Butcher v. University of Massachusetts , 111 N.E.3d 294 ( 2018 )

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17-P-161 Appeals Court
JON BUTCHER vs. UNIVERSITY OF MASSACHUSETTS & others.1
No. 17-P-161.
Suffolk. April 11, 2018. - September 17, 2018.
Present: Milkey, Maldonado, & Wendlandt, JJ.
Practice, Civil, Summary judgment. Libel and Slander.
Newspaper. Damages, Libel. Emotional Distress.
Civil action commenced in the Superior Court Department on
January 21, 2014.
The case was heard by Douglas H. Wilkins, J., on motions
for summary judgment.
Jon Butcher, pro se.
Jean M. Kelley for the defendants.
WENDLANDT, J. This case presents the issue whether, in the
absence of any official government action, the fair reporting
privilege extends to a newspaper's publication of a witness's
statement to police. The plaintiff, Jon Butcher, filed this
1 Keith Motley, Winston Langley, Patrick Day, James Overton,
Donald Baynard, Paul Parlon, Shira Kaminsky, Paul Driskill, Cady
Vishniac, and Brian Forbes.
2
defamation action against the University of Massachusetts
(UMass), a number of its employees (university defendants), and
other individuals associated with its student newspaper
(newspaper defendants),2 after the newspaper published articles
reporting that he allegedly had taken photographs of women
without their permission on the campus of the University of
Massachusetts-Boston (UMB). We hold that, prior to the
commencement of official police action, the newspaper's
publication of a witness's allegations to police officers was
not protected by the fair reporting privilege. We thus reverse
the Superior Court judge's allowance of summary judgment as to
Butcher's defamation claim against the defendant Cady Vishniac.
We also reverse the allowance of summary judgment on Butcher's
intentional infliction of emotional distress claim against
Vishniac. We otherwise affirm the judgment.
Background. "We recite the facts in the light most
favorable to the plaintiff." Ravnikar v. Bogojavlensky, 438
Mass. 627, 628 (2003). The allegedly defamatory publications
2 The newspaper defendants are Shira Kaminsky, Paul
Driskill, and Cady Vishniac. The defendants assert that
Butcher's claims against Kaminsky and Driskill have been
dismissed because they were not served with the summons and
complaint. The Superior Court docket reflects neither any proof
of service nor a dismissal as to Kaminsky and Driskill. On
appeal, Butcher does not address the status of service as to
them. Pursuant to Mass. R. Civ. P. 4 (j), as appearing in 402
Mass. 1401 (1988), the time limit for service of the summons and
complaint has expired.
3
concern an incident –- the details of which are disputed -– that
took place at the John F. Kennedy Massachusetts Bay
Transportation Authority station (JFK station) on the morning of
March 13, 2013. At the time, Butcher worked as a security
engineer in the information technology department at UMB, and
regularly rode a shuttle bus from JFK station to campus.
That morning, the records of the UMB police department
reflect that a UMB police officer responded to a report of
suspicious activity that had taken place at JFK station. The
officer arrived at the UMB campus and met with a bus driver for
the private company that provided the shuttle service. The bus
driver stated that he had observed Butcher taking photographs of
women on the bus. The bus driver explained that he confronted
Butcher, and Butcher responded by attempting to hide his face
with a newspaper. Before exiting the bus, Butcher photographed
the bus driver, and the bus driver photographed Butcher. The
bus driver sent the officer his photograph of Butcher.
Following this report, Butcher, under the assumed name
"Eric Jones," sent an electronic mail message (e-mail) to the
UMB public safety department regarding the incident, and
provided a different version of events. In the e-mail, Butcher
indicated that the bus driver had falsely accused him of taking
photographs of people on the bus, and then had become very
hostile toward him. Butcher explained that the bus driver began
4
taking photographs of him and then physically blocked him when
he tried to exit the bus. Butcher stated that he took
photographs of the bus driver so that he could report the
incident.
Sometime after the UMB officer met with the bus driver,
the UMB student newspaper published an excerpt from the UMB
police blotter regarding the incident:
"A suspicious white male in a black jacket took photographs
and video of nearby women, as well as some buildings on
campus. A witness stated that the party did not appear to
be a student and was not wearing a backpack. The witness
snapped a photograph of the suspect and shared that
photograph with Campus Safety[.] Officers tried to locate
the suspect at JFK/UMass Station, but could not find him."
