Opinion
19-P-230
04-07-2020
Brandon NAVOM v. Martin J. WALSH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Brandon Navom, brought this action in tort for defamation in the Superior Court against the defendant, "Boston Mayor Marty Walsh." The plaintiff alleges that the defendant knowingly made defamatory statements regarding the plaintiff's affiliation with the organizers of a "free speech rally," and that the defendant's statements caused him to "suffer[ ] tremendous damages." A judge allowed the defendant's motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The plaintiff timely appealed, and we affirm.
We use the spelling of the defendant's name as stated in the plaintiff's "AMENDED Averred Complaint" (hereinafter amended complaint).
Background. We draw the following factual summary from the allegations in the amended complaint. On August 12, 2017, a "Unite the Right" rally was held in Charlottesville, Virginia. The Charlottesville rally was the subject of national news coverage. The rally was attended by, inter alia, individuals and groups identified as neo-Nazis, white supremacists, Ku Klux Klan members, protesters, and counter protesters. The rally resulted in outbreaks of violence, and a death. In the wake of the Charlottesville rally, there was media coverage regarding a "Boston Free Speech Rally" (hereinafter "Boston rally"), which was set to take place in Boston on August 19, 2017. The plaintiff was one of the organizers of the Boston rally, but he ultimately did not attend the event.
Beginning on the day of the Charlottesville rally, and in anticipation of the Boston rally, the defendant made a number of statements in media interviews, press conferences, and on his Twitter account, which are the subject of the present action. The plaintiff alleges that between August 12, 2017 and August 21, 2017, the defendant made the following defamatory statements (as set forth in paragraph 13 of the plaintiff's amended complaint, emphasis omitted):
a. According to a local newspaper, the defendant stated, two days after the Boston rally, "that white supremacists did take part in the rally that drew 40,000 counterprotesters to drown out their voices."
b. "This is a potentially very important moment in time for our country here in Boston, Massachusetts to push back on some of the rhetoric and the hate, the anti-Semitism and the racism that's being talked about and going on in our country. I think Boston can start to turn that tide[.]"
c. "I ask everyone to be peaceful today and respect our City. Love, not hate. We stand together against intolerance."
d. "Today Boston showed there's no place for hate in our City."
e. "Why give attention to people spewing hate."
f. "Today, Boston stood for peace and love, not bigotry and hate. We should work to bring people together, not apart."
g. "I ask everyone to be peaceful today and respect our City. Love, not hate. We stand together against intolerance."
h. A news outlet reported that the defendant said that "he has spoken with the Southern Poverty Law Center for guidance on how to handle events involving white supremacists."
i. "They [the Southern Poverty Law Center] say that interacting with these groups just gives them a platform to spread their message of hate."
j. "We'll return hate with love. And we will stand together for peace and unity -- always. #OutOfManyl."
k. "We have to support those that are targeted, and stand together in unity."
l. "Hatred and intimidation are not welcome in Boston or the Commonwealth."
m. "Hatred and intimidation are not welcome in Boston or the Commonwealth."
n. A news outlet reported, "Boston Mayor Martin Walsh said Monday that the city stands with Virginia and will not welcome what he described as ‘hate groups’ who might be thinking of holding a rally in Boston."
o. "We also have a message for the hate groups, especially any who are planning to come to our city this weekend: Boston does not welcome you here. Boston does not want you here. Boston rejects your message."
p. "Don't hand hatred a megaphone and pretend you can't hear it," "Leaders call out hate and reject it before it becomes violence. That's why we're here today. That's why this weekend myself and the governor spent nearly about 10 or 15 different phone calls talking about how do we reject hate in the commonwealth and the city of Boston."
q. "Don't hand hatred a megaphone and pretend you can't hear it," "Leaders call out hate and reject it before it becomes violence. That's why we're here today. That's why this weekend myself and the governor spent nearly about 10 or 15 different phone calls talking about how do we reject hate in the commonwealth and the city of Boston."
r. "Today & every day Boston stands up against hate. I'm saddened to see such a despicable action in this great city."
s. "Don't hand hatred a microphone and pretend you don't [hear] it."
t. "We don't need this type of hate," "So my message is clear to this group. We don't want you in Boston. We don't want you on Boston Common. We don't want you spewing the hate that we saw yesterday, and the loss of life."
u. "Boston is an inclusive place for all. Hate will not be tolerated in our City."
v. "Boston is an inclusive place for all. Hate will not be tolerated in our City."
w. "There's no place for the hate that they're spewing." "It's my understanding that they're scheduled to come to Boston. I know we probably can't stop it because of free speech, but they're spewing hate. We don't need that right now in our country."
x. "There is no place in Boston for that type of hate."
y. "The whole premise behind what they're doing there -- the white supremacist group and the neo-Nazis, I don't quite understand what their message is."
