King v. Globe Newspaper Co.

Citations: 512 N.E.2d 241; 400 Mass. 705; 14 Media L. Rep. (BNA) 1811; 1987 Mass. LEXIS 1441

Court: Massachusetts Supreme Judicial Court; August 17, 1987; Massachusetts; State Supreme Court

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Former Governor Edward J. King filed a libel action against The Globe Newspaper Company and several of its employees, alleging defamation through multiple articles and cartoons published in 1980 and 1981. The complaint consisted of twelve counts, primarily focused on two articles by columnist David Farrell and a column by Robert L. Turner, as well as cartoons by Paul Szep. Initially, a Superior Court judge denied the defendants' motion for summary judgment; however, more than two years later, a different judge granted the same motion, ruling that most of the statements were constitutionally protected opinions. The judge found that one statement in Farrell's November 8, 1981 article, while factual, was not defamatory or made with malice, which is required for public officials under New York Times Co. v. Sullivan. King appealed, and the court affirmed the judgment on all counts except for Counts 1 and 2, related to the November 8 article, which were reversed and remanded for trial. The court discussed the propriety of the second judge reconsidering the motion, emphasizing that while a judge should generally respect a predecessor's ruling, the power to re-evaluate exists until final judgment. The court agreed with the second judge's decision to reassess the case, highlighting the importance of protecting freedom of expression in defamation cases and the potential chilling effect of litigation costs on speech.

The judge granted the defendants' motion for summary judgment on Counts 3 through 12, concluding that the cartoons and articles in question were constitutionally protected expressions of opinion. The decision emphasized the legal distinction between statements of fact, which can lead to defamation liability, and statements of pure opinion, which are protected under the First Amendment. The judge referenced case law, indicating that while false statements of fact lack constitutional value, opinions—even if deemed pernicious—must be corrected through the competition of ideas rather than judicial intervention. 

Determining whether a statement is fact or opinion can be challenging; it is a question of law if the statement clearly falls into one category, but becomes a factual question if it can be interpreted as either. The court noted that numerous factors exist to evaluate whether a statement is factual or opinion-based and highlighted the importance of context, especially concerning public figures, where the debate on public issues should remain vigorous and unhindered. This balance must also consider individuals' rights to protect their reputations from defamatory remarks. Moreover, while a defendant’s motive in criminal cases is typically a factual question, statements regarding a public official's motives are generally viewed as opinions. The judge indicated that the analysis would continue with the specific cartoons and articles alleged to be libelous.

On May 12, 1981, the Globe published a cartoon by Szep featuring the plaintiff in a striped suit, handcuffed to a police officer while holding a hat with a pinwheel. The cartoon included a list of individuals who were appointed and subsequently resigned, implying the plaintiff's responsibility for these appointments. The court noted that cartoons are typically not factual statements but rather expressions of opinion using hyperbole and exaggeration. The judge concluded that the cartoon conveyed the cartoonist's opinion about the plaintiff's ill-advised appointments rather than suggesting criminal conduct or culpability.

Additionally, another Szep cartoon from November 9, 1979, depicted the plaintiff signing a school prayer bill, flanked by figures representing "Patronage" and "Cronyism," with the caption "So Let Us Prey." The plaintiff argued that the cartoon implied a corrupt connection between the signing of the bill and financial gain. However, the court found this interpretation to be overly strained and maintained that the cartoon was understood as a rhetorical expression rather than an assertion of fact.

Statements alleged to be libelous must be interpreted reasonably, as established in Lyons v. New Mass Media, Inc. The cartoon in question does not reasonably imply that the plaintiff was guilty of extortion or accepted a bribe regarding the school prayer bill. Instead, it may suggest that the plaintiff's motivation for signing the bill was to secure legislative support for a pay raise bill, which the cartoonist viewed as exploiting the public. The First Amendment protects the right to question the motives of public officials, as noted in Janklow v. Newsweek, Inc.

The cartoon, published on October 18, 1979, followed a Globe article detailing Secretary of Transportation Barry Locke's efforts to preserve certain billboards and mentioned contributions to the plaintiff's gubernatorial campaign. The cartoon depicts the plaintiff and Locke with bags of money on a billboard, suggesting that Ackerley billboards could enrich individuals. The accompanying editorial claimed that contributions from Ackerley Communications to the plaintiff's campaign correlated with favorable actions taken by his administration towards the billboard industry.

