Mandel v. Boston Phoenix, Inc.

Decision Date12 July 2006
Docket NumberNo. 05-1230.,05-1230.
Citation456 F.3d 198
PartiesMarc E. MANDEL, Plaintiff, Appellee, v. The BOSTON PHOENIX, INC., et al., Defendants, Appellants.
CourtU.S. Court of Appeals — First Circuit

Stephen J. Cullen, with whom Jennifer J. Coyne, Miles & Stockbridge P.C., and Mary A. Azzarito, were on brief, for appellee.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and LIPEZ, Circuit Judge.

AMENDED OPINION*

SELYA, Circuit Judge.

The oenologist's creed teaches that we should drink no wine before its time. Much the same principle applies to summary judgment; it is a deliciously helpful device if properly timed, but one that can leave a sour taste if brought to bear on an insufficiently fermented record.

This appeal, which follows on the heels of a substantial verdict in a defamation suit, is a paradigmatic example of the point. The briefs before us raise a plethora of First Amendment issues. At the threshold, however, lies the preliminary question on which the appeal ultimately hinges: did the district court, ruling on a pretrial motion, appropriately determine that the plaintiff, a Maryland assistant state's attorney, was a private figure and not a public official for libel-law purposes? Concluding, as we do, that the court's ruling was premature, we answer that question in the negative. Accordingly, we vacate the judgment below and remand for a new trial.

I. THE LEGAL LANDSCAPE

In order to put this appeal into perspective, we think it is useful to begin by rehearsing a salient aspect of the substantive law of defamation: the public official/private figure dichotomy.

It is apodictic that the First Amendment "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The New York Times rule extends not only to public officials but also to public figures, whether all-purpose or limited-purpose. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

The distinction between public figures and public officials, on the one hand, and purely private figures, on the other hand, has potentially profound consequences in a defamation case. Generally speaking, the status that the plaintiff occupies along the public/private continuum will determine what he must prove in order to recover damages. Leaving to one side the imposition of liability without fault (as to which certain restrictions pertain), states may shape their own standards of liability when a defamation action involves a private-figure plaintiff. See id. at 347, 94 S.Ct. 2997. Under Massachusetts law, for example, that standard is negligence. See Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161, 168 (1975). That is far less demanding, from the plaintiff's standpoint, than the "actual malice" standard that obtains when the plaintiff is a public official or public figure. See New York Times, 376 U.S. at 279-80, 84 S.Ct. 710. A plaintiff's status, therefore, shapes the course of any defamation litigation. If he is a public official or public figure, he must prove actual malice with "convincing clarity." Id. at 285-86, 84 S.Ct. 710. If however, he is a purely private figure, it suffices (at least in Massachusetts) to prove negligence by a preponderance of evidence. See Stone, 330 N.E.2d at 174-75.

In defamation cases, public-figure status has the same legal ramifications as public-official status—but the two terms are not synonymous. See generally Kassel v. Gannett Co., 875 F.2d 935, 941 n. 4 (1st Cir.1989). Public officials, as the term implies, are those who hold particular kinds of public office. See, e.g., Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971) (deputy chief of detectives); New York Times, 376 U.S. at 283 n. 23, 84 S.Ct. 710 (elected city commissioner). Public figures may or may not be public officials; they are persons who "have assumed roles of especial prominence in the affairs of society." Gertz, 418 U.S. at 345, 94 S.Ct. 2997. Commonly, "those classified as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." Id. For present purposes, we need not dwell either on the distinction between public officials and public figures or on the exact dimensions of public— figure status; the defendants do not contend that the plaintiff is a public figure— only a public official.

The public-official classification eludes precise definition. See Kassel, 875 F.2d at 939. Not every public employee is a public official for libel-law purposes. See Hutchinson v. Proxmire, 443 U.S. 111, 119 n. 8, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). To the contrary, only public employees with "substantial responsibility for or control over the conduct of governmental affairs" should be deemed public officials for libel-law purposes. Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). Moving from the general to the particular is, however, a daunting task; it is difficult to tell "how far down into the lower ranks of government employees" the public-official designation extends. New York Times, 376 U.S. at 283 n. 23, 84 S.Ct. 710.

