United States Court of Appeals

For the First Circuit

No. 14-1989

COLLEEN C. PICCONE; PETER V. QUAGLIA,

Plaintiffs, Appellants,

v.

JOHN W. BARTELS, JR.,

Defendant, Appellee,

DALTON POLICE DEPARTMENT; TOWN OF DALTON,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Howard, Selya, and Stahl,

Circuit Judges.

Daniel K. Gelb, with whom Richard M. Gelb, Michelle Iandoli

Lamendola, and Gelb & Gelb LLP were on brief, for appellants.

David S. Lawless, with whom Nancy Frankel Pelletier and

Robinson Donovan, P.C. were on brief, for appellee.
May 7, 2015

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STAHL, Circuit Judge. Following an encounter between the

parties, Defendant, a local police chief, called Plaintiffs'

employer to complain about their behavior during the incident. 

Plaintiffs filed suit, alleging, inter alia, slander and

interference with advantageous business relations. The district

court granted summary judgment to Defendant on both counts. We

affirm.

I. Background

Colleen Piccone, a resident of New York, is Deputy

Associate Chief Counsel to Customs and Border Protection, part of

the United States Department of Homeland Security (DHS). Her

boyfriend, Peter Quaglia, is a New York-based special agent with

the same agency. In January 2008, the Massachusetts Department of

Social Services (DSS) and local police began investigating

Piccone's brother, Louis, for alleged child abuse. The state court

granted temporary custody of Louis's three children to DSS. 

Meanwhile, Louis fled the state with his wife and children. 

Subsequently, the court issued warrants for the parents' arrest.

Piccone applied for temporary custody of her brother's

children with the intent of supervising them in the family's

Dalton, Massachusetts home. On February 1, 2008, Piccone traveled

with Quaglia from New York to Massachusetts to attend a hearing on

her application. Before the hearing began, a juvenile court

probation officer informed Piccone and Quaglia that someone would

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need to install a carbon monoxide detector in Louis's home in order

to place the children there in Piccone's care. On counsel's

advice, Piccone and Quaglia purchased a detector at a local

hardware store and headed to Louis's home to install it before the

hearing.

When they arrived, Piccone and Quaglia found two police

officers at the house. Defendant John W. Bartels, Jr., chief of

the Dalton Police Department, demanded that Piccone and Quaglia

identify themselves and told them that they could not enter the

dwelling. Piccone presented her driver's license and Quaglia

showed his federal identification. After a tense exchange, Bartels

called the juvenile court probation officer, who confirmed that

Piccone and Quaglia had been told to install a carbon monoxide

detector in the home. Bartels returned to Quaglia and told him

that he could enter the house and install the detector. Quaglia

did so, and then he and Piccone left for the courthouse.

Later that day, Bartels spoke with a state trooper and

expressed his frustration that Quaglia and Piccone were "telling

everybody what to do. That -- that's what really gets my ass out." 

The state trooper encouraged Bartels to "[m]ake calls to [the

federal agency], get someone fired, do something." Shortly after

speaking with the state trooper, Bartels contacted DHS to complain

about Plaintiffs' behavior and spoke with Matthew Carbone, an agent

with DHS's Office of Inspector General. During their conversation,

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Bartels described his encounter with Plaintiffs at length and told

Carbone that he found their conduct unprofessional.1

 After

describing how he and his fellow officer asked Plaintiffs for

identification and told them that they could not go in the house,

Bartels relayed the following information:

Uh and there was a little bit of a uh an

argument. You know things were getting a

little agitated here. Uh and [my fellow

officer and I] were on a . . . high anxiety

level as it was because we've been dealing

with this thing for two weeks . . . . But at

any rate I told them you're not going in[to

the house], period. Uh until we're told by

the court that you can. And uh they then um

you know obeyed what we said. And they went

and sat in their car.

Bartels then explained that he had confirmed Plaintiffs' story

about the carbon monoxide detector with the juvenile court

probation officer. Carbone replied:

CARBONE: Ok. So their story did pan out.

BARTELS: It did.

