SOUTH MIDDLESEX OPPORTUNITY COUNCIL v. TOWN OF FRAMINGHAM

A statement is "defamatory" if it could be read as discrediting the plaintiff "in the minds of any considerable and respectable class of the community." Noonan, 556 F.3d at 25 (quoting Disend v. Meadowbrook Sch., 604 N.E.2d 54, 55 (Mass. App. Ct. 1992)). A defamatory statement holds the plaintiff up to "scorn, hatred, ridicule, or contempt." Stone v. Essex County Newspapers, Inc., 330 N.E.2d 161, 165 (Mass. 1975). Summary judgment for the defendant is appropriate if the statement is not reasonably capable of having a defamatory meaning. Noonan, 556 F.3d at 25 (citing Sharratt v. Housing Innovations, Inc., 310 N.E.2d 343, 346 (Mass. 1974)).

As a defense to a defamation claim, a defendant may establish the truth of the statement in question. Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 42 (1st Cir. 1998) (citing Bander v. Metro. Life Ins. Co., 47 N.E.2d 595, 598 (Mass. 1943)). A Massachusetts statute, however, provides one exception to this rule: if the plaintiff proves that the defendant acted with "actual malice" in making the statement, then the defamation action may proceed whether or not the statement was false. Mass. Gen. Laws ch. 231, § 92 ("[T]he truth shall be a justification unless actual malice is proved."); Noonan, 556 F.3d at 26 (citing White v. Blue Cross Blue Shield of Mass., Inc., 809 N.E.2d 1034, 1036 n. 4 (Mass. 2004)). The meaning of "actual malice" in this particular context is "ill will," which is not the same as the meaning developed by the Supreme Court of the United States under federal constructional law in the context of public figures. Noonan, 556 F.3d at 29.

The First Amendment places an additional burden on plaintiffs pursuing, as here, a defamation action against public figures. When the plaintiff is a private individual, the plaintiff must simply show that the defendant was negligent in publishing the alleged defamatory statement. Stone, 330 N.E.2d at 168 n. 6. If, however, the plaintiff is a public figure, the plaintiff must show that the statement was made with actual malice under federal constitutional law. New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964). In the context of public figures, the constitutional "actual malice" standard requires a showing that the statement was made with knowledge of its falsity or with reckless disregard as to whether the statement was true or false. Id.

Whether the Plaintiffs must show that the statements were made with negligence, or instead must satisfy the higher standard of actual malice, depends on whether SMOC is characterized as a public figure.

The Defendants maintain that SMOC is a public figure, and therefore must show that the statements in question were made with actual malice. A general purpose public figure is one for which there is "clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society." Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974). Without general fame or notoriety, a plaintiff can only be considered a public figure if it "thrust[s] [it] to the forefront of particular public controversies in order to influence the resolution of the issues involved." Gertz, 418 U.S. at 345. This typically requires a voluntary assumption of a role of special prominence. Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 202 (1st Cir. 2006) (per curiam); see also Gertz, 418 U.S. at 345 (finding it "exceedingly rare" to become a public figure through no purposeful action of one's own).

Orr points out that SMOC relies on public funding and is a prominent corporate citizen of the Town with extensive property holdings. This, however, merely speaks to SMOC's relationship with some aspects of the public arena. Because the evidence does not indicate that SMOC has general fame or notoriety as an institution, the critical inquiry is whether SMOC has thrust itself into the public realm in order to influence a public issue.

Orr also refers to SMOC's voluntary involvement in the Planning Board's public review and approval process, its hiring of public relations firms, and its response to issues via the media. It is clear from the record that the Sage House relocation garnered considerable attention from citizen groups and occasionally the media, and that SMOC at times responded to these concerns using public channels. But "media attention does not alone transform a private controversy into a public one." Bowman v. Heller, 651 N.E.2d 369, 374 (Mass. 1995). Furthermore, a plaintiff's response to a defendant's prior defamatory statements does not qualify as thrusting oneself into public affairs. Grass v. News Group Publ'ns, Inc., 570 F. Supp. 178, 182-83 (S.D.N.Y. 1983).

Ultimately, determining whether a plaintiff is a public figure is, in most cases, a fact-specific inquiry, requiring an examination of the particular circumstances that gave rise to the alleged defamation. Gertz, 418 U.S. at 352 ("It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation."). Even if the Defendants had presented evidence from the record suggesting that SMOC had injected itself into the public issue of the Town's treatment of substance abuse residences and shelters, the facts in the record remain subject to considerable dispute among the parties.

The Defendants have not established as a matter of law that SMOC is a public figure. Consequently, for purposes of the summary judgment motion before me, the Defendants are not entitled to the daunting constitutional malice standard. Instead, they must establish as a matter of law that SMOC meet the lessor standard by showing that the Defendants were negligent in publishing the alleged false statements. Stone, 330 N.E.2d at 168 n. 6.

Because there are factual disputes surrounding the alleged negligence of all five Defendants, the Defendants cannot obtain summary judgment on these grounds.

Adams: Adams stated that he did not want the "voluntarily disabled" and "walking insults to the truly disabled" living in his neighborhood, but he acknowledged that he understood that individuals recovering from substance addiction were considered disabled under federal law. Adams stated that the Sage House had "numerous safety and health violations including spoiled food on the counters and use of prohibited heating equipment." He claims that the statement is supported by a report from the DPH, but the report indicates that the allegations were unfounded. These facts raise questions about whether Adams was negligent in ascertaining if his statements were true or false.

Esty: Esty is quoted in a MetroWest Daily News article as saying "I think this exposes the fact that there is an underlying plan . . . for designating Framingham as a place that would be suitable for centering a large population of arsonists, sex offenders and criminals." Although she claims that this statement was based on the contract documents with the DOC, she stated during her deposition that she had no information that established a relationship between sex offenders and the DOC contract. Such a statement must be found to have been made with reckless disregard of its truth or falsity.

