Friday, February 10, 1989

Case of Yitzhak Sha'ari

Case of Yitzhak Sha'ari
(AKA:  Itzik Shaari)
International Youth Hostel - Jerusalem, Israel

Allegations of both sexual harassment and sexual assault were made against Yitzhak Sha'ari, who ran an international youth hostel in Jerusalem.  His hostel was promoted in the the student travel guide "Let's Go Israel".   

Back in 1990 three women sued Shaari for sexual harassment.  One of the alleged survivors said Shaari allegedly lured her to his apartment with the promise of a modeling job, then asked her to strip for him.

If you have more information regarding this old case or a photograph of Yitzhak Sha'ari, please forward it to The Awareness Center.

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Table of Contents:  

  1. City Refuses to License Youth Hostel (02/10/1989)
  2. Private House' Replaces Controversial Hostel (08/25/1989)
  3. Hostel To Stay Open Pending Official Ruling (09/15/1989)

  1. Controversial Hostel's Days Are Numbered  (02/02/1990)
  2. Closed' Hostel Has Open Doors  (07/27/1990)
  3. City Getting 'Serious' About Open-Shut Hostel  (08/17/1990)

  1. Itzik Shaari vs. Harvard Student Agency, Inc. (01/08/1998)
  2. Libel Law Under Review in SJC Lawyer Seeks Truth As Absolute Defense (01/09/1998)
  3. SJC Decision a New Blow to Mass. Libel Law (03/21/1998)
  4. Harvard travel writers cleared in libel case  (03/23/1998)
  5. Court strikes down 'malice' exception in state libel law (04/20/1998)


City Refuses to License Youth Hostel
Robert Rees
Jerusalem Post - February 10, 1989

Charges of alleged sexual harassment and sleazy management prompted the local planning committee to decide unanimously this week not to license the International Youth Hostel, at 35 Rehov Ussishkin. The committee thereby upheld a municipal administrative closure order that has kept the hostel shut since January 12.

The decision was backed by a recommendation from the police, written by Jerusalem and Southern District Commander Yosef Yehuda'i. Quoting from the letter at Monday's meeting, local planning committee chairman Avraham Kehila noted that the police had opened two files against hostel proprietor and manager Yitzhak Sha'ari, after women lodgers had filed sexual harassment charges.

"There were at least 50 instances in the last two years in which female tourists told me they had been abused or attacked by Sha'ari," Edison Youth hostel manager Maria Bloomfield, who sat in on the meeting, said later. "I always advised the girls to file complaints with the police, but these matters take time and the tourists had usually left the country before their cases reached the courts."

"In one instance, a young woman came to the Edison from the International Youth Hostel in the middle of the night," charged new immigrant and Edison hostel employee Barry Namier, also speaking after the meeting. "She said she had woken up in her room and found Sha'ari with his head between her legs."

"I came to the meeting today because I'm sorry about what was done to those girls, and I want to see that justice is done," said Hani Mendelovitch, 26, who worked at the hostel for five months in 1987.

"Itzik used to set his sights on every girl who walked into the hostel," she revealed after the meeting. "We would be sitting together and he would say what kind of scheme he intended to employ. "He frequently offered girls drinks, in order to try and get them drunk. Other times he suggested that they smoke hashish with him.

Acting police spokeswoman Nurit Bouton confirmed this week that the police had opened two files against Sha'ari, but refused to elaborate as the matter is sub judice.

Sha'ari's lawyer, Moshe Arad stressed at the meeting that no charges had been issued against his client, and that the city could therefore not base its licensing decision on unsubstantiated claims.

The Monday meeting was attended by an unusual coalition of Sha'arei Hessed residents, who live near the hostel, and managers and employees of other city youth hostels. Both parties were interested in ensuring that the city withhold licensing from the hostel, which had been functioning without a valid permit since first opening its doors, in June 1986.

Kehila on Tuesday termed the hostel's operating without a licence, "a foul-up by the city's legal department."

But local planning committee's legal adviser, Isaac Eliraz, said refuted the charge. the city's legal affairs department had sought a closure order from the Municipal Affairs Court in July 1986, a month after it the hostel originally opened its doors.

Sha'ari's repeated appeals to the local planning committee, and that body's failure to make a final decision on the matter, had kept the hostel open until last month, Eliraz said.

Local residents' complaints that the hostel has been a disruptive influence in their quiet neighbourhood were seconded by Raymond Levy, head of the Nahlaot and Rehavia Neighbourhood Administration's planning committee.

In reply to Arad's charge that the various hostel managers were driven by "commercial motives" in attempting to keep the Ussishkin hostel closed, Bloomfield stressed that "there are several youth hostels in this city, and we all get along with each other, with the exception of this one hostel. He has single-handedly given Jerusalem hostels a bad name." The International Youth Hostel is not affiliated with the Israel Youth Hostel Association.

