Appleby v. Daily Hampshire Gazette

• Decision Date: 28 May 1985
• Citation: 395 Mass. 32,478 N.E.2d 721
• Parties: , 11 Media L. Rep. 2372 Kenneth A. APPLEBY v. DAILY HAMPSHIRE GAZETTE (and three companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 721

478 N.E.2d 721

395 Mass. 32, 11 Media L. Rep. 2372

Kenneth A. APPLEBY v. DAILY HAMPSHIRE GAZETTE (and three companion cases¹).

Supreme Judicial Court of Massachusetts Hampshire.

Argued Feb. 6, 1985.

Decided May 28, 1985.

Richard M. Howland, Amherst, for plaintiff.

James Heigham, Boston (Frank Libby, Jr., and Alexandra Leake, Boston, with him), for Daily Hampshire Gazette and others.

Charles Donelan, Boston, for The Associated Press, and William Darrin, Pittsfield, for United Press Intern., Inc., amici curiae, submitted a brief.

Gerald May, Sr., Michael J. McHugh and Mark C. O'Connor, Boston, for The Hearst Corp., amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

In 1981 and 1982, Kenneth A. Appleby commenced approximately ninety-four separate actions, alleging that various newspapers, radio and television stations, and individuals had made false and defamatory statements about him. The statements concerned a criminal investigation which culminated in Appleby's convictions for assault and battery, rape, and kidnapping. See Commonwealth v. Appleby, 389 Mass. 359, 450 A.2d 1070, cert. denied, 464 U.S. 941, 104 S.Ct. 357, 78 L.Ed.2d 320 (1983); Commonwealth v. Appleby, 380 Mass. 296, 402 N.E.2d 1051 (1980). A judge of the Superior Court entered final summary judgment on behalf of four of the newspapers: the Daily Hampshire Gazette, the Holyoke Transcript-Telegram, the Medford Daily Mercury, and the Boston Globe (defendants). ² Because we agree with the judge that reasonable reliance on the accuracy of stories obtained from a reputable wire service does not give rise to a triable issue of negligence, we affirm the judgments of the Superior Court.

The uncontroverted facts, as established by the materials submitted by the parties for the purposes of the summary judgment motions, are as follows. On June 13, 1978, Massachusetts State police Corporal William A. Garvin executed an affidavit in support of an application for a warrant authorizing a search of Appleby's home and property in West Springfield. The affidavit included three single-spaced pages detailing Garvin's conversation with two New York City police officers. According to the affidavit, an individual identified as "informant # 1" reported that he had lived with Appleby for several months in Appleby's home. Informant # 1 admitted that he had assisted Appleby in kidnapping, beating and raping a man from New York City. He further stated that Appleby had murdered someone else, and that Appleby had buried the body in the cesspool in his backyard. Another individual identified in the affidavit as "informant # 2," who was the victim of the alleged kidnapping described by informant # 1, corroborated the story. Informant # 2 stated that Appleby had threatened to kill him and that Appleby had admitted killing "many others."

On the basis of the reports from these two informants, as well as certain other facts set forth in the affidavit, a warrant was issued by the District Court of Springfield on June 13, 1978. The search began on the same day. The police seized a variety of weapons and sadomasochistic devices from Appleby's home, and began to dig up Appleby's property with a backhoe in what proved to be a fruitless search for bodies.

On June 14, reports of the search for bodies on Appleby's premises were transmitted by both United Press International (UPI) and Associated Press (AP). On the same day, the Medford Daily Mercury republished the UPI story verbatim, while the Boston Globe, the Daily Hampshire Gazette, and the Holyoke Transcript-Telegram republished stories from AP verbatim. Between June 14, 1978, and May 20, 1981, the four newspapers republished approximately forty additional stories from the wire services. As established by uncontroverted affidavits submitted by all four defendants, both AP and UPI enjoy "excellent reputation[s] for accuracy throughout the newspaper industry."

In addition to the wire service stories, on June 14 and 15, 1978, the Boston Globe printed three articles about Appleby which were written by staff members. The Daily Hampshire Gazette printed a single staff article on June 16, 1978. Other media organizations also covered the search of Appleby's property in some detail.

Appleby brought ninety actions in 1981, and four additional actions in 1982. He alleged that he had been defamed by a number of false statements which had been broadcast or printed in the course of the publicity about the search of his house and backyard. ³ In response to interrogatories propounded by the defendants, Appleby listed the allegedly false statements. In essence, he claims to have suffered damage from the broadcast or publication of false statements about his homosexuality, about the torture and murder of young homosexual men, about admissions made to the police concerning bodies being buried on his property, about his interest in the Nazi party and Nazi paraphernalia, and about the condition of his house.

