I. Whether the Court (Rouse, J.) properly granted The
Boston Globe summary judgment, where Mourad showed
abuse of the conditional privilege to report news, not
the Constitutional right to editorialize.
II. Whether the Court (Rouse, J.) properly and nondiscriminatorily
disregarded seven defamatory published
articles offered to show The Globe's state of mind and
malice toward Mourad, while relying upon Mourad's
earlier legal filings.
III. Whether there remanded disputed triable issues as to
Mourad's public figure status, The Globe's excessive,
publication of nine defamatory articles over a ten year
period, even if only the latter two articles were
published within three years of Mourad's September 9,
1998 commencement of suit.
IV. Whether Mourad set forth sufficient facts, raising
material jury-triable questions as to The Globe's abuse
of the conditional privilege of fair reporting, not its
constitutional right to editorialize, and defamation by
repeatedly, and knowingly calling Mourad a "Lebanese
immigrant," falsely accusing him of criminal theft and
mismanagement, and using loaded, defamatory,
unprotected adjectives indicative of The Globe's bias
in news reports, not editorial or column commentary.
On September 9, 1998, Alphonse Mourad, a former Roxbury
landlord, and owner of the Mandela Apartments, sued The
Boston Globe (hereinafter The Globe) accusing The Globe of
printing and publishing defamatory falsehoods in nine news
articles over a ten year period (A. 1, 3-19).
Mourad's 17 page, 30 exhibit verified complaint (A. 20-
229) raised material questions about the accuracy, ethnic
bias and fairness of The Globe's reporting, and The Globe's
questionable and challenged entitlement to rely upon the
defense or conditional privilege of fair reporting.
Within ten days of answering, The Globe successfully
moved for a protective order protecting it from discovery
pending disposition of its simultaneously served summary
judgment motion (A. 2, 244-248).
On November 27, 2000, The Globe moved for summary
judgment (A. 2, 248). Mourad opposed The Globe's motion
(A. 285-300), relying upon his verified complaint as his Rule
56 Affidavit1 (A. 3-19) and his 30 exhibits (A. 20-230).
The Court (Rouse, J.) held a January 4, 2001 hearing
(A. 302-329). Mourad offered a short post-argument
supplement (A. 330-331), and, on May 1, 2001, the Court
rendered her ruling allowing The Globe summary judgment
(A. 2, 248, 332-355).
Mourad timely appealed from the Court's summary
judgment dismissing his Complaint (A. 2, 356-358).
From 1981 through 1996, the Plaintiff, Alphonse Mourad,
through V&M Management Company, Inc., a subchapter S
corporation for which Mourad was the sole stockholder, owned
276 units of Section 8 housing in Roxbury, renamed in 1987,
the Mandela Apartments (A. 3, 4, 108, 130-131, 185-189). On
January 8, 1996, V&M Management, Inc. filed for Chapter 11
bankruptcy protection (A. 12).
From October 9, 1986 through April 1, 1996, The Boston
Globe published nine articles about Mourad that Mourad says
defamed him.
1 A verified complaint serves as an Affidavit for Rule 56
purposes, Godbout v. Cousens, 396 Mass. 254, 262 (1985).
The false defamatory accusations were set forth in
Mourad's verified complaint (A. 5-15), and the articles were
appended to his Complaint (A. 24, 68, 93, 110, 136, 202, 204,
217, 214). The defamatory accusations were neatly presented
on a single page chart in Mourad's Opposition to The Globe's
summary judgment motion (A. 288), reprinted here:
False Accusations
10/9/86 Falsely accusing Mourad of not
paying $473,000 in taxes
1/26/90 Falsely claiming that Mourad
owed $1.2 million in taxes, and
that Mourad was under a HUD
9/12/90 Claiming U.S. Citizen Mourad to
be a "Lebanese immigrant" who
owed $1.2 million in city taxes
and $130,000 to Boston Edison
9/14/90 Accusing Mourad of being a
slumlord of property in need of
10/2/90 Accusing Mourad of being a
slumlord not concerned about
protecting tenants
8/17/94 Accusing Mourad of mismanagement
and paying millions to himself
2/13/95 Accusing Citizen Mourad of being
a Lebanese immigrant known for
feisty, flamboyant gestures; lax
management and his trigger-happy
9/28/95 Accusing Citizen Mourad of being
a Lebanese immigrant who misused
system; of being paranoid, an
incessant filer of lawsuits, and
waging bizarre legal battles
4/1/96 Accusing Citizen Mourad of being
a Lebanese immigrant, on an
"expensive ride" paying himself
On six earlier occasions, Mourad had written The Globe
detailed replies refuting the published, unverified
falsehoods about Mourad and requested retractions (A. 25-28,
76, 80-81, 98-105, 112-117, 125-126, 138-14). The Globe
printed no retraction or corrections.
The Globe libeled Mourad calling him a "slumlord," and
accusing Mourad of "mismanagement," "stealing," taking money
and owing money he did not owe. These were easily
verifiable. The Globe refused to hear Mourad's pleas or read
his refutations, or print retractions.
On March 12, 1996 -- three (3) weeks before the
critical, damaging, and within the limitations period,
April 1, 1996 front page article announcing a Bankruptcy
Court ruling ousting Mourad before the Bankruptcy Court
hearing even took place, V&M's attorneys at Hanify & King
wrote The Globe a March 12, 1996 letter, Exh. 26 (A. 221-
212), explaining the accounting and deposits and payments.
The Globe made no reference to Mourad's explanation in the
April 1, 1996 article. The Globe's defamatory article was
referenced at the April 1, 1996 Bankruptcy Court hearing
(A. 219; 16, para. 51).
The Globe maliciously wrote and published the April 1,
1996 article to influence the Bankruptcy Court ruling, not to
print news of a court ruling that had not even come down yet.
It was as if The Globe knew, from inside sources, the
Bankruptcy Court's ruling before the hearing took place, and
before the ruling was announced. It worked, as Mourad lost
V&M Management, Inc. to a Court-appointed Trustee on the same
day, April 1, 1996, The Globe's front page article appeared.
