The Massachusetts Appeals Court ruled today a worker at UMass Boston can proceed with a libel suit against the news editor at the campus newspaper, which published a photo of him in 2013 provided by campus police - who wanted to ask him whether he was photographing women on a shuttle bus from the JFK/UMass T stop to the school.
State libel and defamation law grants a "fair reporting privilege" to reporters who quote and cite official statements, but the court ruled that in this case that didn't apply because campus police never brought any formal charges against the man, after they seized his college-issued phone and found only photos of the bus, not of any women on it, for the day in question.
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.
The ruling means that Jon Butcher, at the time an IT worker at the university, can proceed with his libel suit against Cady Vishniac for the way the paper published a photo provided by campus police in 2013, under the headline "Have you seen this man?" and for posting excerpts from a police log that said he was wanted for questioning about taking photos of women who did not know he was photographing them.
Butcher had initially also sued UMass, several officials and two other students who worked on the paper at the time, but the court agreed with a Superior Court judge to dismiss the suit against UMass and its officials for failing to state a claim and the two other students because Butcher, acting as his own lawyer, provided no proof he had ever actually served them with his complaint.
Vishniac said tonight:
I was not empowered to publish anything on my own as news editor. The managing editor revised my article. It was published by him and editor-in-chief.
The appeals court ruled that Butcher had shown sufficient proof he'd been harmed by the photo and article - he had to walk to work for several months to avoid angry-looking bus drivers and he was assigned to a series of demeaning jobs after the incident before he finally quit.
The court said the fact that he initially sought to hide his identity from police investigators, was evasive in an interview with them, refused to provide the access code for his university-issued phone and that the phone did have photos from other days of women on the bus were not germane to his accusations about the specific incident - the allegations for which Butcher claims were all fabricated because he was trying to document safety issues with the bus company that ran the shuttle.
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. These harms stem from the defamatory publication that branded him a possible sexual predator to the campus community.
The court added that the allegation the Butcher was surreptitiously photographing women were "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" that he should get the chance in court to prove the publication was an "intentional infliction of emotional distress."