Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener (complaint) and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.
Showing posts with label fair report privilege. Show all posts
Showing posts with label fair report privilege. Show all posts

Wednesday, April 21, 2021

Media want anti-SLAPP security while ignoring real harm, and nobody wants to talk about tort dysfunction

Christian Dorn from Pixabay
On April 7, one of my favorite podcasts, WNYC's On The Media (OTM), ran a story, not its first, on anti-SLAPP laws: statutes in the states (not yet federal) designed to combat "strategic lawsuits against public participation."

I've written about anti-SLAPP many times.  I'm not a fan of the statutes.  The OTM piece is good and important, but it tells only one side of the anti-SLAPP story.  That's a common, and forgivable, shortcoming in mass media coverage of itself.

Why I Care, and You Should Too

I've been a media advocate since I was hooked by my first high school journalism class in the 1980s (hat tip at Mrs. McConnell).  I've been a media defense lawyer and a defamation plaintiff, besides a classroom teacher of media law and the First Amendment.  My hang-up is justice, or the remediation of injustice (yes, I'm a J), and there's plenty of both in the way our news media work in the shadow cast by the shield of the First Amendment.  Advocating for the devil in my classroom, I was a critic of the Sullivan/Gertz actual malice standard decades before it became fashionable, or even socially acceptable in academic circles, to question the supposed sine qua non of free speech.

So when the media defense bar teamed up with state legislators to start piling on anti-SLAPP statutes as another death-blow weapon in the scorched-earth media defense arsenal in the late 1990s, I was skeptical from the get-go.  Upon the siren song of free speech absolutism, now decades on, Americans have fallen into the lazy habit of denying access to our courts to would-be plaintiffs who are genuinely victimized.  As a scholarly observer of tort law, I can tell you, bad things happen when people are systematically disenfranchised from justice.  What's worse, as empirical research has consistently told us for decades, and I confirm from my own experience, the ordinary defamation plaintiff is not the money-grubbing opportunist that tort reformers (or distorters) wish us to imagine; rather, what a defamation plaintiff usually wants, first and foremost, is the truth.  News media defendants might remember the truth from journalism school.

How did we get to a point that when a plaintiff and defendant want the same thing, it's still a zero-sum game?  If with the best of intentions, the U.S. Supreme Court in the civil rights era so distorted the state landscape of defamation law that media defendants lost all interest in compromise, even if the simple compromise is to correct the record and speak the truth.  Sullivan biographer Anthony Lewis recognized this problem in the penultimate chapter of his otherwise-paean to the case in 1992.  And this is why the 1993 Uniform Correction or Clarification of Defamation Act proved a profound failure.  The uniform law proposed using a First Amendment-compliant carrot rather than a constitutionally prohibited stick to coax media defendants to hear complainants out before facing off in court.  But, media defendants implicitly pleaded in response, why should we listen when we always win?

Anti-SLAPP laws are perfect for the thing they're perfect for: To shut down an obvious attempt to abuse the legal process with a sham claim when the plaintiff's true motivation is to harass or silence a defendant engaged in constitutionally protected speech or petitioning, especially when it's whistle-blowing.  "I know it when I see it" is why a South African judge recently allowed anti-SLAPP as an "abuse of process" defense even in the absence of a statute, shutting down a mining company's implausible suit against environmentalists.  Meanwhile, the American anti-SLAPP statute, the darling offspring of mass media corporate conglomerates and financially beholden legislators, tears through court dockets with no regard for the balance of power between the parties.

As a result, sometimes, like the infinite monkey who stumbles onto Hamlet, anti-SLAPP works.  Other times, David is summarily shut out of court at the behest of Goliath.  The dirty secret of the media defense bar is that it's pulling for the latter scenario more often than the former, because Davids pose a much greater threat to the corporate bottom line than the occasional, over-hyped monkey.

Squirrel!  SLAPPs Aren't the Problem

SLAPP suits only work because of a bigger dysfunction in tort law:  Transaction costs are way too high.  Lawyers and litigation cost too much.  (Law school costs too much, but that's another rabbit hole.)  Our civil dispute resolution system, in contrast with those of other countries, so prizes precision as to draw out civil proceedings to absurd expectations of time, energy, heartache, and money.  Too often, at the end of a litigation, both exhausted parties are net losers, and only the lawyers, on both sides, come out ahead.  The tort system is supposed to engender social norms and deter anti-social conduct through its compensation awards, not its overhead costs.  We've so contorted torts, especially when accounting for suits that are never brought, that the norm-setting and deterrent effects of transaction costs dwarf the impact of outcomes.

