complaint alleged, inter alia, that the defendant, Boston Magazine Company, Inc., caused to be published false statements about him which injured his reputation, held him up to ridicule, and injured him in his profession. The alleged statements were that Myers was the "worst" sports announcer in Boston, that he was "enrolled in a course for remedial speaking," and that he was not "knowledgeable," "articulate" or "serious" about the business of "sports coverage." Myers also alleged that the defendant's statements were not privileged and that the magazine's agents made the statements with actual malice. On June 28, 1977, the defendant moved to dismiss the complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), on the grounds that the defendant's statements were expressions of opinion and constituted fair comment regarding a public figure. On July 14, 1977, the judge granted the motion and entered judgment for the defendant. The plaintiff appealed. The Appeals Court reversed that judgment (the panel was divided, two to one), holding that one of the statements in question could reasonably be interpreted as a defamatory statement of fact, not a statement of opinion. Myers v. Boston Magazine Co., --- Mass.App. --- ^a, 389 N.E.2d 779 (1979). We granted the defendant's petition for further appellate review. We affirm the judgment of the trial court.

According to Myers' complaint, he is a local television sports news announcer. The defendant publishes Boston Magazine, a monthly periodical, which printed in its September, 1976, issue, at page 71, the statements in question. Myers has appended to his complaint a copy of the entire page, and the majority and dissenting opinions in the Appeals Court have provided extensive excerpts and description. Therefore, we do not describe the page in its entirety. Instead, we provide an abbreviated account to put the alleged libel in context.

The page's title, in conspicuous type, is "Best & Worst: SPORTS." Dominating the center of the page are two adjacent columns, each containing four cartoons; for example, a football player about to pass a large lemon. On either side of this central double column is a narrow column of four print items. Each item bears a conspicuous title corresponding to the subject of the adjoining cartoon, and the item itself contains relatively small print. The title identifies the category of "best" and "worst" selections announced in the item. Few of the categories conceivably qualify as involving "serious" sports subjects; typical examples are "Locker" and "Sports groupie." Each print item contains a paragraph beginning "Best" and one beginning "Worst." Each paragraph states the author's choice and includes an explanation. The pervasive mood of these explanations is rough humor; they are "one-liners," and the propositions they assert are generally preposterous. For example, under the heading "Sexy Athlete" which borders the item about Myers, the second paragraph reads "Worst: The Bruins. You'd look like a gargoyle, too, if you spent a lifetime fielding pucks with your face." It is in this context, in the upper left-hand corner of the page, that the allegedly defamatory statements appeared: "Sports announcer. Best : Clark Booth, Channel 5. Knowledgeable and articulate, he writes his own copy and reads it with the conviction that sports coverage is a serious business. Worst : Jimmy Myers, Channel 4. The only newscaster in town who is enrolled in a course for remedial speaking."

Myers' arguments focus on the allegedly false statement about "remedial speaking." He argues that the statement should be read as an assertion of fact, not opinion. Specifically, he contends that the statement is neither a protected amplification of a statement of opinion, nor an example of mere hyperbole or rhetorical excess. Myers also argues that the statement is defamatory and that the defense of fair comment is not available on a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). ¹ Myers does not dispute that he is a public figure, nor that the challenged language involves a matter of public concern.

Only recently, in National Ass'n of Gov't Employees v. Central Broadcasting Corp., --- Mass. ---, --- - --- ^b, 396 N.E.2d 996 1000 (1979), we set out the law governing defamatory opinions: " '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.' Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974) (footnote omitted). From these principles, with their constitutional roots, the American Law Institute derived § 566 of Restatement (Second) of Torts (1977): 'Expressions of Opinion. 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.' The matter is put thus in Comment c, second par.: '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 he is an alcoholic. See Illustrations 3 and 4 to § 566. The rule and the distinction are confirmed by the recent cases" (citations omitted). ²

It is clear that if the statements complained of by the plaintiff must be viewed as statements of opinion rather than of fact, the defendant's motion to dismiss, based on this ground, properly was allowed. We turn first to this question. Several courts have characterized the determination whether a statement is one of fact or opinion as a question of law. E. g., Gregory v. McDonnell Douglas Corp., 17 Cal.3d 596, 601, 131 Cal.Rptr. 641, 552 P.2d 425 (1976); Bucher v. Roberts, Colo., 595 P.2d 239, 241 (1979); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 381, 397 N.Y.S.2d 943, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977). The Supreme Court of California has amplified this proposition. "(T)he distinction between fact and opinion is a question of law . . . if the statement unambiguously constitutes either fact or opinion. Where, . . . however, the allegedly libelous remarks could have been understood by the average reader in either sense, the issue must be left to the jury's determination." Good Gov't Group of Seal Beach, Inc. v. Superior Court, 22 Cal.3d 672, 682, 150 Cal.Rptr. 258, 262, 586 P.2d 572, 576 (1978), cert. denied, 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). ³ This approach is analogous to the allocation between judge and jury on the issue whether a statement is defamatory. See W. Prosser, Torts 747-748 (4th ed. 1971). The plaintiff argues that, on the rule 12(b)(6) motion in this case, the test is whether the challenged language can reasonably be read as stating a fact. This is similarly analogous to the traditional test for a rule 12(b)(6) motion on the ground that a statement is not defamatory. See, e. g., Smith v. Suburban Restaurants, Inc., 374 Mass. 528, --- - --- ^c, 373 N.E.2d 215 (1978); Borski v. Kochanowski, 3 Mass.App. 269, 271, 331 N.E.2d 556 (1975). ⁴ The defendant does not dispute the plaintiff's argument and the test suggested by the plaintiff is consistent with the California rule. It is also consistent with the approach we took in Central Broadcasting, supra, and hence we apply it here. ⁵

We conclude that a reader would not reasonably understand the statement that Myers "is enrolled in a course for remedial speaking" to be an assertion of fact. Taken in context, it can reasonably be understood to suggest that Myers should have been so enrolled. Even the latter statement may be hyperbolic. The author may have meant only that Myers' sports news reading needed improvement. On either of these interpretations, the challenged publication states a critical judgment, an opinion. As is essential in aesthetic criticism even in criticism so casual, perfunctory and overdrawn as this the object of the judgment is available to the critic's audience. Here, Myers' performances were often on view, and they furnished the assumed facts from which the critic fashioned his barb.

The question remaining is whether any other interpretation is reasonable. "The primary question for determination . . . is whether 'the words themselves, taken in their natural sense, and without a forced or strained construction' " can be understood as stating a fact. Peck v. Wakefield Item Co., 280 Mass. 451, 453, 183 N.E. 70, 71 (1932), quoting from Thomas v. Blasdale, 147 Mass. 438, 439, 18 N.E.2d 214 (1888). Neither Myers nor our case law would have us interpret the fragment, "The only newscaster in town who is enrolled in a course for remedial speaking," apart from its context. See National Ass'n of Gov't Employees v. Central Broadcasting Corp., supra at --- -...