The Globe defamed Mourad, cost Mourad his job, and defeated
his chance of having V&M remain as a debtor-in-possession,
and successfully reorganize (A. 16-17).
On September 9, 1998, Mourad sued The Globe, claiming
The Globe libeled him, and maliciously abused the fair
reporting privilege (A. 1, 3-19).
In rendering summary judgment to The Globe, the Court
(Rouse, J.) only addressed the two articles published within
the three year statute of limitations -- the September 28,
1995 article defamatorily calling U.S. citizen Mourad a
"Lebanese immigrant," "paranoid" and "incessant filer of
lawsuits," and with its defamatory headline, implying that
Mourad "misused the system"; and the April 1, 1996 front page
article, again, racially invoking the "Lebanese immigrant"
libel and implying Mourad stole $925,000 (A. 332-355).
Summary judgment was not appropriately granted to The
Globe, where Mourad's verified2 complaint and the 30 Exhibits
support his showing of The Globe's libel of him and raise
material disputed and jury-triable questions as to The
2 See fn. 1.
Globe's abuse of the fair reporting privilege. The Globe's
articles far exceed the scope of the conditional privilege.
Mourad says that The Globe abused its qualified
privilege of fair reporting by its sensational, headlinegrabbing
articles. Further, since The Globe has the burden
of establishing the defense of fair reporting, Mourad
questions whether this defense is even available to The Globe
on summary judgment, Ingalls v. Hastings & Sons Publishing
Co., 304 Mass. 31, 35 (1939) (privilege is a defense not open
on a demurrer); Bander v. Metropolitan Life Ins. Co., 313
Mass. 337, 343 (1943) (burden of proving conditional
privilege rests with defendant); Boston Nutrition Society,
Inc. v. Store, 342 Mass. 438, 443 (1961) (qualified privilege
of fair comment is a matter of defense ordinarily not open on
demurrer); Humphrey v. National Semiconductor Corp., 18 Mass.
App. Ct. 132, 134 (1984) (defendant's burden to show facts
which create the qualified privilege).
The Globe cites only three cases saying summary
judgment is "favored" in defamation cases (A. 266). The
judicial opinions that actually favor summary judgment in
defamation cases do not deal with the abuse of the qualified
or conditional fair reporting privilege.3
3 See National Association of Govt. Employees, Inc. v.
Central Broadcast Corp., 379 Mass. 220 (1979) (authorized
appeal of the denial of summary judgment, saying that person
was "communist," where facts were disclosed, is an
expression of protected, nonactionable opinion); Appleby v.
Daily Hampshire Gazette, 395 Mass. 32, 37 (1985)
(appropriate to grant summary judgment to defendants in
defamation action, where no jury could reasonably find
newspaper acted negligently in republishing story from
reliable, reputable source without corroboration); Godbout
v. Cousens, 396 Mass. 254, 258 (1985) (summary judgment
appropriate where statements were either true or not made
with actual malice); England Tractor-Trailer Training of
Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 480
(1985) (favored use of summary judgment in defamation, but
judge erred in granting summary judgment where there were
unresolved questions of fact whether article referred to
Connecticut corporation); Aldoupolis v. Globe Newspaper Co.,
398 Mass. 731, 732 (1986) (summary judgment appropriate in
cases in which libelous material is opinion and not
actionable defamation); King v. The Globe Newspaper Co., 400
Mass. 705, 708 (1987), cert. denied, 485 U.S. 940, 962
(1988) (propriety of second judge reconsidering, taking a
"fresh second look," and granting summary judgment to a
defendant in a defamation case after being denied by first
judge, where alleged libelous cartoons were protected
expressions of opinion); Elm Medical Laboratory, Inc. v. RKO
General, Inc., 403 Mass. 779, 786 (1989) (summary judgment
desirable in public figure defamation case where
insufficient evidence to draw inference of malice); Mulgrew
v. Taunton, 410 Mass. 631, 632 (1991) (favored summary
judgment in favor of police chief for qualifiedly privileged
statements to public committee about police officer's
performance and use of sick days); Theran v. Rokoff, 413
Mass. 590, 591 (1992) (favored use of summary judgment for
attorney's absolutely privileged demand letter); Lyons v.
Globe Newspaper Co., 415 Mass. 258, 268 (1993) (reporter
entitled to summary judgment, where statements could only be
understood as expression of opinion); Dulgarian v. Stone,
420 Mass. 843, 846 (1995) (summary judgment favored and
proper where plaintiff had no reasonable expectation of
proving statement to be false); Cefalu v. Globe Newspaper
Co., 8 Mass. App. Ct. 71, 74 (1979) (courts "more willing"
to grant summary judgment in libelous publication of
photograph of plaintiff standing in unemployment line, not
to collect a check, but to act as translator); Dolan v. Von
Zweck, 19 Mass. App. Ct. 1032, 1033 (1985) (affirming
allowance of renewed motion for summary judgment in
defamation case, when case called for trail, despite denial
of an earlier motion; psychiatrist's expert letter of
proposed Court testimony entitled to absolute Court
privilege); Alba v. Sampson, 44 Mass. App. Ct. 311, 312
(1998) (summary judgment to employee for a profane statement
There were and are significant factual disputes as to
The Globe's repeated, excessive publication of loaded
libelous words, that would support a jury verdict for Mourad.
The Court's summary judgment for The Globe was not proper, on
the conditional, not absolute, privilege defense questionably
available to The Globe.
The Court (Rouse, J.), and The Globe, only addressed
the latter two articles -- the September 28, 1995 (A. 217,
Exh. 25) and April 1, 1996 (A. 214, Exh. 27), articles that
fell within three years of Mourad's September 9, 1998
commencement date.