Anti-SLAPP tries to solve the problem of runaway transaction costs by summarily dismissing claims on the merits when a plaintiff cannot prove the case at the time of filing, usually without the benefit of discovery.  The game is rigged, because the evidence the plaintiff needs is in the possession of the defense.  So plaintiff's unlikely path to proof, already mined with common law and constitutional obstacles to press the scale down on the defense side, is well obliterated by anti-SLAPP. We could use this "solution" of summary dismissal across the board to cut back on tort litigation.  But people wouldn't stand for it in conventional personal injury, because then we'd be overrun with uncompensated and visibly afflicted plaintiffs, and the injustice would be undeniable.

If we dared have the creativity to experiment with more effective dispute resolution mechanisms as alternatives to tort litigation, we might best start with defamation cases, in which we know what plaintiffs want, and it's not money.  Yet here we are, hamstrung by the Supreme Court, disenfranchised by defense lobbyists, and forced to swallow the dangerous myth that we can have free speech only if we stand aside and let mass media deliver misinformation with impunity.

The Case of the Charity Exposé
and the Lamentations of the Media Defense Bar

In the April segment, OTM host and media veteran Bob Garfield interviewed Victoria Baranetsky, general counsel for the 501(c)(3) nonprofit Center for Investigative Reporting (CIR), about a lawsuit by also-501(c)(3) nonprofit Planet Aid against CIR.  The lawsuit arose from a 2016 series on the CIR Reveal platform, in which CIR alleged abuse of charitable status by the organization through, inter alia, improper diversion of donor funds.  A California federal judge dismissed the 2018 complaint in March 2021, and Planet Aid, which is appealing, and CIR have very different takes on what that dismissal meant.  Planet Aid emphasizes "46 statements" in the reporting that the court found false, notwithstanding anti-SLAPP dismissal, while CIR emphasizes "several million dollars" of legal costs, "vastly exceed[ing] ... insurance coverage" and impossible to pay without pro bono aid.

CIR is not an outfit that publishes without doing its homework.  So without opining on the merits of the lawsuit, I admit, my gut allegiance in the case tends to CIR.  And I think it's OK that OTM interviewed only Baranetsky.  "Balance" as a journalistic value too often feeds the "talking heads" phenomenon we know from the disintegration of television broadcast journalism.  OTM's report was about the toll of litigation on journalism, not the merits of the CIR stories.  Looking, then, at the OTM story, I find that a side was missing, but it wasn't Planet Aid's.  Missing is reasoned resistance to the anti-SLAPP craze.  Here, then, are my reflections on five media lamentations in the OTM story about anti-SLAPP.

Lamentation Over Forum Shopping

(1) Baranetsky lamented that Planet Aid was permitted to sue in Maryland, where the law was advantageous to a plaintiff, and CIR was forced to incur major costs to move the case to California, where anti-SLAPP law is more protective.  Federal anti-SLAPP would fix this problem.

Forum shopping is a problem, but not specially a media defense problem.  Barring defamation victims from redress equally across the states isn't better than barring them one state at a time; i.e., 50 wrongs don't make a right.  Rather, everything that's wrong with anti-SLAPP would be multiplied by a federal statute.  Plaintiff's choice of forum does aggravate costs, and that allows forum shopping to be used improperly as a SLAPP tool.  The answer is to change how we manage forum selection in federal civil procedure to stop the externalization of costs to defendants and to compel professionalism in the plaintiffs' bar—not to put a thumb on the scale of merits in lawsuits, even SLAPPs.

Moreover, in overriding state court discretion to hear defamation actions on the merits, a federal anti-SLAPP statute would double down on the entrenched Sullivan/Gertz paralysis of the tort system that's precluding the development of innovative alternatives.  Our problem in defamation law is not lack of uniformity in the states, but precisely the opposite, lack of diversity that would generate new approaches.