Subsequently, on March 25, 2013, the newspaper published an
article on its Web site, accompanied by a photograph of Butcher
provided by the shuttle bus company, and a headline above the
photograph stating, "Have You Seen This Man?" The article
provided additional details regarding the incident covered in
the police blotter:
"On the morning of March 13, the man in the photograph
allegedly walked around the UMass Boston campus snapping
pictures of female members of the university community
without their permission. According to the student who
reported him, he did not appear to be a student as he was
not carrying a backpack. If you see him, please call
Campus Safety at 617-287-7780."
Additionally, in its March 26 through April 9 print version, the
newspaper published the same article as the one appearing on the
5
Web site, this time accompanied by two photographs of Butcher,
under the same headline, "Have You Seen This Man?"
According to UMB police records, on March 27, after
publication of these articles, two of the named university
defendants, Detective Paul Parlon and Captain Donald Baynard of
the UMB police department, met with Butcher to discuss the
incident at JFK station. When they informed him that the UMB
student newspaper had published his image along with the above
described allegations, he became incensed. They then asked him
whether he had taken photographs at the JFK station, to which he
responded, "I take pictures of everything. I was taking
pictures of the amount of buses and the structural area." He
further stated that on that day he had been photographing "the
sun and the flowers or something." He also explained that he
had sent his earlier e-mail using the Eric Jones alias because
he values his privacy, did not want to create problems at his
workplace, and wanted to remain anonymous. At the conclusion of
the meeting, Baynard and Parlon took possession of Butcher's
UMass cellular telephone (cell phone) over Butcher's protests.
Examination of the "Micro SD card" from the cell phone did not
reveal any photographs of women from the day of the incident at
the JFK station. The only photographs from that day were of
buses and bus drivers at the JFK station.
6
In the months following the newspaper's publication of the
above described articles, Butcher became distressed as he
believed that he faced hostility on campus. He believed that
people he passed on campus stared at him with fear and loathing.
He also began walking from the JFK station to campus instead of
taking the shuttle because the bus drivers would stare at him
and kept copies of the newspaper articles regarding Butcher open
on their dashboards. The campus environment made him fear both
for his safety, and for the safety of his family.
Additionally, Butcher faced negative consequences at his
workplace in the UMB information technology department. His
relationship with the defendant Brian Forbes, his supervisor,
deteriorated after the publications. For example, he was no
longer given the opportunity to attend trainings regarding
campus network security and implementation of new campus
technology, and he was also removed from ongoing information
technology department projects. In addition, he was given a
higher volume of low-level assignments, including being tasked
with responding to simple computer security inquiries from
campus employees. Eventually, the stress, fear, and negative
work environment caused Butcher to decide to leave his job,
forfeiting his pension and benefits package. Although his
current salary is higher than at UMB, he has less paid vacation
time, sick time, and personal days.
7
Procedural history. In January, 2014, Butcher filed the
present action in Superior Court, asserting six claims arising
from the aforementioned publications: (1) defamation (against
all defendants); (2) "declaratory judgment" (against all
defendants); (3) "direction under false pretense" (against
Forbes); (4) "illegal seizure without probable cause" (against
Baynard and Parlon); (5) workplace retaliation (against Forbes);
and (6) "emotional distress" (against all defendants). A
Superior Court judge allowed the defendant Patrick Day's motion
to dismiss as to all counts of the complaint, describing Day's
motion as "without opposition"; allowed UMass's and the
university defendants' motion to dismiss as to all counts3 except
the claim for intentional infliction of emotional distress;4 and
allowed Vishniac's motion to dismiss as to all counts except the
defamation and intentional infliction of emotional distress
claims. A different Superior Court judge then allowed the
3 The judge allowed UMass's and the university defendants'
motion to dismiss the defamation claim on the ground that the
complaint did not plead any role they played in the publication
of the articles and photographs.
4 Butcher raises no argument on appeal regarding the
dismissal of the other counts or the dismissal of all counts
against Day. Accordingly all such arguments are waived. See
U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 426 n.10
(2014) (argument not addressed on appeal is waived);
Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975)
("The appellate court need not pass upon questions or issues not
argued in the brief").
8
remaining defendants'5 motion for summary judgment on the
remaining counts, and entered final judgment for all the
defendants.
Discussion. We review the motion judge's allowance of
summary judgment de novo to determine whether "there is [a]
genuine issue as to any material fact . . . and the moving party
is entitled to judgment as a matter of law" (quotation omitted).
Dulgarian v. Stone, 420 Mass. 843, 846 (1995). See Mass. R.
