Raymond VEILLEUX, Kelly Veilleux and Peter Kennedy, Plaintiffs, Appellees, v.

NATIONAL BROADCASTING COMPANY, Alan Handel and Fred Francis, Defendants, Appellants.

Raymond VEILLEUX, Kelly Veilleux and Peter Kennedy, Plaintiffs, Appellants, v. '

National Broadcasting Company, Alan Handel and Fred Francis, Defendants, Appellees.

Nos. 98-2104, 98-2176.

United States Court of Appeals, First Circuit.

Heard June 8, 1999.

Decided March 6, 2000.

7 9

William D. Robitzek with whom Berman & Simmons, P.A. was on brief for plaintiffs.

Kenneth A. Cohen with whom John C. Englander and Goodwin, Procter & Hoar LLP, Richard Cotton, Susan E. Weiner, Daniel M. Kummer, National Broadcasting Company, Inc., Bernard J. Kubetz and Eaton, Peabody, Bradford & Veague, P.A. were on brief for defendants.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

CAMPBELL, Senior Circuit Judge.

Defendant-appellants National Broadcasting Company, Inc. ("NBC"), Alan Handel, and Fred Francis (collectively, "defendants") appeal from jury verdicts totaling $525,000 in the District Court for the District of Maine. Plaintiff-appellees Peter Kennedy, Raymond Veilleux ("Ray"), and Kelly Veilleux (collectively, "plaintiffs") sued defendants under diversity jurisdiction on state-law claims of defamation, misrepresentation, negligent infliction of emotional distress, invasion of privacy, and loss of consortium.

Plaintiffs alleged that defendants portrayed them in a distorted, untrue manner in a "Dateline NBC" television program concerning the perils to highway users caused by tired long-distance truck drivers. The program prominently and often unflatteringly featured Kennedy, a truck driver, as he drove a tractor-trailer across the country in the employ of Ray Veilleux's trucking company.

Plaintiffs say their voluntary participation in the program was enlisted by defendants' false promises that the show would not include a group critical of the trucking industry, Parents Against Tired Truckers ("PATT"), and would portray trucking in a "positive" light. To plaintiffs' dismay, Kennedy was depicted as an unsafe truck driver who regularly violated federal regulations and who used illegal drugs shortly before the program was filmed. The program suggested that many truckers and trucking companies engaged in similar illegal and dangerous practices in order to meet deadlines, and portrayed Ray as tolerating or encouraging such conduct.

Defendants contend that there was insufficient evidentiary support for the jury's verdict on the many claims, and this appeal gives rise to numerous complex factual and legal issues. We find adequate evidence to support part of the plaintiffs' misrepresentation claim, but otherwise we reverse the judgment below and remand, in part, for further proceedings. Moreover, we reject plaintiffs' cross-appeal, which was conditioned upon our reversal of the judgment. /. FACTUAL BACKGROUND The following facts are undisputed unless otherwise indicated. On April 19 and 26, 1995, Dateline NBC, an hour-long news magazine program produced by NBC News, broadcast two reports concerning the long-distance trucking industry entitled "Keep on Truckin' " and "On the Road Again" ("the program" or "the report"). The program emphasized the pressures on long-distance truckers, the danger posed by truck-driver fatigue to others on the nation's highways, and the disregard of federal "hours of service" and other regulations that govern the industry. It prominently featured Kennedy, a long-distance truck driver who, with his employer, Raymond Veilleux, allowed a Dateline crew to accompany and film Kennedy on a coastto-coast run from California to Maine in September and October of 1994.

The idea for the Dateline program arose out of a tragic highway accident that occurred in Maine in October, 1993, in which four teenagers were killed when their car was struck by a truck driven by Robert Hornbarger, who later pleaded guilty to falsifying his driving hours in his logbook. In July, 1994, Handel, a freelance producer, contacted Dateline to suggest a possible story concerning long-distance trucking: the proposed story would be titled "Truckers'Asleep at the Wheel." Dateline approved the story proposal and commissioned Handel to produce the program. It assigned a Dateline associate producer, Tracey Vail, to assist Handel, and assigned Fred Francis, a veteran reporter, to help write the script and be the on-air voice.^{Footnote 1}

In August, 1994, Dateline interviewed and filmed relatives of one of the teenagers who was killed in Maine. The Izers were the co-founders of Parents Against Tired Truckers ("PATT"), a group advocating stronger and better-enforced trucking regulations, including those concerning driving hours. Dateline then sought a long-distance truck driver who would allow a television crew to accompany him or her on a coast-to-coast run. On or about September 20, 1994, Vail contacted Kennedy. Much of the content of the ensuing conversations between Vail, Kennedy, Handel, and the Veilleuxs was disputed at trial.

Kennedy testified that Handel stated that he had "heard you guys had a lot of negative publicity up there in Maine" and

that "he'd like to do a trip on a truck to see what it was really like, and do a little thing to put us in a positive light, instead of all the negative publicity we've had." In response to Handel's questions concerning how he "normally" drove, Kennedy stated that he "occasionally" made minor falsifications to his logbook.^{Footnote 2} Kennedy told Handel that he would need Ray Veilleux's approval before participating in the program.

