Opinion
No. 92-0913
January 2, 1998.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The defendants move to dismiss the complaint or, in the alternative, for summary judgment. Because the parties submitted materials outside the pleadings, including affidavits, newspaper articles, videotapes of a television news broadcast and a Braintree Selectmen meeting, for the court to consider, the court treats defendants' motion as a motion for summary judgment. Mass.R.Civ.P. 12(b)(6), (c).
The plaintiff Elizabeth A. Pircio ("Pircio") brought this action against the defendants Francis J. Toland ("Toland"), Beverly Najjar ("Najjar") and Allan Fitzsimmons ("Fitzsimmons") to recover for public remarks charging her with racial insensitivity. Pircio alleges defamation (Count I), intentional and negligent infliction of emotional distress (Count II), malicious interference with a contractual right (Count III), and violations of Massachusetts civil rights under G.L.c. 93, § 102 and G.L.c. 12, §§ H and I (Count IV). Before the court is the defendants' motion for summary judgment pursuant to Mass.R.Civ.P. 56(c). For the following reason, the defendants' motion for summary judgment is ALLOWED.
BACKGROUND
Pircio was at all relevant times a member of the Town of Braintree Planning Board. In 1992, Toland was Chairman of the Town of Braintree Board of Selectmen; Najjar and Fitzsimmons were Co-chairpersons of the Fair Housing Committee. The public criticism that defendants made against Pircio stemmed from a letter she wrote in response to an invitation to the Martin Luther King, Jr. Day celebration. The circumstances giving light to that letter and its criticism are as follows.
Prior to 1992, the Town of Braintree ("the Town" or "Braintree") was a party to proceedings before (1) the Equal Employment Opportunity Commission ("EEOC") on the issue of the Town's fair hiring practices, and (2) the Massachusetts Commission Against Discrimination ("MCAD") on the issue of the Town's hiring and housing practices. As the result of these proceedings, Braintree negotiated an agreement with both agencies to change certain practices of fair employment and housing. The Town also agreed to sponsor various activities to promote racial harmony and ethnic diversity.
In this regard, the Fair Housing Committee planned Braintree's first Martin Luther King, Jr. Day celebration in 1992. On or about January 6, 1992, Akpanaluo Etteh, Director of Fair Housing Committee, sent out invitations for the event. In her capacity as a member of the Planning Board, Pircio wrote a letter in response to the invitation. It read as follows:
Dear Mr. Etteh:
Thank you for the invitation dated January 6, 1992 from the Fair Housing Committee to attend a celebration honoring Martin Luther King, Jr. Day. It is a wonderful idea to honor people from all ethnic groups who contributed to making this great country.
It is also important for the Fair Housing Committee to accomplish this in a manner that is fair and equal to all ethnic groups. Therefore, the Planning Board looks forward to receiving invitations to honor other ethnic minorities, as well. We would sincerely hope to be invited to a celebration on St. Patrick's Day, the 500th Anniversary of Columbus Day, as well as the Chinese New Year[,] to name a few.
Looking forward to seeing you there.
Sincerely, (signed)
Elizabeth A. Pircio Planning Board Member
P.S. The Chinese New Year is February 4, 1992. As an idea for party favors, they are celebrating the Year of the Monkey.
cc. Board of Selectmen.
Notwithstanding the letter, no member of the Planning Board attended the Martin Luther King, Jr. celebration and, as the result, a controversy, worthy of media attention, ensued. On January 21, 1992, Toland wrote to Pircio lambasting her for the letter, which he regarded as showing "racial bigotry and hatred." Portions of both Pircio and Toland's letters were published in local newspapers. On January 24th, in an interview with a television reporter from WCVB-TV Channel 5 about Pircio's letter, Toland criticized Pircio and suggested that she should resign from her position on the Planning Board. On January 26th, Pircio penned an open letter to the citizens of Braintree apologizing for any injured feelings that her letter might have caused. During a meeting of the Board of Selectmen on January 27th, Toland addressed the Pircio incident by reference to her only as the "public official" involved in a recent racial dispute. Citing the adverse effects that had occurred and might occur as the result of the incident, Toland suggested that the public official involved in the controversy "leave government as fast as possible."
