JAMES F. FLEMING & another [Note 1] vs. PAUL A. BENZAQUIN & another. [Note 2]

NOLAN, J This is an action for defamation, intentional infliction of severe emotional distress, and loss of consortium brought by James F. Fleming, a Massachusetts State police officer, and Kathleen T. Fleming, his wife, against Paul A. Benzaquin, the host of a nightly radio "talk show" on radio station WBZ, and Westinghouse Broadcasting Company, Inc. (Westinghouse), [Note 3] which owned and operated WBZ. The complaint specifies a number of comments allegedly made by Benzaquin during his broadcast on June 13, 1977, which the plaintiffs contend defamed Officer Fleming, caused him severe emotional distress, and deprived his wife of his consortium. A Superior Court judge denied Westinghouse's motion to dismiss the complaint for failure to state a claim on which relief could be granted. [Note 4] Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). Subsequently, the defendants each moved for summary judgment, offering in support a transcript of relevant portions of the program, [Note 5] portions of Officer Fleming's deposition, the memorandum of the judge who denied the motion to dismiss, and a memorandum of law. The Flemings opposed the motions, offering other portions of Officer Fleming's deposition and a memorandum of law. Another Superior Court judge denied the motions without opinion. The defendants were granted leave to appeal the denials under G. L. c. 231, Section 118, by a single justice of the Appeals Court. The defendants entered their appeal in the Appeals Court and we transferred the case here on our own motion. G. L. c. 211A, Section 10 (A).

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The following facts are not in dispute. Shortly after noon on June 13, 1977, Benzaquin, his daughter, and his two young grandsons were driving in Benzaquin's car on Route 123 in Norwell, on their way to the beach. As they passed the State police barracks on Route 123, they were observed by Trooper Fleming, who was exiting from the driveway of the barracks in his cruiser. Fleming noticed that Benzaquin's car did not have a license plate attached to the front, did not have an inspection sticker displayed on the windshield, and appeared to have an expired registration. Using his siren and flashing lights, Fleming directed Benzaquin's car over into a parking lot alongside the road. Benzaquin gave a number of explanations for the conditions Fleming had observed: namely, that the front plate had been stolen, that the inspection sticker had fallen from the windshield onto the dashboard, and that the Registry of Motor Vehicles or his insurance company had made an error on the registration of his car, which was newly purchased. According to Benzaquin's statement on his program later that night, "I used a lot of loud voice, but I made it absolutely clear . . . the fact that I wasn't angry at him. I was angry at my insurance company and I was more angry at the Registry of Motor Vehicles for making me vulnerable on the highway."

Fleming wrote up a ticket and explained that he could not allow Benzaquin to proceed in his car. Rather than have the car towed, Fleming allowed Benzaquin to leave the car in the parking lot of an automobile dealership next to the lot where Benzaquin had pulled over. After securing his vehicle, Benzaquin, his daughter, and his grandsons drove off with a friend whom he had called to pick them up.

At the start of his broadcast later that night, Benzaquin gave a description of the incident which he prefaced with statements that he was angry, felt oppressed, and was liable to be prejudiced. [Note 6] He stated that he wanted to describe

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the incident, "because it seems to me important that public servants remain servants and not make us servile to them." Benzaquin expressed his opinion that, in the circumstances, Officer Fleming could simply have given him a warning, told him to clean up his affairs, and sent him on his way. Fleming alleges that some of the statements in this description of events defamed him.

