Stanton v. Metro Corporation

United States Court of Appeals
For the First Circuit

No. 05-1552

STACEY STANTON,

Plaintiff, Appellant,

v.

METRO CORPORATION,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and DiClerico,* District Judge.

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.

February 23, 2006

*
Of the District of New Hampshire, sitting by designation.
 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

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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

1
Because the parties and the district court refer to this
statement as “the disclaimer,” we adopt the same shorthand for
purposes of our discussion here.

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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

2
The article, which in its entirety occupies all or part of
seven pages, includes four additional photographs of young people,
none of which is accompanied by a caption or other explanatory
text.

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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

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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, 126 S. Ct. 829 (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 (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

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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.

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 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 article and the photograph, at least in

the mind of the reasonable reader.” Id. We believe that the

district court’s calculus placed undue weight on the disclaimer in

contravention of Massachusetts law.

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 We begin by focusing on the appropriate inquiry. We are

not called upon to determine the ultimate issue of whether the

article is defamatory, but to answer the “threshold question” of

“‘whether [the] communication is reasonably susceptible of a

defamatory meaning . . . .’” Amrak Prods., Inc. v. Morton, 410

F.3d 69, 72 (1st Cir. 2005) (quoting Phelan v. May Dep’t Stores

Co., 443 Mass. 52, 56-57, 819 N.E.2d 550, 554 (Mass. 2004)). If

the answer to this question is “yes,” then the ultimate issue of

whether the article is defamatory is not the court’s to decide:

“‘[w]here the communication is susceptible of both a defamatory and

nondefamatory meaning, a question of fact exists for the jury.’”

Phelan, 443 Mass. at 56-57, 819 N.E.2d at 554 (quoting Jones v.

Taibbi, 400 Mass. 786, 791-92, 512 N.E.2d 260, 264 (Mass. 1987));

see also Draghetti v. Chmielewski, 416 Mass. 808, 811, 626 N.E.2d

862, 866 (Mass. 1994); Restatement (Second) of Torts § 614 (1977).

If the answer is “no,” however, the defamation claim should be

dismissed. See Amrak, 410 F.3d at 72 (citing Brauer v. Globe

Newspaper Co., 351 Mass. 53, 55, 217 N.E.2d 736, 738 (Mass. 1966)).

“A communication is susceptible to defamatory meaning if

it ‘would tend to hold the plaintiff up to scorn, hatred, ridicule

or contempt, in the minds of any considerable and respectable

segment in the community.’” Amrak, 410 F.3d at 72 (quoting Phelan,

443 Mass. at 56, 819 N.E.2d at 553) (further internal quotation

marks omitted); see also Mass. Sch. of Law at Andover, Inc. v. Am.

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Bar Ass’n, 142 F.3d 26, 42 (1st Cir. 1998) (applying Massachusetts

law); Milgroom v. News Group Boston, Inc., 412 Mass. 9, 12, 586

N.E.2d 985, 988 (Mass. 1992); Smith v. Suburban Rests., Inc., 374

Mass. 528, 529, 373 N.E.2d 215, 217 (Mass. 1978); Stone v. Essex

County Newspapers, 367 Mass. 849, 853, 330 N.E.2d 161, 165 (Mass.

1975). In making this assessment, however, “[t]he communication

must be interpreted reasonably,” and can be ruled defamatory only

if it would lead “a reasonable reader to conclude that it conveyed

a defamatory meaning.” Amrak, 410 F.3d at 72 (internal quotation

marks omitted); see also Foley v. Lowell Sun Publ’g Co., 404 Mass.

9, 11, 533 N.E.2d 196, 197 (Mass. 1989); Restatement (Second) of

Torts § 563 cmt. c (1977).

Although the district court correctly articulated these

principles in its decision, it strayed from them in analyzing the

publication at issue. The district court reasoned that, since “the

disclaimer directly contradicts the otherwise-defamatory connection

between the photograph and the text,” the article could be

susceptible to a defamatory meaning only if “a reasonable reader

would overlook the disclaimer, misunderstand it, or fail to give it

credence.” 357 F. Supp. 2d at 381. According to the district

court, no reasonable reader could do so because the disclaimer

appears on the first page of the article and “[c]ertainly, the

reasonable (or average) reader can be expected to read at least the

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first page of a six-page article.” Id. It was here that the

district court erred.