Toland's January 21, 1992 letter states:
Dear Planning Board Member Pircio:
I am in receipt of your letter to Mr. Akpanaluo Etteh, Director of the Braintree Fair Housing Committee regarding the Martin Luther King[,] Jr. Celebration. It is apparent from the second paragraph of your letter that you are speaking for the entire Planning Board[,] although I have serious doubts about that.
I would, though, as an individual member of the Board of Selectmen[,] like to say your letter displays a terrible insensitivity to the memory of a person who gave his life in service to not only the black community, but to all persons of the world — white, black, yellow [-] in the name of justice and freedom for all.
Clearly, Martin Luther King[,] Jr.'s dream of having all people coming together as one, still has more work to be done so long as persons like you hold to your apparent racial bigotry and hatred.
Very truly yours, (signed)
Francis J. Toland Chairman
When questioned about Pircio's letter, Toland stated the following: "I just think it was some sick form of humor. I didn't think there was any validity to it. . . . I think she'd be forced to either resign or give an explanation, and I don't think there's an explanation. . . . All the appearance of racist (unintelligible), the P.S. connotation at the bottom of the letter just sends that out as a clear signal to me."
Etteh, and defendants Najjar and Fitzsimmons also attended the selectmen meeting, at the conclusion of which Najjar stated that the Fair Housing Committee was appalled that the Planning Board would send "such an insensitive, uninformed response to an invitation to attend a town-wide sponsored event." Later, upon learning that Pircio had decided to run for selectman, Najjar commented: "I think it will be a sad day for Braintree if she is ever elected to selectman. . . . But I can't imagine it happening. The people of Braintree are decent intelligent and well informed." Pircio subsequently included Fitzsimmons as a present defendant by reason of his organization of third parties to picket and protest against Pircio for her letter.
The remarks Najjar stated at the selectmen meeting were published in January 29, 1992 edition of the Braintree Forum.
This comment was reported in the February 12, 1992 edition of the Braintree Forum.
DISCUSSION
A. Summary Judgment Standard
This court grants summary judgment when the moving party satisfies its burden of proving that no genuine issue of material fact exists and that the record entitles the moving party to judgment as a matter of law. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Mass.R.Civ.P. 56(c).
A moving party, who does not bear the burden of proof at trial, may prevail on summary judgment by either submitting affirmative evidence to negate an essential element of the nonmoving party's case or showing that the nonmoving party cannot reasonably prove an essential element of its case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715-716 (1991). To overcome summary judgment, the nonmoving party must articulate specific facts establishing the existence of a genuine issue of material fact. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989).
B. Defamation
Competing interests exist between the tort of defamation and the First Amendment to the Federal Constitution, as the former protects an individual's right to recover for injury to his reputation caused by libelous or slanderous statements, and the latter protects an individual's right to the freedom of expression. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 855 (1975). Libel is the publication of a writing discrediting the plaintiff in the minds of any "considerable and respectable" class in the community. Id. at 853. The test for slander is whether the uttered words "charged the plaintiff with a crime, or state that he is suffering from certain diseases, or prejudice him in his office, profession or business or may probably tend to do so." Cavarnos v. Kokkinakis, 338 Mass. 355, 355 (1959).
