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COMMONWEALTH OF MASSACHUSETTS
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SUFFOLK, 33.
SUPERIOR COURT CIVIL ACTION NO. 98-04585-B
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ALPHONSE MOURAD vs. THE BOSTON GLOBE NEWSPAPER COMPANY
MEMORANDUM OF DECISION AND ORDER OF JUDGMENT ON DEFENDANT' S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
On September 9, 1998, plaintiff, Alphonse Mourad (Mourad) filed this action alleging that the Boston Globe Newspaper Company (the Globe) published nine newspaper articles between 1981 and 1996 in which he was defamed. This matter is now before the court on the Globe's motion for summary judgment. For the reasons discussed below, the Globe's motion for summary judgment is allowed.
BACKGROUND
The undisputed material facts are as follows. Mourad was born in Lebanon and moved to the United States in 1958. By 1965, he was a United States citizen. At all times relevant to this matter, Mourad was the President and sole stockholder of V&M Management, Inc. (V&M). From 1981 to 1996, V&M owned and operated a federally subsidized low-income housing development in Roxbury, Massachusetts. In 1987 Mourad renamed the housing development, originally known as Westminster-Willard Place, Mandela. From 1981 to 1996, Mourad, V&M and Mandela were
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involved in numerous lawsuits. In response to these controversies, Mourad issued press releases concerning Mandela. Mourad believes that he, V&M and Mandela are synonymous with each other so that a reference to any one of them is a reference to himself.
The Globe printed nine newspaper articles or editorials about Mourad, V&M and Mandela between October 9, 1986 and April 1, 1996. Seven of these articles or editorials were published prior to September 9, 1995, more than three years before Mourad filed this complaint on September 9, 1998. The remaining two articles were published on September 28, 1995 and April 1, 1996.
The September 28, 1995 article was titled, "Landlord blames, uses system; records raise questions about Mandela owner." The article discussed the history of the Mandela project, controversies surrounding Mourad's management of Mandela, and litigation, including a foreclosure proceeding, in which Mourad, V&M, and Mandela were involved. Mourad alleges that he was defamed by: (1) the word "uses" in the article's headline; (2) statements in the article that he made "wild" accusations and was an "incessant filer of lawsuits" who has waged "bizarre legal battles against powerful opponents: the city, the state, the federal government, the utilities, the banks, the courts;" (3) the statement that he was "paranoid;"and (4) a description of him as a "Lebanese immigrant."
On January 8, 1996, V&M filed for Chapter 11 bankruptcy
protection in the United States Bankruptcy Court. On February ', 1996, certain creditors in the bankruptcy proceeding1 filed a motion for the appointment of a trustee. Subsequently, the Bankruptcy Judge appointed an independent examiner (Examiner) pursuant to 11 U.S.C. 1104 to investigate and report to the court on the financial affairs of V&M and the allegations asserted in the motion for the appointment of a trustee. The Examiner filed a report with the Bankruptcy Court on March 6, 1996, and filed an amended report on March 1, 1996 (the Reports) .
These Reports provide detailed descriptions of the Examiner's investigation into the financial aspects of V&M's operations and V&M's management of the Mandela project. For example, the Reports detail V&M's financial history from 1981 to 1994. This history documents the means by which Mourad received funds from V&M, including receiving proceeds from V&M's refinancing of Mandela and also taking loans directly from V&M. The Examiner found, "[a]s of 1994, the notes and interest due from [Mourad] totaled $3,891,351.00."