The cartoon is protected opinion, not depicting the plaintiff as 'accepting cash bribes.' It reflects the editorial judgment that the plaintiff's ties to Ackerley raised public concern. While an opinion can imply undisclosed defamatory facts, the billboard cartoon does not do so; it is based on undisputed facts from the prior article. The statements in the editorial also qualify as protected opinion.

The editorial critiques the billboard industry's actions and lobbying, particularly highlighting a statement suggesting that industry funding influenced the plaintiff's gubernatorial campaign, implying corruption. The plaintiff argues this statement is speculative, as indicated by the word 'apparently,' and claims the editorial infers he acted in service of the industry's interests contrary to public opinion. The editorial raises questions regarding the conduct of public business without making definitive accusations.

Additionally, on January 10, 1980, the Globe published a column by Robert L. Turner that included a fictitious press release attributed to the plaintiff, which could be seen as defamatory. However, the court found that reasonable readers would interpret the column as Turner's commentary rather than a literal press release from the plaintiff. The column's absurdity and humor—such as the phrase "Good riddance" regarding the press secretary—indicated it was satirical. The court concluded that no disclaimer was necessary to convey this satire to readers, contrasting the situation with prior cases that addressed the interpretation of statements in context.

On November 22, 1981, the Globe published an article by defendant Farrell that scrutinized David Thissen's relationships with public figures, particularly highlighting the plaintiff's loyalty to Thissen despite potential political fallout. The article noted that the governor had resisted advice to distance himself from Thissen, especially during legislative discussions on a racing bill benefiting Thissen's associates. The bill, which passed in fall 1981, granted additional racing dates to the Raynham dog track, competing with Keelan's Foxborough harness track, but the plaintiff sought amendments to protect Keelan’s interests. The plaintiff contested Farrell's implication that his actions were driven by loyalty to Keelan rather than public concern, arguing it suggested self-interest over integrity. However, the court found that the First Amendment protects opinions about public officials' motives and that the article did not assert corruption, merely personal loyalty.

In a separate article from November 8, titled "Ed King's promises not money in bank," Farrell criticized the plaintiff's perceived authoritarian demeanor towards other state officials, alleging he treated them as subordinates. The article referenced an incident where the plaintiff allegedly pressured a judge to alter a ruling in a gang-rape case, suggesting the judge's appointment was a mistake and he was unfit for the bench. The plaintiff had publicly condemned the lenient sentences in that case and had communicated his disapproval to judicial authorities. For the purposes of the summary judgment, defendants acknowledged that the plaintiff did not directly contact the sentencing judge.

The statement that the plaintiff "called a judge and demanded that he change a decision he had rendered in a gang-rape case" is deemed a statement of fact rather than opinion, as it refers to a specific, verifiable event without ambiguity. This assertion serves as factual support for the author's critique of the plaintiff's interactions with State officials. The defendants' request for summary judgment based on the argument that the statement represents protected opinion is denied. The analysis then shifts to whether the statement can be considered non-defamatory. A statement may be deemed libelous if it can reasonably be understood in a defamatory manner and discredits the plaintiff among a significant portion of the community. The judge previously ruled the statement non-defamatory, arguing that an average reader would not perceive the plaintiff’s call as disgraceful, given his public position and actions. However, it is argued that the statement could be interpreted as defamatory, as a jury might find that a respectable segment of the community could differentiate between the plaintiff's public dissent and an inappropriate attempt to influence judicial decisions. The independence of the judiciary is emphasized as a fundamental principle, suggesting that the plaintiff's alleged misuse of office could reasonably lead to discredit in the eyes of that community segment.

Summary judgment for defendants may be appropriate if there is no genuine issue regarding Farrell's "actual malice" in his November 8, 1981, article. As a public figure, the plaintiff must prove "actual malice" to recover damages, which involves showing that the defamatory statement was made with knowledge of its falsehood or with reckless disregard for the truth. The Supreme Court in New York Times Co. v. Sullivan established that actual malice is demonstrated through subjective awareness of probable falsity. The standard for reckless disregard is subjective and requires evidence that the defendant harbored serious doubts about the truth of the publication. The ruling in Celotex Corp. v. Catrett allows summary judgment when the party with the burden of proof lacks sufficient evidence. In this case, there is an indication of clear and convincing evidence of Farrell's reckless disregard for truth, which could lead a jury to find actual malice based on objective evidence. The court will review the materials to determine if they sufficiently indicate malice, considering the evidence in favor of the plaintiff.