CARBONE: It's just that they really weren't

too social about it.

BARTELS: No. They weren't.

Carbone pointed out that it was "good" for Piccone and Quaglia that

they had explicitly told Bartels that they came to the house on a

private matter and not on official federal agency business and

"just showed [Bartels] their ID, which happened to be government

1

 The record includes a transcript and audio recording of the

forty-five minute conversation between Bartels and Carbone.

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ID." Carbone also noted that the "story they gave [Bartels] was

actually corroborated because they did have the CO detector." 

Bartels acknowledged those facts, but said:

Well there were a lot of -- there were a lot

of questions as for what authority we had. Um

you know and well I -- I -- it seemed like

they didn't feel that we had the authority to

tell them no you're not going into the house

. . . . And not knowing who they were. I

mean it was just kind of more of a hassle than

we needed to go through.

Bartels expressed his view that Plaintiffs could have "ma[de]

things a little bit easier on us" so that the officers didn't have

to "increase" their "level of aggression." Carbone replied:

CARBONE: Uh clearly unprofessional conduct

on their -- on their part uh.

BARTELS: On that level yes. Now to uh um

Mr. Quaglia's credit, he apologized at the end

of all this.

CARBONE: Ok.

BARTELS: Uh and he said . . . we're at a

high stress level. . . . He drove all night to

get here. . . .

CARBONE: Mm hm.

BARTELS: Uh and uh uh I can understand

that. And I uh told him that. I said listen,

I know things are -- things are at a fever

pitch right now. But we don't need to go

through this type of stuff because it just

makes matters worse.

CARBONE: Right.

BARTELS: Uh so um all in all they left in

an amicable fashion. I didn't have any

further conversation with Ms. Piccone because

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after the initial conversation, she went into

the car, I never spoke with her again.

Bartels went on to note that the situation "was kind of defused"

when his fellow officer "cool[ed] [Plaintiffs] down" and Quaglia

apologized.

Midway through the conversation, Carbone inquired, "did

you guys believe that . . . Quaglia or Colleen knew where the

parents were?" Bartels replied that the officers "didn't ask them

specifically" but pointed out:

I can't believe -- they've been involved in

this thing since the get-go. And I believe it

was Colleen's house . . . which was searched

by NYPD and that was -- hell, that was back on

the twenty-fifth of this month -- or of last

month. So not to know that there are

warrants, I don't know.

Carbone then asked, "Is it fair to presume that she probably knows

where they are, she's trying to get the . . . foster or adoption

paperwork done so that she can amicably take custody of the kids

and then the parents would turn themselves in?" Bartels replied in

the affirmative: "I think that's their motive. Uh I think they

want to uh get the kids situated. And then let uh the parents uh

you know deal with their criminal charges here."

Carbone then said that he originally had the impression

that Piccone and Quaglia were "[p]urposely hiding stuff" and "[n]ot

being cooperative" with law enforcement, but told Bartels, "the

fact that you guys didn't [pressure Plaintiffs to identify the

location of the kids and parents] in the driveway with them leads

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me to believe" that "it's not that -- that type of an emergency."

Carbone signaled that it would "definitely [have been] a [Customs

and Border Protection] policy violation" if Quaglia and Piccone

either had "misrepresent[ed] that they're there for immigration

reasons and they weren't" or "thwart[ed] law enforcement from

finding a fugitive." Bartels clarified, "No that -- that didn't

happen."

Bartels acknowledged again, "I don't know that there's an

emergency" but told Carbone, "[t]he more I rattle that family's

tree -- . . . . [t]he better I'm going to feel." He reiterated

his displeasure with what he viewed as Piccone and Quaglia's lack

of "professional courtesy" during the interaction: "yeah, you know,

I'm not with the Department of Homeland Security and yeah, I don't

have the connections you do, but goddamn it, I'm a cop just like

you are." Shortly after, Carbone asked whether Bartels "kn[ew]"

that Quaglia and Piccone were aware that the state had issued

arrest warrants for Louis and his wife. Bartels responded, "No I

don't know that," and then continued, "[b]ut I'm assuming that they

know where [the family members] are, only because they're here

trying to help get . . . custody" of the children.