The Court erred in refusing to look at the seven
earlier articles to show The Globe's pattern of abusing the
fair reporting privilege, when reporting about Mourad.
disparaging another employee as an individual, not as a
professional accountant); Peckham v. Boston Herald, Inc., 48
Mass. App. Ct. 282, 289 (1999) (summary judgment or early
disposition is favored in defamation case, given the
importance of the First Amendment's interests at stake);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (nonmoving
plaintiff can defeat a summary judgment motion in a
libel action by offering concrete evidence from which a jury
could return a verdict in his favor; summary judgment moving
party has burden to show no genuine issue of fact; plaintiff
has burden of producing evidence that would support a jury
In Donovan v. Gardner, 50 Mass. App. Ct. 595, 603
(2000), Justice Brown, dissenting on other grounds, observes
that even time-barred causes of action "may still be relied
upon as evidence of the defendant's true intentions and state
of mind," Id., at 603. This authority was promptly presented
to the Court shortly after the January 4, 2001 hearing
(A. 330-331) and well before her May 1, 2001 ruling (A. 355).
That is precisely the situation here.
What makes the Court's disregard of the so-called timebarred
articles troubling and reversible error is the Court's
discriminatory, double standard approach to use of these
earlier materials.
The seven earlier defamatory articles are evidence
showing The Globe's state of mind as bearing on its
reportorial abuse and malice against Mourad. These
defamatory articles, even if Mourad might not be able to
collect damages for their publication, and therefore the
articles would be the subject of an appropriate trial motion
in limine to not allow Mourad damages for their publication,
are still admissible to show The Globe's repetitive, abusive
reporting and publishing practices against Mourad. It is
this repetition, Bratt v. I.B.M., 392 Mass. 508, 509, 513-519
(1984) (repetitive or excessive publication is one way to
abuse and lose the qualified privilege), that forms the basis
for the abuse of the qualified privilege and the material
dispute in this case that renders summary judgment to The
Globe inappropriate.
Contrary to The Globe's argument (A. 266), Mourad only
accused The Globe of defaming him in nine articles. Mourad
did not sue on 11 (eleven) articles (A. 266). While nine of
the eleven articles were published more than three years
before the September 9, 1998 date Mourad filed suit, and thus
are time barred, Mourad did not say the September 10, 1986
article, Exh. 3 (A. 38), defamed him (A. 5-6; para. 9).
Also, Mourad merely and correctly pointed out that The Boston
Business Journal, on February 5, 1990, re-reported The
Globe's defamatory report of January 26, 1990 (A. 84-85,
para. 18). Mourad did not allege The Globe is responsible
for The Boston Business Journal's republication of its (The
Globe's) January 26, 1990 libel; Cf. Appleby v. Daily
Hampshire Gazette, 395 Mass. 32, 36 (1985) (republisher not
subject to liability for publishing alleged defamatory
statements from reputable wire service). While a republisher
may not be required to verify a reputable wire service's
report, The Globe is liable for negligently not verifying
defamatory statements prior to its original publication in
its own newspaper.
The Globe asserts that only the latter two articles --
published September 28, 1995 (A. 217), and April 1, 1996
(A. 214) are timely or within the three year statute of
limitations for libel actions, G.L. c. 260, § 4. The Globe
cites not one case in support of its limitations defense
(A. 266-267) or that a libel action accrues upon publication,
but see, Flynn v. Associated Press, 401 Mass. 1, 776, 780
(1988). In Flynn v. Associated Press, supra, the limitations
issue is only supported by federal authority, at 780-781. No
state court case firmly so holds. A tort cause of action
accrues upon the discovery of the tortuous harm, Riley v.
Presnell, 409 Mass. 239, 242-245 (1991) (reversing a summary
judgment where record raised genuine issue as to whether
patient reasonably should have known that defendant's conduct
caused him harm); or upon the "necessary coalescence of
discovery and appreciable harm," Cantu v. Saint Paul Cos.,
401 Mass. 53, 57 (1987), cited in Murphy v. Smith, 411 Mass.
133, 136 (1991) (reversing a summary judgment; question of
material fact whether attorney's continuing representation
tolled the statute of limitations). The point of Mourad's
earlier citation to seven, pre-statute of limitations accrual
articles is to show the repeated defamation and abuse of the
fair reporting privilege The Globe subjected Mourad to, even
if his (Mourad's) recoverable damages are limited to the two
latter, and most damaging, defamatory articles. The earlier
articles clearly show the pattern of defamatory, abusive
reporting engaged in by The Globe.
In its memorandum supporting summary judgment, The
Globe asserts that the Plaintiff is a "public figure"
(A. 283-284). Mourad argued that his public figure status is
a material question of fact for the jury to decide on proper
instructions (A. 290-295).
In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974),
the Supreme Court defined public figures as those:
a) who have achieved pervasive fame or notoriety,
at 351;
b) who vigorously or successfully seek the public's
attention, at 342;
c) who have assumed roles of especial prominence in
the affairs of society, at 345;
d) who occupy positions of such persuasive power
and influence, at 345;
e) who thrust themselves to the forefront of
particular public controversies in order to
influence the resolution of issues, at 345;
f) who voluntarily inject themselves or are drawn
into a particular public controversy, at 351;
g) who thrust themselves into the vortex of a
public issue or engage the public's attention to
influence its outcome, at 352.
Mourad hardly meets any of these criteria.
The Supreme Court found that Gertz, a well-known
attorney, who served on a city housing committee, an officer
of local civic groups and various professional organizations,
and author of several books and articles had not achieved
such general fame or notoriety in the community as to make
him a public figure for the limited purpose of the
controversy at issue. Gertz was not held to the N.Y. Times
standard for purposes of his libel action against the
magazine publisher.4
In Stone v. Essex County Newspapers, Inc., 367 Mass.
