# United Stat es Court of Appeals For the First C ircuit

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.1 For simplicity's sake, we gener ally d enote the plaintiffs

collectively as "Riley," and the defendants collectively as "Harr." -2- LIPEZ, Circuit Judge . Objec ting to his portrayal in

Jo nat han 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 relatedtorts. 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 Ri ley s 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 t wo 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 " Anderso n liti gation") brought by some residents of Woburn, Massachusetts, alleging that defendants Beatrice Foods Company (Beatrice), W.R. Grace & Co mpan y (Grace), andothers were responsible for the contamination of two municipal water wells (Wells G and H) in the Aberjona River Valley with toxic2 The case was originally captioned Anderson v. Cryovac , C.A.

No. 82-1672-S (D. Mass) . For a fuller acc ount 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 operateda manufacturing facility in the vicinity of Wells G and H. -3- solvents, including trichloroethylene (TCE). 2 The Anderson plaintiffs claimedthat contaminated well water had causedthem and their children to contract various ailments, including several fatal cases of leukemia, and that some of the TCE foundin Wells G andH had come from a tann ery o perated 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 anddefendant Grace were responsible for the contamination of Wells G and H. 4 The Book describes evidence which, in Schl icht mann'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 s uch dumping had occurred were false. Although5 The plaintiffs su bseq uently settled their claims against

defendant Grace. -4- Schlichtmann is the Book's protagonist, and grantedHarr 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 fed eral district court which rejected the plaintiffs' claims against the tannery. 5

Af te r 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 tha t groundwater under the tannery flow ed 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 p rod uced during discovery, and trackeddown new witnesses w ho des cribed the removal from the fifteen acres of what Schlichtmann belie ved to have been tannery waste. The district court conducted a hearing andfoundthat Riley hadengaged in " concea lment" of the Yankee report that was6 Subsequent Environmental Protection Agency studies

concludedthat 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 Ri ley is a New Hampshire citizen while Harr is a Massachusetts citizen, and the thr ee corporate entities all have t heir principal place of business in New York. The amount i n controversy exceeds $75,000 excluding costs and interest. -5- "deliberate," a determination which the Book reports as fo llow s: "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 warrantedbecause "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 publisher s, Random House, Inc. and Vintage Books (a division of RandomHouse), in New Hampshire Superior Court. Defendants removed the case to federal district co urt 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 emotion al d istress; (II) slander (against Harr only); (III) defamation; (IV) invasion of privacy -- public disclos ure of private facts; (V) invasion of privacy -- placing the plaintiff in

a false light; (VI) loss of consortium; and (VII) a dema nd for enhancedcompensatory damages. Reduced to its essence, Riley's8 Riley's slander claim relates to a speech Harr deliveredin

Newburyport, Massachusetts. The district court indi cated that Harr's motion to dismiss for lack of personal jurisdiction was premisedon 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 jurisd iction un der the circumstances now prevailing: that is, where the court has not dismissedall of the causes of action regarding which Harr has not contestedpersonal jurisdiction" (emphas is added). The court explainedthat "[u]nder these circumstances, Harr' s ch allenge to personal jurisdiction with respect to [the sla nder count] implicates the complex and unsettled doctrine of pendent personal jurisdiction." The district c ourt concluded that "[b]ecause the parties have not briefed the issue it would be premature to consider and resolve it at this juncture." -6- action seeks to hold Harr liable for wrongly describing hi m as a liar ( see Statements C, D, E, F, H, I, J, andK infra ), a perjurer ( see Statement A infra ), a "kille[r]" ( see Statement G infra ), a depressive ( see Statemen t L infra ) (or, in the alternative, for disclosing the private fact of his depression), and a bully ( see Statement B infra ).