The 1989 edition of the internationally popular Harvard travel guide, in its description of city hostels, assessed the International Youth Hostel as follows: " ... Women should not stay here, nor should men who don't want to encourage harassment. The manager, Itzik, was being sued on sexual harassment charges by three different women during the summer of 1988 ... f management changes, this could be a great hostel; it's worth checking. But avoid Itzik (short, dark-skinned, smelling heavily of cologne) at all costs."

The above passage was quoted at the meeting by Sha'arei Hessed Rabbi Yigal Frank. Frank said he had previously submitted to the municipality a petition signed by 250 neighbourhood residents calling for closure of the hostel.

Arad later threatened to sue Harvard University, publishers of Let's Go Europe, over written material that he said had defamed his client.

Private House' Replaces Controversial Hostel
By Ron Kampeas
Jerusalem Post - August 25, 1989 

A controversial youth hostel in Sha'arei Hessed, ordered shut by the city in January amid allegations that its proprietor sexually harassed employees and tenants, now bears signs stating it is a "private residence." But the establishment continues to operate as a hostel.

The large sign identifying the place as the International Youth Hostel, at 35 Rehov Ussishkin in Sha'arei Hessed, has come down, and hand-written signs declaring in Hebrew "Absolutely No Entry" have gone up. Other signs state that the building is the "private residence" of the Sha'ari, Fraser and Victoria families.

But despite the disclaimers on the building, a man in his twenties at the Central Bus Station this week was distributing leaflets for "The House" at the same address. The leaflets promised a "warm atmosphere" with "free tea and coffee" and "cheap beers, cokes and meals." It also boasted "new management," which, it was "important" to note, is "helpful and reliable."

Yitzhak Sha'ari, the proprietor of the International Youth Hostel, is still in charge.

The hostel was first ordered closed on January 12, but continued operating. In February, the local planning committee met to consider a neighbourhood residents' petition to close the hostel permanently. At the meeting, proprietor Sha'ari was identified as the "Itzik" cited by a travel guide, Let's Go Europe 1989. According to the guide, Itzik was being sued on sexual harassment charges.

That citation, combined with a written recommendation by the late Jerusalem police chief Yosef Yehuda'i and testimony from Sha'arei Hessed residents and former employees, led the committee to uphold the municipal administrative closure order.

The municipality began receiving requests to close the hostel a month after its opening in July 1986. Sha'ari had delayed closure by appealing to the local planning committee. When the committee upheld the closure last February, Sha'ari appealed to the Interior Ministry's District Planning Commission.

A spokeswoman for the District Planning Commission said the case was still under consideration and that field checks were under way. These included a police check, she said. She added that although Sha'ari was not permitted to run any business on the premises while the investigation was in progress, the committee could only express its "dismay" that the hostel was open. Only the city could act to close it, she said.

A municipal spokesman said the District Planning Commission had not returned the case to the city. The city will only be able to take action once the case is returned.

Inside the building this week, about a dozen young tourists, apparently temporary tenants at the residence, were milling around. One South African said he had heard of the residence through a pamphlet handed to him at the Central Bus Station. "There's another place that used to be near here mentioned in Let's Go Europe," he said, evidently referring to the previous incarnation of the building as the International Youth Hostel. "We were lucky that this place opened up instead."

Sha'ari insisted that the house was an "entirely private" home and that the lodgers were his "friends."

There are several flat owners in Jerusalem who rent out rooms to travellers, operating through agents at the Central Bus Station. A Jerusalem legal expert described these operations as existing in a legal "twilight zone." He said, "They probably ought to have a licence, but the business is so small, involving as it does widows and pensioners, that the authorities turn a blind eye to them."

Nonetheless, the legal expert noted that Sha'ari would not qualify in this area. "He is running a full-scale business, evidently without a licence. He can take down the sign, but that doesn't change anything."

Sha'ari refused to comment on two charges of sexual assault brought against him last year. A police spokesman said he knew of no outstanding cases against Sha'ari, but that if the hostel was being operated illegally, a file would be opened.

An employee of the Edison Youth Hostel noted it was still receiving some "fall-out" from Sha'ari's business. At the local planning committee hearing in February, Edison hostel proprietor Maria Bloomfield said that at least 50 young women had come to her hostel in the past two years after claiming to have been sexually abused or harassed by Sha'ari.

"He {Sha'ari} is still very much in business," the Edison employee said. "He's still leafleting at the Central Bus Station, isn't he? In fact he sics the police on our leafleters. There's nothing wrong with leafleting, of course, but it distracts our people long enough for his people to fill the gap."

Hostel To Stay Open Pending Offical Ruling
By Ron Kampeas, For In Jerusalem
The Jerusalem Post - September 15, 1989

A controversial youth hostel in Sha'arei Hesed will continue to operate without a municipal licence, at least until October. The Interior Ministry's District Planning Commission inspected it this week, but did not recommend its closure.

