433 F.Supp.3d 102
D. Mass.2020Background
- Plaintiff Jonathan Mullane, a University of Miami law student and former intern at the U.S. Attorney’s Office, attended an April 10, 2018 hearing before Judge Federico Moreno concerning Mullane’s pro se credit-card dispute.
- Above the Law (owned by Breaking Media) published an April 30, 2018 article by Elie Mystal summarizing the hearing and using pejorative/derogatory language about Mullane.
- After publication Mullane alleges professional and emotional harm (SEC rescinded an invitation; Mullane later withdrew from law school) and sued for libel per se and multiple related torts and statutory claims.
- Defendants moved to dismiss; they relied principally on Massachusetts’ Fair Report Privilege and First Amendment protections (opinion/rhetorical hyperbole). The court applied Massachusetts law.
- The Court allowed the motion to dismiss: it held the reporting portions were protected by the Fair Report Privilege and the pejorative language was non-actionable opinion/rhetorical hyperbole; remaining tort and statutory claims were dismissed as derivative or implausible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether the Fair Report Privilege bars Mullane's libel claim | Article was unfair, contained pejorative language, and misreported key facts (e.g., what Mullane sought to file; alleged criminal implication) | Article fairly and accurately summarized the public court hearing from the official transcript; no actual malice | Privilege applies: reporting sections were substantially correct and protected; matter was of public concern so §92 actual-malice exception inapplicable |
| 2. Whether First Amendment protects the pejorative/opinion statements | Terms like "rude," "dumb," "ponce," and the nepotism suggestion are defamatory and actionable | Those terms are opinion/epithets or rhetorical hyperbole, not provable false facts | Protected: statements are non-actionable opinions/epithets given context, tone, and disclosed factual basis |
| 3. Whether tort claims (tortious interference, IIED, Chapter 93A, civil conspiracy) survive relabeling of defamation | Publication caused economic and emotional harm; alleged discrimination and a conspiracy involving Judge Moreno | Claims are recycled defamation or conclusory; lack plausibility, timing, or requisite extreme conduct; no plausible agreement or underlying torts | All dismissed: tortious interference unsupported; IIED not extreme/outrageous; Chapter 93A fails without defamation; conspiracy lacks plausible agreement or tortious acts |
| 4. Whether remaining pending procedural motions / intervention survive | Mullane sought discovery, reconsideration, sanctions, etc.; father sought intervention | Defendants moved to dismiss the substantive claims | Dismissal of the operative claims renders the pending motions and intervention motions moot |
Key Cases Cited
- Howell v. Enter. Publ'g Co., LLC, 920 N.E.2d 1 (Mass. 2010) (Massachusetts fair-report privilege applies to official actions and should be construed liberally)
- Yohe v. Nugent, 321 F.3d 35 (1st Cir. 2003) (fair-report privilege requires only a "rough-and-ready summary" that is substantially correct)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (opinions are protected unless they imply provably false facts)
- Connick v. Myers, 461 U.S. 138 (1983) (test for whether speech addresses a matter of public concern)
- Phantom Touring, Inc. v. Affiliated Publ'ns, 953 F.2d 724 (1st Cir. 1992) (context/tenor determines whether an opinion implies verifiable facts)
- Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122 (1st Cir. 1997) (epithets and ridicule are generally nonactionable)
- King v. Globe Newspaper Co., 512 N.E.2d 241 (Mass. 1987) (favoring summary disposition to protect free expression)
- Shaari v. Harvard Student Agencies, Inc., 691 N.E.2d 925 (Mass. 1998) (Mass. Gen. Laws ch. 231 § 92 unconstitutional as applied to matters of public concern)
- Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (First Amendment protects speech even when plaintiff pleads emotional-distress theories to evade defamation limits)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (Rule 12(b)(6) plausibility standard)