Toward the close of the phone call, Carbone noted that he

was hesitant to "ratchet [the investigation] up another level" if

"the law enforcement authority that's actually looking for the

parents didn't ask [Plaintiffs] those tough questions" about the

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missing family's whereabouts. Bartels confirmed that he did not

need Carbone to initiate an emergency investigation and concluded:

And I'm not looking uh for heads to roll. Uh

I'm just looking to you know say hey where are

they. Uh evidently the courts didn't --

didn't push the issue. Uh and we didn't push

the issue up at the house. . . . [M]aybe

communications wasn't [sic] the best uh on our

part between the police department and the

courts. . . . In fact I wish the damn uh

courts had called us to begin with to let us

know. Say hey there's going to be people up

at the house. . . . Then we wouldn't be

having this conversation right now.

As a result of Bartels's telephone call, DHS launched

investigations into Piccone and Quaglia's conduct. Ultimately, DHS

took no action against either plaintiff.

Plaintiffs filed suit in district court,2 alleging

slander and libel; malicious falsehood; interference with

advantageous business relations ("IABR"); violation of

Massachusetts's right to privacy statute, Mass. Gen. Laws ch. 214,

§ 1B; and intentional infliction of emotional distress. The

district court allowed Defendant's motion to dismiss as to all but

the slander and IABR claims. Piccone v. Bartels, No. 11-cv-10143-

MLW, 2012 WL 4592770, at *12 (D. Mass. Sept. 29, 2012). After a

hearing, the district court granted summary judgment to Defendant

2

 Plaintiffs also filed suit against the Dalton Police

Department and the Town of Dalton, but later amended their

complaint, leaving Bartels as the sole defendant.

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on the two remaining counts. Piccone v. Bartels, 40 F. Supp. 3d

198, 201 (D. Mass. 2014). This appeal followed.

II. Analysis

We afford summary judgment decisions in defamation cases

de novo review. Yohe v. Nugent, 321 F.3d 35, 39 (1st Cir. 2003). 

On appeal, Plaintiffs challenge two categories of statements made

by Defendant: first, that Plaintiffs acted unprofessionally, and

second, that they may have had knowledge regarding the location of

the absent parents and/or children. We conclude that neither

category is actionable under Massachusetts defamation law.

The Supreme Court has recognized "constitutional limits

on the type of speech which may be the subject of state defamation

actions." Milkovich v. Lorain Journal Co., 497 U.S. 1, 16 (1990).

Because defamation requires a false statement at its core, opinions

typically do not give rise to liability since they are not

susceptible of being proved true or false. E.g., Veilleux v. Nat'l

Broad. Co., 206 F.3d 92, 108 (1st Cir. 2000); Phantom Touring, Inc.

v. Affiliated Publ'ns, 953 F.2d 724, 727 (1st Cir. 1992) (quoting

Milkovich, 497 U.S. at 21). As Massachusetts case law observes,

"[i]n the defamation context, an expression of 'pure opinion' is

not actionable." HipSaver, Inc. v. Kiel, 464 Mass. 517, 526 n.11

(2013). Thus, a statement cannot be defamatory if "'it is plain

that the speaker is expressing a subjective view, an

interpretation, a theory, conjecture, or surmise, rather than

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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) (Posner, J.)).

Merely couching a statement as an opinion, however, will

not automatically shield the speaker from liability where the

statement implies the existence of underlying defamatory facts. 

Milkovich, 497 U.S. at 18–19; see also Restatement (Second) of

Torts § 566 (1977) ("A defamatory communication . . . in the form

of an opinion . . . is actionable only if it implies the allegation

of undisclosed defamatory facts as the basis for the opinion."). 

Nonetheless, defamation cannot arise where the speaker communicates

the non-defamatory facts that undergird his opinion. Yohe, 321

F.3d at 41–42. Thus, the speaker can immunize his statement from

defamation liability by fully disclosing the non-defamatory facts

on which his opinion is based. Howell v. Enter. Publ'g Co., 455

Mass. 641, 671–72 (2010).

