         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
          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


                                -2-
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

                                 -3-
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


                                       -4-
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


                                       -5-
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.




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.

                                     -6-
          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

                                    -7-
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


                                  -8-
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


                                           -9-
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)


                                     -10-
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


                                    -11-
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.

                                       -12-
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


                                -13-
"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


                                          -14-
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


                                -15-
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


                                    -16-
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


                                    -17-
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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