The Volokh Conspiracy

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Free Speech

Not a Burgher of Calais?

A reminder: Not all falsehoods are defamatory.


Thanks to Wikipedia and Auguste Rodin.


From Cain v. Sambides, decided yesterday by Judge John A. Woodcock, Jr.:

A pro se prisoner objects to a magistrate judge's recommendation to dismiss a defamation lawsuit against a newspaper, an editor and a staff writer…. Mr. Cain alleges that the [defendants] published nine defamatory statements in a July 20, 2018 BDN article about his sentencing for stalking.

Mr. Cain … objects that, contrary to the Magistrate Judge's determination, the article's statement that he was from Maine "has caused … undue harm" because it has adversely affected how the BOP treats him and is therefore actionable under Maine defamation law. Mr. Cain says in his Complaint … that he "was not born in Maine, Never a citizen of Maine, nor am I a former Maine Man." In his objection, he says that the BOP used the article's assertion that he was from Maine and Texas to refuse to assign him to Nevada and instead to assign him to Fort Worth, Texas. Furthermore, he maintains that the BOP is going to release him in Maine when he finishes his prison term….

The allegedly false and defamatory statement is that Mr. Cain was "formerly of … Calais." While Mr. Cain alleged that the Defendants' statement caused the BOP to treat him in a way that he dislikes, this does not make the statement defamatory. {[T]he plain and ordinary meaning of this statement does not "tend[] … so to harm the reputation of [Mr. Cain] as to lower him in the estimation of the community or to deter third persons from associating or dealing with him."} Mr. Cain does not argue that being associated with the city of Calais or the state of Maine harmed his reputation, nor would this argument succeed. The mere statement that a person was "formerly of … Calais," Maine is not pejorative, and many would properly take it as a compliment that they were formerly (or currently) association with the city of Calais and the state of Maine.

{The Court is extremely dubious about Mr. Cain's charge that the BOP relied on the contents of a newspaper article to make penal decisions about him. However, the Court does not rest its affirmance on its skepticism of Mr. Cain's assertion.}

Moreover, the statement as written is literally true. Mr. Cain acknowledges that he "sojurn[ed]" in Maine for work and that he stayed in a place rented for him by his employer. Contrary to Mr. Cain's protests, the BDN article does not say or imply that Mr. Cain was born in Maine, that he was a citizen of Calais, Maine, or that he was or is a Maine man; it only says that he was "formerly of Calais," a phrase consistent with his remaining in Calais for a period of time while he completed a construction job. Indeed, in its description of Mr. Cain's status in Calais, Maine, the Court of Appeals for the First Circuit used language similar to the BDN article. United States v. Cain (1st Cir. 2019) ("After a short courtship, Cain married L.H., a resident of Houlton, Maine, in August 2014. At the time, Cain was living in Calais, Maine, and working as a superintendent overseeing the construction of a local Walmart"). While living in Calais for the duration of his employment there, Mr. Cain could be properly be characterized as "of Calais" and after he left, as "formerly of Calais."