Petition for Writ of Certiorari — Jon Butcher, Petitioner v. Cady Vishniac

No.

IN THE

Supreme Court of the Anited States

JON BUTCHER,

Petitioner,

v.

CADY VISHNIAC,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME JUDICIAL COURT (“SJC”)

OF THE COMMONWEALTH OF MASSACHUSETTS

PETITION FOR A WRIT OF CERTIORARI

E. Peter Mullane, Esq.

Sup. Ct. Bar No. 312975

MULLANE, MICHEL & McINNES

6 Bennett Street

Cambridge, MA 02138

Tel.: (617) 661-9000

Peter@3mlaw.com

Counsel for Petitioner

At Cambridge, Massachusetts,

This 27th Day of May, 2020

QUESTIONS PRESENTED.

Does either the First Amendment or this Court’s

holding in Gertz v. Robert Welch, Inc., 418 U.S.

323, 341 (1974) impose any limitations upon

common law defamation claims in the context of a

private, non-public figure involved in a matter of

“private concern”?

While the court below reaffirmed the validity of

the common law Doctrine of Republication—

which permits defamation claims against

“republishers” of factually-false representations—

in Yohe v. Nugent, 321 F.3d 35, 43 (1st Cir. 2003),

the First Circuit rejected this Doctrine, declining

to impose liability where the republisher had

“accurately” reiterated the factually-false

representations made by a third party; which of

these contradictory and_ antithetical

precedents is correct?

Is Mass. Gen. Laws ch. 41 § 98F, as applied,

violative of the Due Process Clause of the United

States Constitution, viz. Amend. XIV, § 1, or

alternatively, does it constitute a legislative bill of

attainder, in violation of Art. I, § 10, Cl. 1?

ll

PARTIES TO THE PROCEEDING.

Plaintiff-Petitioner Jon Butcher (“Petitioner” or

“Butcher”) brought this defamation action in the Suffolk

County Superior Court (“trial court”) against

Defendants Keith Motley, Winston Langley, Patrick

Day, James Overton, Donald Baynard, Paul Parlon,

Shira Kaminsky, Paul Driskill, Cady Vishniac, Brian

Forbes, and the University of Massachusetts (“UMass”).

The trial court dismissed all of Butcher’s claims on

summary judgment.

On appeal, the Massachusetts Appeals Court

reversed so much of the trial court’s summary judgment

as related to Butcher’s claims against Defendant

Vishniac.

The Supreme Judicial Court of the

Commonwealth of Massachusetts (“SJC”) thereupon

granted further appellate review, but solely as to

Butcher’s claims against Vishniac.

SUP. CT. R. 29(4)(c) CERTIFICATION.

28 U.S.C. § 2403(b) may apply to this proceeding.

The undersigned hereby certifies that this filing has

been served on the Attorney General of the

Commonwealth of Massachusetts.

lil

TABLE OF CONTENTS.

QUESTIONS PRESENTED

PARTIES TO THE PROCEEDING

SUP. CT. R. 29(4)(c) CERTIFICATION

TABLE OF AUTHORITIES

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

JURISDICTION

RELEVANT STATUTORY

PROVISIONS

RELEVANT CONSTITUTIONAL

PROVISIONS

STATEMENT OF THE CASE

Preliminary Statement

Material Facts

Procedural History

Federal Questions Raised

10

1V

REASONS FOR GRANTING THE WRIT. 12

I. In defamation actions throughout the

United States, state and federal courts

alike continue to misunderstand and

misapply this Court’s definition of what

constitutes a matter of “public concern’;

the contradictory decisions and confusion

amongst the lower courts are highly

problematic and unworkable, because the

“fair report” privilege can only be raised in

defamation cases involving matters of

“public concern.” 12

a. Because the instant matter pertains

solely to a private, non-public figure

involved in a matter of private

concern, the state court’s broad

expansion and extension of this

Court’s holding in Gertz v. Robert

Welch, Inc., 418 U.S. 323, 341 (1974)

to cases in this context is erroneous,

and sets a dangerous precedent. 12

b. The state court’s finding that

defamatory allegations of criminal and/or

inappropriate conduct against one

individual alone constitute a matter

of “public concern” is reversible error, as

it directly contradicts this Court’s

binding precedents in Snyder v. Phelps,

562 U.S. 443 (2011) and City of San

Diego v. Roe, 543 U.S. 77 (2004),

inter alia. 14

c. Because no matter of “public concern”

is present in this defamation action,

and because the defense of the “fair

report” privilege only applies in

defamation cases involving matters of

“public concern,” the lower court’s

allowance of the defense in this context

was erroneous and should be reversed. 19

IJ. The state court’s reliance on the First

Circuit’s holding in Yohe v. Nugent, 321 F.3d

35, 48 (1st Cir. 2003) is contradictory and

problematic; while the state court below

reaffirmed the validity of the common law

Doctrine of Republication, in Nugent, the

First Circuit declined to recognize it. 20

III. Mass. Gen. Laws ch. 41 § 98F constitutes a

legislative bill of attainder, in violation of Art. I,

§ 10, Cl. 1, and is also violative of the Due

Process Clause of Amend. XIV, § 1 because, as

applied, this state statute deprives citizens such

as Butcher of: (1) their right to due process prior

to the infliction of punishment by the state;

