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First Circuit Won't Revive Barbara Walters Lawsuit

By Robyn Hagan Cain on December 21, 2012 | Last updated on March 21, 2019

It will be a happier holiday for a veteran newswoman this year, thanks to the First Circuit Court of Appeals.

Wednesday, the Boston-based federal court dismissed a defamation lawsuit against Barbara Walters.

In the early 1980s, plaintiff Nancy Shay attended Wykeham Rise, a boarding school located in Washington, Connecticut. While there, Shay became friends with Jackie, whose mother happens to be Walters.

In 1983, Jackie and Shay "engaged in conduct that resulted in the school suspending both of them." Shay says that she and Jackie were found arm-in-arm in bed, and claims that Walters called her and told her to keep silent about the incident. The school expelled Shay -- but not Jackie -- later that year. Following her expulsion, Shay went into a "deep depression," which led to substance abuse and emotional instability.

In 2008, Walters published "Audition," a memoir chronicling her life and career. Chapter 38 deals with Walters' relationship with her daughter and focuses specifically on difficulties encountered during Jackie's childhood. It includes a reference to a friend of her daughter's at Wykeham Rise named "Nancy," "whom the school kicked out midterm for bad behavior." It explains that "[Nancy] and Jackie had been found in the nearby town, high on God-knows-what."

When Shay learned about the statements, she sued Walters for defamation and negligent infliction of emotional distress (NIED).

Walters moved for judgment on the pleadings, contending that Shay's claims failed as a matter of law. The district court dismissed the case.

The First Circuit affirmed dismissal, finding that the challenged statements, as a matter of law, were not defamatory. The appellate court also concluded that Shay's complaint contained no plausible allegations of fault.

Here, Shay didn't prove that Walter's statements in "Audition" "could damage [Shay's] reputation in the community" and that Walters "was at fault in making the statements." The district court reasoned that the challenged statements were not defamatory because the tiny group of people who might recognize the plaintiff as the "Nancy" in "Audition" would also know what really happened at Wykeham Rise.

Shay argued that more people may have learned her identity thanks to investigative journalists who, after she sued, republished more detailed versions of the story in newspapers, tabloids, and blogs. The problem? Filing the suit was Shay's doing, and Walters didn't make the republished statements.

So Shay's defamation case fell apart.

And, since the Supreme Court made it clear in Hustler Magazine, Inc. v. Falwell that a failed defamation claim cannot be recycled as a tort claim for NIED, Shay also lost the distress claim.

We can't blame Shay for trying to sue Baba Wawa; it sounds like she had a rough life after the Wykeham Rise scandal, and "The View" master has deep pockets. Unfortunately, Massachusetts' four-part defamation test is unforgiving.

The First Circuit noted that events relevant to Shay's claims occurred in Connecticut, Massachusetts, and perhaps in other places where "Audition" was published. If you're fighting a similarly far-flinging defamation claim, consider forum shopping for a more plaintiff-friendly state.

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