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Butcher v. University of Massachusetts

Supreme Judicial Court of Massachusetts, Suffolk

December 31, 2019

JON BUTCHER
v.
UNIVERSITY OF MASSACHUSETTS & others.

          Heard: October 1, 2019. [1]

          Civil action commenced in the Superior Court Department on January 21, 2014. The case was heard by Douglas H. Wilkins, J., on a motion for summary judgment.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Jon Butcher, pro se.

          David C. Kravitz, Deputy State Solicitor (Denise Barton also present) for Cady Vishniac.

          Zachary C. Kleinsasser, for Gatehouse Media, LLC, & others, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LENK, J.

         In March of 2013, the University of Massachusetts Boston (UMass) police department received a report that an unknown man was engaging in suspicious activity near the UMass campus. The police included an account of this report, and their attempts to find the unknown man, in their daily public police log (blotter). At the time this activity was reported, defendant Cady Vishniac was a UMass student and the news editor of the school newspaper, Mass. Media. Mass. Media republished the blotter entries for that week, including the report of the unknown man's allegedly suspicious activities. After the UMass police were unable to locate the man, a UMass police officer sent a photograph to Mass. Media asking for help in identifying him. Mass. Media republished a version of the report, accompanied by the photograph. Soon after the photograph was released, the previously unknown man was identified as the plaintiff.

         According to the plaintiff, these reports, which circulated for over one week without his knowledge, were utterly false. Indeed, he asserts that he is a victim twice over: first, of an assault by a bus driver, and, thereafter, by the publication of slanderous stories that suggested he was a sexual predator.

         The plaintiff commenced this action against UMass and a number of individually named defendants, largely UMass employees or former employees, for their role in spreading the purportedly false reports about him. The decisive question in this case is whether a newspaper can be liable for republishing public police logs and requests for assistance received from a police department. We conclude that, based on the particular facts of these publications, the fair report privilege shielded Vishniac from liability.[2]

         1. Background.

         a. Facts.

          "We recite the facts in the light most favorable to the plaintiff." Ravnikar v. Bogojavlensky, 438 Mass. 627, 628 (2003) . The publications at issue refer to an alleged incident that occurred on March 13, 2013. At that time, the plaintiff was employed as a security engineer with the information technology department at UMass. At around 10 A.M. that morning, UMass Boston police officers responded to a report of suspicious activity at the John F. Kennedy station on the Massachusetts Bay Transportation Authority's Red Line (JFK Station). When police arrived, they met with a bus driver who informed them that he had observed a suspicious male taking photographs of women on the bus. Police then interviewed a second witness, a bus company employee, who also said that the bus driver had observed a man taking photographs of people. The employee, who was a bus starter, indicated that the suspicious male was wearing dark glasses and did not appear to be a student. The employee got on the bus and sat next to the individual in an effort to dissuade him from taking any more photographs.

         The plaintiff offers a very different account of this incident. He states that he was on his way to work at UMass when he decided to take photographs of the buses housed at the JFK Station. The purpose of those photographs was to document what he saw as serious safety concerns regarding the bus company and its drivers.[3] He believed that he had permission to take these photographs, in part, because the bus company was engaged in an ongoing union dispute, and the union had encouraged members to document any problems. The plaintiff contends that a bus driver saw what he was doing, accused him of taking photographs of the driver, and proceeded to accost him. Then, the driver attempted to block the plaintiff from leaving the bus. The altercation only ended when the plaintiff left the bus and the driver sped off. That afternoon, the plaintiff sent an electronic mail message to the UMass office of public safety, under the pseudonym "Eric Jones," describing this encounter.[4] Police replied to the message on March 15, but received no response.

         The police included only a report of the bus driver's version of events in the UMass police blotter. The police blotter for March 10, 2013, through March 16, 2013, later was republished by Mass. Media.[5] In that online publication, all of the week's blotter entries were listed, verbatim, in chronological order by the date and time that the report had been made. The report of the JFK Station incident read:

"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."

         On March 22, 2013, UMass police received photographs from the bus company that supposedly depicted the man who had been reported to be taking photographs of women. Officers added the photographs to their internal incident report.[6]

         UMass administrators became concerned about the activities of the as-yet unidentified "Eric Jones." At the request of the UMass police, the photographs supplied by the bus company were provided to Mass. Media in order to assist police in identifying the then unknown man. On March 25, 2013, Mass. Media published an article in their electronic edition under the title "Have you Seen This Man?" Unlike the previous publication of the blotter, this article provided an account only of the JFK Station incident and included the photograph supplied by the UMass police. It read:

"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 . . . ."

         The same article was included in the print version of the Mass. Media newspaper that ran from March 26, 2013, through April 9, 2013.

         On March 27, 2013, the plaintiff was identified by a coworker as the man in the photograph. His supervisor brought him to the UMass police department so security officers could speak with him. The plaintiff was upset when he learned that his photograph had been placed in the article published by Mass. Media. He acknowledged that he had sent the electronic mail message from "Eric Jones," in order to preserve his privacy, but insisted that he had done nothing wrong and that he sought only to protect himself from the attack of the bus driver and the unsafe conditions on the bus. UMass police took possession of the plaintiff's UMass-owned cellular telephone, which was issued in conjunction with his job, [7] and later conducted a search of the image files stored on it with the assistance of an assistant district attorney. None of the files dated March 13, 2013, were photographs of women. Instead, several photographs from the time of the incident depicted buses and a bus driver.

         In the months following the publication of this story, the plaintiff sensed lingering hostility around the UMass campus. He noticed that bus drivers would slow down and stare at him as they passed. He also perceived repercussions at his work. Coworkers asked him if he had seen the newspaper articles. His workload was increased, and he was left out of critical meetings. Finally, seven months after the publication, the plaintiff left his job at UMass.

         b. Procedural history.

         In January 2014, the plaintiff, acting pro se, filed a six-count complaint in the Superior Court against UMass and several individual defendants. In May 2015, a Superior Court judge allowed the defendants' motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974), and dismissed all of the counts except the plaintiff's claims of defamation against Vishniac and intentional infliction of emotional distress against Vishniac and defendants University of Massachusetts, Keith Motley, Winston Langley, Hanes Overton, Donald Baynard, Paul Parlon, and Brian Forbes (collectively, the University defendants).

         The University defendants and Vishniac jointly filed a motion for summary judgment in September 2016; the motion was granted in November 2016. In allowing the motion for summary judgment, the judge determined that the content of the articles was both attributed to official police logs and a substantially accurate account of those logs. He concluded, therefore, that the purportedly defamatory statements fell under the "fair report privilege" and, as such, were not actionable.

         The plaintiff appealed and, in September 2018, the Appeals Court reversed the judgment as to Vishniac, after concluding that the fair report privilege did not apply. See Butcher v. University of Mass., 94 Mass.App.Ct. 33, 34 (2018). We granted the defendants' application for further appellant review, limited to the claims against Vishniac.

         2. Discussion.

         We favor summary judgment in defamation cases, in light of the chilling effect that the threat of litigation can have on activities protected by the First Amendment to the United States Constitution. See Kingv. Globe Newspaper Co., 400 Mass. 705, 708 (1987) ("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"); New England Tractor-Trailer Training of Conn., Inc. v.Globe Newspaper Co., 395 Mass. 471, 476 (1985), cert, denied, 485 U.S. 836 (1988). Nonetheless, to prevail on a motion for summary judgment in a defamation action, the ...


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