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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. APPEALS COURT
C.A. NO. 2001-P-1382
) BRIEF FOR THE
THE BOSTON GLOBE ) APPELLANT
NEWS PAPER COMPANY )
Now comes Alphonse Mourad, the Plaintiff/Appellant, who is appearing Pro Se, who is indigent, and moves this Appeals Court to reverse the lower Court's Judgment in favor of the Defendant's Motion For Summary Judgment and dismissal of the Plaintiff's Complaint, and to remand the case back to the lower Court to be heard before a jury. Pursuant to Mass. R.A.P. 14 (b), 15 and 20(b), the Plaintiff/Appellant seeks a waiver of the rules, so that his brief does not have to completely conform to the requirements of the rules. Mourad moves the Single Justice to allow him to combine his Brief and Appendix into one bound volume because he is indigent and it will save him the cost of reproducing the lengthy 24 page lower Court decision, which would normally appear in the Record Appendix, as well as in the Appendix to the Brief. Mourad knows that his extended filing deadline is April 22, 2201 and expects to make his filing then if the Court will allow him to combine his Brief and Appendix into one bound volume.
STATEMENT OF ISSUES
1. Whether the Court erred in its ruling that the Defendant's Motion For Summary Judgment demonstrated the absence of triable issues and fact.
2. Whether seven of the nine articles, which were time-barred, that the Plaintiff relied upon, "may still be relied upon as evidence of the Defendant's true intentions and their state of mind," Donovan v. Gerdner, 50 Mass App. Ct. 595, 603 (2000), Id, at 603.
3. Whether the Court erred in ruling that the Plaintiff failed to prove that there was a false and defamatory written communication by the Defendant that injured the Plaintiff's reputation and financially caused harm to the Plaintiff.
4. Whether the Court erred in its ruling that Defendant did not defame the Plaintiff in an April 1, 1996 article by stating that he is a "Lebanese immigrant," which is not true (Plaintiff Mourad is a U.S. Citizen, who refrains from the stigma associated with being a citizen of the Middle East; a stigma which has caused harm to his reputation).
5. Whether the Court neglected to acknowledge that the Defendant printed false accusations and statements in an April 1, 1996 article claiming "Alphonse Mourad paid himself $923,000 in 1995" and called Mourad a "crook."
6. Whether the Court neglected to acknowledge that the Defendant printed false accusations and statements in an April 1, 1996 article claiming the Plaintiff gave his relatives $250,000 in 1995, and that he received $1 million in management fees since 1987. (Both of which are false and were failed to be mentioned in the lower Court's memorandum).
7. Whether the Plaintiff failed to prove the Defendant's printed statements were false.
STATEMENT OF THE CASE
THE PLAINTIFF, ALPHONSE MOURAD, A FORMER ROXBURY LANDLORD AND OWNER OF THE MANDELA APARTMENTS, HAS SET FORTH SUFFICIENT FACTS SHOWING THAT THE DEFENDANT, THE BOSTON GLOBE, MALICIOUSLY, AND REPEATEDLY MADE FALSE STATEMENTS OF FACT ABOUT THE PLAINTIFF AND ABUSED THE CONDITIONAL PRIVILEGE OF FAIRLY REPORTING MOURAD'S LEGAL TROUBLES, BY ITS DEFAMATORY COVERAGE OF HIM THROUGH NINE SEPARATE ARTICLES OVER A TEN YEAR PERIOD, CULMINATING IN A FRONT PAGE, APRIL 1, 1996, SENSATIONAL, HEADLINE ARTICLE ANNOUNCING A BANKRUPTCY COURT RULING REMOVING MOURAD AS PRESIDENT OF V&M MANAGEMENT CO., EVEN BEFORE THE COURT HEARING WAS HELD. THE BOSTON GLOBE IS NOT ENTITLED TO SUMMARY JUDGMENT WHERE MOURAD HAS RAISED MATERIAL, DISPUTED FACTS ABOUT THE GLOBE'S ETHNICALLY BIASED, KNOWN TO BE UNTRUE, AND UNVERIFIED, REPORTING, SUCH THAT THE BOSTON GLOBE IS NOT ENTITLED TO SUMMARY JUDGMENT ON THE LAW.
In this libel action, Alphonse Mourad, a former Roxbury landlord, and owner of the Mandela Apartments, has sued The Boston Globe, accusing The Globe of printing and publishing defamatory falsehoods in nine news articles. Mourad had even written The Boston Globe six detailed replies refuting the published, unverified falsehoods about Mourad and requested retractions; see Exhibits "2," "8," "10," "15," "17," and "19," attached to Plaintiff's Verified Complaint. No retraction or corrections where printed, and the unverified falsehoods continued.
