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SJC-12175

SAUNDRA R. EDWARDS vs. COMMONWEALTH & 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.

Civil 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 September 16, 2014, then Governor Deval 

Patrick removed Saundra R. Edwards from her position as chair of 

the Sex Offender Registry Board (SORB). A few days later, in 

response to media inquiries about Edwards's abrupt departure,

 

1 Deval Patrick.
2

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

replace 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 an 

action for defamation and wrongful termination in the Superior 

Court, Patrick repeated his explanation that he had decided to 

remove Edwards from office because she had interfered with the 

independence of a SORB hearing officer. Edwards filed an 

amended complaint, asserting a wrongful termination claim 

against the Commonwealth, and two defamation claims against 

Patrick, individually, one for 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 number 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 the 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. Because, Patrick 

maintained, the amended complaint contained only bare conclusory 
3

assertions 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 Iannacchino v. Ford 

Motor Co., 451 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. We 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 Patrick'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 the 

amended complaint, taking them as true for purposes of 

evaluating the motion to dismiss. SORB is an administrative 
4

agency within the Executive Office of Public Safety and Security

(EOPSS). SORB is responsible for enforcing the provisions of 

the sex offender registry 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 assistant district attorney in Plymouth County for 

thirteen years. She specialized in prosecuting sex offenses, 

child abuse, and domestic violence.

a. Sigh-Paglia matter. According to the amended 

complaint, in September, 1993, Patrick's brother-in-law, Bernard 

Sigh, pleaded guilty to a charge of spousal rape in California; 

in his plea he admitted that 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, but 
5

did not register as a sex offender2 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 notified Sigh of his duty to register 

as a level 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 on his petition and 

assigned the matter to one of its board members. While that 

hearing was pending, SORB 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 officer Attilio Paglia replaced the previously 

assigned board member, and scheduled a hearing 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. 151564 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 department 

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 the Attorney General's review of the legal 

question concerning the status in Massachusetts of Sigh's 

offense.

Notwithstanding these instructions, Paglia began the 

hearing on August 1, 2007. After being informed of the hearing, 

Paglia's supervisor ordered him not to issue a decision in the 

matter pending a determination by the Attorney General. Paglia 

continued to hear evidence on August 10 and 31 and issued an 

oral decision finding that the California crime of spousal rape 

is not a like offense to the Massachusetts crime of rape. 

Accordingly, he relieved Sigh of the obligation to register as a 

sex offender. Paglia did not issue a written decision, as is 

required by SORB regulations.

b. Edwards'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 

SORB's counsel and other SORB officials of the disagreement 

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 

case 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 informed 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 crime 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 elements 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

against 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 Edwards 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 Bldg. Co., 472 Mass. 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, characterized by harassing electronic mail messages 

and telephone calls, and poor performance reviews. Paglia also 

claimed that he had complained to Edwards about "unlawful 

conduct that occurred prior to and during her tenure as Chair," 

and that Edwards retaliated by accusing him (through the deputy 

counsel of EOPSS) of insubordination and performance 

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 editor to "subject 

the finality of hearing examiner decisions to doubt and 

ambiguity."

Edwards's termination. According to the amended complaint, 

on September 15, 2014, Edwards was ordered to attend a meeting 

the next day at the governor's office, with the general counsel

and chief of staff of EOPSS, and Patrick's director 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's 
9

pleasure. He has decided to replace you as the Chairperson of 

the Sex Offender Registry Board." Edwards 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 resign effective that 

day.

d. Patrick's statements to the media. The amended 

complaint further states that Patrick made two statements to the 

media concerning Edwards's removal as SORB chair. 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 Executive 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-inlaw'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 their lives."6

On January 2, 2015, Patrick made additional comments to the 

media concerning his reasons for removing Edwards:

"You know, people do things like this when they'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 involve 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. Edwards'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 chair, 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, 

Edwards filed an amended complaint, adding a second claim of 

defamation based on Patrick's January 2, 2015, response to media 

inquiries following the filing of Edwards's initial complaint.

Patrick moved to dismiss the defamation claims on grounds 

of absolute and qualified or conditional privilege. A Superior 

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 actual malice. We 

allowed Patrick's application 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 dismiss, 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. Absolute privilege. Patrick argues first that he is 

immune from Edwards's defamation claims because his statements 

to the media were made in the discharge of his official duties 

as governor and thus are, 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. App. 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 uttered maliciously or in bad faith." Mulgrew v. 

Taunton, 410 Mass. 631, 634 (1991). In Massachusetts, the 

existence of an absolute privilege 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, 108-109 (1976) (statements by 

party, 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 States to have 

considered the question have done, we should adopt the Federal 

standard, which affords certain high-ranking Federal officials 

absolute 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 United States Supreme Court has expressed two 

significant policy reasons for the adoption of an absolute 

privilege. See Barr v. Matteo, 360 U.S. 564, 569-576 (1959). 
13

First, Federal officials should be able to discharge their 

duties uninhibited by the fear and distraction of lawsuits. Id. 

at 571-573. Second, an absolute privilege furthers free speech 

by allowing Federal officials to speak with complete candor 

concerning matters of public importance. Id. at 577 (Black, J., 

concurring). The Court has recognized that application of an 

absolute privilege may result in an injustice to defamed 

citizens left without a remedy, but has deemed this a necessary 

sacrifice for the "greater good" given the specific positions at 

issue. Id. at 576.