The Reports also document "insider loans and repayments" that were made by V&M within one year of the commencement of the bankruptcy filing. The Examiner prepared a summary of these loans and repayments showing the "total amount paid to each person (insider, attorney, employee, and shareholder)" for the
' The Boston Redevelopment Authority, the City of Boston and the Commissioner of the Massachusetts Department of Revenue.
year preceding the commencement of the bankruptcy filing. The summary, which covers the period from January 9, 1995 to January 8, 1996, states that V&M wrote 248 checks to Mourad totaling $923,520.00. The Reports also document payments as follows:
"$53,450.00 to Elizabeth Mourad, [Mourad's] daughter; $62,550.00 to 'E. Mourad,' and $131,000.00 to Edward Mourad (Edward Mourad is the nephew of [Mourad]); and $16,000.00 to Mourad Construction, which is an entity that has performed services for [V&M] in connection with maintenance, unit rehabilitation and snow plowing." In the amended report, the Examiner concludes that "the allegations in the Motion for Appointment of a Trustee concerning the Debtor's financial affairs are deemed to be accurately presented."
After examining the Reports, which were filed in early March, the Globe published the April 1, 1996 article titled, "Mandela owner set to leave after long, expensive ride." The article concerned the hearing on the creditors' motion to appoint a trustee to take charge of V&M, which was scheduled for that day in the Bankruptcy Court. The article reported on the Examiner's findings in the Reports and on conflicting views about Mourad's tenure at the helm of Mandela. The April 1, 1996 article reads, in pertinent part, as follows:
According to a report by an independent examiner appointed by the [Bankruptcy] court, Mourad paid himself $923,000 in project funds last year, and paid another $250,000 to relatives. That was on top of $3.9 million Mourad already owed the failing development. That does not include more
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than $1 million in management fees Mourad has paid himself since 1987.
First, Mourad alleges that the headline itself, "Mandela owner set to leave after long, expensive ride" was defamatory. Mourad then alleges that the article falsely reported that he paid himself $923,000.00 in 1995, paid another $250,000.00 to family members, had received one million dollars in management fees since 1987, and owed the Mandela development $3.9 million.-Mourad also alleges that he was defamed because the article describes him as a "Lebanese immigrant," and because he believed that the article portrayed him as a "Middle Eastern Thief ousted from his property, V&M Management."
On April 1, 1996, the hearing on the motion to appoint a trustee went forward. The court heard testimony from Mourad, V&M's accountant and the Examiner, among others. The court relied upon the Examiner's testimony in concluding that V&M's actions constituted "gross mismanagement" that warranted the appointment of a trustee.
DISCUSSION I. Summary Judgment Standard
Under Rule 56(c), summary judgment is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Cassesso v.
2 Mourad misstates the article by claiming that it refers to S3.9 million Mourad owed to the city. The article states that Mourad owed this amount to the failing Mandela development.
Commissioner of Correction, 390 Mass. 419, 422 (1983); Communi'v National Bank v. Dawes. 369 Mass. 550, 553 (1976); Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and the fact that it is entitled to judgment in its favor. Pederson v. Time. Inc.. 404 Mass. 14, 16-17 (1989). Where the party moving for summary judgment does not have the burden of proof at trial, summary judgement is warranted if the party submits affirmative evidence that negates an essential element of the opponent's case or "proof of that element is unlikely to be forthcoming at trial." Flesner v. Technical Communication Corp.. 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp.. 410 Mass. 706, 716 (1991) . Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a material fact in order to defeat the motion. Pederson. supra at 17. Moreover, Massachusetts favors the entry of summary judgment in defamation cases. ELM Medical Laboratory. Inc. v. RKO General, Inc.. 403 Mass. 631, 632 (1991); King v. Globe Newspaper Co.. 400 Mass. 705, 708 (1987). II. Only Two Articles Survive The Statute of Limitations
The applicable statute of limitations for any libel action in Massachusetts is three years. G.L. c. 260, 4. A cause of action accrues, and the statute of limitations commences, on publication of the defamatory statement. Flynn v. Associated
