Free Speech

Libel of a 7th-Grader By an Ex-Classmate's Mother?

Yes falsehood, no damages.

|The Volokh Conspiracy |

An interesting—and, in my experience factually unusual—example of a lawsuit over an adult's false statements about a 7th-grader. From Hamor v. Topol, 2019 WL 4325125 (Mass. Super. Ct. July 30, 2019) (Rosemary Connolly, J.):

Plaintiff, a minor child, claims that the defendant, an adult and mother of a former classmate, defamed him and caused him to suffer the intentional infliction of emotional distress. The gravamen of his complaint is that the defendant told numerous people in their community, and several of whom had children in the school, that the plaintiff choked her son in school. She is alleged to have told people that the plaintiff, using a piece of yarn that had been looped around the defendant's son's neck, pulled it. In conjunction with this statement she showed numerous people in town a photo of a red ligature mark on the back of her son's neck.

The plaintiff claims he did not choke the defendant's son but rather he was offering assistance to remove a yarn that had been knotted and tighten on his neck. The red mark happened when the defendant's son pulled down on the yarn and ripped it from his neck. Plaintiff further offered evidence that they contend shows that the defendant waged a campaign against the plaintiff in the community resulting in social disruption for the plaintiff in his school and in his peer group….

The court finds that the plaintiff has presented sufficient evidence to prove their defamation claims. The picture of the defendant's son with the red mark coupled with the defendant's written or spoken statement made to various community members created the impression that plaintiff choked the defendant's son, causing the mark on his neck. Plaintiff offered evidence, through the police officer, the school psychologist and the school principal, as well as plaintiff's own testimony to demonstrate that the defendant's statement was not true.

Plaintiff testified that his lost friends after the incident. This was corroborated by his mother's testimony and the testimony of the school psychologist who both indicated that after the defendant published the picture and made statement that "[H.] choked [M.]", [H.]'s school routine changed and his friend group was changed. He was separated from [M.] and the school instituted a safety plan for [M.] to ensure distance between the boys. Several of [H.]'s classes were changed and his seventh grade friend circle narrowed. This evidence supports a conclusion that the defendant's false statement caused [H.] to be subjected to a loss of social standing and being held to scorn or ridicule in his small school community and among his peer group….

[But] plaintiff's claim for the intentional infliction of emotional distress … fails. Plaintiff … [cannot show] that the defendant's conduct was extreme and outrageous and beyond the bounds of decency and intolerable in a civilized society.

The defendant's son and plaintiff had been closer friends when they were in elementary school and had been drifting apart in 6th and 7th grade. They had a shared friend group. Not only did the boys share a social group, it appears from the evidence that the parents shared a social group with the other parents of children in the school. It is a small community and word travels. The defendant testified that parents came to her and they already knew about the incident. Similarly, the plaintiff's mother testified that people came to her claiming that they already knew about the incident. The local police knew about the incident and the school administration knew about the incident.

The defendant admits she did tell several people that [H.] choked [M.] and she did show many people the picture. However, she never said anything to [H.] and [H.] acknowledged that the defendant had always been nice to him. Indeed, it was [H.]'s mother who showed him the inflammatory e-mail that the defendant sent to [H.]'s parents on January 24, 2016. This evidence does not meet the high standard of outrageousness required for this intentional tort.

Additionally, on the fourth element, the plaintiff's claim of distress does not rise to the level one might call severe. The evidence is that he suffered some distress, he met new friends, created a new, albeit small friend group, and was by all accounts, including his own, back on track by 8th grade.

Even if the plaintiff had met his burden to prove the intentional infliction of emotional distress, this claim would still be subject to dismissal at the directed verdict stage on legal grounds. The plaintiff's claim for the intentional infliction of emotional distress is premised on the same conduct that constitutes his claim for defamation. If the jury decides that, the defendant's statements are opinion, or are truthful, then as a matter of law [the intentional infliction of emotional distress claim] cannot be used to back door the failed defamation claim….

