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Court tosses libel suit against UMass newspaper editor over crime-blotter items

The Supreme Judicial Court today dismissed a libel suit against the news editor of the UMass Boston student newspaper because the paper accurately reported accounts by campus police that they were looking for a man for some "suspicious" activity on a shuttle bus - and that means she is covered by a legal principle that protects journalists reporting on "official" statements and actions.

The ruling is a win for the news editor in particular but also for Massachusetts journalists and news organizations in general, although the court emphasized it was not providing blanket protection for reporting every last item in daily police logs or providing accounts of longer "official" statements.

At issue in Jon Butcher's libel and emotional-distress suit were his actions on March 13, 2013.

A driver of a UMass shuttle bus had noticed a man taking photos on his bus at JFK/UMass and thought he was photographing women. A bus "starter" got on the bus and tried to convince the man to stop taking photos. UMass Police officers arrived, but the man had left by then. Police noted the "suspicious" activity in their daily log, which the campus newspaper, Mass Media, reported. Then, as police continued to look for the man, they provided a photo and a description of the man and what he might have been doing to the paper, which posted them under the headline "Have You Seen This Man?"

Butcher at the time worked for the UMass IT department, where a co-worker recognized him from the photo and called police, who brought him in for questioning. Butcher denied perving on women and said he was taking photos of alleged safety issues on the buses - whose operator was embroiled in a labor dispute at the time. Police seized his phone and eventually conducted a search - Butcher at first refused to provide the phone's password - which showed only photos of possible bus issues and a driver for March 13, but not of women.

Butcher claimed in his suit that the published photo and two news items caused him serious harm - he had to walk to work from JFK/UMass because bus drivers would stare at him angrily and he was assigned to a series of demeaning jobs after the incident before he finally quit.

In 2014, Butcher filed a defamation suit against both UMass and the paper's news editor at the time, Cady Vishniac.

Vishniac's lawyers argued the suit should be tossed because the accounts were exempt from any libel claims because of long-standing legal "privilege" - first enunciated in the 18th century - that protected journalists who accurately reported on official statements. But in a ruling last year, the Massachusetts Appeals Court concluded that Vishniac was not covered by the privilege because UMass police never brought formal charges against Butcher and so campus police were not acting in an "official" capacity when they provided Mass Media with what turned out to be Butcher's photo and description.

In its ruling today, however, the state's highest court said UMass Police most certainly were acting in an "official" capacity when they initially published a daily police log that included an item about a "suspicious" man at JFK/UMass and then gave Mass Media the photo and description.

The court cautioned the privilege is not absolute. Each log item must be reviewed individually, lest people with bad intent report blatantly false information to police on the hopes it will get into a police log and attract media attention, the court said. And even news reports on items that fall under the privilege need to be scrutinized to ensure the reporter does not inject any harmful mistakes.

In Vishniac's case, the court concluded the first short item, about the "suspicious" man, was an accurate representation of what was in the police log for the day in question. It ruled that while the longer second piece contained three errors - including referring to the incident being "on campus" when it was actually at the JFK/UMass T stop, which is off campus - none affected the basic veracity of the account, which fairly reported that UMass Police were, in fact, looking for somebody in relation to the incident.

In sum, once police undertake an official response to a complaint, both that response and the allegations that gave rise to it fall within the fair report privilege. Thus, here, both the report of the UMass police response, and the allegations that triggered that response, were privileged [i.e. exempt from a libel claim]. As with the first post, the republication of the blotter narrative was privileged as a report of official police actions. While it is not a perfect reproduction of the blotter post, it is substantively identical. The later post still attributes the contents of the article to UMass police. In so doing, the article carefully states that the police narrative is an "alleg[ation]" from a police source, and does not present it as the truth. Moreover, as with the first publication, the second reflects ongoing police action, i.e., the search for an unknown man, and the reasons underlying that action. Accordingly, because the article was limited to official actions, it was within the scope of the privilege.

It detailed why the three mistakes in the longer second item still did not rise to the level of defamation.

Inaccuracies ... "do not amount to falsity so long as 'the substance, the gist, the sting, of the libelous charge be justified'" (citation omitted). Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991). Here, the "sting" of the publication was that the plaintiff was seen suspiciously taking photographs of women. Neither the location of the activity, nor the identity of the particular witness who reported it, would enhance the defamatory effect of this report. The additional allegation that the plaintiff took photographs of women "without their permission" does have a greater potential impact on this defamatory sting. Nonetheless, because the blotter itself described the man's activity as suspicious, the inference that he was taking these photographs in a surreptitious manner was not unreasonable. This added detail did not transform the statements in the report or enhance its defamatory "sting." ELM Med. Lab., Inc., 403 Mass. at 783. Instead, it "produce[d] the same effect on the mind of the recipient which the precise truth would have produced" (citation omitted). Id. The "rough-and-ready summary" of the report was sufficiently accurate, and these statements are not actionable.

Without a libel leg to stand on, Butcher also had to have his claim of "intentional infliction of emotional distress" dismissed:

The defendants' statements were privileged; such a privilege cannot be evaded simply by relabeling a deficient claim.

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Comments

Sucks for him how he was treated at his job afterwards.

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Voting closed 8

The incident happened at JFK station. Were the Transit Police notified? What law gives campus police the power to investigate crimes on MBTA property? Do other campus police departments such as Northeastern and BU handle incidents involving students and faculty on MBTA property?

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Voting closed 6

Since the bus serves UMass and involves UMass students and staff.

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Voting closed 14

While many campus police forces are akin to private security contractors, UMass police are state law enforcement officers. I can't speak to other issues of jurisdiction, but the Northeastern/BU comparison doesn't hold here.

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Voting closed 7

What crime was this person accused of?

"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."

So the person was taking pictures in public and someone who didn't like that ...took a picture of them in public.

The police love to remind us that we have "no expectation of privacy" in public when they justify the literally thousands of security cameras they've erected over the past decade, including hidden ones, and including ones on buses and at every public transit stop. So what were the police investigating here?

The article also points out the police attempted to force him to hand over his cell phone password, which he refused. This was in 2013. People should be aware that this is now no longer legal as of 2014, Riley v. California.

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Voting closed 18

taking the pics up their skirts, that charge is valid. Otherwise...

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Voting closed 4

There's a difference between "taking a picture on a bus", where people can be seen and even recognized - and taking pictures of people, possibly stalking or harassing them. If someone suspects the latter and is concerned for their safety or the safety of others, it is entirely correct for them to notify the operator or campus police, and for campus police to investigate.
.

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Voting closed 17

axis?

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Voting closed 13

Police seized his phone and eventually conducted a search

No.

UMass police took possession of UMass's phone.

UMass owned the phone.

Just like a work desktop computer, an employer can consent to searches without employee approval.

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Voting closed 6

The issue was that Butcher refused to provide his password for the phone, so investigators could not simply look at the images (also, while there may have been no photos of women from the day in question, there were from other days), according to the Massachusetts Appeals Court decision from last year, which goes into the phone issue in more detail.

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Voting closed 7