While we acknowledge that the position of an item in a

newspaper or magazine can bear on the question of defamatory

import, see Robert D. Sack, Sack on Defamation: Libel, Slander,

and Related Problems § 2.4.2, at 2-19 (2004), we cannot assume, as

the district court did, that placing a disclaimer on the first page

of an article itself ensures that a reasonable reader will see it.

Instead, we must examine the article “‘in its totality in the

context in which it was uttered or published’” and “‘consider all

the words used, not merely a particular phrase or sentence.’”

Amrak, 410 F.3d at 73 (quoting Foley, 404 Mass. at 11, 533 N.E.2d

at 197) (further internal quotation marks omitted); see also Salvo

v. Ottaway Newspapers, Inc., 57 Mass. App. Ct. 255, 260, 782 N.E.2d

535, 540 (Mass. App. Ct. 2003); Restatement (Second) of Torts § 563

cmt. d (1977). Likewise, though we must “give weight to cautionary

terms used by the person publishing the statement,” Myers v. Boston

Magazine Co., 380 Mass. 336, 341-42, 403 N.E.2d 376, 379 (Mass.

1980), the non-defamatory character of a statement will rarely

depend solely on the presence of qualifying language. See, e.g.,

Cole v. Westinghouse Broad. Co., 386 Mass. 303, 309-12, 435 N.E.2d

1021, 1025-27 (Mass. 1982) (considering speaker’s characterization

of statement about plaintiff’s firing as “unofficial” as one factor

in whether statement defamatory); Restatement (Second) of Torts

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§ 563 cmt. c (1977) (“A conditional or alternative statement may be

defamatory if, notwithstanding its conditional or alternative form

it is reasonably understood in a defamatory sense.”).

Here, the disclaimer occupies the field between the body

of the story and the byline, making it easy enough to overlook

between the larger fonts of both.3 The disclaimer is also

separated from the column of text by a horizontal line, accompanied

by an arrow directing the reader to turn to the next page, where

the story continues. We cannot say that no reasonable reader would

follow this visual signal and simply flip to the next page after

reading the entirety of the text on the first page, but before

reaching the disclaimer.

Nor can we say that any reasonable reader who notices the

disclaimer would necessarily read the crucial second sentence,

i.e., “[t]he individuals pictured are unrelated to the people or

events described in this story.” It is at least conceivable that

a reader might take the first sentence of the disclaimer, which

states that “[t]he photos on these pages are from an award-winning

five-year project on teen sexuality by photojournalist Dan Habib,”

as a satisfactory explanation of the photographs and therefore stop

reading the disclaimer before the second sentence. Such a reader

3
When the first page of the article is reproduced on standard
8½-by-11-inch paper, the three sentences of the disclaimer together
take up only one-half of a column inch, contrasted with the five
and one-half column inches consumed by the headline and superhead.

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would thus remain under the impression that the teenagers depicted

in the photograph have some connection to the accompanying story.

Beyond the text and layout of the article itself, we must

also consider “‘the medium by which the statement is disseminated

and the audience to which it is published’” in assessing its

amenability to a defamatory meaning. Lyons v. Globe Newspaper Co.,

415 Mass. 258, 263, 612 N.E.2d 1158, 1162 (Mass. 1993) (quoting

Fleming v. Benzaquin, 390 Mass. 175, 180-81, 454 N.E.2d 95, 100

(Mass. 1983) (further internal quotation marks omitted)); see also

Restatement (Second) of Torts § 563, cmt. d (1977). We note in

this regard that the story appeared in Boston magazine, which Metro

describes as “a general interest regional magazine . . . .” As the

Restatement notes with regard to similar periodicals, “the public

frequently reads only the headline of the article or reads the

article itself so hastily or imperfectly as not to realize its full

significance.” Restatement (Second) of Torts § 563, cmt. d (1977).

