The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Plaintiff Loses Libel Appeal Against Above The Law

The statements about former law student Jonathan Mullane were either a fair report of court proceedings or protected by the First Amendment.


From today's First Circuit decision in Mullane v. Breaking Media, Inc.:

[W]e conclude that the district court did not err when it granted the Rule 12(b)(6) motion to dismiss based on the application of the Massachusetts fair report privilege and First Amendment principles.  To the extent Mullane intended also to challenge the district court's personal-jurisdiction-based dismissal of the claims asserted against other defendants, Mullane has failed with his brief to develop any challenge to that ruling.

Here's an excerpt from the District Court decision that was affirmed:

Plaintiff, Jonathan Mullane, a former student of the University of Miami Law School, brings this action against Breaking Media, Inc., and journalist Elie Mystal alleging that an article on the legal website "Above the Law" was defamatory….

Mullane was a student at the University of Miami School of Law beginning in the fall of 2017. During the spring of 2018, Mullane served as a legal intern with the United States Attorney's Office ("USAO") in the Southern District of Florida.

While employed with the USAO, Mullane was party to a pro se civil lawsuit involving a credit card dispute pending before Judge Federico Moreno in the United States District Court for the Southern District of Florida. In April 2018, Mullane entered Judge Moreno's chambers, allegedly to request that the clerk make an entry of default in connection with this personal civil dispute.

Judge Moreno subsequently summoned Mullane to a hearing on April 10, 2018. During the hearing, Mullane appeared to acknowledge that he had sought to file a writ of mandamus in his pending case. See Docket No. 57-1 at 13:14-18 ("THE COURT: Did you mention the word petition for mandamus? … MR. MULLANE: I did."); id. at 25:17-19 ("THE COURT: What was the question? MR. MULLANE: I can't remember exactly. It was about how to file the mandamus request or something."). But see id. at 7:19-20 ("MR. MULLANE: I said that I had a specific question about the entry of default."). Judge Moreno reprimanded Mullane for his actions. Mullane was terminated from his internship at the USAO soon after the hearing…..

On April 30, 2018, the legal news publication "Above the Law" published an article, titled "Judge Detonates Pro Se Law Student So Hard I Now Must Defend a Dumb Kid." The Article was authored by Mystal, the Executive Editor of "Above the Law." …

The Article describes the April 10, 2018 hearing. It states, [among other things]:

"[Mullane] was trying to file a petition of mandamus—which basically asks an appellate court to order Judge Moreno to work on his case faster. That's pretty rude. He didn't know where to file the petition, and ended up asking the judge's career clerk, in the judge's chambers, ex-parte, what to do about it. That's pretty dumb. Initially, the clerk wasn't even going to let him in, but Mullane said he worked for the U.S. Attorney's office (he's an intern), which gained him access to the chambers to discuss his own personal case. That's pretty unethical."

"Basically Mullane was an idiot …."

"[T]o gain entry into those chambers, he dropped his USAO cred, even though he was just an intern, and even though he was there for reasons that had nothing to do with his internship."

"It also appears that Mullane is a little entitled ponce …."

"Turns out the kid's father is also an attorney … wonder if that helped him get his sweet internship."

"Okay, so Jon Mullane is a little brat who [sic] with a USAO internship who had an ex-parte conversation in judge's chambers while trying to file a motion arguing that the judge was lazily ignoring his pro se complaint."

"If Mullane is a dauphin …."

"The kid wasn't trying to upend the wheels of justice, he made a series of dumb mistakes."

Following the publication of the Article, the Securities Exchange Commission  … rescinded Mullane's invitation to serve as a "Student Honors Volunteer." Mullane later withdrew from the University of Miami School of Law….

Mullane sued Above The Law for libel, but the court held that much of the article was a fair report of a judicial proceeding:

Massachusetts recognizes "a privilege for fair and accurate reports of official actions and statements." The privilege provides immunity "from liability for claims arising out of such reports." To qualify as "fair and accurate" reporting, an article need only give a "rough-and-ready summary" that was "substantially correct." Importantly, "accuracy" refers to "the factual correctness of the events reported and not to the truth of the events that actually transpired." The Fair Report Privilege encompasses reports on judicial proceedings, even if the reports are not "in technically precise language." Massachusetts requires "that the privilege be construed liberally and with an eye toward disposing of cases at an early stage of litigation."

