Harry Yohe v. PETER NUGENT; WORCESTER TELEGRAM AND GAZETTE; KATE WALSH and NASHOBA PUBLICATIONS. INC.

United States Court of Appeals
For the First Circuit
Nos. 01-2131
02-1434
HARRY YOHE,
Plaintiff, Appellant,
v.
PETER NUGENT; WORCESTER TELEGRAM AND GAZETTE;
KATE WALSH and NASHOBA PUBLICATIONS. INC.,
Defendants, Appellees,
and
WILLIAM MAY, CHIEF OF TOWNSEND POLICE DEPARTMENT,
TOWNSEND TRILOGY and CITY OF TOWNSEND,
Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Damon Scarano, for appellant.
Elizabeth A. Ritvo, with whom Jeffrey P. Hermes and Brown
Rudnick Berlack Israels LLP, were on brief, for appellees Kate
Walsh and Nashoba Publications.
Jonathan M. Albano, with whom Bingham Dana LLP, was on brief,
for appellees Peter Nugent and Worcester Telegram & Gazette
Corporation.
Stephen C. Pfaff, with whom Douglas I. Louison and Merrick,
Louison & Costello, were on brief for appellees William May and
City of Townsend.
February 26, 2003

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TORRUELLA, Circuit Judge. Appellant Harry Yohe is a
retired member of the Army Green Berets. In May of 1997, Yohe
resided in Townsend, Massachusetts and was stationed at Fort
Devens. On the evening of May 11, 1997, police responded to a
report of a domestic disturbance involving Yohe. The police
interviewed Yohe's spouse at the neighbor's residence and she told
them that, Yohe was threatening suicide and had amassed an arsenal
of weapons. Yohe's wife informed police that her husband had been
acting irrationally and had armed himself with two AK-47 rifles, a
Kevlar helmet and 400 rounds of ammunition. She also reported that
Yohe, who was on antidepressants, had been drinking since the
previous day and was home alone with his seventeen year-old son.
Townsend Police and Massachusetts State Police evidently
took Mrs. Yohe's report very seriously, because they dispatched a
small army to Yohe's house. Thirty police vehicles, including a
SWAT team and a hostage negotiator converged on the Yohe home, only
to find that Yohe had left the residence. Police later found Yohe
at Fort Devens, where he was arrested at approximately 1:30 A.M. on
May 12, 1997.
After his arrest at Fort Devens, Yohe was transported to
Nashoba Deaconess Hospital for a medical evaluation. He was then
transferred to St. Elizabeth's hospital in Brighton for further
treatment and psychiatric evaluation. Although the record is less
than clear on this point, it appears that both hospitals discharged

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Yohe shortly after admitting him, finding no evidence of
intoxication or suicidal ideation.
On May 13th and 14th, two local newspapers printed
stories about the arrest. Peter Nugent of the Worcester Telegram
& Gazette and Kate Walsh, a reporter for the Townsend Times
published articles about the arrest, without identifying Yohe by
name. The two articles were substantially similar and we reproduce
the Townsend Times article in full here.
DOMESTIC SITUATION TURNS UGLY
TOWNSEND--Many local residents were alarmed Sunday night
with the sight of up to 30 state police vehicles traveling through
the streets of Townsend. Police Chief William May had called in
the extra forces when a woman reported a drunk and suicidal husband
in possession of deadly fire power and hundreds of rounds of
ammunition.
The domestic dispute between husband and wife began at
about 7 p.m. on Mother's Day, stated May. Police were called at
approximately 8:30 p.m. when the woman reported that she and her
children had left the house with a drunk and suicidal husband still
inside. The unidentified woman alerted police of the presence of
two AK47s and 500 rounds of ammunition in the house, with her
husband identified as a former soldier connected with special
forces units.
"He had been drinking all weekend," stated May. "She
also told us that her older son was either in the house or on his
way there . . . We determined that he was there."
With the unidentified man in custody by midnight, police
confirmed that he had been drinking. May stated it was his belief
that the man was suicidal. No charges have been brought against
him.
The operation was secured at 4 a.m. Monday morning.
The Nugent and Walsh articles were published one and two
days after Yohe's arrest, hospitalization and discharge. Each of