On October 3, 1983, thirty-three newspapers which had been sued by Appleby filed motions for summary judgment. ⁴ The motions were granted, on the ground that no jury could reasonably find that the newspapers acted negligently in merely reprinting stories obtained from reputable wire services. The judge also ruled that the stories were privileged as fair and accurate summaries of the contents of an affidavit in support of a search warrant. See Sibley v. Holyoke Transcript-Telegram Publishing Co., 391 Mass. 468, 471, 461 N.E.2d 823 (1984).

The judge only entered final summary judgment in four of these thirty-three cases, including the case against the Medford Daily Mercury. Because he considered that case "to be fairly representative" of the remaining twenty-nine cases which had been brought before him, "and in order to avoid unnecessary costs and delays on appeal," the judge directed the clerk-magistrate not to enter summary judgment in the remaining cases until an appellate court affirmed the grant of the Medford Daily Mercury's motion for summary judgment. Appleby appealed the four cases in which final summary judgment had been entered, and the cases were consolidated in the Appeals Court. We then transferred the cases to this court on our own motion.

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 347, 94 S.Ct. 2997, 3010, 41 L.Ed.2d

789 (1974), the United States Supreme Court held that, "so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual." Shortly thereafter, in Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161 (1975), we concluded that "private persons ... may recover compensation on proof of negligent publication of a defamatory falsehood" (emphasis in original). Id. at 858, 330 N.E.2d 161. See, e.g., Schrottman v. Barnicle, 386 Mass. 627, 630, 437 N.E.2d 205 (1982); Cefalu v. Globe Newspaper Co., 8 Mass.App. 71, 75-76, 391 N.E.2d 935 (1979), appeal dismissed and cert. denied, 444 U.S. 1060, 100 S.Ct. 994, 62 L.Ed.2d 738 (1980). ⁵ The judge below ruled that the verbatim republication of an article from a reputable wire service could not, as a matter of law, constitute negligence, unless the article appears, on its face, to be inherently improbable. He thus concluded that the defendants were entitled to summary judgment with respect to those statements taken verbatim from AP or UPI. We agree.

Generally speaking, the republisher of a defamatory statement "is subject to liability as if he had originally published it." Restatement (Second) of Torts § 578 (1977). Schiavone Constr. Co. v. Time, Inc., 735 F.2d 94, 96 (3d Cir.1984). Cianci v. New Times Publishing Co., 639 F.2d 54, 60-61 (2d Cir.1980). See Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 160, 61 N.E.2d 5 (1945); Painter, Republication Problems in the Law of Defamation, 47 Va.L.Rev. 1131, 1150 (1961). This rule does not, however, excuse the plaintiff in a case such as this one from making the constitutionally required showing of fault on the part of the publisher. If no jury could reasonably find that the defendants acted with the requisite fault in republishing the wire service reports about Appleby, summary judgment with respect to the statements taken from the wire services is appropriate.

Under the negligence standard adopted in Stone v. Essex County Newspapers, Inc., supra, the defendants are required to act "reasonably in checking on the truth or falsity ... of the communication before publishing it." Restatement (Second) of Torts § 580B, comment g (1977). See Schrottman v. Barnicle, supra, 386 Mass. at 641-642, 437 N.E.2d 205; Triangle Publications, Inc. v. Chumley, 253 Ga. 179, 181, 317 S.E.2d 534 (1984). ⁶ "Customs and practices within the profession are relevant in applying the negligence standard." Restatement (Second) of Torts, supra. However, "custom is not controlling." Id. Schrottman v. Barnicle, supra, 386 Mass. at 641, 437 N.E.2d 205 ("[n]egligence throughout a trade should not excuse its members from liability"). See Triangle Publications, Inc. v. Chumley, supra; Kohn v. West Hawaii Today, Inc., 65 Hawaii 584, 588-590, 656 P.2d 79 (1982).

"[B]ecause of the jury's 'unique competence in applying the reasonable man standard,' " summary judgment is rarely appropriate with respect to the merits of a negligence case. Foley v. Matulewicz, 17 Mass.App. 1004, 1005, 459 N.E.2d 1262 (1984), quoting 10A C.A. Wright, A.R. Miller & M.K. Kane, Federal Practice & Procedure § 2729, at 194 (1983). The defendants here are "required to establish that on the evidence brought forward, considered with an indulgence in the plaintiff's favor, a jury could not reasonably conclude" that the defendants had acted negligently. National Ass'n of Government Employees, Inc. v. Central Broadcasting...