If you’re looking for a primer on when an opinion is protected speech and when, on the other hand, it can be deemed defamatory, you won’t do much better than November’s big win for the Boston Herald. Ruling on two cases brought by the band Boston’s lead guitarist, the Supreme Judicial Court didn’t exactly break new ground, but it gave a clear example of how a court should decide whether a statement unambiguously constitutes opinion, thus preventing a libel claim from proceeding. That’s an important lesson to learn in a state where one of the last media libel cases to go to a jury resulted in a $563,000 verdict against the Herald, and a recent non-media libel case yielded a $2.9 million award for a public-figure plaintiff.
The decision is also notable for protecting headline writers who employ “some drama” to catch the reader’s eye, and for affirming a $132,000 award of costs to the Herald.
The Thanksgiving-eve decision by the S.J.C. came on a consolidated appeal of two separate lawsuits, both of which had been fiercely litigated. Both were brought by Tom Scholz, primary songwriter and lead guitarist of the classic rock band Boston, over published statements that he said could be construed as blaming him for the 2007 suicide of the band’s co-founder and lead vocalist, Brad Delp. Some of the statements were contained in a Boston Herald article headlined “Pal’s Snub Made Delp Do It: Boston Rocker’s Ex-Wife Speaks.” That article was written by the Herald’s gossip columnists, Gayle Fee and Laura Raposa, and published on the paper’s front page.
In one of the cases, Scholz sued Delp’s ex-wife, Micki Delp, who was quoted in the Herald article as saying that Brad was upset because a longtime friend, Fran Cosmo, had been “disinvited” from the band’s upcoming reunion summer tour. Superior Court Judge John Cratsley granted summary judgment to Micki Delp in 2011, saying that her statements were not defamatory, were not about Scholz, and were not uttered with actual malice. But the Appeals Court reversed in May 2013, concluding that there were genuine issues of material fact as to each of those elements of the claim. In August 2013, the Supreme Judicial Court took the case for further appellate review.
The second lawsuit was against the Herald itself, as well as against writers Fee and Raposa. In March 2013, the Superior Court judge, Frances McIntyre, ruled for the Herald, and later awarded it $132,000 for its deposition costs. Judge McIntyre declared that, as to the reasons for Delp’s suicide, “That secret went to the grave with him. Any views on the subject would necessarily be opinions.” Scholz appealed, and the Supreme Judicial Court decided to hear that appeal as well.
It does appear that the relationship between Brad Delp (and his family) and Scholz was a strained one at best, and it’s telling that Scholz was not invited to Brad’s funeral. Still, there were numerous clues indicating that the real motivation behind Delp’s decision to commit suicide might have had little or nothing to do with Fran Cosmo having been disinvited from the summer tour. Delp had suffered from depression for a long time, and he left a suicide note that wrote, in French and English, “I am a lonely soul.” It also said, “I take complete and sole responsibility for my present situation,” and that he had lost his “desire to live.” Only nine days before his death, it was discovered that Brad had planted a spy camera in the bedroom of his fiancee’s sister, a discovery that had caused him significant shame.
Oral argument took place on November 4, 2014, and the key question was whether the judges should have let a jury decide why it was that Brad Delp took his life – or, more specifically, whether Micki Delp and the Herald should have to pay libel damages for speculating or asserting that Tom Scholz was the reason. The Supreme Judicial Court took more than a year to decide, but its ruling last week was unambiguous and in line with past case law concerning protection for what the Court described as “nonactionable opinions based on disclosed nondefamatory facts that do not imply undisclosed defamatory facts.”
Justice Fernande Duffly’s opinion for the Court begins with the deceptively simple nostrum that “to be actionable, the statement must be one of fact rather than opinion,” then spends the next 12 pages explaining how one can tell the difference. The distinction, she says, is to be decided by a jury only “if the statement reasonably can be understood both ways”; otherwise, it can be decided by a judge, and the use of summary judgment procedures is “favored” in defamation cases.
The opinion reprises some established law. Simply saying “in my opinion” will not turn a factual statement into an opinion. Rather, the question is whether the statement contains “objectively verifiable facts.” A court should take into account the full context in which the statement is made, considering all the words that are used. Attention should be given to the specific language, “whether the statement is verifiable,” the “general context of the statement,” “the broader context in which the statement appeared,” and the use of any “cautionary terms.”
In applying those principles to this case, the Court ruled that the statements at issue were not objectively verifiable: “While we can imagine rare circumstances in which the motivations for a suicide would be manifestly clear and unambiguous, this is not such a case.” The articles used cautionary terms such as “may have” and “reportedly,” tipping off the reader that the authors were “indulging in speculation.” The statements appeared in what the Court called an “entertainment news column,” which one would expect to contain “rhetorical flair.”
Notably, Judge Duffly pointed out that the most extreme statements were contained in the headline, then said a reasonable reader would not expect a headline “to include nuanced phrasing.” Headline-writers, she wrote, quoting a 2009 case from another jurisdiction, are “permitted some drama in grabbing [their] reader’s attention, so long as the headline remains a fair index of what is accurately reported below.”
Scholz had argued that attribution of certain information in the articles to “friends” and “insiders” suggested that the articles were based on defamatory facts that were not disclosed to the reader. In so arguing, he was relying on the solid body of law establishing that even a statement cast as an opinion will be actionable if it implies “the existence of undisclosed defamatory facts on which the opinion purports to be based.”
But the court rejected that argument, examining the three articles as a whole and concluding that the Herald sufficiently disclosed to the reader the facts on which they were based, including that Brad Delp had “tried to please both sides,” was “always under a lot of pressure,” and had been depressed “for some time.”
Here’s the money quote of the decision, which provides guidance for writers wishing to avoid being named in libel suits. “By laying out the bases for their conclusions,” Judge Duffly wrote, quoting from a 1993 SJC case, “the articles ‘clearly indicated to the reasonable reader that the proponent of the expressed opinion engaged in speculation and deduction based on the disclosed facts.’” In other words, if you’re going to express an opinion that may be construed as defamatory, you had better tell the reader how you got there.
The court also ruled against Scholz in the separate action he brought against Micki Delp, holding that Micki’s statements to the Herald “either asserted nondefamatory facts”—such as that Brad was upset about not inviting Cosmo to join the tour—“or were opinions that did not imply undisclosed defamatory facts”—such as that pressure about the band caused Micki to commit suicide. “Whether Brad’s motive rested, alone or in combination, on any of the reasons propounded by Micki . . . is no longer capable of verification,” Judge Duffly wrote, and “statements that cannot be proved false cannot be deemed statements of fact.”
The decision is a solid victory for the Herald and for the press generally, and will undoubtedly be quoted for years to come. It was supported by a strong amicus curiae brief filed by the Reporters Committee for Freedom of the Press and 25 other media entities.
If you would like any assistance or need more information, please contact the author of this alert, Robert A. Bertsche, at 617 456 8018 or rbertsche@PrinceLobel.com.