Civ. P. 56 (c), 365 Mass. 824 (1974). "The party moving for
summary judgment in a case in which the opposing party will have
the burden of proof at trial is entitled to summary judgment if
he demonstrates . . . that the party opposing the motion has no
reasonable expectation of proving an essential element of that
party's case" (quotation omitted). Dulgarian, 420 Mass. at 846.
1. Defamation. To establish a claim for defamation, a
plaintiff must prove four elements: (1) the defendant made a
false statement to a third party, (2) of or concerning the
plaintiff, (3) that was capable of damaging the plaintiff's
reputation in the community and that caused the plaintiff
economic loss or is actionable without proof of economic loss,
and (4) the defendant was at fault. See Ravnikar, 438 Mass. at
5 Vishniac was the only remaining defendant with regard to
the defamation claim; Vishniac, UMass, and the university
defendants (except Day) were the remaining defendants with
regard to the intentional infliction of emotional distress
claim.
9
629-630. Disposing of a plaintiff's case at the summary
judgment stage is "especially favored" in the defamation context
because "[a]llowing a trial to take place in a meritless case
would put an unjustified and serious damper on freedom of
expression. . . . Even if a defendant in a libel case is
ultimately successful at trial, the costs of litigation may
induce an unnecessary and undesirable self-censorship."
Dulgarian, 420 Mass. at 846-847, quoting King v. Globe Newspaper
Co., 400 Mass. 705, 708 (1987), cert. denied, 485 U.S. 940 and
962 (1988). Despite these policy concerns, however, defendants
in defamation cases still must "meet the usual burden under
[Mass. R. Civ. P. 56] of demonstrating by evidence 'considered
with an indulgence in the plaintiff's favor' the absence of
disputed issues of material fact and their entitlement to
judgment as a matter of law." Salvo v. Ottaway Newspapers,
Inc., 57 Mass. App. Ct. 255, 259 (2003), quoting Mulgrew v.
Taunton, 410 Mass. 631, 633 (1991).
Butcher's defamation claim rests on essentially two
publications by the UMB student newspaper: (i) the excerpt from
the police blotter, and (ii) the articles accompanied by the
photograph(s) of him that were published on the newspaper's Web
site and in its print edition. He argues that these
publications damaged him by falsely branding him as a sexual
10
predator and, thus, subjected him to a campus and work
environment that was so hostile that he was forced to leave.
a. Police blotter. With regard to the excerpt from the
police blotter, Butcher's claim fails as a matter of law because
this excerpt bears no indication that it was "of or concerning"
Butcher. The only information identifying the individual
referred to in the excerpt was that it was "[a] suspicious white
male in a black jacket . . . [who] did not appear to be a
student and was not wearing a backpack." Without more, these
"words [cannot] reasonably . . . be interpreted to refer to the
plaintiff." New England Tractor-Trailer Training of Conn., Inc.
v. Globe Newspaper Co., 395 Mass. 471, 479 (1985).
b. Articles with photographs. We turn next to Butcher's
claim regarding the articles accompanied by his photographs.6
Vishniac argues that Butcher cannot show an actionable false
statement. Butcher makes two distinct claims regarding the
falsity of the statements made in the published articles. We
address each in turn.
i. Inaccurately reporting the witness's statements.
First, Butcher contends that the articles inaccurately reported
6 At the summary judgment stage, Vishniac argues only that
Butcher has no reasonable expectation of proving at trial either
that the articles contained an actionable false statement, or
that he suffered cognizable harm. Vishniac does not contest
that Butcher has sufficiently demonstrated the other two
elements of his defamation claim -– namely that these articles
were of or concerning Butcher and that there was fault.
11
the contents of the police reports of the underlying witness
allegations. While there are discrepancies between the police
records and the newspaper articles, the articles were
"substantially true" accounts of the contents of the police
reports. Reilly v. Associated Press, 59 Mass. App. Ct. 764, 770
(2003). The essence of Butcher's defamation claim is that the
articles stigmatized him as a sexual predator by reporting that
he had suspiciously taken photographs of women without their
permission. The portion of the reporting that was inaccurate
relative to the police records -- that it was a student, rather
than a bus driver, who reported him, and that he took pictures
on the campus as opposed to a shuttle bus -- "did not create a
substantially greater defamatory sting than [the] accurate
report." Jones v. Taibbi, 400 Mass. 786, 795 (1987).
ii. Fair report privilege. Second, Butcher maintains that
the underlying witness allegations were themselves false.7
Vishniac responds only that the newspaper's publications are
protected under the fair report privilege because they
communicated the witness statements included in the UMass police
blotter.
