The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Landino v. Mass. Teachers Ass'n, decided today by Judge Denise Casper (D. Mass.), the undisputed facts:
The MTA is a state affiliate of the National Education Association ("NEA"), a national labor union.
Established in 2011, Project Veritas is a non-profit conservative media outlet that conducts "undercover reporting" concerning "subjects that impact democratic interests," PV has long-standing history of public disputes with teachers' unions. Landino's responsibilities while employed by PV included fundraising, hiring, paying bills and managing staff. Prior to working at PV, Landino was convicted of felony narcotics possession in Connecticut.
On March 7, 2014, Gawker published an article about PV titled "James O'Keefe Employs a Convicted Felon," while Landino remained COO [Chief Operating Officer] at PV. The article states that Landino was "active in making fundraising queries and pitching sting ideas, introducing himself as the group's chief operating officer." Gawker reported, among other things, that Landino had a "felony narcotics record, thousands of dollars in unpaid child support and tens of thousands of dollars in IRS tax liens." Landino was subsequently fired by PV on March 31, 2014. Approximately two years later, in 2016, Landino received a pardon for his felony conviction. Thereafter, Landino contacted one of the authors of the Gawker article requesting a correction to reflect that Landino had since been pardoned.
The website Project Veritas Exposed ("PVE") posts content related to PV. In or around June 2018, PVE posted a profile to its site about Landino, identifying him as the COO of PV from 2013 to 2014 and quoting the 2014 Gawker article regarding Landino's criminal history, tax liens and unpaid child support. The profile includes an update that Landino was pardoned in May 2016. PVE is not an MTA website and MTA does not control it.
On June 19, 2019, the NEA sent an email to its state affiliate coordinators, including MTA's, in advance of its annual meeting regarding general guidance to avoid "sting" operations by right wing activists, including tips, templates and signage requiring non-NEA guests to identify themselves. Attached to the email was a document about PV ("Look Book"), containing the names and photographs of approximately seventy-five individuals known or believed to be associated with PV. According to MTA, the Look Book was prepared in response to an incident in which a recording of an NEA state affiliate member was distributed social media, portraying the affiliate in a negative way. The Look Book states that "[p]eople involved with Project Veritas often use disguises and misrepresent themselves." Landino's name and title as COO are included in a list of "[p]eople involved in right-wing undercover operations and organizations," along with links to his Facebook page and the Gawker article. The Look Book also includes a picture of Landino, with his name and COO title. The Look Book also notes to "please be cautious—some people who are not operatives may coincidentally have the same name, and some people may no longer be acting as or facilitating operatives." [In 2019, the MTA distributed the Look Book to its conference attendees and members.]
And the legal analysis:
Landino alleges that the MTA made five defamatory statements by posting the Look Book to its website …:
Statement 1 Plaintiff [sic] … "often uses [sic] disguises and misrepresents themselves" Statement 2 Plaintiff is the "COO" of PV Statement 3 Plaintiff is [sic] "People involved in right-wing undercover operations and organizations" Statement 4 Plaintiff is the "COO" of PV Statement 5 Plaintiff [sic] name printed "John Landino (COO, PV)" with text "COO" hyperlinked to the Gawker article
To start, Statements 2, and 4—that Landino was the COO of PV—are factually true, and therefore, Landino cannot establish that they constitute defamation. To the extent that Landino also objects to the portion of Statement 5 that identifies him as COO, this is also factually true. Landino claims these statements are false, because his employment with PV ended in March 2014. This argument is unavailing. Here, even though Landino no longer worked for PV at the time that the MTA published the link to the Look Book on its website, the representation contained in Statements 2, 4 and 5 that Landino was the PV COO does not rise to the level of defamation because Landino was, at one time, COO of PV. See Rogatkin ex rel. Rogatkin v. Raleigh Am., Inc., (D. Mass. 2014) (stating that "[t]he publication of true but historical facts (even if outdated) about a person cannot be defamatory as a matter of law"). [I suppose it's possible that, if the facts are so outdated that they convey a very different sting, for instance if you're described as an officer of organization that has actually sharped changed its ideological position in the decades since you actually served as an officer, that might be defamatory; but this isn't so here. -EV]
As to Statements 1 and 3, Landino has not shown that either statement is false. "Only statements that are provably false are actionable." Moreover, neither statement specifically concerns Landino. "It is a fundamental principle of the law of defamation that a plaintiff must show, inter alia, that alleged defamatory words published by a defendant were of and concerning the plaintiff." "In Massachusetts, the test whether [an alleged defamatory statement] is of and concerning the plaintiff is met by proving either (1) that the defendant intended the words to refer to the plaintiff and that they were so understood or (2) that persons could reasonably interpret the defendant's words to refer to the plaintiff and that the defendant was negligent in publishing them in such a way that they could be so understood." "[W]here the alleged defamatory statement is directed at a group, rather than a particular person, an individual member of the defamed class cannot recover for defamation unless the group or class is so small that the matter can reasonably be understood to refer to the member, or … the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member.'
Statement 1 does not refer to Landino specifically ("[p]eople involved in [PV] often use disguises and misrepresent themselves"). Indeed, Statement 1 refers generally to people who are, or who were at some point, associated with PV. Likewise, Statement 3 describes a group of approximately seventy-five listed individuals, including Landino, as "[p]eople involved in right-wing undercover operations and organizations." Although Landino is included in the list of individuals, Statement 3 is followed by a disclaimer, located directly below the statement, that "some people … may no longer be acting as or facilitating operatives." Given the qualified nature of these statements, the fact that neither specifies Landino and that even when Landino's name is listed, it is as part of a large group, and neither statement have been shown to be false, Statements 1 and 3 also fail on the first requisite element for defamation….
Even assuming arguendo that any of the statements were both false and defamatory, [the defamation claim against the MTA] still fails because Landino has not shown that the MTA was at fault in making any of the alleged defamatory statements. Landino is private figure, and therefore, he only needs to demonstrate that the MTA was negligent.
To satisfy this element of the claim, a plaintiff alleging defamation must demonstrate that the defendant failed "to act reasonably in checking on the truth or falsity of the [challenged] communication before publishing it[,] keeping in mind [c]ustoms and practices within the [defendant's] profession."
Here, it is undisputed that the MTA "receiv[ed] the Look Book from the NEA." Because of their "affiliation and long standing relationship, the NEA is a trusted and reliable source of information for the MTA," such that it was not unreasonable for the MTA to believe in the accuracy of the Look Book and post a link to the document on its website without conducting an independent investigation to verify the information contained therein. This is not a case where "a reasonable jury could find" that the MTA posted the link to the Look Book with "negligent disregard for [its] veracity." Based upon the undisputed record, a reasonable jury could not find that the MTA had or should have had "reasonable doubt as to the veracity of [the Look Book]." Cf. Jones v. Taibbi (Mass. 1987) (noting that the defendant's reports were based upon statements of an informant whom the defendant knew had a history of being unreliable in the past and, "[m]ore importantly," that the defendant was aware of inconsistencies in the informant's allegations but published them anyway). Here, there are no facts to show that the MTA had any reason to doubt whether the Look Book contained truthful statements….
Congratulations to Carolyn Crowley, Kenneth Bello, and Siobhan Tolan of Barclay Damon, LLP, who represented the MTA.