The House hostel is run by the same man who ran the International Youth Hostel at the same address, 35 Rehov Ussishkin. The city ordered the proprietor, Yitzhak Sha'ari, to close the International Youth Hostel in January. Sha'ari appealed the closure order to the district commissionin February and continued operating the hostel. City sources say he should have closed it pending disposition of his appeal, first heard on June 11.

Meanwhile, the International Youth Hostel sign was removed, and leaflets were distributed at the Central Bus Station advertising The House at the same address "under new management." Signs in Hebrew on the building said it was a "private home."

The district commission's tour of the hostel on Monday was led by deputy chairman Uri Ben-Asher and was joined by lawyers for Sha'ari, the Sha'arei Hesed Neighbourhood Committee and the Bloomfield family which runs competing hostels in Jerusalem. The commission was greeted by about 40 demonstrating Sha'arei Hesed residents calling for the hostel's closure.

The local building and planning committee has complained to the city for 2 years since the hostel opened without a licence in 1986, claiming it created a disturbance. The committee later cited allegations of sexual harassment against Sha'ari published in the popular U.S. student travel guide Let's Go.

A municipal spokeswoman said the city would not take action against the hostel for defying the January order to close as long as the case was in the hands of the District Planning Commission.

At its June 11 meeting, the District Planning Commission decided to visit the premises and to seek legal and police opinions, which haven't yet been offered. Following Monday's visit, a commission spokeswoman said nothing would be decided before the commission's October meeting.

Residents of the quarter, represented by lawyer Barry Zinn, said they wanted the hostel shut and not replaced by another.

"This is a quiet, residential neighbourhood, populated by religious people for 80 years," said neighbourhood committee head Yigal Frank. "The hostel causes disturbances. Tourists knock on the door of Rabbi Shlomo Zalman Auerbach - in his 80s and one of the greatest Tora sages alive - at all hours of the night. Furthermore, it hurts the neighbourhood's reputation. Let's Go specifically mentioned Rehov Ussishkin," which lies just beyond Sha'arei Hesed.

He added, "(The hostel) is not a good influence on the students at the (nearby) Ma'alot Hatora Yeshiva."

The hostel's back entrance is on Rehov Parosh. Frank said that much of the hostel's traffic is at this entrance, which the neighbourhood committee alleges is part of an illegal extension.

Sha'ari's attorney, Naomi Weill, said opposition to the hostel was an "unholy alliance" between haredi residents of the neighbourhood and Maria Bloomfield, the manager of the competing Edison Hostel on Rehov Yeshayahu. Weill said, "I don't want (the haredim) taking over Jerusalem." She also said Bloomfield was seeking to cut off the competition.

Bloomfield acknowledged that she and Sha'ari had been partners in a third youth hostel during the early 1980s. She claimed that he had cheated her of earnings from it.

Zinn argued that Bloomfield was taking an interest in the matter to protect the reputation of similar establishments in Jerusalem.

Weill said Sha'ari was subletting rooms in the building and abiding by his rental contract, which specifically prohibited a hostel on the premises. Sha'ari claimed leaflets distributed at the Central Bus Station were planted by his enemies to get him into trouble, she added.

The phone number printed on the leaflet is that of Sha'ari's residence and he takes calls and confirms the prices and conditions published on the leaflet. One tourist at the residence said he had come to The House after getting a leaflet, believing the hostel was different from that described in Let's Go.

Demonstrators who met the commission this week noted that tourists were still seen walking in and out of the building, and a non-haredi neighbour said she had seen nude sunbathers on the roof a few days earlier. Zinn noted there were still posters advertising menu prices and luggage-storage rates.

The decision to close the hostel last January was based in part on a recommendation by late police chief Yosef Yehuda'i, who cited two complaints of sexual assault against Sha'ari. In March, police dropped the charges and their recommendation of closure, because the complainants left Israel.

Zinn produced two letters from former guests detailing harassment and abuse. One of the guests alleged that Sha'ari had held her hand over a flame when she insisted that Charles Dickens, and not Mark Twain, had written Oliver Twist.

Sha'ari would not allow the commisioners and the lawyers to enter a room alleged by Zinn to contain a peephole into a woman's room, saying that it was "untidy."

GRAPHIC: Illustration: Photo; Caption: Yitzhak Sha'ari with protesters outside The House hostel, at the same Rehov Ussishkin address as the International Youth Hostel, which has been ordered to close. Credit: Zeev Ackerman.

Controversial Hostel's Days Are Numbered
Ron Kampeas
Jerusalem Post - Feb. 2, 1990

A controversial Rehov Ussishkin youth hostel faces imminent closure, ending a three-and-a-half-year struggle by Sha'arei Hessed residents to seal the fate of the hostel.