The defendants movedto 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 hi s m otion to dismiss Riley's slander claim. 8 Following limited discovery, the parties stipulated on March 26, 2001, to the dismissal of those claim s 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.9 In the district court, Riley arguedthat New Hampshire law

governedhis claims. Harr's position was that New York law controlled, but he indicatedthat 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 appliedNew 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- 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 UnitedStates Constitution place[s] limits on the applicati on of the state law of defamation." 9 M ilkovich v. Lorain Journal Co. , 497 U.S. 1, 14 (1 990). I n 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 publi c-fi gure 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 act ual malice, but "must bear the burden of showing that the speech at issue is false11 In place of the common-l aw pre sumption that defamatory

speech is false, the Supreme Court has established "a constitutional requirement tha t 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 o pinio n may seem, we depend for its co rrect ion not on the conscience of judges and juries but on the competition of other ideas." Gertz , 418 U.S. at 339-40. -8- 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 , 4 97 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]-9-

statement couc hed 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 (1 st 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 claimin g to b e in possession of objectively verifiable facts . . . .'" Grayv. St. Ma rtin's P ress, Inc. , 221 F.3d 243, 248 (1 st Cir. 2000) (quoting Haynes v. Alfred A. Knopf. Inc. , 8 F.3d 1222, 1227 (7 th 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 i nter pretation of those facts and leaving the re ader f ree to draw his own conclusions, those statements are generally p rot ected 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. AffiliatedPublications , 953 F.2d 72 4 ( 1 st Cir. 1992). The plaintiff, producer of a version of "The Phantom of the Opera" that

was not the successful and a cclaim ed 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-10-

for mat, tone and entire content of the articles is to make i t 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-andtake, a kind of verbal debate . . . . Because all sides of the issue, as wel l as the rationale for [the author's] view, were exposed, the assertion of deceit reasonably couldbe 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 mee t inf ormed 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 Milkovic h 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 reportedin 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.-11-

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 whe ther the challengedstatements in A Civil Action implicitly sig nal to readers "that only one conclusion [about Riley] was possible," and therefore do not qualify as protected opinion under Milkovich and PhantomTouring , or whether "readers implicitly were invited to draw their own conclusions from the mixed information provided," in which case the First Amendment bar s Riley's defamation action. PhantomTouring , 953 F.2dat 731. In making this determination, we look not just at the specific statements complained of, but also at "the gener al t enor of the [Book]" and the context in which the challengedstatements 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 interpretation s," an d that in writing about such "inherently ambiguous" subjects, an author who "fairly des cribes 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,-12-

authors would hesitate to venture beyond " d ry, colorless descriptions of facts, bereft of analysis or insight," and the threa t of defamation lawsuits would discourage "expressions of opinion by comment ators, experts in a field, figures closely involvedin a public controv ersy , 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 wholerecord review and 'examine for themselves the statements in issue andthe 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 decidedby 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 t he c hallenged 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 seque nci ng,-13-

however, to di scuss 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 d ocument 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. Rileyhad lied then, and Sch lichtmann -- who didn'tneed 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 , "p rovable 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,

a n interpretation, a theory, conjecture, or surmise." Gra y , 22 1 F.3d at 248 (citation and internal quotation marks omitted).

The district court found that Statement C "is clearly writt en in Schlichtmann's voice," reporting his "inner musings about the evidence he was gathering," and therefore "could not be construedby 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-14-

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 th e t annery -- is Schlichtmann's conclusion, not Harr's. As Harr points out, "[t]he law does not force writers to clumsily begin each andevery sentence with 'Schlichtmann felt'" in order to indicate that a statement is being attribute d t o 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 undisclosedevidence. Gray , 221 F.3d at 248 (citation and internal quotation marks omitted).