The plaintiff further alleges that, on August 13, 2017, the Anti-Defamation League (ADL) published on its website biographies of the speakers scheduled to appear at the Boston rally. Scheduled speakers included the plaintiff, Dina Hollister, Jeremy Herrell, Joe Biggs, Kyle Chapman, Shiva Ayyadurai, and Augustus Invictus. The ADL website published biographies of the scheduled speakers. An August 14, 2017, statement on the ADL website explained, in part, that "[t]here are significant differences between what happened in Charlottesville and what's scheduled for Boston." The statement further read that "[t]he exception in this case is scheduled speaker Augustus Invictus, who was actively involved in the Charlottesville planning and works closely with the alt right." The ADL website was later updated to read that Invictus reports that he was "uninvited" by organizers of the Boston rally and did not plan to attend.
The amended complaint avers, inter alia, that the ADL website stated that Hollister "is the administrator of the Proud Boys' Girls Facebook page (where women gather to support and talk about Proud Boys)."
The amended complaint avers, inter alia, that the ADL website stated that, on August 5, 2017, Biggs "was a featured speaker at the Make Men Great Again gathering ... alongside alt right and alt lite figures Augustus Invictus and Kyle Chapman," and that Biggs had "published a number of tweets promoting date rape and sexual violence, the least offensive of which was ‘Every kiss begins with ... Roofies.’ " The ADL website further stated that "Biggs admitted to writing the tweets, but said they were ‘a cry for help,’ during a ‘dark time in [his] life.’ "
The amended complaint avers, inter alia, that the ADL website stated that Chapman "has called on members of his recently formed group, the Fraternal Order of the Alt Knights, (described as the ‘military wing’ of the Proud Boys), to battle left-wing groups."
The ADL website referenced in the amended complaint also stated as follows:
"The alt lite, sometimes referred to as the New Right, is a loosely-connected movement whose adherents generally shun white supremacist thinking, but who are in step with the alt right in their hatred of feminists and immigrants, among others. Many within the alt lite sphere are virulently anti-Muslim; the group abhors everyone on ‘the left’ and traffics in conspiracy theories.
"But while the alt right and alt lite are theoretically distinct, there is crossover between them. There are a number of people and groups who walk the line between alt right and alt lite, to the extent that it's not always easy -- or even possible -- to tell which side they're on. The Proud Boys, an alt lite, right-wing activist group ... is a good example of a group toeing that line. [The Proud Boys' founder] renounced the Charlottesville event as ‘racist,’ but a number of Proud Boys were spotted at Unite the Right."
The parties do not dispute that the defendant's statements did not reference the plaintiff by name.
Discussion. "We review the allowance of a motion to dismiss de novo," Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), accepting as true the facts alleged in the plaintiff's complaint and any favorable inferences that reasonably can be drawn from them. See Lopez v. Commonwealth, 463 Mass. 696, 700-701 (2012). "What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, supra at 555.
The plaintiff contends, inter alia, that the amended complaint stated a claim for defamation because: it contains twenty-five specific instances of "libelous" statements that allegedly caused him injury; the defendant made such statements with malice and for political gain; and the defendant's comments were knowingly false or "constituted at best a reckless disregard for the truth because only an extremely irrational and/or unreasonable person engaging in wanton disregard for the easily discover[able] truth would have drawn the conclusions he had made in his libelous statements." Accordingly, the plaintiff argues, the judge erred in allowing the motion to dismiss.
The defendant responds that the defamation claim fails because the alleged defamatory statements constituted nonactionable opinions; the statements are not actionable because they are not "of and concerning" the plaintiff; and the statements were absolutely or conditionally privileged. We agree that a conditional privilege precludes the defendant's liability, and thus affirm the dismissal of the plaintiff's complaint.
