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SJC

- 12175

SA U NDRA R. EDWARDS vs . CO MMONWEALTH & another
. 1

Essex. February 6, 2017.

- June 8 , 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, & Lowy, JJ.

Governor . Privileged Communication
. Evidence , Privileged communication. Libel and Slander
.

C ivil action commenced in the Superior Court Department on December 31, 2014. Motions to dismiss were heard by Richard E. Welch, III , J. The Supreme Judicial Court granted an application for direct appellate review.

Michael J. Pineault for Deval Patrick
. William H. Sheehan, III ( Thomas J. Flannagan also present) for the plaintiff
.
GAZIANO, J. On Sept ember 16 , 2014, then Governor De val Patrick remove d Saundr a R. Edwards from her position as c hair of the Sex O ffender Registry Board (SORB)
. A few days lat er, in response to media inquiries about Edwards's abrupt departure ,

1 Deval Patrick.2

Patrick explained that, among other reasons, he had decided to

re place Edwards because she inappropriately had attempted to
pressure a SORB hearing officer to change the outcome of one of his decisions on an offender's classification level
. In subsequent comments to the media , after Edwards had filed a n action for defamation and wrongful termination in the Superior Court, Patrick repeated his explanation that he had decided to remove Edwa rds from office because she had interfered with the independence o f a SORB hearing officer. Edwards filed a n amended complaint , asserting a wrongful termination claim against the Commonwealth, and two defamation claims against Patrick, individually, one f or each of the two statements. Patrick moved pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), to dismiss Edwards’ s amended complaint on two grounds. He argued that the court should conclude, consistent with Federal law and with a numbe r of other jurisdictions, that he , as governor, had an absolute privilege for statements made in the course of his official duties. In the alternative, Patrick argued that he had a qualified privilege, because the statements were made while acting within th e scope of his official duties concerning Edwards's status as a public official , and that the allegations in the amended complaint were not sufficient to overcome that privilege
. Be cause , Patrick maintained, the amended complaint contained only bare con clusory3

asse rtions of actual malice without allegations of facts sufficient to support those assertions beyond the level of mere speculation, the complaint did not meet the pleading requirements for a defamation claim under Ian n acchino v. Ford
Motor Co ., 4 51 Mass. 623, 636 (2008). A Superior Court judge denied Patrick's motion to dismiss the defamation claims, and denied the Commonwealth's motion to dismiss the wrongful termination claim. Patrick appealed from the denial of his motion , and both defendants sought a stay in the Superior Court pending the resolution of that appeal
. W e allowed Patrick's motion for direct appellate review
. Considering first whether the amended complaint alleges facts sufficient to overcome a qualified or conditional privilege , we conclude that it does not assert facts sufficient to demonstrate that Patrick ' s statements to the media were made with actual malice , and thus the complaint against him properly should have been dismissed. Given this conclusion , we need not reach Patr ick's argument as to the existence of an absolute privilege against defamation claims for a governor, or other high

- ranking State official , for statements made in the course of his or her official duties. 1. Background
. We recite the facts asserted in th e amended complaint, taking them as true for purposes of evaluat ing the motion to dismiss. SORB is an administrati ve4

agency within the Executive O ffice of Public Safety and Security (EOPSS)
. SORB is responsible for enfor cing the provisions of the sex o ff ender r egistry law , G. L. c. 6, § § 178C

- 178Q , and also promulgates rules, regulations, and guidelines to implement those provisions
. See G. L. c. 6, § 178K (1). The chair of
SORB is "appointed by and serve [ s ] at the pleasure of the
governor. " Id
. Edwards had been a member of the Massachusetts bar for almost twenty

- five years when Patrick appointed her as chair of
SORB on November 5 , 2007. Edwards served in that role until September 16, 2014. Prior to her appointment , Edwards had served as an assi stant district attorney in Plymouth County for thirteen years . She specialized in prosecuting sex offenses , child abuse , a nd domestic violence
.
a . Sigh

- Paglia m atter . According to the amended complaint, in September, 1993 , Patrick ' s brother

- in

- law, Bernard Sigh, pleaded guilty to a charge of spousa l rape in California; in his plea he admitted t hat he " accomplished an act of sexual intercourse with [his] wife against her will by means of force." He was sentenced to a term of incarceration followed by five years of probation. Sigh moved to Massachusetts in 1995 , but5

did not regis ter as a sex offender 2 when the Legislature enacted the sex offender registry law in 1996
. 3

