National Ass'n of Government Emp., Inc. v. Central Broadcasting Corp.

• Decision Date: 13 November 1979
• Citation: National Ass'n of Government Emp., Inc. v. Central Broadcasting Corp., 396 N.E.2d 996, 379 Mass. 220 (Mass. 1979)
• Parties: , 5 Media L. Rep. 2078 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC. v. CENTRAL BROADCASTING CORPORATION.
• Court: Supreme Judicial Court of Massachusetts

Page 996

396 N.E.2d 996

379 Mass. 220, 5 Media L. Rep. 2078

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC. v.CENTRAL BROADCASTING CORPORATION.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Oct. 5, 1979.

Decided Nov. 13, 1979.

Evan T. Lawson, Boston (Howard J. Wayne, Boston, with him), for defendant.

Robert H. Goldman, Lowell (Michael D. Quinlan, Boston, with him), for plaintiff.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

KAPLAN, Justice.

National Association of Government Employees, Inc., is a labor union in the form of a nonprofit Delaware corporation, having a division known as the International Brotherhood of Police Officers with a LocalNo. 398 in the small town of Ware.¹The union complained in Superior Court of an alleged libel a charge of "communism" made by or on behalf of the defendantCentral Broadcasting Corporation, owner of radio station WARE, in the course of a talk show on February 17, 1977, conducted by Jacquelyne Murphy, an employee of the station.After the pleadings were completed by answer to an amended complaint, the defendant moved for summary judgment under Mass.R.Civ.P. 56, 365 Mass. 824(1974), tendering the pleadings, the plaintiff's responses to the defendant's request for admissions, and affidavits of Murphy and Richard H. Vaughan, executive vice president of the defendant.On its part the plaintiff filed an affidavit of William G. Norton, then executive director of the International Brotherhood.A judge of the District Court serving by designation in the Superior Court denied the motion without opinion.The defendant applied to a single justice of the Appeals Court under G.L. c. 231, § 118, first paragraph, for relief from the order of denial, and the single justice granted relief by way of authorizing the defendant to pursue an appeal from the order in the Appeals Court.SeeForeign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 470, 326 N.E.2d 888(1975).²When the appeal was lodged in the Appeals Court, this court took it for direct review.We reverse.Judgment will enter for the defendant.

From the papers supporting and opposing the defendant's motion, the following appears without material dispute.For some time prior to January 25, 1977, the plaintiff on behalf of the town policemen was engaged in collective bargaining with the Ware board of selectmen consisting of three members.On that date a contract was executed between the International Brotherhood and the town.This had the approval of two selectmen, but was opposed by the third, Abraham Goodman, chairman of the board.The contract was contingent upon its being approved and funded by the town.That was to be decided by the citizens at a special town meeting called for February 22.Meanwhile officials and members of the plaintiff organization were attempting to persuade the public to vote affirmatively.

On February 2, Norton, as executive director of the International Brotherhood, wrote to Goodman in a tone of warning.Norton took the position that as a majority of the board of selectmen had approved a collective agreement, but Goodman had not, "you are prohibited from speaking against the contract, but must support it. . . .Any unlawful violation upon your part could result in enormous and needless outpouring of taxpayers' monies in legal action and possibly against you personally under Chapter 150E of the General Laws."³

On February 12, Norton addressed a letter to the Federal Communications Commission stating that "members of the Ware, Massachusetts Police Department have been complaining bitterly over radio station WARE's vocal vendetta against them in news items and on the station's talk show"; that the situation had become "anti-police" with "almost a daily and constant cacophony of police misinformation, unfounded allegations of police procedures and actions, deliberate distortions of facts."Two officials of the station, said Norton, had made a demand on the police department "to subvert the law" and "(f) ailure to comply . . . would bring about the molding of public opinion against a pending police contract, subversion of a governmental process (town meeting), interfere with a contractual agreement, and otherwise force certain police officers to compromise their oath of office."The letter concluded: "As representatives of the police in Ware, and acting from their demand, we respectfully request that the agency conduct a full-scale investigation and to determine if station WARE is fit to retain its license."

