Myers v. Boston Magazine Co., Inc.
Myers v. Boston Magazine Co., Inc.
Opinion of the Court
The sole issue on appeal is whether a published description of the plaintiff, a television sports announcer, as "[t]he only newscaster in town who is enrolled in a course for remedial speaking” gives rise to a legally cognizable claim of libel against the defendant publisher. A majority of the panel conclude that it does.
The plaintiff is a sports news announcer at the Boston television station WBZ-TV. We assume, without deciding, as the parties have, that he is a public figure for purposes of a libel suit under the rule of New York, Times Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny. In the September, 1976, issue of Boston Magazine, published by the defendant, there appeared a one-page item entitled "Best and Worst Sports,” a copy of which was appended to the complaint. Eight sports categories introduced by
Instituting this action for libel, the plaintiff alleged that the statement was untrue and was made by the defendant knowing it to be false or with reckless disregard for its truth or falsity. The defendant’s motion to dismiss for failure to state a claim under Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), was allowed, and the plaintiff appeals from the ensuing judgment of dismissal.
Consistent with the liberal civil pleading standards in this Commonwealth, our courts have held that a motion to dismiss for failure to state a claim should not be allowed "unless it appears beyond doubt” (Nader v. Citron, 372 Mass. 96, 98 [1977]) or "to a certainty” (Romano v. Sacknoff, 4 Mass. App. Ct. 862 [1976]) that the pleader is entitled to no relief under any state of facts which could be proved in support of the claim. See White v. Spence, 5 Mass. App. Ct. 679, 683 (1977). See also 5 Wright & Miller, Federal Practice and Procedure § 1357 (1969). The question before us is whether the allegedly defamatory statement can be said as a matter of law to be incapable of
In grappling with the problem of construction of language in libel cases, courts have recognized that the line of demarcation between fact and opinion is not a precise one. The United States Supreme Court has held that words used in a loose, figurative sense which are part of the conventional give and take in political controversies are not libelous. See the Old Dominion case, 418 U.S. at 284. Nor are words libelous if used merely as "rhetorical hyperbole” or vigorous epithets, such that it is "impossible” for a reader not to understand exactly what was
In some cases, however, the characterization of language as either fact or opinion cannot fairly be made by a court as a matter of law. In Good Govt. Group of Seal Beach v. Superior Court, 22 Cal. 3d 672, 681-683 (1978), the court ruled that denial of the defendants’ motion for summary judgment was proper where the allegedly defamatory language could have been understood by the average reader as either fact or opinion, holding that it was for a jury to determine in what sense an ordinary reader would have understood it.
In the present case, it cannot be ruled as a matter of law that the statement in issue could not be understood in a factual and defamatory sense by a considerable and respectable class in the community. Had the defendant written of the plaintiff that he was "the only newscaster in town in need of a course in remedial speaking,” the statement would fall clearly within the realm of opinion and ideas, protected in order to advance society’s interest in "uninhibited, robust, and wide-open” debate on public issues. New York Times Co. v. Sullivan, 376 U.S. at 270.
The defendant’s argument opposing this conclusion is that there is only one reasonable interpretation of the challenged language: it is, in essence, humor. As such, the argument goes, it is merely an amplification of the defendant’s opinion that Myers is the "worst” sports announcer in Boston, and can only be read in context as a humorous jibe or as rhetorical hyperbole.
The judgment and the order allowing the motion to dismiss are reversed.
So ordered.
By classifying the statement in issue as hyperbole, the defendant assumes the very thing to be proved. Hyperbole is defined as an extravagant exaggeration, and depends for its comic effect on the recognition of an obvious incongruity. The statement might be viewed as a form of irony, a more subtle type of humor, in which the literal and implied meanings are at variance. The use of irony pays "an implicit
Dissenting Opinion
(dissenting). I respectfully dissent. My quarrel is not with the authorities cited or the principles to be learned from those authorities. I part company with my
The context of the text is criticism, a compendium of what the magazine considered best and worst in a variety of settings in the Boston scene. Criticism, an expression of opinion, is not defamatory. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974). Steak Bit of Westbury, Inc. v. Newsday, Inc., 70 Misc. 2d 437, 438 (N.Y. Sup. Ct. 1972) ("On the whole I thought it was a pretty unappetizing group of eating places. It was mostly all fake food, ground-up schmutz”).
As the majority has observed, the defendant in the case before us tossed garlands and nettles to the best and the worst in a variety of categories. In the category of sports the magazine cited the best and worst: sports announcer, sexy athlete, sports move of the year, local sports book, locker, local ski slopes, pick-up basketball game, and sports groupie. The very subjects bespeak levity and tongue in cheek. The entire text, i.e. the complete expression of the critic’s view under the subcategory of worst sports announcer, after identifying the unfortunate winner, consists of one sentence: "The only newscaster in town who is enrolled in a course for remedial speaking.” Can one sensibly read this as other than an ironic style of expressing the magazine’s opinion or as hyperbole? I do not think so. The next subcategory, sexy athlete, carries on in the same vein. Giving the award to the Bruins, the magazine says: "You’d look like a gargoyle, too, if you’d spent a lifetime fielding pucks with your face.” Is this, too, a statement of fact? The art work which adorns the text is in a similarly comic vein. Taking into account this background, I think the majority’s reading of the text is the type of close analysis which we said in Borski v. Kochanowski, 3 Mass. App. Ct. 269, 271 (1975), "is hardly a realistic indication of how this publication would be read ....”
I prefer that the pen of the satirist not be blunted by the blue pencil of the libel lawyer and would affirm the judgment below.
Reference
- Full Case Name
- James D. Myers, Jr. vs. Boston Magazine Company, Inc.
- Cited By
- 3 cases
- Status
- Published