United States Court of Appeals
For the First Circuit
No. 01-1648
JOHN J. RILEY, JR. AND DIANA W. RILEY,
Plaintiffs, Appellants,
v.
JONATHAN HARR; RANDOM HOUSE, INC., NEW YORK; VINTAGE BOOKS;
RANDOM HOUSE AUDIO PUBLISHING, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Rosenn,* Senior Circuit Judge,
and Lipez, Circuit Judge.
Peter A. Riley for appellants.
Steven M. Gordon, with whom Lucy J. Karl, Shaheen & Gordon,
P.A., and Linda Steinman were on brief, for appellees.
June 11, 2002
* Of the Third Circuit, sitting by designation.
LIPEZ, Circuit Judge. Objecting to his portrayal in
Jonathan Harr's best-selling book A Civil Action, an account of
toxic tort litigation over contaminated well water in Woburn,
Massachusetts, that allegedly caused the death of several children,
John J. Riley, Jr., sued Harr and his publisher for defamation and
related torts. He was joined in that lawsuit by his wife, Diane W.
Riley. The district court granted summary judgment for the
defendants on most of the Rileys' claims on First Amendment
grounds. The Rileys appeal the district court's disposition of
their claims. We affirm.
I. Background
We begin with a brief overview of the events described in
A Civil Action (the Book) that pertain to this case; the specific
statements to which Riley objects are discussed in turn infra, and
are also set forth in an appendix to this opinion.1 The Book,
first published in 1995, was on the New York Times Bestseller List
for over two years and has been made into a motion picture. The
Book received much critical acclaim and has been required reading
in law school courses. It purports to be a nonfictional account of
a toxic tort lawsuit (the "Anderson litigation") brought by some
residents of Woburn, Massachusetts, alleging that defendants
Beatrice Foods Company (Beatrice), W.R. Grace & Company (Grace),
and others were responsible for the contamination of two municipal
water wells (Wells G and H) in the Aberjona River Valley with toxic
1
For simplicity's sake, we generally denote the plaintiffs
collectively as "Riley," and the defendants collectively as "Harr."
-2-
solvents, including trichloroethylene (TCE).2 The Anderson
plaintiffs claimed that contaminated well water had caused them and
their children to contract various ailments, including several
fatal cases of leukemia, and that some of the TCE found in Wells G
and H had come from a tannery operated by Riley (the "tannery").
Beatrice had assumed the tannery's environmental liabilities when
it purchased the tannery in 1978.3 The plaintiffs' theory was that
Riley or his subordinates had dumped TCE on a fifteen acre parcel
of undeveloped land between the tannery and the contaminated wells
(the "fifteen acres"), and that the TCE had migrated into Wells G
and H.
The Book tells the story of the Anderson litigation
primarily from the perspective of the plaintiffs' attorney, Jan
Schlichtmann, recounting his struggle to prove that Riley's tannery
and defendant Grace were responsible for the contamination of Wells
G and H.4 The Book describes evidence which, in Schlichtmann's
view, tended to show that the tannery had dumped waste laced with
TCE on the fifteen acres, and repeatedly suggests that Riley's
denials that such dumping had occurred were false. Although
2
The case was originally captioned Anderson v. Cryovac, C.A.
No. 82-1672-S (D. Mass). For a fuller account of the Anderson
litigation, see Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir.
1988); and Anderson v. Beatrice Foods Co., 900 F.2d 388 (1st Cir.
1990).
3
Until 1978, the Riley family had owned the tannery. Riley
continued to operate the tannery after Beatrice purchased it, and
resumed ownership of it in 1983.
4
Grace had operated a manufacturing facility in the vicinity
of Wells G and H.
-3-
Schlichtmann is the Book's protagonist, and granted Harr extensive
access to his law firm during the litigation, Harr's account of his
efforts is by no means uncritical. As Schlichtmann builds his
case, Harr points out both its strengths and its weaknesses. Harr
also conducted extensive interviews with attorneys for the Anderson
defendants, and the Book recounts the grounds for their rejection
of Schlichtmann's theories. The Book also notes Schlichtmann's
failure to find direct proof of dumping by the tannery, Riley's
steadfast denials of Schlichtmann's allegations, the conflicting
views of experts on each side of the case, and the 1986 jury
verdict in federal district court which rejected the plaintiffs'
claims against the tannery.5
After the trial was over, Schlichtmann discovered a
report which Yankee Environmental Engineering and Research
Services, Inc. (Yankee) had completed for Riley in 1983. The
report stated that tannery waste had been dumped on a hillside
leading to the fifteen acres, and that groundwater under the
tannery flowed toward Wells G and H. Schlichtmann moved to set
aside the verdict on the basis of this newly discovered evidence,
which he argued should have been produced during discovery, and
tracked down new witnesses who described the removal from the
fifteen acres of what Schlichtmann believed to have been tannery
waste. The district court conducted a hearing and found that Riley
had engaged in "concealment" of the Yankee report that was
5
The plaintiffs subsequently settled their claims against
defendant Grace.
-4-
"deliberate," a determination which the Book reports as follows:
"The judge found that Riley had committed perjury and that [his
attorney] was guilty of 'deliberate misconduct' in failing to give
Schlichtmann the Yankee report." The court concluded, however,
that a new trial was not warranted because "there was no available
competent evidence tending to establish the disposal of complaint
chemicals by the defendant . . . either at the tannery site or on
the 15 acres." Anderson v. Beatrice Foods Co., 129 F.R.D. 394, 400
(D. Mass. 1989).6
Riley took exception to a number of statements about him
in the Book. In 1998 he commenced this action against Harr and his
publishers, Random House, Inc. and Vintage Books (a division of
Random House), in New Hampshire Superior Court. Defendants removed
the case to federal district court on the basis of diversity of
citizenship.7 Riley's amended complaint challenged twelve
statements in the Book in seven counts: (I) intentional infliction
of emotional distress; (II) slander (against Harr only); (III)
defamation; (IV) invasion of privacy -- public disclosure of
private facts; (V) invasion of privacy -- placing the plaintiff in
a false light; (VI) loss of consortium; and (VII) a demand for
enhanced compensatory damages. Reduced to its essence, Riley's
6
Subsequent Environmental Protection Agency studies
concluded that Beatrice's land had contaminated Wells G and H, and
Beatrice agreed to pay its share of cleanup costs. A Civil Action
at 491.
