Stone v. Essex County Newspapers, Inc.

• Decision Date: 06 May 1974
• Parties: John J. STONE v. ESSEX COUNTY NEWSPAPERS, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 52

311 N.E.2d 52

365 Mass. 246

John J. STONE v. ESSEX COUNTY NEWSPAPERS, INC.

Supreme Judicial Court of Massachusetts, Essex.

Argued Jan. 10, 1974.

Decided May 6, 1974.

Philip M. Cronin, Boston, (John P. Fitzgerald, Boston, with him) for defendant.

John C. Stevens, III, Newburyport, for plaintiff.

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

HENNESSEY, Justice.

The plaintiff had a jury verdict in a tort action for libel. The case is before us on the defendant's outline bill of exceptions. The facts are as follows.

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. He was a reporter who had been at work only four months and had received only several hours of instruction in the work. He was sitting in the back of the court room because he was unaware that there was a reporter's table near the witness stand. He had trouble hearing some of the witnesses, including Jones.

Pearson understood Jones' 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 notes. The article, which had been written for inclusion on the fifth, 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. 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.'

The defendant's exceptions are addressed to the judge's denial of its motion for a directed verdict and to alleged errors in the judge's instructions to the jury. Exceptions to the charge relate particularly to the issue whether the news article was defamatory; to the common law privilege of news media in the Commonwealth to report judicial proceedings, including inherent falsehoods, fairly and accurately; and to the constitutional aspects of the case. 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.

We conclude that there was no error in the refusal to direct a verdict, but there was error in the instructions as to constitutional aspects. Consequently, we sustain the defendant's exceptions and order a new trial.

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. This argument avails the defendant 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 libelous, either for imputing 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.2d 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.

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 through the Fourteenth Amendment, and ultimately the First Amendment, of the United States Constitution. A balancing of values is necessary.

Where the news media and their representatives are defendants in libel cases, it is established beyond dispute that special consideration for free speech values is required. '(T)o insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.' St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968). The suggestion has been made that the Constitution provides absolute protection for the press, even for knowing publication of falsehoods, but this suggestion has been rejected. ² As a result, the issue has become, in what circumstances the news media will forfeit the First Amendment protection: whether for publication of falsehoods without fault, or for negligent, reckless or intentional publication.

A limitation on the power of State courts to award damages in libel actions has clearly been established by the United States Supreme Court. Public officials cannot recover damages against critics of their official conduct without proof of actual malice in the publishing. New York Times Co. v. Sullivan, 376 U.S. 254, 283, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

Subsequent to the New York Times Co. case, the Supreme Court, in a plurality opinion, decided that the actual malice standard applied not only to criticism of the official conduct of a public officer but also to the reporting of an event of public or general concern. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). Thereafter, we set the standard in this Commonwealth for invoking the First Amendment privilege for libellous material printed without actual malice by holding that the relevant issue is not the particular plaintiff involved, but rather the events which were the subject of the publication. PRIESTLEY V. HASTINGS & SONS PUBLISHING CO. OF LYNN, --- MASS. ---, 271 N.E.2D 628 (1971)^A. See TWOHIG V. BOSTON HERALD-TRAVELER CORP. --- MASS. ---, 291 N.E.2D 398 (1973)^B.

The judge here ruled that United States Supreme Court cases limiting the constitutionally permissible reach of the law of defamation in cases involving communications media were inapplicable to the facts of this case. He charged the jury accordingly. This was error. Clearly, the judicial proceeding which was reported was an event of public or general concern. ³ Not only was it a trial of criminal complaints but the alleged crimes involved the presence of narcotic drugs in the community. The fact that the plaintiff was in no way a...