THOMPSON, Circuit Judge.
Campaigning for public office sometimes has the feel of a contact sport, with candidates, political organizations, and others trading rhetorical jabs and sound-bite attacks in hopes of landing a knockout blow at the polls. It is not for the thin-skinned or the faint-hearted, to use two apropos clichés. See Monitor Patriot Co. v. Roy, 401 U.S. 265, 275-76, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971). And because political speech is the life-breath of democracy, see Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), the First Amendment—applied to the states via the Fourteenth—bars public figures from recovering damages under state defamation laws unless they show that the defamer acted with "actual malice," see New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), legalese that might suggest ill will or evil motive to the uninitiated but really means knowledge of falsity or reckless disregard for the truth, see Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 509-11, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991).
All this makes it quite obvious that defamation law does not require that combatants for public office act like war-time neutrals, treating everyone evenhandedly and always taking the high road. Quite the contrary. Provided that they do not act with actual malice, they can badmouth their opponents, hammering them with unfair and one-sided attacks—remember, speaking out on political issues, especially criticizing public officials and hopefuls for public office, is a core freedom protected by the First Amendment and probably presents "the strongest case" for applying "the New York Times rule." See id. at 666 n. 7, 686-87, 109 S.Ct. 2678. And absent actual malice, more speech, not damages, is the right strike-back against superheated or false rhetoric. See id. at 686-87, 109 S.Ct. 2678.
Today's appeal—targeting speech critical of a candidate's performance in public office and challenging the dismissal of his defamation-based complaint for failure to state a claim—brings these principles into bold relief. Finding no reversible error in the judge's careful opinion, we affirm. The story follows.
Having lost his bid for a Maine Senate seat in 2010, Democratic politician James Schatz brought this diversity suit (governed, all agree, by Maine law) against a slew of defendants for defamation libel,
The gist of Schatz's operative complaint was that the RSLC opposed his candidacy and supported his opponent's with flyers, brochures, and radio and TV ads days before the election that conjured up imaginary wrongs that he had supposedly done as a selectman for the town of Blue Hill. He attached copies of the offending circulars to his complaint, and we quote from one of them, which is representative of the others.
(Emphases removed.) And on the back:
(Emphases removed.)
A fine-print footnote in the flyers references two newspaper articles as the source for these assertions, and Schatz appended both items to his complaint too. The first, from the July 2, 2009 edition of the Bangor Daily News, chronicled the financial difficulties confronting cash-strapped Maine towns in funding fireworks for the 2009 Independence Day celebration:
It continued:
And it noted:
The second piece, from the August 9, 2009 edition of the Kennebec Journal, highlighted how local communities "are being asked to help roll back school consolidation." It started off:
It added:
After noting "Monmouth selectmen don't have the power to contribute town funds to a political cause," it informed:
And, finally, it reported:
Getting back to the complaint, Schatz alleged that the RSLC had defamed him by falsely accusing him of a crime: having lobbed words like "wrong" and "misuse" while denouncing him for working both to give taxpayer money to a "political organization" and to squelch the 2009 fireworks display, the RSLC had smeared him as a stealer of public funds. Eager to set things straight, Schatz declared in his complaint that town voters had decided in January 2008 to make an up-to $10,000 contribution to the repeal-the-school-consolidation-law effort, though they apparently gave the selectmen the discretion to decide how much (if any) of the $10,000 to spend. Consistent with that vote, the selectmen paid the Maine Coalition to Save Schools ("Coalition," for easy reading) $10,000 in three installments of varying amounts, Schatz said, with the final payment coming the day before the 2009 Independence-Day festivities. Speaking of Independence Day 2009, Schatz alleged that he himself had voted in March 2009 to fund fireworks for that day but was outvoted
Schatz then used the words "actual malice" in his complaint, claiming that the RSLC knew based on the two articles that its defamatory statements were false or was recklessly indifferent to whether they were false. And, on top of that, he accused the RSLC of not bothering to confirm the truth of its assertions, faulting it for not doing anything to double-check the articles' accuracy.
The RSLC promptly moved to dismiss Schatz's complaint for failure to state a viable claim. See Fed.R.Civ.P. 12(b)(6). Faced with that filing, Schatz dropped his intentional-infliction-of-emotional-distress claim and stated at a motion hearing that if his defamation claim failed so too would his false-light claim. Also importantly, Schatz agreed that the Coalition is a political organization, conceded that he was a public official for defamation purposes, and argued that the judge could identify actual malice by comparing what the newspapers said against what the flyers said.
After argument, the judge wrote a thoughtful opinion granting the RSLC's motion. Even assuming that the RSLC's statements were false and smacked of "`gotcha' politics" of a "juvenile" sort, the judge still had "serious doubts" about whether they were defamatory under Maine law—doubts that he did not resolve because he concluded that Schatz's complaint did not plausibly allege that the RSLC had acted with actual malice. See Schatz, 777 F.Supp.2d at 187-91. Unpersuaded, Schatz appeals.
