From Massachusetts Superior Court Judge John Pappas's opinion in Lucey v. Kinnon, decided last month but just posted on Westlaw; seems correct to me:
Mr. Kinnon's allegedly defamatory statement was made to … Mr. Lucey … in response to a comment Mr. Lucey made under a post Mr. Kinnon published on the Facebook Group, "Malden (MA) Politics." The group has over 2000 members, and "is a forum for discussion of local events and political issues relevant to Malden and the surrounding area." Mr. Lucey alleges that he and Mr. Kinnon have a history of online exchanges "dating back years," and that Mr. Kinnon has engaged in casting "obnoxious" insults at him, including those attacking his skill as an attorney and his intellectual prowess…. The [allegedly defamatory] comment, in full, reads as follows:
I am beginning to wonder if you are capable of reading. Might want to read again and anyone who would hire you as an attorney God Bless them, because someone must have taken the bar exam for you. Read below again for my answer to Mr. Bernstein, it might help you.
Read in its entirety, it is clear that Mr. Kinnon's comment is not making any factual assertions, but instead uses hyperbolized language meant to insult Mr. Lucey. For example, although Mr. Kinnon is clearly aware that Mr. Lucey is not illiterate, given his history of engaging in written exchanges with Mr. Lucey, Mr. Kinnon derisively states, "I am beginning to wonder if you are capable of reading." Mr. Kinnon then writes "someone must have taken the bar exam for you." This statement is clearly an exaggeration following Mr. Kinnon's obvious frustration with Mr. Lucey's previous comment.
Notably, Mr. Kinnon did not assert, as a fact, that someone took the bar exam for Mr. Lucey. Rather, he speculates that someone "must have" taken the bar exam for Mr. Lucey, in the same way he sarcastically speculated whether Mr. Lucey could read.
Furthermore, anyone who has used Facebook is aware that it is a platform that breeds spiteful and juvenile exchanges. Therefore, the Court cannot conclude that an objectively reasonable Facebook user, particularly those frequenting a page about local politics, would call into question Mr. Lucey's ethics or credentials as an attorney simply by reading Mr. Kinnon's statement….
Before you use this as an excuse to tell me, "someone must have taken the bar exam for you," remember that I now have judicial precedent for the proposition that "Volokh is correct."
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