(2) the constitutional “presumption of innocence”;

and (8) their constitutional right to privacy, and

to be free of unwanted governmental intrusions. 24

a. Bill of Attainder. 27

b. Double Jeopardy Clause. 28

c. Due Process and the “Presumption

of Innocence.” 29

v1

CONCLUSION 31

APPENDIX A:

Butcher v. Univ. of Mass.,

483 Mass. 742 (2019) la

APPENDIX B:

Butcher v. Univ. of Mass.,

94 Mass. App. Ct. 33 (2018) 27a

Vil

TABLE OF AUTHORITIES.

CASES.

Artway v. Attorney General,

81 F.3d 1235 (8d Cir. 1996) 27, 28

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011) 14

City of San Diego v. Roe,

543 U.S. 77 (2004) 14, 16-18

Connick v. Myers, 461 U.S. 138 (1983) 14

Dun & Bradstreet v. Greenmoss Builders,

472 U.S. 749 (1985) 138, 14

Ford v. Georgia, 498 U.S. 411 (1991) 12

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) 11-13

Harris v. Reed, 489 U.S. 255 (1989) 11

Lane v. Franks, 573 U.S. 228 (2014) 14

Mathews v. Eldridge, 424 U.S. 319 (1976) 29, 30

Michigan v. Long, 463 U.S. 1032 (1983) 11

N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) 13

Raley v. Ohio, 360 U.S. 423 (1959) 10

Rankin v. McPherson, 483 U.S. 378 (1987) 14, 17

vili

Riley v. Harr, 292 F.3d 282 (1st Cir. 2002) 19

Snyder v. Phelps, 562 U.S. 448 (2011) 14, 17

Southwestern Bell Tel. Co. v. Oklahoma,

303 U.S. 206 (1938) 10

Taylor v. Kentucky, 436 U.S. 478 (1978) 29

United States v. Brown,

381 U.S. 437 (1965) 27

United States v. Halper,

490 U.S. 435 (1989) 28

Yohe v. Nugent, 321 F.3d 35

(1st Cir. 2003) 20-22

CONSTITUTIONAL PROVISIONS AND

STATUTES.

Mass. Gen. Laws ch. 22C § 63 2, 6, 7, 10

Mass. Gen. Laws

ch. 41 § 98F 2, 5, 6, 10, 23-30

U.S. Const., Amend. I 4,9, 10, 11, 12, 19, 20

U.S. Const., Art. I, § 10, Cl. 1 23, 26

U.S. Const., Amend. XIV, § 1 3, 23, 29

PETITION FOR A WRIT OF

CERTIORARI.

Plaintiff-Petitioner Jon Butcher (“Petitioner” or

“Butcher”) hereby respectfully petitions for a writ of

certiorari to the Supreme Judicial Court of the

Commonwealth of Massachusetts (hereinafter, “SJC”).

OPINIONS BELOW.

The Suffolk Superior Court judgment is unreported.

The Massachusetts Appeals Court decision, reversing the

Suffolk Superior Court below, is published at Butcher v.

Univ. of Mass., 94 Mass. App. Ct. 33 (2018). The SJC’s

decision, affirming the judgment of the Suffolk Superior

Court, is published at Butcher v. Univ. of Mass., 483 Mass.

742 (2019). The Massachusetts Appeals Court and SJC

decisions are reproduced in the Appendix to this Petition

(“App.”)

JURISDICTION.

The SJC’s judgment was entered on December 31,

2019. This Court’s jurisdiction is timely invoked pursuant

to 28 U.S.C. § 1257(a). The deadline for this filing has been

extended “to 150 days from the date of the lower court

judgment[]” pursuant to this Court’s order dated March 19,

2020 in connection with the ongoing pandemic.

RELEVANT STATUTORY PROVISIONS.