The hostel, which has continued to operate despite a year-old closure order against it, is expected to be shut down in the next few days, city sources said this week.

According to one municipal source, only paperwork prevented The House, formerly known as the International Youth Hostel, from being closed. "The issue was effectively decided by the District Planning Commission in November," the source said. "The city inspector has only to receive the official word."

The local planning committee ordered the hostel closed a year ago, after the 1989 edition of the popular travel guide, Let's Go: Israel and Egypt, alleged that the proprietor, Yitzhak Sha'ari, sexually harassed female clients. Sha'ari countered that the allegations had been fabricated by competitors, and said he was suing the publishers of the guide.

The case had been brought before the local planning committee by the Sha'arei Hessed residents' committee a year ago. The back of the hostel overlooks Sha'arei Hessed, whose residents complained about the disrepute Sha'ari's alleged actions had brought to the neighbourhood and the unsuitability of having a hostel in a residential area.

Sha'ari immediately lodged an appeal to the District Planning Commission. Thus, though the local committee's closure order was still in effect, municipal officials said they could not act while the case was with the district commission.

Sha'ari, meanwhile, continued to operate the hostel, using a new name, The House. He said last summer he was not violating the local committee's closure order, since The House was not a hostel: he was merely subletting the rooms for very short periods of time.

In November, the District Planning Commission rejected Sha'ari's appeal on the grounds that the hostel infringed on the residential nature of the area and that the building itself was unsuitable for a hostel.

According to the municipal source, all that now remains is for the file to arrive from the commission and action will be taken immediately. The source said that the file was expected by early next week.

Barry Zinn, counsel for the residents of Sha'arei Hessed, said he was "gratified that the closure order would soon take effect. Still, it is hard to believe that it takes from November to February for a file to travel from {the District Planning Commission office on} Rehov Heleni Hamalka to {city hall on} Jaffa Road."

Zinn had lodged an inquiry into the progress of the case last week, since the hostel was still open.

Closed' Hostel Has Open Doors
By Norm Guthartz 
Jerusalem Post - July 27, 1990

A Rehavia youth hostel, officially closed by the city since January 1989, is still operating, though city inspectors have declared it is not.

The International Youth Hostel at 35 Rehov Ussishkin was ordered closed because of allegations against proprietor Yitzhak Sha'ari of sexual harassment and because of its location in a residential neighbourhood.

However, Sha'ari has continued to operate the hostel under new names - the House, and, more recently, Down Town - though handwritten signs on the rented, stone house warn visitors that it is not a hostel.

In the office, a large sign on the back wall lists "hostel" regulations, and a young woman minding the office gave price information on accommodations. The establishment has a two-bed private room, two four-bed rooms and two dormitories with six and eight beds, respectively, she said.

The office also books tours to the Golan Heights, the Dead Sea and the Negev and walking tours of the Old City, the staffer said.

Municipal inspectors found no evidence that a hostel was being operated in the building, according to a letter from the city complaints department to Barry Zinn, the attorney representing residents of the predominantly Orthodox adjacent Sha'arei Hessed neighbourhood.

The May letter from the complaints office cited the handwritten note on the building and said that city officials had found the place "rented to two separate people, each storey to someone else."

According to a resident renting an apartment at the back of the building, the hostel has been operating since he moved there in October.

In addition, two British tourists stayed at the hostel in January. After their one-night stay, they filed an affidavit with Zinn stating that they and another eight or 10 people had spent the night there. "We paid NIS 11.50 each in cash, which we were told included VAT," they wrote. "We were not given a receipt, we were not asked to identify ourselves, nor were we asked to register in any book."

At the Central Bus Station this week, a man handed out flyers advertising "Down Town" to young tourists. It included a map of how to reach the hostel and listed such amenities as free use of a kitchen, television and video, "cheap beers, Cokes and meals," heated rooms and no curfew.


City Getting 'Serious' About Open-Shut Hostel 
By Norm Guthartz
Jerusalem Post - August 17, 1990 

The city is investigating whether a youth hostel, closed by municipal order in January 1989, is still operating. A staffer at the alleged hostel freely quoted prices recently for accommodation in its rooms and dormitories.

"The matter is under serious investigation," city deputy spokeswoman Bonnie Boxer said. Behira Dekel of the city complaints department visited the building at 35 Rehov Ussishkin this month, but Boxer declined to give details of the probe.

Until last year, Yitzhak Sha'ari operated the International Youth Hostel in the stone building at the edge of predominantly Orthodox Sha'arei Hessed. Neighbors complained that the hostel was a nuisance, and that the establishment operated without a license.

The city closed the hostel because of allegations that Sha'ari had sexually harassed female guests. However, the establishment continued operating under different names; it was called the House and, more recently, Down Town.

Dekel, in a letter to the attorney representing Sha'arei Hessed residents, wrote in May that municipal inspectors had found no evidence a hostel was operating in the building.