Ray testified at trial that when Handel contacted him and his wife, he asked Handel his "intentions" with regard to the program. Handel responded that Dateline was seeking a company that operated lawfully and safely to show "what it's really like to run a trip cross-country." Ray testified that Handel agreed that PATT had already gotten enough publicity, and that he "wanted to show the other side of the coin," the "positive side." Ray's wife, Kelly Veilleux, similarly testified that Handel had stated that he had no intention of including PATT in the program, and that she and Ray had made clear that they "did not want to be involved in the show if PATT had anything to do with it." Handel did not disclose that he had already filmed the Izers. At trial, Handel denied making these representations.

After additional conversations with defendants, Kennedy and Ray eventually agreed to participate in the program. It was arranged that Dateline would videotape Kennedy's departure from Maine, scheduled for September 22, 1994, but would not otherwise accompany or film him on his trip to California. Instead, Dateline's crew would film Kennedy on the return trip carrying produce from California to Maine ("the Dateline trip").

The Veilleuxs testified that after Kennedy's departure from Maine, Handel called and stated that Dateline wanted to show Kennedy falsifying his logbook and evading inspection stations. Ray insisted that he would not agree to engage in such conduct for the sake of the program and threatened to terminate plaintiffs' participation. According to Ray, Handel withdrew his request and agreed to "do it your way." Handel denied that this conversation occurred.

During Kennedy's westward trip, he was informed by his dispatcher that he had to go to a medical center in Phoenix, Arizona, to submit to a random drug test required by federal law. Kennedy contacted the Veilleuxs and informed him that he had smoked marijuana at home about ten days earlier. Ray told him that he must take the test, and that he should proceed with the Dateline trip. Kennedy and the Veilleuxs did not learn of the results of the test until after the Dateline trip was completed.

On September 30, 1994, Kennedy met the NBC crew in Salinas, California, where he picked up produce. The produce was scheduled for delivery to Chelsea, Massachusetts, on or about October 6. The NBC crew, including Dateline correspondent Fred Francis, accompanied Kennedy, filming and interviewing him en route. As discussed in more detail below, Kennedy stated in the interview that he was violating the DOT hours regulations and falsifying his logbook to cover up the violations.^{Footnote 3}

In mid-October, Kennedy and the Veilleuxs received notice of the results of the drug test in Phoenix. Kennedy had tested positive for marijuana and amphetamines. Kennedy immediately requested a retest of the sample.

Later in the fall of 1994, Vail and Francis received information that Kennedy was no longer driving for Ray. When Francis contacted Kennedy, he responded "it's a

long story ... I can't get into it with you." However, Kennedy later agreed to meet with Francis and Vail in Portland, Maine, on December 6, 1994, to discuss his employment status. At that meeting, Kennedy told Francis and Vail that he had tested positive for amphetamines and marijuana in a drug test administered days before the Dateline trip. Kennedy testified that this information was disclosed "off the record," while Francis and Vail testified that it was not.

Dateline was subsequently provided with a written statement dated December 19, 1994, prepared by Kennedy in anticipation of a lawsuit for wrongful termination that Kennedy considered bringing against Ray. The statement contained Kennedy's account of the drug test and the circumstances of his termination. In that statement, Kennedy denied ever taking amphetamines and discussed the administration of the drug test, his reaction to testing positive, and his attempts to clear his name. Kennedy also stated that Ray had disclosed the results of the drug test to another employee, who, in turn, had told other drivers. This written statement was entered into evidence at trial.

In early January, 1995, Kennedy agreed to be re-interviewed by Francis on camera. When Francis first inquired about the drug test, Kennedy stated that he did not want to discuss it on camera. Kennedy threatened to leave when Francis stated that the drug test "ha[d] to be" a part of the program. After proceeding with the interview as to other topics for several minutes, Francis revisited the issue. This time, Kennedy admitted that he had failed the test but denied using drugs. He then discussed his reaction to the discovery that he failed the test, how he dealt with his employer, and his efforts to get a second test taken.

The Dateline report was broadcast nationwide on NBC in two parts on April 19 and 26, 1995. The first part primarily covered Francis' cross-country trip from California with Kennedy; the second part recapped the trip and explored policy issues relating to long-distance trucking and driver fatigue. The program featured interviews with a Department of Transportation ("DOT") official charged with enforcing trucking regulations, an expert on sleep deprivation, and PATT members whose children had been killed in trucking accidents. It included statements by Kennedy, including on-camera admissions, that he had repeatedly violated federal regulations limiting the number of hours truck drivers may drive and work in a specific period, falsified his logbooks, and lied to federal inspectors. ^{Footnote 4}

The report also disclosed that Kennedy had tested positive for marijuana and amphetamines in a random drug test.

Ray testified that he was hospitalized with chest pains following the first part of the broadcast, and his treating physician testified that the stress of watching the program contributed to his illness. Ray also testified that he was financially damaged by the report, in that the company to which he had leased his trucks terminated their business relationship, causing loss of business from some major customers. Ray and Kennedy testified that their reputations in the industry had been damaged. //. PRIOR PROCEEDINGS

On January 17, 1997, Ray and Kennedy filed a diversity complaint in the district court asserting seven causes of action under Maine law, including defamation, fraudulent and negligent misrepresentation, intentional and negligent infliction of emotional distress, unreasonable publication of private facts, and false light invasion of privacy. Kelly brought a claim for

loss of consortium. Defendants moved for summary judgment on all claims. In a published memorandum and order, Veilleux v. National Broadcasting Co., Inc., 8 F.Supp.2d 23 (D.Me. 1998), the district court dismissed Kennedy's (but not Ray's) claim for misrepresentation on the ground that Kennedy had failed to demonstrate pecuniary loss, as required by Maine law. It also dismissed all plaintiffs' claims for intentional infliction of emotional distress and for punitive damages. The court allowed the remaining claims to proceed to trial.