In December, 2006, almost a year before Edward's appointment as chair, SORB notifie d Sigh of his duty to register as a l evel 1 (lowest risk) sex offender
. Sigh sought a hearing to challenge the determination that he had been convicted of a

" like offense " to the offense of rape as defined in Massachusetts law
. SORB scheduled a hearing o n his petition and assigned the matter to one of its b oard member s . While that hearing was pending, S ORB referred to the office of the Attorney General the question whether a conviction of spousal rape under California law was a "like offense" to rape under Massachusetts law, thus requiring a Massachusetts resident to register with
SORB . SORB hearing o fficer A ttilio Paglia replaced the previously assigned board member, and scheduled a hearin g on Sigh ' s

2 A sex offender is defined as a person who has been convicted of any violation of enumerated Massachusetts sex offenses, as well as like violations in other jurisdictions. See G. L. c. 6, § 178C. See generally Doe , Sex Offender Registry Bd . No. 151 564 v. Sex Offender Registry Bd ., 456 Mass. 612, 615 (2010).

3 The sex offender registry law, G. L. c. 6, §§ 178C

- 178Q , requires that anyone who has been convicted as a sex offender must register with SORB and with the local police dep artment where the individual lives, unless, in limited circumstances, an individual has been deemed exempt. See G. L. c. 6, § 178E
.6

petition
. 4 SORB officials authorized Paglia to decide preliminary motions in the case , but instructed him to continue the hearing pending t he Attorney General ' s review of the legal question concerning the status in Massachusetts of Sigh's offe nse . Notwithstanding these instructions, Paglia began the hearing on August 1, 2007. After being informed of the hearing,
Pa glia ' s supervisor ordered him not to issue a decision in the matter pending a determination by the Attorney General . Paglia contin ued to hear evidence on August 10 and 31 and issued a n oral decision finding that the California crime of spousal rape is not a like offense to the Massachusetts crime of rape. Accordingly, h e relieved Sigh of the obligation t o register as a sex offender. Paglia did not issue a written decision , as is required by SORB regulations
. b
. Edw ards ' s involvement in the Sigh

- Paglia matter . Edwards took office on November 5, 2007, several months after the Sigh hearing and the oral decision. She was advised by
S ORB's counsel and other SORB officials o f the dis agreement between SORB administrators and Paglia . She also learned that ,

4 Edwards 's amended complaint alleges that Paglia, for an unknown reason, "took the extraordinary step" of removing the ca se from the previously assigned board member and assigning the case to himself
.7

as a result of his actions with respect to the Sigh matter, Paglia had been disciplined for insubordination. On May 9, 2008, Edwards met with Paglia to discuss the Sigh
matter . She info rmed Paglia (who is not an attorney) of the legal elements of rape as defined under Massachusetts law , and also told him that the California crime of spousal rape is a like offense to the Massachusetts c rime of rape because "rape is rape." After consulting with EOPSS and SORB 's general counsel, Edwards directed that a written decision issue in the Sigh case. SORB also enacted an emergency regulation to permit it to correct errors of law by hearing officers. To prevent further classification errors, Edwards also instituted a training program on the elem ents of Massachusetts sex offenses and on conducting classification hearings
. Paglia resigned from his position at SORB and commenced a

" whistleblower" action, G. L. 149, § 185 , in the Superior Court
ag ainst SORB, Edwards in her official capacity, and other SORB officials , claiming retaliation for his decision in the Sigh
matter. 5 Paglia claimed that the SORB defendants, including Edwards, engaged in repeated and unsuccessful efforts to change

5 Because Edwar ds referenced Paglia's complaint in her amended complaint, and Patrick attached the Paglia complaint to his motion to dismiss, the Paglia complaint is included in the record and may be considered by this court. See Coghlin Elec
. Contrs . , Inc . v. Gilbane B ldg. C o ., 472 M ass. 549, 552 n.5 (2015); Marram v. Kobrick Offshore Fund, Ltd ., 442 Mass. 43, 45 n.4 (2004)
.8