Sha'ari was in the U.S., according to a woman who answered the phone in the Rehov Ussishkin building, but he was expected back late this week.


Itzik Shaari vs. Harvard Student Agency, Inc.
January 8, 1998 

427 Mass. 129
January 8, 1998 - March 20, 1998
Middlesex County
Discussion of State and Federal cases concerning a plaintiff's burden of proof in a libel case. [131-0]

This court concluded that the application of General Laws c. 231, s. 92, which allows a plaintiff in a libel action to recover for a defendant's truthful defamatory statement made with malice, to a media defendant's truthful defamatory statements concerning a matter of public concern, violates the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights. [132-134]

CIVIL ACTION commenced in the Superior Court Department on November 15, 1990.

The case was heard by Catherine A. White, J., on a motion for summary judgment, and a question of law was reported by Margot Botsford, J., to the Appeals Court. The Supreme Judicial Court granted a request for direct review.

John C. Lankenau, of New York (Jonathan M. Albano & Rosanna Sattler with him) for the defendants.

Jonathan M. Albano & Kathryn E. Loebs, for the Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.

LYNCH, J. This matter arises from a report to the Appeals Court of the propriety of an order of a Superior Court judge denying the defendants' motion for summary judgment. We allowed the defendants' application for direct appellate review. [Note 2] The plaintiff, alleging that the defendants, the author and the

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publisher of a travel guide, made defamatory statements about him in their guide, commenced a libel action. After conducting extensive discovery, the defendants moved for summary judgment. The judge denied the motion, primarily relying on G. L. c. 231, s. 92. The report raises the question whether s. 92 unconstitutionally infringes on the defendants' freedom of speech, as guaranteed by the F*st Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution. For the reasons set forth below, we conclude that it does and reverse the judge's decision and order the entry of judgment for the defendants.


The defendant Harvard Student Agencies, Inc., prepares, and the codefendant St. Martin's Press, Inc., publishes annually a budget travel guide known as "Let's Go: Egypt & Israel." The 1989 edition stated, in reference to the plaintiff's youth hostel: "Women should not stay here, nor should men who don't want to encourage harassment. The manager, Itzik, was being sued on sexual harassment charges by 3 different women during the summer of 1988." Similarly, the defendants' 1990 edition opined, "Let's Go strongly recommends that travelers DO NOT stay here. Don't let the beautiful neighborhood and calm exterior fool you. If management changes, this could be a great hostel; check at the tourist office."

These two statements were the basis of the plaintiff's libel action. A judge subsequently dismissed the plaintiff's claim as to the 1989 statement on the ground that a New York court had already deemed it as time barred. [Note 3] After the parties conducted extensive discovery, the defendants moved for summary judgment as to the 1990 statement. Their primary claim was that the truthfulness of their statement regarding the sexual harassment allegations against the plaintiff precluded any valid libel claim. [Note 4] Another judge denied the motion, concluding that, although the Attorney General received notice of the defendants challenge to the constitutionality of G. L. c. 231, s. 92, but declined to intervene.

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statement was substantially true, G. L. c. 231, s. 92, dictates that the truthfulness of a defamatory statement is not necessarily a defense to a private plaintiff's libel claim.


General Laws c. 231, s. 92, provides: "The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved" (emphasis added). Thus, under the statute, if a plaintiff shows that the defendant acted with malice in making a defamatory statement, the plaintiff may recover -- even if the statement is true.

The United States Supreme Court has consistently held in defamation cases that, in order to avoid offending a publisher or broadcaster's First Amendment rights, a plaintiff must establish the existence of a "defamatory falsehood." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). Where the plaintiff is deemed a "public figure," the Court has expressly concluded that the First Amendment "absolutely prohibits punishment of truthful criticism." Garrison v. Louisiana, 379 U.S. 64, 78 (1964), citing New York Times Co. v. Sullivan, supra. If an individual "has published the truth, and no more [about a public person], there is no sound principle which can make him liable, even if he was actuated by express malice." [Note 5] Garrison v. Louisiana, supra at 73, quoting State v. Burnham, 9 N.H. 34, 42-43 (1837). Moreover, "only those false statements made with the high degree of awareness of their probable falsity . . . may be the subject of either civil or criminal sanctions." Garrison v. Louisiana, supra at 74.

In Materia v. Huff, 394 Mass. 328 , 329 (1985), both the defendant and the plaintiff were candidates for elected office in their labor union. As such, they were "public figures." Id. at 331-332. Citing the Court's decisions in New York limes Co. v. Sullivan, supra,

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and Garrison v. Louisiana, supra, we noted that "a judge cannot constitutionally apply G. L. c. 231, s. 92, to a public figure or public official." Materia v. Huff, supra at 333 n.6. At the same time, however, we decided to "leave open consideration of the constitutionality of the statute as applied to private [figures]." Id.

