Stone v. Essex County Newspapers, Inc.

• Citation: 330 N.E.2d 161,367 Mass. 849
• Parties: John J. STONE v. ESSEX COUNTY NEWSPAPERS, INC.
• Decision Date: 29 May 1975
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 161

330 N.E.2d 161

367 Mass. 849

John J. STONE

v. ESSEX COUNTY NEWSPAPERS, INC.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 10, 1975.

Decided May 29, 1975.

John C. Stevens, III, and Harvey Beit, Newburyport, for plaintiff.

Philip M. Cronin, Boston, for defendant.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

HENNESSEY, Justice.

The plaintiff had a jury verdict in the Superior Court in a tort action for libel. The case came before us on the defendant's outline bill of exceptions and was decided on May 6, 1974. Stone v. Essex County Newspapers, Inc., --- Mass. ---, ---, ^a 311 N.E.2d 52 (1974). Thereafter, on June 25, 1974, the Supreme Court of the United States decided Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The plaintiff thereupon filed a petition, based on the holdings of the Supreme Court in the Gertz case, for a rehearing of the instant case. We granted the petition for rehearing, and have reconsidered the matter on new briefs filed by the parties.

The defendant claimed exceptions to the judge's denial of the defendant's motion for a directed verdict, and to certain of the judge's instructions to the jury. We conclude that there was no error in the refusal to direct a verdict, but by reason of errors now apparent in the judge's charge to the jury as considered in light of the holdings of the Gertz case, this case must be remanded to the Superior Court for a new trial.

In particular, as will be seen, we hold that a plaintiff who is not a public officer or a public figure may recover damages in an action for libel by proof of negligence in the publishing of the libel by the defendant, its agents or servants, even though the libel occurred in the reporting of an event of public or general concern. We further hold that a plaintiff who is a public officer or a public figure may in such an action recover only on proof of 'actual malice' (wilful or reckless disregard of the truth in the publishing of the libel). Also, while it now appears that punitive damages may be constitutionally permissible in certain cases, we, placing primary emphasis on the necessity for protection of freedom of speech and the press, decline to adopt a rule allowing punitive damages. Rather, we affirm the principle that damages for defamation in this Commonwealth may be assessed only for actual injury and only on a compensatory basis, subject to searching judicial scrutiny at the trial and appellate levels. Finally, in any case where the plaintiff must show knowledge of falsity or reckless disregard of the truth, he must establish his proof, not merely by the fair preponderance of the evidence, but by 'clear and convincing proof.'

We restate the facts as presented in the original hearing before this court. On November 4, 1969, Jeffrey C. Stone, the then twenty year old son of the plaintiff, appeared in District Court charged with being present where narcotic drugs were illegally kept and with illegal possession of narcotics. A tablet alleged to be a 'harmful drug' was introduced in evidence. The city marshal, Robert F. Jones, testified that the other defendants in the District Court case had indicated to him that the defendant Stone was the owner of the harmful drug.

The plaintiff from 1963 to 1972 served on the Newburyport Redevelopment Authority, owned a catering business, and was food service director for the Newburyport schools.

Anthony Pearson, a reporter for the defendant's newspaper, the Newburyport Daily News, was in court covering the proceedings. Pearson had been at work just four months as a reporter and had received only several hours of instruction in the work. Unaware that there was a reporter's table near the witness stand, Pearson sat in the back of the court room. So positioned, he had trouble hearing some of the witnesses, including Jones.

Pearson interpreted Jones's testimony to be that 'Mr. Stone' ¹ was the owner of the 'harmful drug,' and inferred that the title 'Mister' was used to distinguish the father, who was in the court room, from the son.

That evening, Pearson wrote his story on the trial, translating the 'Mr. Stone' of his notes to 'John J. Stone,' which he had discovered the father's name to be. He submitted it to William Coltin, the editor who ordinarily checked over and edited his copy. Coltin testified that he read it about midnight and was 'surprised' at the information about the plaintiff (whom he had known for twenty years and whom he considered an 'excellent citizen'), but accepted it as the testimony of a reliable public official under oath. He 'may have' been surprised enough to question Pearson but did not see the reporter's notes on the story; he very rarely went back to check a reporter's notes. The article, which had been written for inclusion on November 5, 1969, the day following the trial, was crowded out and its publication postponed for twenty-four hours. During that time Coltin did not communicate any concern about the story to his superiors.