In the course of an eleven-day trial, the defendants moved for judgment as a matter of law at the close of the plaintiffs' case. The district court denied that motion. The jury awarded Ray $150,000 for pecuniary loss on his misrepresentation claim; $50,000 for physical injury and/or emotional distress on his negligent infliction of emotional distress, defamation, and false light claims; and $100,000 for injury to reputation on the defamation and false light claims. It gave Kelly $50,000 for loss of consortium. The jury awarded Kennedy $100,000 for emotional distress on his unreasonable publication, negligent infliction of emotional distress, defamation, and false light claims; and $75,000 for injury to his reputation on the unreasonable publication, defamation, and false light claims. The court entered judgment for plaintiffs on July 8,1998.

On July 22, 1998, defendants moved again for judgment as a matter of law, or in the alternative for a new trial or remittitur. The district court rejected the defendants' legal arguments "for the reasons set forth in its summary judgment memorandum and order and elsewhere in the record," and held that, "viewing the trial evidence in a light most favorable to plaintiffs and drawing all justifiable inferences in their favor, there is a legally sufficient basis on which a reasonable jury could have rendered the verdict that this jury did." The court also declined to reduce the damages award. Accordingly, an amended judgment was entered on September 22, 1998. This appeal followed. ///. SUMMARY OF OPINION

Reviewing the jury's verdict on each of the counts under the heightened review standard required under the First Amendment, see section IV, infra, we hold as follows:

First, we reverse the judgment in favor of Ray and Kennedy on their defamation claim. See section V, infra. Because the allegedly defamatory statements were reasonably based on Kennedy's admissions to Dateline or were otherwise supported or protected, plaintiffs failed to carry their burden of proving that the statements were materially false and negligently made as required by Maine law and the First Amendment.

Second, we reverse the judgment in favor of plaintiff Ray Veilleux on his misrepresentation claims to the extent it was premised on defendants' alleged assurances that the program's portrayal of the trucking industry would be "positive." See section VI, infra. We believe that Maine courts would not find actionable such a vague and, in this context, constitutionally suspect promise. Awarding damages for misrepresentation based on defendants' more specific promise not to include PATT in the program, however, offends neither Maine law nor the First Amendment, and we remand that portion of the claim to the district court for further proceedings. ^{Footnote 5}

Third, we reverse the judgment as to Ray and Kennedy's negligent infliction of emotional distress claim. See section VII, infra. This claim impermissibly circumvents Maine's express limitation on the underlying misrepresentation tort, which confines damages to pecuniary harm.

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FEDERAL REPORTER, 3d SERIES

Moreover, plaintiffs have not established a unique relationship between the parties, as required by Maine law, through which defendants may be held responsible for harming plaintiffs' emotional well-being.

Fourth, we reverse the invasion of privacy judgment in its entirety. See section VIII, infra. Under one theory, Kennedy contended that defendants' disclosure of his drug test results amounted to actionable "unreasonable publication." Because Kennedy's drug use was closely related to the theme of highway safety, an issue of public concern featured in the Dateline program, we conclude that the First Amendment protects defendants' publication. Kennedy and Ray's "false light" theory of invasion of privacy also fails, for the same reasons we reverse the defamation judgment, as these causes of action overlap in their relevant constitutional requirements.

Finally, we vacate and remand Kelly Veilleux's loss of consortium claim for further proceedings in the district court, as her claim is entirely dependent on the outcome of Ray's claims. See section IX, infra. We also reject plaintiffs' cross-appeal for punitive damages, on the ground that they did not adduce sufficient evidence of common-law malice. See section X, infra.

IV. STANDARD OF REVIEW

Defendants contend that the evidence was insufficient for submission of plaintiffs' claims to the jury. In weighing such a contention in the ordinary case, we would review the evidence in the light most favorable to the prevailing plaintiffs, drawing all reasonable inferences in their favor. See McMillan v. Massachusetts Soc'y for the Prevention of Cruelty to Animals,  140 F.3d 288, 299 (1st Cir.1998) (quoting Morrison v. Carleton Woolen Mills, Inc.,  108 F.3d 429, 436 (1st Cir. 1997)). Reversal would be in order only if the evidence, so viewed, would not have permitted a reasonable jury to find in favor of the plaintiffs on any permissible theory. See Andrade v. Jamestown Hous. Autk,  82 F.3d 1179, 1186 (1st Cir. 1996); Conway v. Electro Switch Corp.,  825 F.2d 593, 598 (1st Cir. 1987).