The fair report privilege protects publications that
"fairly and accurately report certain types of official or
7 On summary judgment, Vishniac does not contend that the
witness allegations are substantially true.
12
governmental action" even where the facts underlying the
official action are defamatory. ELM Med. Lab., Inc. v. RKO
Gen., Inc. 403 Mass. 779, 782 (1989). "For example, '[t]he
publication of the fact that one has been arrested, and upon
what accusation, is not actionable, if true," even where the
accusations turn out to be false. Jones, 400 Mass. at 795,
quoting Thompson v. Globe Newspaper Co., 279 Mass. 176, 188
(1932). This privilege is grounded in the policy that "(1) the
public has a right to know of official government actions that
affect the public interest, (2) the only practical way many
citizens can learn of these actions is through a report by the
news media, and (3) the only way news outlets would be willing
to make such a report is if they are free from liability,
provided that their report was fair and accurate." Yohe v.
Nugent, 321 F.3d 35, 44 (1st Cir. 2003), quoting ELM Med. Lab.,
Inc., 403 Mass. at 782.
Here, the police made no arrest, no formal charges were
filed, there was no official police statement, and no search
warrant was issued.8 In these circumstances, the Supreme
8 Contrast Thompson v. Boston Publ. Co., 285 Mass. 344, 346-
347 (1934) (report of allegations on which plaintiff was
arrested after warrant was issued was privileged); Sibley v.
Holyoke Transcript-Telegram Publ. Co., 391 Mass. 468, 471 (1984)
(publication of statements contained in affidavit for search
warrant, which later issued, covered under privilege); Jones,
400 Mass. at 795-797 (report that suspect had been charged with
13
Judicial Court has explained that "'statements made . . . by the
complainant or other witnesses . . . as to the facts of the case
or the evidence expected to be given are not yet part of the
judicial proceedings or of the arrest itself and are not
privileged . . . .' Restatement (Second) of Torts § 611 comment
h (1977). Accordingly, '[t]here is also no privilege to report
the unofficial talk of such officials as policemen, as distinct
from their official utterances or acts, such as an arrest'
. . . . W. Prosser & W. Keeton, [Torts § 112,] at 836 [(5th ed.
1984)]." Jones, 400 Mass. at 796. Thus, the fair report
privilege "does not apply to witness statements to police,
whether appearing in an official police report or not, where no
official police action is taken." Reilly, 59 Mass. App. Ct. at
776. Such unconfirmed allegations have "neither the authority
nor the importance to the public that other documents or
statements shielded by the fair reporting privilege possess."
Id. Extending the privilege to a witness's allegations merely
because they appear in a police blotter does not further the
doctrine's purpose of allowing the public to learn of official
actions affecting the public interest. See id. at 777. See
also Philips v. Evening Star Newspaper Co., 424 A.2d 78, 89
(D.C. 1980) (reporting on events documented in police activity
crime, and broadcast of police chief's statements made during
official press conference, both protected by privilege).
14
log not privileged because, where there was no arrest, log did
not "carry the dignity and authoritative weight as a record for
which the common law sought to provide a reporting privilege").
Contrast Medico v. Time, Inc., 643 F.2d 134, 141-142 (3d Cir.
1981) (allegations in nonpublic, but official, Federal Bureau of
Investigation investigatory reports submitted by Philadelphia
field office qualified for privilege). In the circumstances of
this case, the privilege does not apply.9
iii. Damages. Vishniac alternatively contends that
summary judgment was proper because Butcher has no reasonable
expectation of proving at trial that he has suffered a
cognizable harm. "Damages in a defamation case are limited to
actual damages, which are compensatory for the wrong that has
been done." Draghetti v. Chmielewski, 416 Mass. 808, 815
(1994). These damages include "not only out-of-pocket expenses,
but also harm inflicted by impairment of reputation and standing
in the community, personal humiliation, and mental anguish and
suffering." Id. at 815-816, citing Stone v. Essex County
Newspapers, Inc., 367 Mass. 849, 861 (1975). When there is
9 The inapplicability of the fair report privilege here, of
course, does not necessarily mean that there is liability for
the newspaper's publication of any statements shown to be false.
As set forth supra, Butcher must prove each element of the
defamation claim, including fault, which "varies between
negligence (for statements concerning private persons) and
actual malice (for statements concerning public officials and
public figures)." Ravnikar, 438 Mass. at 630.
