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Calling a man a 'dauphin' and 'a little brat' not enough for a libel action involving a court case, judge rules

A federal judge today dismissed a libel lawsuit by a former law student living in Somerville over an article on a legal Web site about him, in part by citing a Massachusetts legal principle that journalists have the right to report on court actions, such as the ones that got him into some trouble in Florida.

It's the same "fair report privilege" the state Supreme Judicial Court relied on just a week ago to dismiss a libel suit against the UMass Boston student journalist. In fact, US District Court Judge Patti Saris cited that ruling in her decision today in the case of Jonathan Mullane.

Mullane has already indicated he plans to appeal to the US Court of Appeals for the First Circuit in Boston.

At issue was a 2018 article by Elie Mystal on a New York based Web site called Above the Law, involving the outcome of an incident in the chambers of a federal judge in Miami who was overseeing a lawsuit in which Mullane, then a second-year law student at the University of Miami, was suing a credit-card company over his credit score.

According to Mystal's article, Mullane, who was representing himself in the case, was upset at the slow pace of the proceedings - just two months after he had filed his complaint. Mystal wrote that Mullane tried to speed things up: He made his way into the judge's office by flashing his ID badge from the local US Attorney's office, where he was interning, even though the civil case had nothing to do with law enforcement or his internship, and asked the judge's clerk how to get the judge to step on it. Judges tend to take offense at such things and the judge held a hearing to rake Mullane over the coals and to tell him it's a good thing he was in the last week of his internship because otherwise the judge would make sure he never worked there again.

Mystal - himself a graduate of a certain law school in Cambridge - heard about the incident and wrote it up in an article with the headline Judge Detonates Pro Se Law Student So Hard I Now Must Defend A Dumb Kid.

Mystal interwove some choice epithets in his accounting of the incident, including referring to Mullane as "an idiot who was looking for a clerical functionary to tell him where to file a motion that was going to piss off Judge Moreno anyway;" "a little entitled ponce;" "a little brat who with a USAO internship;" and, because his father is a lawyer who mostly paid his son's way through law school and, Mystal theorized, possibly had something to do with him getting the internship, maybe even "a dauphin." But as the headline suggests, Mystal concluded the judge went way overboard in essentially tearing Mullane apart.

In response to the article, Mullane sued Above the Law's owner and Mystal for: Libel per se, tortious interference with contractual relations, tortious interference with advantageous business relations, tortious interference with prospective economic advantages, intentional infliction of emotional distress, unfair and deceptive practices in violation of Mass. Gen. Laws ch. 93A, and § 9, joint and several liability for the republication of libel per se, and civil conspiracy - the latter allegedly between Mystal and the Miami judge.

In his suit, originally filed in Suffolk Superior Court in Boston, Mullane alleged the article essentially ruined his life, not the least by helping to end his law career: He alleged that after its publication, the SEC rescinded its invitation to have him serve as a "Student Honors Volunteer" and he was ultimately forced to drop out of law school.

Federal officials who were initially named in the suit had the case moved to federal court, where the suit against them, but not Above the Law and Mystal, was dismissed.

In her ruling today, Saris said Mullane's case had no merit in large part because of Massachusetts libel law, which grants journalists the right to provide "fair and accurate reports of official actions and statements" such as the ones involving Mullane, from his credit-card law suit through his hearing before the outraged judge.

But what of all the insults? Saris ruled that Mystal's epithets are covered by the First Amendment, which allows people to state their opinions as long as they are not stating them as "verifiable facts" that cannot, in fact, be verified.

"[R]idicule and simple verbal abuse" do not give rise to liability for defamation. See Fleming v. Benzaquin, 454 N.E.2d 95, 100 (Mass. 1983). Many of the challenged statements - such as those referring to Mullane as "rude," "dumb," "unethical," a "little entitled ponce," or a "dauphin" - are mere "epithets" that are "insufficiently fact-based" to ground a defamation claim.