II. FACTS AND PROCEEDINGS BELOW

In its January 10-16, 2003 issue, THE BOSTON PHOENIX, a weekly newspaper, published a "special report" authored by Kristen Lombardi. Written as an exercise in investigative journalism, the piece ran for nine pages under the title "Children at Risk." Its central thesis bemoaned what the reporter had determined to be an apparent trend in family courts: that when a mother accuses a father of child abuse in a child custody dispute, those courts, ill-equipped to handle such charges, often award full custody to the father. The article reviewed three scientific studies of custody-dispute outcomes and recounted the personal experiences of four families enmeshed in the system.

One such case history chronicled a custody clash between Sarah Fitzpatrick and Marc E. Mandel (who was, at the time, an assistant state's attorney in Maryland). That case history appeared under the subheading "Losing custody to a child molester." The story recounted the sordid battle waged by the couple over custody of their two minor children, A.R.M. and J.P.M. (pseudonymously referred to by Lombardi as "Amy" and "James"), and dwelt in some detail on Fitzpatrick's allegation that Mandel was a child molester. For example, it reported Fitzpatrick's suspicions about Mandel's relationship with J.P.M. and gave prominent play to a Baltimore County Department of Social Services (DSS) investigation into allegations that Mandel had abused his daughter from a previous marriage, A.N.M. In that regard, the article related that a "report conducted for the Baltimore County DSS determined that Mandel had assaulted" A.N.M. The article went on to state that despite the claims of abuse, a Maryland family court judge awarded Mandel full custody of A.R.M. and J.P.M. and denied Fitzpatrick any visitation rights, labeling her "a pathological liar, or a purposeful liar, or both."

After THE PHOENIX published the article in print and on the internet, Mandel began receiving negative work evaluations. He later left his post and became self-employed in the private practice of law.

Invoking diversity jurisdiction, see 28 U.S.C. § 1332(a), Mandel filed suit for defamation against, inter alia, THE PHOENIX, its various corporate personas, two of its editorial gurus (Peter Kadzis and Susan Ryan-Vollmar), and Lombardi (collectively, the defendants) in the United States District Court for the District of Massachusetts. Shortly after answering the complaint, the defendants moved for judgment on the pleadings or, in the alternative, summary judgment. Mandel cross-moved for partial summary judgment. The district court denied both motions, ordered discovery to be completed within three months, and offered to entertain renewed motions at that juncture.

The parties completed discovery and cross-moved for summary judgment. Following a hearing, the court denied the defendants' motion and granted Mandel's motion for partial summary judgment on the public-official issue. Mandel v. Boston Phoenix, Inc., 322 F.Supp.2d 39, 44 (D.Mass.2004). Reasoning that Mandel was only a low-level prosecutor who "did ordinary legal work," id. at 42, did not interact with the press, and did not assume a risk of diminished privacy through his employment, the court concluded that he was not a public official within the purview of the libel laws, see id. at 42-43.

The litigation morphed into a ten-day jury trial. Once Mandel had presented his case in chief, the defendants moved for judgment as a matter of law. See Fed. R.Civ.P. 50(a). The court granted that motion in part, concluding that Mandel had not adequately established actual malice.1 At the close of all the evidence, the defendants moved again for judgment as a matter of law. See id. The court denied that motion.

The court submitted the case to the jury, which found for Mandel and awarded him $950,000 in damages. As indicated on a special verdict form, it found two statements in the article actionable: (i) the subheading "Losing custody to a child molester" and (ii) the comment that "a July 2002 report conducted for the Baltimore County DSS determined that Mandel had assaulted his 10-year-old daughter from an earlier marriage. The...

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