Local Official Sues for Libel over Allegations That He Has "Severe Mental Health Issues"; Court Says …

"truth is an absolute defense."

From Kelleher v. Town of Brookfield, decided earlier this month by Judge Brian Murphy (D. Mass.):

In 2023, while serving on the Brookfield Board of Health with Defendant Lepak, Plaintiff filed an Open Meeting Law complaint alleging that the Board of Health had published insufficient and inaccurate meeting minutes. The Massachusetts Attorney General agreed and ordered that the minutes be revised. According to Plaintiff, this was the inciting incident for an ongoing course of retaliatory conduct by Lepak against him. Defendant Simons now serves on the Brookfield Board of Health….

Plaintiff served Brookfield and Defendants Lepak and Simons with a "final [Americans with Disabilities Act ("ADA")] notice of lawsuit." "The next day, Plaintiff emailed Town officials to withdraw from all public meetings, citing safety concerns after a reported threat involving a FedEx driver and two high ranking [Brookfield] officials."

The following day, … each of the Individual Defendants applied for harassment prevention orders against Plaintiff …. "Within days," Plaintiff created and distributed flyers criticizing two of the Individual Defendants, Campbell and Lepak, who had just sought harassment prevention orders against him. Campbell thereafter sought an emergency harassment prevention order against Plaintiff, which was temporarily granted on an ex parte basis….

[T]he East Brookfield District Court held a hearing and granted the requests for harassment prevention orders. Prior to that hearing, Defendant Lepak requested and obtained a letter in support of her application from an individual who had made similar harassment allegations against Plaintiff. Plaintiff alleges that this letter "contained numerous false statements of fact," intended to defame him, and that it moreover contained quotes "lifted from [a] confidential ADA accommodation request, dated April 25, 2025, which was sent to Town officials and counsel," which the letter "mischaracterized … to portray Plaintiff as unstable and dangerous." Plaintiff further alleges that Defendant Lepak has elsewhere "published multiple false and defamatory statements about Plaintiff" in official communications, in the minutes of public meetings, on social media, and to the public.

There's a lot more (the whole opinion is over 7000 words long), but here's one passage that struck me:

Plaintiff alleges[, among other things, that] Lepak … "made stigmatizing and defamatory statements about Plaintiff's mental health status" on social media….

Defendants argue that Lepak's online statements about Plaintiff's mental health—that he has "severe mental health issues"—are true and thus cannot be defamatory. On this, the Court agrees with Defendants: Plaintiffs' own pleadings preclude him from arguing that the statements are materially false. See Compl. ¶¶ 163, 227 (alleging that Plaintiff suffers from complex post-traumatic stress disorder "that substantially limits major life activities including verbal expression, memory, and civic engagement under stress," such to qualify him as disabled under the ADA).

And while Massachusetts law "permits a plaintiff in a libel action to recover for a truthful defamatory statement if the plaintiff proves that it was made in writing with actual malice[,] … the First Amendment limits the scope of that statute such that 'a statement on matters of public concern must be provable as false before there can be liability under state defamation law.'" Plaintiff's own pleadings demonstrate that Lepak's statements were meant to color or inform Plaintiff's public acts and to "impugn[ ] Plaintiff's fitness for public participation and office." As such, "truth is an 'absolute defense'" to this part of the defamation claim.

Comments

[John F. Carr]

Defendants sought anti-harassment orders against plaintiff. The relevant definition of "harassment" here appears to be "3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property". Massachusetts General Laws chapter 258E section 1. "Abuse" is further defined as physical rather than mental abuse.

Massachusetts has at least two forms of restraining order, chapter 209A for domestic violence and 258E for more emotionally distant violence.

[Bored Lawyer]

And while Massachusetts law "permits a plaintiff in a libel action to recover for a truthful defamatory statement if the plaintiff proves that it was made in writing with actual malice[,]

I assume that "actual malice" here means something other than what it usually means in defamation law: knowledge of falsity or reckless disregard for the truth.

[TwelveInchPianist]

That seem like a weird sentence. A "truthful defamatory statement" seems like an oxymoron. But you can only sue if the true statement is made with actual knowledge of its falsity?

[Rossami]

Maybe they're trying to solve for 'you thought it to be false at the time and said it anyway just to be mean but it later turns out to have been true'? Kind of a 'no credit for being lucky' clause? I agree that it's confusing.

[TwelveInchPianist]

Attempted defamation? Maybe. One would hope that is protected by the first amendment, and looking at some of the rest of the op, maybe it is.

[John F. Carr]

Massachusetts General Laws chapter 231 section 92: "The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved."

This malice exception was held by Shaari v. Harvard Student Agencies, 427 Mass. 129 (1998) not to apply to the author and publisher of a travel guide. "To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment."

For private figures America still allows "invasion of privacy" type lawsuits over true statements. See the many posts here about revenge porn.

[Bored Lawyer]

But what does actual malice mean in the context of a true statement?

[John F. Carr]

Without researching ancient cases, I think this part of Massachusetts model jury instruction 8.250 for the crime of vandalism approximates the statute's meaning:

An act is done with “malice” if it is done out of cruelty, hostility or revenge. To act with malice, one must act not only deliberately, but out of cruelty, hostility or revenge toward another.