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Press. 401 Mass. 776, 780-781 (1988). Mourad filed this action on September 9, 1998. Therefore, any article published prior to September 9, 1995 is time-barred. Accordingly, the articles referenced in Mourad's complaint and published by the Globe on October 9, 1986, January 26, 1990, September 12, 1990, September 14, 1990, October 2, 1990, August 17, 1994, and February 13, 1995 are barred by the applicable statute of limitations. See id. The two remaining articles published on September 28, 1995 and April 1, 1996 are not time barred. However, for the reasons
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discussed below, summary judgment is warranted. III. Defamation
In order to prevail on a claim for defamation, Mourad must prove that there was a "false and defamatory written communication of and concerning" him which was published by one without a privilege to do so. McAvoy v. Shufrin. 401 Mass. 593, 597 (1988). "A publication is defamatory when it tends to injure one's reputation in the community and expose him to hatred, ridicule, and contempt." Brauer v. The Globe Newspaper Co., 351 Mass. 53, 55-56 (1966); see also Draghetti v. Chmielewski. 416 Mass. 808, 811 (1994) ("'The test whether a publication is defamatory is whether, in the circumstances, the writing discredits the plaintiff "in the minds of any considerable and respectable segment in the community'") (quoting Stone v. Essex County Newspapers. Inc.. 367 Mass. 849, 853 (1975); Correllas v. Viveiros. 401 Mass. 314, 319 (1991) ("Defamation is the
publication of material by one without privilege to do so which ridicules or treats the plaintiff with contempt"); King v. Globe Newspaper Co.. supra at 718 ("The test is whether, in the circumstances, the writing discredits the plaintiff in the minds of any considerable and respectable class of the community").
Here, the threshold issue "is whether the statement is reasonably susceptible of a defamatory meaning, and that determination is a question of law." Foley v. Lowell Sun Publishing Co.. 404 Mass. 9, 11 (1989), citing Jones v. Taibbi, 400 Mass. 786, 791-792 (1987). To reach such a determination the court must examine the entire statement in the context that it was published considering all the words used. Id.. citing Mvers v. Boston Magazine. 380 Mass. 336, 341-342 (1980).
Mourad claims that the April 1, 1996 article "inaccurately and unjustly destroyed [his] reputation by picturing him as a, 'Middle Eastern thief ousted from his property, V&M Management.'" However, the record reveals that the April 1, 1996 article does not contain this language. Therefore, Mourad's claim that this published statement defamed him is meritless.
Mourad also contends that both the September 28, 1995 and April 1, 1996 articles defamed him by describing him as a "Lebanese immigrant" because such a description degraded him as a "Middle Eastern entrepreneur" and "stigmatized the entire Middle Eastern nationality." The fact that Mourad is described as a "Lebanese immigrant" could not possibly hold him up to scorn and
ridicule in the minds of a respectable segment of the community. Such a description is neither insulting nor derogatory. Furthermore, no reasonable person could consider such a statement to be a reflection upon Mourad's character. Accordingly, the articles' descriptions of Mourad as a "Lebanese immigrant" are not susceptible of defamatory meaning and are not actionable as a matter of law. See id.
Mourad's remaining allegations may be susceptible of a defamatory meaning; however, his claims fail because the statements are either true, the reporter's opinion, or fall under the fair report privilege.
A. Public Concern - Burden of Proving Truth on Plaintiff Determining if a plaintiff is a public figure or a limited public figure is a question of law. Bowman v. Heller, 420 Mass. 517, 522 (1995); Materia v. Huff. 394 Mass. 328, 331 (1985);
Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 862 (1975). When a person voluntarily injects himself into a public controversy in order to influence the resolution of the issues involved,, he achieves limited public figure status. Gertz v. Robert Welsh. Inc.. 418 U.S. 323, 351 (1974); ELM Medical Laboratory. Inc. v. RKO General. Inc.. supra at 786; Materia v. Huff. supra at 331. However, "[a] private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention." Jones v. Taibbi. supra at 798 (party unwillingly
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dragged into murder investigation not a public figure), (quoting Wolston v. Reader's Digest Ass^n. 443 U.S. Ill, 167 (1979)).
