Libel

In order to be libelous, a statement must be:

false;
defamatory (i.e., discredit its subject);
published with some degree of fault (negligently in the case of a private figure plaintiff and with actual malice in the case of a public official or figure);
damaging to its subject.

Falsity
Although state and federal law provide some immunities even for false publications, the significance of being able to prove at trial the truth of a publication simply cannot be overstated. To a certain extent, therefore, in preparing an article for publication the press must think like a prosecutor does in presenting a case to a jury. That means considering whether witnesses exist who can testify from their own personal knowledge about the reported event, whether they will agree to testify if asked to do so, whether they would comply with a subpoena, whether they would lie under oath, whether they would appear credible or biased, whether there is any documentary evidence that supports or rebuts the article, whether such documents still will exist when the case finally reaches trial and whether alternative sources of information about the story have been exhausted (such as speaking to the subjects of the publication, or to others who might later be called by the plaintiff or the defendant to admit or deny the truth of the article). While every journalist need not have a working understanding of the Rules of Evidence, it should be understood that, generally speaking, a fact can be proven at trial only by someone who has personal knowledge of its existence and not by someone who merely heard of the fact from someone else.

Moreover, a reporter must think in terms of proving the underlying charge itself, not simply the fact that the charge was made by someone else. For example, if a newspaper prints "Mr. Smith has accused Mr. Jones of killing his wife," it is not enough to prove that Mr. Smith indeed made the reported accusation. Both Mr. Smith and the newspaper will be treated as accusing Mr. Jones of murder and the truth of that underlying charge is what will be at issue in the libel trial. The courts have ruled that liability for a defamatory statement may not be avoided merely by adding a truthful preface that someone else said it first.

In cases where it is difficult to prove definitively whether a challenged statement is true or false, the question of whether, on the one hand, the plaintiff bears the burden of proving that the statement is false or, on the other hand, the media bears the burden of proving that it is true, can be significant. If the jury considers the evidence to be, in effect, a tie, the loser will be the party who had the burden of proof, but failed to meet it.

The U.S. Supreme Court has said that in cases where the publication is of legitimate public concern, the plaintiff bears the burden of proving the publication false, regardless of whether he is a public figure or private figure. The Supreme Judicial Court also has said that where the statements are of public concern, the libel plaintiff bears the burden of proving falsity.

Since the media should not expect universal agreement with the courts concerning whether particular statements are a matter of public concern, and since the question of who bears the burden of proof on truth or falsity often is of more interest to lawyers and academics than to jurors who actually decide libel cases, reporters should assume that it will be up to them to prove to a jury that the statements they published were true. A recent statement by the Supreme Judicial Court, although perhaps not a wholly correct statement of law, nevertheless effectively describes the reporter's task at trial: "While the plaintiff bears the burden of alleging the falsity of the libel, it is up to the defendant to prove truth as an affirmative defense."

In theory, a publication need only be "substantially true" to be protected. As one old (1903) Massachusetts case says, "Suppose I should charge some man with stealing a bay horse, and when I come to court to justify it should prove to be a white horse, there would be no earthly difference in the charge, and I should prove it substantially, if I should prove that the horse was a white horse instead of a bay horse." As another court has said, only the "substance, the gist, the sting of the libelous charge need be true for the speech to be protected."

Applying similar reasoning, an article in Hustler magazine which inaccurately reported that Penthouse publisher Bob Guccione was an adulterer when, in truth, he was a former adulterer, was found to be substantially true by a federal court in New York. Similarly, former Colonel Anthony Herbert ultimately lost his 10 year libel battle with Sixty Minutes because an appeals court found that nine out of 11 challenged statements in the broadcast were not actionable. Since the two remaining statements, even if false and made with actual malice, merely implied the same view as the previous nine statements (i.e., that Herbert had not been relieved from his command for reporting war crimes in Vietnam), the inaccurate statements also were held not actionable.

The Supreme Judicial Court, on occasion, has taken a more narrow view of what is substantially true. One early Massachusetts case held that evidence that a libel plaintiff had "sexual connection with a cow" could not be offered in defense of a libel claim charging that the plaintiff had been falsely accused of sodomy with a mare. The court ruled that the defendant "could not justify the alleged slander by proving another criminal act of the same kind."

