1.  "A person is actionably defamed when he is exposed to public hatred, ridicule or contempt to a considerable and respectable class in the community." Tort Law, Ch. 7, Defamation, at § 118, Vol. 37, Massachusetts Practice--the precise formulation used in paragraph 9 of the instant counterclaim.

2.  Nathan Friedman, et al. v. Boston Broadcasters, Inc., 402 Mass. 376 (1988). See also Philadelphia Newspapers, Inc., et al. v. Hepps et al., 475 U.S. 767 (1986). These cases make it clear that it is the plaintiff's burden to prove falsity, not the defendant's burden to prove truth, contrary to older cases.

3.  Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

4.  New York Times Company v. Sullivan, 376 U.S. 254 (1964), and Curtis Publishing Company v. Butts, 388 U.S. 130 (1967). Proof of malice must by clear and convincing evidence, under New York Times v. Sullivan, 376 U.S. at 286-286 and Gertz v. Robert Welch, Inc., supra 418 U.S. at 342 (1974).

5.  Brauer v. Globe Newspaper Co., 351 Mass. 53 (1966).

6. M.G.L. c. 231, § 93, prohibits the awarding of punitive or exemplary damages for defamation:

" . . . In no action of slander or libel shall exemplary or punitive damages be allowed, whether because of actual malice or want of good faith or for any other reason. Proof of actual malice shall not enhance the damages recoverable for injury to the plaintiff's reputation."

This is, of course, in line with the general rule in this Commonwealth that punitive damages are available only where specifically provided for by statute. See Tort Law, Ch. 13, Damages, at § 249, Vol. 37, Massachusetts Practice.

The limitation of defamation damages--in any and all circumstances--to actual damages was reaffirmed in John J. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 860 (1975).

7. In addition to being run by end-users on their own machines, Cyber Patrol is run by America On Line (AOL) on its servers, with parents being able to assign their childrens' sessions to pre-defined age-groupings with progressively fewer types of sites blocked.

8. The most significant point of divergence between the showings needed to prevail under federal and state discrimination law is as to rebuttal of an explanation of a nondiscriminatory reason as pretextual, with state law allowing pretext to be shown by proving the falsity of the proffered reason, and some federal courts requiring more than that, That distinction may not last, however, and may already be gone, at least in this Circuit, as Judge Bownes' decision in Hodgens v. General Dynamics Corporation, 144 F.3d 151, 1998 U.S. App. LEXIS 10279; 73 Empl. Prac. Dec. (CCH) P45,412 (1st Cir. 1998) brought the First Circuit into accord with Blare v. Husky Injection Molding Systems, Inc., 419 Mass. 437 (1995).

That distinction is moot, here, however, as there is no debate over whether he was fired for taking leave for treatment or for some other reason, such as poor performance. The defendants' counterclaim explicitly says, at paragraph 5, that their reason for firing Silverstein is what he says it was--he was fired for "taking an unauthorized leave of absence" when he left for medical treatment sooner than they wanted him to.

9. The inclusion of a disclaimer that the offer is not an admission of liability in the offer was surplusage. Even without that language, the offer could not have been introduced against them if it had been rejected--but the judgment that flowed from it is still a judgment. Rule 68 was intended to end cases, by acting as a shield for defendants being pursued by unreasonable plaintiffs. It was not designed as a sword to slash at plaintiffs who accept the offer, by allowing defendants to make offers that they then try to undo by forcing the plaintiffs to endure the very expense and delay they were purportedly trying to avoid by the offer--on all the same factual issues!

10.  In addition to the "contradictory judgments" bar discussed above, there is also a bar by agreement. This Court entered judgment "against the defendants in the above-captioned case in favor of the plaintiff"--in language that was almost exactly the same as that of the defendants' August 31, 1999 Offer of Judgment. (Copies of both are attached.) The plaintiff does not want to to belabor the obvious, but a "case" consists of all claims of all parties--not just the claims of one party.

As there was no language included in the judgment (or in the Offer of Judgment it flowed from) to exclude any claim or counterclaim from its scope, that judgment disposed of the whole case, not just part of it.

The defendants argue that since Rule 68 cannot be used offensively by a claiming party to leverage an agreement for judgment in favor of that claim by the threat of costs, their offer cannot be taken to include their claim. There is no reason, however, why a defending party cannot offer to surrender their counterclaim in addition to paying money to the plaintiff, which is how this offer and judgment were worded.

This argument was presented to the motion judge on an emergency basis and not accepted, but the Court is always free, prior to entering final judgment, to reconsider that ruling under Rule 54(b), though it does not, as a matter of policy, do so often.

11.  If they in fact saw or felt any harm to their reputations, the defendants were far better able to get their side of the story out than was the plaintiff, whose web site had over a year, less than 10% of the hits the defendants' web sited get each day. They have never made any effort to dispute his public allegations except in court. In addition, when a reporter for the Boston Globe contacted their attorney, Michael Rosen, for a response to the plaintiff's allegations two years into his representation of the defendants in this dispute, he did not deny anything that the plaintiff said but said simply that it was only one side of the story.

12.  See Carroll v. Gillespie, 14 Mass.App.Ct. 12, 26 (1982), quoting Jones v. Brockton Pub Markets, Inc., 369 Mass. 387, 389 (1975), itself quoting from Quaranto v. Silverman, 345 Mass. 423, 426 (1963). See also Gabriel v. Borowy, 324 Mass. 231, 236 (1949).

13.  Fishman v. Brooks, 396 Mass. 643, 652 (1986).