Saris said the one instance in which Mystal might have veered too closely to stating an opinion as a fact was when he questioned whether Mullane was a "dauphin" because of dad E. Peter Mullane's career as a lawyer - in Cambridge - and asked whether that might have helped him get the internship.

This statement might imply a defamatory fact. But here, "although the allegation of [nepotism] might be provable as true or false, the sum effect of the format, tone, and entire content of the [Article] is to make it unmistakably clear that the author was expressing a point of view only, rather than stating actual facts" about how Mullane obtained his internship. See Riley, 292 F.3d at 290 (citation omitted) (internal quotations omitted) ... The statement is an opinion protected by the First Amendment.

Saris then used last week's Supreme Judicial Court ruling on a libel case against a UMass Boston student journalist to dismiss all the non-libel charges. As the state court said last week, take away the libel charge and the rest of the charges fall flat - and trying to bring them up separately would only mean bringing up the libel charges under a different name.

The Defendants’ publication of the Article did not constitute defamation or tortious interference with Mullane’s economic, business, or contractual relations.

And if Mullane's suit is dead, then his father's request to intervene as a plaintiff in the case is also moot, she ruled.

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Comments

I'd say the lawsuit, regardless of ultimate result, is not going to help this kid.

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I was an English major in college and I still had to look up "dauphin" and "ponce".

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The duke and the dauphin.

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I learned the word dauphin from reading a biography of Joan of Arc when I was a kid.

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Funny you point that out; in France where I was born, dauphin can refer to either the eldest son of the King of France or the sea mammal; same spelling.

I have some spelling and grammar problems in both French and English, and with this case taking place in Florida, I thought that the kid had been called a dolphin, which sounds like the cutest libel!

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is my new name for DJT Jr. Je te remercie, dvg.

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about the Streisand Effect.

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His law career was already in the toilet, due to his own actions. He just wasted the court's time and probably some of Dad's money flushing what remained of his reputation away. I wonder what his next career will be.

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I guess he missed the day they taught law in law school.

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I take it this is the same person?

https://boston.suffolk.edu/sjc/pop.php?csnum=SJC_12534
https://law.justia.com/cases/massachusetts/supreme-court/2019/sjc-12534....

If I understood it correctly, his father represented him in small claims court ($7000 or less I believe), they lost to Barclays, he had from December 2017 to December 2018 to file a motion to vacate but missed that deadline. In the meantime Barclays also made a counter claim which they won, he tried to appeal in Cambridge District Court but the appeal was denied. (Barclays counsel thought the appeal might have been allowed if he had questioned the amount owed instead of arguing about the Fair Credit Billing Act.)

And then he represented himself before the Massachusetts SJC to try to undo all the other stuff and also lost?

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the author is execrable to pick on the ponce who was a 22 yo (?) student at the time, not even a lawyer, on a widely read legal website. That was a career ending article once the submit button was pressed.

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That was a career ending article once the submit button was pressed.

It was the student's behavior, not the article that merely reported on court proceedings, that was career-ending.

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And a 29 year old should know better.

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Definitely read this as someone calling someone else a dolphin.

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Mullane also sued another legal news site, Law 360, but the same federal judge who tossed his suit against Above the Law yesterday sent that case back to state court because the Law 360 reporter lives in Massachusetts.

He also has a couple of cases pending before the appeals court, one involving an insurance company and one against the SEC and the Department of Justice. I'm not sure what they're about, since I didn't feel like paying 10 cents a page to retrieve the complaints via the federal court system.

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> was suing a credit-card company over his credit score

Now I'm no lawyer but from what I've read this isn't the recommended way to increase your credit score.

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Sounds more like his own behavior followed him.

Does he really think the article lost him his internship? Or, did someone where he interned when he pulled this stunt make sure everyone knew about what he did?

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I love that site! I read the headline and thought to myself "that sounds like something Above the law would write"

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