Three days after the Boston Marathon bombings, the New York Post ran a front with the bold assertion, “BAG MEN. Feds seek these two pictured at Boston Marathon.” Next to the printed words was a photo Salaheddin Barhoum and Yassine Zaimi.
Soon after, the public learned that Barhoum and Zaimi were not implicated in the bombing but were merely standing near the finish line. The two sued the New York Post for defamation, among other causes of action.
In March 2014, Massachusetts Superior Court Judge Judith Fabricant denied the New York Post‘s motion to dismiss the defamation suit.
Judge Fabricant recounted the law of defamation in Massachusetts in her Memorandum of Decision. “To state a claim of defamation with respect to a matter of public concern, a plaintiff must allege facts sufficient to show that the defendants published a statement, of and concerning the plaintiff, that was both defamatory and false. Dulgarian v. Stone, 420 Mass. 843, 847 (1995). A statement is defamatory if it ‘would tend to hold the plaintiff up to scorn, hatred, or ridicule or contempt, in the minds of any considerable and respectable segment in the community. Phelan v. May Dept. Stores Co., 443 Mass. 52, 56 (2004).’ The imputation of a crime is defamatory per se.’ Id.”
Judge Fabricant ultimately concluded that:
“A reasonable reader could construe the publication as expressly saying that law enforcement personnel were seeking not only to identify the plaintiffs, but also to find them, and as implying that the plaintiffs were the bombers, or at least that investigators so suspected.”