Howell v. Enterprise Publishing Co., LLC

• Decision Date: 07 January 2010
• Docket Number: SJC-10359
• Citation: 455 Mass. 641,920 N.E.2d 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James F. HOWELL v. The ENTERPRISE PUBLISHING COMPANY, LLC, & others.<SMALL><SUP>1</SUP></SMALL>

920 N.E.2d 1

455 Mass. 641

James F. HOWELL v. The ENTERPRISE PUBLISHING COMPANY, LLC, & others.¹

SJC-10359

Supreme Judicial Court of Massachusetts, Plymouth.

Argued September 9, 2009.

Decided January 7, 2010.

Jonathan M. Albano, Boston (Laura K. Langley & Peter J. Caruso with him) for the defendants.

John G.H. Coster, Boston, for the plaintiff.

Paul Bender, Michael R. Klipper, & Christopher A. Mohr, Washinton, DC, & William S. Strong & Amy C.M. Burke, Boston, for The Associated Press & another, amici curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

James Howell served as the superintendent of the sewer department for the town of Abington (town). On May 9, 2005, he was placed on administrative leave, and he was eventually fired from his position. The catalyst for Howell's discipline was the discovery of inappropriate images on computers owned by the sewer department. Almost immediately after he was placed on administrative leave, reporters working for The Enterprise Publishing Company, LLC, began covering Howell's case and continued to do so for several months. Howell filed suit against The Enterprise Publishing Company, LLC, and two of its reporters (collectively, the Enterprise), alleging that coverage of his termination defamed him because it reported that images found on his work computers were "porn" or "pornography"; it linked him to an official in another town accused of possessing child pornography; it wrongly reported that charges of conflict of interest had been upheld against him; and it implicitly accused him of the fraudulent collection of unemployment benefits. Howell's complaint also alleged that the Enterprise's conduct constituted an intentional infliction of emotional distress, and that the Enterprise violated his privacy rights set forth in G.L. c. 214, § 1B.

The Enterprise moved for summary judgment. With respect to the defamation claim, the Enterprise contended that Howell could not satisfy his burden to show that the articles published by the Enterprise contained materially false accusations of fact; and, even if some statements in the articles were false, the reports overall were fair and accurate summaries of official action protected by the fair report privilege. A Superior Court judge denied the motion for summary judgment on March 9, 2007, concluding that whether the articles were both fair and accurate were issues for the trier of fact to decide, as was the question of the reporters' intent on the claim of intentional infliction of emotional distress. As to the privacy claim, the judge concluded that a reasonable jury could find that reporting on Howell's unemployment or insurance payment was not a matter of legitimate public interest. The Enterprise appealed. The Appeals Court affirmed the denial of summary judgment on the claims of defamation and the infliction of emotional distress, and reversed the denial on the invasion of privacy claim. See Howell v. Enterprise Publ. Co., 72 Mass.App.Ct. 739, 748-754, 893 N.E.2d 1270 (2008). We granted the Enterprise's application for further appellate review on the defamation and emotional distress claims. We reverse the order of the Superior Court judge and direct that judgment be entered for the Enterprise.²

1. Background.³ The misuse of municipal computers was a topic of intense public interest in the town in 2005, after allegations emerged that an official in the neighboring town of East Bridgewater stored child pornography on his computer. Consequently, the Enterprise chose to follow Howell's case with special interest. Between May and November, 2005, the Enterprise published eleven articles referencing Howell.

a. Initial investigation and administrative leave action. On Friday, May 6, 2005, a member of the board of sewer commissioners discovered "inappropriate images" stored on the desktop computer in Howell's office. The commissioner notified Mark Jamieson, the chairman of the sewer commission, who in turn traveled to Howell's office to view the images. Finding them generally inappropriate and, in part, "pornographic," Jamieson met with the town manager, Philip Warren, on May 9, 2005. Jamieson told Warren that Howell's computer contained images that were inappropriate for the workplace and possibly criminal.

