Veilleux v. National Broadcasting Co.

United States Court of Appeals
For the First Circuit

No. 98-2104

RAYMOND VEILLEUX, KELLY VEILLEUX and PETER KENNEDY,

Plaintiffs, Appellees,

v.

NATIONAL BROADCASTING COMPANY, ALAN HANDEL and FRED FRANCIS,

Defendants, Appellants.

No. 98-2176

RAYMOND VEILLEUX, KELLY VEILLEUX and PETER KENNEDY,

Plaintiffs, Appellants,

v.

NATIONAL BROADCASTING COMPANY, ALAN HANDEL and FRED FRANCIS,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

Before

Boudin, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.
 William D. Robitzek with whom Berman & Simmons, P.A. was on
brief for plaintiffs.
Kenneth A. Cohen with whom John C. Englander and Goodwin,
Procter & Hoar LLP, Richard Cotton, Susan E. Weiner, Daniel M.
Kummer, National Broadcasting Company, Inc., Bernard J. Kubetz
and Eaton, Peabody, Bradford & Veague, P.A. were on brief for
defendants.

March 6, 2000
 CAMPBELL, Senior Circuit Judge. Defendant-appellants

National Broadcasting Company, Inc. [“NBC”], Alan Handel, and

Fred Francis [collectively, “defendants”] appeal from jury

verdicts totaling $525,000 in the District Court for the

District of Maine. Plaintiff-appellees Peter Kennedy, Raymond

Veilleux, and Kelly Veilleux [collectively, “plaintiffs”] sued

defendants under diversity jurisdiction on state-law claims of

defamation, misrepresentation, negligent infliction of emotional

distress, invasion of privacy, and loss of consortium.

Plaintiffs alleged that defendants portrayed them in

a distorted, untrue manner in a “Dateline NBC” television

program concerning the perils to highway users caused by tired

long-distance truck drivers. The program prominently and often

unflatteringly featured Kennedy, a truck driver, as he drove a

tractor-trailer across the country in the employ of Ray

Veilleux’s trucking company.

Plaintiffs say their voluntary participation in the

program was enlisted by defendants’ false promises that the show

would not include a group critical of the trucking industry,

Parents Against Tired Truckers (“PATT”), and would portray

trucking in a “positive” light. To plaintiffs’ dismay, Kennedy

was depicted as an unsafe truck driver who regularly violated

federal regulations and who used illegal drugs shortly before

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the program was filmed. The program suggested that many

truckers and trucking companies engaged in similar illegal and

dangerous practices in order to meet deadlines, and portrayed

Ray as tolerating or encouraging such conduct.

Defendants contend that there was insufficient

evidentiary support for the jury’s verdict on the many claims,

and this appeal gives rise to numerous complex factual and legal

issues. We find adequate evidence to support part of the

plaintiffs’ misrepresentation claim, but otherwise we reverse

the judgment below and remand, in part, for further proceedings.

Moreover, we reject plaintiffs’ cross-appeal, which was

conditioned upon our reversal of the judgment.

I. FACTUAL BACKGROUND

The following facts are undisputed unless otherwise

indicated. On April 19 and 26, 1995, Dateline NBC, an hour-long

news magazine program produced by NBC News, broadcast two

reports concerning the long-distance trucking industry entitled

"Keep on Truckin’” and "On the Road Again" (“the program" or

“the report”). The program emphasized the pressures on

long-distance truckers, the danger posed by truck-driver fatigue

to others on the nation’s highways, and the disregard of federal

"hours of service" and other regulations that govern the

industry. It prominently featured Kennedy, a long-distance

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truck driver who, with his employer, Raymond Veilleux [“Ray”],

allowed a Dateline crew to accompany and film Kennedy on a

coast-to-coast run from California to Maine in September and

October of 1994.

The idea for the Dateline program arose out of a tragic

highway accident that occurred in Maine in October, 1993, in

which four teenagers were killed when their car was struck by a

truck driven by Robert Hornbarger, who later pleaded guilty to

falsifying his driving hours in his logbook. In July, 1994,

Handel, a freelance producer, contacted Dateline to suggest a

possible story concerning long-distance trucking: the proposed

story would be titled “Truckers -- Asleep at the Wheel.”

Dateline approved the story proposal and commissioned Handel to

produce the program. It assigned a Dateline associate producer,

Tracey Vail, to assist Handel, and assigned Fred Francis, a

veteran reporter, to help write the script and be the on-air

voice.1

In August, 1994, Dateline interviewed and filmed

relatives of one of the teenagers who was killed in Maine. The

Izers were the co-founders of Parents Against Tired Truckers

("PATT"), a group advocating stronger and better-enforced

1 Vail created a similar story proposal in August, 1994,
titled “Big Rig Deadly Dozing.”

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trucking regulations, including those concerning driving hours.

Dateline then sought a long-distance truck driver who would

allow a television crew to accompany him or her on a

coast-to-coast run. On or about September 20, 1994, Vail

contacted Kennedy. Much of the content of the ensuing

conversations between Vail, Kennedy, Handel, and the Veilleuxs

was disputed at trial.

Kennedy testified that Handel stated that he had “heard

you guys had a lot of negative publicity up there in Maine” and

that “he’d like to do a trip on a truck to see what it was

really like, and do a little thing to put us in a positive

light, instead of all the negative publicity we’ve had.” In

response to Handel’s questions concerning how he “normally”

drove, Kennedy stated that he “occasionally” made minor

falsifications to his logbook.2 Kennedy told Handel that he

would need Ray Veilleux’s approval before participating in the

program.

Ray testified at trial that when Handel contacted him

and his wife, he asked Handel his “intentions” with regard to

the program. Handel responded that Dateline was seeking a

2 Similarly, Vail testified that Kennedy told her before
the filming that in the course of a typical coast-to-coast run,
he would exceed the permissible number of driving hours. This
was disputed at trial.

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company that operated lawfully and safely to show “what it’s

really like to run a trip cross-country.” Ray testified that

Handel agreed that PATT had already gotten enough publicity, and

that he “wanted to show the other side of the coin,” the

“positive side.” Ray’s wife, Kelly Veilleux [“Kelly”],

similarly testified that Handel had stated that he had no

intention of including PATT in the program, and that she and Ray

had made clear that they “did not want to be involved in the

show if PATT had anything to do with it.” Handel did not

disclose that he had already filmed the Izers. At trial, Handel

denied making these representations.

After additional conversations with defendants, Kennedy

and Ray eventually agreed to participate in the program. It was

arranged that Dateline would videotape Kennedy’s departure from

Maine, scheduled for September 22, 1994, but would not otherwise

accompany or film him on his trip to California. Instead,

Dateline’s crew would film Kennedy on the return trip carrying

produce from California to Maine ("the Dateline trip").

The Veilleuxs testified that after Kennedy’s departure

from Maine, Handel called and stated that Dateline wanted to

show Kennedy falsifying his logbook and evading inspection

stations. Ray insisted that he would not agree to engage in

such conduct for the sake of the program and threatened to

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terminate plaintiffs' participation. According to Ray, Handel

withdrew his request and agreed to “do it your way.” Handel

denied that this conversation occurred.

During Kennedy’s westward trip, he was informed by his

dispatcher that he had to go to a medical center in Phoenix,

Arizona, to submit to a random drug test required by federal

law. Kennedy contacted the Veilleuxs and informed him that he

had smoked marijuana at home about ten days earlier. Ray told

him that he must take the test, and that he should proceed with

the Dateline trip. Kennedy and the Veilleuxs did not learn of

the results of the test until after the Dateline trip was

completed.

On September 30, 1994, Kennedy met the NBC crew in

Salinas, California, where he picked up produce. The produce

was scheduled for delivery to Chelsea, Massachusetts, on or

about October 6. The NBC crew, including Dateline correspondent

Fred Francis, accompanied Kennedy, filming and interviewing him

en route. As discussed in more detail below, Kennedy stated in

the interview that he was violating the DOT hours regulations

and falsifying his logbook to cover up the violations.3

3 The hours-of-service regulations are set forth at 49
C.F.R. § 395.3.

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 In mid-October, Kennedy and the Veilleuxs received

notice of the results of the drug test in Phoenix. Kennedy had

tested positive for marijuana and amphetamines. Kennedy

immediately requested a retest of the sample.

Later in the fall of 1994, Vail and Francis received

information that Kennedy was no longer driving for Ray. When

Francis contacted Kennedy, he responded "it's a long story. . .

I can't get into it with you." However, Kennedy later agreed to

meet with Francis and Vail in Portland, Maine, on December 6,

1994, to discuss his employment status. At that meeting,

Kennedy told Francis and Vail that he had tested positive for

amphetamines and marijuana in a drug test administered days

before the Dateline trip. Kennedy testified that this

information was disclosed "off the record," while Francis and

Vail testified that it was not.

Dateline was subsequently provided with a written

statement dated December 19, 1994, prepared by Kennedy in

anticipation of a lawsuit for wrongful termination that Kennedy

considered bringing against Ray. The statement contained

Kennedy's account of the drug test and the circumstances of his

termination. In that statement, Kennedy denied ever taking

amphetamines and discussed the administration of the drug test,

his reaction to testing positive, and his attempts to clear his

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name. Kennedy also stated that Ray had disclosed the results of

the drug test to another employee, who, in turn, had told other

drivers. This written statement was entered into evidence at

trial.

In early January, 1995, Kennedy agreed to be

re-interviewed by Francis on camera. When Francis first

inquired about the drug test, Kennedy stated that he did not

want to discuss it on camera. Kennedy threatened to leave when

Francis stated that the drug test “ha[d] to be” a part of the

program. After proceeding with the interview as to other topics

for several minutes, Francis revisited the issue. This time,

Kennedy admitted that he had failed the test but denied using

drugs. He then discussed his reaction to the discovery that he

failed the test, how he dealt with his employer, and his efforts

to get a second test taken.

The Dateline report was broadcast nationwide on NBC in

two parts on April 19 and 26, 1995. The first part primarily

covered Francis’ cross-country trip from California with

Kennedy; the second part recapped the trip and explored policy

issues relating to long-distance trucking and driver fatigue.

The program featured interviews with a Department of

Transportation [“DOT”] official charged with enforcing trucking

regulations, an expert on sleep deprivation, and PATT members

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whose children had been killed in trucking accidents. It

included statements by Kennedy, including on-camera admissions,

that he had repeatedly violated federal regulations limiting the

number of hours truck drivers may drive and work in a specific

period, falsified his logbooks, and lied to federal inspectors.4

The report also disclosed that Kennedy had tested positive for

marijuana and amphetamines in a random drug test.

Ray testified that he was hospitalized with chest pains

following the first part of the broadcast, and his treating

physician testified that the stress of watching the program

contributed to his illness. Ray also testified that he was

financially damaged by the report, in that the company to which

he had leased his trucks terminated their business relationship,

causing loss of business from some major customers. Ray and

Kennedy testified that their reputations in the industry had

been damaged.

II. PRIOR PROCEEDINGS

On January 17, 1997, Ray and Kennedy filed a diversity

complaint in the district court asserting seven causes of action

4 Plaintiffs alleged that eighteen separate statements
made in the program were defamatory, and the jury identified
thirteen of those statements as supporting their conclusion that
plaintiffs prevailed on their claims of defamation and “false
light” invasion of privacy. The thirteen statements are
addressed below.

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under Maine law, including defamation, fraudulent and negligent

misrepresentation, intentional and negligent infliction of

emotional distress, unreasonable publication of private facts,

and false light invasion of privacy. Kelly brought a claim for

loss of consortium. Defendants moved for summary judgment on

all claims. In a published memorandum and order, Veilleux v.

National Broadcasting Co., Inc., 8 F. Supp.2d 23 (D. Me. 1998),

the district court dismissed Kennedy’s (but not Ray’s) claim for

misrepresentation on the ground that Kennedy had failed to

demonstrate pecuniary loss, as required by Maine law. It also

dismissed all plaintiffs’ claims for intentional infliction of

emotional distress and for punitive damages. The court allowed

the remaining claims to proceed to trial.

In the course of an eleven-day trial, the defendants

moved for judgment as a matter of law at the close of the

plaintiffs’ case. The district court denied that motion. The

jury awarded Ray $150,000 for pecuniary loss on his

misrepresentation claim; $50,000 for physical injury and/or

emotional distress on his negligent infliction of emotional

distress, defamation, and false light claims; and $100,000 for

injury to reputation on the defamation and false light claims.

It gave Kelly $50,000 for loss of consortium. The jury awarded

Kennedy $100,000 for emotional distress on his unreasonable

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publication, negligent infliction of emotional distress,

defamation, and false light claims; and $75,000 for injury to

his reputation on the unreasonable publication, defamation, and

false light. The court entered judgment for plaintiffs on July

8, 1998.

On July 22, 1998, defendants moved again for judgment

as a matter of law, or in the alternative for a new trial or

remittitur. The district court rejected the defendants’ legal

arguments “for the reasons set forth in its summary judgment

memorandum and order and elsewhere in the record,” and held

that, “viewing the trial evidence in a light most favorable to

plaintiffs and drawing all justifiable inferences in their

favor, there is a legally sufficient basis on which a reasonable

jury could have rendered the verdict that this jury did.” The

court also declined to reduce the damages award. Accordingly,

an amended judgment was entered on September 22, 1998. This

appeal followed.

III. SUMMARY OF OPINION

Reviewing the jury’s verdict on each of the counts

under the heightened review standard required under the First

Amendment, see section IV, infra, we hold as follows:

First, we reverse the judgment in favor of Ray and

Kennedy on their defamation claim. See section V, infra.

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Because the allegedly defamatory statements were reasonably

based on Kennedy’s admissions to Dateline or were otherwise

supported or protected, plaintiffs failed to carry their burden

of proving that the statements were materially false and

negligently made as required by Maine law and the First

Amendment.

Second, we reverse the judgment in favor of plaintiff

Ray Veilleux on his misrepresentation claims to the extent it

was premised on defendants’ alleged assurances that the

program’s portrayal of the trucking industry would be

“positive.” See section VI, infra. We believe that Maine

courts would not find actionable such a vague and, in this

context, constitutionally suspect promise. Awarding damages for

misrepresentation based on defendants’ more specific promise not

to include PATT in the program, however, offends neither Maine

law nor the First Amendment, and we remand that portion of the

claim to the district court for further proceedings.5

Third, we reverse the judgment as to Ray and Kennedy’s

negligent infliction of emotional distress claim. This claim

impermissibly circumvents Maine’s express limitation on the

5 We also deny Kennedy’s cross-appeal on this claim, in
which he contends that the harm to his reputation was sufficient
to permit him to state a misrepresentation claim under Maine
law.