Deference to the jury is muted, however, when free speech is implicated. See Levinsky's, Inc. v. Wal-Mart Stores, Inc.,  127 F.3d 122, 127 (1st Cir.1997) (citing Bose Corp. v. Consumers Union of United States, Inc.,  466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)). In cases raising First Amendment considerations, appellate courts must conduct an "independent review of the evidence on the dispositive constitutional issue." Bose, 466 U.S. at 508, 104 S.Ct. 1949. Appellate courts' especially but not only the Supreme Court'have been assigned this obligation in order to safeguard precious First Amendment liberties. See id. at 511, 104 S.Ct. 1949; Duffy v. Sarault,  892 F.2d 139, 145 (1st Cir.1989). The rule of independent review applies regardless of whether the fact-finding function was performed by a court or a jury. See Bose, 466 U.S. at 501,104 S.Ct. 1949.

In Bose, the Supreme Court addressed a determination of "actual malice" in a bench trial of a product disparagement claim. The petitioner challenged the First Circuit's application of a de novo standard in reviewing that determination, arguing that Fed.R.Civ.P. 52(a) prescribed a clearly-erroneous standard of review. See Bose, 466 U.S. at 498-99, 104 S.Ct. 1949. Citing the defamation case of New York Times Co. v. Sullivan,  376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Court held that a standard of "independent review" was appropriate as a matter of federal constitutional law, trumping Fed.R.Civ.P. 52(a). Bose, 466 U.S. at 511, 104 S.Ct. 1949.

Following Bose, this court, like other courts of appeal, has extended the independent review rule well beyond defamation claims. We have stated that "where the trial court is called upon to resolve a number of mixed fad/law matters which implicate core First Amendment concerns,

our review, at least on these matters, is plenary." United States v. Amirault,  173 F.3d 28, 32 (1st Cir.1999) (quoting AIDS Action Committee of Mass., Inc. v. Mass. Bay Transp. Autk,  42 F.3d 1, 7 (1st Cir. 1994)). Accordingly, we have applied a heightened standard of review to several types of constitutional claims. See, e.g., Amirault, 173 F.3d at 33 (determination that photograph met definition of "lasciviousness"); AIDS Action, 42 F.3d at 7 (findings that state agency's rejection of condom advertisements was content-based and that MBTA cars are public fora); Duffy, 892 F.2d at 145 (findings as to what constitutes protected speech in public employee discharge case).

Independent review is subject to limitations, however. First, a court of appeals will not conduct a plenary review of the entire record. The Bose Court limited the scope of the independent review:

The independent review function is not equivalent to a "de novo" review of the ultimate judgment itself, in which a reviewing court makes an original appraisal of all the evidence to decide whether or not it believes that judgment should be entered for plaintiff.

466 U.S. at 514 n. 31, 104 S.Ct. 1949. Second, the reviewing court does not extend the independent review standard to all determinations concerning a particular legal claim, but only to those that specifically involve the application of First Amendment law to specific facts. See id.; Amirault, 173 F.3d at 32-33; Duffy, 892 F.2d at 145. Purely factual determinations, particularly those involving the credibility of witnesses, remain best addressed by the factfinder, and are subject to the usual, more deferential standard of review. See Duffy, 892 F.2d at 145.

We review the contested issues in this appeal under these standards.

V. DEFAMATION

The jury found that plaintiffs had proven that thirteen of the eighteen statements submitted to it were defamatory, and that defendants had acted with actual malice. ^{Footnote 6}

Accordingly, it awarded Kennedy and Ray Veilleux damages for reputational harm and emotional distress; it awarded Ray pecuniary damages as well. Because the jury found actual malice, the district court permitted it to award presumed as well as actual damages.

Defendants contend that plaintiffs failed to prove falsity and negligence as to any of the thirteen statements. They argue that these elements cannot be satisfied, as a matter of law, because Dateline accurately reported what Kennedy, himself had stated during videotaped interviews. Alternatively, defendants insist that at least three statements were constitutionally protected expressions of opinion or figurative speech, and that others were not "of and concerning" the plaintiffs. Finally, defendants argue that there was insufficient evidence of actual malice to permit plaintiffs to recover presumed damages.

A. Common law and constitutional principles _ _.. A common law claim of defamation under Maine law requires: (a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting to at least negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. See Lester v. Powers, 596 A.2d 65, 69 (Me.1991) (citing Restatement (Second) of Torts § 558).

Under Maine law, a statement is defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to

deter third persons from associating or dealing with him." Bakal v. Weave, 583 A.2d 1028, 1029 (Me.1990). Allegedly defamatory language must be "construed in the light of what might reasonably have been understood therefrom by the persons who [heard] it." Marston v. Newavorn, 629 A.2d 587, 592 (Me. 1993). A defamation claim may not be based solely on a reading that interprets the language in the most negative way possible. See Bakal, 583 A.2d at 1030.

