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Anatomy of a Brief: Scholz v. Boston Herald

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In early May, the Reporters Committee filed a friend-of-the-court brief with the highest court in Massachusetts, weighing in on a…

In early May, the Reporters Committee filed a friend-of-the-court brief with the highest court in Massachusetts, weighing in on a central tenet of libel law: opinion.

“Opinion” has a broad meaning in libel law

“Opinion” in libel law can encompass more types of speech than the traditional “opinions” you might think of in everyday speech.

In one sense, opinion in libel law can mean exactly what you think. For example, a columnist writes on the editorial pages of the newspaper that she thinks the city council made a bad decision or laments that the city’s new billboards look gaudy.

These statements are protected because, frankly, people are allowed to have opinions. They cannot be “wrong” because they cannot be proven false.

A second type of opinion doesn’t actually seem like an opinion at all. It is perhaps better described as a conclusion, speculation, or conjecture. This type of “opinion” in libel law appears where a writer gives a set of facts and then draws a conclusion from them or offers speculation as to what those facts mean.

That is the type of opinion at issue in Scholz v. Boston Herald.

The facts of the case

The Boston Herald published a series of articles following the suicide of Brad Delp, lead singer of the band Boston, in which reporters interviewed Delp’s ex-wife, friends, and others, attempting to discern why Delp took his own life. Tom Scholz, Delp’s bandmate, sued the Boston Herald, believing the articles defamed him by insinuating that Scholz was the reason Delp ultimately decided to take his own life.

In its first article, the Herald wrote that “the cops were not told why [Brad Delp] took his life,” establishing at the outset that the reason for his suicide is unknown. Gayle Fee & Laura Raposa, Suicide Confirmed in Delp’s Death, Boston Herald, Mar. 15, 2007. The article then delves into possible motivations for why Delp may have taken his own life. Id. First, it notes the conjecture of “friends” who said his “constant need to help and please people . . . may have driven him to despair.” Id. (emphasis added). Then it discusses the “bitter break-up” of the band Boston and how Delp was “pulled from both sides by divided loyalties.” Id. The article describes band member and plaintiff Tom Scholz as being on one side, other band members on the opposite side, and Delp in the middle. Id. The article quotes an “insider” as saying Delp and Scholz were “the best of friends,” yet Delp’s family did not invite Scholz to the private funeral service for Delp. Id. The article also quotes a “close pal” as saying Delp “was a sad character,” “didn’t think highly of himself,” and “was always self-deprecating.” Id.

. . .

The Herald’s second article quotes Delp’s ex-wife, Micki Delp, as saying Delp was upset because his longtime friend Fran Cosmo was “disinvited” from the summer tour and that Delp would “hurt himself before he would hurt somebody else.” Gayle Fee & Laura Raposa, Pal’s Snub Made Delp Do It: Boston Rocker’s Ex-Wife Speaks, Boston Herald, Mar. 16, 2007. The article then quotes Scholz as saying the decision to disinvite Cosmo was not final, that it was a group decision to rehearse without Cosmo, and that Delp was not upset about it. Id. Additionally, the article quotes Delp’s suicide notes, in which Delp wrote, “I am a lonely soul,” “I take complete and sole responsibility for my present situation,” and that he had “lost my desire to live.” Id. It also quotes police reports saying Delp “had been depressed for some time.” Id. Finally, the article discloses that Micki Delp’s sister is married to one of the bandmates supposedly at odds with Scholz, alerting readers to any potential bias Micki Delp may have had in making her statements. See id.

The law on opinion

The law on opinion boils down to two primary rules: (1) If it is impossible to prove a statement is false, it cannot be defamatory, and (2) if a reader could not reasonably believe the statement is claiming to be a fact, the statement cannot be defamatory.

[T]he Court in Milkovich actually reaffirmed two broad principles relating to protection of opinion in libel law. The first is that “a statement on matters of public concern must be provable as false before there can be liability,” a rule from Hepps. Milkovich, 497 U.S. at 19-20 (citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986)). The second is that a statement is not defamatory if it “cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual,” a rule derived from what the Court termed the “Bresler–Letter Carriers–Falwell line of cases.” Milkovich, 497 U.S. at 19-20. Bresler and Letter Carriers held that the use of the words “blackmail” and “traitor,” respectively, were merely “rhetorical hyperbole” used in the “loose, figurative sense,” and no reader would interpret them as implying a criminal offense. See Greenbelt Cooperative Pub. Ass’n v. Bresler, 398 U.S. 6, 14 (1970); Nat’l Ass’n Letter Carriers v. Austin, 418 U.S. 264, 284 (1974). The Court in Falwell held that a parody claiming Jerry Falwell had sex with his mother in an outhouse was protected as satire – even if “outrageous” and “offensive” – because readers would understand the parody was not stating facts about Falwell. Hustler Magazine v. Falwell, 485 U.S. 46, 53, 55 (1988).