the result of the Sigh hearing , and created a hostile work environment , ch aracterized by harassing electronic mail messages and telephone calls, and poor performance reviews. Paglia also claimed that he had c omplained to Edwards about "unlawful conduct that occurred prior to and during her ten ure as Chair, " and that Edwards retaliated by accusing him ( through the deputy counsel of EOPSS ) of insubordination and perform ance deficiencies . Paglia further asserted that Edwards had attempted to influence the independence of hearing officer decisions by instituting a regulation permitting SORB to revise or overturn decisions , known internally as the "Paglia Regulation ," and hiring a hearing decision e ditor to "subject the finality of hearing examiner decisions to doubt and ambiguity. " Edwards' s termination
. According to the amended complaint,

o n September 15 , 2014, Edwards was ordered to attend a meeting the next day at the governor ' s o ffice , with the general counsel and chief of s taff of EOPSS , and P atrick' s d irector of boards and commissions , Kendra Foley. Edwards was not given an explanation for the meeting. Edwards met with Foley on September 16 , 2014 . She was joined by Patrick ' s legal counsel and a representative of human

resources from EOPSS . Patrick was not present at this meeting. Foley told Edwards , " As you know, you serve at the Governor' s9

pleasure. He has decided to replace you as the Chairperson of the Sex O ffender Registry Board." E dwards asked Foley if there

was " a problem, " or if she had done something wrong. Foley replied that Edwards had not done anything wrong, but repeated that her employment was being terminated. To avoid the stigma of being terminated, Edwards asked if she could tender a letter of resignation. Edwards was allowed to res ign effective that day
. d
. Patrick ' s statements to the media
. The amended compl ai nt further states that Patrick made two statements to the media concerning Edwards 's removal as SORB c hai r . On September 22, 2014, he said during a press conference :

" The final straw was the settlement of a lawsuit, which happened about not quite a year ago now, that involved some inappropriate , at least, maybe , unlawful, pressuring by the Chair and the Executi ve Director of a hearing officer to change the outcome of a case. The hearing officer did not ultimately do that. It turns out that the case is the case that arose out of my brother

- in

law ' s experience way back at the beginning of the first campaign when the Republican Party , sorry to say, aided by the [Boston} Herald, nearly destroyed the ir lives." 6
O n January 2, 2015, Patrick made additional comments to the media concer ning his reasons for removing Edwards :

" You know, people do things like this when th ey ' ve been , sometimes when they ' ve been called out, and, you

6 Patrick also stated that he had lost confidence in Edwards ' ability to lead the SORB for other reasons: " several cases where the [Supreme Judicial Court] has reversed them "; " critici [sm] for not updating their regulations "; and " a number of reports about the work environment not being positive."10

know, it ' s part of the business. The fact is that she influenced inappropriately, or attempted to influence inappropriately , a hearing officer, and that ' s a matter of record. That hearing did i nvolve my brother

- in

- law, that is true. We ' ve never made a secret of that, but it ' s still inappropriate, and that ' s the reason why I asked for her resignation.

" We can' t have officials inappropriately interfering with the independence of hearing officers. It undermines the whole process whether it involves someone I know or not. " d
. Edward s ' s complaint
. On December 31, 2014, Edwards filed a complaint in the Superior Court against the Commonwealth, claiming wrongful termination for her removal as SORB c hair , and against Patrick individually, alleging that his September 22, 2014 statements to the media "accusing her of wrongdoing " were defamatory. Thereafter, on March 2 , 2015, Edw ards filed an amended complaint, adding a second claim of defamat ion base d on Patrick ' s January 2, 2015 , respon se to media inquiries following the fi ling of Edward s ' s initial complaint. Patrick moved to dismiss the defamation claims on grounds of absolute and qualified or conditional privilege. A Superio r Court judge denied the motion , 7 noting that the matter of an absolute privilege had not been recognized by this court , and determining that Edwards had overcome the qualified privilege by

7 The judge also denied the Commonwealth's motion to dismiss the wrongful termination claim. The Commonwealth has not appealed from that decision , and the matter has been stayed as to both defendants pending resolution of this interlocutory appeal
.11

pleading sufficient facts to establish act ual malice
. We allowed Patrick' s appl ication for direct appellate review. 8
Discussion
. We review the denial of a motion to dismiss de novo, accepting the facts alleged in the complaint as true and drawing all reasonable inferences in the plaintiff ' s favor. Curtis v. Herb Chambers I

