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Some Peace of Mind for Free Speech in Massachusetts

Not just another band out of Boston

Massachusetts has given the world its fair share of musical greatness.  From the Dropkick Murphys back to Jonathan Richman, The Cars to the Pixies, Aerosmith to Mission of Burma.  Bim Skala Bim to the Lemonheads.  The Unband to the Mighty Mighty Bosstones.  Lets put it this way, your musical life would suck without the 617/413 and later fragmented area codes.  (Fine, we apologize for New Kids on the Block.  That abomination cancels out the points we gained from Til Tuesday and Billy Squier.)

But, I gotta be honest.  Like any Patriots fan has to admit that the Pittsburgh Steelers are, to date, the better franchise.  It doesn’t mean I love the Pats any less, but… you might love your wife til the end of time, but you got a set of eyes, and you can tell if another guy’s wife has a better ass than yours does.  Admitting it, if true, just means that the rest of your opinions are valid, since you’re not full of shit.

The fuckin unband
The fuckin’ Unband

So, in that vein, I’ll say that even though I personally put the Unband (the ultimate rock out with your cock band of all time) and The Modern Lovers (say no fucking more) at the top of my Masshole playlist, I can’t deny that the Boston is King, A-number one, Snake Fucking Plisskin riding a Dragon while swinging a mountain lion by the tail above his head, fucking rulers of the universe, when it comes to Boston music.  You can go into a party in Melrose and put on Mission of Burma, and some asshole is gonna say “Turn that shit off.”  Almost everyone loves the J. Geils Band, but put that on in a crowd that would rather hear the Mighty Mighty Bosstones and there’s gonna be words.

You wanna please everyone, then you play Boston.  When New England finally secedes from the rest of this sinking ship of a country, I’ll be lobbying for Roadrunner to be the national anthem, but I wouldn’t be surprised if it lost to “More than a Feeling,” and I wouldn’t mind either.  (Although, the smart asses in New England would probably pick Billy Squier’s The Stroke, just to fuck with everyone).

Brad Delp was about as close to royalty as you can get in Massachusetts.  He was the lead singer for Boston, and his iconic voice ran through the soundtrack to at least two generations of New Englanders.  Sadly, he took his own life in 2007.  (May his soul sit eternally in a sky box at Fenway, eating an endless supply of lobster rolls, sitting in a kiddie pool full of Sam Adams beer, flanked by two hot chicks who shut the fuck up through the whole game).

Boston might have a lot of music, but it only has two newspapers — if you use that term loosely.  We got the Boston Globe, which is pretty decent, and we have the Boston Herald, which is sorta like the New Kids on the Block.  NKOTB was bullshit, but anything with Mark Wahlberg’s brother is not all bad.  And, The Herald has its moments.  But, for the most part, it is not exactly the kind of place that Edward R. Murrow would want to visit, if he came back to life. But, if he did, the Herald would put him on the front page with some crazy all-caps headline, and wouldn’t even mention what he used to do for a living, before he went on a brain-eating rampage in Allston.

After Delp voluntarily merged with the infinite, the Herald ran a series of stories suggesting that Donald Scholz, the band’s leader, was responsible for Delp’s suicide.  The series relied on “unnamed sources” as well as Delp’s estranged wife, Micki, and used bullshit headlines like “Pal’s snub made Delp do it: Boston rocker’s ex-wife speaks.’’  Scholz sued The Herald and its columnists for defamation, for implying that he had a hand in Delp’s death. (Scholz v. Delp at 2).

Just before Thanksgiving, the Massachusetts Supreme Judicial Court (SJC) ruled that the articles were non-actionable opinion.   (Scholz v. Delp at 4).

The articles were, to say the least, not the greatest journalism, but not exactly the worst.  The writers carefully crafted a story to fit a sensational narrative, implying the opinion that Scholz caused Delp to off himself.  But, the key word here is “opinion.” And, although that opinion was nasty and harmful, that doesn’t make it defamatory.

The SJC quoted the landmark case, Gertz v. Welch: “However 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.” (Scholz v. Delp at 12).

While “[a] statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,'” Levinksy’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 127 (1st Cir. 1997), quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993), a statement that does not contain
“objectively verifiable facts” is not actionable.(Scholz v. Delp at 12).

