United States Court of Appeals

For the First Circuit

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 generally denote the plaintiffs

collectively as "Riley," and the defendants collectively as "Harr."

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LIPEZ, Circuit Judge. Objecting to his portrayal in

Jonathan 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

related torts. 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 Rileys 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 two 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 "Anderson litigation") brought by some

residents of Woburn, Massachusetts, alleging that defendants

Beatrice Foods Company (Beatrice), W.R. Grace & Company (Grace),

and others were responsible for the contamination of two municipal

water wells (Wells G and H) in the Aberjona River Valley with toxic
2 The case was originally captioned Anderson v. Cryovac, C.A.

No. 82-1672-S (D. Mass). For a fuller account 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 operated a manufacturing facility in the vicinity

of Wells G and H.

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solvents, including trichloroethylene (TCE).2 The Anderson

plaintiffs claimed that contaminated well water had caused them and

their children to contract various ailments, including several

fatal cases of leukemia, and that some of the TCE found in Wells G

and H had come from a tannery operated 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

and defendant Grace were responsible for the contamination of Wells

G and H.4 The Book describes evidence which, in Schlichtmann'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 such dumping had occurred were false. Although
5 The plaintiffs subsequently settled their claims against

defendant Grace.

-4-

Schlichtmann is the Book's protagonist, and granted Harr 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 federal district court which rejected the plaintiffs'

claims against the tannery.5

After 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 that groundwater under the

tannery flowed 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 produced during discovery, and

tracked down new witnesses who described the removal from the

fifteen acres of what Schlichtmann believed to have been tannery

waste. The district court conducted a hearing and found that Riley

had engaged in "concealment" of the Yankee report that was
6 Subsequent Environmental Protection Agency studies

concluded that 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 Riley is a New Hampshire citizen while Harr is a

Massachusetts citizen, and the three corporate entities all have

their principal place of business in New York. The amount in

controversy exceeds $75,000 excluding costs and interest.

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"deliberate," a determination which the Book reports as follows:

"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 warranted because "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

publishers, Random House, Inc. and Vintage Books (a division of

Random House), in New Hampshire Superior Court. Defendants removed

the case to federal district court 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 emotional distress; (II) slander (against Harr only); (III)

defamation; (IV) invasion of privacy -- public disclosure of

private facts; (V) invasion of privacy -- placing the plaintiff in

a false light; (VI) loss of consortium; and (VII) a demand for

enhanced compensatory damages. Reduced to its essence, Riley's
8 Riley's slander claim relates to a speech Harr delivered in

Newburyport, Massachusetts. The district court indicated that

Harr's motion to dismiss for lack of personal jurisdiction was

premised on 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 jurisdiction under the

circumstances now prevailing: that is, where the court has not

dismissed all of the causes of action regarding which Harr has not

contested personal jurisdiction" (emphasis added). The court

explained that "[u]nder these circumstances, Harr's challenge to

personal jurisdiction with respect to [the slander count]

implicates the complex and unsettled doctrine of pendent personal

jurisdiction." The district court concluded that "[b]ecause the

parties have not briefed the issue it would be premature to

consider and resolve it at this juncture."

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action seeks to hold Harr liable for wrongly describing him as a

liar (see Statements C, D, E, F, H, I, J, and K infra), a perjurer

(see Statement A infra), a "kille[r]" (see Statement G infra), a

depressive (see Statement L infra) (or, in the alternative, for

disclosing the private fact of his depression), and a bully (see

Statement B infra).

The defendants moved to 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

his motion to dismiss Riley's slander claim.8 Following limited

discovery, the parties stipulated on March 26, 2001, to the

dismissal of those claims 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 argued that New Hampshire law

governed his claims. Harr's position was that New York law

controlled, but he indicated that 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

applied New 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.

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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 United States Constitution

place[s] limits on the application of the state law of

defamation."9 Milkovich v. Lorain Journal Co., 497 U.S. 1, 14

(1990). In 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 public-figure

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 actual malice, but

"must bear the burden of showing that the speech at issue is false
11 In place of the common-law presumption that defamatory

speech is false, the Supreme Court has established "a

constitutional requirement that 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 opinion may seem, we depend for its

correction not on the conscience of judges and juries but on the

competition of other ideas." Gertz, 418 U.S. at 339-40.