In light of the tension between defamation and the First Amendment, the Supreme Judicial Court favors summary judgment procedure in defamation cases so as to prevent chill of the freedom of expression. E.g., Dulgarian v. Stone, 420 Mass. 843, 846 (1995); Mulgrew v. Taunton, 410 Mass. 631, 639 (1991); ELM Medical Laboratory, Inc. v. RKO General, Inc., 403 Mass. 779, 786 (1989); King v. Boston Globe Newspapers Co., 400 Mass. 705, 708 (1987), cert. denied, 485 U.S. 940 and 485 U.S. 962 (1988); Godbout v. Cousens, 396 Mass. 254, 258 (1985). In that regard, the Supreme Judicial Court has stated that "[a]llowing a trial to take place in a meritless case `would put an unjustified and serious damper on freedom of expression' . . . Even if a defendant in a libel case is ultimately successful at trial, the costs of litigation may induce an unnecessary and undesirable self-censorship." King v. Boston Globe Newspaper Co., supra at 708 (citations omitted). The circumstances of this case reveal that summary disposition of Pricio's defamation claims is feasible on two grounds. The first is that the statements on which her claims are based are opinions and, hence, are not actionable. The second is that even if those statements are actionable, as a public official, she bears the burden of proving "actual malice," and cannot reasonably expect to do so.
1. Opinion or Fact
It is well established that a "pure" opinion, no matter how unflattering, is not actionable. Pristker v. Brudnoy, 389 Mass. 776, 778 (1983). A "mixed" opinion, however, is actionable if it is "`reasonably understood as implying the assertion of the existence of undisclosed facts about the plaintiff that must be defamatory in character in order to justify the opinion.'" Id. A "pure" opinion is one based on "disclosed or assumed nondefamatory facts;" and a "mixed" opinion is one "`apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication.'" Id.
"[W]hether an expression of opinion is capable of bearing a defamatory meaning because it may reasonably be understood to imply the assertion of undisclosed facts that justify the expressed opinion about the plaintiff or his conduct" is a question of law for the court. Id. at 779. In so determining, the court must do the following:
[1] examine the statement in its totality in the context of which it was uttered or published. . . . [2] consider all the words used, not merely a particular phrase or sentence. . . . [3] give weight to cautionary terms used by the person publishing the statement. . . . [and] [4] consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it was published.
Myers v. Boston Magazine Co., Inc., 380 Mass. 336, 343-344 (1980) (citation omitted). Here, the comments of the defendants in the context of the letter Pircio had written to Etteh were nothing more than a mere interpretation of her letter. Based on the language of that letter, the defendants interpreted its author to be racially insensitive and, perhaps, even a racist. Because of this interpretation, they criticized her, and suggested that she step down from her position as an elected official.
The defendants' interpretation of Pircio's letter, and their unflattering remarks toward her were, therefore, "pure" opinions. Even if their comments were "mixed" opinions, these opinions were based on a disclosed fact, a letter which Pircio had sent to Etteh with carbon copies to the Selectmen of Braintree. Accordingly, the comments made with regard to Pircio, as author of that letter, could not be reasonably understood to imply the assertion of any undisclosed facts which justified the defendants' opinion of her. In sum, the defendants' comments about Pircio are not actionable opinions. The court grants the defendants summary judgment against the defamation claims.
2. Burden of a Public Official
Even if the defendant's comments were actionable, to recover under libel or slander, as a public official, Pricio must prove "actual malice." Stone v. Essex County Newspapers, Inc., supra at 867. "Actual malice . . . is proved by a showing that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false." Id. ___, citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). In light of the First Amendment considerations, a public official must prove actual malice by "clear and convincing evidence," a standard that requires the proof be "strong, positive and free from doubt" or "full, clear and decisive." Id. at 370-371.
Whether a plaintiff is a public official or public figure is a question of law for the court to determine whenever, among other applicable conditions, "all of the facts bearing thereon are uncontested or agreed by the parties[.]" Stone v. Essex County Newspapers, Inc., supra at 863-863. Here, it is undisputed that Pircio was an elected member of the Planning Board, and that she signed the alleged racially insensitive letter in her capacity as an elected official. Pircio's status as a public official is further supported by the admission she made in another complaint arising out of the same incident. See Locicero v. Leslie, 948 F. Supp. 10, 12 (1996) (federal court taking judicial notice of an admission made in a state action to determine a motion to dismiss).
