John R. Lakian v. Globe Newspaper Company & another n1
n1 Walter V. Robinson.
No. N-4200
Supreme Judicial Court of Massachusetts
399 Mass. 379; 504 N.E.2d 1046; 1987 Mass. LEXIS 1172; 13 Media L. Rep. 2368
November 6, 1986, Argued
March 10, 1987, Decided
PRIOR HISTORY: [***1]
Norfolk.
Civil action commenced in the Superior Court Department on August 26, 1982.
The case was tried before George Jacobs, J.
The Supreme Judicial Court granted a request for direct appellate review.
DISPOSITION: Judgment affirmed.
HEADNOTES: Libel and Slander. Damages, Libel, Nominal damages.
SYLLABUS: A "public figure" plaintiff in a libel action, who accepted
submission of the case to the jury on the basis that he would recover nominal
damages only if they found that he had sustained an actual injury, thereby
waived the benefit of any common law presumption of actual injury that would
require the award of nominal damages to such a plaintiff on proof limited to
falsity, defamation and actual malice. [382-384]
An appeal was inappropriate where the sole issue was a libel plaintiff's
entitlement to nominal damages. [384]
COUNSEL: Norman Ray Grutman of New York (Jewel H. Grutman
of New York & Charles W. Morse, Jr., with him) for the plaintiff.
Francis H. Fox (Jonathan M. Albano with him) for the defendant.
JUDGES: Hennessey, C.J., Wilkins, Nolan, Lynch, & O'Connor, JJ.
OPINIONBY: WILKINS
OPINION: [*379] [**1046] On August 18, 1982, the defendant
Globe [***2] Newspaper Company (Globe) published an article, written by the
defendant Walter V. Robinson, concerning John R. Lakian, a candidate for the
Republican nomination for Governor in the September, 1982, primary election.
The article stated that "inquiry into Lakian's background found what appears
to be a pattern of discrepancies between what he says and what the [**1047]
records show about his upbringing, schooling, military service and business
career." The article continued, listing items in [*380] support of this
conclusion, reciting records apparently contradicting certain of Lakian's
assertions, and quoting or summarizing statements made by Lakian to the
defendant Robinson in the course of tape-recorded interviews. Eight days later
Lakian commenced this action, which for our purposes may be treated solely as
one for libel. n2
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n2 The complaint as finally amended also alleged counts based on false light
invasion of privacy and intentional infliction of emotional distress. The jury
found for the defendants on these two theories, and no question involving
those counts is before us.
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The jury returned a special verdict on the libel count. They answered that
Lakian did not prove the gist of the article was false and defamatory, that
five paragraphs or parts of the fifty-five part article were false, and that
Lakian had proved that three of those were defamatory n3 and published with
the defendants' knowledge of their falsity or while having serious doubts
about their truth. n4 The jury further answered "-0-" to the question: "What
amount of money would fairly and reasonably compensate the plaintiff for any
actual injury he has proved [*381] he has suffered as a proximate result of
the publication of the portion(s) identified in your answer [to the previous
question, that is, identified as defamatory and published with actual
malice]?"
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n3 Each of the false, defamatory paragraphs related to Lakian's alleged
misrepresentations concerning the annual income of his investment management
firm. These paragraphs were:
"A month ago, Lakian told The Globe that his investment management firm
generated annual fees of between $ 4 million and $ 5 million. Pressed on that
point this week, he conceded that those fees last year may have been under $ 3
million."
"Just last month, Lakian told The Globe that his firm, Fort Hill Investors
Management Corp., earned fees of $ 4 million to $ 5 million a year."
"Lakian, pressed on that point this week after a Globe review of US Securities
and Exchange Commission documents showed that his fee schedules were lower
than he had stated, acknowledged that those figures were too high. He
initially said a more correct range would be $ 2.5 million to $ 4 million.
Later, he said that $ 2 million to $ 3.3 million 'would be a better
bet.'" [***4]
n4 The Supreme Court of the United States has held that a public official who
seeks to recover significant damages in a libel action must by clear and
convincing evidence prove that the statement was published with "actual
malice," that is, "with knowledge that it was false or with reckless disregard
of whether it was false or not." New York Times Co. v. Sullivan,
376 U.S. 254, 279-280, 285-286 (1964). Cf. Curtis Publishing Co. v.
Butts, 388 U.S. 130, 162-165 (1966) (Warren, C.J., concurring) (extended
to public figure).