The Supreme Court of the United States has determined that the federal constitution imposes certain requirements on defamation actions independent of those established by the state's own law. See generally Milkovich v. Lorain Journal Co.,  497 U.S. 1, 11-17, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). First, where the statements are uttered by a media defendant and involve matters of public concern, the plaintiff must shoulder the burden of proving the falsity of each statement. See Philadelphia Newspapers, Inc. v. Hepps,  475 U.S. 767, 776, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). Second, only statements that are "provable as false" are actionable; hyperbole and expressions of opinion unprovable as false are constitutionally protected. See Milkovich, 497 U.S. at 19-20, 110 S.Ct. 2695; Levinsky's, 127 F.3d at 127. Third, private individuals must prove fault amounting at least to negligence on the part of a media defendant, at least as to matters of public concern. See Geriz v. Robert Welch, Inc.,  418 U.S. 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); see also Levinsky's, 127 F.3d at 128 n. 4; Restatement (Second) of Torts § 580B cmt. c. Fourth, a private plaintiff must prove "actual malice" to recover presumed and punitive damages for a statement involving public concern. Levinsky's, 127 F.3d at 128 (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,  472 U.S. 749, 756-57, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985)). Insofar as the jury's verdict raises questions of compliance with these constitutionally-mandated elements, it warrants independent review. ^{Footnote 7}

See Harte-Hanks Communications, Inc. v. Connaughton,  491 U.S. 657, 685, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989).

Before turning to the broadcast statements themselves, we note that as each related to the risks that longdistance truckers pose to other drivers on the nation's highways, they unquestionably involved a matter of public concern. It was therefore plaintiffs' constitutional burden to show the falsity of each statement, and our duty, on appeal, to independently verify that this burden was met. See Hepps, 475 U.S. at 776, 106 S.Ct. 1558. Falsity "overlooks minor inaccuracies and concentrates upon substantial truth." Masson v. New Yorker Magazine, Inc.,  501 U.S. 496, 516, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). Where a defendant alters a speaker's words but effects no material change in meaning, the speaker suffers no injury to reputation that is compensable under the law of defamation. See id. A statement is not false unless it "would have a different effect on the mind of the reader from that which the pleaded truth would have produced." Id. at 517, 111 S.Ct. 2419 (internal quotations omitted); see also Restatement (Second) of Torts § 581A cmt. f (1977) (it is not necessary to establish the literal truth of the precise statement made; slight inaccuracies of expression are immaterial provided the defamatory charge is true in substance).

B. Regulatory violations: Category 1 On appeal, defendants have grouped the thirteen broadcast statements for which they were found liable into four categories, groupings we shall follow in this opinion. The statements in Category 1 include Dateline's broadcast assertions of Kenne-

dy's violation of federal regulations as to his hours and his logbook. Defendants contend that each of their statements was truthfully, or at least non-negligently, based on Kennedy's own admissions made before the broadcast. Hence, according to defendants, the statements could not justify the jury's finding of defamation.

In the first of the Category 1 statements, identified as statement (C), Dateline describes the portion of Kennedy's trip from Phoenix to Salinas, where he met the Dateline crew before proceeding to Reno: (C) "Kennedy started this trip in Maine and drove six days to Denver and on to Phoenix. After a drive that long, federal regulations required Kennedy to spend a day off the road, resting. Instead, ignoring the law, on his seventh day on the road, he's come straight to Salinas, California." [later] "After driving west all the way across the country in seven days, Kennedy now has just six days to deliver his load back east from Salinas, California, to Boston ..." [later] "In fact, regulations required Kennedy to sleep before leaving Salinas, because he spent twelve hours loading." [later] "So on his eighth day on the road, Kennedy heads out without any sleep at all." Defendants insist that all of statement (C) was substantially accurate, having been based on Kennedy's own taped statements to Francis after he met the Dateline crew in California.

Statement (C) can be split into four parts. The first concerns the alleged illegality of Kennedy's driving from Phoenix to Salinas (with a stop in Wheeler Ridge, California, to sleep) without spending a day "off the road." 49 C.F.R. § 395.3(b)(2) (1994) sets forth the "seventy-hour rule," in which a driver cannot drive after being on duty for seventy hours within an eight-day period. The relevant eight-day period revolves, such that each day, the driver subtracts from his or her total hours the on-duty hours accrued nine days previously.

The record cannot be said to establish definitively whether Kennedy in fact "ignored the law," viz. violated the seventyhour rule in driving to Salinas from Phoenix. Kennedy testified at trial that, upon redoing his logbook, he concluded that he had enough hours remaining to drive legally from Phoenix to Salinas without taking a day off. However, Kennedy's admissions, made in the recorded interviews prior to the airing of the Dateline program, support the broadcast statement. Plaintiffs have not proven fault, as required by Maine and federal constitutional law, if defendants' report was reasonably based upon information the plaintiffs gave them even if later the truth of the information becomes questionable. See Courtney v. Bassano, 733 A.2d 973, 976 (Me.1999) (plaintiff not negligent for purposes of Maine defamation law because she had "reasonable basis" for her statements); seealso Penobscot Indian Nation v. Key Bank of Maine,  112 F.3d 538, 559-61 (1st Cir.1997).

Here, defendants' report was supported by a recorded interview with Kennedy, not included in the program, in which Kennedy told Francis that he did not have "enough hours" to get from Phoenix to Salinas. In addition, the following further exchange between Francis and Kennedy further supported the broadcast report:

Kennedy: So we'll say that I had eleven hours available. You know, Okay. So I have a seven-hour ride to get to the L.A. area or the produce area to get my produce. Well, when I get there I got sixty-seven or sixty-eight hours or something like that. Okay? We'll say'but that night I don't pick up any hours cause it was the eighth day back home, you know, eight days back, I was off. So it's a zero, nothing comes off.

