Priestley v. Hastings & Sons Pub. Co. of Lynn

• Decision Date: 30 June 1971
• Citation: 271 N.E.2d 628,360 Mass. 118
• Parties: John W. PRIESTLEY, Jr. v. HASTINGS & SONS PUBLISHING COMPANY OF LYNN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 628

271 N.E.2d 628

360 Mass. 118

John W. PRIESTLEY, Jr. v. HASTINGS & SONS PUBLISHING COMPANY OF LYNN.

Supreme Judicial Court of Massachusetts, Essex.

Argued April 8, 1971.

Decided June 30, 1971.

Edward J. Barshak, Boston (Stanley R. Berkowitz, Boston, with him), for defendant.

Thomas J. Carens, Boston, for plaintiff.

Before SPIEGEL, REARDON, QUIRICO and BRAUCHER, JJ.

REARDON, Justice.

This is an action of tort for libel stemming from the publication of three articles by the defendant in its newspaper, the Daily Evening Item (Item). The jury returned a verdict for the plaintiff of $25,000. The defendant has taken exceptions alleging two errors. Both hinge on whether the 'actual malice' standard articulated by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, is applicable to the case. The trial judge ruled that this standard was not applicable and subsequently denied the defendant's motion for a directed verdict. However, the recent Supreme Court decision in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), which came down after the trial of this case, makes the contrary conclusion mandatory as a matter of Federal constitutional law. The facts of the case before us bring it within the formulation contained in the Rosenbloom case of circumstances in which the 'actual malice' standard is required, and under that standard the defendant's motion for a directed verdict should have been granted.

We summarize the evidence as follows. The plaintiff is an architect by profession. He was commissioned by the town of Saugus in 1965 to build a new junior high school. He testified at the trial that he acted as the official for the town with reference to this building during the period of its construction. He first worked with school officials and State agencies to evolve the final design of the school and subsequently sent out plans for the purpose of getting bids. The bids were received in behalf of the town in the presence of the plaintiff, who acted for the town in seeing that the building complied with plans and specifications. Construction of the school was completed in September, 1966, and it has been in use during the school year ever since.

On October 3 and 4, 1967, meetings of the selectmen of Saugus were held, at which Paul H. Boucher, then town manager, made certain charges with respect to alleged defects in the construction of the school and announced that he was launching an investigation into them. The substance of what he said appeared in an article in the Item on October 4, written by Dwight Buell who had attended the meetings as a reporter. ¹

On October 16, 1967, there was another selectmen's meeting at which Boucher reiterated his dissatisfaction with the school. Buell was again in attendance and wrote an article, which appeared on October 17, reporting Boucher's statements to the selectmen. Among the statements attributed to Boucher were that $200,000 in funds might have been misused and that the F.B.I. wanted to enter the case if it had jurisdiction. Buell telephoned the plaintiff the next day for his comment on Boucher's charges. The plaintiff emphatically denied them and himself charged that Boucher's investigation was 'politicallymotivated.' The plaintiff's rebuttal duly appeared on the same day, October 18 in an article by Buell in the Item which also contained further developments in the Boucher investigation. The final allegedly libellous article appeared on October 19, after Buell had spoken to Boucher. Boucher's remarks, as recounted by Buell in this article, were more narrowly focussed on the plaintiff's alleged 'illegalities, incompetence and bad faith.' The article contained, inter alia, statements attributed to Boucher that he intended to seek to have the plaintiff's registration revoked by the State Board of Registration of Architects; that the district attorney's office was not investigating, only because it did not have the staff necessary; and that the manager's office had filed a complaint against the plaintiff with the American Institute of Architects' Ethics Committee.

There was uncontradicted testimony by Buell that the October 17 article was an accurate report of statements made at the selectmen's meeting of the day before and that the article of October 19 represented Boucher's words, which were not 'changed, improved or altered.' The plaintiff himself agreed with Buell that the October 18 article was a substantially accurate summary of the conversation the two had had. Buell testified that he did not check the various detailed charges with respect to inadequacies in the finished school and irregularities in its construction because the school had been a subject of controversy for some months and he had previously exhausted himself checking such details. He saw no need to go through it again. He did, however, take steps to verify certain other charges reported. These steps will be dealt with in more detail below.

1. The issue at the trial and as originally presented to us was whether the evidence showed that the plaintiff was a 'public official' or 'public figure' so as to call for application of the 'actual malice' standard announced and applied in the New York Times Co. case. This standard, which requires proof that the alleged libeler acted 'with knowledge that * * * (the publication) was false or with reckless disregard of whether it was false or not' (New York Times Co. v. Sullivan, supra, at 280, 84 S.Ct. at 726), was limited in the New York Times Co. case to cases in which the plaintiff was a 'public official.' In the New York Times Co. case itself, however, and on subsequent occasions, the Supreme Court consistently refused to delimit this designation, recognizing that '(i)n many situations, policy determinations which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in the case of individuals so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions * * *.' Curtis Publishing Co. v. Butts, 388 U.S. 130, 163--164, 87 S.Ct. 1975, 1996 18 L.Ed.2d 1094. See New York Times Co. v. Sullivan, supra, at 283, fn. 23, 84 S.Ct. 710; Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 699, 15 L.Ed.2d 597 (actual malice standard applicable to publication about former supervisor of county recreation area employed by and responsible to the three county commissioners); Greenbelt Co-op. Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (actual malice standard applicable to publication about locally prominent real estate developer engaged in negotiations with city involving construction of high density housing and a new school). Lower Federal courts and this court likewise increasingly have applied the actual malice standard to publications about participants in events of public interest, regardless of their formal connection with government. See, e.g., Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188 (8th Cir.) (prominent scientist involved in promoting nuclear test ban treaty); Cepeda v. Cowles Magazines & Bdcst. Inc., 392 F.2d 417 (9th Cir.), cert. den. 393 U.S. 840, 89 S.Ct. 117, 21 L.Ed.2d 110 (National League baseball player); Time, Inc. v. McLaney, 406 F.2d 565 (5th Cir.), cert. den. sub nom. McLaney v. Time, Inc., 395 U.S. 922, 89 S.Ct. 1776, 23 L.Ed.2d 239 (gambler involved in political campaign in another country); TRIPOLI V. BOSTON HERALD-TRAVELER CORP., MASS., 268 N.E.2D 350^A (janitor suspected of involvement in the 'Great Plymouth Mail Robbery').

It was not until the Rosenbloom case, however, that the Supreme Court abandoned its reliance on the increasingly amorphous designation of 'public official' or, alternatively, 'public figure' as that feature which must be present to call for application of the actual malice standard. The Rosenbloom case involved a purely private citizen engaged in the business of selling literature of somewhat doubtful propriety. Upon his acquittal on obscenity charges related to his books and magazines, the plaintiff sued a radio station which had used such terms as 'smut literature racket' and 'girlie book peddlers' (91 S.Ct. p. 1816) in its broadcast reports of his arrest and...