Lamentation Over the Burdens of Discovery

(2) Baranetsky lamented that California federal courts have allowed limited discovery before dismissing cases under California anti-SLAPP law, thereby upping the costs of money and time for media defendants and mitigating the efficacy of anti-SLAPP. 

Notwithstanding the present debate in the Courts of Appeal over whether state anti-SLAPP laws can displace federal court process, anti-SLAPP puts defamation plaintiffs in a no-win scenario, especially when the plaintiff is a public figure.  Under Sullivan/Gertz, a public-figure plaintiff can prevail only by proving subjective knowledge or intent on the part of the defendant to publish falsity.  Subjective culpability lies only in the mind of the defendant.  Without precogs, we prove subjective culpability with circumstantial evidence.  When the defendant is a mass media organization, that evidence is in the possession of the defendant.  Even in a negligence case with a private-figure plaintiff, it is impossible to probe the culpability of the defendant when the plaintiff has no knowledge of the defendant's internal process, even the identity of a staff editorial writer, for example.

Yet along comes anti-SLAPP to demand (in the usual formulation) that a plaintiff prove likelihood of success on the merits with evidence that the plaintiff could not possibly possess.  Win-win for the media defense, lose-lose for access to justice.  Baranetsky bemoaned the costs, tangible and intangible, of discovery, especially on a nonprofit media outlet.  With that complaint, I am sympathetic.  Again, though, the answer is to change the process to control transaction costs.  The long reach of American discovery is globally infamous and socially problematic in ways well beyond the woes of media defendants.

Baranetsky raised the further point that the permitted discovery was one-sided, so CIR was not able to use discovery to bolster what might be a winning affirmative defense, such as truth.  I take this point, too.  I have some concern about the potential for a media organization—imagine not CIR, but a more partisan and unscrupulous outfit—to misuse discovery to further ill intentions.  But courts can and should control the scope of discovery with appropriate protective orders.   

Lamentation Over Interment by Paper

(3) Baranetsky lamented that the Planet Aid "complaint was about 66 pages, almost 70 pages long.... [B]ecause our reporters did such extensive reporting, published on the radio, published online, there were a lot of remarks to pull in from a really substantive investigation. The complaint here was padded with all of those bells and whistles."  That again upped media defense costs and slowed down the anti-SLAPP process.  

I don't doubt that the complaint was longer than it needed to be.  Plaintiffs anticipating high-profile litigation—by the way, including agenda-seeking litigators from both left and right, as well as state attorneys general—routinely plead "to the media" and to "the court of public opinion," rather than to the court of law.  Excessive pleading runs up defense costs, as well as court time, which is not fair to litigants or taxpayers.  Again, the answer lies in bar and bench control of process and professionalism, not in summary dismissal on the merits.

More importantly, to some extent, a defamation plaintiff's claim in a case over a series of reports must be lengthy, for a very reason Baranetsky said, and not because the plaintiff wants it that way.  It's not "padding," "bells," or "whistles."  Defamation plaintiffs are compelled by rules of pleading to commit a perverse self-injury by republishing the defamation of which they complain.  Thereafter, mass media entities are permitted to restate the defamation as a fair report of a public record, almost with impunity.  As a result, often, the defamation is amplified, and the plaintiff's suffering is vastly compounded.  Even if the plaintiff wins the case, compensation for this added injury is disallowed, and no media entity can ever be compelled to correct or update the record by reporting that the plaintiff later prevailed upon proof of falsity.

In my own plaintiff's case, precisely this happened.  Among countless national outlets, The New York Times reported the defamatory allegations I republished in the complaint, but never covered the case again, despite my entreaties to the reporter and ombudsperson.  To this day, I overhear innuendo based on the Times story with no reference to my later exoneration, which was reported in only one excellent-but-niche publication.  In my experience with would-be defamation plaintiffs, I have seen that this risk alone prevents a victim from seeking redress as often as not.  Once again, we could answer this problem by reforming pleading in defamation, rethinking what "fair report" means in the digital age, and experimenting with dispute resolution, if only Sullivan/Gertz left the defense bar with the slightest incentive to participate.

Lamentation Over Litigiousness

(4) In his introduction to the case, Garfield said, "Without offering evidence to rebut the allegations, the charity promptly sued the news organization for libel."