After describing the incident, Benzaquin invited people who were "outrage[d] about any kind of government bureaucracy" to telephone him during the broadcast. He also invited Officer Fleming to telephone and present his views. Benzaquin admitted that Fleming had cause to stop his car. During his discussion with one caller, Benzaquin stated that the stop occurred not far from his home and then suggested that Fleming could simply have followed him home. When another caller expressed her view that Fleming was simply doing his job, Benzaquin responded that, "I commend him for doing his job. But what I can't commend anybody for is not being reasonable enough to let us proceed to a place where we could change vehicles, where I could get those little boys out of the hot sun and away from danger. Instead, we were grounded. The vehicle was taken away from us." When a third caller expressed disbelief "that a trooper would just leave a person standing there stranded on the side of the road after he had impounded the car" and asked how Benzaquin had obtained a ride, Benzaquin replied that, " I got a ride. But I did it through my own initiative, no help from the State Police," and stated that Fleming had not offered him a ride. In various conversations with other callers, Benzaquin allegedly made the rest of the statements which Fleming claims defamed him. [Note 7] On a number of occasions,

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Benzaquin reiterated that he was angry, likely to be biased, and that his listeners should take account of those facts. Near the end of the program, Benzaquin engaged in a discussion with a caller, [Note 8] in which Benzaquin summed up

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his impression of the program, his motive for opening discussion of the incident, and his opinion that it was "utterly unreasonable . . . for [Fleming] to take me out of that automobile and ground those two little kids."

In his deposition, which was submitted to the judge in opposition to the defendants' motions for summary judgment, Fleming states that he offered to give Benzaquin and his family a ride home but that Benzaquin refused, saying he would arrange his own transportation. Fleming also states that he directed Benzaquin's car over into a parking lot where it was safe and out of the way of traffic. Other than this, the plaintiffs do not dispute the accuracy of Benzaquin's narration of the sequence of events in any significant respect.

The plaintiffs contend that Benzaquin's statements are false, defamatory statements of fact and therefore actionable. The plaintiffs contend further that, to the extent Benzaquin's statements represent only opinion, they are nonetheless actionable because they are based on a false statement of facts. The plaintiffs do not contend that the statements, if opinion, are actionable because they imply the existence of undisclosed, defamatory facts. See Pritsker v. Brudnoy, 389 Mass. 776 (1983); Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 312-313, cert. denied, 459 U.S. 1037 (1982); Restatement (Second) of Torts Section 566 (1977). We consider first whether the statements could reasonably have been understood as assertions of fact.

1. The Statements as Fact or Opinion.

"In deciding whether statements can be understood reasonably as fact or opinion `the test to be applied . . . requires that the court examine the statement in its totality in the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to

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which it is published.'" Cole v. Westinghouse Broadcasting Co., supra at 309, quoting from Information Control Corp. v. Genesis One Computer Corp., 611 F. 2d 781, 784 (9th Cir. 1980). See Myers v. Boston Magazine Co., 380 Mass. 336, 341-342 (1980). We apply this test to the statements challenged here. [Note 9]

Many of the statements complained of, in context, fall readily into the categories of ridicule and simple verbal abuse. See Restatment (Second) of Torts Section 566 comments d and e (1977). The terms "arrogants," [Note 10] "little monkey," "tough guy," "absolute barbarian," "lunkhead," "meathead," and "nut," by which Benzaquin apparently referred to Fleming and the terms "servile," "unconscionable," "reprehensible," "merciless," and "absolute outrage," which Benzaquin apparently used to characterize Fleming's conduct are no more than either Benzaquin's "harsh judgment," clearly based on the facts he disclosed, id. at comment d, or "mere vituperation and abuse," id. at comment e. [Note 11] While the statements did not arise in the course of the

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classic face-to-face confrontation, Benzaquin repeatedly told his audience that he was angry and upset and warned that they were "hearing a lot of noise that doesn't have to do with the facts." Benzaquin also disclaimed any intent "to say anything about [Fleming] as a person" or to "say he's unfit or any of the other things that might be said by generalities." Further, as was the case with the statements at issue in Cole v. Westinghouse Broadcasting Co., 386 Mass. 303 (1982), "[t]he meaning of these statements is imprecise and open to speculation. They cannot be characterized as assertions of fact. They cannot be proved false. `An assertion that cannot be proved false cannot be held libellous'" (citation omitted). Id. at 312.