Giombetti: The comment attributed to Giombetti by the MetroWest Daily News suggested that SMOC closed the Common Ground Shelter because it was "intimidated by the possibility of a lawsuit." Giombetti has not provided an explanation or evidence for his belief that litigation fears drove the decision to close the shelter. Such a statement may also be found to have been made with reckless disregard of its truth or falsity.

Laurora: Laurora's allegedly defamatory statement observed that "[i]t's interesting that Framingham town government at first rejected, then blessed and voted to give SMOC drug dealing employees a larger environment to ply their trade." The basis for this statement is apparently Orr's post on April 13, 2007, reliance on which would raise a factual dispute as to Laurora's negligence in making (or republishing) the statement.

Orr: Orr stated on June 17, 2007 that "[h]opefully, the staff people of Sage House at 517 Winter won't be involved in actually supplying drugs like the staff at Sage House on Clinton St did to the Shirley Prison." Orr claims that in making this statement, he relied on the contents of the DOC investigation, and on the DPH site visit. The DOC investigation, however, led to no arrests, and the police did not pursue the investigation. Orr provides no indication of any attempts to confirm his statement that Sage House employees had actually committed this act.

In addition, on March 22, 2007, Orr posted on the Frambors site that "SMOC was caught multiple times with their pants down (so to speak), secretly importing winos from Waltham and using the Store 24 as their drop-off point so that people wouldn't see them getting door-to-door service directly to the shelter." Orr admitted during his deposition that this statement was incorrect, and that he did not remember checking these facts before posting the statement. The record indicates at least a factual dispute as to whether Orr was negligent in making the statements in question.

Only Adams, Laurora, and Orr argue that some of their statements were not "of and concerning" SMOC, and thus cannot provide a cause of action for defamation against SMOC.

Adams: Adams claims that several of his allegedly defamatory statements are not in fact "of and concerning" SMOC. I address the individual statements in the attached Appendix, but briefly, there are factual disputes as to whether a reasonable reader would have understood the statements to be concerning SMOC. For example, when Adams posted that "such facilities . . . increase crime in the host community whenever someone is imported from one community to another," "such facilities" could have been read as SMOC in particular.

The one exception to this is Adams's Statement 4, which he posted on Aug. 8, 2005 that the "abundance of shelters in Framingham" caused "increase[s in] crime and school expenditures" and "weakens the town's ability to deal with those problems." SMOC fails to show how the phrase "abundance of shelters in Framingham" could mean SMOC in particular, and for that reason, I find as a matter of law this statement is not defamatory regarding SMOC.

Laurora: Laurora maintains that her statement involved only SMOC employees, not SMOC itself. But the statement can be read as being directed to SMOC as an institution, and how SMOC manages its personnel.

Orr: Orr maintains that Statements 1, 3, 7, and 9 were not of and concerning SMOC. In most of these statements, however, SMOC is either referred to explicitly (Statement 1) or referred to in related posts or headings (Statement 3, 7, 9). In Statement 7, for example, Orr posted that "[o]n an almost daily basis, we have crime being handled by our police force, committed by people who have been brought here by the social service agencies." The post, however, had the subject heading of "Another model SMOC client living in Framingham." A reasonable reader could infer that Orr was referring to SMOC when he described "social service agencies."

All the Defendants but Laurora claim that at least one of their statements was non-defamatory. For a statement to be defamatory in nature, it must discredit the plaintiff in some way. Noonan, 556 F.3d at 25. In the statements challenged by the Defendants, it remains a question of fact whether a jury could find them to hold SMOC up to "scorn, hatred, ridicule, or

contempt." Stone, 330 N.E.2d at 165.

Adams: Several of his statements, argues Adams, cannot be understood by a reasonable audience to have a defamatory meaning. Adams, however, has not proved the non-defamatory nature of these statements as a matter of law. For instance, when Adams stated that people would not have learned about the 517 Winter Street plans until "the buses arrived to drop off homeless drug addicts," and that SMOC asked the Winter Street seller to "keep their arrangement *secret*!", it is a factual question whether a reasonable reader could have understood this to mean that SMOC sought to operate the program surreptitiously without the Town's knowledge and outside the required procedures for development projects.

Esty: Esty claims that her Statement 3 is not defamatory because speculating as to SMOC's reasons for closing the shelter does not hold SMOC up to scorn or contempt. Although the statement could bear other non-defamatory meanings, I cannot say as a matter of law that the statement was not defamatory, e.g., by implying that the Common Ground Shelter had no proper basis for Dover Amendment status, and that SMOC feared discovery for running a program whose legal status was invalid.

Giombetti: Giombetti maintains that there is no defamatory sting in the statement that SMOC was "intimidated by the possibility of a lawsuit" involving the Common Ground Shelter. This could have a non-defamatory meaning — e.g., SMOC was afraid of the costs of litigation even though the lawsuit had no merit — but I cannot say it has a non-defamatory meaning as a matter of law. A reasonable reader would have understood this as suggesting that SMOC feared being discovered as running a non-compliant program.

Orr: Of his alleged defamatory statements, Orr maintains that Statements 1 and 12 had no defamatory meaning. Statement 1, from a May 21, 2005 Frambors post, stated that "SMOC has contributed to the entire downfall of Framingham by bringing other communities['] problem people to our town for the mere sake of assisting SMOC to sustain themselves," and that "[w]e now have sex offenders calling their SMOC residences home." This could be understood to be defamatory insofar as it suggests that SMOC targeted sex offenders as residents, and did so in order to serve its own institutional interests, rather than the community's or residents' interests. In Statement 12, Orr referred to a "long list of violent offenders that SMOC either has as clientele or wishes they had." This suggests that SMOC actively seeks violent offenders as residents, which could be understood as holding SMOC up to scorn for its attempts to increase the number of violent offenders in the neighborhood.

All of the Defendants argue that many of the statements were either factually true, or were statements of opinion or rhetoric whose truth or falsity cannot be established. The truth of the statement can be an affirmative defense to a defamation claim, Mass. Sch. of Law, 142 F.3d at 42, while statements of opinion cannot serve as a basis for a defamation cause of action. King v. Globe Newspaper Co., 512 N.E.2d 241, 243-44 (Mass. 1987).