Notwithstanding the Fair Report Privilege, a Massachusetts statute "permits a plaintiff to recover for a truthful defamatory statement published in writing (or its equivalent) with actual malice … except as confined by" the First Amendment. Under the state statute, "actual malice" is defined as "ill will" or "malevolent intent" … ([which distinguishes] "actual malice" under the Massachusetts statute from the First Amendment standard for "actual malice" as defined in New York Times v. Sullivan, 376 U.S. 254, 280 (1964)). The Massachusetts Supreme Judicial Court has declared [this "actual malice" exception to the privilege] unconstitutional as applied to matters of public concern. Shaari v. Harvard Student Agencies, Inc. (Mass. 1998)….

The Fair Report Privilege protects many of the statements challenged by Mullane, including the portions of the Article that directly quote the court reporter's transcript of the April 10, 2018 hearing and the portions that summarize the topics discussed in that hearing. These statements provide a "rough-and-ready summary" of the hearing that was "substantially correct."

Mullane's arguments [that the article is inaccurate] fail because "'accuracy' for fair report purposes refers only to the factual correctness of the events reported and not to the truth about the events that actually transpired." As to the question of what Mullane sought to file in his Florida case, Mullane stated during the April 2018 hearing that he was seeking a petition for mandamus. As to potential accusations of "criminal conduct," the Article only summarized statements made by Judge Moreno. The reporting sections of the Article are therefore protected by the Fair Report Privilege.

Plaintiff argues that Massachusetts' "actual malice" exception applies in this case because of the pejorative language in the Article {"homophobic, pejorative language and personal slights"}. [But] Mass. Gen. Laws ch. 231 § 92 is inapplicable here because the Article reported on a matter of public concern—a court proceeding. A contentious interaction between a federal judge and a law student can be "fairly considered" as a matter of "concern to the community." …

The court also held that the article's criticisms of Mullane were constitutionally protected opinion:

Mullane also challenges Defendants' statements referring to Mullane as "rude," "dumb," "unethical," a "little entitled ponce," and a "dauphin." … Statements of pure opinion are constitutionally protected because "they are not susceptible of being proved true or false." A statement "couched as an opinion" may be actionable if it "presents or implies the existence of facts which are capable of being proven true or false." Thus, "the relevant question is not whether challenged language may be described as an opinion, but whether it reasonably would be understood to declare or imply provable assertions of [defamatory] fact." The court may determine as a matter of law whether a statement is a pure opinion or a verifiable fact. This requires examining "the totality of the circumstances in which the specific challenged statements were made, including the general tenor and context of the conversation."

Even if an opinion implies a provably false assertion of fact, that statement will not be actionable if "it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts." A speaker is thus protected from defamation liability if he "communicates the non-defamatory facts that undergird his opinion." … "[W]hen an author outlines the facts available to him, thus making it clear that the challenged statements represent his own interpretation of those facts and leaving the reader free to draw his own conclusions, those statements are generally protected by the First Amendment." … The "crucial distinction" is whether the speaker's statements can reasonably be interpreted to suggest that the speaker had access to information not accessible to others.

"[R]idicule and simple verbal abuse" do not give rise to liability for defamation. Many of the challenged statements—such as those referring to Mullane as "rude," "dumb," "unethical," a "little entitled ponce," or a "dauphin"—are mere "epithets" that are "insufficiently fact-based" to ground a defamation claim.

Mullane argues that the Defendants' use of the word "ponce" is actionable because it is a "homophobic and derogatory" manner of "referring to [Mullane] as an 'effeminate man.'" But the First Amendment "shield[s]" such "figurative language."

The Article also contains this statement: "Turns out [Mullane's] father is an attorney—wonder if that helped him get his sweet internship." This statement might imply a defamatory fact. But here, "although the allegation of [nepotism] might be provable as true or false, the sum effect of the format, tone, and entire content of the [Article] is to make it unmistakably clear that the author was expressing a point of view only, rather than stating actual facts" about how Mullane obtained his internship. The statement is an opinion protected by the First Amendment.

Defendants are also protected from defamation liability because they do not suggest that the statement was "arrived at on the basis of undisclosed facts. On the contrary, the [Article] set forth the facts on which the conclusion[] purported to be based." Because the Article provided the "full factual basis" for the statement—namely, that Plaintiff's father is an attorney—the Article "cannot reasonably be interpreted to suggest that the author had access to information about plaintiff's claim that was not accessible to others." The Article "simply posed [a] question[] and suggested [an] answer[], as a matter of opinion." The Defendants' statement is "speculative" and at most amounts to a "personal conclusion[] about the information presented."