On Feb 11, 2010 the Massachusetts appeals court in an unpublished opinion ruled in JOSEPH M. ORLANDO vs. GARRICK F. COLE 09-P-404 2/12/2010 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 that the Attorney could be sued for defamation by the Police Officer after questioning his integrity and motives in the press while defending his client.
In reviewing the facts the court stated that “In February, 2005, Orlando was representing a seventeen year old high school student who claimed that her basketball coach, Thomas A. Atwater, sexually assaulted her. Atwater apparently was an acquaintance of Orlando ‘s. After the alleged incident, Atwater , then unrepresented, approached Orlando , admitted that he committed the act, signed an affidavit to that effect, and then went to the police and made a full confession.
A few days later, Orlando spoke to two newspaper reporters, gave them a copy of Atwater ‘s affidavit, and explained the circumstances under which Atwater gave the affidavit. Before publishing their article, the reporters approached Cole, who by this time was representing Atwater in the criminal matter, and asked for Cole’s comments. Cole responded that ‘the affidavit is ‘inaccurate’ and called Orlando ‘s actions ‘deceitful’ and ‘fraudulent.” The article further stated, ‘Cole would not say what he thought was inaccurate in the affidavit.’ Both Orlando’s and Cole’s comments were reported together in various publications. Orlando then sued Cole for slander. The complaint alleged that Cole’s comments were false, ‘described conduct by [ Orlando ] undertaken in his profession and business, and impute an unfitness for or a misconduct in his office or employment.’
We begin with a threshold inquiry into whether the comments are ”reasonably susceptible of a defamatory connotation,’ so as to warrant their submission to a jury to determine if in fact the defamatory connotation was conveyed.’ Jones v. Taibbi, 400 Mass. 786, 791 (1987), quoting from Cianci v. New York Times Publishing Co., 639 F.2d 54, 60 (2d Cir. 1980). ‘A statement is defamatory in the circumstances if it discredits a person in the minds of any considerable and respectable class of the community.’ Howell v. The Enterprise Publishing Co., LLC, 455 Mass. 641, 670 (2010), quoting from Milgroom v. News Group Boston, Inc., 412 Mass. 9, 12 (1992). We conclude that the comments at issue are susceptible of a defamatory connotation because each of the terms used — ‘inaccurate,’ ‘fraudulent,’ and ‘deceitful’ — imply misconduct. [FN2] We now turn to whether Cole’s statements were ones of fact, or opinion, or a combination of both. [FN3] ‘The determination whether a statement is one of fact or opinion is generally considered a question of law.’ Cole v. Westinghouse Bdcst. Co., 386 Mass. 303, 309 (1982). The distinction is critical because ‘[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. But there is no constitutional value in false statements of fact.’ Gertz v. Robert Welch, Inc. 418 U.S. 323, 339-340 (1974) (footnote omitted).
To determine whether a statement is opinion, a court must ‘examine the statement in its totality in the context in which it was uttered or published.’ Fleming v. Benzaquin, 390 Mass. 175, 180 (1983), quoting from Cole v. Westinghouse Bdcst. Co., supra. In doing so, ‘[t]he court must consider all the words used, not merely a particular phrase or sentence. In addition, the court must give weight to cautionary terms used by the person publishing the statement. Finally, the court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published.’ Fleming v. Benzaquin, supra at 180-181, quoting from Cole v. Westinghouse Bdcst. Co., supra. If the ‘average reader’ could understand the allegedly libelous statements as either fact or opinion, the determination is for the jury. Lyons v. New Mass Media, Inc., 390 Mass. 51, 59 (1983). See Myers v. Boston Magazine Co., 380 Mass. 336, 339-340 (1980).
Cole’s allegations that the affidavit signed by Atwater was ‘inaccurate’ and that Orlando ‘s conduct was ‘fraudulent’ and ‘deceitful’ are factual because they are capable of being proved false. See Reilly v. The Associated Press, 59 Mass. App. Ct. 764, 772 (2003). These comments were not presented as opinions nor accompanied by any cautionary language. Even if we were to conclude that these statements were an expression of opinion, they appear to be based on undisclosed defamatory facts, namely the unreported private communications between Cole and his new client, Atwater . ‘[D]efamation can occur by innuendo as well as by explicit assertion.’ Id. at 774, quoting from Brown v. Hearst Corp., 54 F.3d 21, 25 (1st Cir. 1995). As previously noted, the terms imply misconduct. Because, within the context of the article, a reader could view Cole’s comments as based on undisclosed defamatory facts, they are not protected under the First Amendment. See Cole v. Westinghouse Bdcst. Co., supra at 312-313.
A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. In short, defense attorneys should be very careful as to what they say to the press regarding the character of the police Officer(s) who investigated the incident. There is a marked difference between vigorous defense and Slander.
Attorney Ronald A. Sellon