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The trial judge authorized entry of a judgment declaring that Lakian should
recover nothing, dismissing each count of the amended complaint, and awarding
the defendants their statutory ("token") costs under G. L. c. 261, § 23 (1984
ed.), and no discretionary costs. Lakian has appealed contending that, in
response to the jury's special verdict, the judge was bound to enter a
judgment on the libel count awarding him nominal damages and costs. We granted
Lakian's application for direct appellate review and now affirm the judgment.
Lakian's argument is that, once [***5] the jury found that the defendants had
published false, defamatory statements with knowledge of their falsity or
while having serious doubts about their truth, he was entitled to an award of
nominal damages as a matter of law. This argument assumes that, under the
common law of the Commonwealth, a libel plaintiff who proves a publication to
be false, defamatory, and made with malice is at least entitled to nominal
damages and further assumes that constitutional rights of free speech and free
press do not forbid an award of nominal damages to a public figure plaintiff
such as Lakian.
The common law recognized liability for libel from the publication of a false
statement which tended "to hold the plaintiff up to scorn, hatred, ridicule or
contempt, in the minds of any considerable and respectable segment in the
community." Stone v. Essex County Newspapers, Inc., 367 Mass.
849, 853 (1975). See Ingalls v. [**1048] Hastings & Sons
Publishing Co., 304 Mass. 31, 33 (1939). n5 Awards of substantial sums for
presumed damages could be upheld at common law without proof that the [*382]
libeled plaintiff had suffered any special harm or any injury to reputation.
[***6] See Restatement (Second) of Torts § 621 comment a (1977); W.L.
Prosser & W.P. Keeton, Torts § 112, at 795 (5th ed. 1984). See also Carey
v. Piphus, 435 U.S. 247, 262 (1978). Further, there is authority
requiring the award of at least nominal damages to any plaintiff who proves
that he was defamed by the publication of false statements of fact. See
Jackson v. Longcope, 394 Mass. 577, 579 (1985) ("[A] libel
plaintiff who cannot prove damages is normally entitled to an award of nominal
damages if he establishes that he was libeled . . ."); Godin v.
Niebuhr, 236 Mass. 350, 353 (1920); W.L. Prosser & W.P. Keeton, Torts §
116A, at 845 (5th ed. 1984); Restatement (Second) of Torts § 620 (1977).
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n5 The common law simply assumed the existence of damage from the publication
of a false statement that tended to hold the plaintiff up to scorn or contempt
in the minds of a considerable and respectable segment of the community. W.L.
Prosser & W.P. Keeton, Torts § 112, at 795 (5th ed. 1984). Damage was not an
element of a cause of action for libel because the publication itself was an
injury. Restatement of Torts § 569 comment c (1938); 2 F. Harper & F. James,
Torts § 5.30, at 251 (2d ed. 1986).
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We need not decide in this case whether constitutional rights of free speech
and free press restrict common law principles so as to forbid the award of
nominal damages to a public figure plaintiff in the absence of proof of actual
damages. n6 Lakian accepted as a premise for his right to a favorable judgment
that he must prove that he sustained actual injury. He eschewed reliance on
the presumption of actual injury which the common law recognized and which
free press principles may or may not [*383] tolerate when the question is
the award of nominal damages to a public figure libel plaintiff. Without
objection, the judge instructed the jury that Lakian had to prove "that he
suffered actual injury or harm as a proximate result of the publication in
question." Again without objection, the judge told the jury that they could
award nominal damages if they found that Lakian suffered some actual injury
but that the proven actual injury was so insignificant as not to be reasonably
measured in dollars. n7 Lakian did not request that the jury be advised that
they must find nominal damages in such circumstances.