Moreover, even if we accepted Rile y's premise that the statement "Riley hadlied then" constitutes Harr's own declaration that Riley had uttered a falsehood, the statement would still be protectedunder 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 con clusions." PhantomTouring , 953 F.2d at 730. F or example, one page before Statement C, Harr writes that "One after another, interviews with-15-

a dozen former tannery employees led Schlichtmann nowhere. Non e couldrecall 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 du mped on t he fifteen acres, but who (the Book acknowledges) turned out to lack c redibi lity. Id. at 187-91. Later in the Book, Harr again states that "Schlichtmann did not have eyewitnesses who could impl icate 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 undisclosedev idence. 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 andthe 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 notif ying t he reader of his extensive access to S chlichtmann is plainly not to establish that Schlichtmann is a n

om niscie nt figure whose inferences are all correct. Rather, his-16-

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 e x perience of the chronicled events. Statement E

Like Statement C, Statement E appears in the section of the Book which de scr ibes Schlichtmann's efforts to build a case against Riley's tannery:

Itseemed that everyone but Riley recognized the fifteen acres as a toxic waste dump . Riley must

have know n ab out 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 erredin 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 wouldbe nonactionable 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 t he o ther -- which the Book describes in substantial detail. Phantom Touring , 953 F.2d at 730.

Riley asserts that Phantom Touring is inapposite because Harr failedto report that some of Schlichtmann's own investigators hadconcluded that the tannery w as not responsible for the-17-

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 refe rs to a substance which Schlichtmann's investigators discovered on the fifteen acres havi n g the characteristics of tannery waste and containing TCE:

If this material was indeed tannery waste, then how had it become contaminated with TCE, whichRiley claimed he had never use d? It was, of course, possible that someone else -- Whitney, perhaps -- had dump ed TCE on top of it. That was possible, but to S c hlichtmann 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 requi red to include in the Book a declaration that the tannery had not us ed TC E. The Book reports Riley's repeated denials of TCE use, and notes Schlic htmann'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-18-

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 bas is for Schlichtmann's conclusion, including facts that create problems for Schlichtmann's theory of the case. Statements H and J Statement H reports a co mment Schlichtmann made in reaction to Riley's performance on the witness stand: "Riley surprised me today," [Schlichtmann's partner Conway] said. "He came o ff l ooking 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 Jrecounts Schlichtmann's reaction to Riley's testimony:

When Riley had s at 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 w as entitled to report Schlichtmann's opinion that Riley hadgiven false testimony, having disclosed the facts upon which the opinion was based, including some facts that

are in tension with Schlichtmann's conclusion. Ph antom Touring , 953 F.2d at 730.-19- 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 de s troying records? Because he was coveringup! The jury understood that, didn't they?" Riley had testified earlier about the destruction of r ecor ds 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, aga in a nd again, we never used trichloroethylene--"

"No, no, no," interrupted the judge. "You're not b e ing asked that. You're being askedwhen the records were destroyed. You say you don't kno w. 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 di strict court that "a reasonable rea der 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."-20- 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 t old[hi s la w partner], "We've opened the box and the worms are starting to crawl out. This isn't just hidingevidence, 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 ruledthat 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 're moval 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 dee ms def amatory, Riley asserts that Harr failedto "fully andconcomitantly" reveal to the r eader 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-21-

chronological order an attorney's efforts to try a cas e," bu t instead"must reveal the end result of every legal hunch immediatel y." A C ivil 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 evidenc e th at Riley's tannery had contaminatedthe fifteen acr e s with TCE, Schlichtmann's private investigator interview ed Ru th Turner (a pseudonym), an elderly woman who lived near the tannery:

Her husband, Paul [who had died in 19 81], wouldoften walk down behind the house, in the forest by the A be rjona River, on the land ownedby Riley. He would return from his walks and tell her about the barrels and piles of debris he'd seen there, a nd how sludge waste from the tannery woul d flow down the hill and onto the land. In the years befo r e 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 roa d on to the fifteen acres. "They're dumping stuff in the middle of the night," Ruth reca l led his saying. Riley co ntends that a reader "could understand the passage as stating that R iley did, in fact, dump illegal material on the 15 acres." However, the Book makes clear that despite his suspicions, Schlichtmann never succeededin 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-22-

had contaminated the 15 acres with TCE, but did not prove that it haddone so. It is this unmistakable theme of the Book -- Schlichtmann's inability to m ove from theory, conjecture, and surmise to actual proo f -- 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 discoveredthat Riley, during th e pe ndency of the Anderson litigation, had commissioned Yankee to co nduct 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. Ju dge Skinner ruled that Riley had engagedin deliberate concealment of the reports. The ju dge 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 res pon se 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-23- 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).

