Roketenetz v. Woburn Daily Times, Inc.

Armstrong, J.

(dissenting). This case falls within the settled rule that a demurrer to a libel action cannot be sustained unless the publication is not reasonably capable of any defamatory meaning. Twombly v. Monroe, 136 *165 Mass. 464, 469 . Robinson v. Coulter, 215 Mass. 566, 570 . Morgan v. Republican Publishing Co. 249 Mass. 388, 390 . Lyman v. New England Newspaper Publishing Co. 286 Mass. 258, 261 . Ingalls v. Hastings & Sons Publishing Co. 304 Mass. 31, 34 . Epstein v. Dun & Bradstreet, Inc. 306 Mass. 595, 596 . Tobin v. Boston Herald-Traveler Corp. 324 Mass. 478, 487 . Muchnick v. Post Publishing Co. 332 Mass. 304, 305-306 . Mabardi v. Boston Herald-Traveler Corp. 347 Mass. 411, 413 . The declaration follows the forms set forth as sufficient in G. L. c. 231, § 147, Forms, 18-20, except that no innuendo is stated. Where, as here, the published matter imputes crime, no innuendo is necessary. Lyman v. New England Newspaper Publishing Co. 286 Mass. 258, 261 . Therefore I would reverse the order sustaining the demurrers.

I would not reach the question whether the words “express malice” or “actual malice” are a sufficient method of pleading facts necessary to overcome the conditional privilege enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 , and later cases. Privilege is a matter of defence and has repeatedly been held not to be raised by demurrer. Robinson v. Coulter, 215 Mass. 566, 571 . Peck v. Wakefield Item Co. 280 Mass. 451, 457 . Ingalls v. Hastings & Sons Publishing Co. 304 Mass. 31, 34-35 . Muchnick v. Post Publishing Co. 332 Mass. 304, 308 . It is possible, of course, for a declaration to allege facts disclosing an affirmative defence, thus enabling the defendant to raise by demurrer what he would normally raise by his answer. The majority find such disclosure not in the plaintiffs’ own allegations of fact but in the text of the allegedly libelous newspaper article. I feel that the sounder approach is that taken in Peck v. Wakefield Item Co. 280 Mass. 451, 456 , that facts stated in the allegedly libelous publication are not to be treated as allegations of fact by the plaintiff. The only fact these plaintiffs allege with respect to the article is that the defendant published it. They do not allege as fact any statements in the article, including those that the majority rely upon tó establish privilege. Nothing in the declaration precludes a .contention by the plaintiffs that *166 the participants at the board of health meeting did not in fact make the defamatory statements reported, that the meeting never touched upon the Roketenetz business, or that there was in fact no meeting of the board of health. Peck v. Wakefield Item Co., supra. Since the plaintiffs have not alleged facts showing conditional privilege, they are not required to allege facts sufficient to overcome the privilege.

Nothing in New York Times Co. v. Sullivan or later cases has altered our established rules of pleading or proving privilege, or the facts which overcome privilege. The burden of proving facts to overcome a conditional privilege has always been on the plaintiff. Brow v. Hathaway, 13 Allen 239 . Doane v. Grew, 220 Mass. 171, 182 . Bander v. Metropolitan Life Insurance Co. 313 Mass. 337, 344 . Cases after New York Times Co. v. Sullivan holding that the defendant is entitled to a directed verdict where the plaintiff fails to carry that burden (Tripoli v. Boston Herald-Traveler Corp. 359 Mass. 150 ; Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118 ; Twohig v. Boston Herald-Traveler Corp. 362 Mass. 807 ) stand on no different footing from such earlier cases as Childs v. Erhard, 226 Mass. 454 , and Terrini v. New England Steamship Co. 244 Mass. 325 .

Even if facts stated in the allegedly libelous publication were treated as part of the plaintiffs’ own allegations of facts, any conditional privilege thus disclosed was sufficiently rebutted by pleading that the defendant acted with “actual malice”, “express malice”, or “malice in fact.” 1 The New York Times Co. case itself used the phrase “actual malice” to denote the knowledge of falsity or reckless disregard necessary to overcome the privilege. 376 U. S. 254, 279-280 . So do Tripoli v. Boston Herald-Traveler Corp., Priestly v. Hastings & Sons Publishing Co. of Lynn, and Twohig v. Boston Herald-Traveler Corp., all supra. *167 The plaintiff in a libel action should be able to use the same phrase. To require more particularity cannot, in my opinion, materially reduce “the inhibiting effect [on public debate] of the expenses involved in defending libel suits.” Few plaintiffs in libel actions will be loathe to recite that the defendant published “with reckless disregard of whether the facts were true or false.”

The phrases are used interchangeably. See Hartmann v. Boston HeraldTraueler Corp. 323 Mass. 56, 59 ; Bander v. Metropolitan Life Insurance Co. 313 Mass. 337, 343-344 ; Sweet v. Post Publishing Co. 215 Mass. 450,452 .