15
evidence of mental suffering, "the plaintiff is entitled to
recover for the 'distress and anxiety which may have been the
natural result of the legal wrong.'" Shafir v. Steele, 431
Mass. 365, 373 (2000), quoting Markham v. Russell, 12 Allen 573,
575 (1866).
The record is sufficient to allow the trier of fact to
reasonably conclude that Butcher has suffered actionable harm.
Butcher testified that, after the articles were published, he
faced a hostile campus that caused him mental distress and made
him fear for his safety and the safety of his family. He also
testified that, as a consequence of the articles, he lost the
trust of his supervisor in the information technology
department, and he was thus given less responsibility and handed
a higher volume of lower-level work. He testified that he was
compelled to leave his job, forfeiting a pension and benefits
package.10 These harms stem from the defamatory publication that
branded him a possible sexual predator to the campus community.
Thus, Butcher has provided sufficient evidence of mental
10For purposes of summary judgment, Butcher provides
sufficient evidence that the campus environment and conditions
of his employment became so hostile that he felt compelled to
leave. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 34 (1995)
(under theory of constructive discharge, employee may recover
damages against employer even if employee leaves voluntarily
where "working conditions would have been so difficult or
unpleasant that a reasonable person in the employee's shoes
would have felt compelled to resign" [quotation omitted]).
16
suffering, reputational harm, and economic loss to sustain an
actionable claim for defamation. See Draghetti, 416 Mass. at
816 (sustaining jury award of damages to plaintiff where he
testified that he suffered emotional distress, was ridiculed at
work, and had marital problems due to defendant's defamation).
2. Intentional infliction of emotional distress.11
Butcher's intentional infliction of emotional distress claim is
premised on the same factual bases as his defamation claim. To
sustain such a claim, a plaintiff must prove "(1) that the actor
intended to inflict emotional distress or that he knew or should
have known that emotional distress was the likely result of his
conduct; (2) that the conduct was extreme and outrageous, was
beyond all possible bounds of decency and was utterly
intolerable in a civilized community; (3) that the actions of
the defendant were the cause of the plaintiff's distress; and
(4) that the emotional distress sustained by the plaintiff was
severe and of a nature that no reasonable man could be expected
to endure it"12 (citations and quotations omitted). Agis v.
11Butcher has not asserted a claim for negligent infliction
of emotional distress.
12Because UMass is statutorily immune, summary judgment
properly entered in favor of UMass as to Butcher's intentional
infliction of emotional distress claim. See G. L. c. 258,
§ 10 (c); Lafayette Place Assocs. v. Boston Redev. Auth., 427
Mass. 509, 533-535 (1998), cert. denied, 525 U.S. 1177 (1999).
See also Robinson v. Commonwealth, 32 Mass. App. Ct. 6, 9 (1992)
("[T]he University of Massachusetts is an agency of the
17
Howard Johnson Co., 371 Mass. 140, 144-145 (1976). A plaintiff
faces a high burden in making a claim of intentional infliction
of emotional distress; "[l]iability cannot be predicated on
'mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.'" Tetrault v. Mahoney,
Hawkes & Goldings, 425 Mass. 456, 466 (1997), quoting Foley v.
Polaroid Corp., 400 Mass. 82, 99 (1987).
Putting, as we must, "as harsh a face on [Vishniac's]
actions . . . as the basic facts would reasonably allow," Richey
v. American Auto. Ass'n, Inc., 380 Mass. 835, 839 (1980), a
trier of fact could reasonably find that the publication both
online and in print of Butcher's photographs alongside
allegations that he was surreptitiously photographing women on
campus was "so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community." Restatement (Second) of Torts § 46 comment d
(1965). See Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 26
(2003) (jury permitted to find extreme and outrageous conduct
where defendant made multiple statements to his colleagues that
Commonwealth under G. L. c. 258"). We also agree with the
university defendants that summary judgment as to this claim
should enter as to them because, as with the defamation claim,
none of the university defendants is alleged to have been
responsible for the publication giving rise to the claim. See
note 3, supra. This claim is potentially viable only against
the remaining newspaper defendant, Vishniac. See note 2, supra.
18
plaintiff, fellow colleague, had engaged in anti-Semitic and
homophobic behavior in the past).
Conclusion. So much of the judgment as relates to the
defamation and intentional infliction of emotional distress
claims against Vishniac is reversed. In all other respects, the
judgment is affirmed.
So ordered.