Stаcy Stanton has appealed the dismissal of her state-law defamation action against Metro Corp., which arises out of the publication of her photograph alongside an article entitled “The Mating Habits of the Suburban High School Teenager.” The district court dismissed Stanton’s complaint for failure to state a claim upon which relief could be granted based on the conclusion that the publication was not defamatory as a matter of law. Because we believe this conclusion was erroneous, and because Metro’s alternative arguments for affirmance are not well-founded, we reverse the decision of the district court and rеmand for further proceedings.
I.
Metro Corporation publishes Boston magazine, a monthly general interest publication that ran the article in question in its May 2003 issue. The cover of the magazine refers to the article with the phrase, “Fast Times at Silver Lake High: Teen Sex in the Suburbs.” Inside, Stanton is one of five young people pictured in a photograph that occupies the entire first page of the article and half of the facing page. The photograph, taken at a high school dance, depicts its three male and two female subjects in formal attire, sitting and standing near an open exit door in the background. Stanton’s image occupies most of the left-hand side of the photograph, where she appears standing, with her face and most of her body fully visible. Although three of the subjects are smoking cigarettes, and another holds a plastic cup, Stanton simply looks at the camera, smiling faintly.
The other half of the facing page consists of a column of text of varying sizes, including the aforementioned headline, which appears in the largest font and takes up most of the column. A “superhead,” appearing above the headline in a smaller font, reads: “They hook up online. They hook up in real life. With prom season looming, meet your kids — they might know more about sex than you do.” Below the headline, one and a half paragraphs of tеxt from the article are set forth in yet smaller type, ending with an arrow indicating that the story continues onto the following page. The byline and photography credit appear at the very bottom of the column in lettering larger than that of the main text, but smaller than that of the headline.
Just above the byline, and just below the main article text, the following appears in italicized type: “The photos on these pages are from an award-winning five-year project on teen sexuality taken by photojournalist Dan Habib. The individuals pictured are unrelated to the people or events described in this story. The names of the teenagers interviewed for this story have been changed.” 1 These words are rendered in the smallest font on the page, which is otherwise devoid of text that explains the photograph or identifies its subjects. 2 Stanton alleges that she did not participate in any such “project on teen sexuality.”
*123 The first few paragraphs of the article relate a conversation among four teenagers from a suburban Boston high school, including “Nicole,” described as a “pretty Keri Russell-look-alike ...” and “Christine, a curly-haired pixie in the under-90 weight range.... ” Nicole is quoted as saying, “All we ever do is go hang out and get drunk, like, all the time, and you know, hook up,” not generally with steady boyfriends or girlfriends, but “with whoever [sic]” after drinking at small gatherings. The article goes on to explain that the euphemism “hook up,” as teens use it, “can mean anything from sexual intercourse to oral sex to serious touching or just kissing.”
As these introductory paragraphs suggest, the thrust of the story is that teenagers in the greater Boston area have become more sexually promiscuous over the span of the last decade. The article draws support for this thesis from both statistical and anecdotal evidence, including interviews with a number of local high school students. As to the possible causes for the trend, the article considers a “hypersexual” popular culture, the ready availability of sexual encounters and pornography over the Internet, ineffective sex education programs, and peer pressure.
The story also declares that high school has replaced college as the time for sexual experimentation, describes a profound ignorance among teens about sexually transmitted diseases, and notes a related trend of increased sexual aggression among high school boys. Parents, for their part, remain “overwhelmingly clueless,” according to the article. Nevertheless, the story closes with the observation that some teens are “holding out hope” for emotionally rewarding sexual relationships, including “Jessica,” one of the teenagers from the group described at the beginning of the article.
Stanton, who lives in Manchester, New Hampshire, responded to the appearance of her photograph with the article by filing suit against Metro in Massachusetts state court. Metro, a Pennsylvania corporation with its principal place of business also in that state, duly removed the action to the district court.