Farrell's deposition reveals that he relied solely on State Treasurer Robert Crane as the source for his claim that the plaintiff contacted the judge overseeing a rape trial to demand a decision change. Crane recounted a conversation during which he conveyed that he understood the Governor was upset about the judge's ruling and had expressed this to the judge. Crane, however, could not recall his exact wording and emphasized that he had not personally witnessed any conversation between the Governor and the judge. This suggests that Farrell was aware Crane's information was hearsay rather than firsthand knowledge. Furthermore, Crane admitted to not knowing the identity of his informant. 

Farrell did not inquire about Crane's source and did not verify the information with the judge or anyone else, despite his extensive journalistic experience. He considered it serious if a chief executive attempted to influence a judge's decision in a criminal case. The testimony indicates that Farrell published the statement as a fact without proper investigation, understanding that it could damage the plaintiff's reputation significantly. It infers that Farrell acted recklessly by disseminating information based on hearsay, which might be fabricated or speculative. 

The Supreme Court's precedent suggests that a defamation defendant cannot guarantee a favorable outcome simply by claiming to believe in the truth of their statements; the determination of good faith lies with the fact-finder. Claims of good faith may be undermined if the story was fabricated, entirely imagined, or based on unverifiable anonymous sources, especially if the allegations are so improbable that only a reckless person would circulate them.

Recklessness can be established when there are clear reasons to question the credibility of an informant or the reliability of their information. In this case, Farrell had significant doubts about the credibility of Crane's undisclosed informant and others involved in the communication chain. The evidence presented is sufficient to justify a jury's conclusion of actual malice by clear and convincing evidence. The court affirms the judgment on Counts 3 through 12, reverses the judgment on Counts 1 and 2, and remands the case to the Superior Court for trial.

Additionally, the billboard industry in Massachusetts has experienced significant regulatory pushback over the past decade, with many billboards being removed due to local community actions supported by state agencies and courts. Despite ongoing resistance from the industry, which continues to operate around 1,000 non-compliant billboards, recent developments indicate a resurgence in the industry's influence. Ackerley Communications' acquisition of Donnelly Advertising and subsequent political contributions to Governor Edward J. King correlate with legislative actions favoring the billboard industry, including a new law allowing a ski resort billboard to remain despite a court order and efforts to obstruct the removal of other non-compliant billboards. The administration is also considering reducing the authority of the Outdoor Advertising Board, while the industry appears to be posting signs without proper permits and providing free advertising space to political candidates. Overall, the billboard industry, while lacking a strong public constituency, remains a lucrative sector in need of closer scrutiny.

The billboard industry has historically resisted compliance with local community standards and regulations, indicating a need for change prompted by local, state, and federal expectations. Governor Edward J. King expresses relief at the departure of his press secretary, Ronald C. Brinn, whom he blames for obstructing effective communication and damaging his public image. King criticizes Brinn's performance, stating that his administration's goals, such as a significant property tax rollback, were hindered by Brinn's actions. He describes Brinn as a "hard-boiled grinch" and emphasizes that communication issues stemmed from Brinn's insistence on distancing himself from King. King asserts that he had intended to engage more effectively with the press but felt overshadowed by Brinn. He clarifies that he did not fire Brinn but offered him an alternate position, and reflects on previous press secretaries who also failed to meet his expectations. King concludes by proclaiming that he will now handle public relations himself.

David R. Thissen, head of the Desmond Lord architectural firm, was notably absent from Governor Edward J. King's recent “Cruise To Nowhere” fundraiser aboard the S.S. Volendam. Thissen, who has faced significant scrutiny due to an investigation by the Special Commission on State and County Buildings, has become increasingly reclusive, a stark contrast to his formerly sociable nature. His firm merged with John Carl Warnecke's two years ago to mitigate the negative impact of the investigation on their business prospects. Thissen and Warnecke have collaborated on various projects, but Thissen's decline in visibility has affected his friendship with King, who has remained loyal despite recommendations to distance himself. Their interactions have dwindled, limited to occasional social events, and Thissen’s absence from King's invitation to a recent football game reflects his desire to stay out of the limelight as the gubernatorial campaign heats up. Thissen's close ties with U.S. House Speaker Thomas P. O'Neill Jr. complicate his position as the political landscape shifts with Lt. Gov. O'Neill's challenge to King. Despite past close relationships, Thissen's current situation illustrates a significant shift in his public and political engagements.