While it seems unlikely that the substantial truth doctrine would be so narrowly defined by today's court, Massachusetts still seems to take a conservative approach in applying the defense. In one recent case, a libel claim was based in part on a letter which stated that the defendant had "filed a criminal complaint" against the plaintiff. In fact, the defendant had filed an application for the issuance of a criminal complaint and was awaiting a magistrate's decision as to whether the complaint would be issued. The court found the difference to be more than a "technical" one. In another case, proof that a libel plaintiff had filled out ballots for the election of directors of a company by placing fictitious policy numbers on the ballots and signing his own name was found not to prove the substantial truth of a charge that he had forged the signatures of other persons on the ballots. The court stated that the defendant could not justify its charge of forgery "by proof that the plaintiff has been guilty of something perhaps equally bad but substantially different."

In still another case, a man who had been arrested by California police and held in custody for several days on suspicion of being the notorious "Hillside Strangler," and who had been publicly identified by the police as a suspect in the murder investigation, was allowed to bring a libel claim on the basis of broadcasts that reported those protected facts but which also reported that a police informant (who had successfully taken four lie detector tests) claimed to have witnessed the suspect commit two of the murders. The statements of the informer apparently were viewed as more damning than the uncontested fact that the authorities had sufficient suspicions about the plaintiff to justify locking him up for several days and publicly announcing that he was a suspect in the murder case.

Defamatory content
A publication is defamatory if it discredits the plaintiff or holds the plaintiff up to scorn, hatred, ridicule or contempt in the minds of any considerable and respectable class of the community. To say that a statement is defamatory does not, of course, necessarily mean that the subject of the statement has a cause of action. For example, many defamatory statements are not actionable because they are true. (e.g. the coverage of Gary Hart's escapades). Nevertheless, since even intentionally false statements cannot form the basis for a libel claim if they are not defamatory, the question of whether a statement is defamatory or not is critical to pre-publication review.

The following are examples of statements that have been considered defamatory:

an accusation of the commission of a crime
a statement that one has a loathsome disease (e.g., syphilis, leprosy)
allegations of adultery or sexual misconduct
allegations of insanity or mental illness
allegations of drug use or alcoholism
allegations of dishonesty
allegations of insolvency
allegations of bigotry

Whether a particular statement is defamatory is not always clear and, in close cases, is to be decided by a jury, not by a judge. In former Massachusetts Gov. Edward King's libel suit against The Boston Globe, for example, a trial court judge ruled that a statement accusing the governor of telephoning a judge to demand that he change a lenient sentence in a gang-rape case was not defamatory, in part because of the highly visible actions the governor had taken to express his disapproval of the sentence imposed by the judge. The Supreme Judicial Court reversed, finding that the statement reasonably could be construed as accusing the governor of attempting to interfere with the independence of the judiciary, "the cornerstone of a society governed by law." A Suffolk County jury ultimately disagreed and returned a defendant's verdict, finding that the statement was not defamatory.

In some cases the alleged defamatory sting may not be immediately obvious to a writer or a reader. For example, a plaintiff who had been found a juvenile delinquent as a result of drunk driving charges stemming from a fatal automobile accident sued because a column critical of the criminal justice system reported that he had been released from custody when, according to the plaintiff, he remained in juvenile detention. The superior court dismissed the case holding that although it may be defamatory to falsely accuse one of being in jail, it was not defamatory to falsely report that someone had been released from custody. In another case, a report that a plaintiff had resigned his job was found incapable of a defamatory meaning. More recently, the SJC stated that it would not be defamatory to falsely report that someone had supported John Silber's gubernatorial candidacy.

Libel plaintiffs are allowed to prove that non-defamatory statements contained in a publication convey a defamatory message when combined with facts not contained in the publication but known to its audience. Thus, a false report that ABC Corporation was awarded a contract may not appear on its face to be defamatory of anyone. If, however, the author knows (or has reason to know) that the contract in fact was awarded to XYZ Corporation which has publicly claimed credit for obtaining the award, then the publication may be considered defamatory of XYZ by making it appear to have dishonestly claimed it received the award. Thus, false statements that appear innocent enough on their face may nevertheless convey a defamatory message.