Stanton’s amended complaint asserts two counts: invasion of privacy in violation of Mass. Gen. Laws ch. 214, § IB, and common-law defamation. Stanton alleges that the publication was defamatory in that “[t]he juxtaposition of [her] photograph and the text describing suburban teenage promiscuity ... insinuated that [she] was engaged in the activity described in the article.... ” She also alleged that the disclaimer was itself defamatory in falsely identifying her as a subject of the photographer’s “project on teen sexuality.” The district court granted Metro’s motion to dismiss on the ground that the amended complaint failed to state a claim on which relief could be granted. This appeal followed.
II.
We review the district court’s grant of the motion to dismiss de novo.
SFW Arecibo, Ltd. v. Rodriguez,
Stanton has appealed only the dismissal of her defamation claim. Furthermore, she has appealed the dismissal of that claim only insofar as it arises out of the juxtaposition of her photograph with the article; she does not contest the district court’s determination that the disclaimer was not independently defamatory in misidentifying her as a participant in the teen sexuality study. We limit our review accordingly.
See, e.g., Exec. Leasing Corp. v. Banco Popular De P.R.,
III.
To succeed on a defamation claim under Massachusetts law, a plaintiff must show that the defendant was at fault for the publication of a false statement of and concerning the plaintiff which was capable of damaging his or her reputation in the community and which either caused economic loss or is actionable without proof of economic loss.
White v. Blue Cross & Blue Shield of Mass., Inc.,
The district court accepted two of these arguments, ruling that “the defamatory statements at issue are not ‘of and concerning’ [Stanton], and are not reasonably capable of a defamatory meaning.”
Bifurcating the article in this fashion, the district court determined that, absent the disclaimer, “a reasonable reader could conclude that the teenage girl depicted in the photograph is sexually active and engages in at least some form of sexual misconduct.” Id. at 381. Nevertheless, the district court went on to explain that it was “forced to conclude that the disclaimer adequately negates the negative connotations about [the] plaintiff otherwise arising from the article and the photograph, at least in the mind of the reasonable reader.” Id. We believe that the district court’s calculus placed undue weight on the disclaimer in contravention of Massachusetts law.
We begin by focusing on the appropriate inquiry. We are not called upon to determine the ultimate issue of whether the article is defamatory, but to answer the “threshold question” of “ ‘whether [the] communication is reasonably susceptible of a defamatory meaning....’”
Amrak Prods., Inc. v. Morton,
“A communication is susceptible to defamatory meaning if it ‘would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community.’ ”
Amrak,
Although the district court correctly articulated these principles in its decision, it strayed from them in analyzing the publication at issue. The district court reasoned that, since “the disclaimer
directly
contradicts the otherwise-defamatory connection between the photograph and the text,” the article could be susceptible to a defamatory meaning only if “a reasonable reader would overlook the disclaimer, misunderstand it, or fail to give it credence.”
While we acknowledge that the position of an item in a newspaper or magazine can bear on the question of defamatory import,
see
Robert D. Sack,
Sack on Defamation: Libel, Slander, and Related Problems
§ 2.4.2, at 2-19 (2004), we cannot assume, as the district court did, that placing a disclaimer on the first page of an article itself ensures that a reasonable reader will see it. Instead, we must examine the article “ ‘in its totality in the context in which it was uttered or published’ ” and “ ‘consider all the words used, not merely a particular phrase or sentence.’ ”
Amrak,
Here, the disclaimer occupies the field between the body of the story and the byline, making it easy enough to overlook between the larger fonts of both. 3 The disclaimer is also separated from the column of text by a horizontal line, accompanied by an arrow directing the reader to turn to the next page, where the story continues. We cannot say that no reasonable reader would follow this visual signal and simply flip to the next page after reading the entirety of the text on the first page, but before reaching the disclaimer.
Nor can we say that any reasonable reader who notices the disclaimer would necessarily read the crucial second sentence, ie., “[t]he individuals pictured are unrelated to the people or events described in this story.” It is at least conceivable that a reader might take the first sentence of the disclaimer, which states that “[t]he photos оn these pages are from an award-winning five-year project on teen sexuality by photojournalist Dan Habib,” as a satisfactory explanation of the photographs and therefore stop reading the disclaimer before the second sentence. Such a reader would thus remain under the impression that the teenagers depicted in the photograph have some connection to the accompanying story.