In light of this observation, we agree with the district court that

“some percentage of readers who see the article, particularly

casual readers who only glance at it or skim it, will ignore the

disclaimer.” 357 F. Supp. 2d at 381.

We have difficulty, however, in reconciling this aspect

of the district court’s analysis with its conclusion that no

reasonable reader would disregard the disclaimer. The district

court appears to have reasoned that the “percentage” of “casual

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readers” who would disregard the disclaimer was not sizeable enough

to represent what it called “the reasonable (or average) reader

. . . .” 357 F. Supp. 2d at 381. But “[w]ords may be actionable

even if they do not tend to damage a plaintiff’s reputation or hold

him up to ridicule in the community at large or among all

reasonable people; it is enough to do so among a considerable and

respectable class of people.” Smith, 374 Mass. at 530, 373 N.E.2d

at 217. Accordingly, in assessing whether a publication is

susceptible to a defamatory meaning, it is not dispositive that a

numerical majority of its audience would arrive at a non-defamatory

interpretation. See King v. Globe Newspaper Co., 400 Mass. 705,

717-19, 512 N.E.2d 241, 248-49 (Mass. 1987) (reversing

determination that article not susceptible to defamatory meaning

based on views of “average reader” where reasonable that

“considerable and respectable segment of the community” would

nevertheless read article as discrediting plaintiff); Restatement

(Second) of Torts § 559 cmt. e (1977) (“defamation is not a

question of majority opinion”).

Metro rejoins that, given the “express disclaimer,” any

reading of the article as defamatory toward Stanton is necessarily

incorrect, so “it does not matter whether a ‘considerable’ number

of people might unreasonably misunderstand the publication in such

a way . . . .” But determining whether an allegedly defamatory

statement can reasonably bear that construction as matter of law

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should not be confused with a search for its meaning in the

objective sense. As the Supreme Judicial Court has explained,

Whether a publication is defamatory or not presents a
question as to the meaning of words which differs from
that presented when a written contract comes before the
court for construction. In the latter case, the question
is normally, what meaning a reasonable man, knowing all
the relevant circumstances, give [sic] to the words of
the document. But a writing is a libel if, in view of
all relevant circumstances, it discredits the plaintiff
in the minds, not of the court, nor of wise, thoughtful,
and tolerant men, nor of ordinary reasonable men, but of
any considerable and respectable class in the community.

Ingalls v. Hastings & Sons Publ’g Co., 304 Mass. 31, 33, 22 N.E.2d

657, 658-59 (Mass. 1939) (internal citations and quotation marks

omitted); accord Celle v. Filipino Reptr. Enters. Inc., 209 F.3d

163, 177 (2d Cir. 2000) (“the words are to be construed not with

the close precision expected from lawyers and judges but as they

would be read and understood by the public to which they are

addressed”) (internal quotation marks and emphasis omitted); Sack,

supra, § 2.4.2, at 2-21 (“What counts is not the painstaking

parsing of a scholar in his study, but how the newspaper article is

viewed through the eyes of a reader of average interests.”)

(internal quotation marks omitted).

Thus, in deciding whether a statement is susceptible to

a defamatory interpretation, the court must gauge the

reasonableness of the interpretation based on what a considerable

and respectable segment of the community would make of the

statement. Our recent decision in Amrak makes this clear. There,

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the plaintiff claimed that the defendants had “portrayed [him] as

a homosexual by miscaptioning a picture of a homosexual individual

with [the plaintiff’s] name” in their publications. 410 F.3d at

71. The caption described the plaintiff as the “secret lover and

one-time bodyguard” of pop star Madonna, but the accompanying

photograph showed her in the company of one of her backup dancers,

Jose Guitierez, who was not mentioned or described in the caption

but who the plaintiff alleged was an “outspoken homosexual.” Id.

