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Have you been “Defamed” within the meaning of Massachusetts law?
The answer depends on a number of factors.
DEFAMATION is “[t]he taking from one’s reputation. The offense of injuring a person’s character, fame, or reputation by false and malicious statements. The term seems to be comprehensive of both libel and slander.”
Thus, there are are two essential classes of defamation, libel and slander. Its easy to remember that slander is spoken and libel is printed. LIBEL is defined as a “[d]efamatory statement published through any manner or media. If intended to simply bring contempt, disrespect, hatred, or ridicule to a person or entity it is likely a civil breach of law. However, if it causes mayhem or breach of peace, it can be a criminal breach of law. Yet, again, if the statement is newsworthy, even if defamatory, proof of benefit to the public is required to avoid criminal complaint.” The other offense covered under the umbrella term “defamation,” SLANDER, is, “[i]n torts. Oral defamation; the speaking of false and malicious words concerning another, whereby injury results to his reputation.”
To prove “defamation” in Massachusetts, a Plaintiff must show, by clear and convincing evidence, that the accused made a statement, of and concerning the Plaintiff, which is false, and caused the aggrieved party damages. Whether the person is categorized as “private” or “public” determines whether the Plaintiff must meet a negligence standard, as in private Plaintiff cases, or an actual malice standard, as in cases of public figures or in some cases of public concern. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 856 (1975). A private citizen may in some cases be able to recover for true statements made with malicious intent.
NEW YORK TIMES, CO. V. SULLIVAN – THE LANDMARK RULING
The seminal case of New York Times, Co. v. Sullivan, 376 U.S. 254 (1964), in a plurality, or “split,” decision, set the out the legal standard for defamation cases brought by a “public” person, which requires the Plaintiff prove “actual malice,” in addition to the normal elements of defamation. New York Times, Co. v. Sullivan, 376 U.S. 254 (1964). The case was heard and decided amid the 1960s Civil Rights movement “[…]against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times, Co. v. Sullivan, 376 U.S. 254, 270 (1964). There, the Supreme Court of the United States held that, in addition to finding the elements of defamation, “[t]he constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made *280 with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times, Co. v. Sullivan, 376 U.S. 254, 280 (1964).
A “public official” is generally a government employee who has substantial responsibility or control over the conduct of government affairs. A “public figure” is an individual who has assumed a role of prominence in the affairs of society.
The Court in NYT v. Sullivan continued, “‘where an article is published and circulated among voters for the sole purpose of giving what the defendant *281 believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff; and in such a case the burden is on the plaintiff to show actual malice in the publication of the article.’” Id. at 281-282. This standard was later extended to not just public officials, but also to any public figure. Being a public figure can be as simple as subjecting ones self to a public discussion or controversy. See Nunes v. Lizza, 486 F.Supp. 3d 1267, N.D.Iowa (Congressman stated claim for defamation against magazine who falsely reported illegal employment practices at family business).
Subsequent cases rounded out and otherwise refined the NYT v Sullivan ruling.
•The SCOTUS affirmed the actual malice standard for defamation actions brought by public figures against new organizations.
• The SCOTUS held that private plaintiffs need not make the New York Times Co. v. Sullivan malice showing in actions involving media defendants;- states may not impose liability without requiring some showing of fault; and- a private plaintiff must prove malice to obtain presumed or punitive damages.
• The issue before the SCOTUS was whether the holding of Gertz applied to a private plaintiff with respect to a statement that is not a matter of public concern. The Court held that Gertz does not apply; thus, a private plaintiff does not have to prove malice with respect to such statements to obtain presumed and punitive damages.
• The SCOTUS held that a statement on a matter of public concern must be provable as false before there can be liability under state defamation law, at least where a media defendant is involved.
• The SCOTUS held that an “opinion” may be actionable if it implies a false assertion of fact. There is an excellent discussion of Milkovich in Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 727-28 (1st Cir. 1992).
• The SCOTUS has held that private figures are afforded greater protection than public figures under the First Amendment. State law establishes the burden of proof for a private figure plaintiff. In Massachusetts, the SJC had held a private figure need prove only that the defendant acted with negligence. Schrottman v. Barnicle, 386 Mass. 627, 630 (1982); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 851 (1974).
EFFECT OF NEW YORK TIMES, CO. V. SULLIVAN ON MASSACHUSETTS LAW
The Massachusetts Supreme Judicial Court falls under the jurisdiction of the Supreme Court of the United States, but is required to reconcile the SCOTUS ruling within the framework of Massachusetts law. The SJC in Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (1975), opined that “[…in] extending the doctrine of the New York Times Co. and [its progeny], the [United States] Supreme Court, in a plurality opinion, decided that the actual malice standard applied not only to criticism of a public figure or of the official conduct of a public officer but also to the reporting of an event of public or general concern. Rosenbloom v. Metromedia, Inc. 403 U.S. 29, 44 (1971) (Brennan, J.). Thereafter, we set the standard in this Commonwealth for invoking the First Amendment protection for libellous material published without actual malice by holding, in accordance with the apparent requirements of the Metromedia case, that the relevant issue was not the status of the particular plaintiff involved, but rather the events which were the subject of the publication. Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118, 123 (1971). See Twohig v. Boston Herald-Traveler Corp. 362 Mass. 807, 808-809 (1973).” Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 856 (1975).