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underlying misrepresentation tort, which confines damages to

pecuniary harm. Moreover, plaintiffs have not established a

unique relationship between the parties, as required by Maine

law, through which defendants may be held responsible for

harming plaintiffs’ emotional well-being.

Fourth, we reverse the invasion of privacy judgment in

its entirety. See section VIII, infra. Under one theory,

Kennedy contended that defendants’ disclosure of his drug test

results amounted to actionable “unreasonable publication.”

Because Kennedy’s drug use was closely related to the theme of

highway safety, an issue of public concern featured in the

Dateline program, we conclude that the First Amendment protects

defendants’ publication. Kennedy and Ray’s “false light” theory

of invasion of privacy also fails, for the same reasons we

reverse the defamation judgment, as these causes of action

overlap in their relevant constitutional requirements.

Finally, we vacate and remand Kelly Veilleux’s loss of

consortium claim for further proceedings in the district court,

as her claim is entirely dependent on the outcome of Ray’s

claims. See section IX, infra. We also reject plaintiffs’

cross-appeal for punitive damages, on the ground that they did

not adduce sufficient evidence of common-law malice. See

section X, infra.

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 IV. STANDARD OF REVIEW

Defendants contend that the evidence was insufficient

for submission of plaintiffs’ claims to the jury. In weighing

such a contention in the ordinary case, we would review the

evidence in the light most favorable to the prevailing

plaintiffs, drawing all reasonable inferences in their favor.

See McMillan v. Massachusetts Soc'y for the Prevention of

Cruelty to Animals, 140 F.3d 288, 299 (1st Cir. 1998) (quoting

Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 436 (1st

Cir. 1997)). Reversal would be in order only if the evidence,

so viewed, would not have permitted a reasonable jury to find in

favor of the plaintiffs on any permissible theory. See Andrade

v. Jamestown Hous. Auth., 82 F.3d 1179, 1186 (1st Cir. 1996);

Conway v. Electro Switch Corp., 825 F.2d 593, 598 (1st Cir.

1987).

Deference to the jury is muted, however, when free

speech is implicated. See Levinsky’s, Inc. v. Wal-mart Stores,

Inc., 127 F.3d 122, 127 (1st Cir. 1997) (citing Bose Corp. v.

Consumers Union of United States, Inc., 466 U.S. 485 (1984)).

In cases raising First Amendment considerations, appellate

courts must conduct an “independent review of the evidence on

the dispositive constitutional issue.” Bose, 466 U.S. at 508.

Appellate courts -– especially but not only the Supreme Court -–

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have been assigned this obligation in order to safeguard

precious First Amendment liberties. See id. at 511; Duffy v.

Sarault, 892 F.2d 139, 145 (1st Cir. 1989). The rule of

independent review applies regardless of whether the fact-

finding function was performed by a court or a jury. See Bose,

466 U.S. at 501.

In Bose, the Supreme Court addressed a determination

of “actual malice” in a bench trial of a product disparagement

claim. The petitioner challenged the First Circuit’s application

of a de novo standard in reviewing that determination, arguing

that Fed. R. Civ. P. 52(a) prescribed a clearly-erroneous

standard of review. See Bose, 466 U.S. at 498-99. Citing the

defamation case of New York Times Co. v. Sullivan, 376 U.S. 254

(1964), the Court held that a standard of “independent review”

was appropriate as a matter of federal constitutional law,

trumping Fed. R. Civ. P. 52(a). Bose, 466 U.S. at 511.

Following Bose, this court, like other courts of

appeal, has extended the independent review rule well beyond

defamation claims. We have stated that "where the trial court

is called upon to resolve a number of mixed fact/law matters

which implicate core First Amendment concerns, our review, at

least on these matters, is plenary." United States v. Amirault,

173 F.3d 28, 32 (1st Cir. 1999) (quoting AIDS Action Comm. of

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Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1, 7 (1st Cir.

1994)). Accordingly, we have applied a heightened standard of

review to several types of constitutional claims. See, e.g.,

Amirault, 173 F.3d at 33 (determination that photograph met

definition of “lasciviousness”); AIDS Action, 42 F.3d at 7

(findings that state agency’s rejection of condom advertisements

was content-based and that MBTA cars are public fora); Duffy,

892 F.2d at 145 (findings as to what constitutes protected

speech in public employee discharge case).

Independent review is subject to limitations, however.

First, a court of appeals will not conduct a plenary review of

the entire record. The Bose Court limited the scope of the

independent review:

The independent review function is not
equivalent to a "de novo" review of the
ultimate judgment itself, in which a
reviewing court makes an original appraisal
of all the evidence to decide whether or not
it believes that judgment should be entered
for plaintiff.

466 U.S. at 514 n.31. Second, the reviewing court does not

extend the independent review standard to all determinations

concerning a particular legal claim, but only to those that

specifically involve the application of First Amendment law to

specific facts. See id.; Amirault, 173 F.3d at 32-33; Duffy,

892 F.2d at 145. Purely factual determinations, particularly

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those involving the credibility of witnesses, remain best

addressed by the factfinder, and are subject to the usual, more

deferential standard of review. See Duffy, 892 F.2d at 145.

We review the contested issues in this appeal under

these standards.

V. DEFAMATION

The jury found that plaintiffs had proven that thirteen

of the eighteen statements submitted to it were defamatory, and

that defendants had acted with actual malice.6 Accordingly, it

awarded Kennedy and Ray Veilleux damages for reputational harm

and emotional distress; it awarded Ray pecuniary damages as

well. Because the jury found actual malice, the district court

permitted it to award presumed as well as actual damages.

Defendants contend that plaintiffs failed to prove

falsity and negligence as to any of the thirteen statements.

They argue that these elements cannot be satisfied, as a matter

of law, because Dateline accurately reported what Kennedy

himself had stated during videotaped interviews. Alternatively,

defendants insist that at least three statements were

constitutionally protected expressions of opinion or figurative

6 Plaintiff-appellee Kelly Veilleux asserted only a claim
for loss of consortium. In discussing defamation and the other
claims apart from loss of consortium, our use of the term
“plaintiffs” refers ordinarily to Kennedy and Ray Veilleux.

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speech, and that others were not “of and concerning” the

plaintiffs. Finally, defendants argue that there was

insufficient evidence of actual malice to permit plaintiffs to

recover presumed damages.

A. Common law and constitutional principles

A common law claim of defamation under Maine law

requires: (a) a false and defamatory statement concerning

another; (b) an unprivileged publication to a third party; (c)

fault amounting to at least negligence on the part of the

publisher; and (d) either actionability of the statement

irrespective of special harm or the existence of special harm

caused by the publication. See Lester v. Powers, 596 A.2d 65,

69 (Me. 1991) (citing Restatement (Second) of Torts § 558).

Under Maine law, a statement is defamatory "if it tends

so to harm the reputation of another as to lower him in the

estimation of the community or to deter third persons from

associating or dealing with him." Bakal v. Weare, 583 A.2d

1028, 1029 (Me. 1990). Allegedly defamatory language must be

“construed in the light of what might reasonably have been

understood therefrom by the persons who [heard] it.” Marston v.

Newavom, 629 A.2d 587, 592 (Me. 1993). A defamation claim may

not be based solely on a reading that interprets the language in

the most negative way possible. See Bakal, 583 A.2d at 1030.

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 The Supreme Court of the United States has determined

that the federal constitution imposes certain requirements on

defamation actions independent of those established by the

state’s own law. See generally Milkovich v. Lorain Journal Co.,

497 U.S. 1, 11-17 (1990). First, where the statements are

uttered by a media defendant and involve matters of public

concern, the plaintiff must shoulder the burden of proving the

falsity of each statement. See Philadelphia Newspapers, Inc. v.

Hepps, 475 U.S. 767, 776 (1986). Second, only statements that

are “provable as false” are actionable; hyperbole and

expressions of opinion unprovable as false are constitutionally

protected. See Milkovich, 497 U.S. at 19-20; Levinsky’s, 127

F.3d at 127. Third, private individuals must prove fault

amounting at least to negligence on the part of a media

defendant, at least as to matters of public concern. See Gertz

v. Robert Welch, Inc., 418 U.S. 323, 347 (1974); see also

Levinsky’s, 127 F.3d at 128 n.4; Restatement (Second) of Torts

§ 580B cmt. c. Fourth, a private plaintiff must prove "actual

malice" to recover presumed and punitive damages for a statement

involving public concern. Levinsky’s, 127 F.3d at 128 (citing

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.

749, 756-57 (1985)). Insofar as the jury’s verdict raises

questions of compliance with these constitutionally-mandated

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elements, it warrants independent review. 7 See Harte-Hanks

Communications, Inc. v. Connaughton, 491 U.S. 657, 685 (1989).

Before turning to the broadcast statements themselves,

we note that as each related to the risks that long-distance

truckers pose to other drivers on the nation’s highways, they

unquestionably involved a matter of public concern. It was

therefore plaintiffs’ constitutional burden to show the falsity

of each statement, and our duty, on appeal, to independently

verify that this burden was met. See Hepps, 475 U.S. at 776.

Falsity “overlooks minor inaccuracies and concentrates upon

substantial truth.” Masson v. New Yorker Magazine, Inc., 501

U.S. 496, 516 (1991). Where a defendant alters a speaker's

words but effects no material change in meaning, the speaker

suffers no injury to reputation that is compensable under the

law of defamation. See id. A statement is not false unless it

"would have a different effect on the mind of the reader from

that which the pleaded truth would have produced." Id. at 517

(internal quotations omitted); see also Restatement (Second) of

Torts § 581A cmt. f (1977) (it is not necessary to establish the

literal truth of the precise statement made; slight inaccuracies

7 Hence we must independently review, inter alia, whether
plaintiffs established that defendants were at least negligent
in making the statements, as this is a constitutional
requirement (as well as a necessary element of proof under Maine
law).

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of expression are immaterial provided the defamatory charge is

true in substance).

B. Regulatory violations: Category 1

On appeal, defendants have grouped the thirteen

broadcast statements for which they were found liable into four

categories, groupings we shall follow in this opinion. The

statements in Category 1 include Dateline’s broadcast assertions

of Kennedy’s violation of federal regulations as to his hours

and his logbook. Defendants contend that each of their

statements was truthfully, or at least non-negligently, based on

Kennedy’s own admissions made before the broadcast. Hence,

according to defendants, the statements could not justify the

jury’s finding of defamation.

In the first of the Category 1 statements, identified

as statement (C), Dateline describes the portion of Kennedy’s

trip from Phoenix to Salinas, where he met the Dateline crew

before proceeding to Reno:

(C) "Kennedy started this trip in Maine and
drove
six days to Denver and on to Phoenix. After
a drive that long, federal regulations
required Kennedy to spend a day off the
road, resting. Instead, ignoring the law,
on his seventh day on the road, he's come
straight to Salinas, California." [later]
"After driving west all the way across the
country in seven days, Kennedy now has just
six days to deliver his load back east from
Salinas, California, to Boston . . . "

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 [later] "In fact, regulations required
Kennedy to sleep before leaving Salinas,
because he spent twelve hours loading."
[later] "So on his eighth day on the road,
Kennedy heads out without any sleep at all."

Defendants insist that all of statement (C) was substantially

accurate, having been based on Kennedy’s own taped statements to

Francis after he met the Dateline crew in California.

Statement (C) can be split into four parts. The first

concerns the alleged illegality of Kennedy’s driving from

Phoenix to Salinas (with a stop in Wheeler Ridge, California, to

sleep) without spending a day “off the road.” 49 C.F.R. §

395.3(b)(2) (1994) sets forth the “seventy-hour rule,” in which

a driver cannot drive after being on duty for seventy hours

within an eight-day period. The relevant eight-day period

revolves, such that each day, the driver subtracts from his or

her total hours the on-duty hours accrued nine days previously.

The record cannot be said to establish definitively

whether Kennedy in fact “ignored the law,” viz. violated the

seventy-hour rule in driving to Salinas from Phoenix. Kennedy

testified at trial that, upon redoing his logbook, he concluded

that he had enough hours remaining to drive legally from Phoenix

to Salinas without taking a day off. However, Kennedy’s

admissions, made in the recorded interviews prior to the airing

of the Dateline program, support the broadcast statement.

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Plaintiffs have not proven fault, as required by Maine and

federal constitutional law, if defendants’ report was reasonably

based upon information the plaintiffs gave them even if later

the truth of the information becomes questionable. See Courtney

v. Bassano, 733 A.2d 973, 976 (Me. 1999) (plaintiff not

negligent for purposes of Maine defamation law because she had

“reasonable basis” for her statements); see also Penobscot

Indian Nation v. Key Bank of Maine, 112 F.3d 538, 559-61 (1st

Cir. 1997).

Here, defendants’ report was supported by a recorded

interview with Kennedy, not included in the program, in which

Kennedy told Francis that he did not have “enough hours” to get

from Phoenix to Salinas. In addition, the following further

exchange between Francis and Kennedy further supported the

broadcast report:

Kennedy: So we'll say that I had eleven hours
available. You know, Okay. So I have a seven-hour
ride to get to the L.A. area or the produce area to
get my produce. Well, when I get there I got sixty-
seven or sixty-eight hours or something like that.
Okay? We'll say -- but that night I don't pick up any
hours cause it was the eighth day back home, you know,
eight days back, I was off. So it's a zero, nothing
comes off.
Francis: The next day at midnight zero again?
Kennedy: Nothing comes off. And I still only have
three
hours available. What can I do? I gotta sit for two
days to get enough hours to load to get started back
home again.
Francis: What you did was what all drivers do? Right?

-25-
 And what is that? You didn't sit for two days?
Kennedy: No.

Based upon the above exchange, defendants could have reasonably

understood that when Kennedy reached Los Angeles he had already

driven for sixty-seven or sixty-eight hours, and that since he

still had approximately three hundred miles to go before

reaching Salinas, he would necessarily have exceeded the

seventy-hour maximum by the time he got to Salinas.