Mass. Gen. Laws ch. 41 § 98F provides as follows:

“Each police department and each college or university to

which officers have been appointed pursuant to section 63

of chapter 22C shall make, keep and maintain a daily log,

written in a form that can be easily understood, recording,

in chronological order, all responses to valid

complaints received, crimes reported, the names,

addresses of persons arrested and the charges

against such persons arrested. All entries in said

daily logs shall, unless otherwise provided in law, be

public records available without charge to the public

during regular business hours and at all other reasonable

times; provided, however, that the following entries shall

be kept in a separate log and shall not be a public record

nor shall such entry be disclosed to the public, or any

individual not specified in section 97D: (i) any entry in a

log which pertains to a handicapped individual who is

physically or mentally incapacitated to the degree that said

person is confined to a wheelchair or is bedridden or

requires the use of a device designed to provide said person

with mobility, (ii) any information concerning responses to

reports of domestic violence, rape or sexual assault, (i)

any entry concerning the arrest of a person for assault,

assault and battery or violation of a protective order where

the victim is a family or household member, as defined in

section 1 of chapter 209A, or (iv) any entry concerning the

arrest of a person who has not yet reached 18 years of age.”

(Emphasis supplied).

RELEVANT CONSTITUTIONAL PROVISIONS.

Art. I, § 10, Cl. 1 of the United States Constitution

provides as follows: “No State shall enter into any Treaty,

Alliance, or Confederation; grant Letters of Marque and

Reprisal; coin Money; emit Bills of Credit; make any Thing

but gold and silver Coin a Tender in Payment of Debts;

pass any Bill of Attainder, ex post facto Law, or Law

impairing the Obligation of Contracts, or grant any Title of

Nobility.”

Amend. XIV, § 1 of the United States Constitution

provides as follows: “All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.”

STATEMENT OF THE CASE.

(a) Preliminary Statement.

In an era wherein the internet has universally

transformed society, our free-market economy, our

fundamental means of communicating with one another,

and the way in which ordinary citizens obtain information

about the outside world, the concomitant dangers and

consequences of defamation have never been higher.

Indeed, the serious harm of defamation was even

acknowledged and recognized centuries ago in the days of

Sirs Edward Coke and William Blackstone.! Ironically,

now in 2020—i.e., when the harms of defamation are

ereater than ever before due to the permanent nature and

1 “A third way of destroying or injuring a man’s reputation is, by

preferring malicious indictments or prosecutions against him; which,

under the mask of justice and public spirit, are sometimes

made the engines of private spite and enmity.” (Emphasis

supplied) Blackstone, Commentaries on the Laws of England, Book III,

p. 85 (1768).

the universal accessibility of the internet—courts across

the United States appear to trivialize the grave harm that

defamation causes to society, while triumphantly extolling

the virtues of the First Amendment and unfettered

freedom of the press.

Sadly, the instant matter evidences how detrimental

and destructive defamatory accusations can be to average,

ordinary Americans such as Petitioner due to the

pervasiveness and permanency of internet publications.

This Court should take this opportunity to re-affirm the

validity of common law libel per se and defamation torts in

the United States, and elucidate how such claims may be

asserted in the context of internet publications—i.e.,

publications which can never be completely retracted,

modified, or taken out of public view.

(b) Material Facts.

In March 2013, Plaintiff-Petitioner Jon Butcher

(“Petitioner” or “Butcher’) worked as a government

employee in the employ of the Commonwealth of

Massachusetts and the University of Massachusetts

(“UMass”), a public institution. App. 3a. In addition,

Butcher was a member of an organized labor union, viz. the

Faculty Staff Union (““FSU” or “the Union”). This Union

represents the faculty members, librarians, and staff at

UMass.

At the time relevant hereto, the Union was actively

encouraging its members to document the numerous safety

concerns? regarding UMass’ private bus contractor, Crystal

2 Indeed, as the SJC acknowledges in its December 29, 2019 opinion,

approximately one year after the events in question, Crystal

Transportation was closed down by the Federal Trade Commission

(“FTC”) due to a host of safety issues. App. 3a, n.3. These serious issues

Transportation (“Crystal”). Consequently, on or about

March 138, 2013, Butcher proceeded to take several

photographs of safety violations while riding on one of

Crystal’s buses to work. App. 3a. All of these safety

violations were in “plain view,” and the photographs were

taken lawfully and in good faith by Butcher on behalf of the

labor union.

Shortly thereafter, two Crystal employees retaliated

against Butcher for his involvement in the labor dispute by

falsely reporting to police officers that they had personally

observed a “suspicious male taking photographs of women

on the bus.” App. 4a. In response to the police complaint,

the state police knowingly directed Crystal to provide

photographs of this as-yet unidentified “suspicious male” to

Mass Media, an internet publication and private

corporation. App. 5a. This “suspicious male” who was

targeted was, in reality, Butcher. The Massachusetts police

willfully and knowingly caused Butcher’s photographs to

be published online—thereby prematurely punishing

Butcher by branding him as a sexual predator and

criminal—notwithstanding the fact that Butcher had

never been convicted of any offense in this matter, or even

arrested, prior to the publication of the pictures of him on

the internet.