Francis: The next day at midnight zero again?

Kennedy: Nothing comes off. And I still only have three hours available.

What can I do? I gotta sit for two days to get enough hours to load to get started back home again.

Francis: What you did was what all drivers do? Right? And what is that? You didn't sit for two days? Kennedy: No. Based upon the above exchange, defendants could have reasonably understood that when Kennedy reached Los Angeles he had already driven for sixty-seven or sixty-eight hours, and that since he still had approximately three hundred miles to go before reaching Salinas, he would necessarily have exceeded the seventy-hour maximum by the time he got to Salinas. To be sure, Kennedy later testified at trial that he was not in fact legally required to take a day off after reaching Phoenix, as his further review indicated that he had enough hours to drive legally from Phoenix to Salinas. But this postbroadcast recapitulation does not establish that defendants were negligent in earlier accepting Kennedy's contrary admissions. Kennedy had conceded, in interviews taped before the broadcast, that he did not have enough hours and, absent reason to disbelieve that version, Dateline was entitled to rely on it. Plaintiffs point to no facts indicating that it was unreasonable for defendants to have credited Kennedy's admissions at the time of the broadcast; for example, Kennedy did not inform anyone before the broadcast that he had miscalculated the hours in his logbook, or of other circumstances showing that a seventy-hour-rule violation had not taken place. Plaintiffs have not, therefore, presented evidence from which a jury could reasonably conclude that defendants spoke negligently in this portion of statement (C). ^{Footnote 8}

The next controverted portion of statement (C) was that, "After driving west all the way across the country in seven days, Kennedy now has just six days to deliver his load back east from Salinas, California, to Boston ..." Plaintiff Kelly Veilleux, a driver-manager for her husband's company and Kennedy's supervisor at the time of the Dateline run, testified at trial without contradiction that the time allotted for Kennedy's return journey was, in fact, six days. It is hard to see, therefore, why Dateline's remark that he "now has just six days ..." is untruthful.

Plaintiffs note that Kennedy testified at trial that he felt no pressure from the client (i.e. the shipper) to complete the trip within six days. However, Kennedy did not question that his employer had'as Kelly Veilleux testified'scheduled six days for the run. Moreover, saying that Kennedy had just six days for the return trip does not disparage Kennedy or portray him in a negative manner. A tooshort deadline would primarily reflect upon whomever imposed the deadline, in this case his employer, who conceded allotting six days for the return trip. Thus, in Kennedy's case, the statement was not only supported by Kelly Veilleux's testimony, but failed to satisfy the requirement under Maine law that it "tend ... to harm the reputation of another [so] as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." See Baked, 583 A.2d at 1029.

Kennedy's employer, Ray Veilleux, was, to be sure, also one of the plaintiffs, and Dateline's statement might be seen as harming him. However, given Kelly Veilleux's uncontradicted testimony that six days had been scheduled for Kennedy's return trip, we think the record provides insufficient basis for a jury finding that the

Dateline assertion was negligent or materially false as to Ray. Kennedy's testimony'that he felt no pressure from, the client to complete the eastward trip precisely within six days, i.e. by midnight on October 5, 1994, and that he could have received an extension of time from the client if he so requested'did not controvert Kelly Veilleux's testimony that the employer had set a six-day return schedule. We see no material falsehood. See

In the third portion of statement (C), Dateline stated, "In fact, regulations required Kennedy to sleep before leaving Salinas, because he spent twelve hours loading." Kennedy testified at trial, without contradiction, that this statement was false in that he had spent only three hours loading his truck. Moreover, the relevant regulations only require that he take time off, not that he sleep.

The statement as to taking twelve loading hours was indeed unsupported, and no regulation has been called to our attention requiring drivers to sleep rather than, in specified circumstances, to take time off. However, the thrust of the statement' that regulations prohibited Kennedy from driving when he left Salinas'was amply supported by Kennedy's taped statements prior to the broadcast. Not only did Kennedy then indicate that he was in violation of the seventy-hour rule when he reached Salinas, but he also stated prior to the broadcast that leaving Salinas without a break, after having been "up all day," was "probably illegal." (Kennedy admitted that he did not sleep until reaching Reno, twenty-two hours after he last slept in Wheeler Ridge.) Given these admissions, which were not withdrawn before the broadcast, we do not believe that whatever inaccuracies existed were sufficiently material to establish defamation. See Masson, 501 U.S. at 517, 111 S.Ct. 2419.

The final disputed portion of (C) immediately follows the assertion that "regulations required Kennedy to sleep before leaving Salinas." It states: "So on his 111 eighth day on the road, Kennedy heads out without any sleep at all." Although conceding that Kennedy did not sleep in Salinas before heading out, plaintiffs point out that, before driving to Salinas, he had slept in Wheeler Ridge, and criticizes as false the assertion that Kennedy headed out "without any sleep at all." But we think the most plausible interpretation of this statement is that Kennedy did not sleep in Salinas before heading out (a matter iterated in the preceding sentence) before departing on the eastbound journey with the Dateline crew. That construction fits with Kennedy's statement in an interview that was aired in the report: Francis: But why didn't you take a snooze break before you left for California? Kennedy: Never do. I, I get out of here ... that's the way I've always done it for years'I always get to Reno. See Bakal, 583 A.2d at 1030 (defamation claim may not be based on interpretation of language in most negative way possible). In context, we think the statement was substantially true, hence not a sufficient basis for finding defamation.