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the articles was based entirely on interviews with Chief May.
Nugent and Walsh had each interviewed May in the past, and finding
him to be a credible source, did not conduct an independent
investigation before publishing the articles. Consequently,
neither article contained any information about Yohe's eventual
discharge from the hospital, or about the results of any
examinations he underwent. It is undisputed that the articles
accurately recounted Chief May's statements to Nugent and Walsh.
As for May himself, his statements were based on the
police incident report, which memorialized the telephone report and
request for assistance by Yohe's spouse. There is no also no
dispute about the accuracy of Chief May's statements regarding
Yohe's spouse's domestic dispute report.
Yohe sued Nugent and the Worcester Telegram & Gazette,
and Walsh of Nashoba Publications, Inc. [the "Newspaper
defendants"] for defamation and intentional infliction of emotional
distress. Yohe also sued Chief May for defamation and intentional
infliction of emotional distress. Additionally, he brought an
action against May and the town for a variety of alleged
constitutional violations connected with Yohe's arrest and May's
statements to the media. The district court granted summary
judgment to the Newspaper defendants on the ground that the reports
were either truthful or protected by the fair report privilege.
The court also granted summary judgment for Chief May, finding that

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his statements were not defamatory because they simply conveyed
"information he received in his official capacity and which served
as the basis for the arrest." Further, his statements could not
give rise to a suit for intentional infliction for emotional
distress because the statements were not extreme and outrageous.
Yohe now appeals the district court's summary dismissal of his
defamation and infliction of emotional distress claims.
Discussion
We review the district court's grant of summary judgment
for Chief May and the Newspaper defendants de novo. We affirm the
district court's judgment only if there is no genuine issue of
material fact and if the appellees are entitled to judgment as a
matter of law. Rochester Ford Sales, Inc. v. Ford Motor Co., 287
F.3d 32, 38 (1st Cir. 2002).
Defamation is the publication, either orally or in
writing, of a statement concerning the plaintiff which is false
and causes damage to the plaintiff. McAvoy v. Shufrin, 401 Mass.
593, 587 (1988). To establish a claim of defamation, a plaintiff
must satisfy the following elements. First, the defamatory
statement must "hold the plaintiff up to contempt, hatred, scorn,
or ridicule or tend to impair his standing in the community, at
least to his discredit in the minds of a considerable and
respectable class in the community." Tartaglia v. Townsend, 19
Mass. App. Ct. 693, 696 (1985) (quotation omitted). Second, the

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1 Ordinarily, the standard of fault in defamation cases turns on
whether the plaintiff is a private figure or a public official.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Here, there is
some question about whether or not Yohe's former position as
"second in command at Fort Devens Reserve Forces Training Area"
elevates him into public official status. Nevertheless because we
decide Yohe's defamation claims against the Newspaper defendants on
grounds of privilege, we do not reach the issue of whether Yohe is
a private figure for defamation purposes.
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statement must have been to at least one other individual other
than the one defamed. Brauer v. Globe Newspaper Company, 351 Mass.
53, 56 (1966). Third, where the speech is a matter of public
concern, a defamation plaintiff must prove not only that the
statements were defamatory, but also that they were false.1
Dulgarian v. Stone, 420 Mass. 843, 847 (1995); see also
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986)
(holding that where plaintiff is a private figure and newspaper
articles are a matter of public concern, there is a "constitutional
requirement that the plaintiff bear the burden of showing falsity,
as well as fault, before recovering damages"). Finally, the
plaintiff must show that he suffered special damages and must set
forth these damages specifically. Lynch v. Lyons, 303 Mass. 116,
119 (1939).
With that background in mind, we now analyze the
statements of Chief May and the Newspaper defendants to determine
whether any of these statements can support a claim of defamation
or intentional infliction of emotional distress.

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A. Chief May's Statements
Yohe alleges that Chief May's statements defamed him and
intentionally inflicted emotional distress. Specifically, Yohe
challenged the following statements that May made to the press: (1)
that Yohe "was a retired member of the Army Special Forces of Green
Berets and has been trained as a sniper;" (2) that Yohe had
"threatened to kill himself and was reported to be armed with
several large caliber weapons;" and (3) "it was [May's] belief that
[Yohe] was suicidal."
As the district court judge noted,
Reading the newspaper articles in their
entirety, it is clear that May was simply
reporting information he received in his
official capacity and which served as the
basis for the arrest. He makes clear that the
information was derived from witness
statements, and qualifies his recitation of
facts with phrases like "according to
witnesses," "it was [my] belief," and "it was
reported." While plaintiff challenges the
veracity of the underlying information May
gathered from witnesses, he does not refute
that those facts were reported to May, or that
they were the premise of his conduct.
Yohe v. May, No. CIV.A. 00-10802-RWZ, 2002 WL 924225 at *1
(D.Mass., March 14, 2002).
May's statements referring to Yohe's military background,
to the fact that he was heavily armed and that he was in a
disturbed mental state on May 11, 1997 amount to nothing more than
unrefuted statements of fact. Although Yohe now challenges these
statements, the fact is that most of them are either true or have