Making matters worse, the Massachusetts police

additionally proceeded to subject Butcher to what can only

be described as a modern-day pillory. As specifically

authorized under Mass. Gen. Laws ch. 41 § 98F, the

Massachusetts police thereupon published the erroneous

allegations of criminal conduct on its publicly-available

online police blotter, which naturally was available for all

to view on the internet. Compounding Butcher’s harm,

included, inter alia, drunk driving, employees returning to work after

failing drug screening tests, reckless driving, and falsified time sheets.

these factually-erroneous allegations of criminal conduct

were later foreseeably relied upon by the media, together

with Butcher’s peers, coworkers, and family members.

Collectively, all of the foregoing actions of the state

police violated Butcher’s right to privacy, as well as the

“presumption of innocence”—a constitutional presumption

which has manifestly been disposed of under this

Massachusetts statute. Without first according Butcher his

right to due process in formal criminal proceedings in a

court of law, the Massachusetts police gratuitously

punished, denigrated, and defamed Butcher by publicly

posting these erroneous allegations of criminal conduct on

its online police blotter as being absolute, irrefutable facts.

Moreover, these allegations against Butcher were

published by the Massachusetts police: (i) prior to any

police investigation occurring; (i) prior to any arrest and/or

issuance of an arrest warrant; and (iii) prior to any

arraignment. In essence, Mass. Gen. Laws ch. 41 § 98F

allowed the police to effectively punish Butcher while

completely bypassing and circumventing all of Butcher’s

fundamental due process rights. Further, the statute

authorized the state police to administer such punishment

without being impeded by any “presumption of innocence”

that Butcher would otherwise have been afforded in court

(t.e., in a formal criminal proceeding).

Additionally, and in further violation of Butcher’s

constitutional “presumption of innocence,” the subject

police blotter entry—which the Massachusetts police were

authorized to publish under Mass. Gen. Laws ch. 41 § 98F

—contained uncorroborated hearsay from persons who

were not even police officers. These unconfirmed hearsay

allegations included, inter alia, representations that

Butcher was a “suspicious [] male in a black jacket|,]” that

“[a] witness stated that [Butcher] did not appear to be a

student[,]” and false claims that Butcher had taken

“photographs and video of nearby women.” App. 4a.

Because Mass. Gen. Laws ch. 41 § 98F unfortunately

authorizes the police to publish such harmful and serious

allegations of criminal conduct on the internet, in effect,

Butcher had already been publicly humiliated and

punished by the Massachusetts police without a trial ever

occurring—let alone any arrest.

This result is particularly troubling and

unacceptable in the case at bar, as the Massachusetts

police subsequently discovered that Butcher was, in

reality, completely innocent. As the Massachusetts

Appeals Court correctly noted, “[e]xamination of the “Micro

SD card” from [Butcher’s] cell phone did not reveal any

photographs of women from the day of the incident|,]” and

that the only photographs that Butcher had taken “were of

buses and bus drivers at the JFK station.” (Emphasis

supplied) App. 3la.

Sadly, however, Butcher’s vindication had arrived

too late to prevent the additional harm that would later

befall him as a result of the foregoing actions of the police.

By this late point in time, because the police had already

caused Butcher’s photograph to be published on the

internet (having specifically requested that Mass Media, a

private corporation, publish photographs of Butcher

online), and because the police had already published their

uncorroborated hearsay allegations of criminal conduct on

its publicly-accessible online blotter, they had mistakenly

and wrongfully punished an innocent person for crimes

which he did not commit. Naturally, all of the foregoing

punishment was administered without affording Butcher

any of the constitutional safeguards that he would have

otherwise enjoyed in formal criminal proceedings in a court

of law.

Unfortunately for Butcher, the harm he suffered as

a result of the above-mentioned actions of the state police

had only just begun. Relying on the misrepresentations

contained in the online blotter of the Massachusetts

police—an official, government agency acting under color

of state law—two (2) separate defamatory press releases

were subsequently published by Defendant-Respondent

Cady Vishniac (“Vishniac”), a Mass Media journalist. With

a view to publish a sensationalistic news story concerning

a supposed “sexual predator” lurking about the UMass

campus—a “wolf amongst the sheep,” hiding in wait

amongst an unsuspecting student body—the two Mass

Media articles contained photographs of Butcher himself,

and “republished” the factually-false allegations of

criminal conduct on the Mass Media website. The primary

source of these articles was the official, governmentendorsed blotter entry which had originally been published

on the internet by the Massachusetts police.