Although the Supreme Court has instructed that private figure plaintiffs may recover "on a less demanding showing than that required" in cases of public figure plaintiffs, Gertz v. Robert Welch, Inc., supra at 348, the falsity of the defendant's defamatory statement regarding matters of public concern remains a prerequisite to recovery. In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-769 (1986), the Court held that, where "a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false." There, a private individual filed a libel suit against a newspaper for its articles linking this individual to organized crime and influence peddling. Id. at 769. These articles, the Court determined, were "of public concern." Id. at 776. Acknowledging the deterrent effect of placing the burden of proving truth on defendants who publish speech of public concern, the Court fashioned "a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages." Id. More recently, the Court, in Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990), concluded that Philadelphia Newspapers, Inc. v. Hepps, supra, stands for the proposition that "a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant is involved." See Friedman v. Boston Broadcasters, Inc., 402 Mass. 376 , 381 (1988) ("These were statements about a matter of public concern, and therefore . . . in order for them to be the basis of a recovery from this media defendant, the plaintiffs must prove not only that the statements were defamatory, but also that they were false").

Factually, the circumstances of the present case closely resemble those in Philadelphia Newspapers, Inc. v. Hepps, supra. The judge here correctly decided that, because the plaintiff had not "voluntarily inject[ed] himself" or become "drawn into a particular public controversy," Gertz v. Robert Welch, Inc., supra

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at 351, he was a private figure. See Bowman v. Heller, 420 Mass. 517 , 524, cert. denied, 116 S. Ct. 682 (1995). [Note 6] However, the matter on which the defendants wrote and published in their consumer guide, the existence of multiple sexual harassment claims against the proprietor of a youth hostel open to the general population, is one "of public concern." See Dulgarian v. Stone, 420 Mass. 843 , 844, 847 (1995) (statements concerning "potential conflicts of interest between automobile body repair shops and drive-in appraisal services"); Friedman v. Boston Broadcasters, Inc., supra (statements that plaintiff insurance company was engaging in deceptive business practices); Brown v. Hearst Corp., 54 F.3d 21, 25 (1st Cir. 1995) (televised news report linking plaintiff to unsolved disappearance of his wife); Phantom Touring, Inc. v. Affiliated Prods., 953 F.2d 724, 727 (1st Cir.), cert. denied, 504 U.S. 974 (1992) (articles negatively reviewing plaintiff's theatrical production). [Note 7] Finally, there remains the question whether these defendants, the author and the publisher of consumer travel guides, are "media defendants" as the Supreme Court uses the term in reviewing State libel law. [Note 8] Milkovich v. Lorain Journal Co., supra at 1920. To be sure, the defendants are not the prototypical members of the "media," such as the Boston Globe or Boston Herald. However, we perceive no difference of constitutional magnitude between a travel review published by the Boston Globe or

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Boston Herald, which would require a defamation plaintiff to prove falsity, and the article complained of here, and therefore we conclude, as a matter of State constitutional law, that the defendants are members of the "media." Furthermore, we doubt whether the Supreme Court would apply the media distinction to give greater protection to media giants such as the New York Times or Columbia Broadcasting System than to the modern equivalents of Thomas Paine or John Peter Zenger. Moreover, as the Supreme Court has instructed in another context:

"Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as the large metropolitan publisher who utilizes the latest photocomposition methods.... Freedom of the press is a 'fundamental personal right' which 'is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets.... The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.' Lovell v. Griffin, 303 U.S. 444, 450, 452 (1938). See also Mills v. Alabama, 384 U.S. 214, 219 (1966); Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943). The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists." (Emphasis added.)

Branzburg v. Hayes, 408 U.S. 665, 704-705 (1972). We feel compelled, therefore, by the Supreme Court's view of the First Amendment to require that this plaintiff's recovery be predicated, in part, on proof that the defamatory statements were untrue.

General Laws c. 231, s. 92, offers a plaintiff the opportunity to recover for a defendant's truthful defamatory statement made with malice. To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment.

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We reverse the order denying summary judgment and order the entry of summary judgment for the defendants.

So ordered.


[Note 1] St. Martin's Press, Inc.

[Note 2] We acknowledge the amicus brief submitted on behalf of the defendants by the Massachusetts Newspaper Publishers Association. We also note that the

[Note 3] The judge ruled that, under the full faith and credit clause of the United States Constitution, Massachusetts courts must honor the judgment of a New York court, despite the fact that New York's statute of limitations differs from that of Massachusetts. see Roche v. McDonald, 275 u.s. 449, 452 (1927). That ruling is not before us on appeal.

[Note 4] The defendants also maintained that their 1990 statement was not actionable because (1) it was merely an expression of opinion, and therefore protected by the First Amendment; (2) the plaintiff could not show the requisite degree of fault to warrant relief; and (3) the statement was protected under the common interest privilege. The judge rejected each of these claims.