Mourad's 17 page, 30 Exhibit complaint is verified, and a verified complaint serves as an Affidavit for Rule 56 purposes, Godbout v. Cousens, 396 Mass. 254, 262 (1985)(no verification or affidavit in libel action); Cf. Mathers v. Midland-Ross Corp., 403 Mass. 688, 691 (1989) (allegations in unverified complaint entitled to no evidentiary weight). The Globe's October 1, 1998 Answer is not Verified.
Mourad's verified complaint raises serious and material questions about the accuracy, ethnic bias and fairness of The Globe's reporting, and The Globe's questionable and challenged entitlement to rely upon the defense or conditional privilege of fair reporting.
Mourad urges the Court to review his verified complaint and the 30 Exhibits that support his showing of The Globe's libel of him. For a short-hand, chart-type reference, The Boston Globe published nine articles defaming Mourad.
The Globe's False Accusations Complaint
Dated Article Exh. No.
October 9, 1986 Falsely accusing Mourad 1.
of not paying $473,000
January 26, 1990 Falsely claiming that Mourad owed 6.
$1.2 million in taxes, and that
Mourad was under a HUD investigation.
September 12, 1990 Claiming U.S. citizen Mourad to be a 13. "Lebanese immigrant" who owed $1.2
million in city taxes and $130,000
to Boston Edison.
September 14, 1990 Accusing Mourad of being a slumlord 16.
of property in need of repairs.
October 2, 1990 Accusing Mourad of being a slumlord 18.
not concerned about protecting tenants.
August 17, 1994 Accusing Mourad of mismanagement 20.
and paying millions to himself.
February 13, 1995 Accusing citizen Mourad of being a
Lebanese immigrant known for feisty, flamboyant gestures; lax management 21.
and his trigger-happy litigation.
September 28, 1995 Accusing citizen Mourad of being a
Lebanese immigrant who misuses system, paranoid, incessant filer of lawsuits 25.
waging bizarre legal battles.
April 1, 1996 Accusing citizen Mourad of being a
Lebanese immigrant, on an 'expensive 27.
ride' paying himself $923,000.
Mourad says that The Globe abused its qualified privilege of fair reporting by its sensational, headline-grabbing articles, and further, that since The Globe has the burden of establishing the defense of fair reporting, one question is whether this defense is even available to The Globe on summary judgment, where Mourad has made such a strong factual showing, Ingalls v. Hastings & Sons Publishing Co., 304 Mass. 31, 35 (1939) (privilege is a defense not open on a demurrer); Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 343 (1943) (burden of proving conditional privilege rests with defendant); Boston Nutrition Society, Inc. v. Store, 342 Mass. 439, 443 (1961) (qualified privilege of fair comment is a matter of defense ordinarily not open on demurrer); Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. 132, 134 (1984) (defendant's burden to show facts which create the qualified privilege).
Although The Globe cites only three cases saying summary judgement is 'favored' in defamation cases, (Memorandum, at 2) the judicial opinions that actually favor summary judgment in defamation cases do not deal with the abuse of the qualified or conditional fair reporting privilege .
I. WHETHER ALPHONSE MOURAD IS A PUBLIC FIGURE FOR PURPOSES OF THE N.Y. TIMES v. SULLIVAN MALICE STANDARD IS A MATERIAL QUESTION OF FACT NOT ESTABLISHED HERE ON SUMMARY JUDGMENT
In its Motion for summary judgment, The Globe asserts that the Plaintiff is a "public figure," Memorandum, at 19-20.
Mourad disputes that he is a public figure, and his public figure status is a material question of fact for the jury.
In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court defined public figures as those:
a) who have achieved pervasive fame or notoriety, at 351;
b) who vigorously or successfully seek the public's attention, at 342;
c) who have assumed roles of especial prominence in the affairs of society, at 345;
d) who occupy positions of such persuasive power and influence, at 345;
e) who thrust themselves to the forefront of particular public controversies in order to influence the resolution of issues, at 345;
f) who voluntarily inject themselves or are drawn into a particular public controversy, at 351;
g) who thrust themselves into the vortex of a public issue or engage the public's attention to influence its outcome, at 352.
