PAUL YOVINO vs. ROBERT FISH & another. [Note 1]

KASS, J. It was not exactly "The War of the Worlds," [Note 2] but some listeners were taken in. On July 16, 1982, a "talkmaster," Jerry Williams, broadcasting over radio station WRKO-AM, interviewed a comic who impersonated then mayor of Boston, Kevin H. White. "His Honor," the honorific which Williams lavished upon his guest, took calls from the radio audience. He pretended to be the mayor, although greatly exaggerating the mannerisms of the persona of the real mayor. Broad as the caricature may have been, the impersonator induced a flurry of phone calls to City Hall in which the callers made unflattering observations about what the "mayor" was saying on the air. While the show was still in progress, the true mayor's press secretary was moved to lodge a protest by telephone with the management of the radio station. Williams did not identify his guest as an impersonator until well into the program, an alarmed station management having ordered that be done.

Insisting that Yovino had failed, in contravention of his known duty as producer, to clear the "His Honor" act with him or the director of programming, the defendant Fish, who was the general manager of WRKO, sacked Yovino that afternoon. Yovino, who had been employed on an "at will" basis as the producer of the Jerry Williams Show, claims he was thrown to the wolves by the station to assuage political wrath. The defendants say that the impersonator episode was the last in a series of misjudgments by Yovino and that is why he was

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fired, although they add that they were free to discharge Yovino for any reason or no reason.

Yovino's complaint alleges: (1) breach of an implied covenant of fair dealing; (2) unfair discharge violative of public policy; (3) "false light" invasion of privacy; (4) interference with advantageous business relations; and (5) libel. A judge of the Superior Court disposed of all counts on summary judgment, and Yovino has appealed. The defendants carry the burden of establishing that, as to any of the counts, there is no genuine issue of material fact and that, on the uncontroverted facts, the defendants are entitled to judgment as matter of law. Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 626 (1989). Williams v. Bresnahan, ante 191, 193 (1989).

1. The plaintiff as sacrificial lamb; implied covenant of fair dealing and public policy. His discharge, Yovino contends, was an act of appeasement to an angry mayor's office. Public policy, he reasons, should protect workers in the media from political interference, and, consequently, the termination of his employment was unlawful under the public policy limitation to the discharge of at-will employees. See Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-151 (1989); Glaz v. Ralston Purina Co., 24 Mass. App. Ct. 386, 388-390 (1987), which collects many of the authorities. None of the materials offered by either party on the motion for summary judgment contains an express or implied request by a political figure for Yovino's head. The plaintiff's factual premise, therefore, has no foundation, but even if it did, Yovino's broad interpretation of the public policy exception is not in harmony with recent decisions.

Employees have redress if they lose their jobs "for asserting a legally guaranteed right (e.g., filing workers' compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)." Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 149-150. See also Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988); Note, Protecting Employees At Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv.L.Rev. 1931,

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1936-1937 (1983). The exception does not extend to the performance of all appropriate and socially desirable duty. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., supra at 150. Although the grain of sand may produce the pearl, an employer may opt to relieve itself of the irritant. Perhaps the most one may ask for a hoax is toleration, rather than its elevation to activity protected by public policy. See Glaz v. Ralston Purina Co., 24 Mass. App. Ct. at 390. Freedom of speech is not implicated as the radio station owner, in relation to its employees, has the last word about what it chooses to broadcast.

In firing Yovino, RKO forced no forfeiture of economic benefits earned or almost earned. See McCone v. New England Tel. & Tel. Co., 393 Mass. 231, 234 (1984); Tenedios v. Wm. Filene's Sons Co., 20 Mass. App. Ct. 252, 255 (1985); Cataldo v. Zuckerman, 20 Mass. App. Ct. 731, 739 (1985). Compare Fortune v. National Cash Register Co., 373 Mass. 96, 102-104 (1977). There was no breach of the implied covenant of fair dealing as that covenant has been understood in the cases.

2. Wrongful interference with business relations. Missing from the materials on summary judgment is any evidence (1) of a business relationship that Yovino had established or a beneficial contractual arrangement which he was about to enter; (2) that the defendants knew about any such relationship or arrangement; (3) that the defendant had intentionally and maliciously interfered with any such arrangement or relationship; and (4) that Yovino had suffered a loss of advantage because of the defendant's conduct. Comey v. Hill, 387 Mass. 11, 19 (1982). Chemawa Country Golf, Inc. v. Wnuk, 9 Mass. App. Ct. 506, 509 (1980). Yiakas v. Savoy, 26 Mass. App. Ct. 310, 315 (1988).