Reporters must be wary of the surprise plaintiff, since statements meant to refer primarily to one person may, under certain circumstances, be defamatory of someone else. To illustrate that point, one legal publication, the Restatement (Second) of Torts, gives the following example: "A states to B that C is an illegitimate child. A has defamed C's mother." Ironically, the legal publication does not note that A also has defamed C's father. Even the trained eye sometimes has difficulty finding the hidden plaintiff in a story.

Family relations often can give rise to an unexpected plaintiff. To report that one is the husband of a faithless wife, or to report that a married man who lives with his wife is single, have been considered defamatory of both spouses. In a 1908 Massachusetts case, a report that the sister of a postmaster who worked at the post office under her brother's employ had been arrested for larceny from the mails and was believed to have stolen so "that she might help others," was considered defamatory of brother and sister.

To be the relative of one who is defamed is not by itself enough to give rise to a separate cause of action, however. There must be a defamatory reference "of and concerning" each plaintiff. Thus, an article which reports that a husband who lived with his wife and two children committed suicide pursuant to an arrangement with two business associates is not defamatory of the widow. A report accusing a husband of dishonesty also does not automatically defame his wife. Similarly, comments critical of an elderly mother's clothing, hygiene, diet and care of her home are not, by themselves, defamatory of her son.

A publication can be defamatory of a corporation or a partnership as well as of an individual. Although corporations are "stereotypically bloodless and soulless," they may recover for damage to their reputation and for out-of-pocket losses, but not for hurt feelings. A corporation can be defamed by a report of its insolvency, deceptive business practices, gross mismanagement or criminal use of its property.

There are two common types of hidden plaintiffs in corporate defamation cases: affiliated companies and principal shareholders or officers. For example, in one Massachusetts case, articles critical of a Massachusetts corporation gave rise to a claim by the corporation's Connecticut affiliate, which had an almost identical name. Substituting generic descriptions for specific names sometimes only makes matters worse. The owner of a Brookline deli was allowed to pursue a libel claim based on a broadcast that did not mention him by name, but said that a Brookline deli owner was part of a drug ring. The allegation that listeners understood the broadcast to refer to the plaintiff (just one of several Brookline deli owners) was sufficient to state a claim.

Generally speaking, an officer of a corporation may not recover for a libel published about the corporation. In one case, an officer, major stockholder, director and principal operations person of a corporation were found not to have a cause of action based upon a false and defamatory report that the corporation had a delinquent account with its alcohol wholesaler. In another case, a doctor and an employee of a clinic were held not to have a libel claim based upon a report that the clinic had misdiagnosed thousands of laboratory tests. In still another case, a corporation that owned a delicatessen was not defamed by a report that its owner was arrested on drug charges, since the report insinuated no misconduct by the corporation itself.

If the report imputes wrongdoing to the officers of a corporation and to the corporation itself, however, each may have a cause of action. Similarly, defamation of a group may give rise to individual defamation claims if the members are sufficiently identifiable. Thus, a report that officials of a labor organization are engaged in subversive activities may not give rise to any group or individual libel claims if the organization has 200 officials. In contrast, a report that an officer of a corporation has embezzled corporate funds may give rise to individual libel claims if the corporation only has four officers. Because one's reputation has been considered personal to the self, actions for libel have not been allowed to survive the death of the plaintiff. Similarly, the publication of defamatory material about a deceased person does not give rise to a cause of action on behalf of the person's estate, descendants or relatives.

Fault on the publisher's part
One of the most significant developments in modern libel law is the abolition of strict liability for defendants responsible for false and defamatory publications. It is not enough for a libel plaintiff to prove that a false and defamatory statement was published concerning him. In order to win a libel case, the plaintiff also must prove some degree of fault on the part of the defendant. How much fault must be proven depends upon the type of plaintiff. If the plaintiff is a private figure, he must at least prove that the false and defamatory statement was negligently made. If the plaintiff is a public official or a public figure, he must show that the statement was made with actual malice on the part of the defendant.

Proof of negligence
As noted, a private figure plaintiff must prove the negligent publication of a false and defamatory statement in order to maintain an action for libel. In other words, the plaintiff must prove that a reasonably prudent person writing an article for publication would realize that the statement was both false and defamatory. (The Supreme Judicial Court has twice refused to expressly decide whether a plaintiff must prove that a defendant was negligent with respect to the article's defamatory content as well as its falsity. However, the SJC has stated that a libel defendant must prove that a defendant "was negligent in publishing defamatory words which reasonably could be interpreted to refer to the plaintiff." It seems reasonable to conclude, then, that a plaintiff must prove negligence with respect to falsity and defamatory content.)

