Stanton v. Metro Corp., 05-1552.

Citation438 F.3d 119
Decision Date23 February 2006
Docket NumberNo. 05-1552.,05-1552.
PartiesStacey STANTON, Plaintiff, Appellant, v. METRO CORPORATION, Defendant, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

John P. Donohue with whom Fuller, Rosenberg, Palmer & Beliveau, LLP was on brief for appellant.

Robert A. Bertsche, with whom Amy E. Serino and Prince, Lobel, Glovsky & Tye LLP, were on brief for the appellee.

Before TORRUELLA and LIPEZ, Circuit Judges, and DiCLERICO,* District Judge.

DiCLERICO, District Judge.

Stacy Stanton has appealed the dismissal of her state-law defamation action against Metro Corp., which arises out of the publication of her photograph alongside an article entitled "The Mating Habits of the Suburban High School Teenager." The district court dismissed Stanton's complaint for failure to state a claim upon which relief could be granted based on the conclusion that the publication was not defamatory as a matter of law. Because we believe this conclusion was erroneous, and because Metro's alternative arguments for affirmance are not well-founded, we reverse the decision of the district court and remand for further proceedings.

I.

Metro Corporation publishes Boston magazine, a monthly general interest publication that ran the article in question in its May 2003 issue. The cover of the magazine refers to the article with the phrase, "Fast Times at Silver Lake High: Teen Sex in the Suburbs." Inside, Stanton is one of five young people pictured in a photograph that occupies the entire first page of the article and half of the facing page. The photograph, taken at a high school dance, depicts its three male and two female subjects in formal attire, sitting and standing near an open exit door in the background. Stanton's image occupies most of the left-hand side of the photograph, where she appears standing, with her face and most of her body fully visible. Although three of the subjects are smoking cigarettes, and another holds a plastic cup, Stanton simply looks at the camera, smiling faintly.

The other half of the facing page consists of a column of text of varying sizes, including the aforementioned headline, which appears in the largest font and takes up most of the column. A "superhead," appearing above the headline in a smaller font, reads: "They hook up online. They hook up in real life. With prom season looming, meet your kids—they might know more about sex than you do." Below the headline, one and a half paragraphs of text from the article are set forth in yet smaller type, ending with an arrow indicating that the story continues onto the following page. The byline and photography credit appear at the very bottom of the column in lettering larger than that of the main text, but smaller than that of the headline.

Just above the byline, and just below the main article text, the following appears in italicized type: "The photos on these pages are from an award-winning five-year project on teen sexuality taken by photojournalist Dan Habib. The individuals pictured are unrelated to the people or events described in this story. The names of the teenagers interviewed for this story have been changed."1 These words are rendered in the smallest font on the page, which is otherwise devoid of text that explains the photograph or identifies its subjects.2 Stanton alleges that she did not participate in any such "project on teen sexuality."

The first few paragraphs of the article relate a conversation among four teenagers from a suburban Boston high school, including "Nicole," described as a "pretty Keri Russell-look-alike . . ." and "Christine, a curly-haired pixie in the under-90 weight range . . . ." Nicole is quoted as saying, "All we ever do is go hang out and get drunk, like, all the time, and you know, hook up," not generally with steady boyfriends or girlfriends, but "with whoever [sic]" after drinking at small gatherings. The article goes on to explain that the euphemism "hook up," as teens use it, "can mean anything from sexual intercourse to oral sex to serious touching or just kissing."

As these introductory paragraphs suggest, the thrust of the story is that teenagers in the greater Boston area have become more sexually promiscuous over the span of the last decade. The article draws support for this thesis from both statistical and anecdotal evidence, including interviews with a number of local high school students. As to the possible causes for the trend, the article considers a "hypersexual" popular culture, the ready availability of sexual encounters and pornography over the Internet, ineffective sex education programs, and peer pressure.

The story also declares that high school has replaced college as the time for sexual experimentation, describes a profound ignorance among teens about sexually transmitted diseases, and notes a related trend of increased sexual aggression among high school boys. Parents, for their part, remain "overwhelmingly clueless," according to the article. Nevertheless, the story closes with the observation that some teens are "holding out hope" for emotionally rewarding sexual relationships, including "Jessica," one of the teenagers from the group described at the beginning of the article.