The major takeaway from the Stone case, and its progeny (cases that stemmed from it), is that a Plaintiff who is not a public officer or a public figure may recover damages in an action for libel by proof of negligence in the publishing of the libel by defendant, its agents or servants, even though libel occurs in reporting of an event of public or general concern. Stone, 367 Mass. 849 at 858. The other major takeaway is that a Plaintiff who is a public officer or a public figure may recover damages in an action for libel only on proof of actual malice, that is, proof of willful or reckless disregard of proof in publishing libel. Id. Emphasis added.
WHAT KINDS OF DEFAMATION ARE ACTIONABLE?
To prevail on – as in the Holland case – a libel-based defamation claim, the aggrieved party needs to show “[…]that the defendant(s)were ‘at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss.’ White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66, 809 N.E.2d 1034 (2004). A claim for libel is actionable without proof of economic loss. Ravnikar v. Bogojavlensky, 438 Mass. 627, 630, 782 N.E.2d 508 (2003). See also Sharratt v. Housing Innovations, Inc., 365 Mass. 141, 310 N.E.2d 343 (1974)” Holland v Kwiat, 1:28 Opinion, 2006 WL 2661162. Cignetti v. Healy, 89 F. Supp. 2d 106, 126 (D. Mass. 2000). Showing a defamatory statement to just one person is sufficient to prove publication. Phelan v. May Dep’t Stores Co., 443 Mass. 52, 56 (2004); Shafir v. Steele, 431 Mass. 365, 372 (2000).
The Plaintiff doesn’t even have to be specifically mentioned by name for a statement to be “of or concerning” the Plaintiff if people could understand who the statement is referring to. Eyal v. Helen Broad. Corp., 411 Mass. 426, 430-31 (1991). In that case a local deli owner from the Metro-Boston area was falsely reported to be running a mob-backed cocaine operation out of his business and was able to bring a defamation case even though not named specifically. A corporation may be a public figure in certain circumstances.
“The test whether a publication is defamatory is whether, in the circumstances, the writing discredits the plaintiff “in the minds of any considerable and respectable segment in the community.” Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 751, 400 N.E.2d 847 (1980), quoting Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853, 330 N.E.2d 161 (1975). Where a communication is susceptible of both a defamatory and nondefamatory meaning, a question of fact exists for the jury. Jones v. Taibbi, 400 Mass. 786, 792, 512 N.E.2d 260 (1987).” Draghetti v. Chmielewski, 416 Mass. 808, 811 (1994).
“Liability may be imposed for words which are not inherently disparaging, but have that effect when viewed in context. Sharratt, 365 Mass. at 143-144, 310 N.E.2d 343. Whether the statement is reasonably susceptible to a defamatory meaning is a threshold question of law for the court. Foley v. Lowell Sun Publishing Co., 404 Mass. 9, 11, 533 N.E.2d 196 (1989). However, the court should only take the case away from a jury “when it is apparent that the publication is not reasonably capable of any defamatory meaning, and cannot reasonably be understood in any defamatory sense.” Sharratt, 365 Mass. at 143, 310 N.E.2d 343 (internal quotation omitted). If a publication is susceptible to both a defamatory and non-defamatory meaning, it presents a question of fact for a jury. King v. Globe Newspaper Co., 400 Mass. 705, 718, 512 N.E.2d 241 (1987).” See Holland v Kwiat, 1:28 Opinion, 2006 WL 2661162. Cf. Draghetti v. Chmielewski, 416 Mass. 808, 812 n. 4, 626 N.E.2d 862 (1994) (while libel refers to written words that are defamatory, slander refers to spoken words that are defamatory).
The following are examples of the types of statements that have been found actionable as defamation in Massachusetts:
• Dishonesty or fraud. Example: letters sent by defendants to plaintiff’s customers falsely stating that plaintiff had refused to pay for defendant’s product were found defamatory.
• Mental disorder. Example: statements made by employer that plaintiff has a specified mental disorder may be defamatory.
• Crime or immorality. Example: imputing criminal behavior is defamatory as a matter of law, meaning that the plaintiff does not have to prove damages to recover. Example: false statement that police officer was “double-dipping”—teaching at the police academy for pay while out on paid sick leave from the department—was defamatory per se.
• Injurious to business reputation. Example: report prepared by consultant assessing an aircraft service company contained false and misleading statements that were deemed defamatory.
• Potential for bad behavior. Example: letter sent by defendant’s lawyer to plaintiff—and also to the police—advising plaintiff that she was no longer permitted to enter defendant’s restaurant was defamatory because the potential for bad behavior on the part of plaintiff could be inferred from the letter.
• Careless omission of a significant fact or a name in a publication. Example: leaving out the name of the main architect of a housing project and substituting the name of another in lieu could be defamatory.
There are many ways that a defamation claim can resolve in Massachusetts and some cases never make it to trial, especially when the plaintiff is a public official. However, recent trends on the federal circuit have militated toward recovery by public persons.
