UPDATE: 'Boston' Rocker Scholz Loses Boston Herald Libel Suit

 (Photo credit: DSMJ)

Suffolk County Superior Court Judge Frances A. McIntyre yesterday dismissed the defamation lawsuit brought by Tom Scholz, co-founder and keyboardist/songwriter of legendary rock band Boston, against the Boston Herald and two of its gossip columnists based on allegations concerning the March 2007, suicide of the band's lead singer, Brad Delp, according to reports in the Boston Globe and Boston Herald.

Scholz sued the tabloid in 2010 for defamation and intentional infliction of emotional distress, alleging that Fee & Raposa, who penned the Herald's Inside Track gossip column, implied he was to blame for Delp taking his own life, by quoting Delp's former spouse Micki, who said the singer was despondent over Boston's long-ago breakup and subsequent changes in the band (see "TUOL" posts 9/15/11 & 3/18/10). Scholz claimed the defendants made up the quotes attributed to Micki Delp and suggested that personal problems contributed to Delp killing himself, including his fiancee's purported infidelity and the discovery that Delp allegedly secreted a camera in the bedroom of his fiancee's younger sister.

In the 24-page opinion in Donald Thomas Scholz v. Boston Herald, Inc., Gayle Fee  & Laura Raposa (Case No. 10-1010), Judge McIntyre wrote that Scholz could neither prove nor disprove what prompted Delp to commit suicide, and "[a]ny views on the subject necessarily would be opinions." That is critical in defamation cases, which are rooted in false statements of fact, because, as Judge McIntyre noted, "an opinion cannot be false; the free expression of opinion on any matter of public interest is constitutionally protected by the First Amendment. Therefore, the publication by these media defendants of their opinion about the cause of Delp's suicide is not vulnerable to a claim of defamation."

Although acknowledging that Delp's suicide was a "private tragedy," Judge McIntyre wrote that "for the public who cared about him during his life, his death was an issue of public concern." The Herald account of the decision noted that the court rejected Scholz's assertion that the defendant columnists fabricated remarks attributed to Micki Delp. Among the alleged defamatory statements was a headline, "Pal's snub made Delp do it; Boston rocker's ex-wife speaks."

Boston's 1976 debut album sold 17 million copies, the second-biggest debut in U.S. rock history, according to the Globe article. The band's hits included Don't Look Back and Peace of Mind.

Scholz's counsel said his client has yet to decide whether to appeal Judge McIntyre's decision. If he decides to pursue an appeal, as a public figure saddled with the heightened defamation burden of proof of actual malice, Scholz is going to have to show by More than a Feeling that his reputation was sullied by false assertions.