Adams: Of the statements that Adams identifies as true or substantially true (Statements 1-5, 7-10, 12-20), Adams has not overcome the material factual disputes as to their accuracy. For example, he claimed in Statement 1 that "we" would not have learned about 517 Winter Street until the "buses arrived to drop off homeless drug addicts," but the record includes indications that SMOC did not keep the sale a secret. In Statement 16, he stated that SMOC allowed "a drug running operation to flourish right under their noses in a supposed drug rehab shelter." SMOC disputes, however, whether there is any evidence showing that Sage House employees were involved in the distribution of drugs to inmates, as all charges and investigation were dismissed.

Adams also identifies some of the statements as opinion based on disclosed, non-defamatory facts, or as rhetoric (Statements 6-8, 10-17, 19, 20a-f). Some of these statements are indeed opinions, and SMOC has not shown them to be false statements. When Adams stated that "[i]t's far more likely that [SMOC] would just use [61 Clinton St.] for something else, like another wet shelter," Adams is clearly stating an opinion about the probabilities of a future event. SMOC claims that the statement includes a claim that Sage House was a "wet shelter," rather than a dry program, but the word "another" merely indicates that one wet shelter already exists, not that the Sage House is a wet shelter. Also, when Adams stated facetiously that "STEPPS joins the rest of Framingham in mourning the passing of Jerry Desilets, former Town Moderator and SMOC's director of policy and planning," he was not making a statement of fact, but rather was using rhetoric to communicate a political point. Adams's Statements 6 and 21 are not actionable.

Esty: Esty claims all three of her statements are true, but the record indicates material factual disputes as to their truth. For instance, in Statement 1, she refers to SMOC's "underlying plan" for designating Framingham as suitable for "arsonists, sex offenders and criminals." This could imply that SMOC targeted these categories of individuals for placement in Framingham, and Esty has not pointed to evidence supporting this claim other than the RHP application, which does not refer to Framingham as a target for placement.

Giombetti: Giombetti's statement was that SMOC had been "intimidated by the possibility of a lawsuit," but he claims that he also stated that the timing of the SMOC announcement and Dover Amendment finding was a "coincidence," which is a factual claim undisputed by SMOC. Nevertheless, the reference to the lawsuit was included in the MetroWest Daily News quotation, and is a factual assertion whose truth is disputed by SMOC. Giombetti has not established the truth of the entire statement quoted in the article.

Laurora: Laurora argues that her statement is simply a response to Orr's post, and expresses an opinion, not a fact. In her April 14, 2007 post, Laurora restates what was said by an earlier posting, and she expresses strong disapproval regarding the information conveyed. A jury could find that Laurora, by republishing allegedly defamatory information conveyed in the earlier post, can be held separately liable. See Jones v. Taibbi, 512 N.E.2d 260, 264 (Mass. 1987).

Orr: Orr defends the truth of Statements 1, 2, and 5-14, and the non-actionable opinion or rhetoric expressed in Statements 1-4, 6-8, and 10. All of Orr's statements, with the exception of Statement 4, however, contain at least one factual assertion that is capable of being proved false. In Statement 4, Orr asserted that SMOC's "attempt to take over 517 Winter . . . will place a continuing drain on property values . . . [and] would further drain the resources of our educational system." This is a statement about the probabilities of future events, and one that was not capable of being proved false at the time that Orr made it. "The determination whether a statement is a factual

assertion or an opinion is a question of law if the statement unambiguously constitutes either fact or opinion." Aldoupolis v. Globe Newspaper Co., 500 N.E.2d 794, 796 (Mass. 1986). Because Orr's statement is unambiguously an expression of opinion about a future event, he cannot be held liable for defamation as to this statement.

The final threshold that remains for SMOC to survive summary judgment on the defamation claim is whether there is a factual dispute as to whether SMOC suffered damages from the alleged defamation. The Plaintiffs must prove that the publication of the defamatory statement was a "material element or substantial cause" of the damages. Tosti v. Ayik, 476 N.E.2d 928, 939 (Mass. 1985) (quoting Lawlor v. Gallagher Presidents' Report, Inc., 394 F. Supp. 721, 735 (S.D.N.Y. 1975)). Successful plaintiffs in a defamation suit are entitled to compensatory damages, which for individuals include "mental anguish, embarrassment, and humiliation," but for corporations "signify the more abstract damage to reputation." Dexter's Hearthside Rest., Inc. v. Whitehall Co., 508 N.E.2d 113, 116 (Mass. App. Ct. 1987). SMOC, as a corporate entity, might recover "for damage to its reputation," but cannot recover for mental suffering or "hurt feelings." Id.

Adams argues that SMOC cannot show any harm suffered as a result of the alleged defamatory statements, because SMOC received its requested permit for 517 Winter Street, did not lose its government contracts, and did not lose revenue as a result of the Defendants' comments. Damages, however, include harm to the plaintiff's reputation, and SMOC has adduced evidence indicating that the events in Framingham affected SMOC's reputation and activities in other towns. For example, the mayor of Gardner, Massachusetts, told a newspaper that SMOC's "modus operandi appears to be `shoving projects down the throats of communities,'" and that he did not want to see this happen in Gardner. Such evidence is sufficient to create disputes of material fact regarding the reputational damage caused to SMOC.

Adams and Orr claim that SMOC's reputation was already suffering at the statewide level and in other cities, and that harm to SMOC's name cannot be causally connected to statements made by the Defendants. But the content of the statements alleged here is particular to circumstances in Framingham, and a jury could find that the reputational harm suffered by the Defendants is distinct from criticism experienced elsewhere. In addition, the Defendants do not establish that SMOC's reputation was so reduced outside Framingham that any damages here would be nominal. This distinguishes the instant case from Jackson v. Longcope, 476 N.E.2d 617 (Mass. 1985), where the court was faced with the question of whether "a particular libel plaintiff may have such a notorious reputation that he is incapable of recovering damages." Id. at 619. The Jackson court noted that this may apply to a "habitual criminal" or a "criminal notorious for one criminal act," but nothing in that case suggests that such persons are comparable to an institution facing criticism in the public arena. Id.