The irreparable harm incurred by Butcher in these

circumstances was in no way insignificant. As the SJC

correctly noted, in the months following these publications,

Butcher was subjected to severe repercussions in the

workplace, together with lingering hostility from others

around the UMass campus. The resultant ostracization

that Butcher was subjected to by his coworkers and peers,

both professionally and socially, was so extreme that

Butcher was unable to remain employed at UMass. App.

31-32a.

(c) Procedural History.

The instant action commenced upon Butcher's pro se

filing of a six-count complaint against Mass Media reporter

Cady Vishniac and several others for libel per se in the

state trial court in January 2014.3 In May 2015, the trial

court entered summary judgment in favor of Defendant

Vishniac, finding that the content of the two (2) defamatory

press releases which she “republished” from the police

blotter were protected by the common-law “fair report”

privilege, and that the articles were “substantially

accurate” accounts of the police blotter itself (i.e., not the

underlying events reported therein). The court reasoned

that, because the articles “accurately” reiterated the

contents of the factually-erroneous police blotter itself, the

articles could not possibly be defamatory—

notwithstanding the fact that the police blotter’s

representations, and the underlying allegations therein,

were all erroneous and factually false.

On appeal to the Massachusetts Appeals Court in

September 2018, the court concluded that the “fair report”

privilege did not extend to representations contained in

police blotters, reversing the trial court’s allowance of

Vishniac’s summary judgment motion. App. 41a.

Following an unusually severe media backlash

criticizing the Appeals Court’s decision as a purported

affront to the First Amendment and freedom of the press,

in March 2019, the SJC granted further appellate review

limited to Butcher’s claims against Mass Media reporter

Vishniac. After the SJC itself solicited amici curiae briefs

from numerous members of the media and press, a brief

was filed on behalf of the Associated Press (“AP”),

3 Butcher’s complaint in the Suffolk County Superior Court also

asserted causes of action against Defendants Keith Motley, Winston

Langley, Patrick Day, James Overton, Donald Baynard, Paul Parlon,

Shira Kaminsky, Paul Driskill, Brian Forbes, and the University of

Massachusetts (“UMass”). The trial court dismissed all of Butcher's

claims on summary judgment. On appeal to the Massachusetts

Appeals Court, only the allowance of summary judgment as to Vishniac

was reversed.

10

GateHouse Media LLC, the New England First

Amendment Coalition, and the Reporters’ Committee for

Freedom of the Press.4

On December 31, 2019, the SJC reversed the

Massachusetts Appeals Court below, and reinstated the

trial court’s allowance of Vishniac’s summary judgment

motion. In its written opinion, the SJC rejected the Appeals

Court’s rationale, finding instead that, because Vishniac’s

defamatory articles relied largely on the erroneous

allegations contained in the police blotter, and because the

publication of the police blotter on the internet is

authorized under Massachusetts law pursuant to Mass.

Gen. Laws ch. 41 § 98F, Vishniac’s false allegations of

criminal conduct vis-a-vis Butcher should be protected

under the “fair report” privilege and under the First

Amendment of the United States Constitution.

(d) Federal Questions Raised.

For purposes of review by the Supreme Court of the

United States, it must appear from the record that: (1) a

federal question was presented; (2) the disposition of that

question was necessary to the determination of the case;

and (8) the federal question was actually decided, or that

the judgment could not have been rendered without

deciding it. Southwestern Bell Tel. Co. v. Oklahoma, 303

U.S. 206 (1938); Raley v. Ohio, 360 U.S. 423, 4384-437

(1959).

In the case at bar, there can be no bona fide dispute

that the SJC’s holding invoked constitutional questions

under the First Amendment of the United States

4 See, e.g., Butcher v. Univ. of Mass., Case No. SJC-12698, Doc. #10

(Sep. 9, 2019).

11

Constitution. Indeed, the SJC unambiguously stated the

same in its December 31, 2019 opinion:

We also are mindful that the fair report

privilege implicates competing constitutional

concerns. On one side of the scale, the fair

report privilege “clearly partakes of First

Amendment values, and it has been

suggested that the privilege (in some

form) should perhaps be understood as

required by modern First Amendment

principles.” [Citation omitted] As the United

States Supreme Court noted in Gertz v.

Robert Welch, Inc., 418 U.S. 323, 341 (1974),

ensuring that the press can report freely on

public affairs “requires that we protect some

falsehood in order to protect speech that

matters.” (Emphasis supplied) App. 12a.

This Court has also held that, where a state court

decision appears to be interwoven with federal and/or

constitutional law (such as the SJC’s interpretation of the

First Amendment, and of this Court’s defamation law

precedents), and where the adequacy and independence of

any possible state law ground is not clear from the face of

the opinion, there is a rebuttable presumption that the

state court decided the case as it did because it believed

that federal law required it to do so. Michigan v. Long, 463

U.S. 1032 (1983); see Harris v. Reed, 489 U.S. 255, 261 n.7

(1989).

