Gender Queer, Libel by Implication, and “Truth Is Not a Complete Defense of Defamation”

Galdos-Shapiro, a school teacher in Great Barrington (Mass.), was questioned and briefly detained in her classroom by the police over her having at her desk a copy of Gender Queer, which she had available to share with students. She sued police officials, and Judge Mark Mastroianni allowed her First and Fourth Amendment claims to go forward (Galdos-Shapiro v. Town of Great Barrington); the analysis there (see yesterday’s post) is quite plausible, since the book isn’t obscene, and in any event the relevant state obscenity laws excludes educational uses. The opinion doesn’t include the objected-to illustrations from the book, but you can see copies of what appear to be the most controversial illustrations from a different opinion, here and here.

But the court also allowed her defamation claim to go forward as well, based on a press release that read:

On December 8, 2023 [t]he Great Barrington Police Department received a complaint from a person who witnessed what they perceived to be concerning illustrations in a book that was provided to students by a teacher at W.E.B. Dubois Middle School. The illustration provided by the witness depicted animated characters performing sexual acts on each other. Because this complaint was made directly to the police department, we are obligated and have a duty to examine the complaint further. Thanks to our established relationship with the school, we were able to carefully work together to investigate this situation. This involved immediate notification of the Superintendent and Principal of the middle school.

Because we were only provided a single image of the illustration, it was important to identify and examine the material that was reported to us. Working together, it was decided that the department would send an officer toward the end of the day in plain cloth[e]s to be escorted to the classroom and to see if the book containing the illustration could be located. After a brief conversation with the teacher, the officer was advised that the book in question was not there and could not be accounted for at that time. The officer advised the principal and teacher, that we were not there to investigate the subject matter of any books. As a procedure in sensitive or complex investigations, the police notified the District Attorney’s Office.

Once the necessary information was gathered, it was determined that it is a matter to be managed within the Berkshire Hills Regional School District. The Great Barrington Police Department is dedicated to the safety of all people, especially children, and we take all complaints seriously….

Here’s the court’s reasoning on the defamation question:

[T]he allegation Plaintiff provided students a book “depict[ing] animated characters performing sexual acts on each other” was potentially defamatory. {In Massachusetts, truth is not a complete defense to defamation when the complaint plausibly alleges the defendant acted with actual malice. See Noonan v. Staples, Inc. (1st Cir. 2009) (citing Mass. Gen. Law ch. 231, § 92). Here, the complaint plausibly alleges [Police Chief] Storti acted with common law actual malice, in light of Storti’s alleged history of anti-LGBTQ bias.}

Moreover, as alleged in the proposed complaint, Storti was aware on December 16 that the only student who ever took the book from Plaintiff’s classroom did so with parental permission. He was also allegedly aware the book was not simply a compilation of sexual acts but rather was a work of literary and artistic value. By phrasing the press release in the manner chosen by Storti, at this stage, it is plausible to construe he intended the release to imply Plaintiff was routinely exposing children to illustrated images of child sex acts. In view of these allegations, as well as Storti’s alleged history of animus toward the presence of LGTBQ ideas in schools, the court further concludes the complaint plausibly alleges Storti acted with either knowing, reckless, or malicious intent when he published the press release, rendering the conditional privilege inapplicable at this stage of the case.

Here’s my thinking: (1) Defamation can, under some conditions, be punished on the grounds that there is “no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc. (1974). I thus think it’s unconstitutional for Massachusetts law to try to impose defamation liability even on true statements.

(2) But in any event, it’s well-settled that, when it comes to speech on matters of public concern, a defamation plaintiff must prove that the statements were false. Garrison v. Louisiana (1964), so held as to statements about public officials, expressly rejecting liability for true statements made out of malicious motives. And Philadelphia Newspapers, Inc. v. Hepps (1986), held that even in cases brought by private figures, “the plaintiff bear[s] the burden of showing falsity,” “[t]o ensure that true speech on matters of public concern is not deterred.” In Hepps, the Court rejected the traditional common law rule that the defendant speaker had to prove the truth of an allegedly libelous statement; that rule, the Court held, would create “a ‘chilling’ effect” that “would be antithetical to the First Amendment’s protection of true speech on matters of public concern.”

Indeed, Noonan v. Staples (the First Circuit decision cited by the opinion excerpt above) expressly recognized that “[t]his [common-law malice] exception to the truth defense is not constitutional when applied to matters of public concern.” And I think allegations about controversial material kept by a public schoolteacher in her classroom would be on matters of public concern.

(3) The second paragraph suggests that perhaps Storti’s statement was false or at least highly misleading (“it is plausible to construe he intended the release to imply Plaintiff was routinely exposing children to illustrated images of child sex acts”). Presumably the theory is that the statement that the police “received a complaint from a person who witnessed what they perceived to be concerning illustrations in a book that was provided to students by a teacher at W.E.B. Dubois Middle School” meant that the book was “routinely” given to students, rather than just shown to the “only one student [who] sought access to the book.” But I’m skeptical that a reasonable reader would indeed have read the press release the way the court suggests, and would have distinguished providing a book “to students” from providing a book to the one student who wanted it.