In order to decide whether a journalist has acted negligently in publishing a falsity, a court considers whether a defendant acted reasonably in checking on the truth of the article before publishing it. In so doing, the court examines the reporter's "note taking and research methods, as well as the clarity and reliability of the notes themselves." The presence or absence of time constraints against verification and the seriousness of the charge made also will be taken into account. If by the exercise of reasonable care in verifying facts the inaccuracy would have been uncovered prior to publication, a finding of negligence may be made. Although industry practice is relevant, whether it would be customary practice among professional journalists to have checked other sources prior to publication will not be decisive. Instead, the issue will be whether any reasonable person would have exercised more care. Indeed, the Supreme Judicial Court has ruled that due care in gathering information is not a technical matter beyond a jury's abilities and therefore has ruled that the testimony of professional journalists is not needed to determine whether a reporter acted with reasonable care. "Negligence throughout a trade," according to the court, "should not excuse its members from liability."

In one Massachusetts case, the plaintiff alleged that the defendant had falsely reported that he had made a racial slur during an interview. The reporter's notes contained a reference to the slur, but the reference was not set off by quotation marks and was found among notes that concerned interviews with the plaintiff as well as other people. In addition, the trial court found that the reporter had not taken notes in the presence of the plaintiff during the interview. Those facts, according to the court, were sufficient to support a finding that the reporter had negligently attributed the racial slur to the plaintiff.

In another Massachusetts case, a courthouse reporter who had been on the job for four months and who had received "only several hours of instruction," sat in the back of a courtroom during a criminal hearing unaware that he could have sat at a reporter's table near the witness stand. From his vantage point in the back of the room, the reporter had difficulty hearing some of the testimony and, as a result, mistakenly reported that the father of a 20-year-old criminal defendant was the owner of a "harmful drug" introduced in evidence during the hearing. The Supreme Judicial Court characterized the reporter's conduct as "gross carelessness," conduct sufficient to support a negligence finding. In still another case, a Massachusetts court indicated that the failure to check the veracity of a story with the subject of article would be considered evidence of negligence.

In ordinary circumstances, a newspaper will not be found negligent for relying on the accuracy of a story obtained from a reputable wire service, such as Associated Press or United Press International. Unless the wire service story is so inherently improbable that the defendants should have reason to doubt its accuracy, or unless the defendant has other information in its possession which should raise doubts about the story's veracity, reliance on a reputable wire service is considered reasonable.

The negligence standard, although clearly preferable to strict liability, exposes the reporter to supreme second guessing if litigation results. The reporter's notes, if they exist, will be scrutinized for sloppiness, internal inconsistencies and thoroughness. If notes do not exist, sinister explanations will be offered by the plaintiff. Plaintiff's lawyers will spend hours, perhaps days or even weeks, attempting to uncover alternative sources of information which might have demonstrated the article's errors prior to publication and then castigate the reporter for not exhausting the source prior to deadline. The very existence of a deadline will be portrayed as a disincentive to reasonable and thorough investigation. It is in the reporter's interest, therefore, to attempt to document, as best he can under the circumstances, the reasonableness and thoroughness of the prepublication investigation.

Proof of actual malice
In cases brought by public officials and public figures, proof that the defendants negligently published false and defamatory statements is not enough to prevail on a libel claim. Instead, public officials and figures must prove a higher standard of fault, that is, that the publication was made with actual malice on the part of the defendants.

The U.S. Supreme Court has ruled that a statement made with actual malice is one made "with knowledge that it was false or with reckless disregard of whether it was false or not." The "reckless disregard" component of actual malice has been further defined by the Supreme Court to mean that the defendant "in fact entertained serious doubts as to the truth of his publication." The actual malice test, therefore, is an entirely subjective one which inquires into the defendant's state of mind to determine whether the defendant published the statements with knowledge of their falsity or while entertaining serious subjective doubts as to their truthfulness.