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never been shown to be false. Yohe carries the burden of showing
that each allegedly defamatory statement is materially false.
Dulgarian, 420 Mass. at 847; see also Phantom Touring Inc. v.
Affiliated Publ'ns, 953 F.2d 724, 727 (1st Cir. 1992) (holding that
"statements made by a media defendant must be provable as false
before there can be defamation liability").
Moreover, other statements referring to Yohe's background
could not -- even if they were proven false -- amount to defamatory
language. For instance, Yohe now claims that although he was a
Green Beret, he did not receive "sniper training." While this
aspect of the articles may be inaccurate, inaccuracy by itself does
not make a statement defamatory. It is inconceivable that this
inaccurate account of Yohe's Special Forces training could hold
Yohe "up to contempt, hatred, scorn, or ridicule or tend to impair
his standing in the community." See Tartaglia, 19 Mass. App. Ct.
at 696.
The only other statement Yohe characterizes as defamatory
is the statement "May stated it was his belief that [Yohe] was
suicidal." Unlike the other challenged statements which recited
basic facts about Yohe's background and his conduct on May 11, this
statement plainly constitutes Chief May's opinion about Yohe's
mental state the night of the arrest. May's opinion was of obvious
relevance to the reporters' stories because, as the Telegram
article explained, Yohe "was arrested under a state law that allows

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police to take into custody anyone who is considered at risk of
harming himself."
To determine whether or not a statement is an opinion,
a court "must 'examine the statement in its totality and in the
context in which it was uttered or published. The court must
consider all the words used . . . [and] 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." Lyons v. Globe Newspaper Co., 415
Mass. 258, 263 (1993), quoting Fleming v. Benzaquin, 390 Mass. 175,
180-81 (1983). Here, the qualified language of the statement ("it
was his belief") makes clear that May was expressing his own
opinion about Yohe's mental state on May 11 and 12, 1997.
Of course, the fact that a statement is an opinion does
not automatically shield it from a defamation claim. After all,
"expressions of 'opinion' may often imply an assertion of objective
fact." Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990);
Dulgarian, 420 Mass. at 849. Thus, a cause of action for
defamation may still be sustained where an opinion "implies the
allegation of undisclosed defamatory facts as the basis for the
opinion." Nat'l Ass'n of Gov't Employees, Inc. v. Central Broad.
Corp., 379 Mass. 220, 227-28 (1979). Chief May's opinion, however,
was based on disclosed nondefamatory facts. As the district court
correctly noted, May "makes clear that the information was derived

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from witness statements, and qualifies his recitation of facts with
phrases like 'according to witnesses' . . . and 'it was reported.'"
Yohe v. May, 2002 WL 924225 at *1. Since the articles establish
that May's opinion was based on witness statements and reports he
received, the "logical nexus between the facts and the opinion
sufficiently apparent to render unreasonable any inference that the
derogatory opinion was must have been based on undisclosed facts."
Dulgarian, 420 Mass. at 850-51, quoting Lyons, 415 Mass. at 266.
An "expression of opinion based on disclosed or assumed
nondefamatory facts is not itself sufficient for an action of
defamation, no matter how unjustified or unreasonable the opinion
may be or how derogatory it is." Id. Consequently, Chief May's
opinion about Yohe's mental state is not actionable.
In sum, the statements challenged by Yohe all fall into
one of three categories: (1) unrefuted statements of fact; (2)
statements which -- although likely false -- could not reasonably
be considered offensive to the average person in the community; and
(3) statements of opinion based upon disclosed facts. As none of
these types of statements provides a basis for a defamation cause
of action, Yohe's defamation claim against Chief May fails.
Yohe also alleges that Chief May's statements are
sufficient to find May liable for intentional infliction of
emotional distress. This claim is premised on precisely the same
facts as his defamation claim. To prevail, Yohe must show: (1)