Benzaquin's statements that "if [Fleming] has children of his own, I'm sorry for them, already," must be viewed as an expression of opinion based on Benzaquin's description of events. There is no assertion of fact concerning Fleming within the statement. The plaintiffs do not argue that the statement implied the existence of nondisclosed, defamatory facts nor, in context, could such an implication be reasonably understood. Benzaquin's assertion that he "[is] sorry . . . already," is not, in itself, a defamatory statement of fact. The comment can only be reasonably understood to suggest that, if Fleming treated any children he had as he had treated Benzaquin's grandchildren, Benzaquin would consider the treatment outrageous. Compare Restatement (Second) of Torts Section 566 comment c, illustrations 5 (1977).

Benzaquin's use of the word "attack," cannot be viewed as a defamatory statement of fact. In context, it is clear that Benzaquin was using the term figuratively to express his strong criticism of Fleming's conduct. He used the term only after a caller had used it to characterize a discussion Benzaquin had had on an earlier program concerning police conduct. [Note 12] It could not have been understood as referring

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to a physical assault. Indeed, both within the immediate conversation and later in the program in conversation with another caller, Benzaquin used the word "attack" figuratively to describe his own criticism of Fleming's conduct. [Note 13] See Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 6, 13-14 (1970) (use of word "blackmail" to describe plaintiffs' conduct could not be understood as statement of fact); Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 284 (1974) (publication of Jack London's definition of "scab" constituted defendant's figurative expression of opinion).

Similarly, Benzaquin's use of the words "dictators and Nazis" could not have been understood as statements of fact. When a caller stated that "[w]e're paying [the State police] to do a job and then you're getting mad when they do that job," Benzaquin answered, "No, I'm not paying them to be unreasonable. I'm not paying them to be dictators and Nazis." To the extent the terms refer to Fleming at all, they no more implied that Fleming was a totalitarian ruler or a member of the Nazi party than did the term "communism" in National Ass'n of Gov't Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220 (1979), cert. denied, 446 U.S. 935 (1980), charge the plaintiff there "with complicity in the atrocities of Solzhenitsyn's Gulag Archipelago or other horrors distinctive of a totalitarian regime." Id. at 229. The terms "dictators and Nazis," "would most likely be taken by the audience as mere pejorative rhetoric, abusive of the plaintiff for what [he] had done or appeared to have done." Id. In addition, as was also the case in National Ass'n of Gov't Employees, Inc., supra, "[i]f the [words] carried some further meaning or overtone (which is very doubtful), it was too vague to be cognizable as the subject of a "defamation action." Id. See Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 268 (1974) ("a traitor to his God, his country, his

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family and his class"); Buckley v. Littell, 539 F.2d 882 (2d Cir. 1976), cert. denied, 429 U.S. 1062 (1977) ("fascist," "fellow traveler" of fascism).

Finally, we consider the plaintiffs' allegations that Benzaquin "repeatedly stated that the plaintiff left the defendant and two small children 'stranded' along the road and `in danger' of being hit by another vehicle." [Note 14] The transcript reveals that the only time Benzaquin used the word "stranded" was in the following exchange after Benzaquin explained that he had had to make a telephone call to arrange transportation:

CALLER: "So you weren't stranded in the middle of a highway somewhere?"