The court must also determine whether the matter reported on was a matter of legitimate public concern. Peckham v. Boston Herald. Inc.. 48 Mass. App. Ct. 282, 288-289 (1999). A matter is considered to be a legitimate public concern if the material reported on is of "genuine, even if more or less deplorable, popular appeal." Id. at 289. For example, in Shaari v. Harvard Student Agencies. Inc.. 427 Mass. 129, 133 (1998), the court held that the existence of sexual harassment" claims against a proprietor of a youth hostel that was open to the general population was a matter of public concern. See also Dulqarian v. Stone. 420 Mass. 843, 847 (1995) (statements concerning "potential conflicts of interest between automobile body repair shops and drive-in appraisal services" constituted legitimate public concern); Friedman v. Boston Broadcasters. Inc.. 402 Mass. 376, 381 (1988) (statements that plaintiff insurance company was engaging in deceptive business practices was legitimate public concern).
In this case, although Mourad is not a limited public figure,3 the matters reported on in the September 28, 1995 and
3 Here, Mourad's mismanagement of Mandela and his ultimate bankruptcy filing attracted public attention. However, it is fair to conclude that Mourad did not invite the media attention with respect to his management problems. It is more likely that the media accounts of his mismanagement unwillingly dragged him into the center of a controversy. Therefore, the fact that Mourad issued press releases in response to the public attention received does not elevate him to the status of a limited public figure. Sec Jones v. Taibbi. supra at 798.
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April 1, 1996 articles were matters of public concern. See id. It is undisputed that Mandela was a federally subsidized low income housing project and because Mandela was publicly funded, any reports concerning Mourad's mismanagement of the project are of a legitimate public concern. See id.
"[W]here a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without a showing that the statements at issue are false." Shaari. supra at 132, quoting Philadelphia Newspapers, Inc. v. Hepps. 475 U.S. 767, 768-769 (1986). Additionally, the burden is on the plaintiff to prove that the statements made were false. Id., at 132-134. "This requirement insulates from liability statements that are not provable as false." Duloarian v. Stone, supra at 847. The following statements are not actionable because Mourad has failed to prove that they are false.
1. Legal battles with Banks and Courts
Mourad alleges he was defamed by the statement in the September 28, 1995 article that he has waged "often bizarre legal battles against powerful opponents: the city, the state, the federal government, the utilities, the banks, the courts" because at the time of the article's publication neither he nor V&M had filed any legal action against a bank or the courts. The record demonstrates otherwise.
The record reveals that Mourad filed an action against one of his creditors - a Mandela mortgage holder - in 1995 to enjoin
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;he creditor's foreclosure proceeding against the Mandela )roperty. A creditor is "one to whom a debt is owed," and a bank .s an "establishment for the . . . extension of credit." Webster's New Collegiate Dictionary at 265 and 87 (1979), respectively). Accordingly, with respect to a mortgage note colder, the difference between a bank and a creditor is not significant, and the statement that Mourad was engaged in a legal. cattle with a bank is substantially true.
Additionally, the record demonstrates that Mourad has been involved in several matters involving the judiciary that could fairly be called "legal battles." For example, on February 18, 1992, Mourad filed a motion to recuse a Superior Court Judge Because he believed that the judge and the sessions clerk were personally biased and prejudiced towards him. On September 29, 1994, Mourad filed another motion to recuse a Superior Court Judge. In this instance he based his motion upon the fact that the judge would be biased due to her many years of experience as an assistant attorney general. Lastly, the record demonstrates that Mourad issued a press release titled, "Jailed Mandela . . .Boston style - Can Mourad get a fair trial in the City of Boston?" The release states that the "[l]atest efforts to destroy Mourad have reached the levels of the judiciary."
