Butcher v. University of Massachusetts

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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.