BENZAQUIN: "No thanks to [Fleming] I wasn't stranded." Benzaquin then stated that Fleming had not offered him a ride. Previously, the same caller had asked Benzaquin whether Fleming had "actually just [left] you there stranded," and Benzaquin replied, "He told me I couldn't drive the vehicle." Later, when the same caller discussed with Benzaquin whether Benzaquin should have realized that his registration had expired, the colloquy reproduced in the margin occurred. [Note 15] Even if we assume that Benzaquin adopted

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the caller's use of the term "stranded" during this latter part of the conversation, it is nonetheless clear against the overall background of the program, and in light of the previous uses of the word "stranded," that, as Benzaquin used or adopted it, the word could only be understood to represent Benzaquin's opinion of the plight in which he found himself after Fleming had refused to allow him to continue driving his car. As such, it would be an opinion based on disclosed, nondefamatory facts and nonactionable. [Note 16]

For much the same reasons, Benzaquin's statement that Fleming"wants to put me away forever and leave those two kids out there to get hit by a vehicle," cannot be viewed as an assertion of fact. Rather, the audience could only reasonably understand the comment, especially in light of the obvious hyperbole, as Benzaquin's opinion of Fleming's attitude as evidenced by Fleming's refusal to let Benzaquin continue to drive his car. It could not reasonably be understood as an assertion that Fleming desired that the children be put in peril. To the extent Benzaquin's remark here and his later statement that he thought it unreasonable to refuse to let him continue to a place "where I could get those little boys out of the hot sun and away from danger," could be viewed as assertions that the place where Benzaquin was stopped was dangerous for the children, those assertions would again be but expressions of Benzaquin's subjective assessment of the situation as he described it, and so pure opinion. [Note 17] Cf. Thuma v. Hearst Corp., 340 F. Supp. 867,

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871 (D. Md. 1972) (father's statement that shooting of son by police officer was "cold-blooded murder," was, in context, "clearly hyperbole expressing the father's most vehement feeling that the shooting was completely unnecessary").

Although Benzaquin's statements might, in the aggregate, give the impression that he considered Fleming to be unfit for police work, we note again that Benzaquin specifically disclaimed any intent to characterize Fleming as generally unfit and referred only to his one encounter with Fleming as the basis for his opinion without intimating that he possessed other information. We conclude that, individually and taken as a whole, the challenged statements could not be reasonably understood as assertions of fact.

We consider now the plaintiff's contention that the opinions are nonetheless actionable because they are based on a false statement of fact.

2. Liability for Opinions Based on False Statement of Fact.

The Restatement of Torts Sections 566-567 (1938) took the position that expressions of defamatory opinions were themselves actionable. This position was based on a view of the common law that has been severely criticised. See Christie, Defamatory Opinions and the Restatement (Second) of Torts, 175 Mich. L. Rev. 1621, 1625-1632, 1640 & n. 74 (1977). Whatever the historical validity of the position, it is

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no longer viable in light of Supreme Court decisions beginning perhaps with Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), where the Court stated that for First Amendment purposes, "[h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact." Id. at 339-340. The Restatement (Second) of Torts Section 566 (1977) has abandoned the position. The plaintiffs contend nonetheless that, because Benzaquin's statements were premised upon a false statement of facts, his opinions are actionable. We disagree.

We have, in a number of recent cases, discussed the law governing defamatory statements of opinion. See Pritsker v. Brudnoy, 389 Mass. 776 (1983); Cole v. Westinghouse Broadcasting Co., 386 Mass. 303 (1982); Myers v. Boston Magazine Co., 380 Mass. 336 (1980); National Ass'n of Gov't Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220 (1979). Developing the "common ground" surveyed in Gertz, these decisions have recognized and adopted the view expressed in Restatement (Second) of Torts Section 566 comment b (1977), that statements of opinion of the "pure" type -- that is, opinion based on disclosed or assumed nondefamatory facts -- are not actionable whereas statement of opinion of the "mixed" type -- that is, opinions apparently based on undisclosed defamatory facts -- are actionable. We have indicated that Benzaquin disclosed the facts upon which he based his opinion and the plaintiffs do not contend that he implied the existence of undisclosed, defamatory fact. By arguing that opinions based on disclosed but false facts are actionable, the plaintiffs apparently attempt to chart a middle course.

