Pacella v. Milford Radio Corp.

• Court: Appeals Court of Massachusetts
• Citation: Pacella v. Milford Radio Corp., 462 N.E.2d 355, 18 Mass.App.Ct. 6 (Mass. App. 1984)
• Decision Date: 31 May 1984
• Parties: Nicholas P. PACELLA v. MILFORD RADIO CORPORATION et al. 1
• Writing for the Court: DREBEN

Page 355

462 N.E.2d 355

18 Mass.App.Ct. 6

Nicholas P. PACELLA v. MILFORD RADIO CORPORATION et al. ¹

Appeals Court of Massachusetts Worcester.

Argued Dec. 8, 1983.

Decided April 17, 1984.

Further Appellate Review Granted May 31, 1984.

David A. Mills, Boston, for plaintiff.

William J. LeDoux, Worcester, for defendants.

Before GRANT, DREBEN and SMITH, JJ.

DREBEN, Justice.

In 1975 Nicholas P. Pacella was a candidate for the Milford board of selectmen. On the day before the election, an anonymous caller telephoned the corporate defendant's radio station and made certain defamatory remarks directed against Pacella on a talk show devoted to the election. Although an electronic delay system gave the defendant Joseph G. Hyder, the talk show's host, a seven-second preview of the caller's question and an opportunity to prevent its broadcast, he did not use the abort button. Pacella lost the election and, in this libel action, sued Hyder and the corporate defendant, the former employer of Hyder. A Superior Court jury assessed $15,000 damages against the defendants, but the trial judge allowed the defendants' motion for judgment notwithstanding the verdict. We affirm on the ground that Pacella, a public figure, did not meet his burden of proving by clear and convincing evidence that the defendants published the caller's statement "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). National Assn. of Govt. Employees, Inc. v. Central Bdcst. Corp., 379 Mass. 220, 230-231, 396 N.E.2d 996 (1979), cert. denied 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980).

We turn to the facts, considered in the light most favorable to the plaintiff. ² The five candidates for the Milford board of selectmen were invited by radio station WMRC to appear on the station's "Counterpoint" talk show on May 6, 1975, for an hour-long program concerning the election. Hyder explained the proposed format to Pacella--statements by the candidates were to be followed by a question and answer session with the station's call-in audience. Pacella, a school teacher with inflexible hours, decided not to appear in person but to submit a taped statement. He expressed uneasiness about the question and answer format but was assured by Hyder that there would be no problems, Hyder stating, "How can they ask you questions if you are not here?"

Nevertheless, at the time of the actual broadcast, Hyder and an anonymous caller to "Counterpoint" had the following interchange during the question period following the candidates' statements:

CALLER: "I have a question for Mr. Pacella."

HYDER: "Mr. Fernandez is here. Mr. Pacella was on tape recording earlier. He was not present."

CALLER: "So I can't ask a question of him?"

HYDER: "He's not here to answer. How can you possibly do that, dear? [sic ] If you can tell me how, I'll be happy to relay the question."

CALLER: "Well, could I ask the question and you can relay it to him?"

HYDER: "Well, ah, by the time we get an answer the elections will be over. Rhetorically, if you want to ask it, go ahead."

CALLER: "Pardon?"

HYDER: "Go ahead."

FERNANDEZ: "Maybe I could answer for him."

HYDER: "Yeah. Go ahead, ask the question."

CALLER: "All right. He is represented by the Concerned Citizens, and their motto is, 'The people have a right to know,' which I agree with. Especially when the integrity of a candidate is in doubt. My question is: Did you, Mr. Pacella, during the construction of your home, ever take without authority certain building materials from the construction site? And were you brought in for questioning by the Milford Police and let go because the owner wouldn't press charges? That is my question."

At this point, Hyder decided to terminate the call and stated: "Uh huh? Well I suggest you contact Mr. Pacella tonight when he comes home from his job, alright?" ³ Later in the program, Pacella's wife and one of his supporters responded, calling the charge vicious, upsetting, and untrue. Hyder concluded his conversation by thanking Mrs. Pacella as set forth in the margin. ⁴

Although the defendants at trial introduced evidence as to the truth of the construction site story, referred to as the "Grant Street rumor," the jury found otherwise. ⁵ There was also evidence that the rumor had persistence and had been heard by several persons. Pacella testified that he had heard the story several times, first in 1962 or 1963, again in 1974 and once again in 1975 prior to the broadcast. He had discussed it with some of his campaign workers and his campaign manager. Although concerned about the rumor, Pacella never alerted Hyder to the possibility that it might surface. Lawrence Shane, the former manager of the station (deceased at the time of trial), indicated, in a deposition read to the jury, that he also had been aware of the rumor.

