by Thad Lenkiewicz
Defamation likely has never been more rampant or potent than in today’s hyper-connected and hyper-contentious society. Perhaps energized by several recent eye-popping awards, defamation litigation is experiencing a resurgence, including here in Massachusetts. Plaintiffs in commercial, employment, and civil rights actions commonly assert companion, or ancillary, defamation claims. However, the tort of defamation, in many respects, stands apart. It exists in direct tension with the right to free speech and is thus difficult to prove and subject to unique defenses and procedural hurdles. Litigants would do well to understand these nuances when asserting a defamation claim.
Defamation encompasses both slander – spoken and other ephemeral communications – and libel – written words and the like (e.g., motion pictures, television, and visual depictions). See HipSaver, Inc. v. Kiel, 464 Mass. 517, 522 (2013). A defamatory statement tends to hold the plaintiff up to scorn, ridicule, or contempt in any considerable segment in the community. Phelan v. May Dept. Stores Co., 443 Mass. 52, 56 (2004). To establish liability, a plaintiff must prove that the defendant communicated a false statement of fact concerning the plaintiff to a third party, and that the statement either caused economic loss or was defamatory per se – i.e., imputed a criminal offense, alleged the plaintiff has certain diseases, or could prejudice the plaintiff’s profession or business. Flagg v. AliMed, Inc., 466 Mass. 23, 37 (2013). But see G.L. c. 231, § 92 (establishing cause of action for truthful, defamatory statement made with malevolent intent as to a matter outside the public concern). To assert a claim of defamation in Massachusetts state courts, unlike federal court, a plaintiff must plead defamation with particularity as to the statement, its falsity, and the approximate date(s) of publication. Compare O’Connor, M.D. v. Kadrmas, M.D., No. 2013-01006, 2014 WL 12958881, at *7 (Mass. Super. Dec. 22, 2014) with Barnia v. Kaur, 646 F. Supp. 3d 154, 170 (D. Mass. 2022).
Fact vs. Opinion
The offending statement must be factual, meaning capable of being disproven. A defendant cannot be liable for an opinion or “loose language” that cannot be objectively verified. King v. Globe Newspaper Co., 400 Mass. 705, 708 (1987). While the distinction seems clear, it can be difficult to establish in practice. Id. Offending phrases are not viewed in isolation. Courts examine the totality of the context, including all the words, the medium of dissemination, and the receiving audience. Id. at 250, 252. Thus, speakers may transform a statement of fact into one of opinion merely by invoking “cautionary terms . . . such as ‘may have’ and ‘reportedly,’” Scholz v. Delp, 473 Mass. 242, 251-52 (2015), and many “damning words” remain nonactionable. Yong Li v. Yanling Zeng, 98 Mass. App. Ct. 743, 746 (2020). See, e.g., LaFlash v. Auburn, 585 F. Supp. 3d 141, 149 (D. Mass. 2022) (statement that plaintiff “may be a sexual predator” not actionable); Ayyadurai v. Floor64, Inc., 270 F. Supp. 3d 343, 361 (D. Mass. 2017) (“fraud,” “charlatan” not actionable); Feld v. Conway, 16 F. Supp. 3d 1, 4 (D. Mass. 2014) (Twitter post calling plaintiff “[expletive] crazy” non-actionable). Lastly, unless the statement is unambiguously fact or opinion, the question belongs to the jury. Scholz, 473 Mass. at 250
Falsity
Absent a statutory libel claim under G.L. c. 231, § 92, supra, a plaintiff must demonstrate that the offending statement is materially false. Kilnapp Enters., Inc. v. Massachusetts State Auto. Dealers Ass’n, 89 Mass. App. Ct. 212, 219 (2016). Minor inaccuracies are insufficient “so long as the substance, the gist, the sting,” remain substantially true. Id. at 221. Accord Noonan v. Staples, Inc., 556 F.3d 20, 28 (1st Cir. 2009).
Public Figures
Public figures must also clear a higher threshold of proof. Individuals with “pervasive fame or notoriety,” are deemed “public figure[s] for all purposes and in all contexts.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). Likewise, a plaintiff who “voluntarily injects himself or is drawn into a particular public controversy” becomes a public figure as to that limited issue. Id. Rather than mere negligence, these plaintiffs must prove by clear and convincing evidence that the defendant published the statement with “actual malice” – that is, with the knowledge of or reckless disregard for its falsity. Murphy v. Boston Herald, Inc., 449 Mass. 42, 48 (2007).
Privileges
Massachusetts also recognizes several absolute and conditional privileges barring defamation claims:
Absolute Immunity
- Judicial proceedings. Judicial officers are absolutely immune from defamation claims in the exercise their official duties. Hornibrook Richard, 488 Mass. 74, 78 (2021). This immunity extends to individuals with quasi-judicial functions such as court clerks, court-appointed psychiatrists, guardians ad litem, and personal representatives of estates. Id. at 79 (citing cases). Statements by a party, counsel or witness in a judicial proceeding are also immune provided they relate to the proceeding. Visnick v. Caulfield, 73 Mass. App. Ct. 809, 812 (2009); see Theran v. Rokoff, 413 Mass. 590, 591-592 (1992) (c. 93A demand letter immune).