7
Riley is a New Hampshire citizen while Harr is a
Massachusetts citizen, and the three corporate entities all have
their principal place of business in New York. The amount in
controversy exceeds $75,000 excluding costs and interest.
-5-
action seeks to hold Harr liable for wrongly describing him as a
liar (see Statements C, D, E, F, H, I, J, and K infra), a perjurer
(see Statement A infra), a "kille[r]" (see Statement G infra), a
depressive (see Statement L infra) (or, in the alternative, for
disclosing the private fact of his depression), and a bully (see
Statement B infra).
The defendants moved to dismiss Riley's complaint, or in
the alternative for summary judgment. The district court treated
their motion as one for summary judgment, and in a lengthy,
thoughtful order dated March 31, 2000, granted the motion with
respect to most of Riley's claims. The order denied Harr's motion
for summary judgment as to two of the twelve statements, and denied
his motion to dismiss Riley's slander claim.8 Following limited
discovery, the parties stipulated on March 26, 2001, to the
dismissal of those claims that had survived the district court's
order of March 31, 2000. On April 25, 2001, Riley filed a notice
of appeal of the district court's order.
8
Riley's slander claim relates to a speech Harr delivered in
Newburyport, Massachusetts. The district court indicated that
Harr's motion to dismiss for lack of personal jurisdiction was
premised on the assumption that the other counts against Harr would
also be dismissed. The district court wrote that "[n]either
party . . . has addressed the issue of jurisdiction under the
circumstances now prevailing: that is, where the court has not
dismissed all of the causes of action regarding which Harr has not
contested personal jurisdiction" (emphasis added). The court
explained that "[u]nder these circumstances, Harr's challenge to
personal jurisdiction with respect to [the slander count]
implicates the complex and unsettled doctrine of pendent personal
jurisdiction." The district court concluded that "[b]ecause the
parties have not briefed the issue it would be premature to
consider and resolve it at this juncture."
-6-
II. Defamation
We first set out the general principles which guide our
inquiry, and then turn to the challenged statements.
A. General Principles
"[T]he First Amendment to the United States Constitution
place[s] limits on the application of the state law of
defamation."9 Milkovich v. Lorain Journal Co., 497 U.S. 1, 14
(1990). In the wake of New York Times Co. v. Sullivan, 376 U.S.
254 (1964), the Supreme Court has developed an elaborate body of
law that defines those limits. In the case of a public-figure
plaintiff the First Amendment requires clear and convincing proof
of actual malice on the part of the defendant.10 Gertz v. Robert
Welch, Inc., 418 U.S. 323, 342-43 (1974). A private-figure
plaintiff such as Riley need not demonstrate actual malice, but
"must bear the burden of showing that the speech at issue is false
9
In the district court, Riley argued that New Hampshire law
governed his claims. Harr's position was that New York law
controlled, but he indicated that the court did not have to decide
this issue because "New York and New Hampshire law are functionally
equivalent" on the relevant issues. The district court therefore
applied New Hampshire law. See Independent Mechanical Contractors,
Inc. v. Gordon T. Burke & Sons, Inc., 138 N.H. 110, 118 (1993)
(describing New Hampshire defamation law).
10
Harr does not argue that Riley is a public figure.
-7-
before recovering damages for defamation from a media defendant."11
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (1986).
The Supreme Court has also recognized "constitutional
limits on the type of speech which may be the subject of state
defamation actions." Milkovich, 497 U.S. at 16 (emphasis in
original). In Milkovich, a case involving a media defendant, the
Court held that "a statement on matters of public concern must be
provable as false before there can be liability under state
defamation law." 497 U.S. at 19. Milkovich also rejected the
proposition that the First Amendment creates a blanket exception to
state defamation law for "statements which are categorized as
'opinion' as opposed to 'fact.'"12 Id. at 17. The Court pointed
out that "expressions of 'opinion' may often imply an assertion of
objective fact," id. at 18, and "[it] would be destructive of the
law of libel if a writer could escape liability for accusations of
[defamatory conduct] simply by using, explicitly or implicitly, the
words, 'I think.'" Id. at 19 (citation and internal quotation
marks omitted). As we observed in a subsequent decision, "[a]
11
In place of the common-law presumption that defamatory
speech is false, the Supreme Court has established "a
constitutional requirement that the plaintiff bear the burden of
showing falsity, as well as fault, before recovering damages"
against a media defendant. Milkovich, 497 U.S. at 16 (quoting
Hepps, 475 U.S. at 776).
12
Some had read Gertz, 418 U.S. at 339-40, to "create a
wholesale defamation exception for anything that might be labeled
'opinion.'" Milkovich, 497 U.S. at 18. The Gertz court observed
that "[u]nder the First Amendment there is no such thing as a false
idea. However pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on the
competition of other ideas." Gertz, 418 U.S. at 339-40.
-8-
statement couched as an opinion that presents or implies the
existence of facts which are capable of being proven true or false
can be actionable." Levinsky's, Inc. v. Wal-Mart Stores, Inc.,
127 F.3d 122, 127 (1st Cir. 1997).
However, and of central importance in this case, even a
provably false statement is not actionable if "'it is plain that
the speaker is expressing a subjective view, an interpretation, a
theory, conjecture, or surmise, rather than claiming to be in
possession of objectively verifiable facts . . . .'" Gray v. St.
Martin's Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000) (quoting
Haynes v. Alfred A. Knopf. Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).
As the Ninth Circuit has explained, "when an author outlines the
facts available to him, thus making it clear that the challenged
statements represent his own interpretation of those facts and
leaving the reader free to draw his own conclusions, those
statements are generally protected by the First Amendment."
Partington v. Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir. 1995).
We applied these principles in Phantom Touring, Inc. v.