There is more than a measure of persuasiveness to the argument that the defendant's statements, examined in their totality and considered in light of all the words used and all of the surrounding circumstances, constituted assertions of opinion. See Scholz v. Delp, 473 Mass. 242, 249 (2015), cert. denied, 136 S. Ct. 2411 (2016) (defamation claim requires statement to be "one of fact rather than of opinion"). See also Cole v. Westinghouse Broadcasting Co., 386 Mass. 303, 309, cert. denied, 459 U.S. 1037 (1982) (test for whether statement is opinion or fact requires that court examine statement "in its totality in the context in which it was ... published"; court "must consider all the words used"; "court must give weight to cautionary terms used by the person publishing the statement"; and "court must consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published" [quotation omitted] ). It is difficult to escape the impression that the statements constitute nothing more than the defendant's opinion as to his, or the city of Boston's, attitude towards "hate groups." However, as we conclude that a conditional privilege applies, we need not decide this issue here, and decline to do so.
There is likewise merit to the contention that the defendant did not publish statements "of and concerning" the plaintiff. See Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 430-431 (1991). The plaintiff can prove that the defendant's statements were "of and concerning" him by showing "either that the defendant intended its words to refer to the plaintiff and that they were so understood, or that the defendant's words reasonably could be interpreted to refer to the plaintiff and that the defendant was negligent in publishing them in such a way that they could be so understood." New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 483 (1985). Here, apart from conclusory assertions to the effect that the statements "were obviously directed at the Boston ... [r]ally organizers," the amended complaint appears to lack specific allegations of fact that could satisfy the subjective or objective prong of the test. None of the defendant's statements mentions the plaintiff by name. None of the statements references the organizers of the Boston rally. Most of the statements appear to pertain to the Charlottesville rally and public safety concerns in the wake of the Charlottesville rally. Nonetheless, the plaintiff maintains, inter alia, that the defendant's repeated references to "they" and "these groups," in conjunction with the terms "hate" and "hate groups," could have been reasonably understood to refer to him, as evidenced by his ensuing loss of a consulting job, receipt of threats, being called a "hater" on the Internet, and exposure of his personal information to an "Internet hate mob." Like the motion judge, we are skeptical that these references "reasonably could be interpreted to refer to the plaintiff." Id. at 480. However, because we conclude that a conditional privilege applies, we need not decide this issue either.
Because we conclude that a conditional privilege applies, we need not and do not address the defendant's argument that an absolute privilege immunizes his statements from liability.
"Statements made by public officials while performing their official duties are conditionally privileged." Mulgrew v. Taunton, 410 Mass. 631, 635 (1991). The conditional privilege "is meant to allow public officials to speak freely on matters of public importance during the exercise of their official duties." Id. If the defendant's statements were privileged, then the plaintiff cannot succeed in a defamation suit unless he can show that the defendant made the statements with "actual malice." Id. at 634. In this context, "actual malice" means that the statement was made "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). The burden is on the plaintiff to prove by clear and convincing evidence that the defendant made the statement with actual malice. See Edwards v. Commonwealth, 477 Mass. 254, 263 (2017).
Here, the defendant made the statements in his official capacity as mayor of Boston. There is no real dispute that he spoke as a public official, about a public event, in the wake of the Charlottesville rally, which related to public safety, social justice, tolerance, free speech, and part of an ongoing and publicized national discourse. Although our review of a dismissal pursuant to Mass. R. Civ. P. 12 (b) (6) is de novo, we agree with the motion judge that "it was perfectly reasonable for the mayor of Boston to be concerned that the Boston rally could become a gathering place for some hate groups or violent protestors, regardless of plaintiff's specific intentions for the rally or his non-affiliation with hate groups." The Boston rally took place merely one week after the Charlottesville rally, which not only garnered national media attention, but also resulted in violence and even a death. The full list of planned speakers for the Boston rally included individuals whose biographies evinced ideologies or statements that overlap with those espoused by some individuals involved in the Charlottesville rally. In these circumstances, the defendant was reasonably concerned about public safety, and it was well within his official duties "to make public statements in an effort to avoid violence or unsafe conditions." Put simply, the defendant's statements involved "matters of public importance during the exercise of [his] official duties." Mulgrew, 410 Mass. at 635.
