United States Court of Appeals
For the First Circuit
No. 04-1449
AMRAK PRODUCTIONS, INC.; JAMES ALBRIGHT,
Plaintiffs, Appellants,
v.
ANDREW MORTON; MICHAEL O'MARA;
MICHAEL O'MARA BOOKS LIMITED, ST. MARTIN'S PRESS, INC.;
and TIME, INC.
Defendants, Appellees,
NEWS GROUP NEWSPAPERS, LTD.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Jerrold G. Neeff, with whom The Bostonian Law Group, was on
brief, for appellants.
Jonathan M. Albano, with whom Aaron M. Wais, and Bingham
MCCutchen LLP, were on brief, for appellees.
June 3, 2005
TORRUELLA, Circuit Judge. Plaintiffs-appellants James
Albright, a former bodyguard and lover of Madonna, and his
corporate agent, Amrak Productions, Inc. ("Amrak"), appeal from the
dismissal of their defamation, invasion of privacy, and other state
claims stemming from the publication of a tell-all book, Madonna.
In a nutshell, defendants-appellees author and publishers allegedly
portrayed Albright as a homosexual by miscaptioning a picture of a
homosexual individual with Albright's name in a book and magazines.
The district court dismissed appellants' claims, finding that for
the "photograph [to] make[] any kind of statement regarding
Albright's sexuality requires the Court to pile inference upon
innuendo, innuendo upon stereotype." Albright v. Morton, 321 F.
Supp. 2d 130, 132 (D. Mass. 2004). The court also applied recent
Federal and State Supreme Court decisions on homosexuality to hold
that a statement identifying an individual as homosexual is not
defamatory per se under Massachusetts law. Appellants argue
otherwise, stating that continued societal and governmental
acceptance of various forms of discrimination against homosexuals
should lead to a presumption of injury. We affirm the dismissals,
albeit on more limited grounds than the district court's holding.
I. Background
Amrak employed Albright -- who has been involved in the
personal and professional security business for over ten years --
as a professional bodyguard. From January to July 1992, Albright
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served as Madonna's bodyguard, during which time he became
romantically involved with the artist and remained so until 1994.
In December 2000, Albright entered into a contract with
O'Mara Books to sell information about Madonna for an upcoming
biography. The book, entitled Madonna, was written by author
Andrew Morton and published by O'Mara Books in the United Kingdom
and by St. Martin's Press in the United States in 2001. Chapter 11
of the book details Albright's relationship with Madonna. Andrew
Morton, Madonna 175-91 (St. Martin's Press) (2001).
The book also contains forty-eight pages of photographs,
including one in which Madonna is accompanied by two men. The man
to the left is wearing black pants, a black and white shirt, a
black leather jacket, tinted sunglasses, a string necklace, and an
earring. The caption states:
Madonna attends ex-lover Prince's concert with
her secret lover and one-time bodyguard Jimmy
Albright (left). Albright, who bears an
uncanny resemblance to Carlos León, the father
of Madonna's daughter, enjoyed a stormy three-
year relationship with the star. They planned
to marry, and had even chosen names for their
children.
This photograph allegedly defamed Albright because the man pictured
was, in fact, José Guitierez, an "outspoken homosexual" who "often
dressed as a woman," and engaged in what appellants describe as
"homosexual, sexually graphic, lewd, lascivious, offensive, and
possibly illegal" conduct. Guitierez was employed as one of
Madonna's dancers.
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On November 12, 2001, People magazine, a publication of
Time Inc., published the same photograph along with the erroneous
caption. News of the World, a publication of News Group
Newspapers, Ltd., published the same on March 17, 2002.
Appellants subsequently brought a diversity suit against
Morton, Michael O'Mara Books, Michael O'Mara, St. Martin's Press,
Time Inc., and News Group Newspapers, Ltd., in the District of
Massachusetts. Specifically, appellants sued for defamation,
invasion of privacy, negligence, negligent and intentional
infliction of emotional distress, along with violations of state
statutory prohibitions on unfair trade practices, Mass. Gen. Laws
ch. 214, § 3A (2005) and ch. 93A, and unauthorized commercial use
of a name or likeness, id. at ch. 214, § 3A.
On May 28, 2004, the district court granted appellees'
motion to dismiss on all counts. First, the court held that no
reasonable view of the photograph and text would suggest that
Albright is homosexual, and thus the publication cannot be
construed as defamatory. Alternatively, the court held that
imputing homosexuality cannot be considered defamatory per se in
Massachusetts, particularly given the rationales in the U.S.
Supreme Court's decision in Lawrence v. Texas, 539 U.S. 558 (2003)
(invalidating state statute criminalizing same-sex sexual conduct),
as well as the Supreme Judicial Court's decision in Goodridge v.
Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (invalidating
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limitations to civil marriage for same-sex couples under state
equal protection principles). Given appellants' failure to state
a defamation claim, the court dismissed the derivative claims of
commercial use, false light invasion of privacy, emotional
distress, negligence, and unfair trade practices. This appeal
follows.