- 95, Inc . , 458 Mass. 674, 676 (2011). In assuming the facts as alleged, however, "[w] e do not regard as 'true' legal conclusions cast in the form of factual allegations." Leavitt v. Brockton Hosp., Inc ., 454 Mass. 37, 39 n.6 (2009). To survive a motion to dismis s, the facts alleged
must " ' plausibly suggest[] (not merely be consistent with) ' an entitlement to relief." Iannacchino , 451 Mass. at 636, quoting Bell Atl. Corp . v. Twombly , 550 U.S. 544, 557 (2007) ( Twombly )
. See Schatz v. Republican State Leadership Comm . , 669 F.3d 50, 56 (1st Cir. 2012) (court applies Twombly pleading standard in defamation action by isolating and ignoring "actual malice buzzwords").

a . A bsolute privilege
. Patrick argues first that he is immune from Edwards's defamation claims beca use his statements to the media were made in the discharge of his official duties
as governor and thus a re, or should be, protected by an absolute

8 The denial of Patrick's motion to dismiss, which raised claims of absolute and qualified privilege, was immediately appealable under the doctrine of present execution. Visnick v. Caulfield , 73 Mass. Ap p. Ct. 809, 811 n.4 (2009).12

privilege. " An absolute privilege provides a defendant with a complete defense to a defamation suit even if the defamatory statement is utter ed maliciously or in bad faith." Mulgrew v. Taunton , 410 Mass. 631, 634 (1991)
. In Massachusetts , the existence of an absolute privil ege has been recognized in

" comparatively few cases, " Vigoda v Barton , 348 Mass. 478, 484 (1965) , and has been " limited to cases in which public policy or the administration of justice requires complete immunity." Ezekiel v. Jones Motor Co . , 374 Mass. 382, 385 (1978). See Sriberg v. Raymond , 370 Mass. 105, 108

- 1 09 (1976) ( statements by
pa rty, counsel or witness made in relation to judicial proceeding ) ; Sheppard v. Bryant , 191 Mass. 591, 592

- 593 (1906) ( statements by witness testifying before legislative committee which were pertinent to questions and subject of examination ). Patrick argues that , as the majority of S tates to have considered the question have done, we should adopt the Federal standard, which affords certain high

- ranking Federal officials absol ute immunity from defamation claims based on statements made within the scope of their official duties. See Spalding v. Vilas , 161 U.S. 483, 498 (1896); 1 Sack on Defamation, Libel, Slander, and Related Problems § 8.2.5 (4th. ed. 2010) (Sack). The U nited States Supreme Court has expressed two significant policy reasons for the ado ption of an absolute privilege. See Barr v. Matteo , 360 U.S. 564, 569

- 576 (1959)
.13

First, F ederal officials should be able to discharge their duties uninhibited by the fear and distraction of lawsuits. Id
. at 571

- 573. Second, an absolute privilege furth ers free speech by allowing F ederal officials to speak with complete candor concerning matters of public importance. Id . at 577 (Black, J.,

co ncurring). The C ourt has recognized that application of an absolute privilege may result in an injustice to defa med citizens left without a remedy, but has deemed this a necessary

s acrifice for the " greater good" given the specific positions at issue. Id . at 576. As Patrick points out, consistent with the holding in Barr , t he Restatement (Second) of Torts § 591 ( 2002 ) provides for an absolute privilege for defamation claims brought against high

ranking Federal and State executive officers , including governors or State "superior executive officers." According to the Restatement, " [a] n absolute privilege to publish defamatory matter concerning another in communications made in the performance of his official duties exists for (a) any executive or administrative officer of the United States; or (b) a governor or other superior e xecutive officers of the state. " Id
. A majority of S tates have been persuaded by this reasoning, and h ave adopted an absolute privilege which shields the
governor , or cabinet

- level S tate officials , from defamation14

claims for statements made in the course of their official duties. See Sack , su pra at § 8.2.5. See , e.g., Blair v. Walker , 64 Ill. 2d 1, 6

- 11 (1976) (adopting absolute immunity to shield Illinois governor from defamation claim); Jones v. Stat e , 426 S.W.3d 50, 55

- 56 (Tenn. 2013) (cabinet

- level S tate officials such as commissioner of Department of C orrection immune from defamation claims arising from their official duties); Salazar

v. Morales , 900 S.W.2d 929, 932 (Tex. App. 1995) (Texas Attorney General had absolute privilege to publish defamatory statements in communication s associat ed with official duties). Nonetheless, other jurisdictions have recognized st rong , countervailing considerations against extending an absolute privilege to a State governor and cabinet

