By Mollie Heintzelman
The right to publish speculative opinions on sensitive matters — even if they portray an individual in a negative light — is now stronger in Massachusetts thanks to a recent ruling by the state’s high court.
The Massachusetts Supreme Judicial Court dismissed in November a lawsuit against the Boston Herald which could have changed the practice of journalism and limited the First Amendment rights of media.
In Scholz v. Boston Herald, the SJC unanimously ruled that the newspaper’s articles about the suicide of Brad Delp, lead singer of the rock group Boston, contained statements of opinion and could not be considered libelous as argued by Delp’s former band member, Tom Scholz. The New England First Amendment Coalition and 25 other media organizations joined an amicus brief arguing in defense of the Herald and writing that:
The ability to make conclusions or offer conjecture based on disclosed facts is an essential part of free speech. The freedom of speech and of the press would be severely curtailed if journalists were not allowed to interpret the information they present to the public, and, ultimately, it is the public that would suffer the loss of important information about current events.
I’ll explain why the ruling is significant below, but first here are the facts of the case:
Following Delp’s suicide in 2007, the Herald published articles regarding his death. Journalists interviewed many sources, including his ex-wife, friends, and other insiders for the Herald’s entertainment column “Inside Track.” The first of three articles, headlined “Suicide Confirmed in Delp’s Death,” quoted “unnamed insiders” about Delp and Scholz’s relationship. The second article, headlined “Pal’s Snub Made Delp Do It: Boston Rocker’s Ex-Wife Speaks,” quoted Delp’s ex-wife, Micki, while discussing the relationship between the musicians. The final article, headlined “Delp Tribute On,” included a portion stating that Scholz and former members of Boston were on bad terms, contributing to the rocker taking his own life. Scholz argued that these articles implied that he was responsible for Delp’s death. He sued the Herald and several of its writers for defamation and intentional infliction of emotional distress.
In its Nov. 25 ruling, the court disagreed with Scholz, explaining that the articles contained “statements of opinion and not verifiable fact” and “could not form basis of a claim of defamation.” Additionally, the court wrote, “the statements at issue could not have been understood by a reasonable reader to have been anything but opinions regarding the reason Brad committed suicide.” The Herald’s opinion could not have been fact, as the reasonable reader of the entertainment column would have believed these statements were “nothing more than conjecture and speculation.”
The ruling is a victory not only for the Herald, but for journalists, publishers and news media throughout Massachusetts. An essential part of modern journalism is the ability to express an opinion based on facts, even if the conjecture reflects negatively on an individual. The SJC recognized that a responsibility of journalists is to provide analysis — a personal opinion based on facts presented by sources. Ruling against the Herald in this case would have made it nearly impossible to provide such analysis out of fear that any implications could lead to a defamation lawsuit. Instead, the court reasoned, newspaper readers should be expected to recognize the analysis as an opinion and judge the merits of that analysis accordingly.
If statements of utter speculation could be considered libelous, according to the amicus brief joined by NEFAC, reporting would be “reduced to black-and-white statements of good and bad, right and wrong, true and false.” If journalism were reduced to this type of simplicity, could it ever adequately convey the uniqueness of each story and its value to readers?
A journalist’s most basic duties are to report facts and to provide commentary and context to those facts. The SJC recognized that conclusions are often made through speculation, conjecture and inference — but that the conclusion itself is still just an individual’s opinion. The First Amendment’s freedom of press would have little purpose if it didn’t protect our right to express those opinions.
Fortunately in Massachusetts, we still can.
Mollie is a second-year student at Suffolk University Law School. She can be emailed at eheintzelman@suffolk.edu.
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NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Robertson Foundation, The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.