To be sure, Kennedy later testified at trial that he

was not in fact legally required to take a day off after

reaching Phoenix, as his further review indicated that he had

enough hours to drive legally from Phoenix to Salinas. But this

post-broadcast recapitulation does not establish that defendants

were negligent in earlier accepting Kennedy’s contrary

admissions. Kennedy had conceded, in interviews taped before

the broadcast, that he did not have enough hours and, absent

reason to disbelieve that version, Dateline was entitled to rely

on it. Plaintiffs point to no facts indicating that it was

unreasonable for defendants to have credited Kennedy’s

admissions at the time of the broadcast; for example, Kennedy

did not inform anyone before the broadcast that he had

miscalculated the hours in his logbook, or of other

circumstances showing that a seventy-hour-rule violation had not

taken place. Plaintiffs have not, therefore, presented evidence

-26-
from which a jury could reasonably conclude that defendants

spoke negligently in this portion of statement (C).8

The next controverted portion of statement (C) was

that, "After driving west all the way across the country in

seven days, Kennedy now has just six days to deliver his load

back east from Salinas, California, to Boston . . . " Plaintiff

Kelly Veilleux, a driver-manager for her husband’s company and

Kennedy’s supervisor at the time of the Dateline run, testified

at trial without contradiction that the time allotted for

Kennedy’s return journey was, in fact, six days. It is hard to

see, therefore, why Dateline’s remark that he “now has just six

days . . .” is untruthful.

Plaintiffs note that Kennedy testified at trial that

he felt no pressure from the client (i.e. the shipper) to

complete the trip within six days. However, Kennedy did not

question that his employer had -– as Kelly Veilleux testified –-

scheduled six days for the run. Moreover, saying that Kennedy

had just six days for the return trip does not disparage Kennedy

or portray him in a negative manner. A too-short deadline would

8 Kennedy testified that the quoted statements were
merely hypothetical discussions of the operation of the seventy-
hour rule, and did not pertain directly to the Phoenix-Salinas
portion of the trip. The record indicates sufficient contextual
specificity, however, such that defendants could have reasonably
believed that Kennedy was describing this particular journey.

-27-
primarily reflect upon whomever imposed the deadline, in this

case his employer, who conceded allotting six days for the

return trip. Thus, in Kennedy’s case, the statement was not

only supported by Kelly Veilleux’s testimony, but failed to

satisfy the requirement under Maine law that it “tend . . . to

harm the reputation of another [so] as to lower him in the

estimation of the community or to deter third persons from

associating or dealing with him." See Bakal, 583 A.2d at 1029.

Kennedy’s employer, Ray Veilleux, was, to be sure, also

one of the plaintiffs, and Dateline’s statement might be seen as

harming him. However, given Kelly Veilleux’s uncontradicted

testimony that six days had been scheduled for Kennedy’s return

trip, we think the record provides insufficient basis for a jury

finding that the Dateline assertion was negligent or materially

false as to Ray. Kennedy’s testimony -- that he felt no

pressure from the client to complete the eastward trip precisely

within six days, i.e. by midnight on October 5, 1994, and that

he could have received an extension of time from the client if

he so requested -- did not controvert Kelly Veilleux’s testimony

that the employer had set a six-day return schedule. We see no

material falsehood. See Masson, 501 U.S. at 517.

-28-
 In the third portion of statement (C), Dateline stated,

"In fact, regulations required Kennedy to sleep before leaving

Salinas, because he spent twelve hours loading." Kennedy

testified at trial, without contradiction, that this statement

was false in that he had spent only three hours loading his

truck. Moreover, the relevant regulations only require that he

take time off, not that he sleep.

The statement as to taking twelve loading hours was

indeed unsupported, and no regulation has been called to our

attention requiring drivers to sleep rather than, in specified

circumstances, to take time off. However, the thrust of the

statement -- that regulations prohibited Kennedy from driving

when he left Salinas -- was amply supported by Kennedy’s taped

statements prior to the broadcast. Not only did Kennedy then

indicate that he was in violation of the seventy-hour rule when

he reached Salinas, but he also stated prior to the broadcast

that leaving Salinas without a break, after having been "up all

day," was "probably illegal." (Kennedy admitted that he did not

sleep until reaching Reno, twenty-two hours after he last slept

in Wheeler Ridge.) Given these admissions, which were not

withdrawn before the broadcast, we do not believe that whatever

inaccuracies existed were sufficiently material to establish

defamation. See Masson, 501 U.S. at 517.

-29-
 The final disputed portion of (C) immediately follows

the assertion that “regulations required Kennedy to sleep before

leaving Salinas.” It states: "So on his eighth day on the road,

Kennedy heads out without any sleep at all." Although conceding

that Kennedy did not sleep in Salinas before heading out,

plaintiffs point out that, before driving to Salinas, he had

slept in Wheeler Ridge, and criticizes as false the assertion

that Kennedy headed out “without any sleep at all.” But we

think the most plausible interpretation of this statement is

that Kennedy did not sleep in Salinas before heading out (a

matter iterated in the preceding sentence) before departing on

the eastbound journey with the Dateline crew. That construction

fits with Kennedy’s statement in an interview that was aired in

the report:

Francis: But why didn’t you take a snooze break before
you left for California?
Kennedy: Never do. I, I get out of here . . .
that’s the way I’ve always done it for years –- I
always get to Reno.

See Bakal, 583 A.2d at 1030 (defamation claim may not be based

on interpretation of language in most negative way possible).

In context, we think the statement was substantially true, hence

not a sufficient basis for finding defamation.

We turn next to statement (M), another of the Category

1 statements upon which the jury found defamation liability.

-30-
This also concerned Kennedy’s violation of regulations relating

to permissible on-duty hours:

(M) "As you will see, incredibly, it will be his
last sleep. As he often does, Kennedy will go
from Chicago to Boston -- eleven hundred miles, a
drive of over twenty hours -- with no sleep."

Plaintiffs contend that Kennedy’s trial testimony that

he napped in Ohio was evidence from which the jury could find

statement (M) to be false. Regardless of whether statement (M)

was literally true, however, the record indicates that Kennedy

made taped admissions prior to the broadcast that fully

supported it at that time. Defendants point to the following

taped colloquy between Francis and Kennedy:

Francis: You, right now, it's almost midnight,
have been awake forty hours.
Kennedy: Yeah.
Francis: How d'you feel? Honest.
Kennedy: Well, I'm tired, but I'm not falling
asleep. I'm not dozing or anything like that.
I'm worn out, you know . . . .
Francis: . . . You think -- you're not fatigued.
Kennedy: No. Programmed.
Francis: You know that a lot of people
listening to this are going to think you're
BS-ing me -- that nobody can drive a big eighteen-wheeler
like that for forty hours from Chicago to Boston and not be
really wiped out.
Kennedy: [Laughing] I'm not bullshittin'. But
I had to do it. To be here, right? . . . It's
routine, that's all I can say, it's routine.

While Kennedy testified at trial that he had, in fact,

napped for a couple of hours in Ohio, he did not make this point

to Francis at the earlier interview when Francis stated that

-31-
Kennedy had been “awake forty hours.” Moreover, Kennedy himself

repeated that statement later, in a taped conversation with his

girlfriend in Waterville, Maine: “Fred says ‘do you realize

you’ve been up for forty-something hours?’. . . yeah, so what?

I mean, I do it all the time.” Defendants could reasonably

rely, in the broadcast, on Kennedy’s version as conveyed to them

then. They cannot be held accountable for corrections to which

Kennedy testified after the broadcast.

We turn next to statement (Q), which further alleged

illegal conduct by Kennedy:

(Q) [Francis to Veilleux:] "[Kennedy] didn't take
the required time off. He made the log up as
he went along so he would look legal."

As discussed above, the statement that “Kennedy didn’t

take the required time off” was supported by Kennedy’s recorded

pre-broadcast admissions; plaintiffs failed, therefore, to make

the necessary showing of negligence. As to whether Kennedy

“made the log up as he went along so he would look legal,"

defendants based their contention on the following taped

statements made prior to the broadcast:

Handel: So here we are, Sunday morning, just
outside of Salt Lake City, Utah . . . and
you're just sitting in your cab doing what?
Kennedy: Falsifying my log book. . . . I have
to do it. You know, there's no way around it.
I have to do it.

-32-
Kennedy also referred to his log book as "a lie book" in which

he had to "incriminat[e] [him]self . . . to make a living."

Moreover, Kennedy indicated that he would create a log of a

fictitious trip in order to conceal his admitted violation of

the seventy-hour rule on the final leg of his journey:

Kennedy: Yeah. . . . Oh, I'll have to make out
a little log book.
Francis: Oh, you'll do this whole fiction all
over again? . . .
Kennedy: What I'll have to do is -- make a
little log: "Left home, took a load of
berries, one to Middleboro, cold storage" or
something like that.

These statements provide ample support for Dateline’s broadcast

assertion that Kennedy falsified his logbook “as he went along

so he would look legal.” Defamation liability cannot be

premised on them.

Another challenged broadcast statement, statement (K),

similarly concerns Dateline’s portrayal of Kennedy’s alleged

failure to take off-duty time as required by law:

(K) "Remember, Kennedy hasn't taken any
time off since he left Maine eleven days
ago. That's blatantly illegal" [later]
"But he hasn't taken any time off
since he began. That's against the
law, and it now appears Kennedy's
headed for trouble."

The truthfulness of this statement turns in part on the

meaning of the phrase “time off.” A reasonable viewer would not

necessarily understand the broadcast to mean that Kennedy had

-33-
not slept for eleven days. The statement more plausibly

indicates that Kennedy had not had taken any significant amount

of time off-duty during the trip, or perhaps that he had driven

every day since leaving Maine.

In describing the conduct as illegal, defendants could

reasonably have relied on Kennedy’s admissions of illegality

described supra. Moreover, the statement “hasn’t taken any time

off” was vague and susceptible of more than one meaning.

Defamation liability should not be premised on statements of

such uncertain meaning. See Levinsky’s, 127 F.3d at 129-30; see

also McCullough v. Visiting Nurse Service of Southern Maine,

Inc., 691 A.2d 1201, 1204 (Me. 1997) (visiting nurse, who had

been fired, could not recover for defamation on basis of vague

statement that she was “unavailable” to perform her assigned

visits).

Plaintiffs complain that the voice-over statement was

misleadingly accompanied by an inappropriate videotape of

Kennedy pulled over on the side of the road, supposedly in

nervous anticipation of an inspection station. The footage was,

in fact, taped several days previously, in Salinas. Inaccurate

reportage is not to be condoned and could well be defamatory if

it otherwise met the necessary standards. Plaintiffs fail,

however, to show how the use of the earlier taped scene effected

-34-
any “material change in the meaning conveyed by the statement.”

See Masson, 501 U.S. at 517. We conclude that plaintiffs did

not present a jury question as to statement (K)’s falsity or

defendants’ negligence.

The next statement at issue, statement (A), purportedly

summarizes the illegal activities practiced by Kennedy:

(A) "Almost every time [Peter Kennedy] goes to
work he breaks the law."

This statement is not expressly limited to the several

days that Dateline filmed Kennedy; rather, it appears to

characterize Kennedy’s general driving practices. The question

is whether defendants had sufficient evidence from which to make

such a generalization, not limited to violations of regulations

on the trip with Dateline. Could Dateline reasonably infer from

what it observed and heard about Kennedy’s activities that he

likely broke the law “almost every time [he] goes to work” as

part of his usual truck driving practices?

Several taped admissions allow reasonable inferences

that Kennedy’s regulatory violations were not isolated

instances. Kennedy told Francis that he "can't be reprogrammed,

so I am breaking the law"; that he does “drive over the 10

hours"; and that he "never" took a "snooze break" before

departing California, even though this practice was "probably

illegal." Kennedy also admitted to Francis:

-35-
 Kennedy: I know my limits . . . I can go sometimes --
fifteen hours, twelve hours, eighteen hours --
sometimes only four hours.
Francis: How about twenty hours, forty hours? You've
done that too, right?
Kennedy: Oh, it has been done, oh yeah, yeah, many
times.

With regard to falsifications in his log-book, Kennedy stated on

camera "no one would last doing it legally . . . it would be

over for them." Moreover, Kennedy admitted in his trial

testimony that the statement in the report that he was “used to

going over the ten-hour legal driving limit" was true.

Kennedy argues that defendants possessed ample

information, at the time they made the report, that Kennedy was

normally a safe and law-abiding driver. Kennedy also testified

that the Dateline trip was unusual, and that he violated

regulations only because of delays imposed by Dateline. The

above admissions, however, point to more frequent and regular

violations. For Dateline to say these violations occurred

“almost every time [he] goes to work” is not so far off the mark

as to warrant finding that defendants negligently extrapolated

from the information they possessed at the time they created the

report. Reporters have leeway to draw reasonable conclusions

from the information before them without incurring defamation

liability. Cf. Courtney, 733 A.2d at 976; see also Penobscot

Indian Nation, 112 F.3d at 559-61. We hold that plaintiffs did

-36-
not meet their burden to establish the falsity of the comment

and defendants’ negligence in making it.

The next and final statement in Category 1 also

concerns Kennedy’s alleged law-breaking:

(B) "Kennedy is angry that he has to sidestep
federal rules just about every day he's on the
job; so he allowed DATELINE cameras to record
his journey. It will be a rare look at a
pressure-packed run, with the law being broken
all the way."

There is ample evidence in the record supporting the

veracity of defendants’ statement that Kennedy was angry about

the regulations. In addition to the statements described

above, Kennedy repeatedly expressed on camera his opposition to

federal trucking regulations:

Kennedy: I'm against the system. I'm against
their -- their rules and their regulations, and
invasion of my privacy. And my constitutional
rights are taken right away the minute I walk
in the door of this cab.

Kennedy also referred to the hours-of-service and log-keeping

requirements as "communism" and "regulation-strangulation."

Moreover, he stated to Handel that under the regulations, "we'd

be already a day late for where we're going with a load. The

shelf life would be gone by two or three days by the time we

ever got there legally . . ." This exchange continued as

follows:

-37-
 Handel: So your beef is that in order to do your
job, to earn a living, you got to do something
that's in effect illegal, you got to falsify your
log books?
Kennedy: Right, I do, yes. Or I'll just sit here
and twiddle my thumbs, because I'm out -- I'm out
of hours for the day . . . .

Given these and Kennedy’s other statements, plaintiffs cannot

justify the defamation verdict based upon defendants’ statement

that Kennedy was angry about government regulation.