Stanton, who lives in Manchester, New Hampshire, responded to the appearance of her photograph with the article by filing suit against Metro in Massachusetts state court. Metro, a Pennsylvania corporation with its principal place of business also in that state, duly removed the action to the district court.

Stanton's amended complaint asserts two counts: invasion of privacy in violation of Mass. Gen. Laws ch. 214, § 1B, and common-law defamation. Stanton alleges that the publication was defamatory in that "[t]he juxtaposition of [her] photograph and the text describing suburban teenage promiscuity . . . insinuated that [she] was engaged in the activity described in the article . . . ." She also alleged that the disclaimer was itself defamatory in falsely identifying her as a subject of the photographer's "project on teen sexuality." The district court granted Metro's motion to dismiss on the ground that the amended complaint failed to state a claim on which relief could be granted. This appeal followed.

II.

We review the district court's grant of the motion to dismiss de novo. SFW Arecibo, Ltd. v. Rodriguez, 415 F.3d 135, 138 (1st Cir.) (citing Greene v. Rhode Island, 398 F.3d 45, 48 (1st Cir.2005)), cert. denied, ___ U.S. ___, 126 S.Ct. 829, ___ L.Ed.2d ___ (2005). This task requires that we accept as true the well-pleaded factual allegations of the complaint, drawing all reasonable inferences in favor of the non-moving party. Id. at 138-39. As the district court did, we also consider the allegedly defamatory article itself, which Metro submitted as an attachment to its motion to dismiss. See Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1015 (1st Cir.1988). "`A complaint should not be dismissed unless it is apparent beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.'" Greene, 398 F.3d at 48 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Stanton has appealed only the dismissal of her defamation claim. Furthermore, she has appealed the dismissal of that claim only insofar as it arises out of the juxtaposition of her photograph with the article; she does not contest the district court's determination that the disclaimer was not independently defamatory in misidentifying her as a participant in the teen sexuality study. We limit our review accordingly. See, e.g., Exec. Leasing Corp. v. Banco Popular De P.R., 48 F.3d 66, 67 (1st Cir.1995).

III.

To succeed on a defamation claim under Massachusetts law, a plaintiff must show that the defendant was at fault for the publication of a false statement of and concerning the plaintiff which was capable of damaging his or her reputation in the community and which either caused economic loss or is actionable without proof of economic loss. White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66, 809 N.E.2d 1034, 1036 (Mass.2004); see also Yohe v. Nugent, 321 F.3d 35, 40 (1st Cir.2003) (applying Massachusetts law); Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-30, 782 N.E.2d 508, 510-511 (Mass. 2003). Metro moved to dismiss Stanton's complaint on the grounds that (1) the publication was not defamatory, i.e., capable of damaging her reputation, as a matter of law, (2) any defamatory statement was not "of and concerning" her, (3) Metro could not have acted negligently in publishing the article, and (4) Stanton failed to allege that the article contained any false statement of fact.

The district court accepted two of these arguments, ruling that "the defamatory statements at issue are not `of and concerning' [Stanton], and are not reasonably capable of a defamatory meaning." 357 F.Supp.2d 369, 382 (D.Mass.2005). In reaching these conclusions, the district court relied heavily on the disclaimer appearing at the bottom of the first column of the article, i.e., "[t]he individuals pictured are unrelated to the people or events described in this story." In fact, the district court stated that it would "first consider the juxtaposition of the photograph and the text without the disclaimer, and then turn to the impact of the disclaimer" in considering whether the article made a defamatory statement about Stanton. Id. at 378.

Bifurcating the article in this fashion, the district court determined that, absent the disclaimer, "a reasonable reader could conclude that the teenage girl depicted in the photograph is sexually active and engages in at least some form of sexual misconduct." Id. at 381. Nevertheless, the district court went on to explain that it was "forced to conclude that the disclaimer adequately negates the negative connotations about [the] plaintiff otherwise arising from the...

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