The opinion
Quirico, J.
(dissenting, with whom Tauro, C.J., joins). A brief statement of the facts material to this opinion may be helpful. On November 4, 1969, the plaintiffs adult son, Jeffrey C. Stone, was tried in the District Court on a charge of illegal possession of drugs, and at the same time Jeffrey and two other persons were tried on charges of being present *258 where narcotic drugs were illegally kept. The city marshal of Newburyport, who acted as chief of police, testified that the two defendants other than Jeffrey indicated to him that a drug found at the time and place of arrest belonged to Jeffrey. A newspaper account of the trial contained in The Newburyport Daily News, published by the defendant, on November 6, 1969, stated that the marshal had testified that “the defendants [other than Jeffrey] had indicated to him that John J. Stone, father of defendant Jeffrey Stone, was the owner of the ‘harmful drug.’ ” The officer had given no such testimony and had not made any reference to Jeffrey’s father.
The plaintiff, John J. Stone, brought this action for libel against the defendant, and a jury returned a verdict in his favor in the amount of $7,500. Today the court has set aside that verdict and ordered the case remanded to the Superior Court for a new trial on all issues. The court has based its reversal on several decisions of the United States Supreme Court and particularly New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and Rosenbloom v. Metromedia, Inc. 403 U. S. 29 (1971), which established “[a] limitation on the power of State courts to award damages in libel actions” involving “criticism of the official conduct of a public officer .. . [and] also . . . the reporting of an event of public or general concern.” 1 This limitation is stated in the Rosenbloom case to be “that a libel action ... by a private individual against a licensed radio station [or a newspaper] for a defamatory falsehood . . . relating to his involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or *259 with reckless disregard of whether it was false or not.” 403 U. S. at 52 .
I dissent from the decision of the court for the reasons discussed below.
1. I am unable to agree with the flat statement of the court that “[cjlearly, the judicial proceeding which was reported was an event of public or general concern,” whether the statement is intended as a finding of fact or ruling of law. Unless it be the law that every judicial proceeding is automatically an event or issue of public concern, a view of the law which I cannot accept as accurate, then at some point in the trial of this libel action it was necessary that a decision be made on the question whether the defendant’s allegedly libelous publication related to “an event of public or general concern.” The trial judge made none, and his instructions to the jury did not place on them the responsibility to do so. I do not reach the question whether such decision as a general rule may be made by this court because there is nothing in the record before us on which it could be based. See Lewis v. Vallis, 356 Mass. 662, 668 (1970). In this respect the case differs from Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118 (1971), where the public nature of the controversy commented on by the defendant newspaper was evident from the record on appeal. I do not believe that this court can today take judicial notice of whether the trial of the plaintiffs son was “an event of public or general concern” in Newburyport in November, 1969.
Both the necessity and the difficulty of making such a decision appear to have prompted the following statement by Mr. Justice Marshall in his dissenting opinion in the Rosenbloom case: “In order for particular defamation to come within the privilege there must be a determination that the event was of legitimate public interest. That determination will have to be made by courts generally and, in the last analysis, by this Court in particular. Courts, including this one, are not anointed with any extraordinary prescience.” Rosenbloom v. Metromedia, Inc., supra, at 79.
*260 The court does not state or discuss any reasons for concluding that the judicial proceeding involved in this case was “an event of public or general concern,” beyond the statement that “[n]ot only was it a trial of criminal complaints but the alleged crimes involved the presence of narcotic drugs in the community,” and it cites no judicial precedent in support thereof. The Rosenbloom case is not such a precedent because there, as the court pointed out, the “[petitioner concede[d] that the police campaign to enforce the obscenity laws was an issue of public interest, and, therefore, that the constitutional guarantees for freedom of speech and press imposed limits upon Pennyslvania’s power to apply its libel laws to compel respondent to compensate him in damages for the alleged defamatory falsehoods broadcast about his involvement.” 403 U. S. at 40 . Because of that concession the court did not attempt to set forth any guidelines for determining what is or is not “an event of public or general concern”; rather, it considered it sufficient to say that “the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue of public or general concern, albeit leaving the delineation of the reach of that term to future cases” (emphasis supplied). 403 U. S. at 44-45 . I have found no cases decided by the Supreme Court since the Rosenbloom decision which shed any further light on the meaning of the term “an event of public or general concern.”
However, one conclusion which does seem to be implicit in whatever was said about the term in the Rosenbloom case itself is that the mere fact that a comment or publication concerns a pending judicial proceeding does not, without more, mean that it concerns “an event of public or general concern.” There is nothing in the record before this court to indicate that the prosecution of the plaintiffs son was a part of a “police campaign” (see Rosenbloom v. Metromedia, Inc., supra, at 40). Nor is there an indication that it was anything other than a routine, isolated criminal prosecution of a drug charge up to the time the defendant published the erroneous statement that *261 the marshal had testified that other defendants in the proceeding had attributed the ownership of the drugs in question to the plaintiff. It may be argued that starting with the defendant’s erroneous publication the criminal proceeding became “an event of public or general concern.” It would indeed be a near subversion of the constitutional right of freedom of speech and of the press to hold that the defendant in this case acquired the benefit of the limitations applied in the Rosenbloom case because its otherwise libellous publication catapulted a relatively obscure criminal proceeding into an event or issue of public or general concern, and that therefore the plaintiff cannot prevail unless he proves malice on the part of the defendant. The court’s decision in the present case holds that the defendant is entitled to a defence that applies only when a climate “of public or general concern” surrounds the subject matter of the alleged libellous publication. I would deny the defendant the right to that defence if its erroneous publication about the plaintiff created the climate essential to the applicability of the defence.