849 (1985), the Supreme Judicial Court, adopting the Gertz
analysis of a "public figure," at 866, added that the
question whether a particular plaintiff is a public figure,
if contested, is a one for the jury, in a case tried to a
jury, upon proper instructions, at 863, see also Lyons v. New
Mass Media, Inc., 390 Mass. 51 (1983) (contested questions
whether president of a labor union was a public figure and
whether actual malice was shown by newspaper reporter's
reliance on biased sources were questions of fact for the
jury, at 55, 58); Materia v. Huff, 354 Mass, 328 (1985)
(secretary-treasurer of local labor union was limited public
figure; improper instructions to jury); Jones v. Taibbi, 400
Mass. 786, 798 (1987) (party unwillingly dragged into murder
4 See also, Wolston v. Reader's Digest Association, 443 U.S.
157 (1979) (a person whose failure to appear before grand
jury and whose citation for contempt attracted media
attention not a public figure); Hutchinson v. Proxmire, 443
U.S. 111 (1979) (behavioral scientist and recipient of
federal grants not public figure for purposes of responding
to Golden Fleece award announced by U.S. Senator in a press
release; speech and debate clause did not protect Senator
from transmitting information in press release); Curtis
Publishing Co. v. Butts, 388 U.S. 130 (1967) (well-known and
politically prominent university athletic director and
football coach was public figure requiring N.Y. Times malice
standard for recovery); Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657 (1989).
investigation not a public figure); McAvoy v. Shufrin, 401
Mass. 593, 596, n.3 (1988) (Court doubted, but did not
disturb, trial judge's uncontested ruling that a constable
was a public official for N.Y. Times purposes); Milgroom v.
News Group Boston, Inc., 412 Mass. 9 (1992) (sitting or
former judge is a public official, at 10; judge's husband
assumed not a public figure, at 12); Shaari v. Harvard
Student Agencies, Inc., 427 Mass 129, 133, n.6 (1988) (only
if relevant facts are undisputed can judge decide publicprivate
figure issue); Rotkiewicz v. Sadowski, 431 Mass. 748,
752-755 (2000) (police officer is public official); Martin v.
Roy, 54 Mass. App. Ct. 642, 644-645 (2002) (public figure
status of plaintiff to be determined by jury on proper
instructions, unless facts are agreed to, or stipulated, as
plaintiff so stipulated he was a public figure and did not
seek relief from that stipulation); see also pre-Gertz case
of Lewis v. Vallis, 356 Mass. 662 (1970) (mayoral campaign
manager and intermittent candidate for minor elective public
office and for General Court not public figure).
It is not clear what controversy Mourad injected
himself into, initiated, or continued for Mourad to be
considered a public figure. Mourad was not a public employee
who held a high-level position that invited public scrutiny,
Rotkiewicz v. Sadowsky, supra, at 752-753. That Mourad or
his company, V&M Management, Inc., were litigants, or that
V&M was forced into bankruptcy, or that Mourad was
interviewed by the press or attracted media attention,
Hutchinson v. Proxmire, supra, does not make Mourad a public
figure. Under Stone, Lyons and Materia, a contested public
figure (not public official) is a material question of fact
for a properly instructed jury to decide.
The Globe's repeated, reckless and unverified
defamatory statements defeat the conditional and qualified
(not absolute) privilege of fair reporting.
The Globe's slanderous words imputing "crime...
corruption, dishonesty or misconduct in his...(Mourad's)
business," Lyons v. Lyons, 303 Mass. 116, 119 (1939) are the
classic examples of defamation per se.5
5 Rosenblatt v. Baer, 383 U.S. 75 (1966) (imputing
mismanagement and peculation, at 379; Burt v. Advertiser
Newspaper Co., 154 Mass. 238 (1891) (report charging fraud);
White v. Spence, 5 Mass. App. Ct. 679, 680 (1977)
(accusations of theft, fraud, misappropriation of public
materials for personal profit); Peck v. Wakefield Item Co.
280 Mass. 451, 456 (1932) (words charging fraud); Lynch v.
Lyons, 303 Mass. 116, 119 (1939) (words imputing crime,
corruption, dishonesty or misconduct in one's business);
Ricciadri v, Latif, 3 Mass. App. Ct. 714 (1975) (imputation
of failure to meet financial obligations); Goss v. Needham
Cooperative Bank, 312 Mass. App. Ct. 309 (1942); Robinson v.
Van Auken, 190 Mass. 161 (1906) (larceny); Riceman v. Union
Indemnity Co., 278 Mass. 149 (1932) (bootlegger); Fahey v.
Melrose Free Press, Inc., 298 Mass. 267, 268 (1937)
(fraudulent conversion of property); Freidman v. Connors,
The Globe's repeated, timely -- within the statute of
limitations -- reference to Mourad as a "Lebanese immigrant"
(A. 218, 214), without also noting that Mourad is a U.S.
citizen, when The Globe knew him to be, is both sleazy and
stigmatizing, and takes on even larger significance in
today's world.
Even just an examination of the latter, two articles
September 28, 1995 and April 1, 1996 show how The Globe
paints Mourad in the worst possible and untrue light,
stigmatizing Citizen Mourad a Lebanese immigrant, without
noting his U.S. citizenship, libeling Mourad as an "incessant
filer of lawsuits," with "wild accusations" and "bizarre
legal battles" (A. 217) and libeling Mourad by saying he was
taking an "expensive ride" (A. 214) -- implying the ride was
at public, taxpayer expense, and libeling Mourad a crook.
The Globe knew better, as they had the March 12, 1996 letter
from Hanify & King, refuting the Bankruptcy Court appointed
Examiner's report (A. 221-212), but chose to ignore the
truth. That's malicious, reckless and actionable.
292 Mass. 371, 372 (1935) (larceny); Galvin v. N.Y., N.H.
and H.R.R., 341 Mass. 293 (1960) (stealing); Ezekial v.
Jones Motor Co., Inc., 374 Mass. 382 (1979) (stealing); Kipp
v. Kueker 7 Mass. App. Ct. 206, 210 (1979) (larceny); Stone
v. Essex County Newspapers, Inc., 367 Mass. 849, 853 (1975)
(crime); Jones v. Taibbi, 400 Mass. 786, 792 (implication in
series of murders); Correllas v. Viveiros, 410 Mass. 314,
319 (1991) (criminal accusation of theft generally
defamatory unless privileged); Draghetti v. Chmielewski, 416
Mass. 808,812 (1994) (imputation of crime is defamatory per
What the Court, and The Globe, fail to understand is
that Mourad is accusing The Globe of defaming him -- not in
an editorial or opinion piece in which the uses of such
imprecise, loaded, hyperbole, adjectives might well be
considered constitutionally protected. That The Globe's
editors did not catch and edit-out such highly charged
adjectives is further evidence of The Globe's malice and
reckless disregard of the truth and Mourad's rights not to be
defamed in news reports.