We concluded that the publication in Amrak was not

reasonably susceptible to a defamatory meaning because, to infer

from the publication that the plaintiff was a homosexual, a reader

would have to “follow Madonna and her cohort closely enough to

recognize Guitierez as a gay man, but not closely enough to know

Guitierez’s name or what [the plaintiff] looks like. Few, if any,

readers would fall into this considerable and respectable segment

in the community.” Id. at 73 (internal quotation marks omitted).

Here, in contrast, we cannot say as a matter of law that too few

readers would overlook the disclaimer to constitute a considerable

and respectable segment of the community. The article is thus

reasonably susceptible to a defamatory meaning.

In reaching this conclusion, we do not mean to suggest

that language in the nature of a disclaimer can never serve to

render a statement incapable of conveying a defamatory meaning.

See, e.g., Myers, 380 Mass. at 341-43, 403 N.E.2d at 379-80 (ruling

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that statement describing plaintiff as “only newscaster in town who

is enrolled in a course for remedial speaking” could not reasonably

be understood as defamatory in light of conspicuous language and

accompanying cartoons “suggest[ing] that the expressed opinions

will have an especially humorous inclination and fanciful tone”).

We simply recognize that, given the placement of the disclaimer in

the article and the nature of the publication in general, a

reasonable reader could fail to notice it. As we said in Amrak,

“[c]ontext matters,” 410 F.3d at 72, and our examination of this

article in context leads us to conclude it is reasonably

susceptible to a defamatory meaning.

We also recognize that, as Metro argues, the article

draws no literal connection between the subjects of the photograph

and the subjects of its story. Under Massachusetts law, however,

a statement need not explicitly refer to the plaintiff to

constitute defamation. See Eyal v. Helen Broad. Corp., 411 Mass.

426, 430-31, 583 N.E.2d 228, 230-31 (Mass. 1991); New England

Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395

Mass. 471, 480, 480 N.E.2d 1005, 1011 (Mass. 1985); accord

Restatement (Second) of Torts § 564 cmt. b (1977). “‘A plaintiff

may establish that the defendant’s words were of and concerning the

plaintiff by proving at least that the defendant was negligent in

publishing words which reasonably could be interpreted to refer to

the plaintiff.’” Reilly v. Associated Press, 59 Mass. App. Ct.

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764, 777, 797 N.E.2d 1204, 1215 (Mass. App. Ct. 2003) (quoting New

England Tractor-Trailer, 395 Mass. at 479, 480 N.E.2d at 1011)

(bracketing omitted), rev. denied, 441 Mass. 1103, 803 N.E.2d 33

(Mass. 2004); see also Elm Med. Lab., Inc. v. RKO Gen., Inc., 403

Mass. 779, 785, 532 N.E.2d 675, 679 (Mass. 1989). Defamation can

therefore arise from the publication of the plaintiff’s photograph

in conjunction with a defamatory statement, even in the absence of

any express textual connection between the statement and the

photograph. Mabardi v. Boston Herald-Traveler Corp., 347 Mass.

411, 413-14, 198 N.E.2d 304, 306 (Mass. 1964); Morrell v. Forbes,

Inc., 603 F. Supp. 1305, 1307 (D. Mass. 1985).

Like the question of whether a communication can

reasonably be understood to be defamatory, whether a communication

can reasonably be understood to be of and concerning the plaintiff

depends on the circumstances. New England Tractor-Trailer, 395

Mass. at 478 n.5, 480 N.E.2d at 1010 n.5 (quoting Restatement

(Second) of Torts § 564 cmt. b (1977)). Considering all the

circumstances of the article’s publication--save the disclaimer--

the district court concluded that based “on the juxtaposition of

the text and the photograph . . . , a reasonable reader could

conclude that the teenage girl depicted in the photograph [i.e.,

Stanton] is sexually active and engages in at least some form of

sexual misconduct.” 357 F. Supp. 2d at 381.