Affiliated Publications, 953 F.2d 724 (1st Cir. 1992). The
plaintiff, producer of a version of "The Phantom of the Opera" that
was not the successful and acclaimed Broadway show created by
Andrew Lloyd Webber, sued the Boston Globe for defamation, claiming
that certain Globe articles had falsely accused it of endeavoring
to pass off its own production as the Broadway version. Id. at
725. We held that although the allegation of deliberate deception
might be provable as true or false, "[t]he sum effect of the
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format, tone and entire content of the articles is to make it
unmistakably clear that [the author] was expressing a point of view
only," rather than "stating 'actual facts' about [the plaintiff's]
honesty." Id. at 729 (citation omitted). We explained:
Of greatest importance . . . is the breadth of
[the] articles, which not only discussed all
the facts underlying [the author's] views but
also gave information from which readers might
draw contrary conclusions. In effect, the
articles offered a self-contained give-and-
take, a kind of verbal debate . . . . Because
all sides of the issue, as well as the
rationale for [the author's] view, were
exposed, the assertion of deceit reasonably
could be understood only as [the author's]
personal conclusion about the information
presented . . . .
Id. at 730.
We then distinguished the facts in Milkovich, where the
author of a newspaper column charging that a high school wrestling
coach had lied about his behavior at a meet informed his readers
that he was in "a unique position" to know that the coach had lied
because he had personally observed the relevant events. 497 U.S.
at 5, n.2. We wrote:
the article in Milkovich, unlike [the]
"Phantom" columns, was not based on facts
accessible to everyone. Indeed, a reader
reasonably could have understood the reporter
in Milkovich to be suggesting that he was
singularly capable of evaluating the
plaintiffs' conduct. In contrast, neither of
[the Globe] columns indicated that [the
author], or anyone else, had more information
about Phantom Touring's marketing practices
than was reported in the articles. While [the
Globe's] readers implicitly were invited to
draw their own conclusions from the mixed
information provided, the Milkovich readers
implicitly were told that only one conclusion
was possible.
-10-
Id. at 730-31. See Moldea v. New York Times Co., 22 F.3d 310, 317
(D.C. Cir. 1994) ("Because the reader understands that [the
challenged statement] represent[s] the writer's interpretation of
the facts presented, and because the reader is free to draw his or
her own conclusions based upon those facts, this type of statement
is not actionable in defamation.") (citation and internal quotation
marks omitted).
In sum, the basic issue before us is whether the
challenged statements in A Civil Action implicitly signal to
readers "that only one conclusion [about Riley] was possible," and
therefore do not qualify as protected opinion under Milkovich and
Phantom Touring, or whether "readers implicitly were invited to
draw their own conclusions from the mixed information provided," in
which case the First Amendment bars Riley's defamation action.
Phantom Touring, 953 F.2d at 731. In making this determination, we
look not just at the specific statements complained of, but also at
"the general tenor of the [Book]" and the context in which the
challenged statements are set. Milkovich, 497 U.S. at 21. We are
mindful that the subject of A Civil Action -- a controversial
lawsuit and the disputed events underlying it -- "is one about
which there could easily be a number of varying rational
interpretations," and that in writing about such "inherently
ambiguous" subjects, an author who "fairly describes the general
events involved and offers his personal perspective about some of
[the] ambiguities and disputed facts" should not be subject to a
defamation action. Partington, 56 F.3d at 1154. Otherwise,
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authors would hesitate to venture beyond "dry, colorless
descriptions of facts, bereft of analysis or insight," and the
threat of defamation lawsuits would discourage "expressions of
opinion by commentators, experts in a field, figures closely
involved in a public controversy, or others whose perspectives
might be of interest to the public" Id.
B. Standard of Review
We have observed that "when defamation issues implicate
free speech concerns. . . . appellate judges must conduct a whole-
record review and 'examine for themselves the statements in issue
and the circumstances under which they were made to see . . .
whether they are of a character which the principles of the First
Amendment' protect." Levinsky's, 127 F.3d at 127 (quoting New York
Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)). Therefore, "the
courts treat the issue of labeling a statement as verifiable fact
or as [protected] opinion as one ordinarily decided by judges as a
matter of law." Gray, 221 F.3d at 248, citing Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 510-11
(1984).
C. The Challenged Statements
To put the challenged statements in context, we follow
the district court's helpful practice of quoting some of the text
surrounding the specific language cited in Riley's complaint. The
specific language Riley complains of is indicated in bold. We
adopt the letters used by Riley to designate the statements at
issue. We depart somewhat from the usual letter sequencing,
-12-
however, to discuss the statements in a more logical order. We
address in turn statements suggesting that Riley is a liar (in the
order of our discussion, statements C, E, F, H, J, I, K and D); a
perjurer (Statement A); and a killer (Statement G).
Statement C
Statement C describes Schlichtmann's reaction to the
discovery of a document indicating that tannery waste had been
deposited on the fifteen acres in 1956:
This document was thirty years old and it
dealt only with tannery waste, which might or
might not have contained TCE. But even so,
Schlichtmann thought it had great value.
Riley had sworn at his deposition that he had
never dumped anything on the fifteen acres.
Riley had lied then, and Schlichtmann -- who
didn't need much convincing -- believed that
Riley was also lying about using TCE.
The assertion in Statement C that Riley had lied in the course of
the Anderson litigation is, in principle, "provable as false."
Milkovich, 497 U.S. at 19. A statement is not actionable, however,
if "it is plain that the speaker is expressing a subjective view,
an interpretation, a theory, conjecture, or surmise." Gray, 221
F.3d at 248 (citation and internal quotation marks omitted).
The district court found that Statement C "is clearly
written in Schlichtmann's voice," reporting his "inner musings
about the evidence he was gathering," and therefore "could not be
construed by a reasonable reader as [an] assertion[] of fact."