The Court's summary judgment in favor of The Globe is
basically premised on its view that there is no legal
difference, for libel purposes, between The Globe's front
page news reports or The Globe's editorial or opinion pages.
That many of The Globe's readers might agree with the Court,
or the proposition that The Globe allows its news reporters
to editorialize in their news reports does not mean that
there are not legitimate differences between writing news and
writing editorials or columns.6 That The Globe merges or
masks these differences does not relieve The Globe of
6 It may well be argued that all news reports are just
interpretation of events, and therefore, commentary is
likely or inevitable to slip into news reports. There may
therefore not be any difference between reports of news and
editorial commentary about the news. On the other hand, The
Globe offers the appearance of differences, by devoting
separately labeled sections to "Editorials," "Opinions,"
columns, commentary, reviews and features. Should there be
differences, or different libel standards for different
types of writing? Or, is that too much to ask? Or, does
the question-asking First Amendment bar asking that
liability for publishing knowingly false statements of fact
in its news articles. The Globe and its reporter had the
benefit of Hanify & King's March 12, 1996 letter and
enclosures refuting the Bankruptcy Examiner's report, before
The Globe published its April 1, 1996 defamation. This it
not, and cannot be, protected pure opinion. This gives rise
to The Globe's knowing publication of false defamatory facts
that defeats the conditional, fair reporting privilege. The
constitutionally protected privilege to editorialize or
criticize is not implicated here.
The Globe used loaded, defamatory words in its news
reports that are more appropriately used by its editorial
writers and columnists.
The protected pure opinion precedents relied upon by
the Court (A. 339-344, 345-351) are inopposite, as the
protected opinion there appeared in editorial columns and
cartoons, King v. The Globe Newspaper Co., 400 Mass. 705, 707
(1987); Aldoupolis v. Globe Newspaper Co., 398 Mass. 731, 732
(1986); or a satire in a magazine, Myers v. Boston Magazine
Co., Inc., 380 Mass. 336, 337 (1980), or in radio talk shows,
Pritsker v. Brudnoy, 389 Mass. 776, 777 (1983) (criticizing
restaurants); Fleming v. Benzaquin, 390 Mass. 175, 176 (1983)
(critiquing a State Trooper's professional performance);
National Ass'n. of Gov't. Employees, Inc. v. Central
Broadcasting Corp., 379 Mass. 220, 223-224 (1979) (expression
of station's editorial opinion in a "Sound Off" radio talk
show); but see, Lyons v. Globe Newspaper Co., 415 Mass. 258,
266 (1993) (but news report did not imply defamatory facts).
A newspaper or a reporter has only a conditional or
qualified (not absolute) limited common law and/or
constitutional privilege to fairly "report," not editorialize
or comment upon, judicial proceedings7
7 Burt v. Advertiser Newspaper Co., 154 Mass. 238 (1891)
(fair comment on "fraudulent" conduct of private parties'
affecting administration of custom-house); Parker v.
Republican Co., 181 Mass. 392 (1902) (newspaper's account of
complaint warrant and trial of a judicial proceeding); Sweet
v. Post Publishing Co., 215 Mass. 450 (1913) (newspaper's
report of a grand jury indictment is a privileged
communication for which publisher cannot be liable if report
is fair, impartial and accurate); Thompson v. Globe
Newspaper Co., 279 Mass. 176 (1932) (fair and accurate
reports of judicial proceedings made without malice are
privileged); Thompson v. Boston Publishing Co., 285 Mass.
345 (1934) (newsworthiness of subject of judicial proceeding
admissible to rebut inference of malice); Whitcomb v. Hearst
Corp., 329 Mass. 193 (1952) (conditional privilege of
newspaper to publish fair and accurate reports of judicial
proceedings is lost by falsely reporting a person was found
guilty when he was not); Joyce v. Globe Newspaper Co., 355
Mass. 493 (1969) (fair and accurate article about judicial
proceeding is privileged); Stone v. Essex County Newspapers,
Inc., 367 Mass. 849 (1975) (reports of judicial proceedings
must be fair and accurate for common law privilege to apply;
newspaper's erroneous, negligent and defamatory report that
a father, rather than the son, was charged with narcotic
drug offenses, is actionable); Sibley v. Holyoke Transcript-
Telegram Publishing Co., 391 Mass. 469 (1984) (newspaper's
qualified privilege of fair reporting extends to police
affidavit used to obtain search warrant); Appleby v. Daily
Hampshire Gazette, 395 Mass. 32 (1985) (no duty to verify or
corroborate news from reputable wire services before
republishing same verbatim); Jones v. Taibbi, 400 Mass. 786
(1987) (television broadcaster's privilege to report
arrest); Foley v. Lowell Sun Publishing Co., 404 Mass. 9
(1989) (newspaper statement reporting an arrest is not
capable of a defamatory meaning; statement not reasonably
For the conditional fair reporting privilege to apply,
the newspaper or the reporter's comments or report, however,
must still be fair, impartial and accurate. The Globe's were
not. Reporting that Mourad was a "crook," or took other's
peoples money, or putting loaded words into news article call
into question the reporter's and newspaper's veracity,
fairness, ethnic bias, malice, and accuracy, and constitutes
an abuse of the privilege of fair and accurate reporting,
when it is done repeatedly, as it was here. These are fact
questions for a properly instructed jury.
The conditional fair reporting privilege does not
extend as far as The Globe would like, or the Suffolk
Superior Court so ruled. If it did, it would wipe out the
common law of libel more so than New York Times v. Sullivan.