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n6 After Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), this
court undertook to "reaffirm" controlling principles on the subject of damages
in libel actions in Stone v. Essex County Newspapers, Inc., 367
Mass. 849, 860-861 (1975), and made no mention of nominal damages. We did
assert that a "plaintiff's recovery is limited to actual damages, which are
compensatory for the wrong done by the defendant." Id. at 860. The
Supreme Court of the United States has not decided whether the protection of
First Amendment rights bars recovery of nominal damages against a newspaper by
a public figure plaintiff who proves publication of a false, defamatory
communication with actual malice but fails to prove that he sustained any
actual injury. One Federal District Court judge has held that, as a matter of
Federal constitutional law, nominal damages may not be recovered in such
circumstances. Schiavone Constr. Co. v. Time, Inc., 646 F. Supp.
1511, 1518-1519 (D.N.J. 1986). See also Jackson v. Longcope, 394
Mass. 577, 580 (1985), stating that a libel-proof public figure plaintiff is
not entitled to maintain an action solely for nominal damages. It has been
suggested, however, that when a defendant has published a defamatory, false
communication with actual malice, nominal damages are recoverable. Restatement
(Second) of Torts § 620 comment c, at 319 (1977). See Buckley v.
Littell, 539 F.2d 882, 897 (2d Cir. 1976), cert. denied, 429 U.S. 1062
(1977). [***8]
n7 The judge's words on nominal damages were: "If the plaintiff proves that a
defendant is liable for damages, and that he has suffered some actual injury,
but you conclude that there is no proof of serious harm to the plaintiff, and
that the proven actual injury is so insignificant as not to be susceptible to
reasonable translation into dollars, you may award nominal damages. The term
'nominal damages' means damages in name only, and can be represented, if
awarded, by a token sum."
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Under these instructions, the jury answered "-0-" when asked what amount of
money would compensate Lakian for any actual injury he had proved. This was
the only question which could have provided a [**1049] jury determination
that Lakian was entitled to nominal damages. Lakian did not object to the form
of this question or to the absence of a question directly related to nominal
damages. Because of the manner in which the case went to the jury, considering
both the judge's charge and the form of the special verdict questions asked,
the jury's answers justified the entry of a judgment dismissing the libel
count. [***9] Lakian abandoned whatever presumption of actual injury
survives today for a public figure libel plaintiff that would require the
award of nominal damages on proof solely of falsity, defamation, and actual
malice. He accepted submission of the case to the jury on the basis that he
would obtain an award of nominal damages only if the jury found that he
sustained actual injury. n8
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n8 There is from the jury's answer of "-0-" damages an implication, although
it is not compelled, that the jury declined to award nominal damages because
the defamatory, false portions of the Globe article caused no injury to Lakian
when considered in connection with numerous other true but derogatory
statements in the article. Just because the jury found various allegedly
defamatory statements not proved to be false, we cannot properly assume that
the jury found those statements to be true. It is, however, a reasonable
prospect, in light of Lakian's recorded admissions of error and of documentary
proof on other matters, that the jury found that the demonstration of Lakian's
embellishment of the truth in other respects made the defamatory false
statements of no effect on Lakian's reputation among readers of the article.
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[*384] In the circumstances, the failure to award nominal damages would not
be reversible error, even if under Mass. R. Civ. P. 49 (a), 365 Mass. 812
(1974), Lakian was entitled to entry of such a judgment in the trial court.
Cf. May v. Gillette Safety Razor Co., 18 Mass. App. Ct. 916
(1984) (personal injury action). Lakian could not properly receive statutory
costs if he were to obtain a judgment in a nominal amount (see G. L. c. 261, §
4 [1984 ed.]), nor are there any discretionary costs he claims he would have
had an opportunity to receive if he had received a nominal award. His sole
goal is a judgment of vindication in a nominal amount. Such a judgment would
add nothing, however, to what he has obtained from the answers the jury
returned. Whatever vindication Lakian is entitled to claim comes from those
answers. This appeal is inappropriate when the most Lakian could recover is $
1.00. See Jackson v. Longcope, 394 Mass. 577, 580 (1985). To
paraphrase our Jackson opinion, "we accept the principle that [a public
figure libel plaintiff who has shown no actual injury] is not entitled to
burden a defendant with [an appeal] in which the most favorable [***11]
result the plaintiff could achieve is an award of nominal damages." Id.
Judgment affirmed.