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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, 497 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]
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statement couched 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 (1st 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 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)).

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 interpretation of those facts and

leaving the reader free to draw his own conclusions, those

statements are generally protected 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.

Affiliated Publications, 953 F.2d 724 (1

st Cir. 1992). The

plaintiff, producer of a version of "The Phantom of the Opera" that

was not the successful and acclaimed 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
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format, tone and entire content of the articles is to make it

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 well as the

rationale for [the author's] view, were

exposed, the assertion of deceit reasonably

could be 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 meet informed 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 Milkovich 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 reported in 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 whether the

challenged statements in A Civil Action implicitly signal to

readers "that only one conclusion [about Riley] was possible," and

therefore do not qualify as protected opinion under Milkovich and

Phantom Touring, or whether "readers implicitly were invited to

draw their own conclusions from the mixed information provided," in

which case the First Amendment bars Riley's defamation action.

Phantom Touring, 953 F.2d at 731. In making this determination, we

look not just at the specific statements complained of, but also at

"the general tenor of the [Book]" and the context in which the

challenged statements 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

interpretations," and that in writing about such "inherently

ambiguous" subjects, an author who "fairly describes 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,
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authors would hesitate to venture beyond "dry, colorless

descriptions of facts, bereft of analysis or insight," and the

threat of defamation lawsuits would discourage "expressions of

opinion by commentators, experts in a field, figures closely

involved in a public controversy, 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

and the 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 decided by 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 the challenged 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 sequencing,
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however, to discuss 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 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.

Riley had lied then, and Schlichtmann -- who

didn't need 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, "provable 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,

an interpretation, a theory, conjecture, or surmise." Gray, 221

F.3d at 248 (citation and internal quotation marks omitted). 

The district court found that Statement C "is clearly

written in Schlichtmann's voice," reporting his "inner musings

about the evidence he was gathering," and therefore "could not be

construed by 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
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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 the tannery -- is Schlichtmann's conclusion, not

Harr's. As Harr points out, "[t]he law does not force writers to

clumsily begin each and every sentence with 'Schlichtmann felt'" in

order to indicate that a statement is being attributed to

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 undisclosed evidence. Gray, 221 F.3d at

248 (citation and internal quotation marks omitted). 

Moreover, even if we accepted Riley's premise that the

statement "Riley had lied then" constitutes Harr's own declaration

that Riley had uttered a falsehood, the statement would still be

protected under 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 conclusions."

Phantom Touring, 953 F.2d at 730. For example, one page before

Statement C, Harr writes that "One after another, interviews with
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a dozen former tannery employees led Schlichtmann nowhere. None

could recall 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 dumped on the fifteen acres, but who (the Book

acknowledges) turned out to lack credibility. Id. at 187-91.

Later in the Book, Harr again states that "Schlichtmann did not

have eyewitnesses who could implicate 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 undisclosed evidence.

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 and the 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 notifying the reader of his extensive access to

Schlichtmann is plainly not to establish that Schlichtmann is an

omniscient figure whose inferences are all correct. Rather, his
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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 experience of the chronicled

events. 

Statement E 

Like Statement C, Statement E appears in the section of

the Book which describes Schlichtmann's efforts to build a case

against Riley's tannery:

It seemed that everyone but Riley recognized

the fifteen acres as a toxic waste dump.

Riley must have known about 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 erred in

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 would be 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 the other -- which the Book

describes in substantial detail. Phantom Touring, 953 F.2d at 730.

Riley asserts that Phantom Touring is inapposite because

Harr failed to report that some of Schlichtmann's own investigators

had concluded that the tannery was not responsible for the
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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 refers to a substance which Schlichtmann's

investigators discovered on the fifteen acres having the

characteristics of tannery waste and containing TCE: 

If this material was indeed tannery waste,

then how had it become contaminated with TCE,

which Riley claimed he had never used? It

was, of course, possible that someone else --

Whitney, perhaps -- had dumped TCE on top of

it. That was possible, but to Schlichtmann

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 required to include in the Book a declaration that

the tannery had not used TCE. The Book reports Riley's repeated

denials of TCE use, and notes Schlichtmann'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
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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 basis for

Schlichtmann's conclusion, including facts that create problems for

Schlichtmann's theory of the case.

