Jones v. Taibbi

• Decision Date: 18 August 1987
• Citation: 400 Mass. 786,512 N.E.2d 260
• Parties: , 14 Media L. Rep. 1844 Peter Mark JONES v. Michael TAIBBI et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 260

512 N.E.2d 260

400 Mass. 786, 14 Media L. Rep. 1844

Peter Mark JONES v. Michael TAIBBI et al. ¹

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued May 5, 1987.

Decided Aug. 18, 1987.

Martin C. Gideonse, Cambridge, for plaintiff.

John Taylor Williams, Boston, for Michael Taibbi & another.

Michael J. Liston, Boston, for American Broadcasting Companies, Inc.

Before HENNESSEY, C.J., and ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

On March 30, 1978, the plaintiff, Peter Mark Jones, was taken into custody and detained in California by the Los Angeles Police Department (LAPD) as a suspect in a chain of notorious murders known as the Hillside stranglings. Between March 30, 1978, and April 3, 1978, the defendant Boston Broadcasters, Inc. (WCVB-TV Channel 5) broadcast a series of news reports about Jones's arrest. ² The background investigation for the reports was prepared by defendant Michael Taibbi. The plaintiff was later released when police failed to charge him formally with the crimes. This action, initiated by Jones in 1979, alleges invasion of privacy and defamation as a result of those news broadcasts. ³ A judge in the Superior Court granted the defendants' motions for summary judgment. We transferred the case to this court on our own motion. We affirm in part, reverse in part, and remand the case to the trial court for further proceedings.

In 1977 and early 1978, Los Angeles was the scene of a series of murders of young women which became known as the "Hillside stranglings." In February, 1978, Taibbi, then an investigative reporter for Channel 5, learned from a Massachusetts prison guard that one George Shamshak, an inmate at the Massachusetts Correctional Institution at Walpole (now Cedar Junction), had information about the "Hillside strangler." Shamshak alleged that the plaintiff, then working in the Los Angeles area, had committed two or three of the Hillside murders. Shamshak indicated that the murders had occurred while he was staying with the plaintiff in California after an escape from M.C.I., Walpole. Massachusetts State police Detective Lieutenant William Bergin obtained similar information concerning Shamshak, and proceeded to investigate.

In early March, 1978, Taibbi learned from Bergin that two LAPD detectives had come to Massachusetts to question Shamshak. Bergin informed Taibbi that Shamshak, describing Jones as a "lifelong" or "boyhood" friend, had implicated Jones in two or three of the murders and that polygraph tests appeared to confirm his story. Shamshak had also identified photographs of the victims from a photographic array, and Bergin had no doubts about his veracity. Taibbi contacted the LAPD about its investigation and agreed to refrain from publicizing the information about Jones in return for being given advance knowledge of and permission to film Jones's arrest, if made. James Mitchell, a Los Angeles reporter, received similar information from the LAPD and also reached an agreement concerning the reporting of Jones's possible arrest.

In March, 1978, Shamshak was transferred from Massachusetts to California, and the LAPD placed Jones under surveillance. Throughout this period, as it sought corroborating evidence, the LAPD did not express doubt about Shamshak's story. Shamshak had passed several polygraph tests and possessed detailed knowledge of some of the murders which was not known by the public.

In late March, Taibbi and a Channel 5 cameraman traveled to California to film a series of reports on the investigation and possible arrest of Jones. On March 30, 1978, the LAPD arrested Jones in a parking lot. Taibbi and Mitchell were present and Channel 5 filmed the arrest from a parking lot accessible to the public. News of the arrest was broadcast almost immediately by other members of the news media. The LAPD held a press conference and termed the arrest of Jones a "major break." Jones was booked and held as a suspect in the Hillside stranglings, but was never formally charged.

Channel 5 announced the break in the Hillside case during its 11 P.M. newscast on March 30, 1978. The newscast included a background report by Taibbi. Taibbi described Shamshak's allegations that he had seen Jones murder at least two, and perhaps three, young women in the back of a van. Taibbi reported that the results of four polygraph tests supported Shamshak's allegations, and noted that the Massachusetts police believed that Shamshak's story "held." State police Lieutenant Colonel John Donovan was interviewed by Taibbi about the investigation. ⁴ The report also included interviews with members of Shamshak's family, who stated that they believed Shamshak. On the other hand, the report included Donovan's statement that California authorities had yet to find corroborative evidence. Taibbi concluded by posing several "unanswered questions" which cast doubt on Shamshak's credibility. Taibbi questioned, for example, whether Shamshak was a participant in the murders rather than an "innocent witness," and noted that, while Shamshak knew "much, much more than he could have learned from news accounts of the killings, ... often, on crucial points, he's been way off the mark."