Put together, "the relevant question is not whether

challenged language may be described as an opinion, but whether it

reasonably would be understood to declare or imply provable

assertions of fact." Phantom Touring, 953 F.2d at 727 (discussing

Milkovich, 497 U.S. at 21). Whether a statement is a verifiable

fact or an opinion can be decided by the court as a matter of law. 

Gray, 221 F.3d at 248; Lyons v. Globe Newspaper Co., 415 Mass. 258,

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263 (1993). This task requires an examination of the totality of

the circumstances in which the specific challenged statements were

made, including the general tenor and context of the conversation

and any cautionary terms used by the person publishing the

statement. Yohe, 321 F.3d at 41; Riley v. Harr, 292 F.3d 282, 290

(1st Cir. 2002); Howell, 455 Mass. at 671.

With this framework in mind, we conclude that the

statements concerning Plaintiffs' conduct during the encounter and

their potential knowledge of the missing family's whereabouts

constitute non-actionable opinions where Defendant fully disclosed

the non-defamatory facts undergirding his opinion.

A. Unprofessional Conduct

At multiple points during their conversation, Bartels

told Carbone that he found Plaintiffs' behavior unprofessional. 

The term 'professional' typically does not lend itself to any

"single, readily ascertainable meaning," see Levinsky's v. Wal-Mart

Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997). For example, the

Oxford English Dictionary defines 'professional' as "[r]eaching a

standard or having the quality expected of a professional person or

his work; competent in the manner of a professional." 12 The

Oxford English Dictionary 573 (2d ed. 1989). Merriam-Webster's

Collegiate Dictionary adds the following aspect: "exhibiting a

courteous, conscientious, and generally businesslike manner in the

workplace." Merriam-Webster's Collegiate Dictionary 991 (11th ed.

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2003). Taken in the context of the full conversation, Defendant's

statements touch on these imprecise and subjective connotations of

the term 'professional.' Where an expressive phrase, though

pejorative and unflattering, cannot be "objectively verified," it

"belongs squarely in the category of protected opinion." 

Levinsky's, 127 F.3d at 130 (rejecting defamation claim based on

description of clothing store as "trashy"); Phantom Touring, 953

F.2d at 728 (holding that newspaper's critique of a theater

production as "fake" and "phony" could not be proven true or false,

"since those adjectives admit of numerous interpretations"); McCabe

v. Rattiner, 814 F.2d 839, 842–43 (1st Cir. 1987) (concluding that

characterization of condominium sales pitch as a "scam" was not

actionable because the term lacks a precise "core meaning"). 

Whether or not a particular person's behavior may be characterized

as 'professional' or exhibiting 'professional courtesy' will often

be a quintessential "expression[] of personal judgment" which is

"subjective in character," Gray, 221 F.3d at 248. 

The term 'professional' can also be used in a more

objective sense, as "characterized by or conforming to the

technical or ethical standards of a profession or occupation." 

Webster's Third New International Dictionary 1811 (1961). Thus, in

some contexts, a statement that a person has acted

unprofessionally, without explanation, might imply the existence of

undisclosed defamatory facts concerning a sufficiently objective

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standard of conduct. Here, however, Plaintiffs do not allege that