The Globe's.article did not state that Mourad had actually filed law suits against the courts. It merely states that Mourad has been engaged in "legal battles." The motions for recusal and
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the press release regarding his inability to get a fair trial in Boston can be fairly characterized as examples of Mourad's "battles" with the courts. The undisputed record demonstrates that Mourad did engage in legal battles with the courts and with at least one of his creditors, a Mandela mortgage note holder. Therefore, the statement that Mourad has waged legal battles against a bank and the courts is true and insulated from liability. See Shaari. supra at 134.
2. "Lebanese Immigrant"
As discussed supra at 9-10, the court found that the descriptions of Mourad as a "Lebanese immigrant" in the September 28, 1995 and April 1, 1996 articles were not actionable as a matter of law because such a description is not susceptible of defamatory meaning. However, even if the "Lebanese immigrant" description were susceptible of defamatory meaning, it is not actionable because it is true.
An immigrant is "a person who comes to a country to take up permanent residence." Webster's New Collegiate Dictionary 568 (1979). Mourad's complaint states that he was born in Lebanon, moved to the United States in 1958, and became a United States citizen by 1965. Because it is true, this statement is not actionable. See Shaari. supra at 134.
3. More Than $1 Million In Management Fees Since 1987 The April 1, 1996 article reported that Mourad received
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"more than $1 million in management fees . . . since 1987." Mourad has not met his burden of proving this to be a false statement.
Mourad has offered no credible evidence to demonstrate that he did not receive more than $1 million in management fees between 1987 and 1996. The April 1, 1996 article states that Mourad said, "he has taken only about $120,000.00 a year for himself." Mourad does not challenge the veracity of this statement. It is undisputed that Mourad (through V&M) managed Mandela from 1987 to 1996. If Mourad paid himself $120,000.00 per year between 1987 and 1996, it would amount to more than $1 million in management fees. Accordingly, the Globe's statement in the April 1, 1996 article that Mourad "received more than $1 million in management fees . . . since 1987" is not actionable. See Shaari, supra at 132-134; Dulgarian v. Stone, supra at 847.
B. Pure Opinion Is Not Actionable
Statements o.f pure opinion are constitutionally protected and are not actionable. Friedman v. Boston Broadcasters. Inc., supra at 379; King v. Globe Newspaper Co.. supra at 708, cert. denied, 485 U.S. 962 (1988); see also Myers v. Boston Magazine Co., supra at 338-339 (reasoning that opinions are not actionable because there is no such thing as false ideas"). The determination of whether a statement is a factual assertion or an opinion is a question of law appropriate for summary judgment if the statement unambiguously constitutes either fact or opinion.
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Friedman v. Boston Broadcasters. Inc.. supra at 379; King v. Globe Newspaper Co.. supra at 709. The court must examine the statement in its totality in the context in which it was published, giving weight to any cautionary terms used by the person publishing the statement and considering all of the circumstances surrounding the statement including the medium by which it is disseminated and the audience to which it is published. See Lyons v. Globe Newspaper Co., supra at 263;
Aldoupolis v. Globe Newspaper Co.. 398 Mass. 731, 734 (1986);
Cole v. Westinahouse Broadcasting Co..-Inc.. 386 Mass. 303, 309, cert. den., 459 U.S. 1037 (1982).
Where the meaning of statements is imprecise and open to speculation and the statements cannot be proved as true or false, they cannot be characterized as assertions of fact. Cole v. Westinahouse Broadcasting Co.. Inc.. supra at 312 (statements that a reporter was "sloppy and irresponsible" with "bad techniques" were opinions and could not reasonably be viewed as factual assertions); see also Levinsky's. Inc. v. Wal-Mart Stores. Inc.. 127 F.3d 122, 128 (1st Cir. 1997) (statement that store was "trashy" was subject to numerous interpretations and quintessentially subjective, so as to constitute pure opinion). Additionally, opinions framed as factual statements are absolutely privileged if they are based on facts disclosed in the article and do not imply the existence of other undisclosed and defamatory facts. Dulqarian v. Stone, supra at 849-850; Lyons,
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supra at 262-263; National Ass'n of Gov't Employees v. Central Broadcasting Corp.. 379 Mass. 220, 226-228 (1979) . 1. The September 28, 1995 Headline
Mourad contends that the headline of the September 28, 1995 article, "Landlord blames, uses system..." is defamatory because it suggests that Mourad wrongfully used the system. However, the headline is not actionable because it is a statement of opinion based upon nondefamatory facts that are disclosed in the article.