OTM itself walked back this characterization of Planet Aid's lawsuit as a blindside attack.  An OTM editor's note to the story posted online added that, according to a PR firm representing Planet Aid, the organization "reached out to [CIR] prior to filing its lawsuit asking for a retraction and correction."

I don't know whether Planet Aid's version is right, or OTM's, or maybe the demand letter got lost in the mail.  As I've indicated, I'm not rushing to sign up Planet Aid as my poster child for the Anti-SLAPP Resistance.  But OTM's post hoc characterization of events is, to my experience, typical of media-defense-bar spin.  In reality, rare in the extreme is the case that there is not at least a demand letter and response.

In my own plaintiff's case, I filed suit as late as possible, on the eve of the expiration of the statute of limitations.  I sought to diffuse the disagreement through every possible avenue, both vis-à-vis my defendants and through negotiation with a third party.  Yet when my case turned up years later in a book by an academic colleague, Amy Gajda, she used my case to support the book's thesis that alternative dispute resolution mechanisms on university campuses would help to avert lawsuits by litigious academic plaintiffs like me.  I don't dispute (or support) that thesis in the abstract, but my case did not support it.  Gajda suggested that I rushed to sue, without probing alternatives, which was utterly false.  In fact, it was the refusal of my potential defendants to come to the table—the very problem of Sullivan/Gertz inhibition of dispute resolution—that forced me into a lawsuit as an undesired last resort.

Gajda, by the way, is herself an award-winning journalist and scholar of media law.  Yet she readily contorted the procedural facts of my case to fit her expectations without ever asking me what happened.  We know each other, and I'm not hard to find.  If a top-flight journalist can be so sloppy with the facts in a case about a professional colleague, and I have to lump it, what chance does a lay soul in private life have to correct the record on something that really matters, as against a professional media outlet with a partisan agenda and lawyers on retainer?

How simple it is to make assumptions and feed the tort reformer's myth that greedy plaintiffs eagerly sue at the drop of a hat.  Yet no one properly counseled by an experienced attorney chooses a lawsuit as a first course of redress.  To the contrary, defamation victims, especially in matters as difficult to win as media torts, typically cannot find an attorney willing to take the case at the opportunity cost of sure-thing personal-injury money, and certainly not on contingency.  Plaintiffs wind up not suing for that or many other reasons unrelated to their real losses.  Other reasons include the risk, under anti-SLAPP fee-shifting, of having to pay attorneys' fees to a corporate media defendant's high-priced lawyers—not because the plaintiff wasn't defamed, but because the plaintiff could not meet the enhanced burdens to overcome a First Amendment defense.  Other reasons also include the stigma associated with being a plaintiff in America, a stigma perpetrated by corporate advocates of tort reform and conveniently perpetuated by would-rather-not-be defendants in the media business.

Lamentation Over the Price of Free Speech

(5) Baranetsky opined, "We have to be wary of defamation law being used by public figures and politicians and wielded in ways that can be used retributively. At the same time, make sure that lies aren't being spread.  The hope is that anti-SLAPP laws are really, they're the precise scalpel that's supposed to sharply and acutely figure out which falls on which side of the line."

That's a profound misapprehension of anti-SLAPP laws.  There is nothing about anti-SLAPP that is precise or acute.  Very much to the contrary, anti-SLAPP is designed to be a blunt instrument that stomps out litigation before it can get started, looking scarcely at the quantum of evidence on the merits and rounding down in favor of the defense.  Anti-SLAPP operates upon the very theory of Sullivan/Gertz, which is that the price of free speech is the prophylactic annulment of meritorious claims and the tolerance of misinformation.  The theory of anti-SLAPP is that we don't want to know the truth, and would rather abide falsity, when the cost of disentangling truth and falsity is inconveniently excessive.

Baranetsky's take on anti-SLAPP is ironic in the extreme.  The Sullivan/Gertz constitutionalization of state tort law is based on the age-old argumentative hypothesis of moral philosophy that "the truth will out" in the marketplace of ideas, so the courts ought not intervene to abate falsity.  That proposition has been vigorously refuted by scholars as demonstrably erroneous.  And CIR's very motto, splashed on a home page banner, is: "The truth will not reveal itself."