And the jury verdict:

  1. Do you find that Mrs. Topol's written or oral statements concerning [H.] were statements of opinion? NO

  2. Did Mrs. Topol make a false and defamatory statement, whether written or oral statement, of and concerning [H.]? YES

  3. Did Mrs. Topol publish[] an oral or written false and defamatory statement to a third party, other than to the minor plaintiff's parents? YES

  4. If you find that Mrs. Topol published a false and defamatory statement, whether written or oral, about [H.], did it cause [H.] to suffer damages? NO

Defendant therefore wins, because of the absence of damages.

 

 

NEXT: Imagining a World Without Qualified Immunity, Part II

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  1. Well, in the old days if that happened, one parent would ask the other to step outside. At least we’ve moved beyond that.

  2. I don’t understand why it’s exculpatory that (1) many people in the community heard the libel and (2) that defendant was nice to the child. Why is the judge connecting outrageousness of the libel to those facts – which to my eye cut against the defendant.

    1. I think the first one is saying that many people heard it independently, not just because Mom was spreading it.

  3. re: “Defendant therefore wins, because of the absence of damages.”

    While I suppose that’s right given how courts are required to write their opinions, that’s not how I would naturally read the outcome. I would read that outcome as a tie – plaintiff wins on principle but defendant doesn’t have to pay anything. In many cases (I suspect including this one), being vindicated in court is more important than money.

    1. The presence of economic damages is generally an element of a defamation claim.

      1. Not in cases of defamation per se. Libel (e.g. defamation by email) and accusation of a crime (e.g. battery) are defamation per se.

        1. Libel isn’t defamation per se. Libel and slander, taken together, are defamation. Defamation per se is a related tort that is the same as defamation except that the requirement to prove damages is omitted.
          Then you use battery as an example of a crime, but battery is not necessarily a crime.

  4. Presumably, it’s fairly hard for a 7th grader to win many defamation suits, because of the necessity to prove actual damages.

  5. OK — so go on Facebook and tell your friends that M’s mom is a whore. When she sues, your defense: Lots of people already knew that she’s a tramp. And besides, she’s still getting it, isn’t she?

    1. Jon,
      I think it would have been better to pick a different hypo. Remember that your example is one of those exceptions–you do not have to show specific damages if the lie was that you engaged in sexual misconduct. (One of the ‘per se’ exceptions . . . I’m basing this on what I learned 25+ years ago. I definitely remember that falsely claiming I/you have an STD is per se, but I have to admit that I’m not 100% sure if falsely calling me/you a whore is also per se slander.)

      1. The Restatement (Second) of Torts § 574 does indeed recognize as defamation per se a statement that “imputes any form of unchastity to a woman”.

        1. True, but maybe you can try to get that abolished as 1) a relic of the time where an unchaste woman was considered spoiled and 2) in violation of the EPC

      2. Unless you’re in a couple of counties in Nevada, accusing someone of being a whore is an accusation of committing a crime, which is ALSO one of the categories of defamation per se.

        1. I think “whore” in modern usage generally means a promiscuous woman, not necessarily a “prostitute”, which Merriam-Webster lists as somewhat old fashioned..

          1. In modern usage, the word you’re looking for is “ho”.

  6. Maybe a better approach would be to publicize the jury’s verdict that Mrs. T. made false and defamatory statements about me, and that people should be careful in their interactions with Mrs. T. Although (thankfully) I did not suffer any material financial or lasting intangible loss, she made my life hell, so much so that I took her to court.

    1. Alas, defamation law isn’t about getting even for having your life made a living hell. It’s about recovering your financial losses. If you haven’t had any financial losses, you get bupkis.

  7. “Plaintiff, a minor child, claims that the defendant, an adult and mother of a former classmate, defamed him and caused him to suffer the intentional infliction of emotional distress.”

    Shouldn’t this read: “…and caused him to suffer emotional distress?” Defamation is an intentional tort, and the infliction is implied in its operation. It’s a rather clumsy, albeit accurate sentence as written by the court.

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