- level S tate officials.
See e.g., Clark v. McGee , 49 N.Y.2d 613, 618 (1 980) (" Public office does not carry with it a license to defame at will, for even the highest officers still exist to serve the publi c, not to denigrate its members" ). Chief Justice Earl Warren, dissenting in Barr , observed that the public should have a right to criticize government officials without being "subjected to unfair

- - and absolutely privileged

- - retorts." Barr , 360 U.S. at 584. Consistent with this view, a substantial minority of State courts that hav e considered the issue have concluded that a qualified or conditional privi lege is sufficient to protect high

- ranking public official s from liability where their15

statements are made in good faith and without malice. See , e.g., Aspen Exploration Corp . v. S heffield , 739 P.2d 150, 161 (Alaska 1987) (application of absolute privilege to defamation suit against governor "would do little more than protect unprivileged defamatory statements leaving injured plaintiff without a remedy"); Goddard v. Fields , 214 Ariz . 175, 178

- 180 (2007) ( c ourt d ec lined to grant Attorney General absolute immunity to defend comments made in press release )
. As the motion judge noted in his decision, this court has
not decided whether an absolute privilege shields the governor , or other high

- ranking S tate officials , from liability for all defamation claims arising out of statements made in the performance of their official duties. See Barrows v. Wareham Fire Dist ., 82 Mass. App. Ct. 623, 630 n.10 (2012)
. We considered t he issu e i n considerable depth in two cases, Mulgrew , 410 Mass. at 634

- 635 , and Vigoda , 348 Mass. at 483

- 484
. In Mulgrew , supra at 634, a police chief argued that he had an absolute privilege to defend public comments he made regarding a police officer ' s fitness for duty. In Vigoda , supra at 481, 483, a social worker brought a defamation claim against the superintendent of Boston State Hospital , in connection with written evaluations , and the superintendent claimed that his official statements should be protected by an absolute privilege
. In both cases, w e declined to apply an absolute16

privilege because a qualified privilege in those circumstances was sufficient to shield the public official from liability.
See Mulgrew , supra at 635 ; Vigoda , supra at 4 84
. Given the conflicting policy considerations discussed above, it is more prudent to examine whether Edwards plead ed sufficient facts to state a cognizable claim for defamation. We conclude that she did not. b. Adequacy of the complaint
. Edwards was r equired to allege sufficient facts to establish that: (1) Patrick made a
statement conce rning her to a third party; (2) the statement was defamatory such that it could damage her r eputation in the community; (3) Patrick was at fault fo r making the statement; and (4) the statement caused her to suffer economic loss or was actionable without economic loss. Ravnikar v. Bogojavlensky , 438 Mass. 627, 629

- 630 (2003). In addition, as a public figure, Edwards is required to allege that P atrick made a fals e and defamatory statement with knowledge that it was false or reckless disregard of its falsity. 9 See New York Times Co . v. Sullivan , 376 U.S. 254, 279

- 280 (1964) ; id . at 270 (First

9 Patrick' s status as governor also provides an independent basis for the imposition of the actual malice standard. Edwards brought her defamation claim against Patrick for statements made while Patrick was acting within the s cope his official duties. He was protected, at a minimum, by a qualified p rivilege when speaking to the media about Edwards's removal. See Mulgrew v. Taunton , 410 Mass. 631, 635 (1991); Vigoda v. Barton , 348 Mass. 478, 484 (1965)
.17

Amendment to United States Constitution protects deba te on public issues even where debate includes "vehement, caustic, and sometimes unpleasantly sharp attacks on government an d public officials"). See also Murphy v. Boston Herald , Inc ., 449 Mass. 42, 48 & n.8 (2007) ( discussing application of actual malice requirement to defamation action brought by judge ); Rotkiewicz

v. Sadowsky , 431 Mass. 748, 75 5 (2000) ( " As New York Times Co
.