- Legislative proceedings. Legislators are absolutely immune for statements in a legislative session or report, Coffin Coffin, 4 Mass. 1, 27 (1808), as are witnesses testifying before a legislative body. Wright v. Lathrop, 149 Mass. 385, 389 (1889).
- Legal Duty. Certain individuals are immune from defamation claims for statements they are legally obligated to convey. See, g., Farmers Educ. & Co-op. Union v. WDAY, Inc., 360 U.S. 525, 530-531 (1959) (radio station immune where legally required to air candidate’s defamatory statement); G.L. c. 112, § 12G (immunizing medical providers required to report patient’s status for benefits eligibility).
Conditional Immunity
- Public Officials. Statements by public officials while performing their official duties – e.g., a police officer’s investigatory report – are “conditionally privileged.” Dear Devaney, 83 Mass. App. Ct. 285, 293 (2013). A plaintiff must show that the official acted with actual malice, or disseminated the statement excessively or unreasonably with knowledge or reckless disregard for its falsity. Mulgrew v. Taunton, 410 Mass. 631, 634 (1991).
- Common Interest. A defamatory statement is conditionally privileged if the speaker and recipient have a common interest in the subject matter. Downey Chutehall Constr. Co., 86 Mass. App. Ct. 660, 666 (2014). For instance, an employer may disclose information concerning an employee’s competence if the employer has reason to believe the information is true and does not publish it recklessly or maliciously. Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 335 (2014), aff’d in part, 473 Mass. 672 (2016).
- Fair Report. Reports of official statements are immune if they fairly and accurately describe the statements, even if the statements themselves are defamatory. Howell Enter. Publ’g Co., LLC, 455 Mass. 641, 657-658 (2010).
- Self-Defense. A victim of defamation has a limited right to defend himself with proportionate response. Conroy Fall River Herald News Co., 306 Mass. 488, 489 (1940); de Lench v. Archie, 406 F. Supp. 3d 154, 160 (D. Mass. 2019).
Anti-SLAPP Statute
Massachusetts’s “Anti-SLAPP” statute (strategic litigation against public participation), G.L. c. 231, § 59H, counteracts the practice – historically of large private interests – of filing meritless claims to deter individuals from exercising their right to petition the government. Bristol Asphalt, Co. v. Rochester Bituminous Prods., Inc., 493 Mass. 539, 548 (2024). The statute establishes a procedural vehicle—a “special motion” permitting defendants to seek early dismissal of meritless suits. Id. Although the Supreme Judicial Court recently revised the standard for special motions to ensure they apply only to a narrow category of meritless claims, they remain an “incredibly powerful procedural protection.” Id. at 556; see Shanahan, Emily, Duracraft All Over Again: The Supreme Judicial Court Adopts a “Simplified anti-SLAPP Framework,” Boston Bar J., Vol. 68 #3 (Summer 2024). Protected petitioning activity includes any matter under consideration by a governmental body, G.L. c. 231, § 59H, whether of public and private concern, Duracraft Corp. v. Holmes Prods. Corp., 42 Mass. App. Ct. 572, 579 (1997), and thus encompasses a large swath of potentially defamatory statements. Where the statute applies, the plaintiff then has “a difficult task” of proving that the defendant’s statement was devoid of any reasonable basis in fact or law. Bristol Asphalt, 493 Mass. at 557. Even if the defendant’s special motion ultimately fails, it may forestall discovery and require costly motion practice.
Practical Considerations
For plaintiffs, navigating the privileges, procedural hurdles, and evidentiary thresholds to prove actionable defamation is a heavy lift. But these are not the only pitfalls and, even diligent plaintiffs may find vindication elusive. First, defamation seeks recovery for reputational harm and abstract injury. Quantifying and proving damages, forecasting a jury’s award, or simply assessing a claim’s worth can thus prove challenging. Second, because truth and reputation are at issue, plaintiffs are often subject to intrusive and embarrassing discovery and cross-examination. See Branch v. Kearney, 104 Mass. App. Ct. 1114, 2024 WL 3517632, at *2 (July 24, 2024) (Rule 23.0 Decision) (discovery revealed plaintiff had falsely claimed to be college graduate); Van Liew v. Eliopoulos, 92 Mass. App. Ct. 114, 119 (2017) (plaintiff opened door to cross-examination of prior controversial statements and reported attempt to harm neighbor’s dog). Next, in multi-claim litigation, an ancillary defamation count may prove to be a costly distraction – requiring additional discovery and motion practice and drawing the jury’s attention toward provocative exchanges and away from the central dispute.
Further, outside the courtroom, a litigant may bring greater publicity to the defendant’s statement merely by filing suit. Finally, despite the publicity for a few recent, outlier awards, many plaintiffs achieve only Pyrrhic victories. Monetary damages may be modest, a retraction may come years later, and ultimately, the reputational harm may be irremediable.
Today’s caustic discourse and our ever-expanding means of communication have predictably (and justifiably) led to a proliferation of defamation suits. As the law seeks to provide adequate recourse for injured parties in this rapidly evolving environment, litigants should be clear-eyed about the challenges such claims face and their impact on the course of litigation.
Thad Lenkiewicz is a research attorney for the Massachusetts Superior Court, Suffolk County. He previously practiced in trial and appellate litigation for more than a decade, most recently with the Boston office of Dinsmore & Shohl LLP. The thoughts presented are the author’s alone and do not reflect any official position of the Superior Court.