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that May intended to inflict emotional distress or that he knew or
should have known that emotional distress was the likely result of
his conduct; (2) that the conduct was extreme and outrageous, was
beyond all possible bounds of decency and was utterly intolerable
in a civilized community; (3) that May's actions were the cause of
Yohe's distress; and (4) that the emotional distress sustained by
Yohe was severe. Agis v. Howard Johnson Co., 371 Mass. 140, 144-45
(1976) (citations and quotations omitted).
Two reporters asked Chief May why thirty police cruisers
and a SWAT team descended on a residence in Townsend,
Massachusetts. May explained, in the most professional manner
possible, that the officers were dispatched to ensure a calm
resolution in a domestic dispute involving a heavily armed and
potentially suicidal ex-Green Beret. He provided the public with
an accurate summary of the facts as they had been reported to him,
and, without identifying Yohe by name, justified his decision to
arrest him by explaining that he believed Yohe might be suicidal.
May's conduct cannot in any way be described as "extreme and
outrageous." Consequently, Yohe's emotional distress claim fails.
Finally, Yohe claims that Chief May made defamatory
statements to other law enforcement officials about Yohe being
suicidal and dangerous, and that these statements resulted in the
false arrest, physical beating, invasion of privacy and warrantless
search of Yohe's home. He claims that May's actions violated his

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constitutional rights and seeks relief pursuant to 42 U.S.C.
§ 1983. These claims have been briefed by the parties and reviewed
by this Court, and we find them to be without merit.
B. The Newspaper Defendants
Yohe's claim against the Newspaper defendants is premised
on the same facts and statements as his claim against Chief May.
The district court granted summary judgment to the Newspaper
defendants on the ground that, as a matter of law, the news account
of Yohe's arrest was a privileged fair report of governmental
conduct. We agree.
The fair report privilege "allows those who fairly and
accurately report certain types of official or governmental action
to be immune from liability for claims arising out of such
reports." ELM Medical Laboratory, Inc. v. RKO General Inc., 403
Mass. 779, 782 (1989). The purpose of the privilege is to ensure
that publications may perform the important function of informing
the public of actions taken by government agencies and officials.
See Sibley v. Holyoke Transcript-Telegram Publ'g Co., 391 Mass.
468, 472 (1984). As set forth in ELM Medical,
The [fair report privilege] recognizes that
(1) the public has a right to know of official
government actions that affect the public
interest, (2) the only practical way many
citizens can learn of these actions is through
a report by the news media, and (3) the only
way news outlets would be willing to make such
a report is if they are free from liability,
provided that their report was fair and
accurate.

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ELM Medical, 403 Mass. at 782 (internal quotations and citations
omitted).
To qualify for the fair report privilege the report must
be a fair and accurate portrayal of the official action. The test
is whether a reporter's "rough-and-ready summary" of an official
action is "substantially correct." Id. at 783. "A statement is
considered a fair report if its 'gist' or 'sting' is true, that is,
if it produces the same effect on the mind of the recipient which
the precise truth would have produced." Id.
The fair report privilege protects published reports of
arrests by police. Jones v. Taibbi, 400 Mass. 786, 796 (1987)("An
arrest by an officer is an official action, . . . a report of the
fact of the arrest or the charge of crime made by the officer in
making or returning the arrest is therefore within the [fair report
privilege]."). Thus, a newspaper's "publication of the fact that
one has been arrested, and upon what accusation, is not actionable,
if true." Thompson v. Globe Newspaper Co., 279 Mass. 176, 188
(1932). Therefore, so long as a newspaper's "rough and ready
summary" of the arrest is "substantially correct," the newspaper's
report is protected by the privilege. Cf. MiGi, Inc. v. Gannett
Massachusetts Broadcasters, Inc., 25 Mass. App. Ct. 394, 396
(1988).
The Telegram & Gazette and Times articles fall squarely
within this privilege. The report of Chief May was clearly an

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"official statement," and the information in the articles was
expressly and repeatedly attributed to Chief May. There is no
dispute that the articles in question faithfully and accurately
recounted May's official statement; the articles were, at a
minimum, a "substantially correct" summary of an official
statement. There is also no evidence that the facts in either
story were manipulated, enlarged or embellished upon by the
reporters; had there been, the privilege might not apply. See
Brown v. Hearst Corp., 54 F.3d 21, 25 (1st Cir. 1995); see also
Restatement (Second) of Torts § 611 (2002) ("The reporter is not
privileged under this Section to make additions of his own that
would convey a defamatory impression, nor to impute corrupt motives
to anyone, nor to indict expressly or by innuendo the veracity or
integrity of any of the parties.").
The only question then is whether any inaccuracies
contained in the articles should cause the defendants to lose the
benefit of the privilege. Yohe now argues that material
inaccuracies in the articles, as well as negligent reporting on the
appellees' part should result in the newspapers losing the
protection of the privilege. Specifically, Yohe argues that the
fair report privilege is vitiated here because: (1) the articles
inaccurately reported that he was drunk and suicidal at the time of
his arrest; and (2) the Newspaper defendants were negligent and
failed to conduct an independent investigation, which, Yohe