Thissen faces challenges due to ongoing public criticism from Lieutenant Governor O'Neill's son towards King and former Governor Dukakis, compelling Thissen to withdraw from actively supporting the 1982 election while maintaining equal contributions to both candidates. Dukakis plans to leverage the connection between Thissen and King in his campaign, particularly highlighting their shared efforts to undermine the Ward Commission's work in 1979 and 1980. Thissen and King retain close business ties, including a joint investment of approximately $300,000 in a struggling West Virginia coal mine alongside Red Sox players Yastrzemski and Evans. They recently made management changes to improve profitability. Additionally, Thissen is contending with unresolved allegations from the Ward Commission regarding illegal contributions to King’s 1978 campaign, with the matter pending a decision from Attorney General Francis X. Bellotti.

Freddy Martignetti, a chain store owner, is relieved after the controversial Primary Source liquor bill passed, pending Governor King’s signature, which Martignetti expects based on their longstanding friendship. The bill would allow him to increase his package store licenses from three to seven, potentially revitalizing his business after past legal challenges from the State Alcoholic Beverages Control Commission (ABCC) regarding license limitations.

Martignetti, along with advocates like Bruce Wright and Sam Stone, actively worked to advance the Primary Source legislation in the House and Senate. However, opposition, spearheaded by Marvin Gordon of Whitehall, devised a strategy appealing to Governor King, who faced pressure from public interest groups and advisers to sign the contentious bottle bill, opposed by liquor interests including Martignetti. To mitigate backlash from vetoing the bottle bill, King considered vetoing Primary Source, which opponents framed as harmful to consumers by raising liquor prices and driving them to New Hampshire stores. King traveled to Michigan to study its bottle law, indicating he was seriously evaluating the issue. On the eve of Halloween, Martignetti learned of King's decision to veto Primary Source, feeling betrayed despite their long-standing friendship. During a meeting, King offered a special message to address Martignetti's concerns, but Martignetti recognized the proposal would likely fail. This incident marked Martignetti as another individual, alongside many former allies, who felt deceived by King. Notable figures like Frank Rich and Quincy Mayor Arthur Tobin also faced similar disappointments, with Tobin expecting a judicial appointment that King ultimately denied, straining the governor's relationships in the Senate.

Senate President William M. Bulger's rift with Governor King has reached a definitive point of no return, with attempts at reconciliation by intermediaries proving unsuccessful. King exhibits a demanding attitude towards state officials, expecting total loyalty in exchange for limited patronage. This dynamic has led to a perception that he views other elected officials and members of the judiciary as subordinates whose primary role is to serve him. A notable incident occurred when King pressured a judge to alter a decision in a gang-rape case, leading to criticisms of both King's judgment in appointing the judge and the judge's fitness for office.

In a legal context, the court has decided that the case should return to the Superior Court for trial on counts alleging libel from a column written by David Farrell. The court upheld summary judgment on several counts but dissenting opinions emerged regarding the Ackerley billboard cartoon, indicating a material issue of fact that warrants jury consideration. The excerpt discusses the legal principles surrounding defamation, emphasizing that cartoons can be deemed libelous if they present false statements as facts. The dissent argues that the cartoon could be interpreted by an average reader as accusing the Governor and Secretary of Transportation of accepting bribes, contrary to the defendants' claims that it merely reflected campaign contributions.

The depiction of cash in the hands of the Governor and Secretary, lacking a campaign fund for contributions, suggests to readers that Ackerley Communications may have bribed these officials. When an opinion contains substantial factual content, particularly allegations of serious crimes, the First Amendment does not provide absolute immunity. Consequently, the interpretation of the cartoon as potentially accusing someone of a serious crime raises a jury question about whether it is defamatory. Additionally, there is a factual issue for the jury regarding whether the defendants acted with actual malice in publishing the cartoon, which requires proof that they published the defamatory statement with knowledge of its falsity or with reckless disregard for the truth. Evidence shows that both the cartoonist and the editorial page editor knew Ackerley did not actually give money to the officials but failed to disclose this in the cartoon. Their inability to recall reading the full news story also supports the jury's consideration of malice. If the jury finds the cartoon contains false and defamatory statements, they may infer malice from these omissions. Thus, the case should be remanded for trial concerning both the Ackerley cartoon and the Farrell column, emphasizing that press freedom does not shield artists from libel liability when they neglect truth and responsibility.