Heard: April 11, 2018.
action commenced in the Superior Court Department on
January 21, 2014.
case was heard by Douglas H. Wilkins, J., on motions
for summary judgment.
Butcher, pro se.
M. Kelley for the defendants.
Present: Milkey, Maldonado, & Wendlandt, JJ.
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),  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.
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.
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.
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.
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."
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."
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?"
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