Twohig v. Boston Herald-Traveler Corp.

• Decision Date: 12 January 1973
• Docket Number: HERALD-TRAVELER
• Citation: 291 N.E.2d 398,362 Mass. 807
• Parties: James J. TWOHIG v. BOSTONCORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 398

291 N.E.2d 398

362 Mass. 807

James J. TWOHIG v. BOSTON HERALD-TRAVELER CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 10, 1972.

Decided Jan. 12, 1973.

Henry L. McNulty and Walter J. Hurley, Boston, for defendant.

James J. Twohig, Boston, pro se.

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

TAURO, Chief Justice.

This is an action of tort for libel stemming from the publication of an article by the defendant in its newspaper, The Boston Herald. On September 23, 1971, the jury returned a verdict of $10,000 for the plaintiff. The case is before us on the defendant's exception to a refusal of the trial judge to direct a verdict for the defendant.

We summarize the pertinent evidence. On September 13, 1962, the defendant published an article written by one of its reporters containing a commentary on the various candidates, including the plaintiff, who were running for political office in the September primary. The reference to the plaintiff, which he alleged was defamatory, read as follows: 'The Senate president has reversed the anti-union charge Twohig (the plaintiff) is spreading about him by resurrecting some of Twohig's votes against Labor when he served on Beacon Hill.' ¹ It was established at trial that Twohig had twice voted against a cash sickness bill whose passage the lobby for organized labor had favored. The plaintiff called the reporter who had written the story on the date of its publication to complain about the accuracy of the 'anti-labor' characterization of his vote against the bill. Twohig insisted that his votes against that bill were pro-labor but the reporter disagreed (allegedly with some profanity) and the conversation was terminated.

Neither party disputes the fact that since the alleged defamatory statement concerned a matter of public interest, its publication ". . . falls within the class of privileged communications for which no action can be maintained without proof of actual malice.' Gott v. Pulsifer, 122 Mass. 235, 238--239.' TRIPOLI V. BOSTON HERALD-TRAVELER CORP., MASS., 268 N.E.2D 350.^A Originally, the actual malice standard, which requires clear and convincing 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, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686), had applied to those cases where a public official sought to recover damages for a defamatory statement relating to his official conduct. However, cases subsequent to the New York Times decision made it clear that the range of privileged communications protected by the First and Fourteenth Amendments extended to publications about participants in events of public interest, regardless of whether the participant was a 'public official' or 'public figure.' See e.g., 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); the Tripoli case, supra (janitor suspected of involvement in the 'Great Plymouth Mail Robbery'). The United States Supreme Court expressly rejected the 'public figure' doctrine in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, where it applied the New York Times standard of actual malice to a State civil libel action brought by a private citizen against a radio station which had reported his arrest for his involvement in the 'smut literature racket.' The court held that '(T)he determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern . . ..' Rosenbloom v. Metromedia, Inc., supra, at 44, 91 S.Ct. at 1820. See PRIESTLEY V. HASTINGS & SONS PUBLISHING CO. OF LYNN, MASS., 271 N.E.2D 628^B.

Thus, the central issue presented by the defendant's bill of exceptions is whether there was sufficient evidence of the defendant's actual malice to present a jury question. We must make a determination ² whether there was any evidence that the defendant acted with knowledge that the publication was false or with reckless disregard of whether if was false or not which warranted the trial court's denial of the defendant's motion for a directed verdict. 'In these cases (a court's) 'duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied.' New York Times Co. v. Sullivan, 376 U.S., at 285, 84 S.Ct., at 728.' Rosenbloom v. Metromedia, Inc., supra, 403 U.S., at 55, 91 S.Ct., at 1825.

The plaintiff argues that the evidence of his telephone conversation on the day of the publication with the defendant's reporter was sufficient to present a jury question on the issue of actual malice. The plaintiff argues that the reporter's lack of knowledge of the record other than from the opponent's circulars, as well as the reporter's refusal to investigate the matter in any way after the plaintiff had called to complain about the publication...