There also was evidence from which the jury could infer that police testimony was produced in the District Court proceeding to show that the substance in question was not a harmful drug or narcotic, and that Pearson's notes and the news story did not include an account of that testimony.

The article was published on November 6, 1969. Shortly after it reached the public, the plaintiff called Coltin to complain of its inaccuracy. Coltin discussed the matter with John J. O'Neil, the managing editor, and then checked with Jones and discovered the plaintiff had had nothing to do with the case. O'Neil next consulted the editor and general manager of the paper, and then called the plaintiff and discussed on which page a retraction would be printed. O'Neil offered to get the plaintiff's approval of the retraction before printing it and they met the next morning for that purpose. The plaintiff 'said it was fine but the damage had already been done.'

1. We turn first to a consideration of the instructions to the jury. The defendant's preliminary argument, which is apposite to the directed verdict issue as well as to the instructions, is that the article did not charge the plaintiff with a crime as it only referred to his ownership of the drug, and the crime, if any, would have been in its sale or giving away. Even if we accept the defendant's understanding of the criminal law as correct, this argument avails it nothing. While an imputation of crime is defamatory per se, Lynch v. Lyons, 303 Mass. 116, 118--119, 20 N.E.2d 953 (1939), the general test for libel is much broader; written words which would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community. Ingalls v. Hastings & Sons Publishing Co., 304 Mass. 31, 22 N.E.2d 657 (1939). The judge's charge clearly and properly left these issues to the jury, who were instructed to consider damages only if they found the publication libellous, either by imputing commission of a crime or otherwise harming the plaintiff's reputation.

2. The defendant excepted to the judge's failure, in instructing on the issue of the common law privilege for reports of a judicial proceeding, to charge that the accuracy required to claim the privilege is substantial accuracy and does not require correctness in all particulars. Thompson v. Boston Publishing Co., 285 Mass. 344, 348--349, 189 N.E. 210 (1934). We find no error. The standard supplied by the trial judge, 'fair and accurate report,' was at least as favorable to the defendant as it had any right to expect. We have previously held that accuracy is required 'at least in regard to all material matters.' Sweet v. Post Publishing Co., 215 Mass. 450, 102 N.E. 660 (1913). Our statement in another mistaken identity case is almost directly applicable here: 'A publication which identifies a person who had nothing to do with the proceedings as the one against whom the proceedings were directed can be neither fair nor accurate.' Whitcomb v. Hearst Corp., 329 Mass. 193, 199, 107 N.E.2d 295, 299 (1952). The jury were wholly warranted in concluding that this privilege did not apply.

3. There was error in the judge's instructions on the constitutional aspects of the case. ² The judge ruled that the standards enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), were inapplicable. He charged the jury, in substance, that a verdict for the plaintiff was warranted on proof, without more, of publication by the defendant of a falsehood which was defamatory of the plaintiff. Essentially, the judge thus instructed that the defendant newspaper could be found liable without fault. This, whether the plaintiff is a private person, or a public figure or public official, was error. Accordingly, there must be a new trial and the jury must be charged in accordance with the holdings of this opinion.

We turn now to the constitutional issues raised by the decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), a decision that in large measure prompted our grant of this rehearing. We appreciate that we are dealing here with conflicting interests. On the one hand, the tort law of this Commonwealth has long recognized a right of redress to one who suffers injury to his reputation by the publishing of a defamatory falsehood. On the other hand, freedom of expression is guaranteed by the First Amendment to the United States Constitution as applicable to the States through the Fourteenth Amendment. In this case, involving as it does the right of the press to publish and disseminate news and the right of an individual to be free from a defamatory mark on his reputation, a balancing of interests is necessary.

'(T)o insure the ascertainment and publication of the truth about public affairs, it is essential that the First...