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 Essentially for the reasons stated by the district court,

see 357 F. Supp. 2d at 378-79, we agree with this determination.4

We go further, however, and say that the presence of the disclaimer

does not permit the conclusion, as a matter of law, that the

article is not of and concerning Stanton. “A defamatory comment is

made ‘of and concerning’ the person to whom the reader or

recipient, correctly or mistakenly but reasonably, understands it

was intended to refer.” Reilly, 59 Mass. App. Ct. at 777, 797

N.E.2d at 1215 (emphasis added). As we have explained, a

reasonable reader could ignore the disclaimer, leaving the article

with the impression–-incorrect, but not unreasonable--that Stanton

is the subject of the unflattering statements set forth in its

text.5 Once again, we do not intimate that this interpretation is

4
We find the district court’s incredulousness at “why was this
photograph used to illustrate this article about sexual misconduct,
if there is no connection between the two?,” 357 F. Supp. 2d at
379, particularly incisive in this regard.
5
Metro questions the district court’s reliance on Mabardi,
where the Supreme Judicial Court discerned a reasonable defamatory
meaning in the publication of the plaintiff’s photograph above a
caption identifying him only by name and under the headline,
“Settlement Upped $2,000–-$400 Kickback Told.” 347 Mass. at 412,
198 N.E.2d at 305. Metro seeks to distinguish Mabardi primarily on
the ground that the court there noted the absence of any “textual
reference” clarifying the plaintiff’s lack of involvement in the
malfeasance described in the article, id., 198 N.E.2d at 306, while
the Boston magazine article bore a disclaimer to that effect.
Again, because a reasonable reader could miss the disclaimer, this
argument cannot carry the day. Metro also points out that its
article, unlike the publication in Mabardi, did not identify
Stanton by name. We view this as insignificant in light of the
fact that Stanton is plainly recognizable in the large photograph
occupying the first one and one-half pages of the article.

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the only reasonable reading of the article. We say only that “[a]t

this very preliminary stage, it does not appear beyond doubt that

[Stanton] will be unable to prove a set of facts that would support

a finding that [Metro’s] statements were ‘of and concerning [her]’

under this standard.” Eyal, 411 Mass. at 432, 583 N.E.2d at 231.

Metro also contends that Stanton’s theory that running

her photograph with the article “insinuated that [she] was engaged

in the activity described in the article” fails to state a claim

for defamation because “many of the activities described in the

article can in no way be deemed harmful to the reputation of a

suburban teen today . . . .” Metro characterizes these innocent

activities as “attending a school prom, watching a Britney Spears

video, abstaining from sex, vowing to avoid abusive relationships,

or even lying about engaging in sex to defuse the pressure from

peers who keep asking about it.”

We agree with the district court that this argument rests

on a tendentious reading of the article, “which is written in a

sensational tone and overwhelmingly, if not exclusively, concerned

with teenage sexual misconduct.”6 357 F. Supp. 2d at 380. In

assessing whether a statement can bear a defamatory construction,

“[m]eaning is to be derived as well from the expression used as

6
We also agree with the district court that “[e]ven the
relatively harmless conduct identified by [Metro in support of its
argument] is presented [in the article] in such a way as to
underscore the principal theme of rampant and promiscuous sexuality
among teenagers.” 357 F. Supp. 2d at 380 (footnote omitted).

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from the whole scope and the apparent object of the writer.” Sack,

supra, § 2.4.2, at 2-19 (internal quotation marks omitted); accord

Tartaglia v. Townsend, 19 Mass. App. Ct. 693, 697, 477 N.E.2d 178,

181 (Mass. App. Ct. 1985) (considering “tone of the article as a

whole” in determining capacity for defamatory meaning). Beginning

with the superhead proclaiming that “your kids . . . might know

more about sex than you,” the article repeatedly and broadly avers

that teenagers are sexually promiscuous.7 Furthermore, the article

also consciously attempts to disabuse its readers–-who, as the

superhead indicates, are presumed to be the parents of teens–-of

any suspicion that its claims might be exaggerated. For example,

after describing alcohol- and drug-fueled sex parties among boys

and girls as “much more common” than sex between a monogamous teen

couple, the article asks, “Don’t believe it?” and proceeds to offer

the supporting opinion of a college psychology professor.

