BRUCE PLANTE et al.
RONALD P. LONG
Argued: June 14, 2017
R. Libby, Esq., and Tyler J. Smith, Esq. (orally), Libby
O'Brien Kingsley & Champion, LLC, Kennebunk, for
appellants Bruce Plante and Dennis Plante
Jonathan W. Brogan, Esq. (orally), and Joshua D. Hadiaris,
Esq., Norman, Hanson & DeTroy, LLC, Portland, for
appellee Ronald P. Long
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Bruce and Dennis Plante appeal from the entry of a summary
judgment in the Superior Court (York County, Douglas,
J.) in favor of Ronald P. Long on their defamation
action. The court concluded that the Plantes failed to make
the necessary prima facie showing that Long acted with actual
malice. We affirm the judgment.
The following facts are taken from the parties'
statements of material fact and reflect the summary judgment
record in the light most favorable to the plaintiffs as the
"part[ies] against whom summary judgment was
entered." See Diviney v. Univ. of Me. Sys.,
2017 ME 56, ¶ 14, 158 A.3d 5.
Bruce is the Assistant Fire Chief for the Town of Berwick. He
also works as a delivery driver for Gagnon Propane and
previously served on the Town's Board of Selectmen.
Dennis is the Fire Chief for the Town of Berwick. Long is a
resident of Berwick and has a history of publicly criticizing
the Berwick Fire Department, including its leadership, and
opposing proposed fire department projects. The plaintiffs
have both conceded that they are public
On October 27, 2011, Long was jogging with his wife on
Worster Road in Berwick. Bruce, who was driving a propane
truck down that road, "pulled wide around" Long,
who waved. Bruce perceived Long's wave and facial
expression as harassing and was "upset." He pulled
the truck to a stop about 150 feet from Long and, while
"hanging on the edge of the truck" and raising his
voice due to the distance between them, twice yelled to Long,
"[H]ey, are you looking for me?" After Long replied
that he was not looking for Bruce and that he had "just
[been] waving, " Bruce responded, "[D]on't
bother." Bruce got back in the truck and drove away.
Although he had intended to "let Mr. Long know he wanted
nothing to do with him, " Bruce had not intended to
"instigate a fight."
The next day, Long sent an email to the chief and a captain
of the Berwick Police Department alleging that Bruce was
harassing him and recounting the events of the previous day.
In the email, Long stated that Bruce had yelled, "Hey do
you want some of this? Are you fucking looking for me?"
and, "Hey I said do you want some of this? Are you
looking for me?" Long stated that he had heard that
Bruce had "tried to intimidate [several other people] by
this very behavior, " and he asked the police to contact
those people to "further [their] investigation."
Long further stated that "[Bruce] is clearly mentally
unstable and I fear for what he is capable of doing.... [He]
is in a position to make me worry about the safety of my
family and myself." The same day, copying Berwick's
police chief and another individual, Long sent a second, very
similar email to Bruce's employer at Gagnon Propane.
At some point,  Dennis drove behind Long in a vehicle with
fire department insignia on it. There were initially two
other vehicles between the parties' cars. Long turned
down another road, pulled over, pulled back onto the road
after Dennis passed him, and followed Dennis.
On April 24, 2012, Long sent an email to the Berwick Board of
Selectmen and others, stating in part that the Plantes had
been following and harassing people. On May 23, 2012, Long
sent an email to the Berwick police chief and copied another
individual. The email stated in part that Bruce and Dennis
had "lied, followed, intimidated, and harassed people to
get 'Their Cause' pushed through."
In June of 2013, the Plantes filed a complaint against Long
containing eight counts of libel and one count of punitive
damages. Over the course of nearly three years, the parties
engaged in a protracted discovery process and motion
practice. Although they failed to reach complete agreement
through alternative dispute resolution, they did stipulate to
the dismissal of Counts 1 and 7 of the complaint. In May of
2016, Long filed a motion for summary judgment on the
remaining seven counts, which the court granted on November
7, 2016, after a nontestimonial hearing. The Plantes timely
This appeal requires us to determine, viewing the facts in
the light most favorable to the Plantes as the nonmoving
parties, whether any genuine issue of material fact exists
and whether Long is entitled to judgment as a matter of law.
Diviney, 2017 ME 56, ¶ 14, 158 A.3d 5;
see M.R. Civ. P. 56(c). "When the defendant is
the moving party, [he] must establish that there is no
genuine dispute of fact and that the undisputed facts would
entitle [him] to judgment as a matter of law. It then becomes
the plaintiff's burden to make out a prima facie case and
demonstrate that there are disputed facts."