Beyond the text and layout of the article itself, we must also consider “ ‘the medium by which the statement is disseminated and the audience to which it is published’ ” in assessing its amenability to a defamatory meaning.
Lyons v. Globe Newspaper Co.,
We have difficulty, however, in reconciling this aspect of the district court’s analysis with its conclusion that no reasonable reader would disregard the disclaimer. The district court appears to have reasoned that the “percentage” of “casual readers” who would disregard the disclaimer was not sizeable enough to represent what it called “the
reasonable
(or
*127
average) reader....”
Metro rejoins that, given the “express disclaimer,” any reading of the article as defamatory toward Stanton is necessarily incorrect, so “it does not matter whether a ‘considerable’ number of people might unreasonably misunderstand the publication in such a way....” But determining whether an allegedly dеfamatory statement can reasonably bear that construction as matter of law should not be confused with a search for its meaning in the objective sense. As the Supreme Judicial Court has explained,
Whether a publication is defamatory or not presents a question as to the meaning of words which differs from that presented when a written contract comes before the court for construction. In the latter case, the question is normally, what meaning a reasonable man, knowing all the relevant circumstances, give [sic ] to the words of the document. But a writing is a libel if, in view of all relevant circumstances, it discredits the plaintiff in the minds, not of the court, nor of wisе, thoughtful, and tolerant men, nor of ordinary reasonable men, but of any considerable and respectable class in the community.
Ingalls v. Hastings & Sons Publ’g Co.,
Thus, in deciding whether a statement is susceptible to a defamatory interpretation, the court must gauge the reasonableness of the interpretation based on what a considerable and respectable segment of the community would make of the statement. Our recent decision in
Amrak
makes this clear. There, the plaintiff claimed that the defendants had “portrayed [him] as a homosexual by miscaptioning a picture of a homosexual individual with [the plaintiffs] name” in their publications.
*128 We concluded that the publication in Amrak was not reasonably susceptible to a defamatory meaning because, to infer from the publication that the plaintiff was a homosexual, a reader would have to “follow Madonna and her cohort closely enough to recognize Guitierez as a gay man, but not closely enough to know Gui-tierez’s name or what [the plaintiff] looks like. Few, if any, readers would fall into this considerable and respectable segment in the community.” Id. at 73 (internal quotation marks omitted). Here, in contrast, we cannot say as a matter of law that too few readers would overlook the disclaimer to constitute a considerable and respectable segment of the community. The article is thus reasonably susceptible to a defamatory meaning.
In reaching this conclusion, we do not mean to suggest that language in the nature of a disclaimer can never serve to render a statement incapable of conveying a defamatory meaning.
See, e.g., Myers,
We also recognize that, as Metro argues, the article draws no literal connection between the subjects of the photograph and the subjects of its story. Under Massachusetts law, however, a statement need not explicitly refer to the plaintiff to constitute defamation.
See Eyal v. Helen Broad. Corp.,
Like the question of whether a communication can reasonably be understood tо be defamatory, whether a communication can reasonably be understood to be of and concerning the plaintiff depends on the circumstances.
New England Tractor-Trailer,
Essentially for the reasons stated by the district court,
see
Metro also contends that Stanton’s theory that running her photograph with the article “insinuated that [she] was engaged in the activity described in the article” fails to state a claim for defamation because “many of the activities described in the article can in no way be deemed harmful to the reputation of a suburban teen today. ...” Metro characterizes these' innocent activities as “attending a school prom, watching a Britney Spears video, abstaining from sex, vowing to avoid abusive relationships, or even lying about engaging in sex to defuse the pressure from pеers who keep asking about it.”
We agree with the district court that this argument rests on a tendentious reading of the article, “which is written in a sensational tone and overwhelmingly, if not exclusively, concerned with teenage sexual misconduct.”
6
Thus, were the article understood to refer to Stanton, as we think it reasonably could be, “it would tend to hold [her] up to scorn, hatred, ridicule or contempt, in the minds of [a] considerable and respectable segment in the community.”