Draghetti v. Chmielewski, 416 Mass. 808 (1994), on which the plaintiff relies, is not to the contrary. In that case, the defendant police chief provided false information to a third-party employer. See id. at 810-811. In so doing, the defendant tortiously interfered with the plaintiff's contractual relations with the third-party employer, which "can hardly be categorized as an act within the scope of his responsibilities as a police supervisor." Blackstone v. Cashman, 448 Mass. 255, 262 n.11 (2007). Here, by contrast, the defendant's statements address a potential public safety issue, and were within the scope of his official responsibilities as the mayor of Boston. In fact, none of the cases cited by the plaintiff implicate public safety issues of the kind the defendant confronted here.
A conclusory comment in the amended complaint to the effect that the defendant "was anticipating an upcoming political campaign" and "used these fabrications ... for photo-ops," does not suffice to take this out of the realm of the defendant performing his official duties. See Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 625, 631-632 (2012) (conditional privilege applied to water department superintendent because his statements "were made in his official capacity as superintendent of the water department, and the public clearly had an interest in both the issues being investigated and the content of the allegations," despite superintendent having stated to former town selectman: "I am going to make it my mission to get rid of [the plaintiff]").
In addition, the amended complaint offers nothing to plausibly suggest that the defendant made the statements with knowledge of their falsity or reckless disregard for their truth. See St. Amant v. Thompson, 390 U.S. 727, 731 (1968) (to show reckless disregard as to statement's accuracy, "[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication"). See also King v. Globe Newspaper Co., 400 Mass. 705, 720 (1987), cert. denied, 485 U.S. 940 (1988). "Simple negligence, want of sound judgment, or hasty action [alone] will not cause loss of the [conditional] privilege." Dexter's Hearthside Restaurant, Inc. v. Whitehall Co., 24 Mass. App. Ct. 217, 223 (1987).
The amended complaint instead contains only conclusory and speculative allegations to the effect that the defendant must have read the ADL website, certain Facebook posts, or other information, that would have alerted him that the organizers and speakers at the Boston rally were not associated with hate groups or the Charlottesville rally. The plaintiff further posits that the information available through media sources would have advised the defendant that the organizers and speakers had, in fact, denied being part of any hate group. This is not enough to plausibly demonstrate that the defendant "in fact entertained serious doubts as to the truth of his publication." St. Amant, 390 U.S. at 731. See, e.g., Lemelson v. Bloomberg LP, 253 F. Supp. 3d 333, 340-341 (D. Mass. 2017), aff'd 903 F.3d 19 (1st Cir. 2018) ("If a subject's simple denial is sufficient to demonstrate that subsequent publication shows a reckless disregard for the truth, then no disputed fact could ever safely be published").
Contrary to the plaintiff's argument, the ADL website, cited and quoted in the amended complaint, noted certain connections between the groups organizing or participating in the Charlottesville rally and the organizers and speakers at the Boston rally. See notes 3-6, supra. Indeed, the ADL webpage initially listed Augustus Invictus, "who was actively involved in the Charlottesville planning and works closely with the alt right," as a scheduled speaker at the Boston rally. Furthermore, the ADL webpage stated that there was "crossover" between the "alt lite" ideology associated with the Boston rally organizers and the alt right, and that in certain respects, the "alt lite" are "in step with the alt right." Thus, even assuming that the defendant had read the webpage cited by the plaintiff in the amended complaint, the information therein tended to corroborate, rather than contradict, the statements made by the defendant. Contrast Draghetti v. Chmielewski, 416 Mass. 808, 812 (1994) (police chief's statements constituted defamation where statements "reasonably could be understood to mean that there was evidence that [the plaintiff] intended to commit a crime," when in fact "[t]here was no such evidence"). Hence, even assuming that the defendant's statements could be construed as negligent, they fall well short of showing that he acted with reckless disregard for the truth.
For the foregoing reasons, we affirm the judgment of dismissal. See Edwards, 477 Mass. at 267 (holding that motion to dismiss should have been allowed where complaint alleging defamation against former governor failed to allege specific facts to prove that he made statements with actual malice).
Judgment affirmed.