Statem ent Ais Harr's description of Judge Skinner's finding: The judge found that Riley had committed

perjuryand thatMary 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, andthat 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

su bstantial truth. . . . Minor inaccuracies do not a mount t o falsity s o 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 offi cial . . . proceeding . . . that deals with a mat ter o f public concern [i s 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 § 61 1 (1977)). A "fair"-24-

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 (ci tation 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 precis e 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 standardof expected lay interpretation").

Judge Skinner foundthat 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, andis 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 accoun t i s "a rough-and-ready summary" of the judge's ruling that is "substantially correct." Hayes , 141 N.H. at 466.

Riley argues t hat 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]-25-

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 weighedin 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 Ril ey's first day on the witness stand, Schlichtmann's colleagues critiquedhis examination of Riley. The Book reports that Tom Neville sugg este d to Schlichtmann that "'[t]he jury wants you to kick the shit ou t of [Ri ley]." After Thomas Kiley h ad e xhorted 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 headbowed, his vo ice soft. "That's good showmanship, but I've got to get evidence in."

"MyGod, this is the guy who ki lled your kids!" yelled N eville. "You should be attacking him with a fucking baseball bat! You shouldn't be asking him" -- Neville adopteda mincing tone -- "And then what did you do next, Mr. Riley?" . . . .

[Schlichtmann's colleagues continue to coach him. The scen e con cludes with Kiley saying to Schlichtmann:] "In my eleven years of trial experience, you've got more s hit to use on this guy than I've ever seen before.-26- You can fucking destroy hi m. 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 Ha rr' 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).

H owever, in contrast to Greenbelt , where the cour t concludedthat the defendant's use of the word "blackmail" was not meant as a literal accusation that the plaintiff had committed the crime of black mail , the Anderson plaintiffs didcontend 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-27-

plain tiff as a "traitor" was not a literal accusation th a t plaintiff had committed the crime of treason). Even so, Statement G is non-actionable for the same reasons that the stat eme nts discussed supra , c harg ing 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 en try 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 defamati on 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, b ut und er a different name." Harr is therefore entitled to the same

c onstitutional 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] defa mat ion claim under a different heading[,] . . . it is not imaginable that it could escape the same constitutional constraint as [the] defamation claim").13 Riley has since abandoned his defamation claim as to

Statement L in order to get a final judgment. -28- IV. Public Disclosure of Private Fact

Statement L describes Riley's a ppearance at the posttrial 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 st and 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 midsixties, suffering from episodes of depression. Although the d istr ict 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 hadexperienced episodes of depression, it granted summary judgment

on Riley's public disclosure of private fact claim on the ground that his depression was substantially re leva nt to the Anderson litigation, a matter of legitimate public concern. 13 In assessing Riley's public disclosure of private fact claim, we must a ssu me that Statement L is true (otherwise it would not amount to the disclosure of a private "fact.")

The district court concluded that the New H am pshire Supreme Court would recognize, if it ha d not alre ady done so by implication, a cause of action for public disclosu re of private fact. See Hamberger v. Eastman , 106 N.H. 107, 111 (1964)-29-

(declaring that "'a pers on 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 protectedif it has substantial relevance to, or a ny sub stantial

nexus with a newsworthy topic" (citations and internal quo tati on marks omitted).