Statements H and J 

Statement H reports a comment Schlichtmann made in

reaction to Riley's performance on the witness stand:

"Riley surprised me today,"

[Schlichtmann's partner Conway] said. "He

came off looking 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 J recounts Schlichtmann's reaction to Riley's testimony:

When Riley had sat 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 was entitled to report Schlichtmann's

opinion that Riley had given false testimony, having disclosed the

facts upon which the opinion was based, including some facts that

are in tension with Schlichtmann's conclusion. Phantom Touring,

953 F.2d at 730.
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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 destroying records? Because he was

covering up! The jury understood that, didn't

they?"

Riley had testified earlier about the destruction of records

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, again and

again, we never used trichloroethylene--"

"No, no, no," interrupted the judge.

"You're not being asked that. You're being

asked when the records were destroyed. You

say you don't know. 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 district court that "a

reasonable reader 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." 
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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 told [his law

partner], "We've opened the box and the worms

are starting to crawl out. This isn't just

hiding evidence, 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

ruled that 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 'removal 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 deems defamatory,

Riley asserts that Harr failed to "fully and concomitantly" reveal

to the reader 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 case," but

instead "must reveal the end result of every legal hunch

immediately." A Civil 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 evidence that Riley's tannery had

contaminated the fifteen acres with TCE, Schlichtmann's private

investigator interviewed Ruth Turner (a pseudonym), an elderly

woman who lived near the tannery:

Her husband, Paul [who had died in 1981],

would often walk down behind the house, in the

forest by the Aberjona River, on the land

owned by Riley. He would return from his

walks and tell her about the barrels and piles

of debris he'd seen there, and how sludge

waste from the tannery would flow down the

hill and onto the land. In the years before

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 road onto

the fifteen acres. "They're dumping stuff in

the middle of the night," Ruth recalled his

saying.

Riley contends that a reader "could understand the passage as

stating that Riley did, in fact, dump illegal material on the 15

acres." However, the Book makes clear that despite his suspicions,

Schlichtmann never succeeded in 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

had done so. It is this unmistakable theme of the Book --

Schlichtmann's inability to move from theory, conjecture, and

surmise to actual proof -- 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

discovered that Riley, during the pendency of the Anderson

litigation, had commissioned Yankee to conduct 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. Judge Skinner ruled that Riley had

engaged in deliberate concealment of the reports. The judge

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 response 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).

Statement A is Harr's description of Judge Skinner's

finding:

The judge found that Riley had committed

perjury and that Mary 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, and that 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

substantial truth. . . . Minor inaccuracies do not amount to

falsity so 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 official . . . proceeding . . . that deals with a matter of

public concern [is 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 § 611 (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 (citation 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 precise 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 standard of expected lay interpretation").

Judge Skinner found that 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,

and is 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 account is "a rough-and-ready

summary" of the judge's ruling that is "substantially correct."

Hayes, 141 N.H. at 466.

Riley argues that 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 weighed in 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 Riley's first day on the witness stand,

Schlichtmann's colleagues critiqued his examination of Riley. The

Book reports that Tom Neville suggested to Schlichtmann that

"'[t]he jury wants you to kick the shit out of [Riley]." After

Thomas Kiley had exhorted 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

head bowed, his voice soft. "That's good

showmanship, but I've got to get evidence in."

"My God, 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

adopted a mincing tone -- "And then what did

you do next, Mr. Riley?" . . . .

[Schlichtmann's colleagues continue to

coach him. The scene concludes with Kiley

saying to Schlichtmann:] "In my eleven years

of trial experience, you've got more shit to

use on this guy than I've ever seen before.
-26-

You can fucking destroy him. 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 Harr'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). 

However, in contrast to Greenbelt, where the court

concluded that the defendant's use of the word "blackmail" was not

meant as a literal accusation that the plaintiff had committed the

crime of blackmail, the Anderson plaintiffs did contend 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-

plaintiff as a "traitor" was not a literal accusation that

plaintiff had committed the crime of treason). Even so, Statement

G is non-actionable for the same reasons that the statements

discussed supra, charging 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 entry 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

defamation 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, but under a

different name." Harr is therefore entitled to the same

constitutional 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] defamation 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 appearance 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 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.