"Malice," as that term is commonly thought of, therefore has nothing to do with the constitutional definition of actual malice. Ill will towards the plaintiff, or bad motives, should not be considered elements of the standard. Nevertheless, certain courts, including the Massachusetts Supreme Judicial Court, have allowed evidence of a defendant's bad will toward a plaintiff to be introduced as evidence of a motive to lie about the plaintiff, thus tending to prove (the theory goes) that the publication was made with knowledge of falsity or with serious doubts as to its truthfulness.

Because the actual malice test focuses on whether the defendant subjectively disbelieved or doubted the publication, proof that a defendant acted negligently in publishing a story (for example, by failing to investigate) is not proof of actual malice. "'[K]nowledge' or 'reckless disregard' is a subjective matter, a question of state of mind, quite distinct from any question of objective reasonableness or prudence." In the case of New York Times v. Sullivan, the newspaper published an advertisement claiming, among other things, that "truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus" following the singing of "My Country, 'Tis of Thee" on the state capital steps by students and the expulsion of their leaders from school. The advertisement also stated that the "entire student body ... [refused] to re-register" and that "their dining hall was padlocked in an attempt to starve them into submission." The Times possessed information which disproved some of the charges and made no attempt to confirm the accuracy of the claims. Despite the fact that the advertisement was based on hearsay, was not investigated, and was contrary to some information within the Times possession, the record was insufficient to support an actual malice finding of knowledge of falsity or serious subjective doubts to truth.

Similarly, in another leading Supreme Court case, St. Amant v. Thompson, a political candidate accused a deputy sheriff of accepting bribes from a union official. The Supreme Court stated that the defendant "had no personal knowledge of [the plaintiff's] activities, he relied solely on [a source's] affidavit although the record was silent as to [the source's] reputation for veracity; he failed to verify the information with those in the union office who might have known the facts. He gave no consideration as to whether or not the statements defamed [the plaintiff] and went ahead heedless of the consequences." Because of the absence of proof of subjective doubts, the Supreme Court found "[b]y no proper test of reckless disregard was St. Amant's broadcast a reckless publication about a public officer."

Critics of the actual malice test have said that the test "puts a premium on ignorance, encourages the irresponsible publisher not to inquire, and permits the issue to be determined by the defendant's testimony that he published the statement in good faith and unaware of its probable falsity." The Supreme Court has made it clear, however, that a defendant cannot automatically ensure a favorable verdict by testifying that he believed the published statements were true.

Professions of good faith will be unlikely to prove persuasive where a story is fabricated by the defendant, is the product of his imagination or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless person would have put them in circulation. Likewise, recklessness may be found where there are obvious

reasons to doubt the veracity of the informant or the accuracy of his reports.

The Supreme Judicial Court, in applying the above test, sometimes has focused on if a defendant was surprised by a report in determining whether it was published with serious subjective doubts. In one case, the court reviewed the conduct of an editor who had reviewed a story by an inexperienced courthouse reporter. The story reported the testimony of a city marshal as claiming that the plaintiff owned a "harmful drug" admitted in evidence against the plaintiff's son. The editor had known the plaintiff for 20 years and considered him to be an excellent citizen. He testified that he was "surprised" at the information about the plaintiff, but accepted it as the testimony of a reliable public official under oath. The article was crowded out of the paper on the date it first was scheduled to run, postponing its publication for 24 hours, during which time the editor did not convey any concerns about the story to his superiors. According to the Supreme Judicial Court, the evidence of the editor's knowledge of the plaintiff's reputation and character, and the amount of time available to check the accuracy of the story, could justify a jury finding of actual malice.

The SJC further explained its view of the actual malice test in King v. Globe Newspaper Co. In King, the governor sued a newspaper for a column which stated that he "called a judge and demanded that he change a decision he had rendered in a gang-rape case." The columnist's source was the state treasurer. The columnist testified that in his 35 years as a journalist, he had never heard of a similar occurrence. Because the SJC found that such a call would have been highly unusual, and because the columnist relied upon hearsay which he did not investigate beyond his source (a high ranking state official who had provided him with reliable information in the past), the court ruled that a jury might find sufficient evidence of actual malice. As previously noted, a jury ultimately found that the report was not defamatory.