Laurora notes that because her comment was a response to a prior post, no harm could be caused by this "subsequent commentary." Because, however, the republication of a defamatory statement can provide a basis for liability, Laurora has not established that as a matter of law her alleged republication caused no reputational damage to SMOC.

Orr argues that his statements are entitled to protection as petitioning conduct under the Noerr-Pennington doctrine. Orr notes that the Noerr-Pennington doctrine, which was developed in the antitrust context, has been extended to apply to defamation law. None of the cases cited by Orr, however, hold that the Noerr-Pennington doctrine is on its own a defense against a defamation claim. See Cheminor Drugs, Ltd. v. Ethyl Corp., 168 F.3d 119, 128 (3d Cir. 1999) (holding that if a case's federal antitrust claims and state law claims involve the same petitioning activity, then the state law claims can be dismissed under the Noerr-Pennington doctrine); Eaton v. Newport Bd. of Educ., 975 F.2d 292, 298 (6th Cir. 1992) (finding a defense to a § 1983 claim, involving liability for lobbying for a principal's discharge, to be analogous to the Noerr-Pennington doctrine, with no mention of defamation); Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155, 159-60 (3d Cir. 1988) (finding that both the Noerr-Pennington doctrine and defamation law under New York Times v. Sullivan provide separate protection of free expression on matters of public interest).

Although considerable First Amendment interests are relevant to defamation law, they do not provide immunity for defamatory statements. Rather, those interests have been accommodated in the defamation law framework articulated by the Supreme Court. See generally New York Times, 376 U.S. at 280.

For the reasons discussed more fully above, I DENY the Defendants' Motions for Summary Judgment, with three exceptions: I GRANT Silver's Motion for Summary Judgment (Docket No. 207); I GRANT Adams's Motion for Summary Judgment (Docket No. 205) with respect to Statements 4, 6, and 21 in Count VII; and I GRANT Orr's Motion for Summary Judgment (Docket No. 218) with respect to Statement 4 in Count VII.

Evidence presented in this case raises questions about the coarsening of civic discourse and the obstruction of the orderly process of civic governance. If established, the evidence may ultimately demonstrate that certain defendants, through abusive communications and improper efforts to manipulate the municipal permitting process, unlawfully violated the detailed legal constraints fashioned to assure that prejudice within a community not impede access to housing and related programs for those suffering from recognized disabilities such as alcoholism and addiction. There is mordant irony in the fact that the plaintiff has turned this litigation into the mirror image of the extended and costly administrative process to which it was subjected.

As this lengthy memorandum and my earlier memorandum in this matter make clear, the facts and the legal principles governing this dispute are complex. They have taken and will demand substantial resources by the parties to bring the case to formal judgment after trial. The parties seem bitterly entrenched in their respective positions. Perhaps at this point, with the potential for increased costs — both economic and personal — looming and the ultimate outcome by no means certain, more measured and sensible voices will come to the fore and less belligerent roles will be assumed in an effort to resolve this matter by some alternative to accumulating additional litigation expenses. Certainly, such voices and roles are needed to avoid

further debasement of civic discourse and diversion of civic resources from full attention to the orderly process of governance in the Town of Framingham.

The last inscription that a visitor to this courthouse encounters before passing through security on the way to the courtroom provides what appears to be especially pertinent advice. The inscription quotes former Congresswoman Barbara Jordan, at a gathering of fellow Boston University Law School alumni shortly before her death, urging those involved in narrow legal disputes to remain faithful to their larger community obligations. She said:

We live in community and each is not an atom of self-interest. What each one of us does has an impact on the rest of us. Therefore, the need for thoughtful judgment and wise counsel is always paramount.