Although the district 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

had experienced episodes of depression, it granted summary judgment

on Riley's public disclosure of private fact claim on the ground

that his depression was substantially relevant to the Anderson

litigation, a matter of legitimate public concern.13 In assessing

Riley's public disclosure of private fact claim, we must assume

that Statement L is true (otherwise it would not amount to the

disclosure of a private "fact.")

The district court concluded that the New Hampshire

Supreme Court would recognize, if it had not already done so by

implication, a cause of action for public disclosure of private

fact. See Hamberger v. Eastman, 106 N.H. 107, 111 (1964)
-29-

(declaring that "'a person 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

protected if it has substantial relevance to, or any substantial

nexus with a newsworthy topic" (citations and internal quotation

marks omitted). 

Riley does not challenge the district court's premise

that Statement L is non-actionable if it is substantially relevant

to the story told in the Book. He argues instead that the court

erred in finding the fact of his depression to be relevant to the

Anderson litigation. Assuming with the district 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,

concerned about Riley's performance on the witness stand during 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 and Schlichtmann, 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, because 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. Morancy v. 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

Restatement (Second) of Torts § 46, comment d). Such cannot be

said of Statements A, C, D, E, F, G, H, I, J, and K, which express

in various ways the view that Riley had not given truthful
14 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 stipulated 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 had

written an article about the tannery stench

for the Civic Association Newsletter. Banging

on the neighbor's door one evening, he had

stomped uninvited into the living room, put

his thick finger to his neighbor's chest and

yelled that he, Riley, 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 aback by 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 available in New Hampshire, but

"when the act involved is wanton, 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

should go forward "[f]or all of the reasons set forth above in

sections I-IV of this Brief [dealing with the Rileys' defamation

and other tort claims]."15 This is the extent of their argument on

the loss of consortium and enhanced compensatory damages claims.

In Sections II-V of this opinion, we rejected the Rileys' arguments

as to their defamation and other tort claims on which the district

court properly granted summary judgment for Harr. The same

arguments advanced in support of their loss of consortium and

enhanced compensatory 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

challenged statements 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

perjury and that Mary Ryan was guilty of

'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 neighbor's door one evening, he had

stomped uninvited into the living room, put

his thick finger to his neighbor's chest and

yelled that he, Riley, 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 aback by the verbal

tirade, finally 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.

Riley had lied then, and Schlichtmann -- who

didn't need much convincing -- believed that

Riley was also lying about using TCE. A Civil

Action at 187.

D. Her husband, Paul [who had died in 1981],

would often walk down behind the house, in the

forest by the Aberjona River, on the land

owned by Riley. He would return from his

walks and tell her about the barrels and piles

of debris he'd seen there, and how sludge

waste from the tannery would flow down the

hill and onto the land. In the years before
-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 could see

the headlights of flatbed trucks full of

barrels driving 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 seemed that everyone but Riley

recognized the fifteen acres as a toxic waste

dump. Riley must have known about 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. A Civil Action at

191-92.

F. If this material was indeed tannery waste,

then how had it become contaminated with TCE,

which Riley claimed he had never used? It

was, of course, possible that someone else --

Whitney, perhaps -- had dumped TCE on top of

it. That was possible, but to Schlichtmann

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.

A Civil Action at 193.

G. "Yeah, great," said Schlichtmann, his head

bowed, his voice soft. "That's good

showmanship, but I've got to get evidence in."

"My God, 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

adopted a mincing tone -- "And then what did

you do next, Mr. Riley?" . . . .

[Schlichtmann's colleagues continue to

coach him. The scene concludes with Kiley

saying to Schlichtmann:] "In my eleven years

of trial experience, you've got more shit to

use on this guy than I've ever seen before.
-35-

You can fucking destroy him. 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 looking

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. A Civil Action at 312.

I. "It was great, wasn't it, Charlie! Why

would Riley 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

law partner], "We've opened the box and the

worms are starting to crawl out. This isn't

just hiding evidence, this is destroying

evidence." A Civil Action at 470.

L. Riley returned to the courtroom in early

March, three years after first taking the

witness 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.