The words used by The Globe here are defamatory, loaded,
ethnically biased (Lebanese immigrant, when The Globe knew
Mourad to be a U.S. citizen), not protected pure opinion, and
The Globe's privilege of fair reporting is only
conditional, forfeitable and lost upon abuse by repeated
publication. The Globe is subject to liability for abuse,
unlike the absolute privilege that attaches to statements
interpreted as accusing arrestee of having committed the
offense); Elm Medical Laboratory, Inc. v. RKO General, Inc.,
403 Mass. 779 (1989) (new reporter's qualified privilege
extended to publication of public health warnings issued by
governmental agency, so long as report is fair and
made in Court, or that are 'pertinent' to court proceedings.8
The Globe abused the qualified or conditional privilege of
fair reporting.
The Globe lost its conditional privilege where Mourad
has shown actual malice, The Globe's knowledge of its
falsehoods, or reckless indifference to Mourad's rights, or
acting apart from the duty or purpose giving rise to the
privilege, Vigola v. Barton, 348 Mass. 475, at 485-487
(1965); Jones v. Taibbi, 400 Mass. 786, 796 (1987)
(unofficial statements are outside scope of privilege). The
conditional privilege is forfeited through "unnecessary,
unreasonable, or excessive publication," done with
recklessness, Mulgrew v. Taunton, supra, at 634, citing Bratt
v. I.B.M., 392 Mass. 508, 509-515 (1984), and Galvin v. N.Y.,
N.H. and H.R.R., 341 Mass. 293, 297-298 (1960). The Globe's
reports are repetitive, unreasonable, reckless, wrong and
downright factually false. These are not First Amendment
protected expressions of opinion. The Globe should be held
to account before a jury.
In Sheehan v. Tobin, 326 Mass. 185 (1950), the Court
found that a conditional privilege to report charges brought
8 Statements made in court or in the course of judicial
proceedings are absolutely privileged if such statements
"relate" to or are "pertinent" to the proceedings, Hoar v.
Wood, 44 Mass. 193, 197 (1841); Mezullo v. Maltez, 331 Mass.
233, 236 (1954); Scriberg v Raymond, 370 Mass. 105, 108-109
(1976); Correllas v. Viveiros, 410 Mass. 314, 319-320
(1991); Theran v. Rokoff, 413 Mass.590, 591 (1992); Sullivan
v. Birmingham, 11 Mass. App. 359 (1981).
against a union member in a union magazine could have been
abused by reference in the article that the member "brutally
assaulted" a "man old enough to be...his father." The Court
stated that the union president (and magazine editor) was
privileged to report to the union membership factual
information concerning the assault charges and their
disposition. But the Court went on to state that the
characterization of the assault as "brutal," coupled with the
reference to the participants' relative ages, painted a very
unfavorable picture of the plaintiff viciously beating a man
too old to defend himself. It was the editor's use of such
language that presented questions for the jury whether the
privilege extended to such characterizations and whether the
privilege had been abused or lost, at 193-194. In our system,
a jury decides the materially disputed fact of The Globe's
abuse of the qualified privilege.
Here, The Globe's repeated use of ethnically charged,
loaded words, like 'Lebanese immigrant', "mismanagement," and
not paying taxes and owing money damaged Mourad's reputation
and present jury questions as to whether The Globe abused or
lost its conditional privilege, Bander v. Metropolitan Life
Ins. Co., 313 Mass. 337, 344 (1943) (repetition of slanderous
words is some evidence of malice for jury to find privilege
lost). There can be no question but The Globe's repetitive
and unrestrained characterizations of Mourad were intended
for no purpose other than to maliciously defame and drive
Mourad and his company, V & M Management, Inc., out of
business and into trusteeship. And, The Globe succeeded.
The Suffolk Superior Court's Summary Judgment in favor
of The Boston Globe and the dismissal of the Plaintiff's
Verified Complaint must be reversed because Mourad has set
forth sufficient facts showing The Globe abused the
conditional privilege of fair reporting, with a different
judge presiding.
WHEREFORE, the Plaintiff/Appellant, Alphonse Mourad,
respectfully requests that this Appeals Court reverse the
Suffolk Superior Court's Judgment and reinstate the
Plaintiff's Complaint, remanding the case to the lower Court
to be heard before a jury, and a different presiding judge.
Respectfully submitted by,
Alphonse Mourad, Pro Se
125 West Street
Hyde Park, MA 02136
July , 2002 (617) 312-4919
I, Alphonse Mourad, herby certify that I have served,
by hand, my Brief and Record Appendix on this ____ day of
July, 2002, upon Johnathan M. Albano and Donald J. Savery,
Bingham Dana, LLP, 150 Federal Street, Boston, MA 02110,
Attorneys for The Boston Globe Newspaper, and the reduced,
five number upon the Appeals Court Clerk's office, 15th
Floor, Pemberton Square, Boston, MA 02108.
Alphonse Mourad, Pro Se


Author(s): Michael Grunwald, Globe Staff Date: April 1, 1996 Page: 1 Section: Metro
Alphonse Mourad has always insisted that powerful forces were out to get rid of him. Today in bankruptcy court, they may finally succeed.
Mourad, a Lebanese immigrant who has owned the Mandela Apartments in Roxbury since 1981, has raged for years about a vast racial conspiracy against him and his black and Hispanic tenants. Now a federal judge is expected to assign the 276-unit subsidized housing development to a trustee, bringing down the curtain on one of Boston's longest-running dramas Court records in the case cast considerable doubt on Mourad's claims of victimhood, which have been echoed for years by Mandela tenant leaders but bitterly disputed by public officials and housing activists. As the development has plunged deeper and deeper into debt, the records show, Mourad has taken more and more of its money for himself.
According to a report by an independent examiner appointed by the court, Mourad paid himself $923,000 in project funds last year, and paid another $250,000 to relatives. That was on top of $3.9 million Mourad already owed the failing development. That does not include more than $1 million in management fees Mourad has paid himself since 1987 or the Lexus he has leased with Mandela's money.
