The Volokh Conspiracy
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"Someone Must Have Taken the Bar Exam for You" Was Just Insult, Not Libel
From Lucey v. Kinnon, decided Dec. 15 by the Massachusetts Appeals Court, in an opinion by Justice John Englander, joined by Judges Eric Neyman and Joseph Ditkoff (affirming a decision I blogged about here in 2024):
The defendant Neil Kinnon insulted the plaintiff, Scott Lucey, on the webpage for a Facebook group known as "Malden (MA) Politics." {Kinnon is a former Malden city councillor, and Lucey, an attorney, had been a frequent participant in Malden political discussions.} Specifically, in responding to a comment that Lucey had posted on June 7, 2023, Kinnon stated,
"I'm beginning to wonder if you are capable of reading. Might want to read again and anybody who would hire you to be their attorney God Bless them, because someone must have taken the Bar exam for you" (emphasis added)….
"Statements that are merely 'rhetorical hyperbole,' or that express a 'subjective view,' are not statements of actual fact." … Here, the statement at issue is rhetorical hyperbole, and would not be understood otherwise by a reasonable person reading the statement in context. The context itself is banter, between two persons whose statements indicate that they had bantered previously.
For example, Lucey's first post, which appears immediately prior to the defendant's post at issue, contains obvious sarcasm. Lucey states that "[y]ou'd almost think the original poster was never a city councilor." That post obviously was not intended to be understood as fact. Kinnon's response is more of the same: he is "beginning to wonder" whether Lucey can read. Kinnon is not "wonder[ing]" for very long, however, because two sentences later Kinnon tells Lucey to "[r]ead" another post of his. A reasonable person reading this exchange accordingly would understand the context, which was that much, if not all, of what Kinnon said to Lucey, and Lucey to Kinnon, was not to be taken as serious assertions of fact.
The same is true of the challenged statement itself: "anybody who would hire you … God Bless them, because someone must have taken the Bar exam for you." Kinnon did not state a fact—that is, he did not assert that someone else did take the bar exam on Lucey's behalf; rather, Kinnon stated that someone "must have." The challenged statement thus did not present as a statement of fact, but as opinion; Kinnon asserted that because it (supposedly) appeared to him that Lucey could not read, and because Lucey is a lawyer, Kinnon deduced that someone "must have" taken the bar exam for him.
In context, Kinnon's entire passage is rhetorical hyperbole, designed to insult but not to state facts. Indeed, Lucey himself quite apparently did not understand the operative post as making a serious factual assertion, since he responded with a joke of his own: "[G]od bless a client of mine? Why, did they sneeze?"
This is not the stuff of a defamation claim. Lucey's claim was properly dismissed….
Howard M. Cooper and Charlotte L. Bednar represent Kinnon.