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contends, would have caused them to discover that the hospitals had
"exonerated" him of being intoxicated and suicidal.
The fair report privilege is not absolute. It is limited
in scope to accurate (i.e. "substantially correct") reports of an
official statement or action. Assuming arguendo that there are
factual inaccuracies in the articles, the question here is whether
the Times and Telegram & Gazette articles are still "accurate"
within the meaning of the fair report privilege. Because Yohe does
not dispute that the articles are faithful and accurate accounts of
Chief May's actual statements, he is essentially asking us to
conclude whether "accuracy" is to be determined by comparing a
"fair report" article to the official statement upon which it is
based, or by comparing it to the events which actually transpired.
That is, can a newspaper reporter who "accurately" publishes the
contents of an objectively inaccurate report of government activity
still benefit from the fair report privilege?
To qualify as "fair and accurate" for purposes of the
fair report privilege, an article reporting an official statement
need only give a "rough-and-ready" summary of the official's
report; it is not necessary that the article provide an accurate
recounting of the events that actually transpired. Cf. ELM, 403
Mass. at 783. That is, "accuracy" for fair report purposes refers
only to the factual correctness of the events reported and not to
the truth about the events that actually transpired. Indeed, it is

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well established that the fair report privilege "should not be
forfeited even if the party making the report knew the statement to
be false." MiGi, 25 Mass. App. Ct. at 397; Roketenetz v. Woburn
Daily Times, Inc., 1 Mass. App. Ct. 156, 161-62 (1973) (holding
that "at common law falsehood is insufficient to overcome [the fair
report privilege]"); see also Restatement (Second) of Torts § 611
cmt. b (2002) ("The [fair report privilege] permits a person to
publish a report of an official action or proceeding or of a public
meeting that deals with a matter of public concern, even though the
report contains what he knows to be a false and defamatory
statement.").
The privilege might still be vitiated by misconduct on
the newspapers' part, but that misconduct must amount to more than
negligent, or even knowing, republication of an inaccurate official
statement. To defeat the privilege, a plaintiff must either show
that the publisher does not give a fair and accurate report of the
official statement, or malice. However, as the Appeals Court of
Massachusetts has pointed out, malice must "require some
redefinition if it were taken not to comprehend knowing falsehood;
perhaps repetition of such falsehood with a purpose to do the
complainant maximum injury would still qualify as malice." MiGi,
25 Mass. App. Ct. at 397.
Yohe has provided no evidence of malice, no matter how
the term is defined. Moreover, as noted above, it has never been

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disputed that the newspaper stories accurately reported Chief May's
statements. The district court was correct to find that the
articles are protected by the fair report privilege. Consequently,
we affirm its decision to grant summary judgment to the Newspaper
defendants on the defamation claim.
As he did against Chief May, Yohe has also sued the
Newspaper defendants for intentional infliction of emotional
distress. Once again, Yohe's emotional distress claim is premised
on precisely the same facts as his defamation claim; that is, on
the publication of Chief May's official statements. However, a
plaintiff cannot evade the protections of the fair report privilege
merely by re-labeling his claim. Correllas v. Viveiros, 410 Mass.
314, 324 (1991) ("A privilege which protected an individual from
liability for defamation would be of little value if the individual
were subject to liability under a different theory of tort"); see
also Hustler Magazine v. Falwell, 485 U.S. 46, 56-57 (1988)
(holding that a plaintiff cannot make an end-run around the First
Amendment by suing for emotional distress rather than defamation);
Brown v. Hearst Corp., 54 F.3d 21, 27 (1st Cir. 1995) ("it is not
imaginable that [a false light claim] could escape the same
constitutional constraint as [a] defamation claim").
In short, while Chief May's statements regarding Yohe's
arrest may have contained inaccuracies, and while the subsequent
republication of those statements in local newspapers may have

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perpetuated those inaccuracies and caused Yohe some distress, we
cannot see how the challenged statements and articles constitute
anything other than the legitimate and nondefamatory flow of
information from a government official to an interested public.
Affirmed.

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