Former Altar Boy Loses Defamation Suit

By Jack Greiner
Cincinnati Enquirer
February 9, 2021

https://www.cincinnati.com/story/money/2021/02/09/strictly-legal-former-altar-boy-loses-defamation-suit/4451835001/

Former altar boy Kevin DiMauro recently saw a New York state appellate court affirm the dismissal of his libel suit against a Staten Island newspaper.

DiMauro claimed that the Staten Island Advance identified DiMauro as a victim of sexual abuse by a Catholic priest. DiMauro’s case failed, however, because he couldn’t demonstrate that he was the subject of the reporting.

In October 2018 the Advance published an article reporting that allegations of sexual abuse against a pastor at Blessed Sacrament Roman Catholic Church had been substantiated.

In the print version of the article, between the headline “Longtime pastor ‘will never serve as a priest again’” and the subheading “Archdiocese affirms sex-abuse allegations against former Blessed Sacrament monsignor,” the Advance included a photograph from 2000 depicting the pastor at issue, two other priests, and three children—including DiMauro, walking in a church processional, with several parishioners in the background.

The caption to the photograph read, “Monsignor Francis Boyle, seen here at Blessed Sacrament Roman Catholic Church in West Brighton in 2000, faces sex-abuse allegations brought through the Archdiocese’s Independent Reconciliation Program.”

In granting the Advance’s motion to dismiss, the court ruled that DiMauro couldn’t establish that the article was “of and concerning” him. In a libel case, the plaintiff has to establish that the article is of and concerning him. That means the plaintiff must “prove that the statement referred to them and that a person hearing or reading the statement reasonably could have interpreted it as such.” DiMauro argued that by including the photo that depicted him in the procession with the abusive priest, the article sufficiently identified him as one of the victims.

The court wasn’t buying that argument. As it noted, “[t]he article specifically stated that the archdiocese ‘will not be releasing information on those who come forward, so as to protect their anonymity’ and that details of ‘when, where and how the alleged abuse occurred’ were not released. The article did not state that Monsignor Boyle’s victims were children. . . . [T]he defendants’ article did not expressly or impliedly pertain to the plaintiff . . . .” The photo at most identified DiMauro as one of many altar boys at Blessed Sacrament. That sole connection to the story couldn’t lead a reasonable reader to conclude DiMauro was a victim.

The court also dismissed DiMauro’s claims under a New York statute prohibiting the unauthorized use of a person’s image for “trade or advertising purposes.” As the court ruled, “[h]ere, it is undisputed that the publication in question was a newsworthy event and there is no contention that it was an advertisement in disguise. Further, contrary to the plaintiff’s contention, the photograph, which depicted the priest in question at the church which first reported the abuse, was reasonably related to the article.”

The First Amendment would not allow a claim against a newspaper for using a photo for editorial purposes, nor would it tolerate a requirement that a publication obtain consent for such a use. DiMauro’s case ultimately didn’t have a prayer, so to speak. And the court properly dismissed it.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues. He can be reached at jgreiner@graydon.law