WILLIAM F. ROTKIEWICZ, JR. VS. WALTER L. SADOWSKY, JR.

IRELAND, J. The defendant appeals from a judgment in an action for defamation and intentional infliction of emotional distress. The issue presented in this appeal is whether the plaintiff, a police officer, is a "public official" for purposes of defamation claims, and is therefore required to prove that the defendant made defamatory statements with "actual malice." See New York Times Co. v. Sullivan, 376 U.S. 254, 279-280

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(1964). We conclude that the plaintiff was a public official and therefore, because the judge did not give an instruction on the "actual malice" standard of proof, we reverse and remand for a new trial.

1. Facts and procedural history. The plaintiff was a trooper in the Massachusetts State police from 1983 to 1991. In 1989, the plaintiffs father was indicted on Federal charges of writing false prescriptions from his pharmacy. Both the defendant and his father provided evidence against the plaintiff's father. In July, 1990, the plaintiff's father pleaded guilty and was sentenced to house arrest for two years.

In January, 1991, the defendant wrote a letter to the plaintiffs superiors on the Massachusetts State police. In the letter, the defendant alleged that he had "been subject to a lot of harassment [by the plaintiff] . . . since [the plaintiff's] father's arrest," and that the plaintiff had "given him the finger," made his hand into the shape of a gun and pointed it into his mouth, stuck out his tongue, and mouthed the words "son of a bitch" as he drove past. The defendant also complained about two traffic stops by the plaintiff, one of which occurred on July 3, 1990, the day after the plaintiff's father had been sentenced. The defendant also claimed that two other individuals had asserted that the plaintiff had acted against them in revenge. The letter further stated that the plaintiff's father had been involved in illegal activities, that the plaintiff had received a substantial amount of money from his father, and that the plaintiff was involved in "Sunday sales" of alcohol from his father's package store.

In addition to the defendant's letter, the plaintiffs supervisors received a complaint from a Montague police officer who had been involved in the investigation of the plaintiff's father. In response to these complaints, an internal investigation commenced. The investigation concluded that the defendant's complaints were "not sustained." On the basis of the Montague police officer's complaint, however, departmental internal affairs charged the plaintiff with "conduct unbecoming an officer." The plaintiff subsequently resigned from the police force. Four months later, the plaintiff filed this suit, alleging libel and intentional infliction of emotional distress.

In 1993, while the defamation lawsuit was pending, the plaintiff was hired as a part-time police officer in Deerfield. The defendant attended a number of meetings of the Deerfield board

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of selectmen (board) to express his views on the plaintiffs appointment. The essence of the defendant's comments was that he and the plaintiff had lawsuits pending against each other and that the defendant felt harassed by the plaintiff. At the meetings, the defendant wore a jacket with a bull's-eye painted on the back, which, as he explained to a local newspaper, symbolized how he felt. Later that year, the board wrote to the defendant to inform him that it was satisfied with the plaintiffs credentials and stood by the appointment. After he received the board's letter, the defendant continued to attend board meetings wearing his jacket with the bull's-eye, and he wore the jacket around the town of Deerfield. Subsequently, the plaintiff amended his complaint to add a count of slander arising from the statements made at the board meetings and the wearing of the bull's-eye jacket.

The case was tried before a jury in October, 1994. At trial, the plaintiff denied making any obscene or other harassing gestures at the defendant, but admitted "giving the finger" to the Montague police officer. The plaintiff admitted that he had received some money from his father toward the building of his house, and that his name had been on the package store's liquor license, but denied any wrongdoing or involvement in "Sunday sales" of alcohol. At the conclusion of the evidence, the judge ruled that the plaintiff was a "private individual," and thus did not instruct the jury on the actual malice standard. The jury awarded the plaintiff $81,000 for the defamation claim and $75,000 for intentional infliction of emotional distress.

On appeal, the defendant argues that the jury should have been instructed that the plaintiff was a public official and that, as such, the plaintiff was required to prove actual malice in order to recover. We granted the defendant's application for direct appellate review.