Yovino's affidavit that an acquaintance heard the defendant Fish say at an industry gathering "if I have anything to do with it, Yovino will never work in broadcasting again" is totem pole hearsay and is not competent to defeat summary judgment. In the absence of a motion to strike the defective part of the affidavit, the motion judge had discretion to credit it or disregard it. We may assume the latter. Madsen v. Erwin, 395

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Mass. 715, 719-721 (1985). Glaz v. Ralston Purina Co., 24 Mass. App. Ct. at 387. The defendants' answers to media inquiries show neither knowledge of Yovino's job opportunities nor intent to undermine them. See Mailhiot v. Liberty Bank & Trust Co., 24 Mass. App. Ct. 525, 527 n.3 (1987).

3. Libel. In a display of narcissistic interest in stories about the media, the press gave the Yovino firing expansive coverage. [Note 3] Fish was not reticent about responding. Certain of the damaging remarks which Fish made about Yovino and which appeared in print qualified as opinion, as Yovino concedes: "[Yovino] . . . had a penchant for carrying on without consulting anyone"; "[t]hat bleepin' kid was going to cost me my license some day"; and "[i]t was an unusual topic for a show, and it was the responsibility of the program producer to check it out, in advance, with one of us."

Opinion is not actionable because, under the First Amendment to the United States Constitution, there is no such thing as a false idea. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974). Myers v. Boston Magazine Co., 380 Mass. 336, 338-339 (1980). Cole v. Westinghouse Bdcst. Co., 386 Mass. 303, 308 (1982). See Restatement (Second) of Torts Section 566 (1977), which, however, states the reservation, adopted in the cases, that an opinion may be actionable "if it implies the allegation of undisclosed defamatory facts as the basis for the opinion." See also National Assn. of Govt. Employees, Inc. v. Central Bdcst. Corp., 379 Mass. 220, 227-228 (1979), cert. denied, 446 U.S. 935 (1980). The Cole case shares the flavor of the case now before us. There had been a newsworthy firing in broadcasting. In response to inquiries by print reporters, the station gave out statements that the person had been discharged "for reasons of misconduct and insubordination," that it was "a case of `sloppy and irresponsible' reporting," and that the employee had been "fired for a history of bad reporting

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techniques." Cole v. Westinghouse Bdcst. Co., 386 Mass. at 305-306. The remarks were held to be nonactionable statements of opinion.

Those disparaging statements which the plaintiff in the instant case says had the ring of fact bore on the issue of whether Yovino had cleared the Kevin White impersonation with his program director before it went on the air: "the program idea should have been cleared with him or the program director," "the Friday show, which had the mimic taking calls on the air, had neither been submitted for approval, nor OK'd, either by him or WRKO program manager, Mel Miller," "[w]hen I found out from Mel Miller that the program had not been cleared, in my mind he [Yovino] was already gone." [Note 4] Yovino says that the impersonator program idea had been made known to Fish and the program director, that neither had disapproved it, and that the statements by Fish that he had not obtained clearance were false and damaging to his reputation in broadcasting.

Our inquiry is whether, in context, the "failure to clear" remarks unambiguously constituted fact or opinion or whether those remarks were susceptible of being read by a reasonable person as fact or opinion, in which event the final determination was for a jury (or other trier of fact). Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 733-734 (1986). What is "unambiguously" fact or opinion is one of those questions which, paradoxically, is not self-evident and requires tools of analysis. [Note 5] Among the factors are: (1) how is the allegedly

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offensive statement commonly understood; (2) is the statement capable of being characterized as true or false; (3) what will the reader infer from the statement objected to in light of statements not objected to, i.e., how does the statement sit in the context of the material in which the statement appeared; and (4) what is the broader context or setting in which the statement appears? Ollman v. Evans, 750 F.2d 970, 979-984 (D.C.Cir. 1984) (en banc), cert. denied, 471 U.S. 1217 (1985). See Aldoupolis v. Globe Newspaper Co., 398 Mass. at 733-734. We consider these factors, although in somewhat different order.