In Pricio v. The Quincy Patriot Ledger others, Norfolk County 92-0753, Pircio admitted that she was a "public official" in ¶ 27 of the complaint. Judgments in that suit entered for the defendants by motions to dismiss and for summary judgment. The Massachusetts Appeals Court affirmed under Mass. App. Ct. R. 1:28 on June 24, 1997.
If her elected position was not sufficient to make her a "public official," then the public controversy of which she was a part made her a public official for purposes of the racial insensitivity dispute. See ELM Laboratory, Inc. v. RKO General, Inc., supra at 785 ("[a]n individual may achieve public figure status if he `voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues'"). In ELM Laboratory, Inc. v. RKO General, Inc., the Supreme Judicial Court defined "public controversy" as "a dispute in which the outcome `affects the general public or some segment of it in an appreciable way.'" Id. at 786. Here, Braintree had long agreed with the EEOC and MCAD to alter its hiring and housing practices to achieve equality, and to sponsor activities to promote racial harmony and ethnic diversity. As an elected official of Braintree, the charge of racial insensitivity against Pircio might adversely affect the Town's race relations. Accordingly, the racism dispute of which Pircio was a central figure was a public controversy making her a public official. See id. (holding that "[r]eports concerning dangers to public health constitute public controversies").
Here, the defendants have shown that Pircio cannot reasonably prove that the alleged libelous or slanderous statements were made with actual malice. Opposing summary judgment, Pircio submitted an affidavit citing conflicting political interests as evidence of actual malice. That offer of proof does not create a factual issue whether the defendants' comments with regard to her letter were false or uttered in reckless disregard of their falsehood.
For purposes of actual malice, the defendants' alleged defamatory comments could not be characterized as either true or false because they were mere interpretation of Pircio's letter. As with most interpretations, it is true if you agree with it, and false if you do not. Moreover, the defendants did not utter the alleged defamatory statements recklessly because those comments were based on one reasonable understanding of the language Pircio had used in her letter to Etteh. Accordingly, summary judgment on the defamation claims is also proper because Pircio cannot reasonably expect to prove actual malice.
C. Emotional Distress 1. Intentional Infliction of Emotional Distress
To prevail on the claim of intentional infliction of emotional distress, a plaintiff must show "`(1) that the defendant intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of his conduct, but also (2) that the defendant's conduct was extreme and outrageous, beyond all bounds of decency and utterly intolerable in a civilized community, (3) [that] the actions of the defendant were the cause of the plaintiff's distress, and (4) [that] the emotional distress suffered by the plaintiff was severe and of such a nature that no reasonable person could be expected to endure it.'" Tetrault v. Mahoney, Hawkes Goldings, 425 Mass. 456, 466 (1997). It is insufficient to establish liability under this tort on "`mere insults, indignities, threats, annoyances, petty oppressions or other trivialities' [even if] `the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.'" Id., quoting Foley v. Polaroid Corp., 400 Mass. 82, 99 (1987).
In light of the rugged standard set forth above, Pircio does not have an intentional infliction of emotional distress claim. Here, Toland's and Najjar's critical, unflattering remarks and Fitzsimmons' organization of third parties to protest against Pircio were not extreme, outrageous, beyond all bounds of decency, or intolerable in a civilized community. On the contrary, the freedom to criticize public officials is the hallmark of a free, decent, civilized and democratic society. See King v. Globe Newspapers Co., supra at 709, quoting from New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (". . . debate on public issues should be uninhibited, robust and wide open, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials"). Moreover, Pircio has advanced no evidence showing that she had suffered severe emotional distress as the result of the defendants' conduct. Accordingly, summary judgment on the claim for intentional infliction of emotional distress is appropriate.