2. Preservation of the issue. As an initial matter, the plaintiff argues that the issue of his status as a public official is not before this court because the defendant did not preserve the issue; that is, the defendant did not object, at the conclusion of the jury charge, to the judge's failure to give an instruction on the actual malice standard [Note 1].

As provided by the Massachusetts Rules of Civil Procedure,

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"[n]o party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). The primary purpose of the rule is to put the judge on notice of the issue, and the requirements of the rule may be satisfied in a variety of ways. See Flood v. Southland Corp., 416 Mass. 62, 66-67 (1993) (rejecting "hard and fast approach" of United States Court of Appeals for the First Circuit, which requires, under similar Federal rule, that all relevant events occur after charge is given), and cases discussed. A party objecting to the inclusion or exclusion of an instruction must, however, clearly bring the objection and the grounds for it to the attention of the judge. See id.

In this case, at the close of the plaintiffs evidence, and in response to the judge's query regarding whether there was a question on the plaintiff's status as a public official [Note 2], the defendant orally requested that the jury be given an instruction on public officials. Immediately before closing arguments began, the judge called counsel to sidebar and informed them, in essence, that he was finding the plaintiff was not a public official and therefore would not give that instruction. The judge also noted defense counsel's objection. The defendant did not renew his objection at the end of the jury charge.

In order to preserve the issue for appellate review, the better practice would have been for defense counsel to renew the objection, with specificity, at the end of the charge. See id. at 67. The judge did, however, acknowledge his awareness of the issue, explicitly ruled on it, and expressed his intention not to

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instruct as requested. Further, the judge expressly noted the defendant's objection to the ruling. In these circumstances, we conclude that the requirements of the rule have been met. See id. at 67 (stating that there can be circumstances under which no postcharge objection is required). Cf. Commonwealth v. Grenier, 415 Mass. 680, 686 (1993) (defendant's appellate rights properly saved where judge denied written request for jury instruction during charge conference and stated that defendant's exception was saved; defendant not required to repeat objection after charge was given). The issue is therefore preserved [Note 3].

3. Police officer's status as a public official. Recognizing the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open" and acknowledging that the Constitution protects such debate even when it includes "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," the landmark case, New York Times Co. v. Sullivan, 376 U.S. 254, 270-271, 279-280 (1964), established that a public official could not recover for "a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' - that is, with knowledge that it was false or with reckless disregard of whether it was false or not." We have not had the opportunity to rule on the question whether a patrollevel police officer qualifies as a public official. See Fleming v. Benzaquin, 390 Mass. 175, 189 (1983) (noting that the "weight of authority leans toward classifying police officers as public officials" but declining to decide the issue). We conclude, because of the broad powers vested in police officers and the great potential for abuse of those powers, as well as police officers' high visibility within and impact on a community, that police officers, even patrol-level police officers such as the plaintiff, are "public officials" for purposes of defamation [Note 4].

One of the major factors in determining whether a govern-

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ment employee is a public official for purposes of defamation is whether the employee's position in government "has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general interest in the qualifications and performance of all government employees . . . ... Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). "The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy." Id. at 86-87 n.13. Some of the other relevant considerations in making a determination regarding public official status are the government employee's ability to set policy guidelines that are of importance to public debate, see id. at 85; the impact of the government position on everyday life; the potential for social harm from abuse of the government position; as well as the employee's access to the press. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 344 (1974). See also Rosenblatt v. Baer, supra at 88 (public official status is determined as matter of law); Materia v. Huff, 394 Mass. 328, 330-331 (1985). Past application of these factors makes it clear that not every government employee is a public official for purposes of a defamation action. See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 135-136 (1979) (receipt of Federal grant did not make scientist a public official or public figure); Gertz v. Robert Welch, Inc., supra at 351 (attorney not "public official" although officer of the court); McAvoy v. Shufrin, 401 Mass. 593, 596 n.3 (1988) (expressing doubt that constable in private employ is public official).

