A recent law school graduate isn’t giving up on his lawsuit alleging the online site Above the Law defamed him in a 2018 story that referred to him as a “dumb kid” and “entitled ponce.”
On Jan. 6, U.S. District Court Judge Patti B. Saris dismissed Jonathan Mullane’s defamation suit against Above the Law’s executive editor, Elie Mystal, and parent company, Breaking Media. The next day Mullane, who earned his JD from Suffolk University Law School, appealed the dismissal to the 1st U.S. Circuit Court of Appeals.
Mullane, who is pursuing the case pro se, contends that Saris went astray by concluding that his courtroom dressing-down by a federal judge in a Florida civil case involving a $1,600 credit card dispute was a matter of “public concern” subject to the “actual malice” standard enunciated by the U.S. Supreme Court in the 1964 case New York Times v. Sullivan.
“The U.S. Supreme Court does not appear to agree with the District Court’s interpretation of what constitutes a matter of ‘public concern,’” Mullane told Lawyers Weekly. “It is clear that an argument with a judge in a $1,600 credit card dispute does not qualify.”
Mystal has made his mark casting barbs at Big Law and conservative judges in columns for Above the Law. Described on the site’s bio page as an “online provocateur,” the longtime executive editor earlier this month announced he was stepping down to become a contributing editor.
Mullane, who lives in Somerville, Massachusetts, appeared on Mystal’s radar in spring 2018 when he was a student at the University of Miami School of Law in Coral Gables, Florida.
The first-year law student secured an internship with the U.S. Attorney’s Office in the Southern District of Florida. At the same time, Mullane sued Barclays Bank as a pro se litigant in a credit card dispute.
That suit landed before U.S. District Court Judge Federico A. Moreno. According to court records, on March 23, 2018, Mullane made the mistake of going to the judge’s chambers and speaking to Moreno’s law clerk about the matter.
Mullane insists that his intentions were wholly innocent and that he merely wanted a certified copy of the record in order to proceed with his motion for a default judgment.
“There was no deception on my part,” Mullane told Lawyers Weekly.
But Moreno called the plaintiff into court and read him the riot act. At a hearing on April 10, 2018, the judge excoriated Mullane for having an ex parte communication with the court regarding a pending matter. And because Mullane had mentioned to the clerk that he worked for the U.S. Attorney’s Office, the judge accused him of using his affiliation with that office to further his personal case.
According to Mullane’s telling, defense counsel at a status conference confirmed that someone in the court tipped off Above the Law about what had happened. Mullane also suspects someone at the court provided a transcript of the hearing well before its publication on PACER. He contends that those and other alleged machinations by the defendants show actual malice.
On April 30, 2018, Above the Law published an account of the courtroom kerfuffle in a story written by Mystal titled, “Judge Detonates Pro Se Law Student So Hard I Now Must Defend a Dumb Kid.”
Mystal wrote that Mullane “was trying to file a petition of mandamus—which basically asks an appellate court to order Judge Moreno to work on his case faster. That’s pretty rude. He didn’t know where to file the petition, and ended up asking the judge’s career clerk, in the judge’s chambers, ex-parte, what to do about it. That’s pretty dumb.”
Mullane claims that Mystal’s story was simply wrong on that point.
“At no time relevant hereto was Plaintiff filing any ‘petition’ whatsoever,” Mullane’s complaint states. “Arguendo, had Plaintiff in fact wished to file a petition for a ‘writ of mandamus,’ he would have filed it in the 11th Circuit Court of Appeals—not in any office of a district court.”
In other parts of the story, Mystal appeared to take swipes at the plaintiff because his father, E. Peter Mullane, is a successful Cambridge attorney, calling the younger Mullane a “dauphin,” “entitled ponce” and “little brat.”
In addition to emotional distress, Mullane claims that, as a result of the story, the SEC rescinded his internship offer and he withdrew from law school. (He eventually returned and is currently studying for the February bar exam.)
In November 2018, Mullane filed his defamation action in superior court in Massachusetts, and the case was later removed to federal court. In addition to alleging libel per se and various other claims against Breaking Media and Mystal, Mullane sued Moreno and Assistant U.S. Attorney Alison W. Lehr, who was the plaintiff’s supervisor in Florida.
In September, Saris dismissed the claims against the government defendants for lack of personal jurisdiction.
In Mullane v. Breaking Media, decided on Jan. 6, Saris dismissed the claims against the media defendants, concluding the Fair Report Privilege protected many of the statements in Mystal’s article.
The judge rejected the plaintiff’s argument that Massachusetts’ “actual malice” exception to the privilege applied because of the pejorative language in Mystal’s story.
“A contentious interaction between a federal judge and a law student can be ‘fairly considered’ as a matter of ‘concern to the community,’” Saris wrote.
John M. Dickison of Lawson & Weitzen in Boston represents the media defendants. Dickison says Mullane falls in line with a long line of precedent applying the fair report privilege to courtroom proceedings.
The second issue raised in the case is the principle of protected opinion, he adds.
“The reporter here is giving his opinion,” Dickison says. “It may be pretty harsh and rude and antagonistic, in a sense, but at the end of the day it’s clearly his opinion based on the [court] transcript.”
BridgeTower Media Newswires