EDWARD A. SCHROTTMAN vs. MICHAEL BARNICLE.

HENNESSEY, C.J. This case, which began as a claim of libel and invasion of privacy against a newspaper, an editor, and a reporter, was tried without jury before a judge of a District Court sitting by assignment in the Superior Court who found for the plaintiff against the reporter. The principal issue on appeal is whether the rule of Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (1975), that a "private" person may recover for libel upon proof of negligence, should apply retroactively to the defendant's newspaper article. We conclude that the Stone negligence standard should apply to this case and that the evidence is sufficient to warrant a finding of negligence. We remand the case to the Superior Court for findings by the trial judge on the issue of negligence.

The plaintiff is the proprietor of a gasoline station on Blue Hill Avenue in Dorchester. On January 8, 1973, Michael Barnicle, a columnist for the Boston Globe newspaper and a stranger to the plaintiff, visited the plaintiff's gasoline station. At the time, Barnicle was gathering information for one of a series of articles on "regular working people in the neighborhoods who are not usually covered by newspapers." He engaged the plaintiff in a conversation about the neighborhood and the plaintiff's life and business.

On January 30, 1973, an article by Barnicle, entitled "Blue Hill Av.: changing scene, way of life," appeared in the Boston Globe newspaper. The article attributed several remarks to the plaintiff, notably the statement that "life on Blue Hill avenue in 1972 . . . is `o.k. if you're a nigger.'" [Note 1]

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The plaintiff brought this action against Barnicle, the Boston Globe, and Thomas Winship (editor of Boston Globe), charging that the article had caused him mental suffering, as well as loss of business and reputation.

At trial, much of the testimony centered on what the plaintiff had said in his conversation with Barnicle on January 8. The plaintiff asserted that he had not made the statement quoted above, and had not used the term "nigger." Barnicle maintained that he had. The plaintiff also denied certain information recited in the article, such as a statement that he had moved to the suburbs for fear that his wife and children would be mugged in the Blue Hill Avenue area. On other points, the parties' descriptions of the interview were similar.

The parties presented various evidence bearing on the methods by which Barnicle gathered and recorded information. Barnicle testified that he had, in the course of one day, interviewed a number of business proprietors on Blue Hill Avenue. He had then returned to his office to write the article, relying on a combination of notes and memory. Although Barnicle asserted that he had taken notes during his interview with the plaintiff, the plaintiff testified, and the judge found, that Barnicle had taken no notes in the plaintiff's presence.

The judge also had before him Barnicle's notes, which covered seven interviews. The phrase "o.k. if you're a nigger" appears on the third page of the notes, but is not set off by quotation marks. The plaintiff's name is interlineated

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just above the phrase, but appears again several lines below. The balance of the notes between the plaintiff's name and that of the next interview subject mention some but not all of the statements and information attributed to the plaintiff in the article.

Pursuant to a pretrial order, the parties submitted to the judge a stipulation listing six questions, which they described as the "factual issues presented." Following this list, the judge found that (1) the article was libelous, because it attributed to the plaintiff a racial epithet that suggested he was a bigot, and therefore held him up to scorn, hatred, ridicule, or contempt by respected members of the community; (2) Barnicle had not identified himself to the plaintiff as a reporter and had received no permission from the plaintiff to publish the statements in the article; (3) the article addressed a matter of public interest; (4) the defendant Thomas Winship had not actively participated in publication of the article; (5) the "things attributed to [the plaintiff] in the article, in their most essential parts, were not said by him"; and (6) the plaintiff had suffered mental anguish and damage to his reputation. The judge then entered judgment in the plaintiff's favor against Barnicle in the amount of $25,000, based on the claim of libel. [Note 2] He also entered judgments in favor of the defendants Boston Globe newspaper and Thomas Winship. Barnicle appealed, and we transferred the case to this court on our own motion.

1. Retroactive Application of Negligence Standard.

There is no question that the plaintiff is a private person and that, under current standards, a private person may recover for libel upon proof that the defendant acted negligently in publishing defamatory material. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 851, 858 (1975). Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). Barnicle contends, however, that his conduct should be judged by the standard of liability prevailing in 1973, when he wrote the article at issue. He further argues that the law in

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1973 required proof of "actual malice" in any libel action in which the allegedly libelous publication addressed matters of public concern, even though the plaintiff was a private person. See Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44 (1971) (opinion of Brennan, J.).