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I've identified areas of tort law that need reform—abuse of forum selection, excessively broad discovery, permissiveness of fact pleading—and areas of defamation law in particular that need reform, procedural and substantive—pleading requirements, fair report protection, culpability and proof standards, plaintiff access to representation, and availability of alternative dispute resolution—but are paralyzed by federal capture of common law and media defense intransigence.

Let me not understate my appreciation for OTM, WNYC, CIR, and all kinds of nonprofit journalistic enterprises.  I am grateful that CIR did the reporting that it did on Planet Aid, and for the reporting that OTM does all the time on threats to public interest journalism.  I am fearful of a world in which that reporting does not happen.  

Nevertheless, I object to a legal standard that presumes news media have the corner market on truth.  If our system of civil dispute resolution is broken, and I think it is, then we need to fix it.  Anti-SLAPP is at best a patch to paper over unsightly symptoms of our dysfunction, and, too often, it does so at the expense of genuine victims.  Our willingness to ignore injury says more about the sorry state of our democratic character than does our blind fealty to an unbridled press.

At the annual meeting earlier this year of the Communications Law Forum of the American Bar Association, a famously media defense-identifying conference, I heard whispered for the first time some cautious and reluctant concern that media defendants holding all the cards in tort litigation might—wait, is this a secure channel?—might not necessarily be the best strategy to ensure the freedom of speech and to protect the flow of truthful information in America, especially in the digital age.

Now where have I heard that before?

Tuesday, September 1, 2020

Libel suit must follow first online post in less than three years, Mass. court rules, applying U.S. norm

The Massachusetts Appeals Court today opined that the "single publication rule" of American libel law causes the statute of limitations period for a defamation claim to start running on the day that a news outlet posts the contested content online.

In American libel law, the single publication rule means that a plaintiff may sue only upon the first publication of allegedly defamatory content.  The content may thereafter be distributed through other publications and other media, amplifying the injury to the plaintiff.  That amplification can count toward damages if the plaintiff prevails.  But there may be only one cause of action for defamation, and the clock for the statute of limitations, the time within which the plaintiff must bring suit, starts running from the time of first publication.  The rule is said to serve interests of both judicial efficiency and fairness to defendants.

A newspaper is printed in 2013 on an 18th-century press
in Colonial Williamsburg. (Maggie McCain CC BY 2.0)

There are exceptions to the single publication rule, namely when content is republished to a substantially different audience or is substantially altered and then republished.  The lines drawn by these exceptions became fuzzier in the internet age, because the internet can be characterized as a sort of ongoing "republisher," such that content is published anew with every user download.  Some plaintiffs were able to chart exception to the single publication rule by asserting alteration in the creation of online archives of dated print material, an issue that reverberates in the debate over the right to erasure, or "right to be forgotten."

The norm that emerged in the digital age in the United States is that the first posting of content online counts as the time of first publication.  In a decision today, the Massachusetts Appeals Court followed that norm.

The plaintiff, Wolsfelt, sued defendant Gloucester Daily Times for its coverage of reported incidents of domestic violence.  In each of two incidents, Wolsfelt was arrested.  After the first incident, in November 2011, the Times published online a story that, according to the Court, "largely tracked the police report."  When in February 2012 the criminal court "entered a 'general continuance' with a 'no abuse' order," the Times updated the story online to report "assault and battery charges ... continued without a finding."

After the second incident in June 2012, the Times again published online a story that "largely tracked the police report."  When in February 2013 the criminal court entered "a continuance without a finding" in that case, the Times updated the story online to report a "charge of assault and battery ... continued without a finding for 18 months."  Charges were dismissed in 2012 and 2014, respectively.

In a defamation complaint in February 2015, the plaintiff "asserted that the articles contained 'untrue, incomplete, misleading[,] and damaging assertions,' resulting in harm that included loss of reputation and potential employment."  But the complaint was not filed until more than three years after the first article, its update, and the second article.  The complaint was filed just under three years, the statute of limitations in Massachusetts, from the publication of the second update.  The plaintiff said he learned about the articles only upon applying for employment in February 2013.

