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.

UPDATE: Scholz Setback in Libel Suit Against Boston Herald

Cover of Tom ScholzCiting the long-recognized fair reporting privilege, Massachusetts Superior Court Judge John C. Cratsley has dismissed some of the defamation claims against The Boston Herald brought by Boston band co-founder Tom Scholz, the Herald reported today.

Scholz, the band's composer and keyboardist/guitarist, sued the daily last year in Donald Thomas Scholz v. Boston Herald, Inc., Gayle Fee & Laura Raposa (Case No. 10-1010), alleging emotional distress and defamation based on articles published in the tabloid in 2007 on March 15 & 16 and July 2 (see "TUOL" post 3/18/10), and later, in May 2010, when the Herald reported on the lawsuit itself and the parties' positions. Scholz alleges the defendants blamed him for the suicide of Boston vocalist and co-founder Brad Delp.

Judge Cratsley tossed the defamation claims arising from the May 2010, Herald articles, ruling the accounts had accurately reported about the lawsuit and were not unfair or published for any purpose other than to inform readers. The so-called fair reporting privilege is a well-established qualified defense to libel suits in which accurate, fair reporting of judicial proceedings (which are absolutely privileged) is not actionable. It's a qualified defense in that a biased, inaccurate and unfair account of a privileged court hearing would not afford the offending journalist protection.

The plaintiff's suit is still active regarding the allegedly defamatory 2007 items that appeared in the Herald's Inside Track column.  Scholz recently came up empty in a separate 2008 defamation suit against Delp's widow, Micki Delp, and her sister, Connie Goudreau. 

'Boston' Rocker Sues Boston Herald for Libel

Tom Scholz via last.fm

Tom Scholz, the keyboardist/guitarist/songwriter who co-founded the rock band Boston, has filed a defamation suit in Suffolk County (Mass.) Superior Court against the daily tabloid The Boston Herald and its "Inside Track" gossip columnists Gayle Fee and Laura Raposa, accdording to the Courtroom News Service(CNS).

The 23-page complaint, Donald Thomas Scholz v. Boston Herald, Inc., Gayle Fee & Laura Raposa (Case No. 10-1010) alleges defamation and intentional infliction of emotional distress arising from articles that appeared in the daily in 2007 on March 15, March 16, and July 2. According to the complaint, the defendants allegedly wrote articles, including one under the headline "Pal's Snub Made Delp Do It," that blamed Scholz for the suicide of band vocalist Brad Delp in March 2007, and allegedly fabricated quotes by his widow Micki Delp in the "Inside Track" column. The complaint alleges Micki Delp demanded "Inside Track" retract the quotes attributed to her, but Fee purportedly refused to do so.

Scholz alleges the Herald articles "impute dishonesty, immorality, vice and dishonorable conduct to Mr. Scholz and injure Mr. Scholz in his trade or business." A 2008 defamation suit brought by Scholz against Micki Delp and her sister Connie Goudreau is still pending, CNS reports.

Representing Scholz is Boston attorney Howard Cooper, who bested the Boston Herald in 2005, scoring a more than $2 million libel verdict for Judge Ernest Murphy after the tabloid wrote an article alleging Judge Murphy harshly treated a teen rape victim in his courtroom. Cooper's success representing jurists in defamation suits has stretched to the Virgin Islands (see "TUOL" post 3/18/10).

Boston has sold more than 31 million albums worldwide and particularly shone during the 1970s and 1980s. Fans of the group's tunes may believe Scholz is just seeking "Peace of Mind," but based on the complaint and the attorney litigating it on his behalf, it's clear Scholz is looking for "More than a Feeling" from the Herald.