Riley does not challenge the district cou r t's premise that Statement L is non-actionable if it is substantially relevant to the story told in the B ook . He argues instead that the court erred in finding the fact of his depression to be relevant to the Anderson litigation. Assuming with the di str ict 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, concernedabout Riley's performance on the witness standduring 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-30-

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 an d Sc hlichtmann, 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, b ecause 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. Morancyv. 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 Res tatement (Second) of Torts § 46, comment d). Such c annot b e saidof Statements A, C, D, E, F, G, H, I, J, and K, which express in various ways the view that Riley had not given truthful14 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 stip ulated to the dismissal of Riley's defamation claim with respect to Statement B. -31- 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" (relevant to the Anderson litigation), and also of Statement B. 14 Statement B reads:

He had once confronted a neighbor who h ad written an article about the tannery stench for the Civic Association Newsletter. Banging on the neighbor's door one evening, he ha d stomped

uninvited into the living room, put his thick finger to his neighbor 's c hest and yelled that he, Rile y, w as a big taxpayer in the city , an d by what right did the neighbor slander his business in such a manner? The neighbor, at first taken aba ck b y 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.15 Punitive damages are not avail able in New Hampshire, but

"when the act involved is wan ton, 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- 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 shouldgo forward "[f]or all of the reasons set forth abov e in

se ctions I-IV of this Brief [dealing with the Rileys' defamation andother tort claims]." 15 This is the extent of their argument on the loss of consor tiumand enhanced compensatory damages claims. In Sections II-V of this opinion, we rejected the Rileys' arguments

as to their defamation andother tort claims on which the district court properly granted summary judgment for Harr. The same arguments advanced i n supp ort of their loss of consortium and enhancedcompensatory damages claims necessarily must fail for the

same reasons.

Affirmed.-33- Appendix The specific language Riley complains of is indicated in bold. We have included some of the surrounding text to help put the challengedsta tem ents 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 per juryand that Mary Ryan was guilt y o f '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 neighbo r's d oor one evening, he had stomped

uninvited into the living room, put his thick finger to his neig hbor 's chest and yelled that he, Rile y, 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 aba ck by the verbal tirade, fina lly 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. Rileyhad lied then, and Sch lichtmann -- who didn'tneed much convincing -- believed that Rileywas also lying about using TCE. A Civil Action at 187. D. Her husband, Paul [who had died in 1981], wouldoften walk down behind the house, in the forest by the A berjona River, on the land ownedby Riley. He would return from his walks and tell her about the barrels and piles of debris he'd seen there, a nd how sludge wast e fro m the tannery would flow down the hill and onto the land. In the years befo r e-34- 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 coul d s ee the headlights of flatbed trucks full of barrels dr ivin g 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 seeme d th at everyone but Riley recognized the fifteen acres as a toxic waste dump. Riley musthave known about the condition of the property. Perhaps, thought Schlichtmann, the tanner really had been runningan unauthorized waste dump. Perhaps he had charged his neighbor, WhitneyBarrel, 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, w hichRiley claimed he had never used? I t was, of course, possible that someone else -- Whitney, perhaps -- ha d du mped TCE on top of it. That was possible, but to Sch l ichtmann the most logical explanation was that it h a d 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," saidSchlichtmann, his head bowed, his voice soft. "That's good showmanship, but I've got to get evidence in."

" My Go d, 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 adopteda mincing tone -- "And t hen what did you do next, Mr. Riley?" . . . .

[Schlichtmann's colleagues continue to coach him. The scene conclude s wit h Kiley saying to Schlichtmann:] "In my eleven years of t rial experience, you've got more shit to use on this guy than I've ever seen before.-35- You can fucking destroy hi m. 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 lo o king better than he sho uld 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, Charl ie! Why wouldRiley 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 la w partner], "We've opened the box and the worms are starting to cr awl out. This isn't justhiding evidence, this is destroying evidence." A Civil Action at 470. L. Riley returned to the courtr oom in early March, three years after first taking the w itness 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 midsixties, suffering from episodes of depression. A Civil Action at 480.