Critics of the King decision point out that the case appears to require a reporter to investigate beyond his source, even if it is a high ranking state official. Indeed, although the SJC made clear that, in its view, a governor telephoning a judge to complain about a sentence was "highly unusual," there was no evidence presented that the columnist disbelieved or doubted his source, who had provided him with reliable information in the past. Supporters of the opinion state that the court simply found that the report of the governor's phone call was so "inherently improbable" that there were obvious reasons to doubt its veracity. The issue is not merely a theoretical one. For although the actual malice test is intended to provide the press with additional breathing space in addressing issues concerning public officials and figures, questions of whether a reasonable investigation was made have a way of creeping into the trial of even public official libel cases, despite pious protests to the contrary in certain appellate opinions.

As noted above, the additional protections of the actual malice test arise only when the plaintiff is a public official or a public figure. There are few bright lines distinguishing between, on the one hand, private figures and, on the other hand, public officials and public figures. The issue often is one of the most vigorously contested of a libel trial. Decided cases do provide some guidelines for determining which creature you are dealing with.

Public officials
For purposes of applying the actual malice test, the public official designation has been found to apply, at the very least, to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. A night watchman accused of stealing state secrets likely is not a public official. Rather, "the employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion engaged by the particular charges in controversy."

The following persons have been deemed public officials:

a city commissioner whose duties included supervising the police.
a police chief, a deputy sheriff, a deputy chief of detectives and lieutenant, and police officers, but apparently not constables.
a mayor and an alderman.
a member of the Boston licensing board.
a member of a local council on aging.
the governor.
a high school principal.

The following persons have been deemed not public officials:

an employee of the Brockton Water Department.
a State Senate Court Officer.
a clinical psychologist at a Veterans Administration hospital.
lawyers, despite their being "officers of the court."

Public figures
In extending the actual malice standard to public figures, the Supreme Court has noted both the prominent role that such persons play in public affairs (thereby justifying increased First Amendment protection for speech concerning them) and the fact that public figures are likely to have significantly greater access to channels of communication needed to counteract false statements than private individuals typically enjoy.

The court has delineated three major classes of public figures:

"All purpose" public figures who have "assumed roles of special prominence in the affairs of society," or who have achieved "pervasive fame or notoriety" or who occupy positions of "persuasive power and influence."
"Limited purpose" or "vortex" public figures who "have thrust
themselves to the forefront of particular public controversies in
order to influence the resolution of the issues involved."
"Involuntary" public figures, who "become a public figure through no purposeful action of their own." Instances of such involuntary public figures have been said to be exceedingly rare.

The following have been held to be public figures:

a well known college football coach
a newspaper publisher who regularly takes controversial public stands
a public employee union
a candidate for an elected union office
a developer of timeshare condominiums where a public controversy exists concerning the development
Johnny Carson, William F. Buckley, Bebe Rebozo and James Earl Ray
the Church of Scientology
a candidate for public office
a laboratory which, according to government reports, had misdiagnosed thousands of laboratory tests creating a public health controversy

It is just as important to note some persons and entities who have not been found to be public figures:

a prominent lawyer
a behavioral scientist who used federal grant funds to study the clenching of jaws by animals exposed to stress
a prominent socialite embroiled in a celebrated divorce proceeding
a person who, 16 years earlier, had pleaded guilty to a contempt charge for failing to respond to a grand jury subpoena in a major investigation of a Soviet spy ring .
a corporation which manufactured, sold and advertised commercial fishing boats
a man who was arrested on suspicion of being the notorious Hillside Strangler, and subsequently released without being charged

The SJC's decision that the suspect in the Hillside Strangler case was not an involuntary public figure despite the public statements made by law enforcement agencies about his arrest underscores a fundamental concern underlying many public figure decisions. Unless the subject of a publication can be characterized as somehow making a conscious decision to invite public scrutiny of his conduct, either by his public statements, his voluntary involvement in a public controversy, his running for elected office or by recently committing acts that are, by objective standards, wrongful or dangerous, there will be a strong reluctance to hold the plaintiff to the actual malice standard.