Plaintiffs contend that defendants falsely drew a

causal link between Kennedy’s “anger” and his agreement to

participate in the Dateline show, and that Kennedy in fact chose

to participate in order to show the positive side of the

trucking industry. Between the broadcast report and plaintiffs’

own briefs, however, a number of motivations have been ascribed

to Kennedy, and the motivation at issue in statement (B)

appears as well-supported by the evidence as any.9 In any event,

the drawing of this connection did not cause plaintiffs to

suffer injury beyond what would have otherwise occurred. See

Masson, 501 U.S. at 516. In the absence of this specific

statement, listeners might have logically concluded from

9 Toward the close of the final segment of the Dateline
report, the narrator states that Kennedy “wanted to show the
pressures that hard-working drivers face.” In their appellate
brief, plaintiffs contend that Kennedy’s motivation was, inter
alia, to show the need for regulatory reform and demonstrate
that the regulations were outdated.

-38-
Kennedy’s comments in the broadcast itself that these stemmed

from his anger at the regulatory system.

As to the reference in statement (B) to “the law being

broken all the way,” this was similar to statement (A), supra.

For the same reasons given in reference to (A), we conclude that

a defamation claim cannot be sustained on that assertion.

(C) Risk and danger: Category 2

A second set of the thirteen statements upon which the

jury premised its defamation verdict concern the risks flowing

from Kennedy’s behavior. Defendants contend that these

statements are constitutionally protected because they are true

or, alternatively, because they described Kennedy’s driving

routine “with some rhetorical flourish, or added an opinion

about the risks on the road.”

This court said in Levinsky’s that “the First Amendment

does not inoculate all opinions against the ravages of

defamation suits.” 127 F.3d at 127. A statement couched as an

opinion that presents or implies the existence of facts that are

capable of being proven true or false may be actionable. See

id. (citing Milkovich, 497 U.S. at 18-19); see also Restatement

(Second) of Torts § 566 (1977) ("A defamatory communication may

consist of a statement in the form of an opinion, but a

statement of this nature is actionable only if it implies the

-39-
allegation of undisclosed defamatory facts as the basis for the

opinion.").

Nonetheless, opinions amounting to "imaginative

expression" and "rhetorical hyperbole" are protected. See

Milkovich, 497 U.S. at 20; Levinsky’s, 127 F.3d at 127. Whether

an opinion is protected hyperbole depends primarily upon whether

a reasonable person would not interpret it as providing actual

facts about the described individual. See Levinsky’s, 127 F.3d

at 131. We now turn to the statements at issue.

(N) “In twenty-seven years of hard driving, Kennedy says
he has racked up over three million miles -– sleeping
less than he should, and gambling that his fatal
fatigue number doesn’t come up.”

Kennedy testified that while it was true he has driven

more than three million miles, the remainder of the statement

was false. He complains that the tape was edited to give the

impression that he admitted to sleeping less than he should and

gambling with lives. Defendants contend that statement (C) is

either true, being based on verifiable facts, or else is a

protected expression of opinion and/or hyperbole.

We find the statement that Kennedy said he was

“sleeping less than he should” to be non-actionable. Kennedy’s

admissions supra regarding lack of sleep and off-duty time

undermine the required finding of negligence. We think there

was a sufficient foundation for this assertion, especially given

-40-
the vagueness of the term “should.” See id. at 129-30 (no

defamation liability based on words that are “highly subjective

and susceptible of numerous interpretations”).

Dateline’s statement that "[i]n twenty-seven years of

hard driving, Kennedy [was] . . . gambling that his fatal

fatigue number doesn’t come up” was, we think, a permissible

summation of Dateline’s evaluation of Kennedy’s driving

practices. See id. at 131. The expression was hyperbolic, but

did not exceed what a journalist, presented with the information

Dateline had about Kennedy, could reasonably report. See id.

This narration was accompanied by film footage of Kennedy

playing a slot machine at a rest stop. We think a reasonable

observer would understand it to be a dramatic expression of

Dateline’s viewpoint that inadequate sleep among truck drivers,

as exemplified by Kennedy, is widespread and dangerous. We do

not believe that the First Amendment allows defamation liability

to be premised on a statement such as (D).

(P) “You met Peter Kennedy, a trucker who says he has to
lie to inspectors to stay on the road . . . But this
stay awake and on the road at all costs mentality has
led to many accidents and deaths.”

Plaintiffs contend that this statement inaccurately

links Kennedy’s lies to accidents and deaths, and leads viewers

to believe that Kennedy personally caused mayhem on the road.

Defendants argue that this interpretation is unreasonable and

-41-
that the latter portion of the statement reflects its protected

opinion about the dangers of violating regulations.

The reference to “lies to inspectors,” standing alone,

is not defamatory, as it is amply supported by Kennedy’s

admissions, described supra, regarding false statements in his

log book. We do not believe, furthermore, that a reasonable

viewer would conclude that Dateline was accusing Kennedy of

personally causing highway accidents and deaths. Rather, this

“stay awake and on the road at all costs mentality” was said to

have “led” to many accidents and deaths, presumably in the cases

of other drivers. The program nowhere reported any accidents or

deaths involving plaintiffs, nor did it accuse plaintiffs of

being so responsible.

Insofar as Dateline was expressing its own opinion as

to a supposed connection between the described “mentality” and

accidents, that expression was constitutionally protected.

Looking at the broadcast in its entirety, defendants’ statement

drew reasonable support from the information presented. Besides

Kennedy’s own admissions and conduct, there were supporting

comments by an expert on sleep deprivation. 10 See Phantom

10 Moreover, Kennedy himself described a connection
between the pressures imposed by compliance with regulations and
accidents:

They don’t have any idea of what it’s like to sit in this

-42-
Touring, Inc. v. Affiliated Publication, 953 F.2d 724, 730 (1st

Cir. 1992) (newspaper piece not defamatory when considered in

context of full disclosure of underlying facts, such that

readers could draw different conclusions). We think that

reasonable viewers would understand this statement, even if

sensationally worded, to be one of viewpoint rather than fact.

We conclude Category 2 with statement (O):

(O) “In just under six days, he has slept only twenty-one
hours, an average of three and a half hours a
day . . . [Peter Kennedy] has broken the law, put
himself and others at risk through dangerously long
hours.”

Plaintiffs do not contend on appeal that the tally of

Kennedy’s sleep in the first sentence of statement (O) is

defamatory; nor do they dispute that Kennedy broke the law.11

Rather, they contest the characterization of Kennedy as putting

people at risk by driving long hours. Defendants reply that

truck for seven hundred miles a day, for five days, and
babysit this load, helping you load, checking your
temperatures, and running and juggling your logs, to be
right –- to be as legal as you can -– stress! Stress
causes fatigue. Fatigue causes sleep. Sleep causes
accidents. It’s the pressure.
11 Plaintiffs contend that Kennedy violated applicable
regulations only once, when he admittedly exceeded the seventy-
hour rule at the end of the eastward trip, between Boston and
Maine. As discussed supra, however, plaintiffs have not
established negligence as to defendants’ reportage of Kennedy’s
law-breaking to the extent reasonably based on Kennedy’s on-
camera admissions at the time.

-43-
Statement (O) expresses Dateline’s protected opinion that

Kennedy’s behavior was risky.

Again, defendants’ statement as to the risk involved

in Kennedy’s activity is not provably false, and was supported

by other information presented in the program from which such

conclusions might rationally be drawn. As to the Dateline

opinion itself –- that driving without much sleep, as Kennedy

did, puts people at risk -- Dateline was entitled to express it.

It was not a view that implied new and additional, or

unsupported, facts about Kennedy.

D. Inspection stations: Category 3

The next category of statements concern the inspection

stations encountered by Kennedy on his eastbound journey with

the Dateline crew.

(H) "As Kennedy heads east through Utah, all the
inspection stations on the trip east have been
closed. He's escaped any scrutiny, and as far as
he's concerned, none is needed."

Plaintiffs argue that this statement is defamatory

insofar as it represents that Kennedy “escaped any scrutiny.”12

Kennedy testified at trial that he did indeed “go through”

inspection stations, while accompanied by the Dateline crew, in

12 On appeal, plaintiffs do not premise their defamation
claim on the portion of statement (H) indicating that Kennedy
believes that his driving needs no scrutiny.

-44-
Utah and Wyoming. In a recorded interview, however, Kennedy

engaged in this dialogue with Francis:

Francis: You’ve just come all the way across the
country and you haven’t been stopped once. What’s
your analysis of that?
Kennedy: Well it’s the first time . . . Not usually
stopped and checked on paperwork [?] but usually
there’s a scale open, but this time I came all the way
across with not one scale open.

Kennedy also conceded at trial that his truck was not weighed

and his logbooks were not inspected at any point in the trip.

In view of the above, it is difficult to fault

defendants for stating that Kennedy “escaped any scrutiny.” It

is, moreover, scarcely a statement that disparages plaintiffs.

Whether all the inspection stations were closed so as to permit

Kennedy to evade scrutiny was not under plaintiffs’ control and

does not reflect on them in a negative way. Hence, it fails to

satisfy the requirement under Maine law that it “tend . . . to

harm the reputation of another [so] as to lower him in the

estimation of the community or to deter third persons from

associating or dealing with him." Bakal, 583 A.2d at 1029; see

also McCullough, 691 A.2d at 1204 (no defamation liability where

challenged statement was no more damaging to plaintiff’s

reputation than the truth would have been). (L) "Kennedy
heads out to discover his fate. If they
check his fuel and toll receipts carefully, they'll
know he doctored his logbook. He'll be put off the
road for a day or two and be late with his
perishable load to Boston. Kennedy and his company

-45-
 will lose money, and maybe a customer." [later]
"Kennedy is about to go through the first open
inspection station so far. Like other truckers, he's
falsified his legal logbook . . . ."

The video footage accompanying this voice-over showed

Kennedy’s truck approach what might have appeared to viewers to

be an inspection station.13 Plaintiffs contend, however, that

the footage depicted a weigh station, not an inspection station.

Moreover, they assert, at this point in the trip, Kennedy’s fuel

receipts were in accordance with his logbook and there had not

yet been any tolls.

This visual deception does not, we think, rise to the

level of defamation. The fact that the video footage was from

a different portion of the trip and showed a weigh station,

while perhaps contrived, is not a falsification material to

plaintiffs’ reputations. Showing footage that accurately

depicted an inspection station would not, in these

circumstances, have had any materially different effect on a

reasonable viewer’s perception of Kennedy.

To the extent that plaintiffs also contend that the

voice-over was defamatory, they have not borne their burden of

13 The footage shows a sign that reads “WEIGH STATION.”
The same signage, however, illustrates the Pennsylvania
inspection station referenced in statement (N), discussed infra;
plaintiffs do not contend that the Pennsylvania station was also
a weigh station.

-46-
proof on the essential elements. As discussed supra, the

portions of statement (L) relating to the lack of open

inspection stations are not harmful to plaintiffs’ reputations.

Furthermore, the references to Kennedy’s falsification of his

logbook were supported, as discussed supra. As to the potential

consequences for plaintiffs of an inspection, defendants

reasonably relied on Kennedy’s own statements, including the

following exchange immediately after passing an inspection

station in Iowa that closed just before Kennedy arrived:

Handel: So you were worried. You were really
worried.
Kennedy: Yeah, 'cause it's just a hassle. You
know, it's just -- they can shut you down there
if they want to. I mean, they can -- and then
I'm -- I've lost eight hours right there if I'm
shut down.

When asked about these statements at trial, Kennedy responded,

"I don't know what I meant." Plaintiffs offer no evidence to

suggest that defendants had any reason to doubt the accuracy of

Kennedy’s statements before the broadcast. In the absence of

defendants’ negligence, statement (L) does not support the

defamation verdict.

(N) "Finally, in Pennsylvania, an open inspection
station. If Kennedy is caught and grounded now,
the whole run will be a disaster. Kennedy and his
company will lose money. He drives in cautiously.
The inspector is nowhere to be seen, and so Kennedy
heads right out the other side."

-47-
 Plaintiffs do not challenge the pictorial accuracy of

the footage accompanying statement (N). Insofar as this

statement speaks of the risks inherent in being “caught and

grounded now,” and the absence of an inspector, it is not much

different than statement (L), hence was not defamatory for

reasons already discussed supra.

Defamation liability cannot rest, moreover, upon the

assertion “and so Kennedy heads right out the other side."

True, viewers could infer from this portion of statement (N)

that Kennedy was relieved not to have to undergo an inspection.

Defendants, however, had ample basis from Kennedy’s admissions

described supra to conclude that he was relieved. A reasonable

viewer would not conclude that it was unlawful or wrong for

Kennedy to head “right out the other side." The inspector was

absent, "and so" Kennedy drove away. The most that can be said

is that, like much reporting of this type, the language has an

ominous tone, perhaps suggesting guilt for unknown reasons.

Here the only guilty party was the absent inspector, who was not

a plaintiff. Statement (N) was not defamatory.

E. Subsequent illegal trip: Category 4

The final statement at issue concerns Ray’s assignment

of an additional coast-to-coast run to Kennedy shortly after the

trip with Dateline:

-48-
 (R) "Just forty-eight hours after getting home, Peter
Kennedy
was ordered illegally without rest to drive back
out west."

Statement (R) appears reasonably based on a written

statement by Kennedy dated December 19, 1994:

I was out of hours, so Ray told me to take a
few days off, but Saturday (2 days later) he
called me and said "do me a favor. Can you
leave Sunday for four drops . . . . I said
yeah, I guess I can start a new log book to do
this trip as I have no hours. I could not
believe they would send me back out knowing
that I had no hours left to drive.

Plaintiffs contend that this statement was controverted

by Kennedy’s trial testimony that he was not “ordered” to go on

the run, but rather agreed to go as a favor to Ray. They also

maintain that the trip was legal in that Kennedy had enough

hours under the pertinent regulations and that he had sufficient

rest in between the trips. Plaintiffs point to no persuasive

evidence, however, that defendants’ reliance on his December

19, 1994, statement was unreasonable.14

14 That the document was delivered by Kennedy’s ex-
girlfriend rather than Kennedy himself did not so undermine the
veracity of the statement as to make it unreasonable for
defendants to rely upon it. Plaintiffs’ argument that
defendants should not have relied upon Kennedy’s written
statement because they had “agreed to keep information ‘off the
record’” also is without merit. Any such agreement concerned
Kennedy’s drug test results, not whether Ray sent Kennedy out on
another run illegally.