Riley concedes that the assertion about Riley that follows the
words "Schlichtmann . . . believed" represents Schlichtmann's view
-13-
of Riley's testimony, but asserts that the phrase "Riley had lied
then" constitutes Harr's own factual claim. We agree with the
district court that the phrase "Riley had lied then" -- coming
almost immediately after and elaborating upon the sentence "But
even so, Schlichtmann thought it had great value," and situated in
a section of the Book that recounts Schlichtmann's efforts to build
a case against the tannery -- is Schlichtmann's conclusion, not
Harr's. As Harr points out, "[t]he law does not force writers to
clumsily begin each and every sentence with 'Schlichtmann felt'" in
order to indicate that a statement is being attributed to
Schlichtmann. As Statement C is cast as Schlichtmann's assessment
of Riley's testimony, and follows a summary of the evidence upon
which it is based (the document reporting the discovery of tannery
waste on the fifteen acres), it amounts to "a subjective view, an
interpretation, a theory, conjecture, or surmise," not an assertion
of objective fact based on undisclosed evidence. Gray, 221 F.3d at
248 (citation and internal quotation marks omitted).
Moreover, even if we accepted Riley's premise that the
statement "Riley had lied then" constitutes Harr's own declaration
that Riley had uttered a falsehood, the statement would still be
protected under the First Amendment. Like the allegedly defamatory
newspaper articles in Phantom Touring, the Book "not only
discussed . . . the facts underlying [Harr's] views but also gave
information from which readers might draw contrary conclusions."
Phantom Touring, 953 F.2d at 730. For example, one page before
Statement C, Harr writes that "One after another, interviews with
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a dozen former tannery employees led Schlichtmann nowhere. None
could recall using TCE, or dumping tannery waste . . . on the
fifteen acres." A Civil Action at 186. Immediately after
Statement C, the Book reports Schlichtmann's discovery of a witness
who seemed at first to offer compelling testimony that tannery
waste had been dumped on the fifteen acres, but who (the Book
acknowledges) turned out to lack credibility. Id. at 187-91.
Later in the Book, Harr again states that "Schlichtmann did not
have eyewitnesses who could implicate John J. Riley in the
contamination of the fifteen acres." Id. at 298. As we noted at
the outset, the Book makes plain both the strengths and the
weaknesses of the case against Riley. "Because [both] sides of the
issue, as well as the rationale for [Harr's] view, were exposed,
the assertion of deceit reasonably could be understood only as
[Harr's] personal conclusion about the information presented," not
as a statement of objective fact based on undisclosed evidence.
Phantom Touring, 953 F.2d at 730.
We reject Riley's claim that Harr's explanatory "To the
Reader" and "Note on Sources" sections, detailing his extensive
access to Schlichtmann during the Anderson trial and the voluminous
research he conducted in writing the Book, signal to the reader
that every conclusion the book attributes to Schlichtmann amounts
to an assertion by Harr of verifiable, objective fact. Harr's
purpose in notifying the reader of his extensive access to
Schlichtmann is plainly not to establish that Schlichtmann is an
omniscient figure whose inferences are all correct. Rather, his
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point is simply that he was well positioned to tell the story of
the Anderson litigation from Schlichtmann's vantage point, and to
describe the attorney's subjective experience of the chronicled
events.
Statement E
Like Statement C, Statement E appears in the section of
the Book which describes Schlichtmann's efforts to build a case
against Riley's tannery:
It seemed that everyone but Riley recognized
the fifteen acres as a toxic waste dump.
Riley must have known about the condition of
the property. Perhaps, thought Schlichtmann,
the tanner really had been running an
unauthorized waste dump. Perhaps he had
charged his neighbor, Whitney Barrel, a fee
for the use of the land.
As with Statement C, Riley argues that the district court erred in
finding that the first two sentences of Statement E were written in
Schlichtmann's voice, rather than in Harr's. But the context in
which Statement E is set makes clear that it describes
Schlichtmann's thinking as he worked to assemble a case against the
tannery. Moreover, as with Statement C, Statement E would be non-
actionable even if it were deemed to recount Harr's own evaluation
of Riley's state of mind, as it is based on evidence -- some
pointing in one direction, some in the other -- which the Book
describes in substantial detail. Phantom Touring, 953 F.2d at 730.
Riley asserts that Phantom Touring is inapposite because
Harr failed to report that some of Schlichtmann's own investigators
had concluded that the tannery was not responsible for the
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contamination of the fifteen acres. Although the Book does not
mention this specific fact, it does report evidence (some of which
we describe in connection with Statement C supra) tending to negate
Schlichtmann's theory of the case. Harr was not required to report
every single fact about the Anderson litigation, but was free to
make his own editorial choices, so long as he "fairly describe[d]
the general events involved." Partington, 56 F.3d at 1154.
Statement F
Statement F refers to a substance which Schlichtmann's
investigators discovered on the fifteen acres having the
characteristics of tannery waste and containing TCE:
If this material was indeed tannery waste,
then how had it become contaminated with TCE,
which Riley claimed he had never used? It
was, of course, possible that someone else --
Whitney, perhaps -- had dumped TCE on top of
it. That was possible, but to Schlichtmann
the most logical explanation was that it had
all come from the same place. And if that was
true, it meant that Riley had lied about TCE.
Riley acknowledges that Statement F recounts
Schlichtmann's thinking, but asserts that the passage is defamatory
because Harr "failed to disclose to the reader that TCE simply
wasn't used by the Riley Tannery." We reject Riley's contention
that Harr was required to include in the Book a declaration that
the tannery had not used TCE. The Book reports Riley's repeated
denials of TCE use, and notes Schlichtmann's failure to discover
conclusive evidence to the contrary. Having set out the evidence
for the reader to weigh, Harr cannot be subject to defamation
-17-
liability for failing to endorse Riley's version of events.
Partington, 56 F.3d at 1154.
Riley is simply wrong to assert that the Book fails to
disclose the facts upon which Statement F is based, and that
Statement F implies the existence of undisclosed facts. On the
contrary, Harr reports in great detail the factual basis for
Schlichtmann's conclusion, including facts that create problems for
Schlichtmann's theory of the case.
Statements H and J
Statement H reports a comment Schlichtmann made in
reaction to Riley's performance on the witness stand:
"Riley surprised me today,"
[Schlichtmann's partner Conway] said. "He
came off looking better than he should have.