The Restatement sets forth four fact patterns which demonstrate "the effect of the rule that there can be no recovery in defamation for a pure expression of opinion." Restatement (Second) of Torts Section 566 comment c, at 175 (1977). Two of these are relevant to the plaintiffs' claims here: "(1) If the defendant bases his expression of a derogatory opinion

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of the plaintiff on his own statement of false and defamatory facts, he is subject to liability for the factual statement but not for the expression of opinion. (2) If the defendant bases his expression of a derogatory opinion of the plaintiff on his own statement of facts that are not defamatory, he is not subject to liability for the factual statement -- nor for the expression of opinion, as long as it does not reasonably indicate an assertion of the existence of other, defamatory, facts that would justify the forming of the opinion." Id. These examples make clear that Benzaquin and Westinghouse will not be liable to the plaintiffs for Benzaquin's expression of opinion on disclosed facts even if the facts are false. However, Benzaquin would be liable for the disclosed facts provided they were both false and defamatory.

The only statement of fact in Benzaquin's narration of events with which the plaintiffs take specific issue is Benzaquin's assertion that Fleming did not offer him a ride. Since Fleming states in his deposition that he did offer Benzaquin a ride, we may take this averment as true for purposes of the motion for summary judgment. However, the defendants would still be entitled to summary judgment unless the truth or falsity of Benzaquin's assertion that his party was not offered a ride presented "a genuine issue of material fact," Community Nat'l Bank v. Dawes, 369 Mass. 550, 554 (1976), in the action.

Here the plaintiffs fall victim to their misperception of the defendants' potential liability. The plaintiffs contend only that Benzaquin's opinions should themselves be actionable and they fail to set forth any specific facts indicating that Benzaquin's statement that his party was not offered a ride, if false, was also defamatory. Without such facts, the truth or falsity of the statement is not a material issue in the action. Since the pleadings, taken together with the supporting materials, have failed to disclose that the plaintiffs have set forth facts in support of an action for defamation, the defendants were "entitled, as matter of law, to a judgment." Community Nat'l Bank v. Dawes, supra.

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Our decision would be no different if we were to assume that the pleadings and supporting materials were sufficient to raise the issue of the defamatory character of Benzaquin's statement that he was not offered a ride. He stated that he was stopped about three-quarters of a mile from his house, about one-half mile from the police barracks, "in the center of Norwell." He also stated that he was able to make a telephone call to secure transportation and that he had "stopped at a very reasonable automobile dealership," where he was permitted to leave his car. It is apparent from this information that even those listeners who were not familiar with the area Benzaquin described could not have concluded that he had been stopped in an isolated or unpopulated area. We think it unlikely that in these circumstances a reasonable listener would consider Benzaquin's statement that Fleming did not offer him a ride as defamatory.

3. Conclusion.

The plaintiffs do not argue that their action for intentional infliction of emotional distress and loss of consortium would survive the loss of their action for defamation. We therefore need not decide the point. But see Hutchinson v. Proxmire, 579 F. 2d 1027, 1036 (7th Cir. 1978), rev'd on other grounds, 443 U.S. 111 (1979) (action for intentional infliction of emotional harm must fall with the action for defamation); Restatement (Second) of Torts Section 566 comment f (1977) (action for intentional infliction of mental distress subject to restrictions of First Amendment). We also need not consider the issues relating to the status of police officers as public officials although we note that the weight of authority leans toward classifying police officers as public officials. See Note, Police Defamation Suits Against Citizens Complaining of Police Misconduct, 22 St. Louis U. L. J. 676, 684-685 (1978). In sum, we conclude that the challenged statements could only be reasonably understood as expressions of opinion based on nondefamatory disclosed facts. We further conclude that opinions (as contrasted with false and defamatory statements of fact) based on disclosed but false statements of fact are not actionable because

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they are mere opinion and not statement of fact. Therefore, we reverse the order of the Superior Court judge denying the defendants' motions for summary judgment and order that judgments for the defendants be entered.

So ordered.