The Court affirmed rejection of the complaint insofar as it was predicated on the first three publications, because the statutory limitations periods on those pieces had run.  Analyzing the second update alone, the Court ruled that it was protected by the fair report privilege, a common law affirmative defense to defamation that protects reporting on public records even if the public records themselves, and therefore reports about them, might contain defamatory falsehoods.  The court's decision is consistent with the single publication rule as applied to the internet by courts in other states.

The single publication rule at one time marked an important difference between common law defamation in the United States and defamation law elsewhere in the world, notably the United Kingdom and other common law jurisdictions.  The lack of a single publication rule in other countries exaggerated the problem of "libel tourism," the phenomenon of plaintiffs shopping for forums friendlier than the United States in which to sue for defamation.

However, adaptation of defamation to the internet, with its unprecedented capacity for republication, created far more headaches in legal systems without the single publication rule than in the United States.  Without the rule to draw the limitations period to a close, causes of action based on web publication seem potentially endless.  Accordingly, the single publication rule has gained traction as a U.S. export.  The rule was adopted in the U.K.'s major statutory overhaul of defamation in 2013.  And the rule has been a point of proposal in Australia's ongoing defamation reform.  The single publication rule became law in New South Wales in July (Lexology).

The case is Wolsfelt v. Gloucester Times, No. 19-P-936 (Mass. App. Ct. Sept. 1, 2020).  Justice Dalila Wendlandt wrote for a panel that also comprised Justices Singh and McDonough.

Tuesday, September 18, 2018

'Have You Seen This Man?': Student newspaper editor on libel hook for campus crime coverage

A suit for defamation and intentional infliction of emotional distress (IIED) may proceed against the former editor of the college newspaper at UMass Boston (UMB) since the Massachusetts Appeals Court reversed summary judgment for the defendant today.  The case, Butcher v. University of Massachusetts, No. 17-P-161 (Mass. Ct. App. Sept. 17, 2018), raises a buffet of compelling issues for the media law buff, to say nothing of the specter of student journalism's uneasy relationship with public university oversight.

The facts are complicated and controverted.  Plaintiff Butcher worked in IT at UMB and took pictures with his cellphone while on a university shuttle bus.  The bus driver accused him of taking pictures of women on the bus; Butcher maintains that he was taking pictures of buses and structures.  After a verbal confrontation, the bus driver and Butcher took pictures of each other.  The driver sent pictures of Butcher to UMB police.  Butcher, using a pseudonym to protect his privacy, he asserted, complained about the bus driver to UMB public safety.

The student newspaper published an item from the police blotter based on the bus driver's report.  That item recounted that "[a] suspicious white male in a black jacket took photographs and video of nearby women, as well as some buildings on campus."  Soon thereafter, the newspaper published in print and online an additional report with the pictures of Butcher and the headline, "Have You Seen This Man?"  The latter report stated that "the man in the photograph allegedly walked around the UMass Boston campus snapping pictures of female members of the university community without their permission."  The gravamen of Butcher's complaint arises from the suggestion that he is some kind of sexual predator.  The newspaper moreover erred in stating that Butcher was reported by a student rather than by a bus driver, and that Butcher took pictures "around ... campus" rather than on the bus.

Identification followed from the newspaper publication of the photographs.  Campus detectives interviewed Butcher and took his university-issued phone over his objection.  Inspection of the phone revealed only the bus and structure photos Butcher had said he took.

Butcher complained of extreme social and professional alienation as a result of the newspaper publications.  He alleged exclusion from important projects at work, "fear and loathing" in stares on campus, and harassment by bus drivers compelling him to walk rather than take the shuttle.

The superior court dismissed claims against UMass on grounds of sovereign immunity and awarded summary judgment on the merits to former student newspaper editor Cady Vishniac.  See her compelling UMass Boston alumna testimonial at the Boston Institute for Nonprofit Journalism.  The Appeals Court reversed as to Vishniac.  Here comes the buffet:

The substantial truth doctrine protected the newspaper on the small stuff.  The appeals court agreed with the lower court that defamation did not arise in the newspaper's plain errors--whether a student or a bus driver reported to police, and where the pictures were taken--because the gist or sting of the erroneous reporting was substantially the same as had the report contained the truth.  I think "around campus" sounds worse than on a bus, but OK, tomato, tomato.