We turn next to statement (M), another of the Category 1 statements upon which the jury found defamation liability. This also concerned Kennedy's violation of regulations relating to permissible on-duty hours: (M) "As you will see, incredibly, it will be his last sleep. As he often does, Kennedy will go from Chicago to Boston'eleven hundred miles, a drive of over twenty hours'with no sleep."

Plaintiffs contend that Kennedy's trial testimony that he napped in Ohio was evidence from which the jury could find statement (M) to be false. Regardless of whether statement (M) was literally true, however, the record indicates that Kennedy made taped admissions prior to the broadcast that fully supported it at that time. Defendants point to the following

taped colloquy between Francis and Kennedy: Franeis: You, right now, it's almost midnight, have been awake forty hours. Kennedy: Yeah. Francis: How d'you feel? Honest. Kennedy: Well, I'm tired, but I'm not falling asleep. I'm not dozing or anything like that. I'm worn out, you know.... Francis: ... You think'you're not fatigued. Kennedy: No. Programmed. Francis: You know that a lot of people listening to this are going to think you're BS-ing me'that nobody can drive a big eighteen-wheeler like that for forty hours from Chicago to Boston and not be really wiped out. Kennedy: [Laughing] I'm not bullshittin'. But I had to do it. To be here, right? ... It's routine, that's all I can say, it's routine.

While Kennedy testified at trial that he had, in fact, napped for a couple of hours in Ohio, he did not make this point to Francis at the earlier interview when Francis stated that Kennedy had been "awake forty hours." Moreover, Kennedy himself repeated that statement later, in a taped conversation with his girlfriend in Waterville, Maine: "Fred says 'do you realize you've been up for forty-something hours?'... yeah, so what? I mean, I do it all the time." Defendants could reasonably rely, in the broadcast, on Kennedy's version as conveyed to them then. They cannot be held accountable for corrections to which Kennedy testified after the broadcast.

We turn next to statement (Q), which further alleged illegal conduct by Kennedy: (Q) [Francis to Veilleux:] "[Kennedy] didn't take the required time off.

He made the log up as he went along so he would look legal." As discussed above, the statement that "Kennedy didn't take the required time off was supported by Kennedy's recorded pre-broadcast admissions; plaintiffs failed, therefore, to make the necessary showing of negligence. As to whether Kennedy "made the log up as he went along so he would look legal," defendants based their contention on the following taped statements made prior to the broadcast: Handel: So here we are, Sunday morning, just outside of Salt Lake City, Utah ... and you're just sitting in your cab doing what? Kennedy: Falsifying my log book....

I have to do it. You know, there's no way around it. I have to do it. Kennedy also referred to his log book as "a lie book" in which he had to "incriminat[e] [him]self ... to make a living." Moreover, Kennedy indicated that he would create a log of a fictitious trip in order to conceal his admitted violation of the seventy-hour rule on the final leg of his journey: Kennedy: Yeah.... Oh, I'll have to make out a little log book.

Francis: Oh, you'll do this whole fiction all over again? ...

Kennedy: What I'll have to do is'make a little log: "Left home, took a load of berries, one to Middleboro, cold storage" or something like that. These statements provide ample support for Dateline's broadcast assertion that Kennedy falsified his logbook "as he went along so he would look legal." Defamation liability cannot be premised on them.

Another challenged broadcast statement, statement (K), similarly concerns Dateline's portrayal of Kennedy's alleged failure to take off-duty time as required by law: (K) "Remember, Kennedy hasn't taken anytime off since he left Maine eleven days ago. That's blatantly illegal" [later] "But he hasn't taken any time off since he began. That's

against the law, and it now appears Kennedy's headed for trouble." The truthfulness of this statement turns in part on the meaning of the phrase "time off." A reasonable viewer would not necessarily understand the broadcast to mean that Kennedy had not slept for eleven days. The statement more plausibly indicates that Kennedy had not had taken any significant amount of time off-duty during the trip, or perhaps that he had driven every day since leaving Maine.

In describing the conduct as illegal, defendants could reasonably have relied on Kennedy's admissions of illegality described supra. Moreover, the statement "hasn't taken any time off' was vague and susceptible of more than one meaning. Defamation liability should not be premised on statements of such uncertain meaning. See Levinsky's, 127 F.3d at 129-30; see also McCullough v. Visiting Nurse Service of Southern Maine, Inc., 691 A.2d 1201, 1204 (Me.1997) (visiting nurse, who had been fired, could not recover for defamation on basis of vague statement that she was "unavailable" to perform her assigned visits).

Plaintiffs complain that the voiceover statement was misleadingly accompanied by an inappropriate videotape of Kennedy pulled over on the side of the road, supposedly in nervous anticipation of an inspection station. The footage was, in fact, taped several days previously, in Salinas. Inaccurate reportage is not to be condoned and could well be defamatory if it otherwise met the necessary standards. Plaintiffs fail, however, to show how the use of the earlier taped scene effected any "material change in the meaning conveyed by the statement." See Masson, 501 U.S. at 517, 111 S.Ct. 2419. We conclude that plaintiffs did not present a jury question as to statement (K)'s falsity or defendants' negligence.