Damages
There is a debate in legal circles as to whether a plaintiff must prove that he suffered some actual injury as a result of a false and defamatory publication in order to prevail on a libel claim. Regardless of whether proof of actual injury is an element of the libel plaintiff's substantive case, Massachusetts law limits the extent of a libel plaintiff's recovery to his proven, actual damages. Those damages may include monetary awards for mental suffering, injury to reputation and out-of-pocket losses (e.g. loss of employment opportunities, fringe benefits, etc.). Unlike many states, Massachusetts does not permit the recovery of punitive damages in libel cases.

Opinion
Massachusetts and federal courts agree that statements of opinion are absolutely privileged and therefore cannot form the basis for a libel action. The 1990 decision of the U.S. Supreme Court in Milkovich v. Lorain Journal Co. indicated that federal law does not provide as much protection for statements of opinion as previously had been thought. Since Milkovich was decided, the SJC has ruled that, regardless of the reach of First Amendment, state law continues to provide extensive protections for expressions of opinion. (Lyons v. Globe Newspaper Co.).

Both federal and state law protect statements of "pure opinion," defined as expressions that are too general, amorphous, loosely definable, or satirical to be strictly defined or proven. "I thought FDR was a lousy president," for example, is a non-actionable statement of opinion not susceptible of proof or disproof. Similarly, the following statements have been considered pure opinion:

in a "best and worst" column: "The only newscaster in town who is enrolled in a course for remedial speaking"
a reference to a plaintiff as "Wicked Wayne"
a description of women as "amazons"
a description of a reporter as having been fired for "sloppy and irresponsible reporting" and a "history of bad reporting techniques"
a description of a building as "aesthetically lousy"
a statement that singers "opened their mouths like caverns, and sound[ed] like the wailing of damned souls"
a food critic's statement that rice was "soaking in oil"

Prior to the Milkovich decision, state and federal courts had recognized a second category of protected opinions: opinions based upon disclosed facts. This type of opinion can be a characterization, a conclusion, or mere conjecture drawn from facts that either are disclosed to or already known to the audience. Provided that such an opinion does not imply the existence of undisclosed false and defamatory facts, it has been held privileged. Part of the theory for this branch of the privilege is that so long as the audience knows the basis of the writer's opinion, it can evaluate for itself the soundness of the opinion expressed.

For example, simply stating that someone is an alcoholic might be defamatory. But to state that you saw someone have a martini at lunch and therefore believe he is an alcoholic is an opinion based upon a disclosed, non-defamatory fact. The listener is armed with sufficient information to discount the opinion expressed for what it is worth. Other statements that have been held opinions based upon disclosed facts include:

calling a policeman a "little monkey," a "lunkhead," a "meathead" and a "dictator and Nazi" based upon a description of being stopped for
motor vehicle violations
a reference to a union official as a "communist" in the context of a labor dispute
a statement that a man acquitted of rape "jumped" his accuser, in the context of a description of the facts of an infamous criminal case
a characterization of the marketing of a timeshare condominium project as a "scam" in an article describing the sales techniques used by the development

In Milkovich, the Supreme Court held that a columnist's article about a high school wrestling coach disciplined by a state athletic association contained defamatory statements of fact, not opinion. The columnist had written that based upon his observations of the coach inciting a crowd at a wrestling meet and then denying doing so in testimony before the athletic board, students had learned that "[i]f you get in a jam, lie your way out." In its ruling, the court described the limitations of the First Amendment's protections for statements of opinion as follows:

If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, "In my opinion Jones is a liar," can cause as much damage to the reputation as the statement, "Jones is a liar."
In Lyons v. Globe Newspaper Co., the SJC refused to follow the Supreme Court's limited interpretation of the opinion privilege. Instead, the Court reaffirmed that Massachusetts common law as well as the state constitution protected expressions of opinion based on disclosed facts "because we trust that the recipients of such opinions will reject ideas which he or she finds unwarranted by the disclosed information." Accordingly, an article that reported suspicions that a union leader had promoted the picketing of a political convention was held privileged because the article also reported the non-defamatory facts that formed the basis for that opinion.

Fair report
There is a qualified privilege to provide a fair and accurate report of judicial, legislative and certain other governmental proceedings, even if the matters contained therein are false and defamatory. Thus, a reporter may report trial testimony without fear that repeating the witness's testimony will defame someone, provided that the report is attributed to and is a fair and accurate summary of the testimony. The privilege also has been applied to reports of military tribunal proceedings and hearings of the Registry of Motor Vehicles.