The Supreme Court found that Gertz, a well-known attorney, who served on a city housing committee, as an officer of local civic groups and various professional organizations and author of several books and articles had not achieved such general fame or notoriety in the community as to make him a public figure for the limited purpose of the controversy at issue. Therefore, Gertz was not held to the N.Y. Times standard for purposes of his libel action against the magazine publisher. See also Wolston v. Reader's Digest Association, 443 U.S. 157 (1979) (a person whose failure to appear before grand jury and whose citation for contempt attracted media attention not a public figure); Hutchinson v. Proxmire, 443 U.S. 111 (1979) (behavioral scientist and recipient of federal grants not public figure for purposes of responding to Golden Fleece award announced by U.S. Senator in a press release; speech and debate clause did not protect Senator from transmitting information in press releases); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (well-known and politically prominent university athletic director and football coach was public figure requiring N.Y. Times malice standard for recovery); Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657 (1989).
In Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (1985), the Supreme Judicial Court adopted the Gertz analysis of a "public figure," at 866, and added that the question whether a particular plaintiff is a public figure, if contested, is a one for the jury, in a case tried to jury, upon proper instructions, at 863. See also Lyons v. New Mass Media, Inc., 390 Mass. 51 (1983) (contested questions whether president of a labor union was a public figure and whether actual malice was shown by newspaper reporter's reliance on biased sources were questions of fact for the jury, at 55, 58); Materia v. Huff, 354 Mass, 328 (1985)(secretary-treasurer of local labor union was limited public figure; improper instructions to jury); Jones v. Taibbi, 400 Mass. 786, 798 (1987) (party unwillingly dragged into murder investigation not a public figure); McAvoy v. Shufrin, 401 Mass. 593, 596, n.3 (1988) (Court doubted, but did not disturb, trial judge's uncontested ruling that a constable was a public official for N.Y. Times purposes); Milgroom v. News Group Boston, Inc., 412 Mass. 9 (1992) (sitting or former judge is a public official, at 10; judge's husband assumed not a public figure, at 12); Shaari v. Harvard Student Agencies, Inc., 427 Mass 129, 133, n.6 (1988)(only if relevant facts are undisputed can judge decide public-private figure issue) see also pre-Gertz case of Lewis v. Vallis, 356 Mass. 662 (1970) (mayoral campaign manager and intermittent candidate for minor elective public office and for General Court not public figure).
It is not clear what controversy Mourad injected himself into, initiated, or continued for Mourad to be considered a public figure. That Mourad's company, V&M Management, Inc., was forced into bankruptcy does not make Mourad a public figure. Under Stone, Lyons and Materia, a contested public figure is a material question of fact that is for the jury to decide.
II. MOURAD HAS SET FORTH REPEATED SLANDEROUS STATEMENTS SHOWING THE GLOBE ABUSED THE CONDITIONAL PRIVILEGE OF FAIR REPORTING.
The Globe's repeated, reckless and unverified statements defeat the conditional and qualified (not absolute) privilege of fair reporting.
The Globe basically called Mourad a "slumlord," and accused Mourad of "mismanagement," "stealing," taking money and owing money he did not owe. These were easily verifiable factual figures. The Globe refused to hear Mourad's pleas or read his refutations. See especially Mourad's Exh. "26,"- the March 12, 1996 letter to The Globe by V&M's attorneys at Hanify & King, and the accounting of deposits and payments. This letter was written (3) weeks before the critical, damaging, and within the limitations period, April 1, 1996 front page article announcing the Bankruptcy Court ruling before the Bankruptcy Court hearing even took place. The Globe's article was referenced at the April 1, 1996 Bankruptcy Court hearing (see Mourad Exh. (29), and complaint, para. 51). The Globe maliciously wrote and published the April 1, 1996 article to influence the Court's ruling, not to print news of a court ruling that had not even come down yet. It was as if The Globe knew, from inside sources, the Court's ruling before the hearing took place and before the ruling was announced It worked, as Mourad lost V&M Management, Inc. to a Court-appointed Trustee on the same day, April 1, 1996, The Globe's front page article appeared.
The Globe's slanderous words imputing "crime... corruption, dishonesty or misconduct in his... (Mourad's) business", Lyons v. Lyons, 303 Mass. 116, at 119 (1939) are the classic examples of defamation per se.
A newspaper or a reporter has only a conditional or qualified (not absolute) common law and/or constitutional privilege to fairly report judicial proceedings
For the conditional fair reporting privilege to apply the newspaper or the reporter's comments or report, however, must still be fair, impartial and accurate. The Globe's were not. Reporting that Mourad was a "crook," or took other's peoples money, or putting loaded words into news article call into question the reporter's and newspaper's veracity, fairness and accuracy, and constitutes an abuse of the privilege of fair and accurate reporting.
The conditional fair reporting privilege does not extend as far as The Globe would like. If it did, it would wipe out the common law of libel more so than New York Times v. Sullivan. The words used by The Globe here are slanderous, loaded, ethnically biased (Lebanese immigrant, when The Globe knew Mourad to be a U.S. citizen), defamatory and actionable .