The September 28, 1995 article reports that Mourad filed a lawsuit against Mario Nicosia, a Mandela mortgage holder, in an attempt to stall Nicosia's foreclosure of Mandela. Mourad does not dispute that he filed a complaint on September 11, 1995 to, inter alia, enjoin Nicosia from holding the foreclosure sale scheduled for September 28, 1995. Nor does Mourad dispute the article's assertion that his filing of the suit successfully enjoined the foreclosure. Therefore, the headline claiming Mourad "uses" the system was the author's opinion based upon the disclosed, nondefamatory facts of the lawsuit and the enjoinment of the foreclosure sale. See Dulgarian v. Stone, supra at 849-850; Lyons v. Globe Newspaper Co.. supra at 265; National Ass'n of Gov't Employees, supra at 226- 228; King v. Globe Newspaper Co.. supra at 712-713. An "expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is."
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v. Globe Newspaper Co.. supra at 262 (quoting National Ass'n ^f Gov't Employees. Inc. v. Central Broadcasting Corp.. 379 Mass. 220, 227 (1980)).
2. "Wild". "Bizarre" and "Incessant" In the September 28, 1995 article, Mourad contends that the following statements are defamatory: (1) that he makes wild accusations; (2) that he wages bizarre legal battles; and (3) that he was an incessant filer of lav/suits. Adjectives that are imprecise, open to speculation, or fall into the category of rhetorical hyperbole are not actionable. For example, in Levinskv's. Inc. v. Wal-Mart Stores, Inc., supra at 128-130 the court concluded that a statement that a store was "trashy" was subject to numerous interpretations and quintessentially subjective, so as to constitute pure opinion. The court also stated that "the First Amendment prohibits defamation actions based on loose, figurative language that no reasonable person would believe presented facts." See also Pritsker v. Brudnov, 389 Mass. 776, 777-779 (1983) (invoking rhetorical hyperbole and calling restaurant owners "unconscionably rude and vulgar" and "pigs" was protected opinion); Cole v. Westinahouse Broadcasting Co., Inc.. supra at 312 (statements that reporter was "sloppy and irresponsible" with "bad techniques" was opinion because meaning was imprecise and open to speculation.). Similarly, the words "wild," "bizarre," and "incessant" are imprecise, open to speculation, figurative, and a form of rhetorical hyperbole. See
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id. .
3. The April 1. 1996 Headline
Mourad contends that the headline of the April 1, 1996 article, "Mandela owner set to leave after a long, expensive ride" is defamatory because it "implied financial impropriety at someone else's expense." However, the headline is not actionable because it is a statement of opinion based upon nondefamatory facts that are disclosed in the article."
The following privileged, and therefore nondefamatory, facts were disclosed in the April 1, 1996 article: (1) V&M Management was in bankruptcy after nearly fifteen years of managing Mandela;
(2) an independent Examiner concluded that over the past year Mourad had paid himself $923,000.00 in project funds; (3) an independent Examiner concluded that over the past year Mourad had paid his relatives $250,000.00; and (4) the Examiner found that Mourad owed Mandela $3.9 million.
Therefore, the headline claiming Mourad had taken an "expensive ride" was the author's opinion based upon the disclosed, nondefamatory facts stated above. See Dulqarian v. Stone, supra at 849-850; Lyons v. Globe Newspaper Co.. supra at 265; National Ass'n of Gov't Employees, supra at 226- 228; King v. Globe Newspaper Co.. supra at 712-713. An "expression of opinion based on disclosed or assumed nondefamatory facts is not
4 The facts relied upon for this opinion arc deemed nondefamatory because they fall within the fair report privilege. See discussion, infra at 21-25.