No. Statement Defendant's Summary Judgment Ruling Response ADAMS'S STATEMENTS 1 On June 2, 2005, regarding 517 Winter • True • Truth disputed: Factual dispute as to Street: "If it hadn't been for the • Opinion, whether purchase was secret. `rumor mill' and some sharp neighbors vituperation (SAMF ¶¶ 793-97) on Ardmore, we would have learned about • Not • Not opinion: Secrecy of the purchase is this when the buses arrived to drop off defamatory capable of being proved false. homeless drug addicts." (Pls.' • Arguably defamatory: Could imply that Statement of Additional Material Facts SMOC sought to keep its plans for Sage ("SAMF") ¶ 804) House hidden from the public, contrary to legal requirements. 2 In a June 25, 2005 Frambors post: "SMOC • True • Truth disputed: Factual dispute as to . . . asked the seller of 517 Winter • Not whether purchase was secret. Street to keep their arrangement defamatory (SAMF ¶¶ 793-97) *secret*!" (SAMF ¶ 804) • Arguably defamatory: Could imply that SMOC sought to keep from the public its plans for Sage House, contrary to legal requirements. 3 In a July 24, 2005 Frambors post: • Not "of and • Of and concerning: Readers might "[W]hile such facilities are normally concerning" understand "such facilities" as deemed to be more effective that [sic] SMOC signifying SMOC facilities, given focus prison, they suffer from the same • True of the posts and news articles. (Pls.' problem as methadone clinics: they • Opinion Resp. Defs.' Statement of Undisputed increase crime in the host community • Not Facts ("Resp. SUF") ¶ 440) whenever someone is imported from one defamatory • Truth disputed: Disputes as to crime community to another." (SAMF ¶ 808) rate effects of SMOC. (SAMF ¶¶ 761-63, 848) • Not opinion: Comparison to methadone clinics and effect on crime rates are capable of being proved false. • Arguably defamatory: Could be understood as stating implicitly that SMOC residents commit crimes. 4 In an Aug. 8, 2005 Frambors post: The • Not "of and • Not of and concerning: Statement is "abundance of shelters in Framingham" concerning" made about the "abundance of shelters caused "increase[s in] crime and school SMOC in Framingham," and SMOC points to no expenditures" and "weakens the town's • True specific facts tying this statement to ability to deal with those problems." • Opinion SMOC's shelters. (SAMF ¶ 808) • Not • Truth disputed: Disputes as to the age defamatory of children at Sage House and their effect on school expenditures (SAMF 841), and links to crime (SAMF ¶¶ 761- 63, 848) • Not opinion: Effect of shelters on school expenditures is capable of being proved false. • Arguably defamatory: States that residents at shelters engage in crime. 5 In a Sept. 19, 2005 Frambors post: • True • Truth disputed: Record indicates that Adams expressed "concern[] that this • Not Sage House is for those recovering from lovely building is in danger, as SMOC defamatory substance abuse, not current addicts. is not known for keeping their (SAMF ¶¶ 817-18) properties in good condition. If their • Arguably defamatory: "[S]ingle parents plans go ahead, there will be 24-45 who are addicts" could suggest that children of unknown age housed there, Sage House houses current substance supervised by single parents who are abusers. addicts or recovering addicts." (SAMF ¶ 816) 6 On Sept. 26, 2006: "It is unlikely that • Opinion • Opinion: This is a statement of opinion SMOC would sell their property at 61 • Not about SMOC's probable use of the Clinton St. It's far more likely that defamatory property, not a statement of fact that they would just use it for something could be proved false. else, like another wet shelter." (SAMF • Arguably defamatory: Statement may ¶ 816) imply that Sage House is also a wet shelter. 7a On Jan. 2, 2006, regarding SMOC's • True • Truth disputed: Record indicates that contract with the DOC: "Now we have SMOC was aware of residents' criminal evidence of SMOC actively pursuing backgrounds, but no clear indication criminals as clients." (SAMF ¶ 886) that SMOC "actively pursu[ed]" them as residents. (Resp. SUF ¶¶ 422, 424) 7b Also on Jan. 2, 2006: "I am just done • Not of and • Of and concerning SMOC: Because the with helping criminals and drug addicts concerning statement here was made in conjunction find loopholes in the ADA and other SMOC with No. 7a, this could be read as such laws meant to help people with • Opinion referring to SMOC. real disabilities." (SAMF ¶ 886.) • Not opinion: Read with No. 7a, this could be understood as a factual claim about the legal methods used by SMOC and its residents. 8 On Jan. 2, 2006: SMOC was going to • True • Truth disputed: Disputed facts as to bring "sex offenders and arsonists" • Opinion, whether SMOC was bringing sex offenders into Framingham "for one of [SMOC's] rhetoric and arsonists into its residency world-famous drug programs." (SAMF ¶¶ programs. (Resp. SUF ¶ 424) 886, 893) • Not opinion: The "world-famous drug programs" comment is rhetoric, but the first part of the statement is an assertion of fact. 9 On Jan. 23, 2006, regarding 517 Winter • True • Truth disputed: SMOC adduces evidence Street: "SMOC has drawn up plans to • Opinion, that it never planned to subdivide the subdivide the lot into five lots, vituperation lot and expand services. (SAMF ¶¶ 798- perhaps turning it into a social • Not 800) service `campus' protected by the defamatory • Not opinion, vituperation: SMOC's plans overly broad protection of the Dover for the lot could be proved false. Amendment." (SAMF ¶ 835) • Arguably defamatory: Could be understood as SMOC expanding its programs beyond what it deserves under the zoning laws. 10 On May 4, 2006, regarding Sage House: • True • Truth disputed: SMOC disputes "I say it is not *technically* a wet • Opinion characterization of success rate and shelter since the Sage House has a relapse claims. (Resp. SUF ¶ 459.) success rate well under 50%, meaning • Not opinion: Success rate capable of 25-30 residents could relapse there being proved false. EACH YEAR." (SAMF ¶ 816) 11 On Feb. 16, 2007, regarding Framingham • True • Truth disputed: Factual disputes over social services: SMOC was "[c]learly • Opinion, types of persons brought to residences, the worst of the bunch" and was rhetoric and whether SMOC brought them "to live "bringing prostitutes, drug addicts, in Framingham." (Resp. SUF ¶ 461.) and other criminals from across the • Not opinion: The "worst of the bunch" state to live in Framingham." (SAMF ¶ comment is opinion, but the "bringing 893) prostitutes" comment is not. 12 On Apr. 15, 2007: SMOC was a "good ol' • True • Truth disputed: SMOC disputes boy network with virtually no • Opinion, suggestion of drug use and drug oversight" and whose "financial vituperative operation in the facility, and disputes mismanagement is also under • Not Adams's support for truth of claim. investigation by the State Auditor . . . defamatory (Resp. SUF ¶¶ 464, 465; SAMF ¶ 921.) . Many, if not most, of their `recovery • Not opinion: The description of a "good specialists' are former drug users ol' boy network with virtually no themselves. . . . [T]here could be more oversight" is an opinion, but the other people inside SMOC actively using statements are capable of being proved drugs, and SMOC doesn't appear to pay false. much attention." (SAMF ¶ 816.) • Arguably defamatory: The defamatory implication is that SMOC permits unlawful activity and does not manage its business properly. 