II. Analysis
A. Defamation
Appellants first argue that they have met the pleading
requirements necessary to survive a motion to dismiss a defamation
claim. Despite our de novo review of the dismissals -- accepting
all factual allegations in the complaint as true and drawing all
reasonable inferences favorable to the appellant, see Barrington
Cove Ltd. P'ship v. Rhode Island Housing and Mortg. Fin. Corp., 246
F.3d 1, 4-5 (1st Cir. 2001) -- we disagree.
To prevail in a defamation claim, plaintiffs must
establish that "defendant[s] w[ere] at fault for the publication of
a false statement regarding the plaintiff, capable of damaging the
plaintiff's reputation in the community, which either caused
economic loss or is actionable without proof of economic loss."
White v. Blue Cross & Blue Shield of Mass., Inc., 809 N.E.2d 1034,
1036 (Mass. 2004) (footnote omitted). A court may dismiss written
defamation claims, i.e., libel claims, if the communication is
"incapable of a defamatory meaning." Brauer v. Globe Newspaper
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Co., 217 N.E.2d 736, 738 (Mass. 1966) (quoting Muchnick v. Post
Publ'g Co., 125 N.E.2d 137, 138 (Mass. 1955). This threshold
question, "whether a communication is reasonably susceptible of a
defamatory meaning, is a question of law for the court." Phelan v.
May Dept. Stores Co., 819 N.E.2d 550, 554 (Mass. 2004).
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." Id. at 553 (quoting Stone v. Essex
County Newspapers, Inc., 330 N.E.2d 161, 165 (Mass. 1975)). The
communication "must be interpreted reasonably," leading a
"reasonable reader" to conclude that it conveyed a defamatory
meaning. Foley v. Lowell Sun Publ'g Co., 533 N.E.2d 196, 197
(Mass. 1989) (internal quotation marks omitted). Context matters
in assessing such claims: "The court [must] examine the statement
in its totality in the context in which it was uttered or
published. The court must consider all the words used, not merely
a particular phrase or sentence." Id. (quoting Myers v. Boston
Magazine Co., 403 N.E.2d 376, 379 (Mass. 1980)). The Massachusetts
Supreme Judicial Court, for example, has required that allegedly
defamatory photographs or headlines be interpreted in light of the
entire context of the publication -- i.e., the entire text of the
article -- to survive dismissal. Compare Mabardi v. Boston Herald-
Traveler Corp., 198 N.E.2d 304, 306 (Mass. 1964) (holding that
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plaintiff stated a claim for defamation where implications from the
juxtaposition of plaintiff's photo with the article "was not
discouraged by any clarifying textual reference to the plaintiff"),
with Foley, 533 N.E.2d at 197 (affirming dismissal of defamation
claim where text of article accompanying the contested headline
made clear that plaintiff had been arrested, not convicted, for
assault). See generally Lambert v. Providence Journal Co., 508
F.2d 656, 658 (1st Cir. 1975) ("reading the [challenged] articles
in their entirety" to determine whether they were reasonably
capable of any defamatory meaning).
The miscaptioned photograph in the instant case is not
reasonably susceptible of a defamatory meaning. Nothing in
Guitierez's appearance, particularly given the accompanying caption
stressing Albright's heterosexuality (e.g., Madonna's "secret
lover"), gives any indication that Albright is homosexual. To draw
such an inference, the reader -- who would have to view homosexuals
with "scorn, hatred, ridicule or contempt," Phelan, 819 N.E.2d at
553 -- must 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 Albright looks like. Few, if any, readers
would fall into this "considerable and respectable segment in the
community." Id.
The context of the text accompanying the photograph
further deflates any argument that the photo conveys a defamatory
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meaning. When we "consider all the words used" in the accompanying
text, Foley, 553 N.E.2d at 197 -- including phrases such as
Albright's "long-time girlfriend," his "hot and heavy" affair with
Madonna, their sexual encounters, and Albright's "fling" with a
"girl at a club" -- we find that no reasonable reader could
conclude that Albright is homosexual. This conclusion is supported
by the caption, which states that Albright was Madonna's "secret
lover," that they "enjoyed a stormy three-year relationship," and
that they planned to marry and "had even chosen names for their
children." Similarly, the caption for the People Weekly photograph
states that Albright felt "overwhelming love" for Madonna, with the
accompanying article detailing their relationship.
Given appellants' failure to satisfy the threshold
question of defamatory meaning, we affirm the court's dismissal of
the defamation claim. Moreover, given the court's correct finding
that the photograph and its caption make no imputation of
homosexuality, we need not decide whether such an imputation
constitutes defamation per se in Massachusetts.
B. Derivative Claims
We have considered appellants' derivative claims --
commercial use, negligent and intentional infliction of emotional
distress, and Chapter 93A -- and find them all without merit. We
likewise reject appellants' urging that the false light invasion of
privacy claim should be recognized in Massachusetts, particularly
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given the state court's repeated refusal to do so. See, e.g., ELM
Med. Lab., Inc. v. RKO Gen., Inc., 532 N.E.2d 675, 691 (Mass.
1989); Jones v. Taibbi, 512 N.E.2d 260, 270 n.12 (Mass. 1987); Fox
Tree v. Harte-Hanks Communications, Inc., 501 N.E.2d 519, 522
(Mass. 1986). The district court's judgments are affirmed.
Affirmed.
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