v. Sullivan [, supra , ] and subsequent cases have made clear, a plaintiff who is a public official may not recover damages for defamation related t o his or her public office unless the plaintiff proves by clear and convincing evidence that the defendant made the false statement with actual malice" ). The actual malice standard requires the public figure to
prove that the statement was made either with knowledge that it

was false, or with reckless disregard as to whether it was false. See Rotkiewicz , 431 Mass. at 755. Thus, to survive a motion to dismiss, Edwards must allege sufficient facts to establish that Patrick knew the statements were false, or acted with reckless disregard for their truth or falsity. See Vigoda , 348 Mass. at 485 (" Where the official believes the matter to be
true . . . and has not acted with actual malice
. . . or with reckless indifference to the rights of the individual citi zen, his cond itional privilege is not abused" [citations omitted] ). Reckless disregard requires more than negligence; a plaintiff18

must prove that the individual making the alleged defamatory
statement " entertaine d serious doubt s as to the truth" of the
statement. Murphy , 449 Mass. at 48, quoting St. Amant v. Thompson , 390 U.S. 727, 731 (1968). T he actual malice test is subjective
. " That information was available which would cause a reasonably prudent man to entertain serious doubts is not suff icient. In order to negate the privilege, the jury must find such doubts were in fac t entertained by the defendant."
Stone v. Essex County Newspapers, Inc ., 367 Mass. 849, 8 67

- 868 (1975)
. See Gertz v. Robert Welch Inc ., 418 U.S. 323, 334 n.6 (1974)
. Bec ause it is rare to garner direct evidence of an individual's state of mind, a plaintiff may rely on circumstantial evidence to prove that a defendant had ac tual knowledge that the statements were false , or had serious doubts about the ir accuracy . Levesque v. Doocey , 560 F.3d 82, 90 (1st Cir. 2009). See Bose Corp . v. Consumers Union of U
. S ., Inc . , 692 F.2d 189, 196 (1st Cir. 1982), aff ' d, 466 U.S. 485 (1984) (subjective determinatio n whether defendant in fact ente rtained serious doubts about truth of state ment may be established by inference "as it would be very rare for a defendant to admit such doubts"). See also Murphy , 449 Mass. at 57

- 58 (determination of defendant's subjective state of mind may be made based on circumstantial evidence).19

Edwards adva nces three distinct theories to support her claim that the amended complaint all e ged sufficient facts to establish actual malice. First, she points to a Patrick administration official' s assurance that she had done nothing
wrong as indicating the falsity of Patrick ' s subsequent statements accusing her of wrongdoing . Second, she notes that the Paglia lawsuit, which Patrick referenced in his comments, did not accuse Edwards of pressuring Paglia to change his decision. Third, Edwards contends that Patrick's spite and ill will toward her establish actual malice. We address each argument in turn. 10
The am ended complaint asserts that Edwards and Foley , Patrick' s d irector of b oards and c ommissions , met on September 16, 20 14 . During that m eeting, Foley informed Edwards : "As you know, you serve at the Governor's pleasure. He has decided to replace you as Chairperson of the Sex Offender Registry Board." Responding to Edwards' s inquiry about the reasons for her removal , the complaint allege s that Foley

10 Edwards also claims that inconsistencies between Patrick's September 22, 2014 , statement and his January 2 , 2015 , statement demonstrate that he lied about her removal. This argument is without merit. Patrick's January 2, 2015 , remarks focused on the primary allegation that Edwards improperly sought to influence the independence of a hearing officer. His failure to mention t he purported systemic difficulties at SORB, as he had in his statement in September, as a further reason to remove Edwards from her position as chair did not constitute evidence that he believed t hat Edwards' s job performance had been satisfactory.20

assured E dwards that she had not done anything wrong. Yet, after Edwards's meeting with Foley, Patrick twice informed the media that Edwards was removed from her position for interfering with the independence of a hearing officer. Edwards concedes that Foley' s statements are not directly attributable to Pat rick. She contends, however, that Foley' s assurance that Edwards had done nothing w rong is evidence of what Patrick actually believed. Edwards urges us to draw t he following inferences: (1) Patrick spoke with Foley before the September 16 meeting; (2) Patrick informed Foley that he had the authority to replace Edwa rds in the exercise of his discretion; (3) Patrick told Foley that Edwards had done nothing wrong ; and (4) Patrick accused E dwards of interfering with the independence of a SORB hear ing officer al though he knew she had done nothing
wrong . All of these inferences strung together, Edwards argues, are sufficient to prove that Patrick's subsequent statements that he removed Edward s for interfering with a hearing officer