Defendant accused them of violating any technical, ethical, or

commonly-understood standard. Even if some type of shared standard

of professionalism for police and federal agency conduct could be

identified that would have been readily understood by both

Defendant and Carbone, Defendant explained the circumstances of the

encounter, thus providing Carbone with the factual basis underlying

his opinion of Plaintiffs' conduct. See Restatement (Second) of

Torts § 566 cmt. b (1977) (a comment on "the plaintiff's conduct,

qualifications or character" coupled with a statement of the facts

on which the speaker bases that opinion constitutes one type of

"pure" opinion). For example, Bartels told Carbone that Quaglia

apologized following the initial encounter and conceded that "all

in all [Plaintiffs] left in an amicable fashion." Likewise,

Bartels affirmed Carbone's statement that "[Plaintiffs'] story did

pan out. . . . they just weren't too social about it." Thus, the

full context of the conversation makes clear that Defendant fully

disclosed the non-defamatory facts about the confrontation in a way

that allowed Carbone to form his own impression. Accordingly, the

district court correctly concluded that Defendant's statements

regarding his impression of Plaintiffs' professionalism were not

actionable under defamation law. Cf. Wait v. Beck's N. Am., Inc.,

241 F. Supp. 2d 172, 183 (N.D.N.Y. 2003) (observing that

"[s]tatements that someone has acted unprofessionally or

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unethically generally are constitutionally protected statements of

opinion" and citing cases); Naeemullah v. Citicorp Servs., Inc., 78

F. Supp. 2d 783, 793 (N.D. Ill. 1999) (classifying statements that

plaintiff "has poor interpersonal skills and run-of-the-mill

professional abilities" as "nonactionable statements of subjective

opinion"); Froess v. Bulman, 610 F. Supp. 332, 342 (D.R.I. 1984)

("[I]t is not for the Court to assess the wisdom of the defendant's

opinion [that, inter alia, plaintiff was 'downright professionally

rude' and did not 'show enough professional courtesy'], or to

punish him for expressing it."); Pritsker v. Brudnoy, 389 Mass.

776, 781-82 (1983) (concluding that statements critical of

restaurant, including that owners were "unconscionably rude and

vulgar people," were non-actionable opinions); see also Catalfo v.

Jensen, 657 F. Supp. 463, 468 (D.N.H. 1987) ("Ethical standards are

inherently subjective, and what is sleazy to one person will not

necessarily be so to another.").

B. Possible Knowledge of Family's Whereabouts

Defendant's statements regarding Plaintiffs' possible

knowledge of the family's whereabouts are on a somewhat different

footing. On its face, the proposition that Plaintiffs may have

known the location of the family "seems sufficiently factual to be

proved true or false," Levinsky's, 127 F.3d at 131, and thus could,

under certain circumstances, give rise to defamation liability. 

For example, we said in Gray that a statement concerning whether

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the plaintiff was personally acquainted with someone could, if

false, support a defamation claim because whether the plaintiff had

met a certain person "is an objective fact." 221 F.3d at 249. 

Similarly, in Milkovich, the Supreme Court instructed that the

statement "[i]n my opinion John Jones is a liar" could be

actionable because it implies the speaker knows at least one

undisclosed objective fact -- that Jones told a lie. 497 U.S. at

18-19.

However, Defendant's "full disclosure of the facts

underlying his judgment -- none of which have been challenged as

false -- makes this case fundamentally different from Milkovich." 

Phantom Touring, 953 F.2d at 730. The transcript of Defendant's

conversation with Carbone shows that Defendant disclosed several

non-defamatory facts underlying his "assum[ption] that [Plaintiffs]

know where they are." Defendant conveyed his "belie[f]" that

Piccone's house had been searched in the past month, reasoning that

she probably knew about the outstanding arrest warrants for the

missing parents. Defendant speculated that Plaintiffs possessed a

motive to "get the kids situated" so that the parents could "deal

with their criminal charges." Defendant also pointed out that

Plaintiffs attended the February 1 custody hearing, telling

Carbone, "I'm assuming that they know where they are, only because

they're here trying to get . . . custody." Based on these facts,

Defendant answered in the affirmative when Carbone questioned

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whether it was "fair to presume" that Piccone "probably kn[ew]" the

family's location.

Defendant's full disclosure of the non-defamatory facts

in his possession invited Carbone to extrapolate his own

independent impressions from the information provided. Id. at 731. 

Ultimately, Defendant only assented to Carbone's own

characterization of Plaintiffs' probable knowledge. This is a

"crucial distinction" from Milkovich where the context of the

communication implied that "only one conclusion was possible." Id.

