Nash v. Keene Pub. Corp., 84-374

Citation498 A.2d 348,127 N.H. 214
Decision Date16 August 1985
Docket NumberNo. 84-374,84-374
Parties, 12 Media L. Rep. 1025 Stephen T. NASH v. KEENE PUBLISHING CORPORATION, d/b/a the Keene Sentinel.
CourtSupreme Court of New Hampshire

Bragdon, Berkson & Mangones, Keene (H. Neil Berkson, Keene, orally, and James R. Davis, Keene, on the brief), for plaintiff.

Bell, Falk & Norton P.A., Keene (Arnold R. Falk, Keene, on the brief and orally), for defendant.

SOUTER, Justice.

The plaintiff appeals an order of the Superior Court (O'Neil, J.) granting summary judgment for the defendant in this libel action. We reverse and remand for trial.

The plaintiff is a police officer for the city of Keene. He was on duty the evening of May 10, 1982, when he saw Renauld Desmarais driving a car, allegedly with its lights off. The plaintiff tried to stop Desmarais, who led him on a low-speed chase that ended when the police cruiser hit Desmarais's car. The plaintiff arrested Desmarais for several violations, including driving under the influence, and eventually took him to the hospital for treatment. While they were at the hospital the plaintiff physically restrained Desmarais.

On May 11, 1982, the defendant published a brief account of the arrest in its newspaper, The Keene Sentinel, although the report did not disclose that Desmarais had been charged with driving under the influence. The next day Desmarais came to the paper in an agitated state. He met with the defendant's employee, Guy MacMillin, to whom he delivered a scrawled, handwritten draft of a letter for publication in response to the news story.

MacMillin read Desmarais's draft and asked Desmarais to give his version of the events in question. Desmarais told his story, although he did not mention that the police had charged him with driving under the influence. The letter itself imputed behavior to the plaintiff, as well as personal limitations and proclivities, that would be highly undesirable in a police officer, and alleged that the plaintiff had been the subject of "numerous complaints" known to the assistant city attorney. MacMillin later called the assistant city attorney who told him that he had received only one complaint about the plaintiff, that one from Desmarais himself concerning the incidents in question. MacMillin did not attempt to verify any other allegations, whether by asking the assistant city attorney, the police department or the plaintiff.

MacMillin testified that "as distasteful as I found the letter, I felt that if someone feels that the police are not behaving in the proper way, they ought to be able to say so, and after some deliberation I decided that that--that right was predominant in this case, and I decided to use the letter with [an] editor's note." In response to further questions on deposition, MacMillin testified that he did not believe that a person dissatisfied with the police had a right to publish false charges. He stated that it had not occurred to him that Desmarais's charges were untrue. But he added that "reasonable people might disagree as to what is truth and untruth in these instances," and said that Desmarais had been "pretty persuasive."

Thereafter, having eliminated profanity from the draft, the Sentinel published the letter on May 13, in this form:

"Specific facts

To The Sentinel:

As for specific facts:

1. I was stopped at the corner of Victoria and Water Streets when Officer Nash's cruiser hit my vehicle.

2. He hit me: The dent and blue paint on the driver's side door proves it. (He can't drive.)

3. Because of one cop's stupidity Keene just lost another cruiser (myself a car).

3. This is his sixth cruiser he zeroed, and I don't drive with my lights off.

4. Nash is a Wyatt Earp who likes to assault perpetrators (allegedly).

5. He muscled me with both hands handcuffed, lying in a hospital bed (a real man).

6. He's done it before, and will do it again to you.

7. Assistant City Attorney David Park has numerous complaints on the matter of Nash.

8. Eh, what's happening Keene? Go to sleep. Don't get involved.

RENAULD R. DESMARAIS

259 Marlboro St.

Keene

[sic] with regard to his recent arrest."

(Italics in original).

The page of the newspaper on which the letter was printed contained one other set of statements that are relevant to this case: "Letters Policy: The readers' column is for your opinions.... [W]e do not publish letters we feel to be libelous ... or that make allegations we are unable to verify independently."

After publication, the plaintiff obtained legal counsel, and on June 2, 1982, his lawyer demanded a retraction and apology. On June 16, 1982, the defendant published an apology, which noted in some detail that it had been unable to substantiate Desmarais's statements "except the facts about where and how Patrolman Nash stopped Desmarais' vehicle, allegedly after a brief, low-speed pursuit." Despite the apology, this litigation followed.