Decisional law is generally applied "retroactively" to past events. Tucker v. Badoian, 376 Mass. 907, 919 (1978) (Kaplan, J., concurring). In an ideal world, courts are said to find and declare law, rather than to create new law that might surprise past actors. 1 W. Blackstone, Commentaries *69. See Mishkin, Forward: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 58-60 (1965); Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L.J. 907, 945-946 (1962). Moreover, retroactive application of decisional law provides the necessary incentive to those aggrieved to press for change and improvement in law, and is consistent with the institutional duty of courts to resolve disputes brought before them. See Mishkin, supra at 60-62, 70-72; Note, supra at 912. Nevertheless, it is sometimes necessary to depart from the general rule of retroactivity, in order to protect the reasonable expectations of parties. E.g., Johnson Controls, Inc. v. Bowes, 381 Mass. 278, 282-283 (1980); Rosenberg v. Lipnick, 377 Mass. 666, 671 (1979); Tucker v. Badoian, supra at 918-919 (Kaplan, J. concurring). See Traynor, Quo Vadis, Prospective Overruling: A Question of Judicial Responsibility, 28 Hastings L.J. 533, 545-546 (1977) (reliance on law in planning private conduct more likely in fields of contract and property than in tort).

In McIntyre v. Associates Financial Servs. Co. of Mass., Inc., 367 Mass. 708 (1975), we summarized the principles that determine whether an exception to retroactivity is warranted. The applicability of newly announced decisional law to past events should depend on (1) the extent to which the decision creates a novel and unforeshadowed rule; (2) the benefits of retroactive application in furthering the purpose of the new rule; and (3) the hardship or inequity likely

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to follow from retroactive application. Id. at 712. On this analysis, we conclude that the negligence standard established in Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (1975), should apply to the present case. Accord, Taskett v. King Broadcasting Co., 86 Wash. 2d 439, 448-450 (1976).

Application of the first McIntyre factor to the present case is complicated by a dispute as to what standard Stone displaced, and which party was aided by the change. Some discussion of chronology is necessary to explain the problem. Before 1964, the First Amendment to the United States Constitution was not thought to affect recovery for defamation. Publication of a defamatory falsehood was sufficient ground for liability, even when the defendant was not at fault in any degree. See Sweet v. Post Publishing Co., 215 Mass. 450, 452-455 (1913); Burt v. Advertiser Newspaper Co., 154 Mass. 238, 242-245 (1891). In 1964, the Supreme Court held, in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), that defamatory falsehoods concerning a public official are privileged unless published with "actual malice." Under the "actual malice" standard, a public official can recover for defamation only upon proof that the defendant acted with knowledge of the falsity of his statements, or with reckless disregard of the truth. Id. at 279-280. See St. Amant v. Thompson, 390 U.S. 727, 730-731 (1968) (subjective standard); Curtis Publishing Co. v. Butts, 388 U.S. 130, 155 (1967) (actual malice standard applies to "public figures" as well as public officials).

In 1971, the Court decided Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971). In Rosenbloom, a plurality of three Justices expressed the view that the actual malice standard should apply whenever an allegedly defamatory publication involved a matter of general concern, without regard to the plaintiff's status as a public or private figure. Id. at 41-44, 52 (opinion of Brennan, J., joined by Burger, C.J., and Blackmun, J.). Justice White concurred on the narrower ground that the malice standard should extend to the contents of a report of official action, including any

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reference to private individuals involved in the official action. Id. at 62 (White, J., concurring). The concurring vote of Justice Black, who reaffirmed his view that the news media should never be held liable for defamation, completed a majority in favor of reversing a judgment for the plaintiff. Id. at 57 (Black, J., concurring). Soon after the Rosenbloom decision, this court accepted the rule espoused by the Rosenbloom plurality as a correct statement of Federal law. Accordingly, the court applied the malice standard in a case involving a publication of general interest, without inquiring whether the plaintiff was a public or private figure. Priestley v. Hastings & Sons Publishing Co., 360 Mass. 118, 119-123 (1971).

Three years later, in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), a majority of the Supreme Court rejected the view of the Rosenbloom plurality, and held that in actions by private persons, States were free to apply any standard of liability other than liability without fault. Id. at 347. This conclusion was based on the State's interest in compensating victims of defamatory falsehood, an interest the Court found to be particularly strong when the victim is a private individual. Id. at 341-346. In 1975, this court chose negligence as the Massachusetts standard of liability for defamation of a private person. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 858 (1975).