At the most, Defendant's statements amount to his "personal

conclusion[s] about the information presented." Id. at 730. The

First Amendment generally protects statements of opinion where the

speaker "'outlines the facts available to him, thus making it clear

that the challenged statements represent his own interpretation of

those facts and leaving the [listener] free to draw his own

conclusions.'" Riley, 292 F.3d at 289 (quoting Partington v.

Bugliosi, 56 F.3d 1147, 1156–57 (9th Cir. 1995)).

Viewed in the context of the full conversation,

Defendant's statements possess a definitively speculative nature. 

Defendant made clear to Carbone that he lacked concrete facts to

confirm his suspicion that Plaintiffs may have known the family's

whereabouts. For example, when Carbone inquired whether the

officers had asked Plaintiffs if they knew where the parents were,

Defendant told Carbone "[w]e didn't ask them specifically." He

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also clarified that he did not "know" whether Plaintiffs were aware

of the arrest warrants. Moreover, when Carbone invited Defendant

to allege wrongdoing (asking whether Plaintiffs tried to "thwart"

law enforcement), Defendant refused to do so (replying, "No that --

that didn't happen"). Thus, in combination with the disclosure of 

underlying facts, "it becomes even more clear that the [speaker] is

merely speculating . . . about [an] inference." Gray, 221 F.3d at

250–51. Because Defendant's statements are "properly understood as

purely speculation," they are "protected as opinion." Id. at 250.

Admittedly, the version of events Defendant relayed to

Carbone do present a somewhat skewed view of his interaction with

Piccone and Quaglia. Other parts of the record, most notably

Defendant's conversation with the state trooper, indicate that

Defendant may well have been acting with a vindictive motive when

he made the call to DHS. But "[a]n '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.'" Yohe,

321 F.3d at 42 (quoting Dulgarian v. Stone, 420 Mass. 843, 850

(1995)).

Because all of the allegedly defamatory statements amount

to non-actionable opinions, we affirm the district court's grant of

summary judgment to Defendant. As for the IABR claim, Plaintiffs

do not challenge the district court's conclusion that this claim

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cannot proceed in the absence of a viable defamation claim. Since

the IABR claim is "premised on precisely the same facts as [the]

defamation claim," Yohe, 321 F.3d at 44, we affirm the district

court's summary judgment decision as to this claim as well.3

III. Conclusion

For the foregoing reasons, we affirm the district court's 

grant of summary judgment to Defendant. Each party shall bear its

own costs.

3 The district court assumed for the purpose of its analysis

that Massachusetts's Actual Malice Statute could be applicable to

otherwise non-actionable expressions of opinion. Piccone v.

Bartels, 40 F. Supp. 3d 198, 214 (D. Mass. 2014). That statute

provides that a defendant "in an action for writing or for

publishing a libel may introduce in evidence the truth of the

matter contained in the publication charged as libellous; and the

truth shall be a justification unless actual malice is proved." 

Mass. Gen. Laws ch. 231, § 92. The district court concluded that

although there were genuine issues of material fact concerning

whether Defendant made his statements with actual malice, the

Actual Malice Statute did not provide an alternate avenue for

recovery because it applies only to libel actions. Piccone, 40 F.

Supp. 3d at 214 (quoting Bander v. Metro Life Ins. Co., 313 Mass.

337, 342 (1943) (stating that the Actual Malice Statute "does not

apply to an action for slander")). The district court also held

that even if the statute did apply to allegations of slander,

Plaintiffs could not recover under the statute because they are

both public officials. Piccone, 40 F. Supp. 3d at 214–15 (quoting

Materia v. Huff, 394 Mass. 328, 333 n.6 (1985) (holding that "a

judge cannot constitutionally apply [the Actual Malice Statute] to

a public figure or public official")); see also Piccone, 40 F.

Supp. 3d at 218–20 (holding that Plaintiffs are public officials

under applicable case law). Plaintiffs' brief on appeal concedes

that the Actual Malice Statute is inapplicable to this case because

it reaches only libel and not slander. Thus, we need not discuss

the district court's determination that the statute might apply to

expressions of opinion, or the court's conclusion that Plaintiffs

are public officials under the First Amendment.

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