-49-
 Kennedy also testified that there were three full days

between when he arrived home from the Dateline run and when he

actually departed on the next trip. However, statement (R) does

not convey that Kennedy actually departed on another trip forty-

eight hours after arriving home, only that he was “ordered” to

go; accordingly, this portion of the statement was not

materially false, as plaintiffs contend.

In sum, none of the statements sent to the jury can

support a finding of defamation under standards consistent with

the federal constitution. We reverse the judgment in favor of

plaintiffs on their defamation claim. Because there is no

surviving portion of the defamation claim to remand to the

district court, there is no need to address the issue raised by

plaintiffs on cross-appeal, namely the required degree of proof

as to the element of falsity.15

VI. MISREPRESENTATION

Ray was awarded damages for negligent and fraudulent

misrepresentation under Maine common law. His misrepresentation

15 Plaintiffs contend in their cross-appeal that the
district court erroneously instructed the jury that they must
find that plaintiffs proved falsity by clear and convincing
evidence; rather, they contend, the correct standard requires
only a preponderance of the evidence. As the instruction on
degree of proof does not change the result of our independent
review, we see no need to reach this question.

-50-
claims were premised on defendants’ statements to him that the

contemplated Dateline program in which he was being asked to

participate (1) would portray the trucking industry in a

positive light; and (2) would not include PATT (the

organization, Parents Against Tired Truckers, formed after fatal

truck accidents to force greater regulatory compliance).16 The

program, in fact, focused on how some truck drivers falsified

logs, drove longer hours than regulations allowed, and used

drugs. Moreover, it showed PATT members, some in footage filmed

before defendants’ alleged assurances, criticizing trucking and

enforcement practices and displaying grief over the loss of

loved ones in accidents caused by fatigued truck drivers.

Defendants contend that the misrepresentations Ray

alleges fall short of Maine common law requirements in that (1)

they were not statements of present fact; (2) they were not

sufficiently specific; and (3) they were not the proximate cause

of Ray’s harm.17 They also maintain that the misrepresentation

16 The district court did not permit Kennedy to submit any
misrepresentation claims to the jury, on the ground that he had
shown no evidence of pecuniary harm, as required by Maine law.
Kennedy contests this ruling on cross-appeal, arguing that the
jury should be allowed to “assess whether any intangible
commercial loss was suffered.” He does not cite any authority
supporting this argument, however, and this court lacks
authority to create the new Maine law rule he proposes.
17 Defendants make no distinctions between fraudulent and
negligent misrepresentation for the purpose of these arguments.

-51-
claims are barred under First Amendment criteria. We consider

these issues in turn, concluding that the representation to

portray the trucking industry in a positive light was too vague

to be actionable under Maine common law, but that the alleged

promise to exclude PATT from the program was actionable under

Maine law and passes muster under First Amendment criteria.

A. Future promises

Traditionally, an action for deceit could be brought

under Maine law only if the challenged misrepresentation was of

past or existing fact, not just of opinion or of promises for

future performance. See Wildes v. Pens Unlimited Co., 389 A.2d

837, 840 (Me. 1978). Even “a preconceived intention not to

perform” was said to be incapable of turning a breach of a

promise not to do something in the future into an action for

deceit. Shine v. Dodge, 157 A. 318, 319 (Me. 1931).

In the Wildes case, however, the Maine Supreme Judicial

Court pointed to a sentence in Shine, supra, as broadening the

blanket rule. Allowing a finding of deceit to be based on a

disingenuous promise of employment, the Wildes court quoted

Shine:

The relationship of the parties or the
opportunity afforded for investigation and
the reliance, which one is thereby justified
in placing on the statement of the other,
may transform into an averment of fact that

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 which under ordinary circumstances would be
merely an expression of opinion.

389 A.2d at 840 (quoting Shine, 157 A. at 318). The court went

on to state:

Plaintiff herein was clearly at the mercy of
the defendant insofar as any representations
made regarding such areas as, among others,
employment opportunities and remuneration.
We find that given the circumstances under
which plaintiff was obliged to make his
decisions, the representations made by Mr.
Forde could well have been justifiably
understood as being of fact and not mere
opinion.

Id. at 840.

While involving an employment relationship, the holding

in Wildes was not expressly limited to that setting. Nor was

the employment relationship noted as determinative in the later

case of Boivin v. Jones & Vining, Inc., 578 A.2d 187, 188-89

(Me. 1990). There, an assurance of continued employment was

also upheld as a basis for a deceit action, notwithstanding the

argument that the promise was unenforceable as being for future

performance. See id. at 188. As in Wildes, the Boivin court

relied on the above-quoted language from Shine. However, it

took the additional step of quoting, without comment, from

section 525 of the Restatement (Second) of Torts, which sets

forth a theory of liability that includes misrepresentations of

opinion and intention as well as of fact:

-53-
 One who fraudulently makes a
misrepresentation of fact, opinion,
intention or law for the purpose of inducing
another to act or to refrain from action in
reliance upon it, is subject to liability to
the other in deceit for pecuniary loss
caused to him by his justifiable reliance
upon the misrepresentation.

Boivin, 578 A.2d at 189 (quoting Restatement (Second) of Torts

§ 525 (emphasis supplied)). We therefore conclude that in

appropriate circumstances, promises concerning future

performance may be sufficiently akin to averments of fact as to

be actionable under Maine misrepresentation law. It is also

possible, but unclear, that Maine will someday move to adopt

section 525 in toto. Looking first at defendants’ alleged

promise not to include PATT in the Dateline program, we believe

this to be a misrepresentation made in circumstances that a

Maine court today would find actionable. Defendants’ statements

concerning PATT can reasonably be considered “specific facts”

about aspects of the program within defendants’ exclusive

control upon which Ray reasonably could have relied. See Schott

Motorcycle Supply, Inc. v. American Honda Motor Company, Inc.,

976 F.2d 58, 65 (1st Cir. 1992). Ray was not in position to know

about, investigate or influence defendants’ inclusion of PATT in

the program; he was “at the mercy of the defendant[s]” with

regard to their representations. Wildes, 389 A.2d at 840.

Indeed, a jury could reasonably find on the present record that

-54-
defendants deliberately concealed from Ray, at the time they

told him that PATT would not be included, the fact that they had

already filmed and recorded taped comments highly critical of

truckers from PATT’s co-founders, the Izer family, in

preparation for use in the projected program. Parts of this

footage were later included, to powerful effect, in the

broadcast program.18 The program therefore was already a work in

progress when the misrepresentation was made. A promise not to

include PATT and the concealment of the prior PATT filming can

be regarded under the rationale of Wildes and Boivin as

pertaining to existing “facts” rather than mere opinions or

projections. Accordingly, we do not think the fact that

defendants’ alleged representation to exclude PATT also

pertained to a time in the future (i.e. when the completed

program would be aired) prevents it from being actionable as a

misrepresentation of fact under recent Maine law.

18 The Dateline show interspersed the Izers’ emotional
statements concerning their son’s death with Kennedy’s comments
indicating that he ignored relevant regulations. For example,
Ms. Izer’s statement that had the trucker who killed their son
gotten enough sleep, “our lives wouldn’t be ruined . . . Jeffrey
and his friends would be here,” was immediately followed by
footage of Kennedy filling out his logbook while singing and
saying “Hey, I have to do what I have to do.” (Dateline also
juxtaposed Kennedy’s comments with statements by Bruce Dubrow,
a proponent of regulatory reform whose son was killed when a
truck driver fell asleep behind the wheel. The program did not
make clear whether Dubrow was a member of PATT.)

-55-
 The situation is, however, much less clear when we turn

to the alleged assurance to present the trucking industry in a

“positive” light. To be sure, that promise also pertained to

matters within defendants’ control as to which plaintiffs had

little opportunity for investigation, but it did not pertain to

a concrete, easily ascertainable fact (such as the fact of

whether or not PATT was included in the program). Rather, it

set forth a vague standard, “positive,” to which defendants’

filmed portrayal of the trucking industry was supposed to

adhere. In the next section, we conclude that such a vague

future criterion, relative to a news broadcast about a matter of

public concern, is insufficient under Maine law to support an

action in misrepresentation.

B. Lack of specificity

As noted supra, Wildes and related state precedent

indicate that the Maine courts today will treat as actionable

promises of future performance that are closely akin to

representations of existing fact. We doubt, however, that

defendants’ alleged promises to show plaintiffs and fellow

truckers in a “positive” light fit into this category.

An initial difficulty is whether the promise to provide

“positive” coverage was unconditional or whether it should be

interpreted as containing an implied condition that plaintiffs’

-56-
own conduct, while driving cross-country under defendants’

scrutiny, must at least be consistent with such favorable

treatment. Dateline is, after all, a news program; reporters do

not normally overlook newsworthy conduct, and it is hard to

imagine that the parties expected positive coverage no matter

how badly plaintiffs later behaved. Here, subsequent to the

alleged promise, Kennedy admitted on camera to various

regulatory violations and to taking illegal drugs. Should the

alleged promise be construed to require defendants to ignore

this evidence of misconduct and to present plaintiffs in all

respects favorably? If we read the promise to contain an

implied condition that plaintiffs behave appropriately in order

to receive positive coverage, then it is hard to see that

defendants can be held liable for misrepresentation. Even had

the promise been initially disingenuous, in that defendants were

“out to get” plaintiffs all along, Kennedy’s voluntary breach of

the implied condition entitled defendants to provide truthful

coverage that was less than positive. In any event, the

difficulty of construing the promise in light of subsequent

events makes it a questionable basis for recovery under Maine’s

evolving law of deceit, unlike the clear-cut representation not

to include PATT in the program. See Wildes, 389 A.2d at 840.

-57-
 The promise to provide positive coverage might, indeed,

be viewed as more akin to “puffing” or “trade talk,” which we

held in Schott would not support recovery in fraud. 976 F.2d at

65. We determined in Schott that the plaintiff franchisee could

not have reasonably relied on a defendant franchiser’s

statements that new products would increase sales in the coming

years and that it would continue to be committed to the

motorcycle market. See id. We thought that the plaintiff

“could not have justifiably understood the alleged

misrepresentations to be assurances as to specific facts, rather

than mere opinion.” Id.

The Seventh Circuit, in Desnick v. Am. Broad. Cos.,

Inc., 44 F.3d 1345 (7th Cir. 1995), likened journalists’ promises

of this nature to “puffery”:

Investigative journalists well known for
ruthlessness promise to wear kid gloves.
They break their promise, as any person of
normal sophistication would expect. If that
is ‘fraud,’ it is the kind against which
potential victims can easily arm themselves
by maintaining a minimum of skepticism about
journalistic goals and methods.

Id. at 1354. There, an ophthalmic clinic and two of its

surgeons sued a television network and others involved in the

broadcast of a report regarding certain medical practices at the

clinic. See id. at 1347. Their fraud claim was premised on

defendants’ representations that the report would be “balanced”

-58-
and would not involve “ambush” interviews or undercover

surveillance. Id. at 1348. The court went so far as to suggest

that no reasonable person could rely on such promises. See id.

at 1354. Similarly, a Maine court might think that defendants’

“positive” assurances were simply too vague and laconic to

inspire, on the part of a reasonable person, the reliance

necessary for a misrepresentation claim.

There is a further reason for believing that a Maine

court would reject the promise to provide positive coverage as

the basis for a misrepresentation claim. Were the Maine court

to rule that this promise was sufficiently factual, it would

then have to face the difficult issue of whether it would be

constitutional to use so vague a yardstick in a

misrepresentation action founded on speech relating to matters

of public concern. State courts, like their federal

counterparts, normally seek to avoid construing common law rules

so as to create serious constitutional problems. See Watters v.

TSR, Inc., 904 F.2d 378, 383 (6th Cir. 1990) (state court would

avoid applying its common law “in a way that would bring the

constitutional problems to the fore”). Cf. Edward J. DeBartolo

Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485

U.S. 568, 575 (1988) (court must adopt reasonable alternative

-59-
interpretation of statute when necessary to avoid serious

constitutional problems).

The constitutional prohibition of vagueness within the

realm of defamation is well established. See Levinsky’s, 127

F.3d at 129-30 (statement that plaintiff store was “trashy” too

vague to support finding of defamation). We noted in Levinsky’s

that under the First Amendment, a statement cannot be defamatory

unless it can be reasonably understood as having an “objectively

verifiable” meaning: “[t]he vaguer a term, or the more meanings

it reasonably can convey, the less likely it is to be

actionable.” Id. at 129.

Similar requirements of objectivity and specificity

have been applied to non-defamation claims that implicate the

First Amendment. In Hustler Magazine v. Falwell, 485 U.S. 46,

55 (1988), the Supreme Court acknowledged the dangers of

vagueness in holding that a jury should not be permitted to

apply a standard of “outrageousness” to plaintiff’s claim of

intentional infliction of emotional distress. 485 U.S. at 55.

The Court held that that standard possessed an “inherent

subjectiveness” that impermissibly allowed a jury to impose

liability based on personal beliefs. Id. Statements challenged

as vague also have been given heightened scrutiny under the

First Amendment in a variety of other contexts. See, e.g.,

-60-
Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610,

620 (1976) (stating, in considering constitutionality of

municipality’s canvassing and solicitation ordinance, that

“[t]he general test of vagueness applies with particular force

in review of laws dealing with speech”); Kusek v. Family Circle,

Inc., 894 F. Supp. 522, 528 (D. Mass. 1995) (in cookbook

author’s trademark infringement claim against publisher, court

was “reluctant to enforce vague, oral contracts where

Defendant's First Amendment rights might be affected”).

Defendants point out that whether the resultant program

in a given case was sufficiently “positive” might often be

incapable of being proven or disproven sufficient for First

Amendment purposes. How much criticism is permissible before

the program would lose its positive character? Would the

revelation of a single regulatory violation on Kennedy’s part

suffice to establish misrepresentation? And, as discussed

above, the promise of positive coverage may have had an implied

condition of good conduct that Kennedy breached when he admitted

to wrongdoing during the Dateline trip. All of these actual or

potential problems suggest that the promise to provide positive

coverage could be too contingent to satisfy constitutional

norms.

