## Facts

- Robert W. Matherson and Carolyn E. Matherson sued members of the band “The Good Rats” and related defendants for defamation arising from an October 28, 1980 radio broadcast interview.
- During the broadcast, band members stated or implied that they “used to fool around with” Mrs. Matherson and that Mr. Matherson had a “boyfriend,” suggesting homosexual conduct.
- The statements occurred in connection with discussion of why the band no longer performed at Matherson’s business establishment.
- Plaintiffs alleged the broadcast caused humiliation, mental anguish, reputational harm, injury to their marital relationship, and business-related losses to Mr. Matherson.
- Defendants moved to dismiss for failure to state a claim, arguing plaintiffs did not adequately plead special damages.
- The trial court dismissed the complaint but allowed plaintiffs leave to replead special damages; plaintiffs declined to amend and appealed.

## Issues

1. Whether statements made in a radio broadcast are properly treated as libel and, if libelous on their face, actionable without pleading special damages.
2. Whether the broadcast’s imputations of adultery to Mrs. Matherson and homosexuality to Mr. Matherson were reasonably susceptible of a defamatory meaning under New York law.
3. Whether the interview’s jocular setting required dismissal because listeners would necessarily understand the statements as jokes or nonactionable opinion.

## Decision

- The Appellate Division reversed the dismissal and reinstated the complaint.
- The court treated the radio broadcast as libel due to its mass-publication character.
- The court held the challenged statements were capable of defamatory meaning and constituted actionable libel per se.
- Because the claim sounded in libel per se, plaintiffs were not required to plead or prove special damages at the pleading stage.
- The court rejected dismissal based on the “joking” context because the controlling question was how an average listener could understand the words, a question for the factfinder where the language is reasonably defamatory.

## Legal Principles

- A radio broadcast may be classified as libel, not slander, when the medium’s dissemination and publication-like qualities warrant that treatment.
- Libel is actionable per se when the words, on their face, tend to expose a person to public contempt, ridicule, aversion, or disgrace, or induce an unsavory opinion in the community.
- Imputations of adultery/unchastity and imputations of homosexuality may be defamatory where they are capable of harming reputation under prevailing community attitudes.
- On a motion to dismiss, the court asks whether the language is reasonably susceptible of a defamatory construction; if so, the claim should proceed and meaning is determined by the factfinder.

## Conclusion

The court held that the radio interview’s specific statements implying Mrs. Matherson’s adultery and Mr. Matherson’s homosexuality were reasonably capable of a defamatory meaning and constituted libel per se, so the complaint stated a claim without itemizing special damages and could proceed on the merits.


Matherson v. Marchello, 100 A.D.2d 233 (N.Y. App. Div. 2d Dep’t 1984)