03/02/2020 AYYADURAI v. FLOOR64, INC | 270 F.Supp.3d 343... | 20170907d75| Leagle.com the forefront" of the controversy "in order to in uence the resolution of the issues involved" in it. Gertz, 418 U.S. at 345, 94 S.Ct. 2997. Furthermore, the complaint itself alleges that he "is a world-renowned scientist, inventor, lecturer, philanthropist and entrepreneur." (Compl. ¶ 1). Accordingly, because plainti is a public gure, the complaint must plausibly allege actual malice. b.  Matter of Public Concern The First Amendment also requires that if the statements at issue relate to matters "of public concern," then the "plainti [] must shoulder the burden of showing that the comments are false." Pan Am Sys., 804 F.3d at 66. "To qualify as a matter of public concern, the speech (based on the content, form, and context) must touch on issues in which the public (even a small slice of the public) might be interested, as distinct, say, from purely personal squabbles." Id. Matters of public concern are "those that can be `fairly considered as relating to any matter of political, social, or other concern to the community." Levinsky's, 127 F.3d at 132. "[T]he relevant community need not be very large and the relevant concern need not be of paramount importance or national scope. Rather, `it is su cient that the speech concern matters in which even a relatively small segment of the general public might be interested.'" Id. (quoting Roe v. City of San Francisco, 109 F.3d 578, 585 (9th Cir. 1997)). Here, the record clearly establishes that the statements at issue involve a matter of public concern. The complaint refers to numerous articles (in addition to those authored by defendants) discussing plainti 's claim to have invented e-mail. (See Compl. ¶¶ 18-21). Furthermore, a number of the challenged comments were made in response to other articles and television programs discussing, and supporting, plainti 's claim. Finally, the number of reader comments posted in response to defendants' articles indicates that at least "a relatively small segment of the general public" is interested in the topic of who invented e-mail. See Levinsky's, 127 F.3d at 132. Accordingly, the statements at issue relate to matters of public concern, and plainti therefore bears the burden of establishing their falsity. [270 F.Supp.3d 358] 3.  Whether the Complaint Plausibly Alleges Falsity To survive a motion to dismiss, a complaint challenging statements made about a matter of public concern must not only allege that the statements are false, but also provide "factual underpinning[s] to support that claim." Pan Am Sys., Inc. v. Hardenbergh, 871 F.Supp.2d 6, 16 (D. Me. 2012) (holding that mere allegations that statements are false is insu cient under Iqbal and Twombly). Here, the complaint alleges that plainti "created email: a computer program that created an electronic version of a paper-based intero ce mail system," and that "[h]e was the rst person to create [the term `email']." (Compl. ¶¶ 13, 16). Whether those allegations are su cient to satisfy plainti 's burden to allege falsity with factual speci city is far from clear. As set forth below, the articles at issue do not dispute that plainti created an e-mail system. Rather, they dispute whether plainti should properly be characterized as the inventor of e-mail based on that creation. Accordingly, it is not clear that the allegations in the complaint are su cient to show that the statements at issue are false. In any event, even assuming that the allegations of falsity are su cient, the challenged statements are nonetheless protected under the First Amendment. 4.  Whether the Allegedly Defamatory Statements Are Protected Under the First Amendment a.  Statements That Plaintiff Did Not Invent E-Mail The majority of the allegedly defamatory statements identi ed in the complaint state, in various ways, that plainti 's claim to have invented e-mail is false. (See, e.g., Compl. ¶¶ 34(c) ("fake"); 36(a) ("fraudulent[]"); 37(e) ("a lie"); 43(a) ("bogus")). For the following reasons, those statements are protected because they are not provably false, are subjective statements that do not imply knowledge of objective facts, or are statements involving gurative language or hyperbole. (1)  Statements That Are Not Capable of Being Proved True or False "[D]efamatory statements are not punishable unless they are capable of being proved true or false." Pan Am Sys., 804 F.3d at 65. The statements here are not capable of being so proved. First, by its nature, the question of who invented e-mail is not subject to one, and only one, "true" answer. The answer depends upon how "e-mail" itself is de ned. Plainti de nes "e-mail" to include features such as an inbox, outbox, folders, a "to:" line, a "from:" line, a "subject:" line, the body of the message and the ability to include attachments, and the ability to copy ("cc") or blind copy ("bcc") other recipients. (See Compl. ¶ 13). However, that is not the only de nition. For example, the online Merriam-Webster dictionary de nes "e-mail" in far more general terms as "a means or system for transmitting messages electronically (as between two computers on a network." E-mail, MERRIAM-WEBSTER, https://www.merriamwebster.com/dictionary/e-mail (last visited Aug. 31, 2017). Similarly, in the context of a patent dispute, the Federal Circuit has held that "a person of ordinary skill in the art would have recognized that an electronic mail message must include a destination address and must have the capacity to include an address of an originating processor, message content (such as text or an attachment), and a subject." In re NTP, Inc., 654 F.3d 1279, 1289 (Fed. Cir. 2011). Accordingly, whether plainti 's claim to have invented e-mail is "fake" depends upon the operative de nition of "e-mail." Because that de nition does not have a single, objectively correct answer, [270 F.Supp.3d 359] the claim is incapable of being proved true or false. Second, many of the statements at issue are incapable of being proved false by virtue of the language that they use. The First Circuit has held that whether something is a "fake" or a "phony" may be "unprovable, since those adjectives admit of numerous interpretations." Phantom Touring, Inc. v. A liated Publ'ns, 953 F.2d 724 728 (1st Cir. 1992); accord Levinsky's, 127 F.3d at 129-130 (holding that use of the word "trashy" to describe a clothing store is not actionable, and stating that "[t]he vaguer a term, or the more meanings it reasonably can convey, the less likely it is to be actionable"). 7 Similarly, in McCabe, the First Circuit held that because "the word `scam' does not have a precise meaning[,] ... the assertion "X is a scam" [is] incapable of being proved true or false." McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987). There, an article referred to a timeshare resort development owned by the plainti as a "scam." Id. at 840-41. In holding that the use of the word was not actionable, the court explained: Rattiner extensively and accurately described his encounter with the resort salespeople thereby disclosing the basis for his assertion that it was a https://www.leagle.com/decision/infdco20170907d75 5/15