As Patrick points out, consistent with the holding in Barr,

the Restatement (Second) of Torts § 591 (2002) provides for an 

absolute privilege for defamation claims brought against highranking 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 executive officers of the state." 

Id.

A majority of States have been persuaded by this reasoning, 

and have adopted an absolute privilege which shields the 

governor, or cabinet-level State officials, from defamation 
14

claims for statements made in the course of their official 

duties. See Sack, supra 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. State, 

426 S.W.3d 50, 55-56 (Tenn. 2013) (cabinet-level State officials 

such as commissioner of Department of Correction 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 communications associated with official duties).

Nonetheless, other jurisdictions have recognized strong,

countervailing considerations against extending an absolute 

privilege to a State governor and cabinet-level State officials. 

See e.g., Clark v. McGee, 49 N.Y.2d 613, 618 (1980) ("Public 

office does not carry with it a license to defame at will, for 

even the highest officers still exist to serve the public, 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 have considered the issue have concluded that 

a qualified or conditional privilege is sufficient to protect 

high-ranking public officials from liability where their 
15

statements are made in good faith and without malice. See, 

e.g., Aspen Exploration Corp. v. Sheffield, 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) (court declined 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 State 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 the issue in 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, we declined to apply an absolute 
16

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 484.

Given the conflicting policy considerations discussed 

above, it is more prudent to examine whether Edwards pleaded

sufficient facts to state a cognizable claim for defamation. We 

conclude that she did not.

b. Adequacy of the complaint. Edwards was required to 

allege sufficient facts to establish that: (1) Patrick made a 

statement concerning her to a third party; (2) the statement was 

defamatory such that it could damage her reputation in the 

community; (3) Patrick was at fault for 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 Patrick made a false 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 scope his official duties. 

He was protected, at a minimum, by a qualified privilege 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 debate on 

public issues even where debate includes "vehement, caustic, and 

sometimes unpleasantly sharp attacks on government and 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, 755 (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 to 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 citizen, 

his conditional privilege is not abused" [citations omitted]).

Reckless disregard requires more than negligence; a plaintiff 
18

must prove that the individual making the alleged defamatory 

statement "entertained serious doubts as to the truth" of the 

statement. Murphy, 449 Mass. at 48, quoting St. Amant v. 

Thompson, 390 U.S. 727, 731 (1968). The actual malice test is

subjective. "That information was available which would cause a 

reasonably prudent man to entertain serious doubts is not 

sufficient. In order to negate the privilege, the jury must 

find such doubts were in fact entertained by the defendant."

Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 867-868

(1975). See Gertz v. Robert Welch Inc., 418 U.S. 323, 334 n.6 

(1974).

Because 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 actual 

knowledge that the statements were false, or had serious doubts 

about their 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 determination whether defendant in fact entertained 

serious doubts about truth of statement 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 advances three distinct theories to support her 

claim that the amended complaint alleged 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 amended complaint asserts that Edwards and Foley, 

Patrick's director of boards and commissions, met on 

September 16, 2014. During that meeting, 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 alleges 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 the 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 that Edwards's job performance had been

satisfactory.
20

assured Edwards 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 Patrick. She contends, however, that Foley's 

assurance that Edwards had done nothing wrong is evidence of

what Patrick actually believed. Edwards urges us to draw the 

following inferences: (1) Patrick spoke with Foley before the 

September 16 meeting; (2) Patrick informed Foley that he had the 

authority to replace Edwards in the exercise of his discretion; 

(3) Patrick told Foley that Edwards had done nothing wrong; and 

(4) Patrick accused Edwards of interfering with the independence 

of a SORB hearing officer although 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 Edwards 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 meeting

does 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 Edwards's job performance 
21

would require a fact finder to jump from one inference to 

another absent 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. 

Condé Nast, 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 era of [Ashcroft v. Iqbal, 556 

U.S. 662 (2009),] 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 (2d ed. Supp. 

2017) (noting difficulty in pleading actual malice in light of 

heightened pleading standards); 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 provides no exception to the Iqbal

and Twombly pleading requirements").

In her second argument, Edwards 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 before 
22

Edwards was appointed to be SORB chair. This inference, 

however, is not supported by Edwards's own allegations in the 

amended complaint concerning the Paglia lawsuit, nor by the 

plain language in the Paglia complaint that was submitted as an 

exhibit to the Superior Court. In her amended complaint, 

Edwards acknowledges that Paglia 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 pressured him to withdraw his 

classification decision and to classify Sigh as a sex offender

under Massachusetts law, and retaliated against him for his 

failure to do so. The complaint also alleged that Edwards

"verbally berated" Paglia, "at one point making him so nervous 

and panicked that [he] had to go to the hospital." Accordingly, 

no view of the allegations in the Paglia lawsuit would support a 

claim that Patrick was on notice, after reading the complaint,

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 role in 

his brother-in-law's case support a claim of actual malice. In 

this view, Patrick's statements were motivated by hostility 
23

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 reputation, 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 the 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 

whether it was false.'"

Regardless 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 

statements to the media with knowledge of their falsity or with 

reckless disregard of their truth or falsity. That Patrick 

might have harbored ill will toward Edwards for "nearly 

destroy[ing]" the lives of some members of his family does not 

substitute for proof of actual malice. See Beckley Newspapers

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.