2. Negligent Infliction of Emotional Distress
To recover under the tort of negligent infliction of emotional distress, a plaintiff must prove "(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case." Payton v. Abbot Labs., 386 Mass. 540, 557 (1982); Sullivan v. Boston Gas Co., 414 Mass. 129, 132 (1993). Here, Pircio has not alleged the element of physical harm, nor has she even alluded to it in her opposition affidavit. Without any expectations of showing physical harm, Pircio has no claim under negligent infliction of emotional distress.
D. Interference with a Contractual Right
To recover under intentional interference with a contractual right, a plaintiff must demonstrate "(1) the existence of a contract or a business relationship which contemplated economic benefit; (2) the defendant's knowledge of the contract or business relationship; (3) the defendant's intentional interference with the contract or business relationship for an improper purpose or by improper means; and (4) damages." Swanset Development Corp. v. Taunton, 423 Mass. 390, 397 (1996).
Here, the defendants' statements calling upon Pircio to step down as member of the Planning Board and expressing doubts about her ability as a public official injured her position in Braintree. Nevertheless, because she was an elected official, Pircio enjoyed no contractual rights to her position. Without such right, she does not have a claim for interference with a contractual right.
In her affidavit, Pircio stated that she also operates a business in Braintree. Any harm done to Pircio's private enterprise is not actionable for it was not done for an improper purpose or by improper means. It would be incidental and unfortuitous. Accordingly, summary judgment with regard to the claim of interference with a contractual right is proper.
E. Massachusetts Civil Rights Act 1. G.L.c. 12, §§ 11H and I
To recover under the Massachusetts Civil Rights Act, G.L.c. 12, §§ 11H and I, a plaintiff must show that "(1) his exercise or enjoyment of rights secured by the Constitution of either the United States or the Commonwealth, (2) has been interfered with, or attempted to be interfered with, and (3) that the interference or attempted interference was by `threats, intimidation or coercion.'" Bally v. Northeastern University, 403 Mass. 713, 717 (1989).
G.L.c. 12, § 11I states in relevant part:
Any person whose exercise or enjoyment of rights secured by the constitutions or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in section 11H, may institute and prosecute in his own name and on his own behalf a civil action for inductive and other appropriate equitable relief, including the award of compensatory money damages. . . .
G.L.c. 12, § 11H provides in relevant part:
Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempts to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or the laws of the United States, or of the rights secured by the constitution or laws of the commonwealth, the attorney general may bring an action for injunctive relief or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured. . . .
Here, the critical statements uttered by Toland and Najjar cannot be characterized as threats, intimidation or coercion. Nor can the organization by Fitzsimmons of third persons to picket and protest against Pircio. Like Toland and Najjar's comments, Fitzsimmons' participation in the protest was protected by the First Amendment to the United States Constitution as applicable to the States through the Fourteenth Amendment. Accordingly, this court grants the defendants' summary judgment motion on the claims under G.L.c. 12, §§ 11H and I.
2. G.L.c. 93, § 102
The Massachusetts Equal Rights Act, G.L.c. 93, § 102 (1996 ed.), provides that all persons regardless of "sex, race, color, creed or national origin" shall have the same rights as white males to (i) make or enforce contracts, (ii) purchase, lease and sell real and personal property, and (iii) have full and equal benefit of the laws. G.L.c. 93, § 102(a). Any person whose rights, protected under § 102(a), have been violated may institute a civil action for appropriate remedies. Id. § 102(b). Reading the complaint in the light most favorable to Pircio, I conclude that she has not alleged any violations of the rights protected under § 102(a) because of her "sex, race, color, creed or national origin." Accordingly, Pricio does not have any claims under G.L.c. 93, § 102.
G.L.c. 93, § 102 provides in relevant part:
(a) All persons within the commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) A person whose rights under the provisions of subsection (a) have been violated may commence a civil action for injunctive and other appropriate equitable relief, including the award of compensatory and exemplary damages. . . .
ORDER
For the foregoing reasons, this court ORDERS that the defendants' motion for summary judgment be ALLOWED in toto.
____________________________ Mitchell J. Sikora, Jr. Justice of the Superior Court
DATED: January 2, 1998.