In an interview, Mourad said his own "sloppy accounting" has made the figures look worse than they are. He said he has taken only about $120,000 a year for himself, plus $1.6 million for his endless legal battles against the city, the state, the federal government, the utilities, the banks and others he says are conspiring to displace his 1,500 tenants and gentrify Lower Roxbury. With some justification, he also points out that Mandela is in far better physical shape than neighboring developments, despite receiving less federal support.
In any case, even Mourad admits his 15-year battle is coming to an end. At 50, he plans to return to the Middle East and start over.
"So the system wins again," said Mourad, who renamed the development in 1987 in honor of the Roxbury secession movement known as Mandela. "I'm very disappointed in America. . . . I never thought there would be so much corruption here."
But examiner Alan Braunstein's report and other records appear to support allegations against Mourad by the Boston Redevelopment Authority, the state Department of Revenue and other creditors. Basically, they document that Mourad drained cash from Mandela, even as the development staggered under a huge burden of debt. Meanwhile, a long line of creditors, including banks, private lenders, lawyers, contractors, accountants, utilities, friends and the state, have been left in the lurch.
Mourad has secured more than a dozen mortgages on Mandela, records show, and he has sued public agencies more than a dozen times. His company, V & M Management, paid no taxes on Mandela from 1986 until 1995, and owes the state nearly $4 million. Overall, the development has an estimated $10 million in debts, yet Mourad still managed to write himself 248 checks last year for nearly $1 million, in what the BRA and state Department of Revenue consider a violation of state laws.
"That's like one check for every business day of the year," said Thomas O'Malley, a city official who monitored Mandela for the BRA for several years. "He just laughs all the way to the bank. I have never seen anything like it."
Mourad borrowed money to buy the project from the federal government in 1981. His was not the high bid, but it was chosen because Mourad's partners were minorities. Those partners quit once Mourad secured a $19 million contract for federal rent subsidies. Yet Mourad said he had been swindled into making the deal.
It was the start of a pattern: Mourad working the system while fighting the system. He says government agencies have victimized him all along, exaggerating his tax liability, tricking him into prepaying a federally subsidized mortgage, blocking an attempted sale, all at a cost of millions of dollars. He says it was all a plot to force the project into bankruptcy, part of a larger plan to drive blacks and Hispanics out of a poor neighborhood in a prime location.
For years, Mourad swore he would never declare bankruptcy. But he finally relented in January, hours before a creditor was to foreclose on the development.
"You'll see: I'll come back in the year 2000, and this area will be all gentrified," said Mourad, who says he has spent $400,000 of his own money on a health clinic and other tenant services. "I'll stop here for cappuccino."
Officials at the US Department of Housing and Urban Development say Mourad has done a decent job maintaining the development in recent years, despite being underfunded ever since he prepaid his HUD mortgage. But they note that by prepaying that mortgage, Mourad escaped federal financial oversight. Judging from the court records, that may have come in handy for him.
"Laws that apply to everyone else don't seem to apply to him," said Saul Schapiro, an attorney for the BRA. "Nobody knows where the money goes."
Mourad said that most of the money went back into the development, but that he failed to document it because he says he was "burned out" from his frequent court appearances. His latest attorney, Harold Murphy, said the checks Mourad wrote himself over the last year were just a way to "move money around."
"I can tell you this: I didn't put a million dollars in my pocket," Mourad said. "Frankly, if I had a million dollars, I'd be out of here."
The question now is what will happen to Mandela's tenants. The subsidies that ensure low rents at the project expire in November. A tenant cooperative is eager to take over the complex, but it is not clear who would finance such a deal. Mourad, who says he supports a tenant buyout but has never closed a deal, will lose control over Mandela's destiny if a trustee is appointed.
In the past, tenant leaders have presented a united front in support of Mourad, and many still echo his rhetoric about "backroom deals." But some residents are beginning to wonder whether their interests are the same as their landlord's.
"We're not tied to Al Mourad," said Glenn Hall, secretary of the tenant board. "It's not about him anymore. It's about tenant ownership. It's about our piece of the American Dream


Author(s): Michael Grunwald, Globe Staff Date: September 28, 1995 Page: 25 Section: METRO
''Sure, I'm paranoid,'' said Alphonse Mourad, owner of the Mandela Apartments in Roxbury. ''I have to be. Everyone's out to get me.'' It's an old joke, but Mourad -- incessant filer of lawsuits, prolific author of press releases, untiring leader of protests -- was serious. He makes messianic speeches, he makes wild accusations, he makes money. Al Mourad does not make jokes. For more than a decade, Mourad has waged fierce and often bizarre legal battles against powerful opponents: the city, the state, the federal government, the utilities, the banks, the courts.
He says all are part of a racial conspiracy to deny Mandela its rightful funding, seize the development, throw its 1,500 black and Hispanic tenants onto the streets and gentrify Lower Roxbury.
His tenants insist he speaks the truth.
But Mourad's critics -- among them housing activists and black leaders as well as the power brokers he has sued -- scoff when he claims to defend the downtrodden. They say Mourad is no martyr, no victim.
They say he is a slumlord who plays the race card to manipulate poor residents and the courts to stiff creditors. They accuse him of plunging the 276-unit complex into physical and financial chaos while lining his pockets with development funds.
In fact, Mandela is not in horrible physical condition. But financial records obtained by the Globe raise questions about Mourad's business practices.
While Mandela was losing $6 million on paper from 1981 to 1993, Mourad's company, V&M Management, was taking $2.5 million out of the complex in "advances" it could not pay back, an audit by Mourad's own accountant shows.
The $2.5 million amount does not include V&M's management income of about $130,000 a year since 1987, or an additional $150,000 in "improper distributions" that Mourad agreed to repay the development after a 1983 federal audit.
In essence, the records show that Mourad, a 50-year-old Lebanese immigrant, has profited from the failing complex as it has become buried in debt. He has gone years without paying real estate taxes or utility bills. He has missed payments on all three of the development's mortgages.
Mourad says he has taken "about $120,000 a year," plus legal fees, because the US Department of Housing and Urban Development provided inadequate funding for Mandela.