Thus, were the article understood to refer to Stanton, as

we think it reasonably could be, “it would tend to hold [her] up to

scorn, hatred, ridicule or contempt, in the minds of [a]

considerable and respectable segment in the community.” Amrak, 410

F.3d at 73 (internal quotation marks omitted). A reasonable reader

7
These statements include that, among teenagers, “oral sex is
the new second base” and “sex . . . is the new kissing”; that “no
strings ‘hooking up’–-and Internet porn and online cybersex–-[have]
often replac[ed] dating”; and that “today’s eastern Massachusetts
teens are both sexually advanced . . . and sexually daring.” See
also Am. Compl. ¶ 12 (quoting additional like statements).

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could believe that Stanton, who appears in the lead illustration

for the article, is in fact one of the teens whose promiscuous

behavior is described in its text.8 At the risk of repeating

ourselves, we allow that other reasonable readers may take a

different view. We conclude only that the article is susceptible

to the defamatory meaning Stanton alleges, i.e., that she engages

in sexually promiscuous conduct.9

In a similar vein, Metro argues that the article makes no

“articulably false statement” about Stanton and thus cannot support

a defamation claim. The Supreme Judicial Court has recognized that

certain statements about a plaintiff, though pejorative, are “too

8
Metro concedes for purposes of this appeal that “a statement
that [Stanton] was ‘promiscuous’ might damage her reputation in the
community.” Accordingly, we need not decide whether a false
accusation of promiscuousness is defamatory. Cf. Restatement
(Second) of Torts § 569 cmt. f (1977).
9
Tropeano v. Atl. Monthly Co., 379 Mass. 745, 400 N.E.2d 847
(Mass. 1976), on which Metro relies, is not to the contrary.
There, the defendant used a photograph of the plaintiff and three
other women conversing in a nightspot to illustrate an article
entitled, “After the Sexual Revolution.” Id. at 746, 400 N.E.2d
at 848. Based on the complaint, the court could discern nothing
about the article except that it “appear[ed] to deal with modern
sexual and social mores.” Id. Given the unremarkable nature of
the photograph, and the plaintiff’s failure to plead “any
defamatory innuendo,” id. at 751, 400 N.E.2d at 851, the court
ruled that the publication was not defamatory. Here, however, as
we have already discussed, the article can reasonably be read to
provide a considerably less clinical view of its subjects’ sexual
behavior. Furthermore, Stanton has alleged that the publication in
this case made a defamatory insinuation about her. See Mihalik v.
Duprey, 11 Mass. App. Ct. 602, 607, 417 N.E.2d 1238, 1241 (Mass.
App. Ct. 1981) (noting that Tropeano does not discuss theory of
“false defamatory insinuation . . . to any significant extent”).
Tropeano therefore does not support Metro’s position.

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vague to be cognizable as the subject of a defamation action.”

Nat’l Ass’n of Gov’t Employees, Inc. v. Cent. Broad. Corp., 379

Mass. 220, 229, 396 N.E.2d 996, 1002 (Mass. 1979). Because “[t]he

meaning of these statements is imprecise and open to speculation

. . . [t]hey cannot be proved false” and therefore “cannot be held

libellous.”10 Cole, 386 Mass. at 312, 435 N.E.2d at 1027 (internal

quotation marks omitted).

We have already determined that one reasonable

interpretation of the juxtaposition of Stanton’s photograph with

the “Mating Habits” article is that she engages in sexually

promiscuous behavior. That this juxtaposition might not permit a

reader to definitively ascribe to Stanton any of the particular

kinds of promiscuous conduct described in the article strikes us as

unimportant. “It is not necessary that the charge of indiscretions

or want of chastity be direct and explicit; but anything fairly

imputing immorality is actionable.” Thayer v. Worcester Post Co.,

284 Mass. 160, 162, 187 N.E. 292, 293 (Mass. 1933); see also

Restatement (Second) of Torts § 574 cmt. b (1977) (noting that

“general charges of unchaste conduct” suffice to support defamation

claim and that charges of “specific acts” are unnecessary).

