Mass. Libel Case Survives Appeal

A libel case brought by a former Abington town official against the Brockton Enterprise will be allowed to proceed to trial, based on a ruling issued today by the Massachusetts Appeals Court. In Howell v. The Enterprise Publishing Company, the court refused to dismiss claims against the newspaper, despite the newspaper's arguments that its stories were protected by the "fair report" privilege.

The case involves a 2005 series of stories by reporters Elaine Allegrini and Allan Stein covering James F. Howell's termination from his position as superintendent of Abington's sewer department. His termination came after the town sewer commission determined that he had used town computers for personal business and for storing inappropriate images. Howell's libel suit alleged that the Enterprise defamed him by accusing him of storing pornography on town computers and by making other allegations that he says are false.

The Enterprise sought to have the case dismissed through summary judgment, which requires a finding that there are "no issues of material fact" that need to be decided through a trial. As to each of Howell's allegations, the court found that there were disputed issues of fact, making summary judgment inappropriate. Among the key contentions addressed by the court's decision:

• The Enterprise described images on Howell's computer as pornographic, relying in part on the sewer commission's characterization of them as such. Howell contends that the images were comical, e-mailed to him by friends, and not pornographic. The court ruled that a jury should decide whether they were pornographic.
• Some Enterprise reports about Howell alluded to the unrelated case of an East Bridgewater official who was found to have child pornography on his computer. These allusions, Howell argues, raised the insinuation that he had child pornography. The court agreed, finding that a "reader reasonably could conclude" there was an association.
• One article inaccurately reported that a conflict-of-interest charge against Howell had been sustained. The Enterprise argued that the "gist" of its article was correct. But the court found that the "inaccuracy was not merely a question of degree."
  

A significant aspect of this opinion is the court's discussion of the fair report privilege -- the idea that a newspaper has a right to rely on and report what is contained in official government reports. As noted above, the Enterprise based its reporting in part on findings by the town sewer commission that characterized the images as pornographic. To that, the appeals court said:

"Even assuming, but not deciding, that the fair report privilege is otherwise applicable to the matters reported on in the articles about Howell, its protection extends only to reports that are both fair and accurate. ... In determining whether a report is fair and accurate, the test is whether a reporter's 'rough-and-ready summary' of the matter reported on is 'substantially correct.' ... Where there is a basis for divergent views, the question whether a report is fair and accurate is for the jury. ... As discussed, supra, here there are material factual issues in dispute regarding whether the articles are fair and accurate. Thus, the judge correctly concluded that summary judgment is not appropriate as to Howell's defamation claims."

Howell had also sued the Enterprise for invasion of privacy. The Appeals Court agreed with the Enterprise that the privacy claim should be dismissed, concluding that Howell's termination was a matter of legitimate public interest.