-61-
 We conclude that a Maine court would at least worry

that premising a finding of misrepresentation on such a vague

term would place too great a burden on speech protected by the

state and federal constitutions.19 Without declaring ourselves

one way or the other on the constitutional issue, we believe

that the Maine court would not choose to include the positive

coverage assurance within its traditional common law rule merely

to arrive in these uncharted constitutional waters.20

We conclude, therefore, that an action in

misrepresentation under Maine law did not lie in these

circumstances for defendants’ alleged promise to provide

“positive” coverage. It was, therefore, error to submit this

representation to the jury as a potential basis for liability.

C. Proximate causation and damages

We continue our analysis of Ray’s misrepresentation

claims, now limited to defendants’ promise to exclude PATT from

19 Article 1, Section 4 of the Maine Constitution is
similar to the First Amendment of the federal constitution.
20 The constitutional issue might be further influenced
in particular cases by whether the alleged misrepresentation
affected purely private speech or speech touching upon matters
of public concern. See Levinsky’s, 127 F.3d at 128 n.4. Here
the misrepresentation fell into the latter category. A
businessperson’s broken promise, for example, to promote
another’s product line in a “positive” way might -- in the
absence of protected public interest in the speech and in the
narrower commercial context -- be deemed sufficiently definite
to be actionable. We venture no opinion on this.

-62-
the program. Defendants argue that such alleged

misrepresentations did not proximately cause Ray’s pecuniary

harm calculated from the business he lost as a result of the

program. Rather, defendants insist, Kennedy’s later taped

statements about driving too many hours, falsifying his logbook,

and other wrongdoing were the true causes of any harm to Ray’s

business.

Under either a fraudulent or negligent

misrepresentation theory, plaintiffs may recover for pecuniary

harm caused to them by their justifiable reliance upon an

actionable representation. See McCarthy v. U.S.I. Corp., 678

A.2d 48, 53 (Me. 1996); Chapman v. Rideout, 568 A.2d 829, 830

(Me. 1990). To be considered a proximate cause of a plaintiff’s

injury, the representation must be a “substantial factor” in

bringing about the harm.21 See Wheeler v. White, 714 A.2d 125,

127-28 (Me. 1998). Moreover, the injury must have been a

reasonably foreseeable consequence of the representation. See

id. at 128; see also Restatement (Second) of Torts, § 548A.

21 In the absence of case law explicitly addressing
causation requirements in the context of misrepresentation, we
apply general tort principles consistent with the Restatement
(Second) of Torts §§ 525-549 (1977). See Springer v. Seaman,
658 F. Supp. 1502, 1508-09 & n.4 (D. Me. 1987), rev’d in part on
other grounds, 821 F.2d 871 (1st Cir. 1987).

-63-
Proximate cause is generally a question of fact for the jury.

See Webb v. Haas, 728 A.2d 1261, 1267 (Me. 1999).

The chain of causation can be interrupted by an

intervening cause, which forecloses a defendant’s liability.

See Ames v. Dipietro-Kay Corp., 617 A.2d 559, 561 (Me. 1992).

An intervening cause, under Maine law, is “a new and independent

cause, which is neither anticipated nor reasonably foreseeable”

by the defendant; it must “operate independently” of the

defendant’s tortious conduct. Springer, 658 F. Supp. at 1508

(quoting Johnson v. Dubois, 256 A.2d 733, 735 (Me. 1969)).

We must determine, therefore, (1) whether defendants’

alleged misrepresentations as to PATT could be found to be a

proximate and efficient cause of Ray’s business losses, by

inducing plaintiffs’ participation in the show; and (2) if so,

whether Kennedy’s incriminating statements to defendants could

have constituted an intervening cause of the injury so as to

relieve Dateline of liability. As explained below, we conclude

that there was sufficient evidence for the jury to reasonably

find that defendants’ alleged misrepresentations were a

substantial factor in inducing Ray to allow defendants to film

Kennedy on his cross-country trip, and that some portion of the

ensuing harm to Ray’s business was foreseeable to defendants.

Ray’s recovery is limited, however, to those damages

-64-
specifically caused by the inclusion of PATT in the program; he

may not recover generally for harm flowing from the entirety of

the broadcast. Moreover, we reject defendants’ intervening

cause argument, concluding that a reasonable jury could

determine that Kennedy’s wrongdoing was itself foreseeable to

defendants.

First, Ray has adduced sufficient evidence of his

reliance on defendants’ representations as to PATT, permitting

a reasonable finding that the representations were a substantial

factor in bringing about his harm. That the program would not

have featured plaintiffs but for defendants’ promises concerning

PATT is supported by Ray and Kelly Veilleux’s testimony that

they told Dateline that they would not agree to participate in

the show if PATT was involved. Moreover, the conversations

between defendants and Kennedy around the time of the alleged

misrepresentations indicate that defendants were aware of the

possibility, if not a likelihood, that Kennedy would violate

regulations on the trip with Dateline.22 Evidence that PATT

members had already been filmed, and that titles of Handel and

22 Kennedy testified that before Ray agreed to participate
in the program, Kennedy told Handel that he “occasionally” made
minor falsifications to his logbook. Moreover, Dateline
associate producer Tracy Vail testified that, before the
filming, Kennedy told her that in the course of a typical coast-
to-coast run, he would exceed the permissible number of driving
hours.

-65-
Vail’s proposed scripts for the program referred to “deadly” or

“asleep at the wheel” truckers, further supports the conclusion

that Dateline planned in advance the unflattering juxtaposition

of PATT with plaintiffs’ trucking practices. While much

depended on how matters played out -- whether in fact Kennedy

broke the law and engaged in conduct supporting Dateline’s

themes of tired and dangerous truckers -- a jury could

reasonably find that defendants set up Ray as a potential

villain of the piece, and certainly were well aware that the

surreptitious insertion of PATT’s representatives into the

program could only sharpen that image, the PATT spokespersons

being highly critical of truckers. It was therefore foreseeable

that, after unflattering exposure on national television,

coupled with PATT’s aired criticism, Ray might suffer pecuniary

loss as his customers took their business elsewhere.

This does not, however, end our causation analysis.

Ray must prove not only that defendants’ representations as to

PATT caused plaintiffs to participate in the program, but that

those representations – not just the program itself -- caused

his pecuniary loss. See Stewart v. Winter, 174 A. 456, 457 (Me.

1934) (distinguishing between harm caused by reliance on

representation and harm flowing from related promise). Under

Maine law, the proper measure of damages for a misrepresentation

-66-
claim is plaintiff’s lost bargain. See Wildes, 389 A.2d at 841;

Jourdain v. Dineen, 527 A.2d 1304, 1307 (Me. 1987); Shine, 157

A. at 319. Here, Ray must establish that his pecuniary loss was

caused by the difference between the broadcast that was

represented (which excluded PATT) and the broadcast that was

delivered (which included PATT). Accordingly, we limit Ray’s

recovery to those damages specifically and directly caused by

the program’s inclusion of PATT; he may not recover generally

for all harm flowing from the entire broadcast. While we

recognize that this may be difficult for Ray to prove, we will

allow him the opportunity to do so upon remand, insofar as his

damages are explicitly limited to pecuniary harm flowing from

the portions of the broadcast featuring PATT.

Defendants argue that their representations concerning

the content of the broadcast were simply too remote from Ray's

harm to be its proximate cause, and that Kennedy himself was the

intervening cause of the harm. They rely upon findings of

inadequate causation in district court cases in which

investigative journalists misrepresented their identities in

order to gain access to behind-the-scenes information about

defendants’ business operations, then broadcast truthful reports

about the wrongdoings they discovered. See, e.g., Medical

Laboratory Management Consultants v. Am. Broad. Cos., Inc., 30

-67-
F. Supp.2d 1182 (D. Ariz. 1998); Food Lion, Inc. v. Capitol

Cities/ABC, Inc., 964 F. Supp. 956 (M.D.N.C. 1997), rev’d on

other grounds, 194 F.3d 505 (4th Cir. 1999). In those cases, the

district courts concluded that the reporters’ misrepresentations

designed to gain access did not proximately cause whatever

damages flowed from the broadcast of the facts the reporters

uncovered. Rather, any harm resulted from the plaintiffs’ own

wrongful practices, as revealed to the public on videotape. See

Medical Laboratory, 30 F. Supp.2d at 1199; Food Lion, 964 F.

Supp. at 962-63. In Food Lion, the district court went on to

hold that even if the defendants could have foreseen the harm to

the plaintiff at the time of their fraudulent statements, the

acts of Food Lion employees “interrupted any causal connection”

between defendants' fraud and the ultimate loss of profits and

sales. Food Lion, 964 F. Supp. at 963. (The Fourth Circuit, in

its recent review of the district court’s decision, decided on

grounds other than proximate cause. Food Lion, 194 F.3d at

522.)

Even if we were inclined to follow these district court

decisions on their own facts, a question we need not answer,

their facts were insufficiently apposite to the instant case.

In Medical Laboratory and Food Lion, the alleged

misrepresentations did not pertain to the content of the

-68-
subsequent broadcasts, and the broadcasts themselves did not

violate any promises. See 30 F. Supp.2d at 1198-99; 964 F.

Supp. at 958-59.23 In this case, the alleged representations did

not serve to disguise defendants’ identity, but rather

misrepresented the persons and viewpoints to be included in the

report. Defendants’ contention of surprise that the Dateline

“investigation” revealed unflattering information about Kennedy

is significantly less plausible given the evidence of Dateline’s

knowledge about Kennedy's driving practices around the time of

the misrepresentations, as well as the evidence that defendants

intended from the beginning to portray the sort of violations

Kennedy came to exemplify. Moreover, unlike the general

broadcast damages sought in Food Lion and Medical Laboratory,

Ray will not be permitted to recover for harm flowing from the

entirety of the report. Hence, the nexus between defendants’

representations concerning PATT and Ray’s alleged harm is

significantly closer than the nexus between representations as

23 Defendants also cite Desnick, 44 F.3d 1345, in support
of their argument. The factual circumstances of Desnick are
closer to the instant case, in that the plaintiff’s fraud claim
was premised in part on representations that a television
tabloid report would be “balanced.” 44 F.3d at 1348. However,
the Desnick decision rested chiefly on the plaintiff’s failure
to satisfy applicable state law, which required a “scheme” to
defraud. See id. at 1354-55. To the extent that the opinion
addressed causation at all, the court’s analysis rested on
factual circumstances not present here. See id.

-69-
to reporters’ identities and the broadcast damages sought in

those cases.

D. First Amendment

Having determined that Ray would be entitled to recover

pecuniary damages on his misrepresentation claims under Maine

law insofar as the claims are premised on the promise to exclude

PATT, we next consider whether the operation of the First

Amendment changes this outcome. Defendants argue that the First

Amendment’s protection of truthful speech on issues of public

concern, protection of the editing function of the press, and

prohibition of regulating speech based on vague and subjective

criteria operate collectively to bar Ray’s claims. Furthermore,

they contend, newsgathering will be impermissibly inhibited if

every disgruntled subject of a news story can obtain a trial on

the basis of a “swearing contest” as to whether the journalist

made promises about the content of the story.

The Supreme Court has not yet addressed the relevant

constitutional implications of a common law misrepresentation

action against a media defendant. Twice in recent years,

however, the Court has considered whether the First Amendment

protects the media from liability under other common law

theories, with divergent results. See id.; Cohen v. Cowles

Media Co., 501 U.S. 663 (1991).

-70-
 In Hustler, Reverend Jerry Falwell brought claims

against a magazine, under theories of libel and intentional

infliction of emotional distress, that arose from publication of

an advertisement parody. See 485 U.S. at 48-49. The jury

rejected the libel claim, but awarded compensatory and punitive

damages for emotional distress. See id. at 49. The Court held

that, in order to protect the “free flow of ideas and opinions

on matters of public interest and concern,” the First Amendment

permits public figures to recover damages for emotional distress

only where they can show “actual malice,” as is required in

defamation claims. Id. at 56. Plaintiffs should not be

permitted to “end-run” around the First Amendment by seeking

emotional distress damages under the lower state law standards

of proof. See id.

Several years later, in Cohen, 501 U.S. 663, the

Supreme Court addressed the First Amendment implications of a

promissory estoppel claim based on an assurance of

confidentiality. The plaintiff, who was affiliated with a party

in a gubernatorial campaign, gave information about another

party’s candidate to the defendant publisher’s newspapers in

return for a promise of confidentiality. See id. at 665. After

the newspapers breached this promise and published his identity,

Cohen’s employer fired him. See id. at 666.

-71-
 The Court concluded that the First Amendment did not

preclude plaintiff’s recovery of damages under a promissory

estoppel theory. See id. at 669. It referenced the “well-

established line of decisions” holding that the First Amendment

is not offended by the operation of a generally applicable law

that, when enforced against the press, has merely an incidental

effect on its ability to gather and report the news. Id. The

Court distinguished Hustler on the ground that unlike Falwell,

Cohen was not attempting to use the promissory estoppel cause of

action “to avoid the strict requirements for establishing a

libel or defamation claim,” and was not seeking damages for

injury to his reputation or his state of mind. Id. at 671.

Cohen was allowed to recover economic damages associated with

the loss of his job under normal state law standards of proof,

since these damages did not “end-run” around the First Amendment

by duplicating defamation damages. See id.

These two cases provide opposing points of reference

from which to evaluate Ray’s misrepresentation claims. From

them, and from subsequent lower court decisions, several

principles emerge.

First, the First Amendment is concerned with speech

itself, not the tone or tastefulness of the journalism that

disseminates it. See Desnick, 44 F.3d at 1355 (tabloid

-72-
television journalism entitled to First Amendment safeguards

similar to other reportage); see also Hustler, 485 U.S. at 55

(noting impossibility of “laying down a principled standard to

separate” a distasteful advertising parody, which itself

contributed little to public discourse, from political cartoons

or caricatures that enjoy First Amendment protection).

Second, the Supreme Court “has long recognized that not

all speech is of equal First Amendment importance.” Id. at 56

(quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. 472

U.S. 749, 758 (1985)). Speech about matters of public concern

is particularly entitled to strong constitutional safeguards.

See id. at 50. Truthful information is, of course, more

deserving of protection than false information.24 See id. at 52.

