In March of 2007, Brad Delp, the legendary lead singer of the band Boston, committed suicide. Last November, Massachusetts’s highest court of appeals dismissed a defamation lawsuit by band member Donald Thomas Scholz, who claimed that the Boston Herald and Delp’s ex wife Micki falsely blamed Scholz for Delp’s suicide. Three days prior to the suicide, Scholz, a perfectionist who treated Delp and other band members harshly, had informed Delp that Fran Cosmo, another band member with the ability to cover Delp’s painfully difficult high notes, had been disinvited from Boston’s summer tour. Delp had been lamenting Scholz’s tight control over him and discussed suicide as a way to avoid disappointing Scholz and Boston’s fans. However, Delp also suffered from mental illness, and, just eight days prior to the suicide, Delp was caught secretly videotaping the bedroom where his fiance’s younger sister, Meg, lived with her boyfriend. This incident distressed Delp greatly, and both Meg and her sister Pam feared for Delp’s safety.
Because the exact reasons for Delp’s suicide are unknown, the Massachusetts Supreme Judicial Court held that statements about Delp’s motive were matters of speculation or interpretation, protected by the First Amendment from defamation lawsuits. The SJC also concluded that Herald headlines such as “Pal’s snub made Delp do it: Boston rocker’s ex-wife speaks,” are not reasonably interpreted as fact because readers do not expect newspaper headlines, especially those in entertainment news columns, to “include nuanced phrasing.” The SJC opinion, which confusingly interweaves the Massachusetts requirements for bringing a defamation action and the First Amendment protections that shield particular libel suits, glosses over significant questions such as how misleading headlines can be, how much responsibility newspapers have in ferreting out other causes in cases involving motive, and when the cause of someone’s suicide contains objectively verifiable facts. The Supreme Court, which has not reviewed a defamation case in 25 years, should use this case to clarify some important tensions in defamation law.
Defamation lawsuits implicate the precarious balance between private reputational interests and the public First Amendment value in disseminating and receiving information. These suits are uniquely difficult to win in America, especially when a public figure is the plaintiff and the media is a defendant. Public figures sacrifice some degree of reputational privacy and have the ability to use the media to engage in counterspeech to vindicate their interests. However, although First Amendment doctrine protects defendants against civil damages for libel, free speech values are also protected by defamation suits. Spreading misleading information pollutes public discourse. Nonetheless, the Supreme Court provides breathing room for newspapers to get information wrong to avoid chilling speech that newspapers reasonably believe is correct. As a result, a public figure such as Scholz can win a defamation suit against the Herald only if Scholz can prove that the Herald (and/or Micki Delp) uttered statements that they either knew were false or recklessly disregarded their veracity.
Although not a model of clarity, the SJC appears to have based its decision on the fact that the reason for Delp’s suicide is not a fact that can be either proven or disproven, and thus speculation about a suicide motive receives the full constitutional protection of ideas, opinions, or theories. Opinions are not constitutionally insulated from defamation suits if they are impliedly based on false facts – such as “I believe Erica Goldberg is a shoplifter,” but they are constitutionally protected if the facts are disclosed and non-defamatory, such as “I believe Erica Goldberg is a bad teacher because she uses the Socratic method.” In this case, the SJC held that both Micki Delp and the Boston Herald fully disclosed all of the facts upon which their suicide-motive speculation was based, and, because no one can ever know the reason for someone’s suicide except in cases where the reason is “manifestly clear and unambiguous,” suicide motives should be treated as fully protected opinions, nonactionable in defamation cases.
At first blush, this analysis seems fine, but subtle questions remain. Given that the First Amendment already protects defendants from lawsuits by public figures unless the defendants are acting recklessly with regard to the truth, couldn’t motive be considered a fact in the same way that whether someone has a sincere religious belief, or whether someone intended to defraud or perjure himself, or whether a criminal defendant premeditated a murder, is a fact? The mens rea requirement in defamation actions will already protect defendants (and First Amendment values) in cases where someone’s exact motive is complex and unknowable. In this case, however, there is some evidence that Micki was trying to damage Scholz’s reputation by blaming him for the suicide.
Further, the petition for certiorari to the Supreme Court and its response in opposition differ in portraying how much Micki and the Herald knew about the secret videotaping incident while continuing to advance the theory that Scholz was closely connected to Delp’s suicide. This raises the question of what responsibility newspapers have to investigate alternate theories when speculating on “unverifiable facts” about motive. The Supreme Court has held that, “[e]ven if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact.” (emphasis added here) Under this analysis, can a newspaper (or an ex wife) be liable for an opinion when it gives some facts on which it bases its opinion but leaves out incredibly important facts – such as other pressing reasons for Delp’s suicide? If Micki and the Herald didn’t know about the secret videotaping, these defendants could potentially get summary judgment based on a lack of reckless disregard for the truth. But what if the Herald did know and chose not to report on Delp’s great shame in secretly videotaping his fiance’s sister? Claiming that the reasons for suicide are so speculative as to be opinion, in the same way that my view that “The Voice” is an excellent television program is an opinion, isn’t analytically satisfying.
In the end, the SJC may have gotten this case right. Perhaps even sending a case like this to a jury to determine whether the reason for Delp’s suicide is verifiable will chill too much speech – even if liability is never assigned. In the end, many of the possible reasons for Delp’s suicide have now come out, and the self-help theory of defamation involving public figures may have worked to redeem Scholz (although now more is known about Scholz’s abusive tactics as a Boston member as well). Suicide is complex, and usually involves multiple causal factors even if one or two are the most immediate, pressing, potentially but-for causes. Perhaps reasonable readers understand that statements regarding suicide motive are generally opinion, thus removing some of the private reputational concern and allowing First Amendment freedoms to flourish.
However, one of the most interesting parts of the petition for certiorari is the assertion that most suicides are caused by mental illness, and that the media often concocts sensationalist, oversimplified stories of teens who kill themselves due to cyberbullying or other single-factor causes. Headlines intended as “click bait” distort the complex mechanisms that lead to suicide. Although I generally believe that the media can and should police its own credibility, and that courts should give the media space to engage in speech and counterspeech until the truth comes out, the motive behind a suicide is not utterly unfalsibiable in the same way as a value, an opinion, or a preference. The Supreme Court should use this case as a vehicle to clarify the role of defamation in producing the best, most accurate speech – both by holding newspapers responsible for recklessly false speech and by staying out of newspapers’ way in complex cases.