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itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is." Lyons v. Globe Newspaper Co., supra at 262 (quoting National F^ss'n of Gov't Employees, Inc. v. Central Broadcasting Corp.. 379 Mass. 220, 227 (1980)). Accordingly, this court finds and rules that the headline of the April 1, 1996 article is not actionable.
4. The "Paranoid" Joke Mourad contends that the quote attributed to him in the
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September 28, 1995 article, "[s]ure, I-'m paranoid ... I have to be. Everyone is out to get me" is false and defamatory because he never made the statement. Mourad claims the description of him as paranoid is "character-assignation." In sum, Mourad contends that the quote could be read as an actual assertion that he suffers from clinical paranoia.
After examining the "paranoid" statement in the context of the entire article the court finds that no reasonable reader could interpret it as being a disclosure that Mourad suffers from clinical paranoia. Instead, it is more likely that a reasonable reader would consider the statement to be hyperbole or a cynical reference to how Mourad perceives his own circumstances in the context of Mandela's history, his management of Mandela, and the litigation in which he, V&M and Mandela have been involved, all of which are discussed in detail throughout the article. See Pritsker v. Brudnov. supra at 777-779. This conclusion is
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further supported by the fact that the quote is described as an "old joke" in the article.
C. The Fair Report Privilege5
Massachusetts law recognizes the fair report privilege, which allows those who fairly and accurately report on certain types of official or governmental action to be immune from liability for claims arising from such reports. ELM Medical Laboratories. Inc. v. RKO General. Inc.. supra at 782 (news report on health agency press release was a privileged fair report). The public policy rationale for the fair report privilege is to give the public the opportunity to be informed as citizens and voters. Id. at 783.
The privilege extends to reports of judicial proceedings or other papers filed in which some judicial action has been taken. See Jones v. Taibbi. supra at 794; Sibley v. Holyoke Transcript-Telegram Publishing Co.. 391 Mass. 468, 471 (1984) (privilege applies to search warrant affidavit); Thompson v. Globe Newspaper Co., 279 Mass. 176, 186-187 (1932) (privilege applies to issuance of arrest warrant upon a sworn statement). Here, a bankruptcy judge in an ongoing case appointed the Examiner to investigate V&M's and Mourad's financial affairs pursuant to a motion to appoint a trustee. Judicial action was taken and the Reports
5 As discussed supra at 15, the court found the statement that Mourad "received more than S 1 million in management fees ... since 1987" was not actionable because Mourad did not meet his burden of proving it to be false. Therefore, this court need not determine whether the fair report privilege also bars this statement from a libel action.
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filed with the Bankruptcy Court fall within the privilege.
To qualify for the fair report privilege, the news report must be a fair and accurate portrayal of the official proceeding that it summarizes; although, it may be a rough-and-ready summary that is substantially correct. ELM Medical Laboratory, Inc.. supra at 783; MiGi, Inc. v. Gannett Massachusetts Broadcasters. Inc., 25 Mass. App. Ct. 394, 396 (1988). In sum, a statement qualifies for the privilege, if its "gist" or "sting" is true, so that it "produces the same effect on the mind of the recipient which the precise truth would have produced." ELM Medical Laboratory. Inc.. supra at 783. Whether the fair report privilege applies to the subject matter of the report is a matter of law to be determined by the judge. Joyce v. Globe Newspaper Co.. 355 Mass. 492, 498 (1969).