were knowingly false or were made in reckless disregard of their falsity
. This attempt to ground the allegation of actual malice on a statement purportedly made by Foley at the termination meet ing do es not satisfy the pleading standard set forth in Iannacchino , 451 Mass. at 636. The theory that Foley ' s statement somehow reflected Patrick ' s personal view of Edwa rds's job performance21

would require a fact finder to jump from o ne inference to another absen t any of the necessary factual support. Edwards' s assertions regarding Patrick's likely state of mind , based on Foley's alleged statement to Edwards, are too speculative to support a claim of actual malice
. See Shay v. Walters , 702 F.3d 76, 83 (1st Cir. 2012) ("inquiring court need not give weight to bare conclusions, unembellished by pertinent facts"); Biro v. Cond é N ast , 963 F. Supp. 2d 255, 278 (S.D.N.Y. 2013) , aff'd , 807
F . 3d 541 (2d Cir. 2015) ( " Not only is '[ p ] roving actual malice a heavy burden,
. . . but in the er a of [ Ashcroft v. Iqbal , 556 U.S. 662 (200 9 ) , ] and Twombly , pleading actual malice is a more onerous task as well " [ quotations and citation omitted ] ) . See also Sanford, Libel and Privacy § 13.3 at 13

- 62 (2 d ed. Supp. 2017 ) (noting diff iculty in pleading actual malice in light of heightened pleading standard s ); 2 Sack on Defamation, Libel, Slander, and Related Problems, § 16:2
. 2 (noting courts'

" insistence that litigation in which 'actual malice' must be established by the plaintiff prov ides no exception to the Iqbal and Twombly pleading requirements"). In her second argument, Ed wards contends that the allegations in the amended complaint are sufficient to establish actual malice because it is reasonable to infer that Patrick read the complaint in the Paglia action , and knew that the asserted pressure brought to bear on Paglia occurred before22

Edwards w as appointed to be SORB chair. This inference , however, is not supported by Edwards's own allegations in the amended complaint concernin g the Paglia lawsuit , n or by t he plain language in the Paglia complaint that was submitted as a n exhibit to the Superior Court. In her amended complaint, Edwards acknowle dges that Pa gl ia did bring a complaint against her for retaliation, and that he filed that claim after Edwards discussed the Sigh classification decision with him, and stated that she disagreed with his decision because " rape is rape ." Moreover, the Paglia lawsuit described in some detail Edwards's alleged role in the Sigh matter. Paglia's complaint clearly alleged that Edwards pressur ed him to withdraw his classification decision and to classify Sigh as a sex offender under Massachusetts l aw , and retaliated against him for his failure to do so
. The complaint also alleged that Edwa rds

" verbally berated " Paglia, " at one point making him so nervous and panicked that [he] had to go to the hospital." Accordingly, no view of t he allegations in the Paglia lawsuit would support a claim that Patrick was on notice , after reading the complai nt, that Edwards did nothing wrong. Edward's third theory concerning the sufficiency of her complaint is that Patrick ' s ill will and spite over her r ole in his brother

- in

- law' s case support a claim of actual malice. In this view , Patrick ' s statements were motivated by hosti lity23

toward Edwards for having " nearly destroyed the lives of his sister and brother

- in

- law." Thus , Patrick' s statements to the media accusing Edwards of wrongdoing were strictly personal,
meant to harm Edwards's reputa tion, and served no public
purpose. Evidence of ill will or spite is insufficient, standing alone, to establish actual malice. In Rotkiewicz , 431 Mass. at 755 , quoting Stone , 367 Mass. at 867 , we held:

" In th e context of defamation, the term 'actual malice' does not mean the defendant' s dislike of, hatred of, or ill will toward, the plaintiff. Rather , actual malice means that the ' defamatory falsehood was published with knowledge that it was false or reckless disregard of wh ether it was false.'" Reg ardless of Patrick ' s alleged spiteful, negative feelings toward Edwards, which we take , as we must, as true for purposes of considering the sufficiency of the complaint, Edwards was required to allege specific facts to prove that Patrick made his
stat ement s to the media with knowledge of their falsity or with reckless disregard of their truth or falsity . That Patrick might have harbor ed ill will toward Edwards for " nearly destroy[ing]" the lives of some members of his family does not substitute for proof o f actual malice. See Beckley Newspaper s Corp . v. Hanks , 389 U.S. 81, 82 (1967) (" personal spite, ill will or a desire to injure plaintiff" is not equivalent of actual malice).24 Order denying motion to dismiss reversed
.