If a state court wishes to avoid this presumption, it

must set forth a plain statement in its judgment or opinion

that discussed federal law did not compel the result, and

12

that state law was dispositive.5 Ibid. Moreover, this Court

has further held that a new state rule cannot be invented

for the occasion in order to defeat a federal claim. See, e.g.,

Ford v. Georgia, 498 U.S. 411, 420-25 (1991).

REASONS FOR GRANTING THE WRIT.

I. In defamation actions throughout the United

States, state and federal courts alike continue to

misunderstand and misapply this Court’s

definition of what constitutes a matter of “public

concern”; the contradictory decisions and

confusion amongst the lower courts are highly

problematic and unworkable, because the “fair

report” privilege can only be raised in defamation

cases involving matters of “public concern.”

a. Because the instant matter pertains solely toa

rivate, non-public figure involved in a matter

of private concern, the state court’s broad

expansion and extension of this Court’s

holding in Gertz v. Robert Welch, Inc., 418 U.S.

323, 341 (1974) to cases in this context is

erroneous, and sets a dangerous precedent.

In N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)

this Court first promulgated its heightened “actual malice”

standard for defamation plaintiffs. In the decade that

followed this 1964 landmark decision, the Court’s “actual

5 In the case at bar, there is no such statement in the SJC’s opinion; on

the contrary, the SJC explained that its interpretation of the “fair

report” privilege in this matter was chiefly governed by First

Amendment concerns, and also by the binding defamation law

precedents of this Court such as Gertz.

13

malice” standard was exclusively limited to public official

and/or public figure defamation plaintiffs.

Pursuant to Sullivan and its progeny, “public figure”

defamation plaintiffs are always required to prove “actual

malice’—regardless of whether the context of the

defamatory representations pertains to a matter of “public

concern” or “private concern.”

It was not until Gertz v. Robert Welch, Inc., 418 U.S.

323, 341 (1974) that this Court expanded the heightened

“actual malice” standard to include—for the first time

ever—private, non-public figures. However, as this Court

is aware, its holding in Geriz, supra, was limited to a

narrow and specific context. The Gertz Court held that the

heightened “actual malice” standard should apply to

“private figure” defamation plaintiffs—but only where that

“private figure” is involved in a “public concern” or

controversy.

Stated differently, even as of the present date, this

Court has never expanded the “actual malice”

standard to “private figures” involved in matters of

“private concern.” While Geriz did indeed mark the

Court’s first foray into “private figure” defamation cases,

the Gertz holding was limited to matters of “public

concern.” This is in direct contrast with the case at bar,

which pertains to a “private figure” plaintiff involved in

a matter of “private concern.”

Evidencing the foregoing proposition is this Court’s

subsequent holding in Dun & Bradstreet v. Greenmoss

Builders, 472 U.S. 749 (1985), a case wherein this Court

took the opportunity to thoughtfully clarify and delineate

the extent of its previous decision in Gertz. In Dun &

Bradstreet, supra, this Court held that the “actual malice”

standard does not apply to “private figure” plaintiffs

involved in matters of “private concern.” Jd. at 763.

14

Therein, this Court further held that the Gertz decision

does not apply to those types of defamation cases, and that

Gertz only addressed “private figure” plaintiffs involved in

matters of “public concern.” See id. at 757.

b. The state court’s finding that defamatory

allegations of criminal and/or inappropriate

conduct against one individual alone are

matters of “public concern” is reversible error,

as it directly contradicts this Court’s binding

precedents in Snyder v. Phelps, 562 U.S. 4438

(2011) and City of San Diego v. Roe, 543 U.S. 77

(2004), inter alia.

In the case at bar, the SJC summarily concluded that

the allegations against Butcher (i.e., that he had allegedly

taken pictures of women without their consent) in the

context of a private labor union dispute were a matter of

“public concern.” The SJC arrived at this erroneous and

unsupported conclusion without performing the required

three-prong “content, form, and context” analysis—.e., the

test promulgated by this Court. In point of fact, the threeprong test is not even mentioned once in the SJC’s decision.

Making matters worse, the SJC stated the following,

without citing to anything of record:

6 This Court has consistently required courts to perform this threeprong test when determining whether speech is of “public concern” as

opposed to “private concern.” See, e.g., Lane v. Franks, 573 U.S. 228,

241 (2014); Borough of Duryea v. Guarnieri, 564 U.S. 379, 398 (2011);

Snyder v. Phelps, 562 U.S. 443, 453-54 (2011); Rankin v. McPherson,

483 U.S. 378, 385 (1987); Dun & Bradstreet v. Greenmoss Builders, 472

U.S. 749, 761 (1985); Connick v. Myers, 461 U.S. 138, 147 (1983).