The fair report privilege may be lost or forfeited if it is abused by the defendant. Bratt v. International Business Machines. Corp.. 392 Mass. 508, 509 (1984). A demonstration of malice will serve to defeat the conditional fair report privilege. Id. at 514. In this context, malice means that "the defamatory words . . . were not spoken pursuant to the right and duty which created the privilege but were spoken out of some base ulterior motive." Dexter's Hearthside Restaurant v. Whitehall Co.. 24 Mass. App. Ct. 217, 223 (1987). "Evidence of this type of malice is shown by proof that the defendant acted with an 'improper motive,' in 'reckless disregard' of the rights of
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mother or with 'absence of good faith,' or that the defendant engaged in 'the wilful doing of an injurious act without lawful ixcuse.'" Howard J. Alperin and Lawrence D. Shubow, Summary of iasic Law 20.100, at 71-72 (1996 & 2000 Supp.) (citing Ezekiel r. Jones Motor Co.. Inc.. 374 Mass. 382, 390-391 (1978); Hartmann T. Boston Herald-Traveler Corp.. 323 Mass. 56, 65 (1948); Shore r. Retailers Commercial Agency. Inc.. 342 Mass. 515, 521 (1961);
Doane v. Grew. 220 Mass. 171, 176 (1915)). Repetition of a defamatory utterance may also be evidence of malice. Galvin v. ^ew York. N.H. & H.R. Co. . 341 Mass. 293., 297-298 (1960).
In this case, it is clear that the Examiner's Reports which A/ere part of the judicial bankruptcy proceeding, fall within the privilege. The issues are: (1) whether, despite its minor inaccuracies, the article was a fair and accurate report of the Examiner's findings; and (2) whether the Globe abused the privilege.
Attached to each report as Exhibit D is a summary detailing "the total amount paid to each person (insider, attorney, employee, and shareholder)" for the year prior to the commencement of the bankruptcy proceeding. The summary concludes that Mourad received 248 checks totaling $923,520.00 from V&M between January 9, 1995 and January 8, 1996. The summary also states that Elizabeth Mourad (Mourad's daughter), E. Mourad and Edward Mourad (Mourad's nephew) received 46 checks totaling $247,100.00 from V&M during the same time period. The
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Globe's report that Mourad received $923,000.00 and that his relatives received $250,000.00 fairly represented the Examiner's findings. See ELM Medical Laboratory. Inc. supra at 783 (privilege remains in tact as long as the "gist" or "sting" of the report is true).
The Examiner's Reports also state that "[a]s of 1994, the notes and interest from the stockholder [Mourad] totalled [sic] $3,891,351.00." The Examiner also found that it was "unlikely" that Mourad will ever repay that debt. Thus, the April 1, 1996 article fairly reported that Mourad owed the Mandela development $3.9 million dollars. Accordingly, it falls within the privilege.
Mourad claims that the Globe abused the fair report privilege by "publishing and printing false, untrue and defamatory statements about Mourad, without verification or checking with Mourad, to see if its statements were accurate." Essentially, Mourad argues that by not verifying the information in the Examiner's Report with him, the Globe acted maliciously and in reckless disregard of his rights. However, the fair report privilege does not require verification. To the contrary, the fair report privilege permits journalists to rely upon information obtained from judicial proceedings or other papers filed in which some judicial action has been taken to give the public the opportunity to be informed as citizens and voters. See ELM Medical Laboratories. Inc. v. RKO General. Inc.. supra at
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783; Siblev v. Holyoke Transcript-Telegram Publishing Co.. supra at 471. Absent a showing of improper motive or knowing publication of falsehoods, Mourad cannot establish malice based on the Globe's reliance of the Examiner's Reports. Malice is noc implicated and the fair report privilege was not lost or forfeited.
ORDER FOR JUDGMENT
For the foregoing reasons, it is hereby ORDERED that the motion for summary judgment of the defendant The Boston Globe Newspaper Company shall be AT.Tnwien Judgment shall enter for the defendant dismissing the complaint.
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Barbara~J.Rouse Justice of the Superior Court
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Date May 1 2001




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