Pease v. Telegraph Pub. Co., Inc.

• Decision Date: 23 February 1981
• Docket Number: No. 80-059,80-059
• Parties: , 7 Media L. Rep. 1114 R. Warren PEASE v. TELEGRAPH PUBLISHING COMPANY, INC. et. al.
• Court: New Hampshire Supreme Court

Page 463

426 A.2d 463

121 N.H. 62, 7 Media L. Rep. 1114

R. Warren PEASE v. TELEGRAPH PUBLISHING COMPANY, INC. et. al.

No. 80-059.

Supreme Court of New Hampshire.

Feb. 23, 1981.

Malloy & Sullivan, Manchester (David L. Broderick, Manchester, orally), for the plaintiff.

Hamblett & Kerrigan, Nashua (John P. Griffith, Nashua, orally), for the defendant Telegraph Pub. Co., Inc.

Upton, Sanders & Smith, Concord (Russell F. Hilliard, Concord, orally), for the defendant Philip Grandmaison.

KING, Justice.

This is an appeal from a jury verdict for the plaintiff in his libel suit against the defendants, Telegraph Publishing Company, Inc. and Philip Grandmaison. The case concerned a letter to the editor submitted by Grandmaison and published in the Nashua Telegraph, a newspaper owned by Telegraph Publishing Company, Inc.

During the first part of a bifurcated trial the jury determined that the plaintiff was a public figure. The plaintiff does not appeal that finding, and he therefore must be deemed a public figure on appeal. In the second part of the trial, the jury returned a verdict of ten thousand dollars for the plaintiff against each defendant. Thereafter, the defendants moved for judgment notwithstanding the verdict, to set aside the verdict, and for remittitur. The Superior Court (Flynn, J.) denied all of these motions subject to the defendants' exceptions. The basis of these motions was that the statements in the letter to the editor were constitutionally protected opinions and that Pease had failed to present sufficient evidence of malice to submit the question to the jury. Because we hold that the statements were opinions and therefore within the first amendment protection, there is no need to consider whether the plaintiff established malice within the meaning of New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686 (1964).

On November 2, 1977, the Telegraph published a column about Grandmaison written by Merrill Lockhard, an employee of the newspaper. In the column, Lockhard wrote that Grandmaison, then an administrative assistant to the House Minority Leader of the New Hampshire Legislature, had engaged in certain wrongdoing with regard to his alleged personal use of legislative license plates and mileage stipends. The next day, November 3, 1977, Grandmaison composed a seven-paragraph statement rebutting the charges made by Lockhard and dictated the statement to Kathleen Neff, a reporter for the Telegraph. Grandmaison demanded that the Telegraph publish his statement and that Lockhard prepare an immediate retraction of his charges or he would institute a libel action against the Telegraph.

That same day the Telegraph published Grandmaison's statement in its section of "Letters to the Editor." The first two paragraphs of the statement, which are the subject of this action, are:

"To the Editor: While a student at the University of New Hampshire several years ago, I had the opportunity to witness what in my mind was the worst single example of a journalistic smear. That situation involved the appointment of Thomas Bonner as president of the university. The smear was conducted by R. Warren Pease of the Manchester Union Leader.

While I certainly would not equate the significance of Pease's irresponsible journalism with the single opinion column of Merrill Lockhard's on Wednesday, November 2, I do feel he apparently is trying to deprive Mr. Pease of his own title as journalistic scum of the earth."

Grandmaison then went on to refute specifically the charges contained in Lockhard's column.

Pease, who was not involved in the controversy between Grandmaison and the Telegraph, demanded that the Telegraph publish an apology for the references to him. Failing to receive such an apology, Pease instituted the libel action which is the subject of this appeal.

At the conclusion of the plaintiff's case, and subsequent to the jury verdict, the Telegraph moved successively for a directed verdict and a judgment notwithstanding the verdict, based on the assertion that the words of which Pease complained were expressions of opinion as a matter of law and not actionable. On both occasions, the court refused to rule on the question as a matter of law, and denied the defendants' motions. In its instructions, the court charged the jury in part as follows:

"Now, incidentally, there has been some discussion and argument regarding whether certain phrases or passages of the publication are statements of fact or statements of opinion. A defamatory communication may consist of a statement in the form of opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as to the basis for the opinion, so I leave it to you to decide whether the relevant phrases in Exhibit 1 were intended statements of fact or opinion."

(Emphasis added.) "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. (Footnote omitted.) But there is no constitution value in false statements of fact." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3006-3007, 41 L.Ed.2d 789 (1974). We adhere to that statement of the law.

Whether an allegedly libelous statement is an opinion or an assertion of fact is a matter of law to be determined by the trial court in the first instance. Gregory v. McDonnell Douglas Corp., 17 Cal.3d 596, 601, 552 P.2d 425, 428, 131 Cal.Rptr. 641, 644 (1976); Bucher v. Roberts, 595 P.2d 239, 241 (Colo.1979) (en banc); Rinaldi v. Holt, Rhinehart, 42 N.Y.2d 369, 381, 366 N.E.2d 1299, 1306, 397 N.Y.S.2d 943, 950, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977); cf. Letter Carriers v. Austin, 418 U.S. 264, 282-84, 94 S.Ct. 2770, 2780-2781, 41...