The next statement at issue, statement (A), purportedly summarizes the illegal activities practiced by Kennedy: (A) "Almost every time [Peter Kennedy] goes to work he breaks the law." This statement is not expressly limited to the several days that Dateline filmed Kennedy; rather, it appears to characterize Kennedy's general driving practices. The question is whether defendants had sufficient evidence from which to make such a generalization, not limited to violations of regulations on the trip with Dateline. Could Dateline reasonably infer from what it observed and heard about Kennedy's activities that he likely broke the law "almost every time [he] goes to work" as part of his usual truck driving practices? Several taped admissions allow reasonable inferences that Kennedy's regulatory violations were not isolated instances. Kennedy told Francis that he "can't be reprogrammed, so I am breaking the law"; that he does "drive over the 10 hours"; and that he "never" took a "snooze break" before departing California, even though this practice was "probably illegal." Kennedy also admitted to Francis: Kennedy: I know my limits ... I can go sometimes'fifteen hours, twelve hours, eighteen hours'sometimes only four hours.

Francis; How about twenty hours, forty hours? You've done that too, right? Kennedy: Oh, it has been done, oh yeah, yeah, many times. With regard to falsifications in his logbook, Kennedy stated on camera "no one would last doing it legally ... it would be over for them." Moreover, Kennedy admitted in his trial testimony that the statement in the report that he was "used to going over the ten-hour legal driving limit" was true.

Kennedy argues that defendants possessed ample information, at the time they made the report, that Kennedy was normally a safe and law-abiding driver. Kennedy also testified that the Dateline trip was unusual, and that he violated regulations only because of delays imposed by Dateline. The above admissions, however,

point to more frequent and regular violations. For Dateline to say these violations occurred "almost every time [he] goes to work" is not so far off the mark as to warrant finding that defendants negligently extrapolated from the information they possessed at the time they created the report. Reporters have leeway to draw reasonable conclusions from the information before them without incurring defamation liability. Cf. Courtney, 733 A.2d at 976; see also Penobscot Indian Nation, 112 F.3d at 559-61. We hold that plaintiffs did not meet their burden to establish the falsity of the comment and defendants' negligence in making it.

The next and final statement in Category 1 also concerns Kennedy's alleged law-breaking: (B) "Kennedy is angry that he has to sidestep federal rules just about every day he's on the job; so he allowed DATELINE cameras to record his journey. It will be a rare look at a pressure-packed run, with the law being broken all the way." There is ample evidence in the record supporting the veracity of defendants' statement that Kennedy was angry about the regulations. In addition to the statements described above, Kennedy repeatedly expressed on camera his opposition to federal trucking regulations: Kennedy: I'm against the system. I'm against their'their rules and their regulations, and invasion of my privacy.

And my constitutional rights are taken right away the minute I walk in the door of this cab. Kennedy also referred to the hours-of-service and log-keeping requirements as "communism" and "regulation-strangulation." Moreover, he stated to Handel that under the regulations, "we'd be already a day late for where we're going with a load. The shelf life would be gone by two or three days by the time we ever got there legally ..." This exchange continued as follows:

Handel: So your beef is that in order to do your job, to earn a living, you got to do something that's in effect illegal, you got to falsify your log books?

Kennedy: Right, I do, yes. Or I'll just sit here and twiddle my thumbs, because I'm out'I'm out of hours for the day....

Given these and Kennedy's other statements, plaintiffs cannot justify the defamation verdict based upon defendants' statement that Kennedy was angry about government regulation.

Plaintiffs contend that defendants falsely drew a causal link between Kennedy's "anger" and his agreement to participate in the Dateline show, and that Kennedy in fact chose to participate in order to show the positive side of the trucking industry. Between the broadcast report and plaintiffs' own briefs, however, a number of motivations have been ascribed to Kennedy, and the motivation at issue in statement (B) appears as well-supported by the evidence as any. ^{Footnote 9}

In any event, the drawing of this connection did not cause plaintiffs to suffer injury beyond what would have otherwise occurred. See Masson, 501 U.S. at 516, 111 S.Ct. 2419. In the absence of this specific statement, listeners might have logically concluded from Kennedy's comments in the broadcast itself that these stemmed from his anger at the regulatory system.

As to the reference in statement (B) to "the law being broken all the way," this was similar to statement (A), supra. For the same reasons given in reference to (A), we conclude that a defamation claim cannot be sustained on that assertion.

C. Risk and danger: Category 2 A second set of the thirteen statements upon which the jury premised its defamation verdict concern the risks flowing from Kennedy's behavior. Defendants contend that these statements are constitutionally protected because they are true or, alternatively, because they described Kennedy's driving routine "with some rhetorical flourish, or added an opinion about the risks on the road."

This court said in Levinsky's that "the First Amendment does not inoculate all opinions against the ravages of defamation suits." 127 F.3d at 127. A statement couched as an opinion that presents or implies the existence of facts that are capable of being proven true or false may be actionable. See id. (citing Milkovich, 497 U.S. at 18-19, 110 S.Ct. 2695); see also Restatement (Second) of Torts § 566 (1977) ("A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as t