Barnicle wrote the article at issue in 1973, after Rosenbloom and Priestley, and before Gertz and Stone. [Note 3] Because the Stone standard offers him greater protection than he would have had at common law, his argument against retroactive application rests solely on Rosenbloom and Priestley.

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Rosenbloom, standing alone, would provide no recognizable ground for a claim of reliance on more favorable prior law. No five Justices were willing to extend First Amendment protection beyond the rule suggested by Justice White (a malice standard for all statements included in a report of official action), and that rule was itself based on reasoning unique to Justice White. For present purposes at least, we would not, in interpreting a decision, look beyond points on which the Justices have agreed through the formal process of judicial decisionmaking. See generally Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum. L. Rev. 756 (1980). See also Monaghan, Taking Supreme Court Opinions Seriously, 39 Md. L. Rev. 1 (1979). [Note 4] This court's decision in Priestley, however, established the rule of the Rosenbloom plurality as the prevailing law in Massachusetts. Stone, then, must be viewed as having diminished the reporter's privilege as it existed when Barnicle wrote the article at issue.

Nevertheless, as our lengthy preliminary discussion should indicate, Barnicle had reason to doubt the durability of his privilege. The malice standard as a measure of liability

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in private figure defamation suits was quite recent, and still unsettled at the Federal level. Priestley was based expressly on the perceived requirements of Federal law, 360 Mass. 118, 119 (1971), and the court showed some reluctance to embrace actual malice as the standard in all cases. See id. at 123 (noting time constraints on defendant publisher). Thus, in answer to the first inquiry under the McIntyre test for retroactivity, we conclude that Stone established a new rule, but that the change was not a departure from firmly established law, and should not have caused great surprise to those who had acted during the prevalence of Rosenbloom and Priestley.

Moving to the second of the McIntyre factors, we find that the purposes of the Stone rule, like those of most tort rules, will benefit from retroactive application. We adopted a negligence standard as an accomodation between First Amendment principles and the State's strong interest in affording a remedy to defamed individuals. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 858 (1975). Application of this standard to statements published before Stone will effectuate the balance of interests determined to be appropriate. See Taskett v. King Broadcasting Co., 86 Wash. 2d 439, 449-450 (1976).

Barnicle, focusing on the third McIntyre factor, suggests that several negative consequences will follow from retroactive application of Stone. First, he contends that a negligence standard is unfair to him personally, because he may have relied on Rosenbloom and Priestley in ordering his conduct. The principal reason for limitations on retroactivity, and the central purpose of the McIntyre analysis, is protection of justified reliance on law prevalent at the time of conduct, by an actor whose conduct later comes to trial under changed or changing law. [Note 5] Nevertheless, we are not

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persuaded by Barnicle's claim of reliance. As we explained above, the malice standard was not settled law, and so could not provide firm ground for reliance. Further, in asserting that he relied on the protection of a malice standard, Barnicle can only mean that he made a calculated decision not to exercise due care. Reliance of this kind is only a short step from reckless disregard of truth (malice), and does not support a compelling claim of inequity. See Taskett v. King Broadcasting Co., 86 Wash. 2d 439, 450 (1976).

Second, Barnicle suggests that retroactive application of a decision that has narrowed the scope of a First Amendment privilege may have a "chilling" effect on the exercise of First Amendment rights. We take this to mean that instability in the law defining privileged speech, coupled with retroactive application of decisions to persons whose statements were protected when made, will discourage other speakers and writers from taking full advantage of existing privileges. This is a serious concern. The Supreme Court has recognized in several contexts that laws affecting First Amendment rights should be fashioned and applied with special attention to the possibility of self-censorship by privileged speakers. Such sensitivity, in procedural as well as substantive law, is necessary to ensure an environment supportive of open debate. See, e.g., Buckley v. Valeo, 424 U.S. 1, 40-41 (1976) (lack of specificity in legislation); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257 (1974) (access requirement); Broadrick v. Oklahoma, 413 U.S. 601, 611-613 (1973), and cases cited (standing to raise facial attack on overbroad statutes); Speiser v. Randall, 357 U.S. 513, 526 (1958) (burden of proof of First Amendment privilege in tax case). But cf. Branzburg v. Hayes, 408 U.S. 665, 693-695 (1972) (indicating skepticism as to chilling effect of compelled revelation of press sources). See generally Monaghan,

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First Amendment "Due Process," 83 Harv. L. Rev. 518 (1970). The malice requirement applicable to public figure defamation actions, and the prohibition against strict liability in private figure actions, are themselves examples of this principle. These rules are based, not on any value attributed to defamatory falsehood, but on the need to provide "breathing space" for legitimate speech. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340-341 (1974).