Hyder testified that he had heard the Grant Street story some five or six years before the broadcast in a "social context" and that at that time he had no personal knowledge whether the rumor was true. Seena Heller, ⁶ the mother of Pacella's campaign manager and a strong supporter, testified that Hyder, who had called Heller some seven weeks before the broadcast on an unrelated matter, had referred to Pacella as a "crook." ⁷ At that time she informed him that the rumor was unequivocally false, cautioned him against repeating it, and suggested that he discuss the matter with Pacella. Hyder testified that he did not use the abort button on May 6, 1975, and that he intentionally allowed the call to be broadcast because he believed that the public has the right to know about a candidate. He also testified that the seven seconds were sufficient time for him to exercise that judgment.

Pacella claims that he has carried his burden of proving with convincing clarity that Hyder published the statement with "reckless disregard" of its truth and relies on the following evidence: Hyder had dismissed the rumor when he had first heard it; the source of the statement was anonymous and hence unreliable; Seena Heller ardently denied the truth of the statement; Hyder's own knowledge of Pacella made the statement improbable; Hyder acknowledged that he had had enough time to exercise judgment and that he intentionally broadcast the statement because of the public's right to know about the candidate; Hyder, at a time after the broadcast, stated he had published it "for effect." We think none of these factors, whether taken separately or in unison, shows the requisite "reckless disregard" to impose liability on Hyder for failing to censor the statement.

We start, as we must, with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There, the Supreme Court announced a rule, designed to insure "that debate on public issues ... be uninhibited, robust, and wide-open," which "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 270, 279-280, 84 S.Ct. at 721, 726. His proof must be "clear and convincing." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). Callahan v. Westinghouse Bdcst. Co., 372 Mass. 582, 583, 363 N.E.2d 240 (1977).

Several matters need not concern us. Pacella concedes, as he must, that as a candidate for public office he and the subject matter of the discussion are within the rule. "[P]ublications concerning candidates must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 271, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971). "Few personal attributes are more germane to fitness for office than dishonesty." Gertz v. Robert Welch, Inc., 418 U.S. at 345, 94 S.Ct. at 3009. "[T]he constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, supra 401 U.S. at 272, 91 S.Ct. at 625.

While the caller's statement was in interrogatory form, we do not lay particular stress on that fact and, at least for purposes of this opinion, assume that the remarks imputed a crime to Pacella and hence were defamatory per se. ⁸ Lynch v. Lyons, 303 Mass. 116, 118-119, 20 N.E.2d 953 (1939). Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853, 330 N.E.2d 161 (1975). Those remarks were found by the jury to be false, and the defendants do not contend otherwise.

Our review of the record indicates that there was no evidence that Hyder had actual knowledge that the rumor was false. Thus, the crucial question is whether Hyder acted "with reckless disregard ⁹ of whether it was false or not." Cases subsequent to the New York Times case have made clear that the test is a subjective one, ¹⁰ and that the plaintiff must focus on the "conduct and state of mind of the defendant." Herbert v. Lando, 441 U.S. 153, 160, 99 S.Ct. 1635, 1640, 60 L.Ed.2d 115 (1979). The circumstances in which the statement is made are, of course, significant in determining whether recklessness may be found (see Cole v. Westinghouse Bdcst. Co., 386 Mass. 303, 309, 453 N.E.2d 1021, cert. denied 459 U.S. 1037, 103 S.Ct. 449, 74 L.Ed.2d 603 [1982] ), an assessment which also involves whether such a finding would intrude in a "forbidden" manner on the "field of free expression." New York Times Co. v. Sullivan, 376 U.S. at 285, 84 S.Ct. at 729. See Stone v. Essex County Newspapers, Inc., 367 Mass. at 855, 330 N.E.2d 161.

Of particular importance here is "the medium by which the statement is disseminated and the audience to which it is published." Cole v. Westinghouse Bdcst. Co., 386 Mass. at 309, ...