Third, even when the information being disseminated is

truthful, the press does not enjoy general immunity from tort

liability. See Cohen, 501 U.S. at 669-70. Where a journalist

has acquired information through unlawful means, such as by

making an actionable false promise, the First Amendment

protection of the publication of that information may be

24 The First Amendment requires some leeway for
inadvertent false statements of fact, however, as they as
“nevertheless inevitable in free debate.” Hustler, 485 U.S. at
52 (quoting Gertz, 418 U.S. at 329). The necessary “breathing
space” for freedom of expression is provided by the
constitutional rule requiring that false statements be made with
the requisite fault to support a defamation claim. Id.

-73-
diminished. See id. at 671; see also Desnick, 44 F.3d at 1355.

Hence, the enforcement against the press of generally applicable

laws is “not subject to stricter scrutiny than would be applied

to enforcement against other persons or organizations.” Cohen,

501 U.S. at 670.

Fourth, the status of the plaintiff is of

constitutional significance. See Hustler, 485 U.S. at 51. Less

First Amendment protection is warranted where the plaintiff is

a public figure, as such individuals must reasonably anticipate

criticism, including “vehement, caustic, and sometimes

unpleasantly sharp attacks.” Id. (quoting New York Times, 376

U.S. at 270).

Fifth, the type of damages sought bears on the

necessity of constitutional safeguards. In Hustler, the

plaintiff sought emotional distress damages, which (along with

reputational damages) are properly compensable in defamation

actions, and are thus subject to the same “constitutional libel

standards.” Cohen, 501 U.S. at 671. The plaintiff in Cohen,

however, sought only economic damages connected to the loss of

his job, which had resulted from the defendant’s breach of its

promise of confidentiality. See id. at 666. The Cohen Court,

in distinguishing its holding from Hustler, focused on the fact

that Cohen did not seek damages for injury to his reputation or

-74-
his state of mind. Id. at 671. It thus concluded that Cohen

could recover on his common law claim without having to

additionally prove actual malice, unlike the plaintiff in

Hustler. See id.

The importance of this factor was recently emphasized

by the Fourth Circuit in Food Lion, 194 F.3d at 505. There, the

plaintiff had conceded that it could not quantify its actual

damages with regard to its common law claims of breach of

loyalty and trespass. See id. at 515 n.3. It thus sought

reputational damages instead, but did not do so via a defamation

claim, because it could not prove actual malice. See id. at

522. The Fourth Circuit held that this attempt to recover

“defamation-type” damages without satisfying the stricter First

Amendment standards of a defamation claim was barred by Hustler.

Id.

On balance, the above factors disfavor a conclusion

that Ray’s recovery of pecuniary, not reputational, damages for

an actionable misrepresentation about PATT’s appearance in the

broadcast violates the First Amendment. To be sure, some of the

factors favor defendants: the Dateline report involved a matter

of serious public concern, and the statements in the broadcast

were, as we have already discussed, substantially true (or, at

least, non-negligent when made on the basis of then-existing

-75-
information). Still, misrepresentation under Maine common law

is a cause of general applicability. Applying it to journalists

subjects them to the same consequences as all others. See

Cohen, 501 U.S. at 670. If the plaintiffs’ evidence is

believed, the defendants did not gather information from

plaintiffs “lawfully,” but rather secured plaintiffs’

cooperation by withholding the fact of their prior PATT

interviews and denying, untruthfully, that PATT would be in the

show. See id. at 670; Desnick, 44 F.3d at 1355.25 These factual

misrepresentations, if made, were highly material: if PATT were

included, Ray did not wish to participate, as he realized that

the PATT representatives were outspokenly unfriendly to trucking

interests. Moreover, plaintiffs were not public officials or

figures inured to the rough-and-tumble of public discourse, and

hence deserved greater protection. Compare Hustler, 485 U.S. at

51.

25 The court in Food Lion pointed out that in Hustler, the
underlying act of intentional infliction of emotional distress
was unlawful, yet that did not diminish First Amendment
protections. See 194 F.3d at 523-24. The Hustler Court
acknowledged, however, that “the law does not regard the intent
to inflict emotional distress as one which should receive much
solicitude.” 485 U.S. at 53. The interest in protecting
victims of that underlying tort, as opposed to the torts of
misrepresentation (in Desnick and this case) and promissory
estoppel (in Cohen), might be more easily outweighed by the
First Amendment.

-76-
 Furthermore, the district court carefully distinguished

between the different types of damages potentially available

under this cause of action. The court permitted the jury to

award Ray damages only for his pecuniary loss (primarily the

loss of trucking customers) flowing from the misrepresentations,

not reputational or emotional distress damages. Unlike Hustler

and Food Lion, this is not a case where Ray could avoid the

strict requirements of a defamation claim by seeking

“defamation-type” damages under an easier common law standard.

See Cohen, 501 U.S. at 671; Food Lion, 194 F.3d at 523.

Moreover, as discussed supra, we are further limiting Ray’s

damages to preclude recovery based upon the general tone of the

broadcast; he may obtain damages only if he can prove pecuniary

losses specifically resulting from the inclusion of PATT in the

program. Cf. Cohen, 501 U.S. at 671.

Defendants request that we adopt a rule requiring

“independent evidence” in every case in which a news source

alleges that a journalist breached a promise as to the content

of a story. We recognize the danger that newsgathering might be

inhibited by forcing journalists to frequently litigate

disputes concerning their purported representations to sources.

An independent evidence rule would, however, grant journalists

a greater license to lie than is enjoyed by other citizens.

-77-
Defendants’ proposed rule would exceed any protection of

newsgathering that the Supreme Court has yet fashioned, and

would be more appropriately developed at that level, if at all.

Moreover, since both Ray and Kelly Veilleux testified that

defendants had assured them that PATT would not be part of the

report, such a rule, to apply here, would have to reject

evidence from multiple witnesses so long as they were parties.

We conclude that allowing recovery of damages for

common law misrepresentation, limited to Ray’s pecuniary losses

caused by statements that PATT would not be included in the

program, does not offend the First Amendment. The jury’s

verdict on Ray’s misrepresentation claims, however, included

both bases for the claims (defendants’ statement that the show

would be positive and defendants’ promise not to include PATT in

the program) and permitted broad recovery based on the entirety

of the broadcast. Hence, we must vacate the judgment on the

misrepresentation claims and remand for further proceedings on

those claims not inconsistent with this opinion. See

Levinsky’s, 127 F.3d at 134.

VII. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

-78-
 Kennedy and Ray Veilleux both asserted claims for

negligent infliction of emotional distress. The district court

correctly determined that under Maine law, plaintiffs could not

premise this cause of action on the allegedly defamatory content

of the broadcast. See Rippett v. Bemis, 672 A.2d 82, 87-88 (Me.

1996) (emotional distress claim based on defamatory statements

is subsumed by defamation claim). It concluded that the claim

could be grounded instead in defendants' alleged negligent or

deliberate misrepresentations designed to secure plaintiffs’

cooperation (i.e., the promises that the coverage would be

positive and that PATT would not be included). Accordingly, the

district court instructed the jury that in considering whether

defendants had negligently inflicted emotional distress upon

the two plaintiffs, it could look only to the representations

made by defendants before plaintiffs agreed to participate in

the report, and not to the alleged defamatory statements made

during the broadcast.

The jury found that the defendants negligently made

false representations to plaintiffs that were designed to induce

their participation in the broadcast, causing them foreseeable

and severe emotional distress. It awarded Kennedy $100,000 on

this claim, and awarded Veilleux $50,000. Defendants assert

several points on appeal: that the negligent infliction claim is

-79-
barred because it is based on a misrepresentation theory, which

precludes emotional distress damages; that it is duplicative of

plaintiffs’ defamation claim; and that it offends the First

Amendment.

Under Maine law, proof of negligent infliction of

emotional distress requires plaintiffs to show that (1)

defendants were negligent; (2) plaintiffs suffered emotional

distress that was a reasonably foreseeable result of defendants'

negligent conduct; (3) and plaintiffs suffered severe emotional

distress as a result of defendants' negligence. See Braverman

v. Penobscot Shoe Co., 859 F. Supp. 596, 607 (D. Me. 1994)

(citing Bolton v. Caine, 584 A.2d 615, 617-18 (Me. 1990)).

Proof of an underlying tort or a physical injury is no longer

required to sustain a negligent infliction claim. See Gammon v.

Osteopathic Hosp. of Maine, Inc., 534 A.2d 1282, 1285 (Me.

1987). Recent Maine Supreme Judicial Court cases have extended

recovery for negligent infliction of severe emotional distress

to cases even where “emotional distress damages are the only

damages alleged.” Salley v. Childs, 541 A.2d 1297, 1300 n.2

(Me. 1988) (citing Gammon, 534 A.2d at 1285).

The Maine SJC, however, has reiterated that in

eliminating the requirements of an underlying tort or physical

injury, it did not create a new claim on which relief could be

-80-
granted. See Devine v. Roche Biomedical Labs., Inc., 637 A.2d

441, 447 (Me. 1994) (citing Gammon, 534 A.2d at 1285). Rather,

it simply removed barriers that prevented plaintiffs from

proceeding with claims already recognized in Maine law when the

only damage they suffered was to their psyches:

[Gammon] represented a recognition that emotional
distress alone may constitute compensable damage,
but was not meant to create a new ground for
liability, nor was it meant to give plaintiffs a
license to circumvent other requirements of the
law of torts.

Id.

To allow plaintiffs’ emotional distress claim here

appears to us to circumvent a well-established limitation on the

reach of the underlying misrepresentation tort expressly

declared by the Maine Law Court in 1987. As noted supra, the

Law Court then stated with utmost clarity that recovery for

misrepresentation is limited to pecuniary harm, and that

“emotional or mental pain and suffering are not recoverable.”

Jourdain, 527 A.2d at 1307; see also Chapman, 568 A.2d at 830.26

The Maine Law Court derived this restriction from the quasi-

contractual nature of misrepresentation torts, which serve to

26
While the Maine court has suggested that emotional
distress damages might be available for misrepresentation in
some limited circumstances, see Commercial Union Ins. Co. v.
Royal Ins. Co., 658 A.2d 1081, 1083 (Me. 1995), it has never
expressly overruled Jourdain or Chapman. We are reluctant to
rely on this dicta to chart a broad new course in Maine law.

-81-
protect economic interests. See Jourdain, 527 A.2d at 1307.

Significantly, the Court’s express refusal to remove the

limitation on recovery for psychic damages in misrepresentation

cases occurred in the very same year that the Court gave general

recognition to a broader basis for emotional distress damages in

Gammon. It seems unlikely, therefore, that the Maine Law Court

intended plaintiffs to evade its specific limitation on

misrepresentation damages simply by restyling what is in essence

a misrepresentation claim as a separate action for negligent

infliction. See Devine, 637 A.2d at 447.

Moreover, treating plaintiffs’ claim for negligent

infliction of emotional distress as outside the purview of the

misrepresentation tort and its restricted recovery would lead to

a further difficulty under Maine law: namely, Maine’s refusal to

permit separate emotional distress recovery absent a special

duty of care. “A plaintiff who fails to prove that the

defendant violated a duty of care owed to the plaintiff cannot

recover, whether the damage is emotional, physical, or

economic.” Devine, 637 A.2d at 447. To establish a defendant’s

duty for purposes of a separate claim of negligent infliction of

emotional distress, the plaintiff must do more than show that

the emotional harm was foreseeable. See Cameron v. Pepin, 610

A.2d 279, 284 (Me. 1992). The plaintiff must additionally show

-82-
that public policy favors the recognition of a legal duty to

refrain from inflicting emotional injury, based upon plaintiff’s

status or the relationship between the parties. See Bryan R. v.

Watchtower Bible and Tract Soc. of New York, Inc., 738 A.2d 839,

849 (Me. 1999) (declining to recognize relationship between

churches and their members that would give rise to duty to avoid

psychic injury to members); Bolton, 584 A.2d at 618 (holding

that a physician-patient relationship gives rise to a duty to

avoid emotional harm from failure to provide critical

information to patient); Gammon, 534 A.2d at 1285 (holding that

a hospital's relationship to the family of deceased gives rise

to a duty to avoid emotional harm from handling of remains);

Rowe v. Bennett, 514 A.2d 802, 806-07 (Me. 1986) (holding that

the unique nature of psychotherapist-patient relationship gives

rise to a duty of care to the patient).

The Maine Law Court has proceeded cautiously in

determining the scope of a defendant’s duty to avoid inflicting

emotional distress. See Bryan R., 738 A.2d at 848. That court

recently stated: “Only where a particular duty based upon the

unique relationship of the parties has been established may a

defendant be held responsible, absent some other wrongdoing, for

harming the emotional well-being of another.”. Id. Hence, we

are reluctant to expand this relatively undeveloped doctrine

-83-
beyond the narrow categories addressed thus far. See Dayton v.

Peck, Stow and Wilcox Co., 739 F.2d 690, 694-95 (1st Cir. 1984)

(federal court in diversity case will not innovate in state

law); see also Nieves v. Univ. of Puerto Rico, 7 F.3d 270, 278

(1st Cir. 1993) (noting that “[s]tate-law claimants who bypass

an available state forum generally are not entitled to

adventurous state-law interpretations from the federal forum”).

The relationship between a journalist and a potential subject

bears little resemblance to those the Law Court permitted to

recover in the above-cited cases. Moreover, the First Amendment

might arguably make it less appropriate to find such a

relationship, although we make no ruling in this regard.

Accordingly, as we find no basis on these facts for a

viable claim for negligent infliction of emotional distress

under Maine law, we reverse the judgment awarding damages to

Kennedy and Ray Veilleux on that claim.

VIII. INVASION OF PRIVACY

Maine courts have explicitly adopted the Restatement

approach to invasion of privacy, which recognizes four kinds of

interests, the invasion of which may give rise to a tort action

for breach of another person's right to privacy. See Nelson v.

Maine Times, 373 A.2d 1221, 1223 (Me. 1977) (citing Restatement

-84-
(Second) of Torts §§ 652A-E). As set forth in Restatement

(Second) of Torts § 652A, the right of privacy is invaded by:

(a) unreasonable intrusion upon the seclusion of

another;

(b) appropriation of the other's name or likeness;

(c) unreasonable publicity given to the other's
private life; or

(d) publicity that unreasonably places the other in a
false light before the public.

Nelson v. Maine Times, 373 A.2d 1221, 1223 (Me. 1977).

Plaintiffs asserted and prevailed upon claims under the theories

of unreasonable publication of private facts and false light.27

Defendants contend that both claims fail as a matter of law.