The SJC noted that in some cases, one might be able to come up with a 100% clear reason as to why someone might commit suicide, but this is not one of those cases. Therefore, it was clearly speculation.

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. “[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, . . . the statement is not actionable.” Haynes v. Alfred A. Knopf, Inc., supra at 1227. See Milkovich v. Lorain Journal Co., supra at 9. See, e.g., Gacek v. Owens & Minor Distrib., Inc., 666 F.3d 1142, 1147-1148 (8th Cir. 2012) (concluding that “anyone is entitled to speculate on a person’s motives from the known facts of his behavior,” and that statements that plaintiff “pushed [the decedent] over the edge,” was “the straw that broke the camel’s back,” and “was the reason for [the decedent’s] death” were nonactionable because they did not express objectively verifiable facts, but, rather, were defendant’s “theory” or “surmise” as to decedent’s motives in taking his own life [citation omitted]). Cf. National Ass’n of Gov’t Employees/Int’l Bhd. of Police Officers v. BUCI Tel., Inc., 118 F. Supp. 2d 126, 131 (D. Mass. 2000) (“the interpretation of another’s motive does not reasonably lend itself to objective proof or disproof”).(Scholz v. Delp at 12-13).

The SJC also noted that the articles themselves were somewhat gossip-column like, and contained cautionary language that would alert the reader to the fact that they were not making a conclusive statement of fact — rather that they were sharing an opinion.

Of course, just because something is labeled “opinion,” that does not necessarily make it legally so. I can write “in my opinion, Bob Smith uses cocaine.” Well, Bob just might have a case against me, if I do that. But, if I say “Bob Smith had white powder on his nose, kept sniffing, and he was talking really fast, so my educated opinion is that he was probably on cocaine.” That would be another story. Why? I disclosed the facts that formed the basis for my opinion. Similarly, I could say “Bob was slurring his words, burping a lot, and kept saying how much he loved everyone, therefore my opinion is that he was using cocaine.” That would be a pretty clearly off-base opinion, but at least I shared my data.

The SJC tackled this issue:

Even a statement that is “cast in the form of an opinion may imply the existence of undisclosed defamatory facts on which the opinion purports to be based, and thus may be actionable.” King v. Globe Newspaper Co., 400 Mass. 705, 713 (1987). By contrast, an opinion “based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is.” Dulgarian v. Stone, 420 Mass. 843, 850 (1995), quoting Lyons v. Globe Newspaper Co., supra at 262. (Scholz v. Delp at 17).

By laying out the bases for their conclusions, the articles “clearly indicated to the reasonable reader that the proponent of the expressed opinion engaged in speculation and deduction based on the disclosed facts.” See Lyons v. Globe Newspaper Co., supra at 266. It does not appear “that any undisclosed facts [about Scholz’s role in Brad’s suicide] are implied, or if any are implied, it is unclear what [those might be].” See Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 313 (1982). Moreover, it is entirely unclear (even assuming that facts are implied) that they are defamatory facts. See id. (Scholz v. Delp at 19).

The SJC upheld the trial court’s dismissal of the claims at summary judgment, noting that Summary Judgment is a favored means of resolving defamation cases. (Citing New England Tractor & Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 480 (1985), citing Cefalu v. Globe Newspaper Co., 8 Mass. App. 71, 74 (1979), cert. denied, 444 U.S. 1060 (1980)).

I wouldn’t call this a SLAPP suit. It wasn’t just a rich asshole trying to suppress criticism. Imagine if you were slathered on the front page of a tabloid, essentially being blamed for your long-term colleague’s suicide. I can really empathize with Scholz here. But, the First Amendment demands that we have room for discussions like this one, and it gives The Herald the latitude necessary to keep its cart open in the marketplace of ideas.

I just really wish that this was not Delp’s legacy. They weren’t just another band out of Boston, and Delp wasn’t just another kid from Peabody, Mass. But, I suppose that there’s some poetry in it — that voice that we cranked in the dunes at night at Good Harbor Beach, or as we drove ridiculously fast up Route 128… that voice won’t ever leave anyone’s head, if that head spent any formative years in New England.

Perhaps it is poetically appropriate that Delp now lives on, giving us all the Peace of Mind that we are that much more free because of him.  I hope that whatever remains of him can find just a little slack in that.

This post originally appeared on Popehat. View it here.

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