13 On June 15, 2007: SMOC "lied about this • True • Truth disputed: Factual disputes as to to the state, by the way. They said • Opinion SMOC's compliance with regulations. that the building was up to code and (Resp. SUF ¶ 468) met all applicable regulations." (SAMF • Not opinion: The claim of SMOC's ¶ 827) dishonest statement is capable of being proved false. 14 On June 16, 2007, regarding a breaking- • True • Truth disputed: Factual dispute as to and-entering incident: "Thank you so • Opinion, whether SMOC caused either an increase much, SMOC, for causing this and so rhetoric in crimes or this crime in particular. many other incidents in the town of (SAMF ¶¶ 761-63, 848) Framingham. No wonder SMOC CEO Jim • Not opinion: The connection between Cuddy won't live in Framingham. He SMOC and the crime could be proved knows what SMOC is doing here." (Defs.' false. SUF ¶ 469) 15 On July 15, 2007 on the Frambors site: • True • Truth disputed: Factual disputes as to SMOC was not "watching over" its • Rhetoric, SMOC's supervision of its employees, employees, and Sage House had had vituperative and the nature of the violations "numerous safety and health violations reported by the DPH. (Resp. SUF ¶ 185) including spoiled food on the counters • Not rhetoric: Though the last sentence and use of prohibited heating could be read as rhetoric, the equipment. So it's not just heroin statement includes matter capable of addicts we need to worry about, but being proved false. drug smugglers on staff, rats and fire danger!" (SAMF ¶ 941) 16 In a second Frambors post on July 15, • True • Truth disputed: Factual disputes over 2007: SMOC had allowed a "drug running • Opinion, whether SMOC employees were running a operation to flourish right under their rhetoric "drug running operation" and tried to noses in a supposed drug rehab hide it from DPH. (Resp. SUF ¶ 185) shelter"; and SMOC had "tried to hide • Not opinion, rhetoric: The existence of it from the [DPH]. . . . This drug a drug operation and attempts to hide smuggling operation inside SMOC is just it from DPH are capable of being proved as shocking, and just as dangerous, as false. those horrific lapses by DSS involving the death or abuse of a child in their care." (SAMF ¶ 941) 17 In a post on Oct. 4, 2007: SMOC and Jim • True • Truth disputed: Factual disputes over Cuddy had "succeeded brilliantly in • Opinion, whether SMOC targeted groups for bringing in drunks, drug addicts, rhetoric transport and residency in Framingham. panhandlers . . . at least one (Resp. SUF ¶¶ 422, 424) prostitute (HIV Positive, of course) • Not opinion, rhetoric: SMOC's and one murderer" to Framingham. (SAMF activities are capable of being proved ¶ 893) false. 18 On Oct. 10, 2007: SMOC had "let their • True • Truth disputed: Record does not prove employees run drugs out of a drug rehab that employees were running drugs out shelter." (SAMF ¶ 941.) of SMOC residences. (Resp. SUF ¶ 185) 19 On Oct. 12, 2007: "Our town library has • True • Truth disputed: Factual dispute as to already become home to some of the • Opinion, whether SMOC brought sex offenders to `fragile people' . . . like sex rhetoric the Town, and abandoned services for offenders, who were brought here to be them. (Resp. SUF ¶¶ 422, 424) cared for by nonprofits and then • Not opinion: SMOC's targeting of sex dropped on this town's doorstep." offenders can be proven false. (SAMF ¶ 893) On the STEPPS site: STEPPS "helped • True • Truth disputed: Facts indicate that 20a expose SMOC's secret contract with the • Opinion contract was not "secret." Department of Corrections to house sex • Not • Not opinion: The secrecy of the offenders and arsonists." (SAMF ¶¶ defamatory contract and groups that would be 885, 893.) housed can be proven false. • Arguably defamatory: Describing the contract as "secret" could suggest clandestine, unlawful conduct. 20b "SMOC has three programs with the • True • Truth disputed: SMOC disputes that it Department of Corrections — Fresh • Opinion runs the Clean Slate program, and that Start, Clean Slate, and The Prisoner it targets arsonists and sex offenders. Rentry [sic] Program — to place people, • Not opinion: The programs and their like arsonists and sex offenders." objectives can be proven false. (SAMF ¶ 893.) 20c The title of the STEPPS web page: "SMOC • True • Truth disputed: SMOC's honesty on the misleads town in application." (SAMF ¶ • Opinion application subject to factual dispute. 827.) (Resp. SUF ¶ 488; SAMF ¶¶ 832-33) • Not opinion: Whether the SMOC was misleading with the Town is capable of being proved false. 20d On the STEPPS site: The cost of • Not "of and • Of and concerning: SMOC is referred to educating "just 25 children SMOC will concerning" by name, and the stated costs are based bring to Framingham to live in the Sage SMOC on Sage House. House if it is moved to 517 Winter • True • Truth disputed: Factual dispute as to Street" will be "over $6 million over • Opinion, educational costs created by SMOC twenty years. How many non-Framingham rhetoric institutions. (SAMF ¶¶ 754-59, 842) school children are living in tax- • Not • Not opinion: Costs can be proven false. exempt properties being educated at defamatory • Arguably defamatory: Could be read as others' expense?" (SAMF ¶ 840) accusing SMOC of having negative effects on the Town. 20e On the STEPPS site, under a photograph • True • Truth disputed: SMOC disputes whether of the Winter Street property: "Will • Opinion, Sage House is a "drug rehab shelter," SMOC turn this lovely historic property rhetoric rather than a residence for those on a quiet residential street into a • Not already in recovery. homeless drug rehab shelter?" (SAMF ¶ defamatory • Not opinion: The statement implies that 816) SMOC plans to use the property as a "drug rehab center," which is capable of being proved false. • Arguably defamatory: A reasonable reader could understand this as holding SMOC up to contempt for bringing a wet shelter into a residential neighborhood. 20f On the STEPPS site, under a photograph • True • Truth disputed: See Adams's Statement of the Winter Street property: SMOC • Opinion, No. 20e supra. "wants to turn this property into a rhetoric drug rehab shelter and flood our quiet • Not opinion: See Adams's Statement No. neighborhood of single family homes 20e supra. with transients, many addicted to heroine." (SAMF ¶ 816) 20g The "proposed drug rehab shelter at 517 • True • Truth disputed: Factual disputes over Winter Street is the same one that was both the status as a "drug rehab found to be operating a drug running shelter" and the "drug running operation to a state prison." (SAMF ¶ operation." 