201 A.3d 1253
N.H.2019Background
- Plaintiffs Lorraine and Peter MacDonald own a vacation home near defendant Lisa Jacobs’s family property in Fitzwilliam, NH; Jacobs conducted repeated letter-writing campaigns accusing the MacDonalds of crimes and other misconduct.
- Plaintiffs sued Jacobs for defamation in 2016; a jury found the statements defamatory and made with malice, awarding special damages.
- The trial court also issued a permanent injunction: prohibited Jacobs from contacting the MacDonalds, publishing the defamatory accusations, entering Sterling, MA, and entering within five miles of the MacDonalds’ Fitzwilliam home.
- Jacobs appealed, raising multiple claims: improper “golden rule” argument, entitlement to summary judgment for lack of actual reputational harm, incorrect standard for enhanced compensatory damages, First Amendment/public concern issues, admission of Rule 404(b) evidence, and overbroad geographic injunctions.
- The Supreme Court of New Hampshire affirmed on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Golden-rule closing argument | Counsel’s comments were fair comments on trial testimony about plaintiffs’ fear and distress. | Jacobs argued counsel made an impermissible golden-rule appeal requiring mistrial. | Court: remarks were a fair comment on evidence; denial of mistrial was not an abuse of discretion. |
| Actual damages for defamation per se | MacDonalds: defamation per se does not require proof of specific reputational harm; general damages presume harm. | Jacobs: no evidence anyone believed her statements; summary judgment required. | Court: under New Hampshire law libel/slander per se requires no proof of specific damages; denial of summary judgment affirmed. |
| Enhanced compensatory damages / actual malice standard | Plaintiffs: enhanced damages permitted on proof defendant’s conduct was wanton, malicious, or oppressive (state common-law standard). | Jacobs: New York Times actual malice standard (knowledge or reckless falsity) should apply to enhanced damages. | Court: NYT actual malice applies only to public figures/officials; for private persons enhanced damages require proof of actual (ill will) or wanton/malicious conduct per state law. |
| Public concern / First Amendment protection | Plaintiffs: accusations were personal, wholly false, and therefore private concern not triggering heightened protection. | Jacobs: statements about criminal activity and public safety are matters of public concern, requiring actual malice. | Court: considering content, form, context, speech was private-personal attacks; not public concern; no NYT standard required. |
| Admission of other-act (404(b)) evidence | Plaintiffs: later out-of-state threatening conduct was relevant to prove malice/aggravating conduct for enhanced damages. | Jacobs: evidence was impermissible other-act and unfairly prejudicial under Rules 404(b) and 403. | Court: evidence admissible to prove aggravating circumstances (malice/wantonness); probative value outweighed prejudice. |
| Geographical injunction (banishment) | Plaintiffs: geographic restrictions necessary and narrowly tailored to protect them given defendant’s persistent harassment and threats. | Jacobs: injunction unlawfully banished her from family vacation property and Sterling; implicated travel/comity concerns. | Court: injunction was a proper, narrowly tailored equitable remedy; trial court did not abuse discretion; travel/comity arguments inadequately developed. |
Key Cases Cited
- Walton v. City of Manchester, 140 N.H. 403 (1995) (defines and condemns golden-rule jury arguments)
- Chagnon v. Union-Leader Co., 103 N.H. 426 (1961) (defamation per se allows recovery without proof of special damages)
- Lassonde v. Stanton, 157 N.H. 582 (2008) (private plaintiffs may recover on state-set standards lower than NYT actual malice)
- New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (actual malice standard for public officials/figures)
- Munson v. Raudonis, 118 N.H. 474 (1978) (discusses malice/wanton conduct and limits on punitive damages; aggravating conduct may increase compensatory damages)
- Dunn & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749 (1985) (distinguishes speech of public vs. private concern for First Amendment protection)
- Snyder v. Phelps, 562 U.S. 443 (2011) (content, form, context test for public concern)
- Figlioli v. R.J. Moreau Cos., 151 N.H. 618 (2005) (enhanced compensatory damages appropriate when conduct is wanton, malicious, or oppressive)