[Note 5] In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986), the Court acknowledged that "[o]ur opinions to date have chiefly treated the necessary showings of fault rather than of falsity. Nonetheless, as one might expect given the language of the Court in New York Times [Co. v. Sullivan, 376 U.S. 254, 279 (1964)] . . ., a public-figure plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation."

[Note 6] Where the relevant facts are not disputed, it is for the judge to determine whether a plaintiff is a public or private figure. See Rosenblatt v. Baer, 383 U.S. 75, 88 (1966); Stone v. Essex County Newspapers, Inc., 367 Mass. 849 , 862 (1975). "We look 'to the nature and extent of [the plaintiffs] participation in the particular controversy giving rise to the defamation.' " Materia v. Huff, 394 Mass. 328 , 331 (1985), quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974). When "an individual voluntarily injects himself or is drawn into a particular public controversy[, he] thereby becomes a public figure for a limited range of issues." Gertz v. Robert Welch, Inc., supra at 351. See Bowman v. Heller, 420 Mass. 517 , 523, cert. denied, 116 S. Ct. 682 (1995).

[Note 7] "Whether . . . speech addresses a matter of public concern must be determined by [the expression's] content, form, and context . . . as revealed by the whole record." Dun & Bradstreet, Inc. v. Greenmoss Bldrs., Inc., 472 U.S. 749, 761 (1985), quoting Connick v. Myers, 461 U.S. 138, 147-148 (1983).

[Note 8] The Supreme Court has reserved judgment on the standards to be applied to nonmedia defendants. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 n.6 (1990); Philadelphia Newspapers, Inc. v. Hepps, supra at 779 n.4.


Libel Law Under Review in SJC Lawyer Seeks Truth As Absolute Defense
By William Doherty
Boston Globe - January 9, 1998

The Supreme Judicial Court was asked yesterday to declare as unconstitutional the state's 170-year-old libel law and effectively put Massachusetts in line with the rest of the country by making truth an absolute defense in libel cases.

At issue is an article published in "Let's Go," a travel guide compiled by Harvard students, which criticizes a youth hostel in Jerusalem.

The guide encouraged readers to avoid the hostel because several women had filed police complaints accusing the owner, Itzik Shaari of sexually harassing them. At least two of the women had stayed at the hostel.

Shaari sued for libel in 1990, claiming $2 million in damages.

Unlike other states, Massachusetts does not hold truth as an absolute defense in a libel case. Under its libel law, even if a statement is true, the author can be sued if he or she was motivated by malice.

In July 1990, Middlesex Superior Court Judge Catherine White found that, even though the statements were true, Shaari was entitled to a trial to determine whether the Harvard student who wrote the article was motivated by ill will.

The student, whose name is being withheld, said that while researching the article she recognized Shaari as the same person who harassed her on a previous visit to Jerusalem some years earlier. She said he lured her to his apartment on the promise of a modeling job and asked her to take off her underwear.

In a deposition after the lawsuit was filed, the woman admitted she did not like Shaari and had undergone psychiatric treatment as a result of her experience.

The other complaints against Shaari did not result in formal charges, according to court papers. There was either insufficient evidence or the women had left the country.

White subsequently found there was an issue whether the article, published in 1989, was intended to harm Shaari's business or warn readers.

Shaari's lawyers have withdrawn from the case, and no one argued on his behalf yesterday before the court.

Attorney John C. Lankeneau, who represents the Harvard Student Agencies, which prepares the annual "Let's Go" guides, and St. Martin's Press, which publishes them, told the court yesterday that the case involves "fundamental issues of free speech," and that the law should be struck down.

"The Supreme Court of the United States has consistently held that {false statements are} an essential element" in libel cases, he said. Attorney General Scott Harshbarger's office was notified about the case, Lankeneau said, but declined to defend the libel statute.

Similar laws in Louisiana and Illinois have already been struck down, he said.

A brief filed by Lankeneau and Boston lawyer Rosanna Sattler argued that the First Amendment of the US Constitution and Article 16 of the state constitution prohibit libel plaintiffs from recovering damages for the publication of the truth.

In a friend-of-the-court brief filed by the Massachusetts Newspaper Publishers Association, attorney Jonathan M. Albano said: "There are journalists reporting news stories each day who have as their goal to `get it right.' "

That task is daunting enough, Albano said, without "the specter that even when the press prints the truth they may face damage claims based solely upon an assessment of the purity of their motives."

If the statute is upheld, Albano said, "every reporter must not only get it right, but must be able to prove they did so for the right reason."

The court has taken the matter under advisement.

SJC Decision a New Blow to Mass. Libel Law
By John Ellement
Boston Globe - March 21, 1998

In another blow to the state's 170-year-old libel law, the Supreme Judicial Court yesterday ruled that publishers sued for libel in Massachusetts can use truth as a defense in some cases.

