03/02/2020 AYYADURAI v. FLOOR64, INC | 270 F.Supp.3d 343... | 20170907d75| Leagle.com In summary, defendants have not overcome the presumption that Massachusetts law should apply. Accordingly, the motions [270 F.Supp.3d 355] to strike will be denied, and the Court will apply Massachusetts law to the claims. B.  Libel (Count One) All defendants have moved to dismiss the libel claims against them for failure to state a claim on which relief can be granted. 5 They contend that the complaint fails to make plausible allegations that the statements at issue are false; that the statements are protected under the First Amendment; and that the complaint fails to plausibly allege that the statements were made with actual malice. Defendant Beadon has also moved to dismiss the libel claim based upon the article that he authored on the ground that it is barred by § 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1). 1.  Legal Framework "Modern defamation law is a complex mixture of common-law rules and constitutional doctrines." Pan Am. Sys., Inc. v. Atlantic Ne. Rails & Ports, Inc., 804 F.3d 59, 64 (1st Cir. 2015). Under Massachusetts law, "[d]efamation is the publication, either orally or in writing, of a statement concerning the plainti which is false and causes damage to the plainti ." Yohe v. Nugent, 321 F.3d 35, 39-40 (1st Cir. 2003) (citing McAvoy v. Shufrin, 401 Mass. 593, 597, 518 N.E.2d 513 (1988)). To establish a defamation claim, a plainti must satisfy four elements. First, to be "defamatory," the statement must "hold the plainti up to contempt, hatred, scorn, or ridicule or tend to impair his standing in the community, at least to his discredit in the minds of a considerable and respectable class in the community." Id. at 40 (quoting Tartaglia v. Townsend, 19 Mass.App.Ct. 693, 696, 477 N.E.2d 178 (1985)) (internal quotation marks omitted); Phelan v. May Dep't. Stores Co., 443 Mass. 52, 56, 819 N.E.2d 550 (2004). Second, to satisfy the "publication" element, "the statement must have been [made] to at least one other individual other than the one defamed." Yohe, 321 F.3d at 40 (citing Brauer v. Globe Newspaper Co., 351 Mass. 53, 56, 217 N.E.2d 736 (1966)); Phelan, 443 Mass. at 56, 819 N.E.2d 550. "Third, where the speech is a matter of public concern, a defamation plainti must prove not only that the statements were defamatory, but also that they were false." Yohe, 321 F.3d at 40 (citing Dulgarian v. Stone, 420 Mass. 843, 847, 652 N.E.2d 603 (1995)). 6 Fourth, "the plainti must show [270 F.Supp.3d 356] that he su ered special damages and must set forth these damages speci cally." Id. (citing Lynch v. Lyons, 303 Mass. 116, 119, 20 N.E.2d 953 (1939)). However, "the imputation of a crime is defamatory per se, requiring no proof of special damages." Phelan, 443 Mass. at 56, 819 N.E.2d 550. "On the constitutional side, the Supreme Court — reading the First Amendment (made binding on the states through the Fourteenth) — `has hedged about defamation suits' with lots of `safeguards designed to protect a vigorous market in ideas and opinions.'" Pan Am. Sys., 804 F.3d at 65 (quoting Desnick v. Am. Broad. Co., 44 F.3d 1345, 1355 (7th Cir. 1995)). First, as already noted, in cases involving matters of public concern, the plainti bears the burden of showing that the communications at issue are false. See Philadelphia Newspapers, 475 U.S. at 776, 106 S.Ct. 1558. Second, because statements must be false to be actionable, "defamatory statements are not punishable unless they are capable of being proved true or false." Pan Am Sys., 804 F.3d at 65. Accordingly, subjective statements and statements of opinion are protected under the First Amendment as long as they do not "present[] or impl[y] the existence of facts which are capable of being proven true or false." Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 127 (1st Cir. 1997); Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Similarly, vague language that is subject to multiple interpretations is generally not actionable. See Gray v. St. Martin's Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000); Levinsky's Inc., 127 F.3d at 129. Third, the First Amendment also protects "statements that cannot `reasonably [be] interpreted as stating actual facts' about an individual," including "imaginative expression" and "rhetorical hyperbole." Milkovich, 497 U.S. at 20, 110 S.Ct. 2695 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)) (alteration in original). Finally, "where a statement of `opinion' on a matter of public concern reasonably implies false and defamatory facts regarding public gures or o cials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth," or, in other words, with "actual malice." Id. Here, the principal dispute is not whether plainti has satis ed the traditional, common-law elements of a defamation claim, but on whether the speech at issue is protected under the First Amendment. 2.  Whether the Heightened Standards for "Public Figures" and "Matters of Public Concern" Apply As a preliminary matter, the Court must determine whether plainti matter of public concern. is a public gure and whether the subject matter of the statements at issue is a a.  Public Figure In the interest of protecting public debate, the First Amendment prohibits public o cials or public gures from recovering damages for defamatory statements unless they can "prove[] that the statement[s] [were] 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) (applying that standard to public o cials); accord Curtis Publ'g Co. v. Butts, 388 U.S. 130, 154-55, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (applying same standard to public gures); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). "Public o cials" are generally limited to high-level government employees, see Stone v. Essex Cnty. Newspapers, Inc., [270 F.Supp.3d 357] 367 Mass. 849, 863, 330 N.E.2d 161 (1975), while "public gures" include those who "command[] su cient continuing public interest and [have] su cient access to the means of counter-argument to be able to expose through discussion the falsehood and fallacies of the defamatory statements." Curtis Publ'g Co., 388 U.S. at 155, 87 S.Ct. 1975. Public gures can be either "general-purpose public gure[s]" — those who have achieved "such pervasive fame or notoriety" that they are public gures "for all purposes and in all contexts" — or "limited-purpose public gure[s]" — those who "voluntarily inject[]" themselves or are "drawn into a particular public controversy" and thereby become public gures "for a limited range of issues" de ned by their "participation in the particular controversy giving rise to the defamation." Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 13 (1st Cir. 2011) (quoting Gertz, 418 U.S. at 351-52, 94 S.Ct. 2997). The controversy at issue "must predate the alleged defamation." Id. at 14. The parties do not dispute that plainti is at least a "limited-purpose" public gure for the purpose of the controversy over who invented e-mail. Through his own actions, including publishing books, participating in interviews, and posting on his own website, he has clearly "thrust [himself] to h f f " f h "i d i h l i f h i i l d" i i h h https://www.leagle.com/decision/infdco20170907d75 4/15