Whether Yovino had cleared the White impersonation with the program director is a statement susceptible of being characterized as true or false. One may pause to ask if such a statement is defamatory. Taken in isolation, the statements upon which Yovino focuses do not, in common understanding, tend to demean him in the eyes of the relevant -- radio broadcasting -- community. They say only that the impersonator program had not been cleared with higher executives at the radio station. The surface import of the statements is that higher management fobs off responsibility for the program and expresses displeasure about not having been consulted. There is no assertion that Yovino violated a particular rule or order of the station about what programs were to be cleared in advance and how they were to be cleared.

In the context of the material in which the "failure to clear" statements appeared, however, they took on a darker meaning. The reader is given unmistakably to understand that Yovino was freewheeling and inattentive to the chain of command, that this had displeased management before, that the details of the impersonator show should have been checked out, and that this was a last straw. As we have seen, however, the contextual statements, e.g., "that bleepin' kid was going to cost me my license some day" and "the producer had a penchant for carrying on without consulting anyone," are of a derogatory

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evaluation sort which, under the Cole case, pass as nonactionable opinion when spoken in explanation of a discharge which has attracted the attention of the press. Here, the many statements by Fish in response to press questions which fell into the category of permissible derogatory evaluation of Yovino so thoroughly enveloped the "failure to clear" statements that we doubt they may be sifted from the over-all text to support a libel action. The sting to Yovino within the broadcasting community was his employer's generalized -- and here permissible -- description of him as a loose cannon.

More decisive than the layers of opinion which enveloped the statements claimed to be defamatory is the point that the meaning of "failure to clear" pertained to not notifying higher management about, and getting its consent to, putting "His Honor" on the air without introductory and then periodic explanation that he was a comedian doing an impersonation routine. An impersonator on the air would be funny; allowing him to palm himself off as the real article to the more credulous members of the radio audience would be funny but not without, as events proved, a touch of difficulty for the station. The materials offered by Yovino in opposition to the motion for summary judgment, read indulgently in his favor (see Godbout v. Cousens, 396 Mass. 254, 258 [1985]), do not assert that Yovino had ever notified Miller, the program director, or Fish, the general manager, that the impersonator would be broadcast without introduction as an actor. Yovino's insistence, by affidavit and deposition, that the intention of Williams to have the impersonator on his program on July 16, 1982, had been mentioned in the presence of Miller and Fish, does not contravene the position that Yovino did not clear the volatile format, i.e., putting the impersonator on without identifying him as such. The best the plaintiff does on this score is to say that neither Miller nor Fish had inquired whether there would be a disclaimer.

It is worth adding that, even had the "failure to clear" statements risen to defamatory meaning, Yovino's materials on summary judgment do not controvert Fish's affidavit that, acting on information received from his program director, he

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understood the program had not been cleared in any form. With respect to a private person. Fish was bound not to be negligent in making a defamatory statement. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 858 (1975). Jones v. Taibbi, 400 Mass. 786, 797 (1987). In the circumstances, and pressed to respond to reporters, Fish could reasonably rely on information from his second in command. Yovino offered some evidence of foreknowledge by Fish of the impersonator program, namely that Jerry Williams told Fish about intending to air the impersonator the next day. Hearsay difficulties aside, that did not discharge Yovino's responsibility to submit problematic or controversial programs in a manner which would subject them to the exercise of critical judgment by the program director. See Simpson v. Marlborough, 236 Mass. 210, 214 (1920); Louis M. Herman Co. v. Gallagher Elec. Co., 334 Mass. 652, 656 (1956).

In view of our conclusion that, on the uncontroverted facts, the defendants did not defame the plaintiff, we do not consider whether the offending remarks, if defamatory, enjoyed a conditional privilege which the defendants did not abuse. See Bratt v. International Business Mach. Corp., 392 Mass. 508, 512-516 (1984). The motion judge relied on the conditional privilege point.

4. False light. Yovino claims the publicity surrounding his abrupt dismissal cast him in a false light in the public eye, causing a damaging invasion of privacy. The tort, articulated in Restatement (Second) of Torts Section 652E (1977), imposes liability for invasion of privacy on "[o]ne who gives publicity to a matter concerning another that places the other before the public in a false light . . . ." To date Massachusetts has not adopted the false light invasion of privacy tort. Fox Tree v. Harte-Hanks Communications, Inc., 398 Mass. 845, 848-849 (1986). Jones v. Taibbi, 400 Mass. at 801 n.12. We need not consider it here as the defendants took no steps to give Yovino's discharge publicity. Fish's statements were responsive to unsolicited press inquiry. Moreover, a false light claim, if recognized, would be foreclosed by failure of the libel claim. See Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

Judgment affirmed.