The court's unanimous decision, written by Justice Neil Lynch, expands on a 1985 ruling and gives publishers the right to use that defense in lawsuits brought by private figures over issues of "public concern."

The ruling overturned a Superior Court ruling that kept alive a libel suit filed by an Israeli businessman against Harvard Student Agencies, Inc., publisher of the popular "Let's Go" budget travel book series.

The businessman, Itzik Shaari, sued the publishers after its 1989 and 1990 Egypt and Israel guides warned female travelers to avoid Shaari's youth hostel. The reason: In 1988, three women sued Shaari for sexual harassment.

Shaari sued the publishers in 1990, claiming $2 million in damages. A similar lawsuit he filed in New York was thrown out, but Massachusetts courts, relying on the 1828 law, kept part of his suit in play.

Unlike other states, Massachusetts law does not hold truth as an absolute defense in a libel case; even if a statement is true, the author could be liable if he or she is found to have been motivated by malice.

In July 1990, Middlesex Superior Court Judge Catherine White found that, even though the "Let's Go" statements were true, Shaari should get a trial to determine whether the student wrote them out of malice.

The student, whose name was withheld, said that while researching the article she recognized Shaari as the same person who harassed her on a visit to Jerusalem years earlier. Shaari allegedly lured her to his apartment with the promise of a modeling job, then asked her to strip for him.

In her deposition, the woman admitted she did not like Shaari and had undergone counseling after the incident. White subsequently found there was a question about whether the article was intended to warn readers or harm Shaari's business.

In 1985, the SJC ruled the truth of a published report effectively bars a public figure from suing for libel. But yesterday's opinion marked the first time the court has tackled the issue involving private figures.

Rosanna Sattler, an attorney for Harvard Student Agencies, said the ruling "means in a situation where you have a matter of public concern -- and in this case the public concern was the safety of young, impressionable, college students -- then {the Massachusetts law} can not be applied because it violates the First Amendment."

The SJC also ruled that the travel guide had the same free-speech protections enjoyed by "media giants such as the New York Times or Columbia Broadcasting System," Lynch wrote. Free speech, he added, extends to the "modern equivalents of Thomas Paine or John Peter Zenger."

Jonathan Albano, who represented the Massachusetts Newspaper Publishers Association as well as the travel guide publishers, said that part of the decision could mean the SJC could favorably consider extending the libel protection to Internet Web sites.

People publishing their opinions over the Internet, Albano said, "get the same protection as the big boys -- if what they publish is true."

But Albano stressed that the SJC has yet to tackle that issue. Until the court does so, he said, it will remain an open legal question. But yesterday's ruling effectively guts the 170-year-old law.

"It's not completely dead, but it's on life support," he said. "It's sort of barely breathing."

Before the SJC heard the case in January, Shaari's attorneys withdrew from the case. The SJC ruled solely on information provided by the travel guide publishers and the newspaper publisher association.

Sattler said the travel guide publishers are "very happy" the lawsuit has ended.

"They knew from this beginning that this was not a valid claim," she said. "It took nine years to have that validated." 


Harvard travel writers cleared in libel case 
The Patriot Ledger - March 23, 1998

 Unable to find article


Court strikes down 'malice' exception in state libel law 
Reporters Committee - April 20, 1998

MASSACHUSETTS--In late March the state Supreme Judicial Court in Boston ruled that a state law allowing libel suits over truthful statements printed with "actual malice" is unconstitutional.

The law, drafted in the 19th century, provided that the truth of the matter contained in a publication was a defense against libel suits "unless actual malice is proved." At the time the statute was passed, "actual malice" referred to ill will, hatred or hostility rather than the "knowing falsehood" interpretation of the term adopted by the U.S. Supreme Court in 1964.
In 1985 the state high court declared the law unconstitutional as applied to public figures or officials who file libel suits, but left unanswered the question of whether it would be constitutional if applied to private individuals who sue for libel.

The court held that the Superior Court in Lowell correctly concluded that Itzik Shaari, the manager of a youth hostel that was reviewed unfavorably in the 1989 and 1990 editions of the travel guide "Let's Go: Egypt & Israel," was a private figure for the purposes of his libel suit against the preparer and publisher of the guides. The 1989 guide advised travelers to avoid Shaari's hostel because the manager was "being sued on sexual harassment charges by 3 different women." The 1990 guide similarly suggested that the hostel be avoided unless the management changed.

Nonetheless, the court concluded that because the subject of the review was a matter of legitimate public concern, Shaari would have to prove that the guides' defamatory statements about his hostel were not only malicious but also false. Allowing a showing of malice to overcome defenses based on truth violated the First Amendment, the court held. (Shaari v. Harvard Student Agencies, Inc.; Media Counsel: John Lankenau, New York)

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