The theory underlying the privilege is that the operation of certain governmental proceedings is a matter of public concern about which the public should be informed. The privilege also extends to fair and accurate reports of certain governmental documents. Unlike other states, however, Massachusetts appellate courts have not yet extended the privilege to documents on file with a court which have not yet been the subject of judicial action. Thus, in an 1884 case, the privilege was held not to extend to a report of the contents of a complaint filed with the clerk's office and then removed prior to any judicial action being taken. The privilege does, however, extend to fair and accurate reports of the issuance of arrest warrants and search warrants.

The privilege also applies to certain non-judicial records such as arrest reports, public health warnings and press releases. The privilege has been extended to official statements made by the police but expressly has been held not to extend to "unofficial statements" made by police sources. Thus, in the Hillside Strangler case discussed earlier, the press had a privilege to report on the suspect's arrest and on official statements linking the suspect to the murders, but was not privileged to report on the statements made by a police informer and his family unless they also were made public as part of an "official statement" of the police department.

The fair report privilege is not an absolute privilege. Modern cases suggest that so long as a fair and accurate report of the proceeding or document is given, the report will be privileged regardless of whether the underlying statement is false and defamatory and regardless of whether the reporter believed the underlying statements to be true or false. Since the purpose of the privilege is to inform the public of governmental action, the reporter's beliefs or doubts about statements contained within the governmental report or which are made during the governmental proceeding are considered irrelevant. There is, however, some authority for the proposition that excessive publication of the otherwise privileged report or proceeding intended to injure another might waive the privilege.

Potential contract theories of liability
Although claims against the media traditionally have been brought as either personal injury suits or other forms of tort actions, reporters also should be aware of potential breach of contract or broken promise claims brought by news sources. In 1991, the U.S. Supreme Court ruled that the First Amendment did not prohibit a news source from recovering a $200,000 damages award from two newspapers who had broken their promise to keep his identity confidential in exchange for being provided information about a political candidate. (Cohen v. Cowles Media). The source was employed by an advertising agency working for the campaign of a gubernatorial candidate. One week before the election, the source met with the reporters and, relying on their pledge of confidentiality, provided them with information concerning minor criminal charges brought against a member of the opposition ticket more than 10 years earlier. The reporters (who worked for two different newspapers) relayed the information to their respective editors. The editorial staffs of both newspapers decided that because of the source's position in the campaign, his identity was so important to the story that it ought to be disclosed in the articles despite the reporters' promises to the contrary.

The source was fired the same day the articles were published, and sued the newspaper for fraud and breach of contract. The jury returned a verdict of $200,000 in compensatory damages and $250,000 in punitive damages. After the state appellate courts reversed the verdicts, the Supreme Court reviewed the case and ruled that the newspapers could be held liable for disclosing the source.

Despite that the articles reported only truthful information about the tactics of a political campaign, the Supreme Court held that the First Amendment did not protect the media from claims for broken promises any more than it allowed the press to "break and enter an office or dwelling to gather news." The state court later reinstated the $200,000 damages award, a powerful reminder to reporters everywhere of the need for caution in striking deals with news sources.

Discovery of confidential sources, unpublished information and editorial processes
Unlike most states, Massachusetts has no legislative shield law protecting reporters' confidential sources or unpublished information. Libel defendants thus must largely rely upon the discretion of individual trial court judges to limit intrusive and unwarranted discovery concerning both confidential information and the editorial process.

Generally speaking, information concerning communications between a reporter and an editor will be discoverable in a libel suit, including interoffice memos about a story, handwritten notes, face to face meetings or even diary entries. Moreover, if the identity of a source is considered relevant to proving or disproving either the truth or falsity of the publication, the reasonableness of the reporter's reliance on the source, or the reporter's subjective belief or disbelief about the source's veracity (as often is the case), Massachusetts courts have issued orders compelling the reporter to disclose such information, especially in cases where the information is available from no other source. In civil litigation such as libel actions, the penalty for violating a court order requiring disclosure of a source's identity or other information might be the entry of a directed verdict in favor of the libel plaintiff, an order prohibiting the reporter from relying on the source in defending the case, an instruction to the jury to presume that there was no source or a host of other punitive measures designed to make the law suit more difficult to defend for the non-complying party.