During the next few days, Channel 5 reported on developments in California and in Massachusetts. The March 31, 6 P.M. newscast included a segment by Taibbi which included a film of Jones's arrest and reported that Jones had been booked on suspicion of murder on the basis of Shamshak's information. Taibbi described the LAPD surveillance of Jones, and quoted a source who said Jones was "the kind of man who dropped coins in blind mens' [sic ] cups and who stopped to help stranded motorists on the highways." An interview with Los Angeles Police Chief Daryl Gates was shown in which Gates stated there was "absolutely no question" that Shamshak's information was "the best thing we've had to go on." ⁵ The newscaster stated that "Los Angeles police charged Jones with two counts of first degree murder." The newscast then repeated Taibbi's March 30 background report and continued with a report quoting Jones's former fiancee saying that Jones could not be connected with the murders. There was also a segment reporting on a news conference held by the Massachusetts State police, in which Detective Bergin explained the State police role in the investigation.

Subsequent newscasts repeated some of these reports, as well as ongoing official investigations in Maine and Massachusetts into possible connections between the stranglings and similar murders in those States. Beginning on April 1, 1978, at 6 P.M., Channel 5 reported that the LAPD had not corroborated Shamshak's allegations. The newscaster stated that there was not "enough evidence yet to file murder charges against Jones," and, on the 11 P.M. newscast, it was reported that "Police in Los Angeles are still trying to find some hard evidence to justify a murder charge." On April 3, Channel 5 reported that Jones had been released "because of a lack of evidence." Taibbi reported that the LAPD investigation of Jones was not over, but that "Jones had a solid alibi for one of the nights in question," and was not at the moment a suspect in the killings. Two later newscasts reported the fact that Jones had been released.

The defendant American Broadcasting Companies, Inc. (ABC) reported Jones's arrest in its March 31, "Good Morning America" and "ABC Evening News" programs. At least one news segment on the "Good Morning America" program included the Channel 5 film of Jones's arrest with Taibbi's voice-over commentary. Additional reporting was done by several ABC correspondents, who used portions of Channel 5 film in their reports.

I. Defamation.

1. Defamatory publication. The threshold issue we confront is whether the broadcasts in question are " 'reasonably susceptible of a defamatory connotation,' so as to warrant their submission to a jury to determine if in fact the defamatory connotation was conveyed." Cianci v. New Times Publishing Co., 639 F.2d 54, 60 (2d Cir.1980), quoting James v. Gannett Co., 40 N.Y.2d 415, 419, 386 N.Y.S.2d 871, 353 N.E.2d 834 (1976). Bufalino v. Associated Press, 692 F.2d 266, 269 (2d Cir.1982), cert. denied, 462 U.S. 1111, 103 S.Ct. 2463, 77 L.Ed.2d 1340 (1983). Lal v. CBS, Inc., 551 F.Supp. 356, 360 (E.D.Penn.1982), aff'd, 726 F.2d 97 (3d Cir.1984). Restatement (Second) of Torts § 614 (1977). The determination whether the communication complained of is capable of a defamatory meaning is for the court. Restatement (Second) of Torts, supra at § 614, comment b. Where the communication is susceptible of both a defamatory and nondefamatory meaning, a question of fact exists for the jury. Id. See Smith v. Suburban Restaurants, Inc., 374 Mass. 528, 530, 373 N.E.2d 215 (1978).

The plaintiff argues that the repetition of Shamshak's allegations was false and defamatory. An imputation of crime is defamatory per se. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853, 330 N.E.2d 161 (1975). Lynch v. Lyons, 303 Mass. 116, 118-119, 20 N.E.2d 953 (1939). Absent a privilege, "the republisher of a defamatory statement 'is subject to liability as if he had originally published it.' " Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 36, 478 N.E.2d 721 (1985), quoting Restatement (Second) of Torts § 578 (1977). See generally W. Prosser & W. Keeton, Torts § 112, at 789 (5th ed. 1984); R. Sack, Libel, Slander, and Related Problems, § II.6.1 (1980); L. Eldredge, Defamation § 44a at 232 (1978). Liability for a defamatory statement may not be avoided "merely [by] adding a truthful preface that someone else has so stated." Ricci v. Venture Magazine, Inc., 574 F.Supp. 1563, 1572 (D.Mass.1983). See Maloof v. Post Publishing Co., 306 Mass. 279, 280, 28 N.E.2d 458 (1940). The defendants do not contend that Jones committed the murders to which Shamshak referred. Thus, the defendants' repetition of Shamshak's accusations, not shown to be true, was defamatory...