We give de novo review to a Rule 12(b)(6) dismissal, using the same criteria as the district judge. See, e.g., Ocasio-Hernández v. Fortuno-Burset, 640 F.3d 1, 7, 11-13 (1st Cir.2011). Ocasio-Hernández points the way to the proper handling of a motion to dismiss. Step one: isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements. Id. at 12 (discussing, among other cases, Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Step two: take the complaint's well-pled (i.e., non-conclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader's favor, and see if they plausibly narrate a claim for relief. Id. (again, discussing Iqbal and Twombly, among others); see also S.E.C. v. Tambone, 597 F.3d 436, 441-42 (1st Cir.2010) (en banc). Plausible, of course, means something more than merely possible, and gauging a pleaded situation's plausibility is a "context-specific" job that compels us "to draw on" our "judicial experience and common sense." Iqbal, 129 S.Ct. at 1949, 1950. And in performing our review, we realize too that we can consider (a) "implications from documents" attached to or fairly "incorporated into the complaint,"
Like the district judge, we skip over whether Schatz's complaint plausibly alleges defamation and focus on whether it plausibly alleges actual malice—given that this is the simplest way to pinpoint Schatz's problem. Not so fast, Schatz says, suggesting that courts cannot take that tack. Unfortunately for Schatz, he cites no case for the point, and we are aware of none, so we need say no more about that. See Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175-76 (1st Cir.2011). But before we tangle with the actual-malice issue, we need to clear away some underbrush.
Schatz intimates that the RSLC should get less First Amendment protection than traditional members of the institutional press. Again, though, he makes the point in passing, with no case analysis, which does not put the matter in play here. Id. He also faults the judge for dismissing his complaint without giving him the chance to fire up the pretrial-discovery process and at least get to the summary-judgment stage. But to access discovery mechanisms, a plaintiff must first produce a complaint that passes the plausibility test—a test that helps keep defendants from wasting time and money in discovery on "largely groundless" claims. See Twombly, 550 U.S. at 558, 127 S.Ct. 1955 (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005)) (internal quotation marks omitted). And it does no good to suggest, as Schatz seemingly does, that a judge can cast aside complaints "just shy of a plausible entitlement to relief" on summary judgment: because the high cost of litigation can scare defendants into settling even a weak case pre-summary judgment, a claim must have some degree of plausibility before the parties are put through their discovery paces. See id. at 558-59, 127 S.Ct. 1955.
We turn our attention, then, back to whether Schatz's allegations plausibly support an actual-malice claim. His complaint used actual-malice buzzwords, contending that the RSLC had "knowledge" that its statements were "false" or had "serious doubts" about their truth and a "reckless disregard" for whether they were false. But these are merely legal conclusions, which must be backed by well-pled facts. See, e.g., Ocasio-Hernández, 640 F.3d at 12. As for facts, the complaint alleged that the RSLC had basically branded him a criminal, falsely charging him with working with his co-selectmen to "wrong[ly]" divert $10,000 in "taxpayer" funds to a "political organization" and then voting to kill a $10,000 fireworks celebration. The reality, at least according to his complaint, is that town residents had voted in January 2008 to contribute to the Coalition and that he had voted in March 2009 to fund the fireworks display. From these allegations Schatz further insists that the RSLC had portrayed him in a sinister light by connecting the two funding decisions (the one had nothing to do with the other) and by referring to the Coalition as a "political organization" rather than by its name (leaving the impression that maybe his "political organization" had gotten the 10 grand). Given what the newspapers had reported, which, according to the complaint, were the RSLC's sole sources of information, the RSLC knew the offending statements were false or made them recklessly without any regard for the truth—or so Schatz argues. He also points out that his complaint alleged that the RSLC did not launch "any additional investigation" to determine whether what it said was true.
We think just the opposite. After comparing what the RSLC proclaimed with what the newspapers disclosed (as everyone agrees we should), we conclude that none of Schatz's points, individually or collectively, can save the day for him.
Let us start with Schatz's beef with the RSLC's labeling "wrong" a "vote" by him and his selectmen-partners to hand $10,000 to a "political organization":
As for his railing against the RSLC for saying he had voted not to fund the 2009 Fourth of July fireworks display and for tying the two spending decisions (contributing to the repeal campaign and cancelling the fireworks) together by their timing:
This spells doom for Schatz. By now it is plain that what the RSLC said synced up with or at least was not out of line with what the stories said. Most importantly for present purposes, none of Schatz's allegations—singly or together—plausibly suggest that, given the articles' reporting, the RSLC either knew that its statements were false or had serious doubts about their truth and dove recklessly ahead anyway. That his complaint also alleged that the RSLC passed on doing "additional" legwork to verify the truth behind its statements does not change things. True, "[r]ecklessness amounting to actual malice may be found" where the defendant "relies on a source" when "there is an obvious reason to doubt its veracity ... or deliberately ignores evidence that calls into question his published statements." Id. at 90. But Schatz has not alleged enough to meet that standard. The bottom line, then, is that he has not "nudged" his actual-malice claim "across the line from conceivable to plausible," so the judge rightly dismissed the complaint. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
As a last-ditch effort to save his case, Schatz suggests that if we do not reverse the judge we will be setting pleading standards higher than what Twombly and Iqbal require. Not so. Sure, malice is not a matter that requires particularity in pleading—like other states of mind, it "may be alleged generally." See Fed. R.Civ.P. 9(b). But, to make out a plausible malice claim, a plaintiff must still lay out enough facts from which malice might reasonably be inferred—even in a world with Twombly and Iqbal. See, e.g., Iqbal, 129 S.Ct. at 1954 (noting that "Rule 9 merely excuses a party from pleading [states of mind] under an elevated pleading standard"—it does not give him carte blanche "to plead the bare elements of his cause of action, affix the label `general allegation,' and expect his complaint to survive a motion to dismiss"). Having followed Twombly and Iqbal to a T, we easily reject Schatz's last line of attack.
Concluding, as we do, that the judge reached a correct result, we uphold his decision and judgment.