816) 21 On Aug. 16, 2007, on the STEPPS • Not "of and • Of and concerning: This could be website: "STEPPS joins the rest of concerning" understood as a statement about SMOC. Framingham in mourning the passing of SMOC Jerry Desilets, former Town Moderator • Rhetoric: This is not a statement of and SMOC's director of policy and truth, as there is no indication that planning." (SAMF ¶ 506) Adams believed Desilets to have died, but rather a rhetorical statement. ESTY'S STATEMENTS 1 In a quoted statement from MetroWest • True • Truth disputed: See Adams's Statement Daily News article on Dec. 31, 2005, No. 7a supra. regarding a contract between SMOC and the DOC: "I think this exposes the fact that there is an underlying plan . . . for designating Framingham as a place that would be suitable for centering a large population of arsonists, sex offenders and criminals." (SAMF ¶¶ 883, 904) 2 At a May 1, 2007 Town Meeting regarding • True • Truth disputed: See Adams's Statement the lodging house amendment: "I would No. 7a supra. like to address the question of due diligence in checking out the lodgers. That stems from the fact that it was uncovered that one of the agencies in Town has a contract with the Department of Corrections to house arsonists, sex offenders and criminals. . . . The due diligence concerns the check with CORI, which is a criminal record check on potential lodgers. And one of the reasons why we wanted to make sure that that was mentioned was that in the narrative when this particular non- profit looks for the contract with the Department of Corrections, they spelled out how they would train people to urge landlords to NOT check CORIs . . . well, I know you'd rather we didn't speak about this but it is very real in our community. . . ." (SAMF ¶ 904) 3 In a MetroWest Daily News article on • True • Truth disputed: Factual dispute as to Sept. 29, 2006, regarding SMOC's the reasons that SMOC decided to close decision to close the Common Ground • Not the Common Ground Shelter. (SAMF ¶¶ Shelter, Esty is quoted as making defamatory 669, 692.) several statements: (1) that they did so due to "the threat of legal action," • Arguably defamatory: A reasonable (2) that "[t]hey avoided a test case reader could understand this to suggest that would affect siting for similar that Common Ground Shelter was operated buildings across the state. They've had unlawfully, and that SMOC feared pressure before, which they've ignored, sanction if the shelter remained open. so there has to be another reason why they're closing the shelter at this point." (SAMF ¶ 953) GIOMBETTI'S STATEMENT 1 On Oct. 5, 2006, the MetroWest Daily • True • Truth disputed: See Esty's Statement News quoted Giombetti as saying that • Not No. 3 supra. SMOC closed the Common Ground Shelter defamatory • Arguably defamatory: See Esty's because it was "intimidated by the Statement No. 3 supra. possibility of a lawsuit." (SAMF ¶ 954) LAURORA'S STATEMENT 1 From an Apr. 14, 2007 post on the • Not "of and • Of and concerning: Statements about Frambors website: "It's interesting concerning" SMOC's employees could be read as also that Framingham town government at SMOC a statement about SMOC. first rejected, then blessed and voted • Opinion • Not opinion: Statement was a response to give SMOC drug dealing employees a to a prior post, not a statement larger environment to ply their trade. averring the truth of the prior post. As Jim Hanrahan, SMOC's lawyer and a But a jury could find that Laurora SMOC Executive Board of Directors effectively republished the statement member says, `There's no gratification of the alleged fact. other than the fact that the town is finally abiding by the law in granting this permit.' My question to Jim is, `Are your employees at least paying taxes on drugs they're peddling?'" (SAMF ¶ 950) ORR'S STATEMENTS 1 On May 21, 2005, Orr posted statements • Not authored • Not authored by Orr: Orr could be emailed to him by an anonymous Town by Orr liable for a republished defamatory employee, including the following • Not "of and statement that was sent to him and statements: (1) that the Town's concerning" which he republished. Jones v. Taibbi, education budget increases "with every SMOC 512 N.E.2d 260, 264 (Mass. 1987) student enrolled who now list [sic] • True • Of and concerning: SMOC is referred to their home as Framingham"; (2) "SMOC • Opinion explicitly. has contributed to the entire downfall • Not • Truth disputed: SMOC's effects on of Framingham by bringing other defamatory education expenses and its alleged communities['] problem people to our targeting of sex offenders are both town for the mere sake of assisting genuine issues of material fact. (SAMF SMOC to sustain themselves. . . . We ¶¶ 754-59, 842; Resp. SUF ¶¶ 422, 424) now have sex offenders calling their • Not opinion: The statement includes SMOC residences home where they are empirical claims that are capable of unknown to most residents, convicted being proved false. criminals now in town where they are • Arguably defamatory: A reasonable also unknown"; (3) "We have now had our reader could understand the statement property taxes increased, our children as casting shame and contempt on SMOC charged money for simply riding the for targeting sex offenders for school bus to school, . . . because of residence in the Town. SMOC induced infiltration." (SAMF ¶ 846) 2 In a Frambors post on May 15, 2006: • True • Truth disputed: See Adams's Statement SMOC was "troll [ing] the prison system No. 7a supra. to look for arsonists and sex criminals to bring to Framingham. . . ." (SAMF ¶¶ 889, 899) 3 In a May 23, 2006 Frambors post, • Not "of and • Of and concerning: The full post makes regarding SMOC's contract with the concerning" multiple references to SMOC, indicating Department of Corrections: Town SMOC that "agencies" here signify SMOC. residents should put up signs saying • Opinion • Not opinion: The statement makes the "Welcome To All Rapists And Arsonists"; factual claim that agencies and the DOC and "Framingham is not putting our brought these groups to the children in danger. That honorific goes neighborhood, which is capable of being to the Dept of Corrections and proved false. possibly/probably to the agencies that elect to engage in this type of business in our neighborhoods." (SAMF ¶¶ 890, 890) 4 On June 6, 2006: SMOC's "attempt to • Opinion • Opinion: A statement about the probable take over 517 Winter . . . will place a economic effect of the Sage House continuing drain on property values . . relocation is a matter of opinion, . [and] would further drain the which at the time the statement is not resources of our educational