He was so arrogant and combative in his
deposition."
"He's a liar but he's not stupid," said
Schlichtmann.
Statement J recounts Schlichtmann's reaction to Riley's testimony:
When Riley had sat on the witness stand,
[Schlichtmann had] wanted to turn to the
jurors and say, "See? This man is lying now."
As we have explained, Harr was entitled to report Schlichtmann's
opinion that Riley had given false testimony, having disclosed the
facts upon which the opinion was based, including some facts that
are in tension with Schlichtmann's conclusion. Phantom Touring,
953 F.2d at 730.
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Statement I
Statement I is Schlichtmann's account of what he believed
was a successful moment in his examination of Riley:
"It was great, wasn't it, Charlie! Why would
Riley immediately make the connection between
TCE and destroying records? Because he was
covering up! The jury understood that, didn't
they?"
Riley had testified earlier about the destruction of records
indicating what chemicals the tannery had used. Returning to the
subject at the end of his examination, Schlichtmann inquired: "Mr.
Riley, when did you destroy those records?" Harr writes:
The tanner was instantly enraged. The
question worked just as Schlichtmann had
hoped. In a loud, angry voice, Riley said, "I
don't know when those records were destroyed,
but I will repeat to you, sir, again and
again, we never used trichloroethylene--"
"No, no, no," interrupted the judge.
"You're not being asked that. You're being
asked when the records were destroyed. You
say you don't know. Next question, Mr.
Schlichtmann."
"That's all," said Schlichtmann
smiling.
Statement I is Schlichtmann's reaction to Riley's outburst. As we
have explained, the factual basis for the opinion that Riley was
"covering up" is laid out in the Book, as are certain facts tending
to discredit it. We agree with the district court that "a
reasonable reader would fully understand that the statement does
not convey that Schlichtmann knew as a fact that Riley was covering
up, but merely that [in Schlichtmann's opinion] that 'had to be'
the reason for his non-responsive answer."
-19-
Statement K
Statement K reports Schlichtmann's excited reaction, in
the post-trial phase of the Book, to his discovery of a witness who
had seen soil, which Schlichtmann surmised contained contaminated
tannery waste, being removed from the fifteen acres:
Back in the car, Schlichtmann told [his law
partner], "We've opened the box and the worms
are starting to crawl out. This isn't just
hiding evidence, this is destroying evidence."
Riley contends that Statement K "is actionable as verifiable fact
known to be false to the publisher," because "Judge Skinner clearly
ruled that any removal activities were . . . legitimately connected
to . . . EPA well monitoring operations and were performed in full
view of EPA personnel."
We reject Riley's untenable premise that Judge Skinner's
ruling precludes commentators outside of the judicial system from
expressing a contrary view. Moreover, Harr does report that Judge
Skinner "found that the 'removal activity' on the fifteen acres
'was legitimately connected to the drilling of test wells and other
investigative procedures.'" A Civil Action at 484.
Perhaps sensing the force of Harr's argument that the
Book does report views contrary to those Riley deems defamatory,
Riley asserts that Harr failed to "fully and concomitantly" reveal
to the reader that Judge Skinner later ruled that Schlichtmann's
surmise that tannery workers had been "destroying evidence" was
incorrect. Harr is right to observe that the implication of this
argument would be that "an author cannot write a book describing in
-20-
chronological order an attorney's efforts to try a case," but
instead "must reveal the end result of every legal hunch
immediately." A Civil Action is meant to be read as a whole; we
decline to impose on authors the nonsensical requirement that all
points of view be set forth at the same time.
Statement D
In his quest for evidence that Riley's tannery had
contaminated the fifteen acres with TCE, Schlichtmann's private
investigator interviewed Ruth Turner (a pseudonym), an elderly
woman who lived near the tannery:
Her husband, Paul [who had died in 1981],
would often walk down behind the house, in the
forest by the Aberjona River, on the land
owned by Riley. He would return from his
walks and tell her about the barrels and piles
of debris he'd seen there, and how sludge
waste from the tannery would flow down the
hill and onto the land. In the years before
Paul's death in 1981, recalled Ruth, he often
awoke in the middle of the night. On several
occasions, he'd told Ruth about hearing the
sounds of trucks at two or three o'clock in
the morning. He had said that he could see
the headlights of flatbed trucks full of
barrels driving up the access dirt road onto
the fifteen acres. "They're dumping stuff in
the middle of the night," Ruth recalled his
saying.
Riley contends that a reader "could understand the passage as
stating that Riley did, in fact, dump illegal material on the 15
acres." However, the Book makes clear that despite his suspicions,
Schlichtmann never succeeded in proving that Riley was responsible
for illegal dumping. Read in context, Statement D describes a
piece of evidence which suggested to Schlichtmann that the tannery
-21-
had contaminated the 15 acres with TCE, but did not prove that it
had done so. It is this unmistakable theme of the Book --
Schlichtmann's inability to move from theory, conjecture, and
surmise to actual proof -- which Riley's complaint somehow
overlooks. See Gray, 221 F.3d at 248 (citation and internal
quotation marks omitted).
Statement A
After the Anderson trial was over, Schlichtmann
discovered that Riley, during the pendency of the Anderson
litigation, had commissioned Yankee to conduct a hydrogeologic
investigation of the tannery property. Yankee had written a report
describing its findings, which was never produced for the
plaintiffs during discovery. Nor was a subsequent report
reevaluating Yankee's data. Judge Skinner ruled that Riley had
engaged in deliberate concealment of the reports. The judge
explained:
In his testimony on deposition and at trial
Riley denied the existence of these reports.
With respect to each question, taken
separately, the answer might be justified
because of hypertechnical interpretations of
the questions posed by the interrogator. (For
instance, "Did you test the sludge?" Answer[:]
"No." Fact: He caused a test to be made by
someone else.) Similarly one could quibble
over the definition of the documents. There
were enough such questions, however, so that
any fair response should at one time or
another have revealed the existence of these
reports. In addition, Mr. Riley denied the
existence of laboratory reports and chemical
formulas which were clearly called for. Even
allowing for Mr. Riley's apparent
unsophistication and inarticulateness, I
conclude that the pattern of evasive answers
concerning these reports and the other
-22-
documents by Mr. Riley requires a finding that
the concealment was deliberate.