10
Like the district court, 357 F. Supp. 2d at 373 n.5, we note
that Stanton has claimed defamation based on allegedly false
statement and therefore do not consider whether she could recover
on a lesser showing. See generally Shaari v. Harvard Student
Agencies, Inc., 427 Mass. 129, 131-34, 691 N.E.2d 925, 927-29
(Mass. 1998).

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 Indeed, statements that are too vague to constitute

defamation generally fall into the category of epithets, such as

“communist,” Nat’l Ass’n of Gov’t Employees, 379 Mass. at 228-29,

396 N.E.2d at 1001-02, or “absolute barbarian, lunkhead, meathead,

and nut,” Fleming, 390 Mass. at 181-82, 454 N.E.2d at 100. See

generally Myers, 380 Mass. at 343, 403 N.E.2d at 380 (collecting

cases rejecting defamation claims based on epithets). Here, in

contrast, Stanton has alleged that Metro defamed her by making a

statement susceptible to the interpretation that she engages in

sexually promiscuous behavior. That statement is clear enough to

support a defamation claim, particularly under the circumstances.

See Restatement (Second) of Torts § 566 cmt. e (1977) (“Words

uttered face to face during an altercation may well be understood

merely as abuse or insult, while words written after time for

thought or published in a newspaper may be taken to express the

defamatory charge and to be intended to be taken seriously.”)11

Finally, Metro argues that Stanton’s amended complaint

should have been dismissed because she failed to “allege any facts

11
We note in this regard that, in contrast to the circumstances
here, the statement considered in Nat’l Ass’n of Gov’t Employees
was “used in the midst of a public debate” over a labor contract,
“an occasion on which voices could be expected to be raised in
sloganeering invective,” 379 Mass. at 228-29, 396 N.E.2d at 1001,
while those at issue in Fleming were spoken as part of a radio talk
show host’s on-air diatribe over his treatment at the hands of the
defendant, which the host simultaneously acknowledged had made him
“angry, likely to be biased, and that his listeners should take
account of these facts.” 390 Mass. at 179, 454 N.E.2d at 99.

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that, if true, would demonstrate that Metro acted with negligent

disregard for the truth by juxtaposing the photograph and the

article.” We disagree. “[P]rivate persons . . . may recover

compensation (assuming proof of all other elements of a claim for

defamation) on proof that the defendant was negligent in publishing

defamatory words which reasonably could be interpreted to refer to

the plaintiff.” New England Tractor-Trailer, 395 Mass. at 477, 480

N.E.2d at 1009 (footnote omitted); see also Restatement (Second) of

Torts §§ 564 cmt. f & 580B cmt. b(5) (1977). Furthermore, “‘[i]f

the recipient reasonably understood the communication to be made

concerning the plaintiff, it may be inferred that the defamer was

negligent in failing to realize that the communication would be so

understood,’” provided the plaintiff can “‘prove that a reasonable

understanding on the part of the recipient that the communication

referred to the plaintiff was one that the defamer was negligent in

failing to anticipate.’” New England Tractor-Trailer, 395 Mass. at

478 n.5, 480 N.E.2d at 1010 n.5 (quoting Restatement (Second) of

Torts § 564 cmt. f (1977)) (emphasis omitted).

Stanton alleges that “[t]he juxtaposition of [her]

photograph with the text describing suburban teenage sexuality

. . . has a reasonable tendency to injure [her] reputation and did

so injure [her] reputation” in that it “insinuated that [she] was

a person engaged in the activity described in the article . . . .”

These allegations sufficiently state a defamation claim based on

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the theory that Metro negligently used Stanton’s photograph to

illustrate a story describing teenagers as sexually promiscuous

without realizing that the publication might therefore be

reasonably understood to mean that she was sexually promiscuous.

IV.

We close our analysis, as we opened it, with the

observation that “‘[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, 355 U.S. at 45-46). Based

on our review of the amended complaint and the article in question,

we conclude that this standard has not been met. We REVERSE the

order of the district court insofar as it dismissed Stanton’s

defamation claim arising out of the juxtaposition of her photograph

and the text of the article and REMAND the case for further

proceedings consistent with this opinion.

SO ORDERED.

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