It is important to emphasize that The Globe's privilege of fair reporting is conditional and The Globe is subject to liability for abuse, unlike the absolute privilege that attaches to statement made in Court, or that are 'pertinent' to court proceedings .
Mourad says that The Globe abused the qualified or conditional privilege of fair reporting.
A conditional privilege is lost if there is actual malice, reckless indifference to a persons's rights, or acting apart from the duty or purpose giving rise to the privilege, Vigola v. Barton, 348 Mass. 475, at 485-487 (1965). See also Jones v. Taibbi, 400 Mass. 786, 796 (1987) (unofficial statements are outside scope of privilege). The conditional privilege may also be forfeited through "unnecessary, unreasonable, or excessive publication," done with recklessness, Mulgrew v. Taunton, supra, at 634, citing Bratt v. I.B.M., 392 Mass. 508, 509-515 (1984), and Galvin v. New York, N.H. and H.R.R., 341 Mass. 293, 297-298 (1960). The Globe's reports are repetitive, unreasonable, reckless, wrong and downright factually false. These are not protected expressions of opinion.
In Sheehan v. Tobin, 326 Mass. 185 (1950), the Court found that a conditional privilege to report charges brought against a union member in a union magazine could have been abused by reference in the article that the member "brutally assaulted" a "man old enough to be . . . his father." The Court stated that the union president and magazine editor was privileged to report to the union membership factual information concerning the assault charges and their disposition. But the Court went on to state that the characterization of the assault as "brutal," coupled with the reference to the participants' relative ages, painted a very unfavorable picture of the plaintiff viciously beating a man too old to defend himself. It was the editor's use of such language that presented questions for the jury whether the privilege extended to such characterizations and whether the privilege had been abused or lost, at 193-194. The jury decides the materially disputed fact of The Globe's abuse of the qualified privilege.
Here, Mourad contends that The Globe's repeated use of ethnically charged, loaded words, like 'Lebanese immigrant', "mismanagement," and not paying taxes and owing money damaged his reputation and present jury questions as to whether The Globe abused or lost its conditional privilege, Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 344 (1943) (repetition of slanderous words is some evidence of malice for jury to find privilege lost). There can be no question but The Globe's repetitive and unrestrained characterizations of Mourad were intended for no purpose other than to maliciously defame and drive Mourad and his company, V & M Management, Inc., out of business and into trusteeship, and did so.
The Boston Globe only addressed the latter two articles -- the September 28, 1995 (Exh. 25) and April 1, 1996 (Exh.27) articles that fell within three years of Mourad's September 9, 1995 commencement date in its summary judgment motion and memorandum.
Mourad addressed the propriety of relying upon the seven earlier articles to show The Globe's pattern of abusing the fair reporting privilege in footnote 1 of his Memorandum, at p.2, and as noted on p.4.
In Donovan v. Gardner, 50 Mass App. Ct. 595, 603 (2000), Justice Brown, dissenting on other grounds, observes that even time-barred causes of action "may still be relied upon as evidence of the defendant's true intentions and their state of mind," Id, at 603. That is precisely the situation here.
Mourad avers the seven earlier, even if time-barred, defamatory articles, to show The Globe's state of mind as bearing on its reportorial abuse and malice against Mourad. These defamatory articles, even if Mourad might not be able to collect damages for their publication, may be used to show The Globe's repetitive, abusive publishing practices against Mourad. It is this repetition that forms the basis for the abuse of the qualified privilege and the material dispute in this case that renders summary judgment to The Globe inappropriate.
The lower Court's Judgment in favor of the Defendant's Motion For Summary Judgment and dismissal of the Plaintiff's Complaint must be reversed because Mourad has set forth sufficient facts showing The Globe abused the conditional privilege of fair reporting.
WHEREFORE, the Plaintiff/Appellant, Alphonse Mourad, respectfully requests that this Appeals Court reverse the lower Court's Judgment in favor of the Defendant's Motion For Summary Judgment and dismissal of the Plaintiff's Complaint, and requests that this case be remanded back to the lower Court to be heard before a jury.
Respectfully submitted by,
Alphonse Mourad, Pro Se
125 West Street
Hyde Park, MA 02136
April ____, 2002
CERTIFICATE OF SERVICE
I, Alphonse Mourad, hereby certify that I have properly served, by first class mail, the following parties my Brief and Record Appendix on this ____ day of April, 2002:
Johnathan M. Albano
Donald J. Savery
Bingham Dana, LLP
150 Federal Street
Boston, MA 02110
Alphonse Mourad, Pro Se