He also told Warren that the computer contained files relating to Howell's personal business. Based on Jamieson's report, Warren contacted the town's chief of police, who dispatched officers to seize the desktop computer. Together, Jamieson, Warren, and two police officers went to Howell's office. They telephoned Howell and, on his arrival, handed him a letter advising him that he was being placed on administrative leave pending a meeting of the sewer commission to determine whether disciplinary action should be taken for "improper use of Town-owned equipment." The letter informed Howell that the meeting would occur on May 11, 2005. The decision to place Howell on leave was made by Jamieson in his capacity as chairman of the sewer commission, and the letter advising Howell of that fact was signed by Jamieson in that same capacity. The police took possession of both Howell's office desktop computer and the town-owned laptop computer he used at home.

On May 11, 2005, before the sewer commission held its meeting, the Enterprise published its first article (May 11 article). Under the headline, "Officials find porn on town computer," the article reported that "[v]eteran Sewer Superintendent James F. Howell is on paid administrative leave amid allegations that pornography and records from a business he owns were found on Sewer Department computers." This information came to the Enterprise from an anonymous source, although the Enterprise also obtained on-the-record statements from Warren confirming that Howell had been placed on administrative leave. The article went on to credit the anonymous source for the following details:

"A town official close to the investigation who spoke on condition of anonymity said the allegations against Howell include improper use of town equipment for personal business. The source declined to specify the type of equipment that was used but alluded to a possible criminal investigation by Abington police."

The article also quoted the chief of police, who stated that "[t]here is absolutely nothing criminal at this point. It's the town manager's issue to deal with right now."

Finally, in what would become a common practice in future articles about Howell, the Enterprise discussed the unrelated but similar series of events in East Bridgewater where, earlier that year, investigators discovered child pornography on the East Bridgewater-owned computers of Frank Savino, East Bridgewater's treasurer-collector. The May 11 article dedicated its final four paragraphs to the Savino affair, describing it as "another recent incident," but making no direct comparisons between Howell and Savino.

The May 11 meeting of the sewer commission was held in executive session and concluded with no change in Howell's administrative leave status. Sometime after the meeting, the police reviewed the contents of the two computers and concluded that they contained nothing illegal. Additionally, Jamieson directed Warren to engage the services of MX Consulting Services, Inc., a computer forensics company, to analyze the contents of the two seized computers.

b. Sewer commission hearing. On July 12, 2005, Jamieson sent Howell a letter notifying him that the sewer commission would hold a formal hearing on July 19, 2005, to consider disciplinary charges. The letter listed four charges: misuse of town property for maintaining personal business files on a town-owned laptop computer; misuse of town property for possessing "photographs and cartoon-style pictures of a pornographic nature, as well as other inappropriate and obviously non-work related material" on the town laptop and desktop computers; distributing objectionable material to subordinates; and violating conflict of interest laws, including G.L. c. 268A, § 23 (b) (2), for ordering personal items at a discount through the sewer department vendor. The words, "CONFIDENTIAL—NOT A PUBLIC DOCUMENT," were printed in bold, underlined type across the top of the letter.

On July 19, 2005, the sewer commission held the disciplinary hearing in executive session.⁴ In addition to a formal reading of the charges set out in the July 12 letter, the sewer commission heard testimony from Howard Cathcart, an employee of MX Consulting Services, Inc.; Howell's executive assistant, Kristen O'Sullivan; Warren; Jamieson; and Howell.

Cathcart testified that Howell's computer contained pictures "considered explicit in nature" with "partial or full nudity," of which "some" were "pornographic." He also revealed that two adult Internet Web sites had been visited during two workdays. Cathcart described finding files relating to Howell's personal business stored in a popular accounting software program on both computers and noted that the software was not used for town purposes. Cathcart estimated that ninety-nine per cent of the files on both computers were not related to town business. O'Sullivan testified that Howell had sent her several of the images found by Cathcart and that they made her feel "[u]ncomfortable."⁵

On July 20, 2005, the Enterprise published an article headlined, "Abington board mum after porn hearing" (July 20 article). The article's thrust was that details of the closed door proceedings were not forthcoming. Much of the article was devoted to describing the uniform reticence of the hearing's participants. Thus, aside from characterizing it as a "porn hearing," the article contained little substantive reporting: the Enterprise again referred to the "allegations" against Howell and noted the police had found "nothing illegal" on the computers. The only information reported from behind the hearing room's closed...