On August 21, 1988, the defendant News Group Boston, Inc., published an article in the Boston Herald newspaper authored by the defendant Estes, concerning thе plaintiffs, a former Massachusetts District Court judge and her attorney husband. Each plaintiff has alleged in this action that the article was libelous in certain respects. After *10 considerable discovery, the defendants successfully moved for summary judgment. We transferred the plaintiffs’ appeal here and now affirm the judgment.
1. The article’s allegedly libelous aspects largely concerned Mrs. Milgroom’s absences from court dutiеs (on some of which she was in Florida) during the two and one-half years before her retirement on July 31, 1988. Under decisions of the Supreme Court of the Unitеd States, she was a public official who has a substantially heightened burden of proof to establish liability for libel. A sitting judge is a public official for thе purposes of applying the principles of
New York Times Co.
v.
Sullivan,
Because the former judge was a public official for the purposes of deciding whether thе defendants may be held liable for defamatory statements concerning her conduct while a judge, she must prove by clear and convinсing evidence that the defendants acted with actual malice in publishing the al
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legedly defamatory statements. See
New York Times Co.
v.
Sullivan, supra
at 279-280. One acts .with actual malice by publishing a statement with knowlеdge of its falsity or with reckless disregard to its truth or falsity. See
id:, King
v.
Globe Newspaper Co.,
There is no disputed fact concerning whether the defendants knew thаt the allegedly libelous statements were false. The individual defendant stated by affidavit that she had and still believed that the information in the articlе was true. Mrs. Milgroom has not contradicted that statement by anything in the summary judgment record.
As to whether the defendants acted in reckless disregard of the truthfulness of the allegedly libelous statements, the individual defendant’s affidavit states that she had no reason to doubt the accuracy of the statements in the article or the truthfulness of their source. That statement alone is not dis-positive of the issue because clear and convincing evidence might warrant a contrary inference. See
St. Amant
v.
Thompson, supra
at 732;
McAvoy
v.
Shufrin, supra
at 599. No such contrary evidence is shown, however, in the record. The рarties conducted extensive discovery, to the scope of which the plaintiffs raise no challenge here. It is true that the articlе overstates by twenty percent the number of days (250 v. 216) the judge was absent from her judicial duties during the two and one-half years prior to her retiremеnt. Even if we assume that the discrepancy is libelous, the discrepancy is not material because it does not tend to show that either de
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fеndant acted with a subjective belief that the number of days set forth in the article was of doubtful veracity. See
Harte-Hanks Communications, Inc.
v.
Connaughton,
We affirm summary judgment for the defendants on Mrs. Milgroom’s claims.
2. Summary judgment was properly entered for the defendants on Mr. Milgroom’s claims. We shall assume that Milgroom was not a public figure. We shall, therefore, pass on thе allowance of the defendants’ motion for summary judgment as to him by applying common law principles of libel. A statement is defamatory in thе circumstances if it discredits a person in the minds of any considerable and respectable class of the community.
Smith
v.
Suburban Restaurants, Inc.,
Milgroom’s principal contention is that the article is libelous as to him in what it says about the sales tax consequences of his purchase of a boat in Florida in March, 1986. The article set forth the following, each sentence in a seрarate paragraph: “Presumably D’Ambrosio spent at least part of her time in Florida on the 48-foot yacht ‘Lady Lily’ *13 named after her. Milgroom, an attorney and accountant, purchased the $225,000 cabin cruiser in March of 1986 from a Florida dealer. On boat purchase paрers Milgroom listed his address as Seabrook, N.H., even though he lives in Boston. In March, Florida tax officials challenged Milgroom’s New Hampshire registrаtion of the boat and assessed him $23,000 in unpaid sales tax and penalties.” Each of these statements is true or substantially so. 4 The article continued by stating that Milgroom insisted, as was true, that the tax on the boat had been paid before the article was published.
Because, on the rеcord, the facts concerning the boat were true or substantially so, summary judgment was properly entered for the defendants on Mr. Milgroom’s claims.
Judgment affirmed.
Notes
Each plaintiff asserts that the article is false in stating that “she and her husband own a $900,000 vacation home in an exclusive section of Boсa Raton.” Mr. Milgroom alone owns a home in Boca Raton. It is worth at least $900,000. Although she may have some potential interest in the property because the plaintiffs are married, the article is wrong in stating that Mrs. Milgroom has an ownership interest in it. The plaintiffs have not shown, howevеr, how the statement concerning the Florida home in its erroneous aspects is libelous of either of them. As to the former judge, we need not decide whether proof of the defendants’ actual malice is a necessary element of this aspect her case. If it is, it is not mаde out on the record.
Milgroom provided a Seabrook, New Hampshire, address in purchasing the boat. The Florida Department of Revenue sent Milgroom a “notice of delinquent tax, penalty and interest due and assessed” in March, 1988, setting forth an amount of $22,250.69. The unavoidable imрlication in the circumstances is that, as the article said, the Florida tax officials challenged the New Hampshire registration of the boat.