Diviney, 2017 ME 56, ¶ 14, 158 A.3d 5
(alterations omitted) (citation omitted) (quotation marks
omitted). We will assume, for purposes of this opinion, that
the statements made by Long were false. The issue to be
decided, therefore, is whether the Plantes have made a prima
facie showing of actual malice. See Lester v. Powers,
596 A.2d 65, 69 (Me. 1991) (setting out the elements of
The Plantes are public figures and, as we have explained,
[d]iscussion of public officials and public figures on
matters of public concern, the U.S. Supreme Court has
declared, deserves special favor in a democratic society, and
thus such discussion is subject to a conditional
privilege-the "First Amendment privilege"-that can
be overcome only by clear and convincing evidence of [actual
malice, i.e., ] knowledge or disregard of falsity.
Id. at 69 (quoting New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80 (1964)). Thus, in order
to survive summary judgment, the Plantes must present some
evidence that at least one of Long's false statements was
made with "'actual malice'-that is, with
knowledge that it was false or with reckless disregard of
whether it was false or not." Harte-Hanks
Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 659
(1989) (quoting Sullivan, 376 U.S. at 279-80). In
other words, they must produce evidence that could
demonstrate that it is highly probable that, at the time he
sent the allegedly defamatory emails, Long in fact knew that
his statements were false or that he acted "with [a]
high degree of awareness of their probable falsity."
Michaud v. Town of Livermore Falls, 381A.2d 1110,
1116 (Me. 1978) (quotation marks omitted); see Taylor
v. Comm'r of Mental Health & Mental
Retardation, 481 A.2d 139, 154 (Me. 1984) (explaining
that the "clear and convincing" standard of proof,
which protects "important public interest[s], "
requires a plaintiff to prove her allegations "to a high
In response to Long's motion for summary judgment, the
Plantes offered evidence contradicting Long's accounts of
the events in question and demonstrating a contentious
history between the parties. See supra ¶¶
4-7. If believed by a trier of fact, the same evidence that
showed Long's statements to be false and the relationship
between Long and the Plantes to be contentious could also
give rise to an inference that Long bore the Plantes ill
will. Contrary to the Plantes' assertions, however, the
evidence of falsity, even combined with the inference of ill
will, would not be sufficient to support a clear and
convincing determination of actual malice.
The element of objective falsity is distinct from that of
actual malice. At trial, a fact-finder must be presented with
sufficient evidence to allow her to conclude that the
defendant '"in fact entertained serious doubts
as to the truth of his publication'" regardless
"of the assumed objective falsity of the
remarks." Michaud, 381 A.2d at 1114-15 (quoting
St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). We
have consistently refused to conclude that a fact-finder may
infer that a defendant was "consciously untruthful"
from evidence that her accusations were in fact false even if
that evidence coincides with indicia of the defendant's
ill will towards the plaintiff, e.g., that the defendant
destroyed or discarded her written records of the events in
question. Lester, 596 A.2d at 71-72 (concluding that
the plaintiffs proposed inference of actual malice was
"unsupported speculation" and inadequate to survive
a defendant's motion for summary judgment); see
Michaud, 381 A.2d at 1115-16. Rather, we have been clear
that "[e]vidence that some of [the defendant's]
factual premises were objectively false, or even that no
reasonable person could have believed them to be true, does
not show that she knew or disregarded their falsity."
Lester, 596 A.2d at 71. Permitting a fact-finder to
draw such an inference would effectively merge the elements
of falsity and actual malice, thereby reducing the heightened
burden assumed by public figure plaintiffs in defamation
actions and diminishing the "breathing space" for
protected speech that Sullivan and its progeny
require. Harte-Hanks, 491 U.S. at 686 (quotation
marks omitted); see Lester, 596 A.2d at 69 (citing
Sullivan, 376 U.S. at 279-80).
Nonetheless, the Plantes argue that we "reach[ed] too
far" in Lester and that we should
merge the elements of falsity and malice in cases involving
"personal knowledge." Their argument ultimately
relies on language the United States Supreme Court included
in a decision in which it reversed a libel judgment. See
Time, Inc. v. Pape,401 U.S. 279, 290 (1971) (concluding
that a magazine article summarizing a report by the United
States Commission on Civil Rights that discussed police
brutality did not demonstrate actual malice). In explaining
its holding, the Court determined that the Court of Appeals
had erred in concluding that "'malice' in the
sense of an 'intent to inflict harm through
falsehood' . . . might reasonably be inferred from the
very act of deliberate omission, and the issue of malice was
consequently one for the jury." Id. at 285. The
Court went on to state, however, ...