Amrak,
In a similar vein, Metro argues that the article makes no “articulably false stаtement” about Stanton and thus cannot support a defamation claim. The Supreme Judicial Court has recognized that certain statements about a plaintiff, though pejorative, are “too vague to be cognizable as the subject of a defamation action.”
Nat'l Ass’n of Gov’t Employees, Inc. v. Cent. Broad. Corp.,
We have already determined that one reasonable interpretation of the juxtaposition of Stanton’s photograph with the “Mating Habits” article is that she engages in sexually promiscuous behavior. That this juxtaposition might not permit a reader to definitively ascribe tо Stanton any of the particular kinds of promiscuous conduct described in the article strikes us as unimportant. “It is not necessary that the charge of indiscretions or want of chastity be direct and explicit; but anything fairly imputing immorality is actionable.”
Thayer v. Worcester Post Co.,
Indeed, statements that are too vague to constitute defamation generally fall into the category of epithets, such as “communist,”
Nat’l Ass’n of Gov’t Employees,
Finally, Metro argues that Stanton’s amended complaint should have been dismissed because she failed to “allege any facts that, if true, wоuld demonstrate that Metro acted with negligent disregard for the truth by juxtaposing the photograph and the article.” We disagree. “[P]rivate persons ... may recover compensation (assuming proof of all other elements of a claim for defamation) on proof that the defendant was negligent in publishing defamatory words which reasonably could be interpreted to refer to the plaintiff.”
New England Tractor-Trailer,
Stanton alleges that “[t]he juxtaposition of [her] photograph with the text describing suburban teenage sexuality ... has a reasonable tendency to injure [her] reputation and did so injure [her] reputation” in that it “insinuated that [she] was a person engaged in the activity described in the article.... ” These allegations sufficiently state a defamation claim based on the theory that Metro negligently used Stanton’s photograph to illustrate a story describing teenagers as sexually promisсuous without realizing that the publication might therefore be reasonably understood to mean that she was sexually promiscuous.
IV.
We close our analysis, as we opened it, with the observation that “ ‘[a] complaint should not be dismissed unless it is apparent beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.’ ”
Greene,
SO ORDERED.
Notes
. Because the parties and the district court refer to this statement as "the disclaimer,” we adopt the same shorthand for purposes of our discussion here.
. The article, which in its entirety occupies all or part of seven pages, includes four additional photographs of young people, none of which is accompanied by a caption or other explanatory text.
. When the first page of the article is reproduced on standard S^-by-l 1-inch paper, the three sentences of the disclaimer together take up only one-half of a column inch, contrasted with the five and one-half column inches consumed by the headline and super-head.
. We find the district court’s incredulousness at "why was
this
photograph used to illustrate
this
article about sexual misconduct, if there is no connection between the two?,”
. Metro questions the district court’s reliance on
Mabardi,
where the Supreme Judicial Court discerned a reasonable defamatory meaning in the publication of the plaintiff’s photograph above a caption identifying him only by name and under the headline, "Settlement Upped $2,000 — $400 Kickback Told.”
.We also agree with the district court that ”[e]ven the relatively harmless conduct identified by [Metro in support of its argument] is presented [in the article] in such a way as to underscore the principal theme of rampant and promiscuous sexuality among teenagers.”
. These statements include that, among teenagers, "оral sex is the new second base" and "sex ... is the new kissing”; that "no strings 'hooking up' — and Internet porn and online cybersex — [have] often replaced] dating”; and that "today’s eastern Massachusetts teens are both sexually advanced ... and sexually daring.” See also Am. Compl. ¶ 12 (quoting additional like statements).
. Metro concedes for purposes of this appeal that "a statement that [Stanton] was 'promiscuous' might damage her reputation in the community.” Accordingly, we need not decide whether a false accusation of promiscu-ousness is defamatory. Cf. Restatement (Second) of Torts § 569 cmt. f (1977).
.
Tropeano v. Atl. Monthly Co.,
. Like the district court,
. We note in this regard that, in contrast to the circumstances here, the statement considered in
Nat’l Ass’n of Gov’t Employees
was "used in the midst of a public debate” over a labor contract, "an occasion on which voices could be expected to be raised in sloganeering invective,”