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Shaari v. Harvard Student Agencies Inc.3/20/1998
This matter arises from a report to the Appeals Court of the propriety of an order of a Superior Court Judge denying the defendants' motion for summary judgment. We allowed the defendants' application for direct appellate review. The plaintiff, alleging that the defendants, theand the publisher of a travel guide, made defamatory statements about him in their guide, commenced a libel action. After conducting extensive discovery, the defendants moved for summary judgment. The Judge denied the motion, primarily relying on G. L. c. 231, Section 92. The report raises the question whether Section 92 unconstitutionally infringes on the defendants' freedom of speech, as guaranteed by the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. For the reasons set forth below, we conclude that it does and reverse the Judge's decision and order the entry of judgment for the defendants.
Facts. The defendant Harvard Student Agencies, Inc., prepares, and the codefendant St. Martin's Press, Inc., publishes annually a budget travel guide known as "Let's Go: Egypt & Israel." The 1989 edition stated, in reference to the plaintiff's youth hostel: "Women should not stay here, nor should men who don't want to encourage harassment. The manager, Itzik, was being sued on sexual harassment charges by 3 different women during the summer of 1988." Similarly, the defendants' 1990 edition opined, "Let's Go strongly recommends that travelers DO NOT stay here. Don't let the beautiful neighborhood and calm exterior fool you. If management changes, this could be a great hostel; check at the tourist office."
These two statements were the basis of the plaintiff's libel action. A judge subsequently dismissed the plaintiff's claim as to the 1989 statement on the ground that a New York court had already deemed it as time barred. After the parties conducted extensive discovery, the defendants moved for summary judgment as to the 1990 statement. Their primary claim was that the truthfulness of their statement regarding the sexual harassment allegations against the plaintiff precluded any valid libel claim. Another Judge denied the motion, concluding that, although the statement was substantially true, G. L. c. 231, Section 92, dictates that the truthfulness of a defamatory statement is not necessarily a defense to a private plaintiff's libel claim.
General Laws c. 231, Section 92, provides: "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" (emphasis added). Thus, under the statute, if a plaintiff shows that the defendant acted with malice in making a defamatory statement, the plaintiff may recover -- even if the statement is true.
The United States Supreme Court has consistently held in defamation cases that, in order to avoid offending a publisher or broadcaster's First Amendment rights, a plaintiff must establish the existence of a "defamatory falsehood." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). Where the plaintiff is deemed a "public figure," the Court has expressly concluded that the First Amendment "absolutely prohibits punishment of truthful criticism." Garrison v. Louisiana, 379 U.S. 64, 78 (1964), citing New York Times Co. v. Sullivan, supra. If an individual "has published the truth, and no more [about a public person], there is no sound principle which can make him liable, even if he was actuated by express m
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