Although we recognize the danger of deterring free debate, we do not believe it justifies a blanket rule, applied without regard to the presence or absence of prejudice to particular defendants, that decisions narrowing First Amendment privilege can never apply retroactively. Such a rule would result not only in denial of compensation to injured plaintiffs, but also in the institutional problems we described at the outset of our discussion of retroactivity. In particular, parties aggrieved by inequitable law would have no incentive to seek change if courts refused to apply new law to disputes before them. [Note 6] Mishkin, Forward: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 70-72 (1965). More important, speakers and writers who rely on existing privilege are not without protection. Principles of due process prevent retroactive imposition of criminal penalties on the basis of a change in the law governing First Amendment privilege. Marks v. United States, 430 U.S. 188, 191 (1977). When no criminal sanctions are involved, the safeguards of the McIntyre analysis assure speakers and writers that reasonable reliance on established law will not lightly be repudiated. We are aware of the need for special protection in areas

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affecting freedom of speech, and will apply McIntyre accordingly. These limitations on retroactive effect should avert any significant deterrence of free debate.

In sum, we acknowledge that Barnicle's liability under Stone is greater than it would have been under the law prevailing when his article was published. On close analysis, however, we find that the privilege he invokes was not firmly settled, and did not warrant reliance. Retroactive application of Stone will further the purposes of the rule there established, and will cause no significant prejudice to First Amendment interests. Therefore, we conclude that Barnicle's conduct should be judged by a negligence standard.

2. Findings of Fact and Conclusions of Law.

Barnicle argues that even if the correct standard is one of negligence, the case must be remanded because the judge failed to comply with Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974), which requires a judge who sits without a jury to set forth findings of fact and conclusions of law to support his decision. [Note 7] Barnicle's principal complaints are that the judge did not identify the standard of liability he applied, and that he made no findings on the question of negligence. We agree that these omissions require a remand.

Rule 52 (a) of the Massachusetts Rules of Civil Procedure does not require extensive detail, but does impose on the judge an independent duty to articulate the essential grounds of his decision. [Note 8] See Advisory Committee Note on

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1946 Amendment to Fed. R. Civ. P. 52 (a). Its purpose is to ensure that the judge "may be satisfied that he has dealt fully and properly with all the issues" and that "the parties involved and this court on appeal may be fully informed as to the bases of his decision." Markell v. Sydney B. Pfeifer Foundation, Inc., 9 Mass. App. Ct. 412, 416 (1980), quoting from Roberts v. Ross, 344 F.2d 747, 751-752 (3d Cir. 1965). See J.W. Smith & H.B. Zobel, Rules Practice Section 52.4 (1977). Here, these purposes have not been fulfilled. There are faint indications that the judge applied a negligence standard -- a citation to Stone v. Essex Newspapers, Inc., 367 Mass. 849 (1975), in the course of his discussion of the article's defamatory nature, and a finding that the defendants Boston Globe and Winship were not negligent. But there is no finding that Barnicle was negligent, and no definite incorporation of the negligence standard set out in Stone. Although these omissions are very likely due to the manner in which the parties framed the factual issues in their stipulation of the questions presented, the judge's responsibilities under Mass. R. Civ. P. 52 (a) extend beyond the parties' specific requests for findings. [Note 9] See Mass. R.

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Civ. P. 52 (a); J.W. Smith & H.B. Zobel, supra at Section 52.3. On this record, we cannot be certain that the judge considered and applied the established and essential requirement of negligence in reaching his decision. Contrast Commonwealth v. One 1969 Mercedes-Benz Auto., 375 Mass. 663 (1978) (all necessary facts contained in uncontradicted testimony). Therefore, we remand for the entry of a finding on the issue of negligence. See 5A Moore's Federal Practice par. 52.13 (2d ed. 1982).