Anderson v. Beatrice Foods Co., 127 F.R.D. 1, 5 (D. Mass. 1989).
Statement A is Harr's description of Judge Skinner's
finding:
The judge found that Riley had committed
perjury and that Mary Ryan was guilty of
'deliberate misconduct' in failing to give
Schlichtmann the Yankee report.
Riley contends that "deliberate concealment" does not amount to the
crime of perjury, and that Statement A is therefore a false account
of the judge's ruling.
The Supreme Court has observed that "[t]he common law of
libel . . . overlooks minor inaccuracies and concentrates upon
substantial truth. . . . Minor inaccuracies do not amount to
falsity so long as the substance, the gist, the sting, of the
libelous charge be justified." Masson v. New Yorker Magazine,
Inc., 501 U.S. 496, 516-17 (1991) (citation and internal quotation
marks omitted). As the district court noted, under New Hampshire
law "[a] statement is not actionable if it is substantially true."
Simpkins v. Snow, 139 N.H. 735, 740 (1995).
Moreover, under the fair report privilege, "'the
publication of defamatory matter concerning another in a report of
an official . . . proceeding . . . that deals with a matter of
public concern [is privileged] if the report is accurate and
complete or a fair abridgement of the occurrence reported.'" Hayes
v. Newspapers of New Hampshire, Inc., 141 N.H. 464, 466 (1996)
(quoting Restatement (Second) of Torts § 611 (1977)). A "fair"
-23-
report need not be a verbatim report; it is enough that the report
be "a rough-and-ready summary that is substantially correct." Id.
at 466 (citation and internal quotation marks omitted); see also
Lambert v. Providence Journal Co., 508 F.2d 656, 659 (1st Cir.
1975) (noting courts' "reluctance to entertain libel suits
dependent upon a precise construction of a newspaper's use of
technical legal terminology"); Ricci v. Venture Magazine, Inc., 574
F. Supp. 1563, 1567 (D. Mass. 1983) ("a journalist's report need
not describe legal proceedings in technically precise language" if
it meets "a common sense standard of expected lay interpretation").
Judge Skinner found that Riley's denial of the existence
of the Yankee report under oath amounted to deliberate concealment.
We agree with the district court that the word "perjury" -- defined
in the Random House Webster's Unabridged Dictionary (2d ed. 1997)
as "the willful giving of false testimony under oath" -- is a fair
rendition of Judge Skinner's characterization of Riley's conduct,
and is therefore non-actionable under New Hampshire law. Although
Judge Skinner did not say that Riley's actions met the legal
definition of perjury, Harr's account is "a rough-and-ready
summary" of the judge's ruling that is "substantially correct."
Hayes, 141 N.H. at 466.
Riley argues that because the Book was published six
years after Judge Skinner made his "deliberate misconduct"
pronouncement, Harr "had ample time to review the official record
and accurately report the Court's findings." Riley declares that
the non-contemporaneous nature of Harr's report somehow "result[s]
-24-
in the attenuation of the need for and purpose of the fair report
privilege and 'rough and ready' protection analysis." In a closer
case we might deem a six year gap between the event reported and
the publication of the report a factor to be weighed in evaluating
the report's fairness. This is not a close case, however, and
Riley offers no reason why we should reject the usual rule that "a
journalist's [substantially accurate] report need not describe
legal proceedings in technically precise language" simply because
Harr had enough time, in principle, to master the precise legal
meaning of the term "perjury." Ricci, 574 F. Supp. at 1567.
Statement G
After Riley's first day on the witness stand,
Schlichtmann's colleagues critiqued his examination of Riley. The
Book reports that Tom Neville suggested to Schlichtmann that
"'[t]he jury wants you to kick the shit out of [Riley]." After
Thomas Kiley had exhorted Schlichtmann to "crack" Riley, the
following ensued:
Neville jumped up, too, and hovered
over Schlichtmann from the other side.
"You've got to manhandle him!" said Neville.
"Yeah, great," said Schlichtmann, his
head bowed, his voice soft. "That's good
showmanship, but I've got to get evidence in."
"My God, this is the guy who killed
your kids!" yelled Neville. "You should be
attacking him with a fucking baseball bat!
You shouldn't be asking him" -- Neville
adopted a mincing tone -- "And then what did
you do next, Mr. Riley?" . . . .
[Schlichtmann's colleagues continue to
coach him. The scene concludes with Kiley
saying to Schlichtmann:] "In my eleven years
of trial experience, you've got more shit to
use on this guy than I've ever seen before.
-25-
You can fucking destroy him. What does it
take to get you mad?"
Riley argues that Statement G would be understood by a reasonable
reader as a statement of provable fact. Harr responds that
Statement G is a hyperbolic expression that cannot be understood as
an assertion of objective fact.
Reading Statement G in context, it is unmistakable that
Neville's purpose in describing Riley as "the guy who killed your
kids" is to inspire Schlichtmann to conduct a more forceful
examination of Riley, and that Harr's purpose in reporting this
episode is to capture the reaction of Schlichtmann's colleagues to
his poor performance that day. In a sense, Statement G is
"rhetorical hyperbole, a vigorous epithet" used by Neville to
arouse Schlichtmann's fighting spirit. Milkovich, 497 U.S. at 17
(quoting Greenbelt Cooperative Publishing Assn., Inc. v. Bresler,
398 U.S. 6, 13-14 (1970)). "[T]he First Amendment protects the
'rhetorical hyperbole' and 'imaginative expression' that enlivens
writers' prose." Partington, 56 F.3d at 1157 (quoting Milkovich,
497 U.S. at 20).
However, in contrast to Greenbelt, where the court
concluded that the defendant's use of the word "blackmail" was not
meant as a literal accusation that the plaintiff had committed the
crime of blackmail, the Anderson plaintiffs did contend that
Riley's tannery, by causing TCE to enter the Woburn water supply,
had "killed" their children. Greenbelt, 398 U.S. at 14; see also
Letter Carriers v. Austin, 418 U.S. 264, 285 (1974) (description of
-26-
plaintiff as a "traitor" was not a literal accusation that
plaintiff had committed the crime of treason). Even so, Statement
G is non-actionable for the same reasons that the statements
discussed supra, charging Riley with giving false testimony, are
non-actionable. Having disclosed the facts upon which Statement G
is based, Harr is entitled to report Neville's view that Riley's
actions had caused the death of the plaintiffs' children. Phantom
Touring, 953 F.2d at 730.