On February 16, the Ware River News, the local newspaper, published the text of the letter to the FCC, and, referring to the letter to Goodman, reported that "Goodman last week rejected the (International Brotherhood's) position as an infringement of his first amendment rights."It also reported Vaughan's comments.Vaughan said the station was providing unbiased news coverage for the area and a public forum through the talk show, and he pointed to a lack of specificity in the charges made to the FCC.

We come now to the utterances on the February 17(Thursday) talk show, a program called "Sound Off," having the familiar format of members of the audience calling in and conversing with the announcer or host.⁴(In the following narrative, we italicize the words alleged in the complaint to constitute the libel: the complaint did not set out the rest of the colloquies on the program, nor did it provide the background of the letters and so forth.)⁵Goodman called, identified himself, and said he was "very angry.""Why is that?""Because we're supposed to be living in a free and a democratic country and I don't think we are.This episode with the police union making demands on the station as well as myself, I want to go on record publicly that I will support the station a hundred percent.""Thank you very much.""Because, if we do not get together and stop the inroad of communism, something will happen.""Well, I agree with everything you're saying . . .."Murphy went on to refer to an editorial in the newspaper (again February 16) severely critical of the union, and she said, "it's up to the Ware taxpayers . . . to handle the affairs of the Town . . . and that's what we elected you to do and if you can't speak . . .."Goodman broke in to ask all to come to the special town meeting and said he would ask for a secret ballot to avoid intimidation by the police department.He then discussed at some length the financial situation of the town in relation to the funding required for the police contract, and renewed his plea for full attendance at the special town meeting (as well as at the annual meeting in May).Murphy said, "(T)he only unfortunate part is and it's too bad that you as our Chief Executive won't be able to speak . . . at the special town meeting," but no one could be stopped from voting.Goodman said he understood that the attorney for the union would be present and ask to speak at the forthcoming meeting, and if the moderator allowed that intervention, he, Goodman, should be privileged to speak.Murphy agreed that if an outsider could talk, so should the chairman of the board of selectmen.Goodman reiterated that he should have the opportunity to speak, and Murphy agreed and hoped for a big turnout at the meeting.Goodman: "Well, I hope so.But, Again, I want to say that if there is anything I can help the station towards fighting the inroads of communism which in this particular case is the union, police union, I will be glad to help."

Later in the program, an anonymous caller expressed resentment that Goodman had called the police department communist, when a main factor in a person's becoming an officer is his concern about the country and the community, and the police department was doing a good job and Ware had a low crime rate."Now, if his Department is Communist and he is the leader of this Department ⁶ then he's a Communist."Murphy said: "Mr. Goodman did not say anything about the Police Department being Communist.What he said was the infringement upon a basic American Democratic right, and that is the right to free speech, is being infringed upon by this union, this International Union or Brotherhood of Police Officers that is coming in, and first of all telling the Chairman of the Board of Selectmen, an elected official of the taxpayers, that he cannot speak, and secondly, is now saying that the radio station, which is licensed to serve community needs is not doing that and is now on a, I believe the word is, vocal vendetta. . . .However, as far as Mr. Goodman saying anything about the Police Department being Communist, you're incorrect.What he was saying is that this union is attempting to subvert the right to free speech . . ..⁷

The following three independent but converging lines of authority demonstrate that the defendant was entitled to summary judgment.

1.Opinion on disclosed or assumed facts.For purposes of the point now to be made, we indulge the assumption that the statement of opinion embodied in the word communism could carry a libelous meaning or connotation, and that the opinion was attributable to the defendant through adoption by its employee.Still on the record there was no genuine issue for trial.This was because the facts basing the opinion were apparent and disclosed (and it is not contended that they were themselves libelous; in any event, they were truly stated or referred to).Those facts were that the plaintiff union had warned Goodman against speaking adversely at the town meeting the substance of the letter of February 2; and had sought an FCC investigation of the defendant's right to retain its station license (which might make the station wary of criticizing the union) the letter of February 12.Murphy's statement at the end of the broadcast pointed to these facts and gave her opinion, in effect, that they amounted to an attempt to subvert free speech (and in that...