15

In this case, we are concerned with “reports of

official statements” and “reports of official

action,” “both of which are covered by the fair

report privilege.” (Emphasis supplied) app.

13a.

The undersigned wholeheartedly agrees with the foregoing

statement—“official” actions are indeed covered by the fair

report privilege. But how does that relate to the facts of this

particular action? As set forth herein, ante, there were

never any “official” statements, and there was never any

“official” government and/or police action. Neither of

the foregoing was even remotely alluded to or mentioned in

the police blotter (i.e., the “original publication”), and of

course, neither was ever mentioned in either of Vishniac’s

two (2) articles relating to the defamatory blotter entry

(.e., the “re-publications’).

Firstly, the statements contained in the state police

blotter—which Vishniac later re-published—were not

statements made by police officers or by government

officials. Indeed, the statements contained therein were

merely the uncorroborated hearsay accounts of third-party

“witnesses.” As we later came to learn, these “witnesses”

were, in fact, the very same accusers who had filed the false

police report against Butcher in retaliation for his

involvement in the labor union dispute. Accordingly,

notwithstanding the SJC’s misplaced finding to the

contrary, the defamatory representations published by

both Vishniac and the state police plainly did not constitute

“official statements.”

Secondly, there can be no bona fide dispute that

there was never any “official action” here, and for good

reason: not only was no formal investigation undertaken

by the police, Butcher was never even arrested. Under

16

such circumstances, it is difficult to comprehend the SJC’s

finding that the defamatory representations in question

somehow pertained to “official action” (which may then, in

turn, give rise to the fair report privilege).

In City of San Diego v. Roe, 543 U.S. 77 (2004), this

Court unambiguously explained which types of issues may

qualify as matters of “public concern,” and which do not. In

San Diego, supra, the plaintiff, a former police officer, was

terminated by the city after making and _ selling

pornographic videotapes which showed the officer

engaging in sexually-explicit acts. Jd. at 78. After granting

certiorari, this Court gave a detailed and thoughtful

explanation of why a police officer making pornographic

videos—and even wearing a police uniform while engaging

in various sexual acts—still would not qualify as a matter

of “public concern”:

Applying these principles to the instant case,

there is no difficulty in concluding that [the

police officer’s] expression does not qualify as

a matter of public concern under any view of

the public concern test [.... ] Connick is

controlling precedent, but to show why this is

not a close case it is instructive to note that

even under the view expressed by the dissent

in Connick from four Members of the Court,

the speech here would not come within the

definition of a matter of public concern [....

] Roe’s activities did nothing to inform the

public about any aspect of the SDPD’s

functioning or operation. Nor were Roe’s

activities anything like the private remarks

at issue in Rankin, where one co-worker

commented to another co-worker on an item

17

of political news. Roe’s expression was widely

broadcast, linked to his official status as a

police officer, and designed to exploit his

employer's image. (Emphasis supplied) id. at

84.

The San Diego Court could not have been any

clearer. If a police officer making pornographic videos in a

police uniform is not a matter of “public concern’—

notwithstanding the fact that the pornographic videos were

“widely broadcast” and “linked to his official status as a

police officer’—what compelled the state court below to

find that a private labor union dispute is somehow a matter

of “public concern”? Notwithstanding the equally unusual

facts of San Diego, supra, this Court was “crystal clear” in

concluding that it was not a matter of “public concern,”

even stating the following: “this is not a close case.”

After San Diego was decided in 2004, this Court

subsequently clarified in Snyder v. Phelps, 562 U.S. 448,

453 (2011) that its holding in San Diego also applies in the

context of defamation cases such as the instant matter:

The arguably “inappropriate or controversial

character of a statement is irrelevant to the

question whether it deals with a matter of

public concern.” Rankin v. McPherson, 483

U.S. 378, 387 (1987). Our opinion in Dun &

Bradstreet, on the other hand, provides an

example of speech of only private concern. In

that case we held, as a general matter, that

information about a particular individual’s

credit report “concerns no public issue.” 472

U.S. at 762. The content of the report, we

6

explained, “was speech solely in the

18

individual interest of the speaker and its

specific business audience.” Ibid. That was

confirmed by the fact that the particular

report was sent to only five subscribers to the

reporting service, who were bound not to

disseminate it further. Ibid. To cite another

example, we concluded in San Diego v. Roe

that, in the context of a government employer

regulating the speech of its employees, videos

of an employee engaging in sexually explicit

acts did not address a public concern; the

videos “did nothing to inform the public about

any aspect of the [employing agency’s]

functioning or operation.” 543 U.S. at 84.

