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Butcher v. University of Massachusetts

Appeals Court of Massachusetts, Suffolk

September 17, 2018

JON BUTCHER
v.
UNIVERSITY OF MASSACHUSETTS & others.[1]

          Heard: April 11, 2018.

         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.

          Present: Milkey, Maldonado, & Wendlandt, JJ.

          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 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 (1MB). 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 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 1MB, and regularly rode a shuttle bus from JFK station to campus.

         That morning, the records of the 1MB police department reflect that a 1MB police officer responded to a report of suspicious activity that had taken place at JFK station. The officer arrived at the 1MB 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 1MB 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 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 1MB officer met with the bus driver, the 1MB student newspaper published an excerpt from the 1MB 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/lMass 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 Web site, this time accompanied by two photographs of Butcher, under the same headline, "Have You Seen This Man?"

         According to 1MB 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 1MB police department, met with Butcher to discuss the incident at JFK station. When they informed him that the 1MB 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 ...


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