The fair report privilege did not protect the newspaper's recitation of a witness statement to police.  Consistently with state high court precedent, the Appeals Court held that the fair report privilege--which gives journalists latitude to restate even defamatory falsehoods reported in official records, lest the public not be able to ascertain the use of erroneous information to support official action--is not triggered until there is an official police action, such as an arrest.  Because Butcher was not arrested--indeed, because there was no evidence to support an arrest--the fair report privilege never kicked in.  On the one hand, this is a logical construction of the privilege, as without an arrest, the risk of circulating defamatory falsehood outweighs the risk secreting falsehood as a basis of official action. On the other hand, this is a big heads up to editors--from high schools to pros--who mindlessly reprint the police blotter: the allegations of witnesses are as good as direct quotes and need to be fact checked as such.  The common law maxim rings true: the tale bearer is as responsible as the tale maker.

Actual damages include general damages, and reputational injury renders general damages.  Hear me now, believe me later, I say when I teach Gertz v. Robert Welch, Inc.: a limitation to actual damages does not mean only special damages!  Massachusetts law allows defamation to stand only on, and afford recovery only for, actual damages.  The defense here seems to have argued that that rule would preclude Butcher's recovery for want of demonstrable economic loss.  The court observed that Butcher moved on to another job that pays better, though had to forgo his pension plan, so economic loss is not a gimme.  No matter.  Butcher's alleged marginalization at work and social alienation on campus amply support his claim of reputational injury, and that's an actual damage with mental anguish as consequence, notwithstanding proof of economic loss.  General damages for reputation can be substantial in the eyes of jurors, especially jurors who have a distaste for mass media defendants.

Outrageous!  Like other states, Massachusetts allows IIED to proceed only upon conduct that would cause an ordinary person to proclaim, "Outrageous!"--i.e., as the Second Restatement put it, "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."  Does "Have You Seen This Man?" fit the bill?  Well, maybe: when viewing the facts in the light most favorable to the party not moving for summary judgment, "as we must" according to the rules of civil procedure, the Appeals Court recalled.  I agree.  A colleague once told me that there are two allegations that destroy a person's reputation virtually beyond repair, even if proved untrue: child molester and racist.  In the #MeToo era, there might be a third.  However much those allegations might masquerade as "opinion" or mere suspicion, they have the force of factual declaration and are socially, if not also economically, fatal.

A subtext in the case is the problem of student journalism's editorial independence at a public university.  For purposes of the litigation to date, Vishniac was represented along with UMB by university counsel.  Will that representation continue now that the university has been dismissed?  Were the university's and Vishniac's interests always interchangeable anyway?  Is UMass Boston prepared to indemnify Vishniac?  Certainly I empathize with Vishniac.  One does not become a college newspaper editor and figure on having to take out libel insurance--whether for me at 20 years old or for Vishniac as a non-traditional student juggling family and educational opportunity.  But media at public universities have long asserted editorial independence by arguing, logically, that a heavy hand in university editorial control, prior review, or censorship would invite litigation against the university--so hands off!  If the university is on the hook either way, it's much more likely to heed demons' whispers when student journalists come 'round trying to follow the money.  And it's not like UMass Boston and money problems haven't met.

Finally, let's not be too quick to the ramparts in defense of journalism here, nor to rally the troops to #MeToo battle.  Notwithstanding the issue of whether the the newspaper reports implicated sexual-predator-like conduct, falsely, it seems to me that the newspaper has a bigger problem if even the bus driver witness only accused Butcher of "snapping pictures of female members of the university community without their permission."  Despite all efforts at making that seem creepy--the newspaper characterizing Butcher as "suspicious" and the bus driver claiming that Butcher hid his face when confronted--it happens that taking pictures of people in public places is legal in America.  It's true.  I checked.  No permission required.  Men or women, no matter.  Some might even call it art.  Europe a different story, long story, but different.  There are narrow exceptions, but they don't seem to be in play here.  I would like to learn that the police's first reaction to the bus driver's complaint was, "Sorry, you said 'suspicious'; could you say a little more about that?"

With remand to superior court, this ain't over.  Happy Constitution Day!

[UPDATE, January 28, 2020:  On December 31, 2019, the SJC ruled, per Justice Lenk: "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." Read more at
Butcher v. University of Massachusetts, No. SJC-12698.]