. . .

Included in statements that cannot “reasonably be interpreted as stating actual facts” are opinions based on disclosed, nondefamatory facts. The majority in Milkovich did not squarely address this subset of opinion doctrine, but the First Circuit has held, and this Court has agreed, that the U.S. Supreme Court reaffirmed that “statements clearly recognizable as pure opinion because their factual premises are revealed” are not actionable, as they cannot be understood as stating “actual facts.” Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724, 731 n.13 (1st Cir. 1992); Lyons v. Globe Newspaper Co., 415 Mass. 258, 266-67 (1993) (citing Phantom Touring, 953 F.2d at 731 n.13).

. . .

A statement on matters of public concern is not actionable if it cannot be proved false. Milkovich, 497 U.S. at 19-20 (citing Hepps, 475 U.S. 767). The plaintiff bears the burden of proving falsity. Hepps, 475 U.S. at 776. The U.S. Supreme Court has recognized that placing this burden on plaintiffs would result in the protection of some false speech because it was not provably false. Id. at 778. However, the Court was willing to accept that risk, because the “First Amendment requires that we protect some falsehood in order to protect speech that matters.” Id.

Analysis of the case

The Reporters Committee argued in its brief that the Boston Herald is not liable for defamation because (1) the statements cannot be proven false and (2) a reasonable reader would not believe the statements were asserting facts.

Here, Scholz cannot prove “there was no possibility, however slight” that Delp may have committed suicide because of tensions between Scholz and other bandmates. As the lower court rightfully held, “Delp’s final mental state is truly unknowable; it can never be objectively verified.” Scholz, 31 Mass. L. Rep. 315, 2013 Mass. Super. LEXIS 83 at *2. Perhaps his decision to commit suicide was caused by a combination of multiple factors, including being caught having concealed a camera in his fiancée’s sister’s bedroom, struggling to keep the peace in a fractured band, learning that his friend may not tour with them, and suffering from a generally depressive mental state. See id. at *4-7.1 It is impossible for Scholz to prove that his actions did not, in any way, contribute to Delp’s decision to take his life. Delp himself may not have been able to pinpoint the exact moments that ultimately led to his breaking point. To say that tensions between Scholz and other bandmates could not possibly have been one of those moments leading to Delp’s death is unprovable. See Nat’l Ass’n of Gov't Emps. v. BUCI Television, Inc., 118 F. Supp. 2d 126, 131 (D. Mass. 2000) (“[T]he interpretation of another’s motive does not reasonably lend itself to objective proof or disproof . . . .”).

1 The incident with the camera was only disclosed during this litigation and was not known at the time of the articles. See Singer’s Last Days Detailed in Court Papers, Boston Globe, May 27, 2012, available at

. . .

Taken together, no reader could interpret the suggestion that Delp committed suicide because of his friend’s disinvitation from tour as a statement of “actual facts.” Surely after being told that police did not know why, that the suicide notes did not reveal why, and that friends could only speculate why Delp committed suicide, readers could not reasonably believe that the writers of a short entertainment-news column were basing their conclusions on facts that readers did not know. Readers would clearly interpret the Herald’s statements not as facts but as opinion and conjecture based on disclosed facts.

Why journalists should be allowed to offer their “opinions”

While journalists are primarily known for providing factual accounts of events, issues, and controversies, they also contribute to the public debate by offering perspective and analysis.

As the First Circuit has noted, if writers are not allowed to offer a personal perspective to the facts they present, then they “would hesitate to venture beyond ‘dry, colorless descriptions of facts, bereft of analysis or insight.” Riley v. Harr, 292 F.3d 282, 290-291 (1st Cir. 2002) (quoting Partington v. Bugliosi, 56 F.3d 1147, 1154 (9th Cir. 1995)). Allowing defamation recovery for statements offering personal perspectives and conjecture would chill the speech of “commentators, experts in a field, figures closely involved in a public controversy, or others whose perspectives might be of interest to the public.” Id.; see also Partington v. Bugliosi, 56 F.3d 1147, 1154 (9th Cir. 1995) (“[T]he robust debate among people with different viewpoints that is a vital part of our democracy would surely be hampered.”). Journalists’ core duties extend beyond a recitation of facts. They offer commentary and debate. They pose questions that may not have answers. When the media ask a question that implies an answer, and when that answer is plausible “within the wide range of possibilities, [then that] is precisely why we need and must permit a free press to ask the question.” Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1096 (4th Cir. 1993).