2. The opinion of Mr. Justice Brennan, writing for a plurality of the court in the Rosenbloom case, indicates clearly, in my opinion, that the rule stated therein, limiting the right of recovery in cases involving news media comment on “an event of public or general concern,” applies only to actions brought by an individual who was involved in that issue, and not to a stranger thereto. Reference is made to a “person involved” or an “individual involved” in such an issue on pp. 42,43,44,48, and 52 of the opinion. The clearest statement on the subject is the following, at 48: “The individual’s interest in privacy — in preventing unwarranted intrusion upon the private aspects of his life — is not involved in this case, or even in the class of cases under consideration, since, by hypothesis, the individual is involved in matters of public or general concern’'’ (emphasis supplied). In the Rosenbloom case, and also in the Priestley case decided by this court, the persons alleging libel were themselves directly involved in the matters which were held to be of “public or general concern.” The *262 plaintiff in the present case was not involved in any way in the alleged criminal activity of his son or in the trial about which the defendant made the erroneous statement alleged to be libellous. He was an innocent bystander who was made the victim of some legally inexcusable fictionalizing by the defendant and one of its reporters. Furthermore, as I have discussed above, I do not believe that such trial was, without more, a matter of public or general concern. In my view, the rule stated by the line of cases represented by New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and Rosenbloom v. Metromedia, Inc. 403 U. S. 29 (1971), does not apply to this case. 2
•3. If my view is correct, we must then return to a consideration of the basic law of libel as heretofore applied to such cases in this Commonwealth. The following statement by Mr. Justice Stewart in his concurring opinion in Rosenblatt v. Baer, 383 U. S. 75 (1966), is appropriate thereto: “The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.” 383 U. S. at 92 . This general statement of principle is still applicable to defamatory statements by any of the news media about a matter which was not one “of public or general concern,” or in which the person defamed was not involved.
It has long been the law of this Commonwealth that news media cannot be held liable for alleged defamatory statements contained in published reports of judicial proceed *263 ings, provided the reports are both fair and accurate. Parker v. Republican Co. 181 Mass. 392, 395-396 (1902). Conner v. Standard Publishing Co. 183 Mass. 474, 479 (1903). Sweet v. Post Publishing Co. 215 Mass. 450, 452-455 (1913). Lundin v. Post Publishing Co. 217 Mass. 213, 215-217 (1914). Sanford v. Boston Herald-Traveler Corp. 318 Mass. 156, 158-159 (1945). Whitcomb v. Hearst Corp. 329 Mass. 192, 199-200 (1952). Joyce v. Globe Newspaper Co. 355 Mass. 492, 498 (1969). Lewis v. Vallis, 356 Mass. 662, 666 (1970).
In Whitcomb v. Hearst Corp. 329 Mass. 193, 199 (1952), we held that “[a] publication which identifies a person who had nothing to do with the [judicial] proceedings as the one against whom the proceedings were directed can be neither fair nor accurate.” A similar conclusion was reached in Sweet v. Post Publishing Co. 215 Mass. 450, 452-453 (1913), where the defendant erroneously identified the plaintiff as a person of a similar name who had been indicted by a grand jury.
I conclude that a person who is not involved in an event of public or general concern has the same right under the law of this Commonwealth to recover in libel for untrue and defamatory statements made about him in an unfair and inaccurate report of a judicial proceeding as he had before the United States Supreme Court handed down its series of decisions represented by New York Times Co. v. Sullivan , and Rosenbloom v. Metromedia, Inc., both supra. See Lewis v. Vallis, 356 Mass. 662, 666-669 (1970), decided before the Rosenbloom case, in which this court found on the facts before it that the rule of the New York Times case and its progeny did not apply and proceeded to decide the case on the basis of the long-standing privilege for fair and accurate reporting of judicial proceedings.
The judge in this case instructed the jury in part that “the law as enunciated in the [New York Times Co. v. ] Sullivan case and subsequent decisions does not apply in this instant matter,” that if “the defendant published the allegedly libelous statement and . . . the published statement was false and inaccurate, then the plaintiff has been *264 libeled by the defendant,” and that if “the defendant published a statement which was not a fair and accurate report of the testimony which occurred in the District Court proceeding, the defendant is not entitled to any privilege and if the statement is untrue, the plaintiff has been libeled.” He further instructed the jury on all other phases of the case, including that of damages. As to damages he expressly instructed the jury that the damages awarded, if any, were to be compensatory and not punitive. It is my opinion the instructions were adequate and correct, and I would so hold. It is my further opinion that such a result would in no way abridge the defendant’s freedom of the press as guaranteed by the First Amendment of the United States Constitution. While the First Amendment may secure to the news media almost total protection from prior restraints, New York Times Co. v. United States, 403 U. S. 713 (1971), I do not believe it gives them the immunity which the defendant seeks on the facts of this case.
4. Since the court bases its decision on its conclusion that “the judicial proceeding which was reported was an event of public or general concern,” it states (in fn. 3) that “we do not consider the effect of the fact that the plaintiff was a public officer.” It is at least questionable whether the plaintiff was a public officer in the sense discussed in the New York Times and other Federal cases, but it is unnecessary to pursue that question for the purpose of this dissent.
The basis of the reversal is clear from the following language of the court: “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. 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 participant in this event was irrelevant” (footnote omitted).
But see Davis v. National Bdcst. Co. 320 F. Supp. 1070, 1072-1074 (E. D. La. 1970), affd. per curiam, 447 F. 2d 981 (5th Cir. 1971); Alpine Constr. Co. v. Demaris, 358 F. Supp. 422, 423 (N. D. Ill. 1973), which might lend support to an argument to the contrary.