III. False Light
In opposition to the district court's entry of summary
judgment for Harr on his false light invasion of privacy claims in
connection with Statements A, C, D, E, F, G, H, I, J and K, Riley
simply refers us to his arguments against the dismissal of his
defamation claims. We agree with the district court that it is
unnecessary to decide whether the New Hampshire Supreme Court would
recognize the false light tort because Riley's false light claim is
"a mere restatement of [his] defamation claim, but under a
different name." Harr is therefore entitled to the same
constitutional protections that compelled the district court to
dismiss his defamation claims. See Brown v. Hearst Corp., 54 F.3d
21, 27 (1st Cir. 1995) (holding that where a false light claim is
"simply a restatement of [a] defamation claim under a different
heading[,] . . . it is not imaginable that it could escape the
same constitutional constraint as [the] defamation claim").
-27-
IV. Public Disclosure of Private Fact
Statement L describes Riley's appearance at the post-
trial hearing on the failure of the defendants to produce certain
documents:
Riley returned to the courtroom in early
March, three years after first taking the
witness stand during trial. Back then, he'd
been aggressive and antagonistic, but now he
looked sickly, moody, and listless. He paced
in the corridor, eyes narrowed and suspicious,
mouth tightly compressed. He was in his mid-
sixties, suffering from episodes of
depression.
Although the district court denied Harr's motion for summary
judgment on Riley's defamation claim as to Statement L, deeming it
to be a non-protected assertion of the verifiable fact that Riley
had experienced episodes of depression, it granted summary judgment
on Riley's public disclosure of private fact claim on the ground
that his depression was substantially relevant to the Anderson
litigation, a matter of legitimate public concern.13 In assessing
Riley's public disclosure of private fact claim, we must assume
that Statement L is true (otherwise it would not amount to the
disclosure of a private "fact.")
The district court concluded that the New Hampshire
Supreme Court would recognize, if it had not already done so by
implication, a cause of action for public disclosure of private
fact. See Hamberger v. Eastman, 106 N.H. 107, 111 (1964)
13
Riley has since abandoned his defamation claim as to
Statement L in order to get a final judgment.
-28-
(declaring that "'a person who unreasonably and seriously
interferes with another's interest in not having his affairs known
to others . . . is liable to the other'") (quoting Restatement of
Torts § 867). However, the district court declared that the First
Amendment "protects the publication of private facts that are
newsworthy, that is, of legitimate concern to the public. Even if
the private fact is not itself newsworthy, its publication is still
protected if it has substantial relevance to, or any substantial
nexus with a newsworthy topic" (citations and internal quotation
marks omitted).
Riley does not challenge the district court's premise
that Statement L is non-actionable if it is substantially relevant
to the story told in the Book. He argues instead that the court
erred in finding the fact of his depression to be relevant to the
Anderson litigation. Assuming with the district court that New
Hampshire would recognize a cause of action for public disclosure
of private fact, and that this cause of action contemplates an
exception for statements that are substantially relevant to a
matter of legitimate public concern, we evaluate the relevance of
Riley's depression to the story recounted in the Book.
The relevance of Statement L to the subject matter of the
Book is unmistakable. The Book reports that Beatrice's attorney,
concerned about Riley's performance on the witness stand during the
post-trial hearing, "would have liked to bring out the fact of
Riley's depression in defense of the tanner's mental confusion and
failures of memory, but Riley had told him, 'I don't want to talk
-29-
about that.'" A Civil Action at 482. We also agree with Harr that
one of the purposes of the Book was to chronicle "the devastating
emotional toll of the litigation on many of the participants,"
including Riley and Schlichtmann, the Book's protagonist. Under
these circumstances, Riley's mental condition was relevant to the
Anderson litigation.
V. Intentional Infliction of Emotional Distress
The district court dismissed Riley's intentional
infliction of emotional distress claim on the ground that "New
Hampshire law does not recognize a cause of action for wrongful
infliction of emotional distress where the factual predicate sounds
in defamation" (quoting DeMeo v. Goodall, 640 F. Supp. 1115, 1116
(D.N.H. 1986). We do not reach this question of New Hampshire law,
however, because we are convinced that Riley's allegations, as a
matter of law, do not rise to the level of "'extreme and outrageous
conduct'" required to support an intentional infliction of
emotional distress action. Morancy v. Morancy, 593 A.2d 1158, 1159
(N.H. 1991) (quoting Restatement (Second) of Torts § 46). Conduct
is deemed to be extreme and outrageous "only where [it] has been so
outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community." Miller v. CBC
Cos., Inc., 908 F. Supp. 1054, 1067 (D.N.H. 1995) (quoting
Restatement (Second) of Torts § 46, comment d). Such cannot be
said of Statements A, C, D, E, F, G, H, I, J, and K, which express
in various ways the view that Riley had not given truthful
-30-
testimony during the Anderson litigation (see supra). Although we
realize that Riley would have preferred that Harr not publish a
critical evaluation of his testimony in the Anderson case, we are
also persuaded that Harr's portrayal of Riley cannot be said to
have exceeded "all possible bounds of decency," or to be
"atrocious, and utterly intolerable in a civilized community."
We take the same view of Statement L (see supra), which
reports that Riley had experienced "episodes of depression"
14
(relevant to the Anderson litigation), and also of Statement B.
Statement B reads:
He had once confronted a neighbor who had
written an article about the tannery stench
for the Civic Association Newsletter. Banging
on the neighbor's door one evening, he had
stomped uninvited into the living room, put
his thick finger to his neighbor's chest and
yelled that he, Riley, was a big taxpayer in
the city, and by what right did the neighbor
slander his business in such a manner? The
neighbor, at first taken aback by the verbal
tirade, finally told Riley to get out of his
house.