In response to the plaintiff's declaration, the defendant filed a brief statement claiming, inter alia, that the plaintiff was a public official or public figure and that the defendant had published the letter without malice. Later the defendant filed a motion for summary judgment, again claiming that the plaintiff was a public official, that the defendant had published without malice, and maintaining further that the letter was an expression of opinion. The plaintiff objected to the motion.

Neither party filed affidavits in support of the positions taken, but the parties did file interrogatories and responses, MacMillin's deposition, and an agreed statement of facts, which included the stipulation that the defendant "had no actual knowledge that the letter was false." Given the language quoted, we infer that the plaintiff intended to make no claim that there was libel in the allegation that the plaintiff had been the subject of numerous complaints, since it is clear that the defendant did know of the falsity of that allegation.

The superior court found that there was no genuine issue of material fact. It went on to find that the defendant was entitled to summary judgment because the letter was an expression of opinion, and for the further reasons that the plaintiff was a public official and the defendant did not publish with actual malice.

As in any appeal from a ruling on a motion for summary judgment, it is important to start with a reminder of the exact nature of the issue that such a motion raises. The moving party has the burden to demonstrate that there is "no genuine issue as to any material fact and that [he] is entitled to judgment as a matter of law." RSA 491:8-a, III. As we noted, the trial court found that on three issues of fact there was no genuine dispute, with the result that it held the defendant entitled to judgment as a matter of law.

The first such issue concerned the character of the letter, as alleging fact or expressing opinion. This issue arose under the basic rule that for actionable libel, there must be publication of a false statement of fact, Restatement (Second) of Torts § 581A (1977), that tends to lower the plaintiff in the esteem of any substantial and respectable group of people. Duchesnaye v. Munro Enterprises, Inc., 125 N.H. 244, 252, 480 A.2d 123, 127 (1984). Conversely, a statement of opinion is not actionable, Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-07, 41 L.Ed.2d 789 (1974); Pease v. Telegraph Pub. Co., Inc., 121 N.H. 62, 65, 426 A.2d 463, 465 (1981), unless it may reasonably be understood to imply the existence of defamatory fact as the basis for the opinion. Duchesnaye v. Munro Enterprises, Inc., supra, 125 N.H. at 249, 480 A.2d at 125; Restatement (Second) of Torts § 566 (1977). Whether a given statement can be read as being or implying an actionable statement of fact is itself a question of law to be determined by the trial court in the first instance, Pease v. Telegraph Pub. Co., Inc., supra 121 N.H. at 65, 426 A.2d at 465, considering the context of the publication as a whole. See Morrissette v. Cowette, 122 N.H. 731, 733, 449 A.2d 1221, 1222 (1982). If an average reader could reasonably understand a statement as actionably factual, then there is an issue for a jury's determination, and summary judgment must be denied. See Pease v. Telegraph Pub. Co., Inc., supra.

Thus the first question before us is whether the trial court was correct in finding that no average reader could have understood the letter to be stating or implying fact rather than opinion. We hold that it was error to find that there was no genuine issue between the parties on this point and error to find that the letter must be read as a non-actionable expression of opinion.

The trial court attempted to explain away the statements in the letter as nothing but the hyperbolic expressions of Desmarais's animus against the plaintiff. The court seemed to regard the allegations as too obviously exaggerated to be taken as factual and concluded, therefore, that they must be expressions of opinion.

We can not agree. Although the defendant's statement of "Letters Policy" described the readers' column as a place for opinions, the letter itself can obviously be read as stating facts. The defendant printed "Specific facts" in large print above the letter, and the letter began with the phrase, "As for specific facts:". There followed a series of statements that were ostensibly factual and defamatory: the plaintiff had "zeroed" six police cruisers; the plaintiff "likes to assault perpetrators (allegedly);" the plaintiff "muscled" Desmarais when the latter was handcuffed in a hospital bed.

Whether readers actually did understand the statements as factual is, of course, not a matter that is before us. But it is clear that the trial court erred in determining that readers could not understand them as factual. In effect, the trial court's ruling resolved an issue that is properly for the consideration of a jury. Given this conclusion, we need not analyze the letter...

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