A. Unreasonable Publication

Under Maine law, one who gives publicity to a matter

concerning the private life of another is subject to liability

to the other for invasion of his privacy, if the matter

publicized is of a kind that (a) would be highly offensive to a

reasonable person, and (b) is not of legitimate concern to the

public. See Nelson v. Maine Times, 373 A.2d 1221, 1225 (Me.

1977) (quoting Restatement (Second) of Torts § 652D).

Defendants argue that Kennedy’s claim for unreasonable

27 The unreasonable publication claim pertained only to
Kennedy, while the false light claim pertained to both Kennedy
and Ray.

-85-
publicity, based on the broadcast revelation of Kennedy’s

failure of a federally-mandated random drug test, fails because

(1) the test result was a matter of public concern, and (2) the

test result was already public at the time of the broadcast.

The constitutional validity of the unreasonable

publication tort is unclear. To date, the Supreme Court has

declined to decide "whether truthful publications may ever be

subjected to civil or criminal liability consistently with the

First and Fourteenth Amendments, or to put it another way,

whether the State may ever define and protect an area of privacy

free from unwanted publicity in the press . . ." Cox

Broadcasting Co. v. Cohn, 420 U.S. 469, 491 (1975); see also

Florida Star v. B.J.F., 491 U.S. 524, 533 (1989) (again

declining to answer that question). We need not consider

whether this tort is constitutionally viable, because we

conclude that plaintiffs did not establish its state law

elements.

We ask first whether the result of Kennedy’s drug test

was “of legitimate concern to the public.” Nelson, 373 A.2d at

1225 (quoting Restatement (Second) of Torts § 652D). The

Restatement includes within the scope of legitimate public

concern matters of the kind customarily regarded as "news." See

Restatement (Second) of Torts § 652D cmt. g. "News" includes

-86-
publications concerning, inter alia, crimes, arrests, deaths

resulting from drugs, and other “matters of genuine, even if

more or less deplorable, popular appeal." Id. Individuals’

drug use, particularly where related to public safety, may be a

legitimate matter of public concern. See White v. Fraternal

Order of Police, 909 F.2d 512, 517 (D.C. Cir. 1990) (drug tests

performed on police officer). So, too, may be the regulation of

public health or safety. See, e.g., Shulman v. Group W

Productions, Inc., 955 P.2d 469, 488 (Cal. 1998) (traffic

accidents); Reuber, 925 F.2d at 719-20 (effectiveness of

government’s fight against cancer); Lee v. Calhoun, 948 F.2d

1162, 1165 (10th Cir. 1991) (policing medical malpractice).

We believe that Kennedy’s drug test results reasonably

tend to illustrate the report’s newsworthy themes of interstate

truck driving, highway safety and relevant government

regulation.28 Because the public may be legitimately concerned

with federally-mandated drug testing of truckers, Kennedy’s test

results, and the consequences of the results with regard to his

28 Kennedy was tested pursuant to DOT regulations
requiring random drug tests of drivers of commercial vehicles.
See 49 C.F.R. § 382.305 (1998). A driver who tests positive for
controlled substances is prohibited from remaining on duty, and
an employer who learns of such test results may not allow the
driver to continue to drive. Id. § 382.501.

-87-
driving career, defendants cannot be liable for invasion of

privacy as a matter of law. See Nelson, 373 A.2d at 1225.

Plaintiffs concede that the general subject matter of

the broadcast is of legitimate public concern. They also

concede the newsworthiness of the general topic of drug use

among interstate truck drivers. They deny, however, that the

public has a legitimate interest in the identity of an

individual driver who tested positive for drugs. See Y.G. and

L.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488, 500 (Mo. Ct.

App. 1990) (while in vitro fertilization program may well have

been matter of public interest, identity of plaintiffs, who

participated in program, was not). We think, however, that the

factual circumstances for disclosure here are more compelling

than in Y.G., and we follow other circuit courts that have

permitted journalists to portray individuals’ personal

circumstances in ways that reveal their identities where

sufficiently related to a matter of public concern. See, e.g.,

Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1233 (7 th Cir.

1993); White, 909 F.2d at 517; Gilbert v. Medical Economics

Company, 665 F.2d 305, 308 (10th Cir. 1981).

The plaintiff in Gilbert, a doctor who had been

featured in an article about malpractice, similarly complained

that while the topic of policing failures in the medical

-88-
profession was newsworthy, her name and photograph were not.

See 665 F.2d at 308.

The court disagreed:

With respect to the publication of
plaintiff's photograph and name, we find
that these truthful representations are
substantially relevant to a newsworthy topic
because they strengthen the impact and
credibility of the article. They obviate
any impression that the problems raised in
the article are remote or hypothetical, thus
providing an aura of immediacy and even
urgency that might not exist had plaintiff's
name and photograph been suppressed.

Id.29 See also Haynes, 8 F.3d at 1233 (Posner, J.)(defendant

author’s decision to use identified individuals to illustrate

themes in historical study was constitutionally protected);

White, 909 F.2d at 517 (identity of high-ranking police officer

who tested positive for marijuana was matter of public concern).

The same rationale applies here. Defendants learned

that the truck driver whom they had filmed for their program,

who had insisted that he did not currently use drugs and was a

safe driver, tested positive in DOT-mandated random tests for

29Gilbert and other federal cases applied what may well
be a more stringent test for the nexus between the disclosed
information and public concern than Maine law requires. The
Seventh Circuit considered whether the statements at issue were
“substantially relevant to a newsworthy topic,” 665 F.2d at 308
(emphasis added), while Maine law requires only that the
statements be “of legitimate concern to the public.” Nelson,
373 A.2d at 1225.

-89-
marijuana and amphetamines. We think defendants were entitled

to illustrate their messages about highway safety and regulation

with new information about the individual subject of their

report. 30 Simply reporting statistics about truckers who use

drugs, or discussing the details of Kennedy’s case without

mentioning him by name, would have substantially less impact.

The district court held that Kennedy’s test results

were insufficiently linked to the topic of highway safety

because there is no evidence that Kennedy was actually drug-

impaired while driving on the Dateline run. DOT regulations,

however, forbid driving after testing positive for drugs, and

given that positive results emerged from a test administered

while Kennedy was actually driving, it cannot be dismissed as

lacking in newsworthiness. Defendants could draw from Kennedy’s

failure of the drug test the reasonable inference that there was

some likelihood that his driving was sometimes drug-impaired,

thereby endangering the public. “If the press is to have the

30 We note that the information learned about Kennedy
pertained directly to highway safety, as Kennedy’s random drug
test was ordered pursuant to DOT requirements for commercial
drivers like Kennedy. Kennedy’s positive test took place while
he was engaged in a driving assignment: the westbound portion of
the same trip later accompanied by Dateline. Kennedy denied
using amphetamines and attributed the marijuana test results to
recreational usage some weeks before leaving for the Dateline
run. Under relevant DOT regulations, however, the test results
were clearly material to his suitability to drive. See 49
C.F.R. § 382.501 (1998).

-90-
generous breathing space that courts have accorded it thus far,

editors must have freedom to make reasonable judgments and to

draw one inference where others also reasonably could be drawn.”

Gilbert, 665 F.2d at 309.

It is true, as Kennedy contends, that his drug test

results were subject to strict confidentiality requirements

under state and federal law. This is not a case, therefore, in

which the news media has simply reported a crime that is already

a matter of public record. Compare Cox, 420 U.S. at 495-96

(identity of rape victim acquired from public court documents)

with Haynes, 8 F.3d at 1232 (primary source of personal facts

about plaintiff was personal interview, not public documents).

Information does not have to be a matter of public record,

however, in order to relate to a matter of public concern such

that it can be disclosed by the media. See Haynes, 8 F.3d at

1232; see also Restatement (Second) of Torts § 652D cmt. e (“the

legitimate interest of the public may extend beyond those

matters which are themselves made public, and to some reasonable

extent may include information as to matters that would

otherwise be private”).

In short, we hold that Kennedy’s drug test results were

of legitimate public concern such that defendants may not be

liable for invasion of privacy under an unreasonable publication

-91-
theory. Accordingly, there is no need to reach the other issue

presented by defendants on appeal, which was whether the test

result was already public at the time of the broadcast.

B. False light

In Nelson v. Maine Times, 373 A.2d 1221 (Me. 1977), the

Maine Supreme Judicial Court adopted the requirements for “false

light” invasion of privacy of the Restatement (Second) of Torts

§ 652E (1977). Id. at 1223-24. One who gives publicity to a

matter concerning another that places the other before the

public in a false light is subject to liability for invasion of

privacy, if (a) the false light in which the other was placed

would be highly offensive to a reasonable person, and (b) the

actor had knowledge of or acted in reckless disregard as to the

falsity of the publicized matter and the false light in which

the other was placed. See Restatement (Second) of Torts § 652E.

Put another way, Maine law requires proof of defendants’ “actual

malice.” See Cantrell v. Forest City Publ’g Co., 419 U.S. 245,

251-52 (1974); Frobose v. American Sav. and Loan Ass'n of

Danville, 152 F.3d 602, 617 (7th Cir. 1998).

The plaintiffs’ false light claim was premised on

precisely the same thirteen statements that underlay their

defamation claim, most of which were rejected on appeal because

plaintiffs failed to establish that defendants acted with the

-92-
requisite fault. A fortiori, plaintiffs cannot satisfy the more

onerous standard of actual malice required by Maine law for

their false light claim.

To the extent that our defamation holding was premised

on concepts other than lack of fault, constitutional limitations

on false light claims similarly preclude our entertaining a

false light claim. See Brown v. Hearst Corp., 54 F.3d 21, 27

(1st Cir. 1995); see also Restatement (Second) of Torts § 652E

cmt. e. Specifically, those statements that we rejected because

plaintiffs failed to establish that they were materially false

cannot support a false light claim any more than they can a

defamation claim. See Brown, 54 F.3d at 27; Varnish v. Best

Medium Publ’g Co., Inc., 405 F.2d 608, 611 (2d Cir. 1968); see

also Restatement (Second) of Torts § 652E cmt. c. Nor can

protected statements of opinion support a claim of false light.

See Partington v. Bugliosi, 56 F.3d 1147, 1160-61 (9th Cir.

1995); Moldea v. New York Times Co., 22 F.3d 310, 319 (D.C.

Cir. 1994); White, 909 F.2d at 518; Rinsley v. Brandt, 700 F.2d

1304, 1307 (10th Cir. 1983). Moreover, to the extent that we

determined that the statements at issue did not disparage

plaintiffs, those statements fail to satisfy the requirement

under Maine law that the false light in which plaintiffs were

placed be “highly offensive to a reasonable person.”

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 Plaintiffs nonetheless contend that we should sustain

their false light claim even if we reverse the defamation

judgment. It is true that there are some differences in the

common law elements of these two claims. See, e.g., Machleder,

801 F.2d at 55-56 (unlike defamation, false light doctrine does

not distinguish between oral and written words, or between

slander per se and slander requiring special damages); Frye v.

IBP, Inc., 15 F. Supp.2d 1032, 1043 (D. Kan. 1998) (false light

and defamation differ in that former contains expanded publicity

requirement); see also Restatement (Second) of Torts § 652E cmt.

b (statement need not be defamatory to support a false light

claim). None of these distinctions, however, are material here.

No Maine court has yet grappled with the question of

whether a false light claim may proceed where a defamation claim

premised on the same statement may not. Given that we

previously have rejected this sort of evasion of constitutional

restrictions, see Brown, 54 F.3d at 27; Gashgai v. Leibowitz,

703 F.2d 10, 12 (1st Cir. 1983), as well as the absence of clear

precedent in other circuits, we will not break new and

constitutionally suspect ground today. Accordingly, we reverse

the judgment as to the plaintiffs’ false light claim.

IX. LOSS OF CONSORTIUM

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 The parties agree that Kelly Veilleux’s damages for

loss of consortium are conditioned on the success of Ray’s

claims. We therefore vacate the judgment and that count and

remand it to the district court for further proceedings

consistent with this opinion.

X. PUNITIVE DAMAGES

In their cross-appeal, plaintiffs contend that the

district court erred in deciding that there was insufficient

evidence of common-law malice to allow the jury to consider

awarding plaintiffs punitive damages. To receive punitive

damages, Maine law requires a plaintiff to prove by clear and

convincing evidence that the defendant was motivated by “ill

will” toward the plaintiff, or acted so “outrageously” that

malice could be inferred. Tuttle v. Raymond, 494 A.2d 1353,

1361 (Me. 1985). Limiting our consideration of the evidence to

defendants’ conduct relating to the viable portions of the

misrepresentation claim, we see no error.

Plaintiffs contend that the record contains sufficient

evidence of defendants’ “outrageous” conduct to support a

punitive damages award. Reviewing the record as it stood before

the district court at the time of its summary judgment ruling,

see Voutour v. Vitale, 761 F.2d 812, 817 (1st Cir. 1985), we see

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no reason to disagree with the district court that the evidence

fails to meet the strict standard set forth in Tuttle. The

record does not support a conclusion that defendants'

representations not to include PATT in the broadcast were

motivated by anything more malicious than the zealous pursuit of

an emotionally compelling story. While a jury could find that

the alleged misrepresentations were made knowingly or even

recklessly, it could not reasonably infer common-law malice as

required under Maine law.

XI. CONCLUSION

We hold as follows: (1) we reverse the judgment in

favor of Ray and Kennedy on their defamation claim (Count III);

(2) we reverse the judgment on Ray's misrepresentation claims

(Counts I and II) insofar as premised on defendants’ alleged

assurances that their portrayal of the trucking industry would

be “positive,” and we vacate the judgment and remand for further

proceedings those portions of the same claims premised on

defendants’ alleged promises not to include PATT in the program;

(3) we reverse the judgment on Ray and Kennedy's negligent

infliction of emotional distress claim (Count VI); (4) we

reverse the judgment on the invasion of privacy claim as to both

Kennedy's “unreasonable publication” theory (Count IV) and Ray

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and Kennedy's “false light” theory (Count V); (5) we vacate the

judgment as to Kelly Veilleux’s loss of consortium claim (Count

VIII) and remand for further proceedings; and (6) we deny

plaintiffs’ cross-appeal in its entirety.

Reversed in part, vacated in part, and remanded for

further proceedings not inconsistent with this opinion.

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