Although perhaps unflattering, Harr's publication of this account
of Riley's conduct simply does not rise to the level of "atrocious"
or "utterly intolerable" conduct.
14
The district court denied Harr's motion to dismiss Riley's
defamation claim with respect to Statement B, declining to rule as
a matter of law that the statement was not defamatory. The parties
subsequently stipulated to the dismissal of Riley's defamation
claim with respect to Statement B.
-31-
VI. Loss of Consortium and Enhanced Compensatory Damages
At the end of their brief, the Rileys assert that their
claims for loss of consortium and enhanced compensatory damages
should go forward "[f]or all of the reasons set forth above in
sections I-IV of this Brief [dealing with the Rileys' defamation
and other tort claims]."15 This is the extent of their argument on
the loss of consortium and enhanced compensatory damages claims.
In Sections II-V of this opinion, we rejected the Rileys' arguments
as to their defamation and other tort claims on which the district
court properly granted summary judgment for Harr. The same
arguments advanced in support of their loss of consortium and
enhanced compensatory damages claims necessarily must fail for the
same reasons.
Affirmed.
15
Punitive damages are not available in New Hampshire, but
"when the act involved is wanton, malicious, or oppressive, the
compensatory damages awarded may reflect the aggravating
circumstances." Panas v. Harakis, 529 A.2d 976, 986 (N.H. 1987)
(citation omitted).
-32-
Appendix
The specific language Riley complains of is indicated in bold. We
have included some of the surrounding text to help put the
challenged statements in context. Citations are to the 1996
Vintage Books edition. The letters assigned to the statements
reflect the lettering used by Riley during the litigation.
A . The judge found that Riley had committed
perjury and that Mary Ryan was guilty of
'deliberate misconduct' in failing to give
Schlichtmann the Yankee report. A Civil
Action at 483.
B. He had once confronted a neighbor who had
written an article about the tannery stench
for the Civic Association Newsletter. Banging
on the neighbor's door one evening, he had
stomped uninvited into the living room, put
his thick finger to his neighbor's chest and
yelled that he, Riley, was a big taxpayer in
the city, and by what right did the neighbor
slander his business in such a manner? The
neighbor, at first taken aback by the verbal
tirade, finally told Riley to get out of his
house. A Civil Action at 91-92.
C. This document was thirty years old and it
dealt only with tannery waste, which might or
might not have contained TCE. But even so,
Schlichtmann thought it had great value.
Riley had sworn at his deposition that he had
never dumped anything on the fifteen acres.
Riley had lied then, and Schlichtmann -- who
didn't need much convincing -- believed that
Riley was also lying about using TCE. A Civil
Action at 187.
D. Her husband, Paul [who had died in 1981],
would often walk down behind the house, in the
forest by the Aberjona River, on the land
owned by Riley. He would return from his
walks and tell her about the barrels and piles
of debris he'd seen there, and how sludge
waste from the tannery would flow down the
hill and onto the land. In the years before
-33-
Paul's death in 1981, recalled Ruth, he often
awoke in the middle of the night. On several
occasions, he'd told Ruth about hearing the
sounds of trucks at two or three o'clock in
the morning. He had said that he could see
the headlights of flatbed trucks full of
barrels driving up the access dirt road onto
the fifteen acres. "They're dumping stuff in
the middle of the night," Ruth recalled his
saying. A Civil Action at 188.
E. It seemed that everyone but Riley
recognized the fifteen acres as a toxic waste
dump. Riley must have known about the
condition of the property. Perhaps, thought
Schlichtmann, the tanner really had been
running an unauthorized waste dump. Perhaps
he had charged his neighbor, Whitney Barrel, a
fee for the use of the land. A Civil Action at
191-92.
F. If this material was indeed tannery waste,
then how had it become contaminated with TCE,
which Riley claimed he had never used? It
was, of course, possible that someone else --
Whitney, perhaps -- had dumped TCE on top of
it. That was possible, but to Schlichtmann
the most logical explanation was that it had
all come from the same place. And if that was
true, it meant that Riley had lied about TCE.
A Civil Action at 193.
G. "Yeah, great," said Schlichtmann, his head
bowed, his voice soft. "That's good
showmanship, but I've got to get evidence in."
"My God, this is the guy who killed
your kids!" yelled Neville. "You should be
attacking him with a fucking baseball bat!
You shouldn't be asking him" -- Neville
adopted a mincing tone -- "And then what did
you do next, Mr. Riley?" . . . .
[Schlichtmann's colleagues continue to
coach him. The scene concludes with Kiley
saying to Schlichtmann:] "In my eleven years
of trial experience, you've got more shit to
use on this guy than I've ever seen before.
-34-
You can fucking destroy him. What does it
take to get you mad?" A Civil Action at 311.
H. "Riley surprised me today," [Schlichtmann's
partner Conway] said. "He came off looking
better than he should have. He was so
arrogant and combative in his deposition."
"He's a liar but he's not stupid," said
Schlichtmann. A Civil Action at 312.
I. "It was great, wasn't it, Charlie! Why
would Riley immediately make the connection
between TCE and destroying records? Because
he was covering up! The jury understood that,
didn't they?" A Civil Action, p. 315.
J. When Riley had sat on the witness stand,
[Schlichtmann had] wanted to turn to the
jurors and say, "See? This man is lying now."
A Civil Action at 371.
K. Back in the car, Schlichtmann told [his
law partner], "We've opened the box and the
worms are starting to crawl out. This isn't
just hiding evidence, this is destroying
evidence." A Civil Action at 470.
L. Riley returned to the courtroom in early
March, three years after first taking the
witness stand during trial. Back then, he'd
been aggressive and antagonistic, but now he
looked sickly, moody, and listless. He paced
in the corridor, eyes narrowed and suspicious,
mouth tightly compressed. He was in his mid-
sixties, suffering from episodes of
depression. A Civil Action at 480.
-35-