One mortgage holder, Mario Nicosia, a South End landlord whom Mourad calls a "tool" of the Boston Redevelopment Authority, recently tried to foreclose on Mandela, hoping for tomorrow as an auction date. Mourad went to court -- his fourth lawsuit against Nicosia ---- and rallied tenants, warning that their apartments were at risk.
The foreclosure is on hold, another example of his ability to work the system he says he despises. The city and state have tried for five years to force Mandela into receivership. The state Department of Revenue is still waiting for $3.5 million in back taxes.
"This is beyond the 11th hour!" Nicosia's lawyer, Albert Farrah Jr., shouted during a hearing last week. "Mr. Mourad has used up his nine lives. Your Honor, he owes everybody!"
Even Mourad says his 14-year reign may be ending.
"I should be worth $30 million in the business world, but I got stuck here because the system was corrupt and I knew too much," Mourad said. "I'm just tired of fighting. I want a one-way ticket out of this racist city."
Mandela is by far the most recognizable housing development in a rough neighborhood that has many. The reason is seven eye-catching letters running 70 feet down a wall on Washington Street, stark white on a brick background: MANDELA.
Mourad spent $7,000 for the sign in 1987, when he renamed the project from Westminster-Willard. It was a show of support for an unsuccessful effort to establish Roxbury as an independent municipality called Mandela.
The final touch was the sign, an unavoidable message at the gateway to Lower Roxbury: Black people live here; they cannot be ignored forever.
Mourad says he has spent $400,000 of his money on a health clinic, youth programs, the Mandela Research Center and other tenant services.
He has sued on their behalf, too: the Boston Police Department for increased patrols and the BRA for allegedly diverting $2 million earmarked to help his tenants pursue resident ownership.
"Al has been a good landlord for us," said Mary Lycurgus, a librarian who lives at Mandela even though her late husband Anthony was Mourad's most outspoken critic. "He's given us a voice."
In a neighborhood with one of the nation's highest concentrations of government-assisted housing, Mandela is surrounded by monuments to failed policy. Its two eight-story brick buildings and eight four-story town houses abut Lenox-Camden, Roxse Homes, Grant Manor and Camfield Gardens -- all developments with histories of deep trouble.
Mandela's history is equally spotty. In 1972, it opened with its nonprofit developer already in default. It languished until 1981, when a partnership Mourad bankrolled bought it for $1.4 million from HUD. Another bidder offered $1 million more, but HUD chose Mourad's bid because his two partners were minorities.
Mourad, who owned several South End properties at the time, borrowed $150,000 for a down payment. He secured a HUD-insured mortgage and a 15-year contract for $19.3 million in federal rent subsidies. His partners resigned soon after it was signed.
Although it seems like a successful deal, Mourad calls the sale the start of a scheme to destroy him, and to convert affordable housing for poor blacks into luxury condos for wealthy whites.
"I'm not in this for Al Mourad anymore," said Mourad, who drives a leased Lexus and lives in a two-bedroom apartment in Watertown. "Justice for my tenants, that's important."
According to Mourad and his stacks of documents, the plot against Mandela began like this: In 1982, HUD misrepresented the project's tax status, costing him millions of dollars. Two years later, HUD deceived him into prepaying his federally insured mortgage, depriving him of millions more.
In 1986, Mourad tried to sell Mandela to Edward Shamsi for $5.5 million, four times the amount he had paid. Mourad says the BRA delayed the sale, then scuttled it. He sued the BRA, then-Mayor Flynn and Shamsi. He even persuaded tenants to join a lawsuit accusing the city and the state of overzealous inspections.
The receivership battle began in 1990, amid charges of financial mismanagement and code violations. Among them: no window screens, leaky ceilings, rusty bathtubs, rodent infestation, broken elevators and faulty smoke detectors.
Mourad, who took over Mandela's management in 1987, concedes it had problems. But he blames HUD, noting that it sets his rents and maintenance budgets 30 percent below those of nearby developments, and did not give him a security budget until 1995.
In its last HUD inspection, Mandela was rated satisfactory, with $700,000 in needed repairs -- far less than housing developments nearby.
"Al's getting a raw deal," said Thelma Barros, a tenant leader at Mandela. "When we need something fixed, it's fixed. There are much worse places to live."
Critics rarely dispute Mourad's facts. They dispute his spin.
"It's phenomenal to me that the guy is still around," said Tom O'Malley, a former BRA official. "He's just brilliant at obscuring how he has run the project into the ground."
While it is true, for instance, that prepaying his HUD-insured mortgage cost Mourad money in the long run, it also enabled him to escape financial oversight by HUD. And while no one denies that Mandela is underfunded, officials say their mistrust of Mourad has forced them to withhold additional money.
Some of that mistrust was borne out by Mourad's own auditor, who warned that Mandela needed $8.2 million in loans to survive.
In 1993, for example, Mandela lost $500,000. But Mourad still took a $310,000 advance, plus a $135,296 management fee.
"Al obscures the facts by suing people and making crazy accusations," said Michael Kane, who once tried to organize Mandela's tenants. "The facts are, he steals the place blind."
Critics say tenants do not complain because Mourad deceives them with propaganda, intimidates them with threats of homelessness and buys them off with small favors.
"He's slick," said Rep. Byron Rushing (D-South End). "We try to give the tenants the other side of the story, but we just can't do it."
Mourad and his critics do agree on one point: An independent tenant cooperative would preserve affordable rents at Mandela. The subsidy contract expires in November 1996, and renewal is unlikely.
But the state attorney general's office and the BRA insist that Mourad controls the tenant association at Mandela.
Analysts say his previous sale proposals have required substantial public investment that would not ensure Mandela's viability. The development is assessed at $9 million, not enough to cover repairs plus Mourad's debts. A deal seems unlikely.
While neighboring developments are in line for massive federal investments, Mandela is not. A year from now, Mourad's warnings may come true: Tenants may lose their homes.
"There's only one person standing in the way of getting this resolved, but nobody can get him out of the way," Rushing said. "I guess the system really is incompetent."