system." capable of being proved true or false. (SAMF ¶ 852) 5 On July 3, 2006: SMOC made clients call • True • Truth disputed: No evidence indicates from a payphone when they needed that SMOC staff directed calls to be medical assistance to "cut down the made in a particular way (Resp. SUF ¶ already huge number of calls for 522), and SMOC adduces evidence that assistance that were already SMOC does not seek landlords who do not happening"; and the contract with the perform CORI checks (SAMF ¶¶ 874-76). DOC "basically called for SMOC to troll the prison system looking for the worst violent offenders who needed help finding housing. Of course, SMOC has an `in' at finding housing for violent offendors [sic] since it maintains an entire department of people who specialize in maintaining a database of landlords who are known to not conduct CORI checks." (SAMF ¶ 899) 6 On Feb. 2, 2007: "SMOC has an entire • True • Truth disputed: Evidence disputes that division devoted to housing. This • Opinion SMOC had such a database. (SAMF ¶ 875) division maintains a database of • Not opinion: The statement about SMOC's landlords who are known to not conduct probable unhappiness is opinion, but CORI checks." Orr stated that SMOC was the first part of the statement probably "unhappy" with negative regarding the landlord database is not. publicity because it "caused a delay in getting the next substance abuser, sex offendor [sic], arsonist, or other violent offendor [sic] to enter the continuum of destruction." (SAMF ¶ 899) 7 On Feb. 15, 2007: "On an almost daily • Not "of and • Of and concerning: This could be read basis, we have crime being handled by concerning" as concerning SMOC as the heading was our police force, committed by people SMOC "Another model SMOC client living in who have been brought here by the • True Framingham." (Orr Aff. Ex. A at 11-12) social service agencies." (SAMF ¶ 899) • Opinion • Truth disputed: Factual disputes as to the criminal conduct of SMOC residents. • Not opinion: The statement is an empirical claim, capable of being proved false. 8 On Feb. 17, 2007: Residents could learn • True • Truth disputed: See Orr Statement No. 5 of "all the criminals being injected • Opinion supra. into our town by the agencies" by • Not opinion: The database comment is an "subtract[ing] all of the dislocated empirical statement, capable of being elbows" from the SSA Watch report, and proved false. that "SMOC (as one example) maintains a database of landlords whom are known to not conduct CORI checks." (SAMF ¶ 899) 9 In a Frambors post on Mar. 22, 2007: • Not "of and • Of and concerning: A reasonable reader SMOC "troll [s] the cities, the prisons, concerning" could have concluded that the statement everywhere they can to find substance SMOC referred to SMOC, given the content of abusers and violent criminal offenders • True the statement and its parallels in to place them here in Framingham. Once other statements about SMOC. they're here, they get some of the help • Truth disputed: See Adams's Statement they need in a `program' which lasts Nos. 8, 11 supra. for some period (maybe 6 weeks, 6 months, whatever) and then they graduate to the next program in their COC. That opens a spot in the previous program, which is then occupied by the next wino. . . ." (SAMF ¶ 899) 10 On Apr. 14, 2007: Sage House is a • True • Truth disputed: Existence of drug "program for drug addicts from out of • Opinion dealing is disputed (SAMF ¶¶ 921, 926- town . . . with their children being 27); effect on education costs is placed into our . . . school system at disputed (SAMF ¶¶ 754-59, 842). $13K per, with a substantial percentage • Not opinion: The factual assertions in of the employees who are `former' the statement are capable of being substance abusers being run by a proved false. company that is not willing to do an excellent job of running the operation, in a neighborhood that is terrified of loss of property value, on a lot that could allow more programs to be built, being run partly by former drug addicts who went to far and [sic] to actually deal drugs." (SAMF ¶¶ 854, 947) 11 On a June 17, 2007 Frambors post: "What • True • Truth disputed: Drug smuggling SMOC is trying to do to the Winter St. allegations are disputed (SAMF ¶¶ 921, neighborhood is to make money off of 926-27); criminal history and substance abusers, which is a polite recidivism rate of residents is word for heroin, crack, disputed or not established (SAMF ¶ methamphetamines, crank, etc. . . . 858). Things like some of the aforementioned drugs will make you a hopeless addict after at most just a few experiences. . . . What SMOC is looking at acquiring as clientele are the so-called `recovering substance abusers' who are running at a whopping 66% recidivism rate. These people have histories of violent crime, prostitution, burglary, but no matter how you look at it, unless they have a nice trust fund, the drugs cost money and whatever it takes to get that money is how the drugs get paid for (Hopefully, the staff people of Sage House at 517 Winter won't be involved in actually supplying drugs like the staff at Sage House on Clinton St did to the Shirley Prison.)" (SAMF ¶¶ 857, 947) 12 On a Frambors post on June 26, 2007: • True • Truth disputed: SMOC disputes There is a "long list of violent • Not characterization of programs as being offenders that SMOC either has as defamatory for "violent offenders." (Resp. SUF ¶ clientele or wishes they had." (SAMF ¶ 545; SAMF ¶¶ 868-69, 896) 899) • Arguably defamatory: A reasonable reader could read statement as expressing contempt for SMOC in wanting to bring violent offenders into the community. 13 In a June 27, 2007 Frambors post, • True • Truth disputed: See Orr's Statement No. commenting on recent breaking and 12 supra. entering on Winter Street: tied suspect to SMOC's "Ready Able Willing" and other day labor programs and accused SMOC of allowing program to "run with no discrimination as to who is viable for candidacy in this program"; stated that SMOC runs "multiple programs that bring violent offenders into Framingham as they get released from prisons all over the state." (SAMF ¶ 899) 14 On July 11, 2007: "SMOCs [sic] CORI • True • Truth disputed: Safety violations and responsibilities, as outlined by DPH SMOC's obligations to inform DPH are General Counsel to all vendors, were disputed. (Resp. SUF ¶¶ 185, 557-58; ignored and 25% of all Sage House SAMF ¶¶ 921, 926-27) employees were in violation of state regulations. SMOC chose not to inform DPH of these violations. SMOC safety violations at the Sage House were strictly against DPH safety rules and regulations. Some Sage House employees were working 15-17 hour shifts that are against recommendations of DPH. . . ."; and "SMOC turned a blind eye to their funding source and even lied to them in their attempts to keep DPH out of the loop on the Sage House drug smuggling." (SAMF ¶ 947)