DEFENSES TO DEFAMATION CLAIM
“An opinion is constitutionally protected speech and therefore not actionable as defamation. King v. Globe Newspaper Co., 400 Mass. 705, 708-09 (1987); Flotech, Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 368 (D. Mass. 1985), aff’d, 814 F.2d 775 (1st Cir. 1987); Cole v. Westinghouse Broad. Co., 386 Mass. 303, 308-13 (1982). The form of the language used is not controlling, however, because writers and speakers often use the word “opinion” as a preface when asserting a factual untruth. Thus, a statement couched as an opinion—“in my opinion, John Jones is a liar”—may be defamatory if it implies facts that are untrue. Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990).
The relevant question is not whether the statement is an opinion but, rather, whether it would reasonably be understood to declare or imply provable assertions of fact. Howell v. Enter. Publ’g Co., 455 Mass. 641, 671 (2010); Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 727 (1st Cir. 1992).
SIdebar: Fact v. Opinion. Fact: a : something that has actual existence: space exploration is now a fact; b : an actual occurrence: prove the fact of damage. Opinion: a : a view, judgment, or appraisal formed in the mind about a particular matter: We asked them for their opinions about the new stadium; b : approval, esteem: I have no great opinion of his work; c : belief stronger than impression and less strong than positive knowledge: a person of rigid opinions; d : a generally held view: news programs that shape public opinion.
Sidebar: What about intentionally misleading publications? Massachusetts does not yet recognize the tort of “false light,” which permits recovery for effect of well being of claimant for publications that are not patently false, but are still intentionally misleading.
Ok, back to the issue at hand; Opinion as a Defense to Defamation…
The Constitution generally protects the following types of statements as opinion:
• statements that cannot be proven false, Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d at 727;
• statements that cannot be reasonably interpreted as stating actual facts about an individual, such as “loose, figurative or hyperbolic language,” using words like “ “traitor” or “blackmail.” Example: theater critic who writes that “the producer who decided to charge admission for that show is committing highway robbery” would be immune from liability because no reasonable reader would understand the critic to be accusing the producer of an actual crime. Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d at 727.
• statements that, from their context, negate the impression that they are factual. Example: statements published in formats known to include opinion—such as cartoons, satire, and theater review columns. Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d at 729; King v. Globe Newspaper Co., 400 Mass. at 710-11 (cartoons).
In Massachusetts, the following factors must be considered when determining whether a statement is an opinion:
• whether the statement is provable as false;
• whether the statement can reasonably be interpreted as stating actual facts;
• whether the context in which the statement appears negates the impression that the statement is factual; and
• whether an independent examination of the entire record reveals that the determinations of the first three factors are made in such a manner as to not “constitute a forbidden intrusion on the field of free expression.”Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d at 727. Example: In Phantom Touring, the Boston Globe‘s highly critical review described a theater production as “a rip-off, a fraud, a scandal,” and accused the plaintiff of deliberately trying to deceive the public. Many of the statements were “obviously protected hyperbole” or “not susceptible of being proved true or false” and were protected as opinions. Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d at 727. In Cole v. Westinghouse Broadcasting Co., a news station fired a news reporter for misconduct and insubordination. The court concluded that the news station’s statements about the Plaintiff’s reporting techniques were opinions.
The defendant in defamation case will likely raise the defense that the statement is true. Example: defendant defeated a taxi driver’s defamation action by demonstrating plaintiff’s abysmal driving record. The plaintiff has the burden of proving falsity if he or she is a public official or a public figure or the defamatory statement involves a matter of public concern. The defense of truth may be limited in Massachusetts by G.L. c. 231, § 92, which provides that “the truth shall be a justification unless actual malice is proved.”
Even where the challenged statement is found to be false, a Plaintiff may be deemed “libel proof” and therefore unable to prevail. Defendants frequently assert this defense against Plaintiffs whose reputations are already so tarnished that they cannot be defamed. Example, mass murderer cannot be defamed by being falsely described as a tax evader. A “fair reporting” privilege may apply to publications, but only those who engage in fair and accurate reporting.
Massachusetts recognizes a number of conditional privileges, such as for law enforcement officials, officials acting in furtherance of their legal duty, or persons engaged in furtherance of a legitimate business interest. If privilege is claimed, the plaintiff must show actual malice or abuse of the privilege to defeat the privilege.
Sidebar: First Amendment Rights for Public Employees. Public employees do have limited rights to speak on matters of public concern. Curran v. Cousins, 509 F.3d. 36 (1st Cir. 2007). See Corbin v. Gillen, 839 F.Supp.2d. 376 (1st Cir. 2011)(Whether public employee’s speech addresses matter of public concern, as required for First Amendment protection, must be determined by content, form, and context of given statement, as revealed by whole record; the greater the value of subject of speech to public, the more balance tilts towards permitting employee to express himself).
In summation, there are many factors to consider when deciding to bring a defamation claim in Massachusetts, especially if you are a public figure, so-called.
You should contact an attorney to discuss your particular legal matter, if you believe your rights have been violated.