In other words, the fact that Vishniac’s readers may take

pleasure and have a prurient interest in reading the

uncorroborated hearsay of questionable third parties (i.e.,

persons who were also involved in the labor union

dispute)—and factually-false allegations of sexual

deviancy against Butcher—certainly does not render it a

matter of “public concern.”

Of note, while Vishniac and Mass Media easily could

have authored articles solely about the alleged events in

question, this is not how they opted to proceed. Instead,

they referred to Butcher personally in their two (2)

publications about the allegations by posting pictures of

him on the internet along with the subject publications.

19

c. Because no matter of “public concern” is

present in this defamation action, and because

the defense of the “fair report” privilege only

applies in defamation cases involving matters

of “public concern,” the lower court’s

allowance of the defense in this context was

erroneous and should be reversed.

Notwithstanding the state court’s unprecedented

holding to the contrary, it is black letter law that the

common-law fair report privilege (as interpreted through

the lens of the First Amendment and this Court’s binding

precedents thereunder) only applies to matters of “public

concern,” and it has zero relevance or application vis-a-vis

matters of “private concern.” Accordingly, the “private

concern” vs. “public concern” analysis is indispensable, and

cannot be side-stepped or ignored—as the SJC

unfortunately did here, as evidenced by its written decision

in this matter. See App. 1, et seq.

With regard to § 611 of the Restatement (Second) of

Torts—the applicable subsection describing the

Massachusetts fair report privilege—the First Circuit has

opined on this exact issue in Riley v. Harr, 292 F.3d 282,

296 (1st Cir. 2002):

Moreover, under the fair report privilege,

“the publication of defamatory matter

concerning another in a report of an official . .

. proceeding . . . that deals with a matter of

public concern [is privileged] if the report is

accurate and complete or a fair abridgement

of the occurrence reported.” (Emphasis

supplied).

20

As previously stated, ante, there does not appear to be a

single precedent in the entire United States wherein a

court permitted a defamation defendant to invoke the fair

report privilege in the context of a matter of “private

concern.” Unfortunately, by misinterpreting the purported

“strictures” of the First Amendment, as well as the binding

defamation law precedents heretofore established by this

Court, the state court below has needlessly deviated from

the traditional application of this common-law rule.

Wherefore, this Court should reject the state court’s

erroneous misapplication of the fair report privilege on

purported “First Amendment” grounds.

II. The state court’s reliance on the First Circuit’s

holding in Yohe v. Nugent, 321 F.3d 35, 43 (1st

Cir. 2003) is contradictory and problematic;

while the state court below reaffirmed the

validity of the common law Doctrine of

Republication, in Nugent, the First Circuit

declined to recognize it.

The Doctrine of Republication can be explained by

the following simple hypothetical. A local newspaper in a

small town publishes an article containing the following

defamatory “republication,” or reiteration:

“According to Joe, Sally is a thief.”

In reality, Sally—a private, non-public figure—is not a

thief. Sally, who works as a cashier at a local grocery store,

is fired after her employer reads the article. Thereafter,

Sally brings an action for libel per se against the

21

newspaper. At common law, can the newspaper be held

liable for libel?

In the case at bar, as re-affirmed by the state court

below, the answer is undoubtedly “yes.” As the court below

conceded, under the common law Doctrine of

Republication, a third party (such as the newspaper)

“republishing” a defamatory representation can indeed be

held liable for defamation—even if that third party was not

the original source of the defamatory representation.

To return to the foregoing hypothetical, the

newspaper itself never claimed that Sally was a thief.

Indeed, it was Joe who had made the allegation against

Sally, and the newspaper thereupon “accurately”

reiterated what Joe had actually said. However, pursuant

to the common law Doctrine of Republication, the

newspaper will still be held liable for defamation if Sally

can prove that, in reality, she is not a thief.

At present, there is a troubling contradiction

between the holding of the court below that the Doctrine of

Republication is indeed recognized in Massachusetts, and

the First Circuit’s antithetical and contradictory decision

in Yohe v. Nugent, 321 F.3d 35, 48 (1st Cir. 2003). In

Nugent, the First Circuit held that third-party

republishers (such as the newspaper in the foregoing

hypothetical) cannot be held liable for defamation if they

“accurately” republish (i.e., reiterate) the defamatory

statement of another. In other words, the First Circuit in

Nugent rejected the Doctrine of Republication, which

imposes defamation liability on the “republisher” as if the

republisher were the original source of the defamatory

statement. However, in the case at bar, the state court held

the exact opposite, i.e, that the Doctrine is indeed

recognized. This manifest contradiction is clearly

untenable, and should be resolved by this Court.

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