Law enforcement officials, from a chief of police to a patrol officer, necessarily exercise State power in the performance of their duties. All police officers are empowered to further the preservation of law and order in the community, including the investigation of wrongdoing and the arrest of suspected criminals. Even patrol-level police officers are "vested with substantial responsibility for the safety and welfare of the citizenry in areas impinging most directly and intimately on daily living: the home, the place of work and of recreation, the sidewalks and streets." Roche v. Egan, 433 A.2d 757, 762 (Me. 1981). Further, although a patrol officer such as the plaintiff is "low on the totem pole" and does not set policy for the depart-

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ment, abuse of the office "can result in significant deprivation of constitutional rights and personal freedoms, not to mention bodily injury and financial loss." Gray v. Udervitz, 656 F.2d 588, 591 (10th Cir. 1981). All police officers have the ability and authority to exercise force. See Roche v. Egan, supra at 762 ("The nature and extent of the responsibility of a police detective is punctuated by the fact that a firearm, no less than a badge, comes with his [or her] office"). We conclude, in line with the vast majority of other jurisdictions [Note 5], that "[t]he abuse of a patrolman's office can have great potentiality for social harm; hence, public discussion and public criticism directed towards the performance of that office cannot constitutionally be inhibited by threat of prosecution under State libel laws." Coursey v. Greater Niles Township Publ. Co., 40 111. 2d 257, 265 (1968). The rule we now articulate strikes an appropriate balance between the individual's and society's interests in protecting reputation with society's interest in freedom of speech and expression. As recognized in New York Times Co. v. Sullivan, supra at 271-272, "erroneous statement is inevitable in free debate, and . . . [such statement] must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive.' "

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As New York Times Co. v. Sullivan and subsequent cases have made clear, a plaintiff who is a public official may not recover damages for defamation related to his or her public office unless the plaintiff proves by clear and convincing evidence that the defendant made the false statement with actual malice. See New York Times Co. v. Sullivan, supra at 279-280; Bose Corp. v. Consumers Union of the U.S., Inc., 466 U.S. 485, 502 (1984); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 851 (1975). In the context of defamation, the term "actual malice" does not mean the defendant's dislike of, hatred of, or ill will toward, the plaintiff. Rather, actual malice means that the "defamatory falsehood was published with knowledge that it was false or reckless disregard of whether it was false." Stone v. Essex County Newspapers, supra at 867. See Cantrell v. Forest City Publ. Co., 419 U.S. 245, 252 (1974); Beckley Newspapers v. Hanks, 389 U.S. 81, 82 (1967). The inquiry is a subjective one as to the defendant's attitude toward the truth or falsity of the statement rather than the defendant's attitude toward the plaintiff. See Cantrell v. Forest City Publ. Co., supra at 252.

Because the plaintiff was a public official for purposes of this defamation action, the jury should have been instructed that they were required to find that the defendant acted with actual malice before they could hold him liable. Accordingly, we reverse and remand for a new trial on the defamation claims. Similarly, because a plaintiff who is a public official must prove that a defendant acted with actual malice in order to recover damages for intentional infliction of emotional distress claims that arise from the defamation, see Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988), we reverse and remand the plaintiff's intentional infliction of emotional distress claim for a new trial [Note 6].

4. Issues likely to recur on remand. On appeal, the defendant argues several issues that were not preserved [Note 7]. As the defendant is entitled to a new trial on the above grounds, we discuss issues that may arise on retrial.

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First, many of the statements made by the defendant to the board, were, as a matter of law, not actionable, either because they were true, or because they were subjective statements of opinion, and as such were not susceptible of being proven false. See Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 312, cert. denied, 459 U.S. 1037 (1982). Further, the bull's-eye that the defendant wore on his jacket to the board meetings and around the town of Deerfield was a classic example of symbolic speech, and is therefore not actionable as slander. See, e.g., Cohen v. California, 403 U.S. 15 (1971) (wearing jacket with expletive sign on its back as protest); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 508 (1969) (wearing black armband symbolic of protest). See also King v. Globe Newspaper Co., 400 Mass. 705, 708, cert. denied, 485 U.S. 940 & 961 (1987), citing Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 37 (1985).

Finally, we note that the judge gave an instruction based on G. L. c. 231, s. 92. In view of our decisions, application of that statute to public officials is unconstitutional and the instruction should not have been given. See Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 134 (1998); Materia v. Huff, 394 Mass. 328, 333 (1985).

Judgment reversed.