3. Sufficiency of the Evidence.

We turn now to the question whether the record will support a finding of negligence. Barnicle asserts that the plaintiff's right to recover depends on a showing that Barnicle was negligent with respect to both the untruth of his report and its defamatory character. See Cefalu v. Globe Newspaper Co., 8 Mass. App. Ct. 71, 76 (1979), appeal dismissed and cert. denied, 444 U.S. 1060 (1980); Restatement (Second) of Torts Section 580B, Comment g (1977). See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 348 (1974). We did not establish in Stone that proof of negligence as to the defamatory character of a report is prerequisite to a private plaintiff's recovery for defamation, and we need not decide the issue in the present case. The plaintiff does not contest Barnicle's definition of the relevant negligence, and we therefore assume for present purposes that it is correct. [Note 10]

Our inquiry is, of course, limited to the sufficiency of the evidence, and we leave the final determination of the question of negligence to the judge, who has heard the evidence and can best determine its credibility. Mass. R. Civ. P. 52 (a). We believe that if the evidence were read in the light most favorable to the plaintiff, and all questions of credibility resolved in favor of the plaintiff, the record would support

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a finding of negligence as to both defamatory impact and inaccuracy. As to defamatory impact, the issue is whether in the circumstances of this case a reasonably prudent person, writing an article for publication, would realize that attribution of the racial reference would discredit the plaintiff in the minds of a "considerable and respectable segment in the community." Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853 (1975). See Myers v. Boston Magazine Co., 380 Mass. 336, 338-345 (1980); Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 751 (1980); Restatement (Second) of Torts Sections 565, 566 (1977). To determine whether Barnicle was negligent with respect to accuracy, the judge could consider the testimony concerning Barnicle's notetaking and research methods, as well as the clarity and reliability of the notes themselves. This evidence should be viewed in light of circumstances including the relative risk of harm and the presence or absence of time constraints against verification. Cf. Liquori v. Republican Co., 8 Mass. App. Ct. 671, 676-677 (1979).

Barnicle also suggests that a finding of negligence must be supported by expert testimony concerning custom and practice among professional journalists. See Martin v. Griffin Television, Inc., 549 P.2d 85, 92 (Okla. 1976); Seegmiller v. KSL, Inc., 626 P.2d 968, 976 (Utah 1981); Restatement (Second) of Torts Section 580B, Comment g (1977). This argument is not at all persuasive when asserted defensively by a member of the profession. In such a context it can only mean that the professional journalist should be judged by a standard below that of ordinary care. Negligence throughout a trade should not excuse its members from liability. See Troman v. Wood, 62 Ill. 2d 184, 197-198 (1975); McCall v. Courier-Journal & Louisville Times Co., 623 S.W. 2d 882, 895 (Ky. 1981), petition for cert. filed, 50 U.S.L.W. 3784 (March 30, 1982); Memphis Publishing Co. v. Nichols, 569 S.W.2d 412, 418 (Tenn. 1978). See also The T.J. Hooper, 60 F.2d 737, 740 (2d Cir.), cert. denied sub nom. Eastern Transp. Co. v. Northern Barge Corp., 287 U.S. 662 (1932). In addition, we hesitate to involve the courts in fashioning

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rules for journalistic practice. See L. Tribe, American Constitutional Law 167 (1978).

Nor do we believe that expert testimony is necessary to enable triers of fact to apply a standard of ordinary negligence to the methods used by a journalist to record interviews. Due care in gathering information is not technical matter for which a jury unaided by experts would have no basis for decision. See, e.g., Stimpson v. Wellington Serv. Corp., 355 Mass. 685, 691 (1969); Toppin v. Buzzards Bay Gas Co., 348 Mass. 397, 401 (1965).

4. Invasion of Privacy.

Barnicle has devoted a portion of his brief to the argument that the record does not support recovery on a theory of invasion of privacy. We do not reach this question, because the judge did not rely on invasion of privacy, [Note 11] and the plaintiff has not invoked that theory in his arguments in support of the judgment.

5. Conclusion.

We conclude that this case is governed by the negligence standard adopted in Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (1975), and the evidence is sufficient to warrant a finding of negligence. We vacate the judgment and remand the case to the Superior Court for findings as to whether Barnicle was in fact negligent.

So ordered.