Protective order trumps public records access rights

In Commonwealth v. Fremont Investment & Loan, the Supreme Judicial Court of Massachusetts upheld a trial court's determination that the Massachusetts public records law, G. L. c. 66, sec. 10, does not render ineffective a trial court's protective order. In so doing, the SJC concluded that "the public records law does not abrogate judicial protective orders."


At issue were 5.5 million documents that Fremont had produced in an enforcement action brought against it by the Commonwealth, which alleged unfair and deceptive practices in Fremont's  mortgage lending business. Fremont had designated those documents as confidential  pursuant to a protective order entered by the trial judge in that case, which was settled with the entry of a consent decree in 2009.

Samuel J. Lieberman sought access to those documents under the state public records law, for use in connection with a potential class action case against Fremont. The Attorney General refused to produce documents designated by Fremont as confidential.


Lieberman argued that because the documents did not fall within one of the exemptions stated in the records law, they must be produced notwithstanding the trial court's protective order. 


In rejecting his argument, the SJC acknowledged that while the subject documents might not be exempt from access under the records law, Lieberman's "conclusion that the records must therefore be disclosed is based on the mistaken premise that all documents in the hands of public officials must, absent an applicable exception, be made public notwithstanding a court order prohibiting their circulation. We do not agree that the public records law was intended to extend this far."


The SJC noted that the records action judge had not addressed all questions at issue in the case , such as "whether the order should be modified for other reasons, or whether certain documents designated confidential by Fremont are not validly protected by the order." 

No chance for LaChance

In a to-the-point rescript opinion in Edward D. LaChance, Jr. v. Boston Herald et al.,the Appeals Court of Massachusetts this week affirmed a summary judgment dismissal of defamation and other claims brought by LaChance, an incarcerated prisoner, against the Boston Herald and one of its reporters.

In 2004, while serving a sentence for aggravated rape, LaChance placed a personal ad on a Web site known as “Inmate Connections” (in violation of prison rules barring maximum security inmates from Internet access). 

In 2005, the Herald published three articles on the topic of online “dating" by incarcerated felons. The articles variously stated—incorrectly—that LaChance had been convicted of manslaughter, that he claimed in his ad to be in prison for manslaughter, and that he had committed a brutal sexual attack on an elderly woman.

The Herald and its reporter concede that those assertions were factually inaccurate, in that LaChance was not in prison for manslaughter, did not make such a claim in his ad, and did not commit a crime against an elderly victim.

The trial court ruled that the alleged defamatory statements were either privileged or substantially true, and granted the defendants' motion for summary judgment.

In affirming the dismissal, the Appeals Court concluded that the newspaper articles at issue addressed matters of public concern—the dangers of interacting with violent felons online—and that as a result of his own actions—whereby LaChance thrust himself into a particular public controversy—LaChance was a limited purpose public figure. In arriving at that conclusion, the court noted that LaChance’s ad was misleading and controversial, finding particularly deceptive his assertion that, “I’m not a bad man and I treat everyone the way I wish to be treated.”

The court then turned to whether the subject statements were false and made with actual malice.

Although the articles contained inaccuracies (even a literal falsehood), the court concluded that such statements did not rise to the level of actionable falsity or defamation. The gist of the articles was accurate: inmate ads should not be trusted in general, and LaChance’s ad in particular was dangerously deceptive in that he withheld details of his violent criminal history and portrayed himself in a light that might seem more innocuous to potential respondents on the match-making site.

As LaChance offered no proof of actual malice—that is, that the statements were published with knowledge of falsity or reckless disregard for whether they were false—LaChance failed to carry his burden of proving actual malice.

Finally, the court rejected LaChance’s contention that the fair reporting privilege did not apply to his case. The published article contained a fair and accurate report of a court docket entry as it existed at the time of publication. Even though the entry was in error, it was not corrected until months after the publication of the articles, and the paper had no way of knowing about the error at the time of publication. As such, the reference to a brutal sexual attack on an elderly woman was, although inaccurate, privileged and insulated from a claim of defamation.

And to answer your question ("Who would represent this guy in a defamation case?") ... yes, LaChance represented himself. The media defendants were represented by Liz Ritvo.

Do the right thing

Yesterday the Massachusetts Supreme Judicial Court heard argument in the case of Fustolo v. Hollander, SJC-10485. The underlying action involves a defamation claim brought by a real estate developer, Steven C. Fustolo, against Fredda Hollander, a reporter for a community newspaper, the Regional Review, and a neighborhood activist. Fustolo alleged that Hollander defamed him in five articles she wrote for the paper.

Hollander appealed from a denial by Superior Court Judge Geraldine Hines of her special motion to dismiss under the Massachusetts anti-SLAPP statute, G. L. c. 231, sec. 59H.

The Massachusetts ACLU, joined by the Citizen Media Law Project and the Lawyers' Committee for Civil Rights, submitted an amicus brief in support of Hollander's position.

Copies of the briefs submitted by the parties, and the amicus brief, can be found here.

Both Hollander's reply brief and the amicus brief, cite Joyce v. Slager, a case in which I successfully moved under the Anti-SLAPP statute for the dismissal of a defamation action against my clients, a newspaper and its publisher.

Click here for a link to the Webcast of the SJC argument.

Bottom line: Hollander should prevail in her appeal.

Nothing in the statue precludes its application to individuals or entities engaged in commerce. As Harvey S. Shapiro, counsel for Hollander, noted in his argument, the commercial context of Hollander's petitioning activity pales in comparison to the commercial nature of defendants in cases where the statue has been applied.

Second, nothing in the statute precludes the application of the statue to journalists or the media. If such a limitation is to be imposed--which I would argue it should not--it should be done by the legislature, not the courts.

Some of the questions from the bench seemed to suggest that if the Court acknowledged the application of the anti-SLAPP statue to journalists, then defamation law would be tossed aside.

Not so.

In arguing for a dismissal under the statute, a moving party first must establish that its conduct at issue in the defamation claim was petitioning activity. The opposing party then has the opportunity to show that the petitioning activity was devoid of any reasonable factual support or any arguable basis in law, and that the moving party’s acts caused actual injury to the opposing party. If the opposing party sustains that burden, then the special motion to dismiss will be denied, and the defamation case may continue.

Staples Nails Verdict

The National Law Journal reports that last week a jury sitting in the Noonan v. Staples case in federal court in Boston found that when Staples sent a mass email about a former employee's violation of company travel and expense policies it did not do so with actual malice.

Earlier this year the First Circuit Court of Appeals rejected a dismissal of the case against Staples, holding that the plaintiff could seek to establish a libel claim based on the publication of truthful facts if they were published with "actual malevolent intent or ill will." In so doing, the Court relied on an old Massachusetts law, G. L. c. 231, sec. 92, which provides that truth is a justification for a publication alleged to be libellous, unless it was published with actual malice.

The jury in the Staples case evidently found that there was no such "actual malice" on the part of Staples.

It is important to note that the use of the term "actual malice" in the 1902 Massachusetts statute long-predates, and should not be confused with, the the term "actual malice" used by the Supreme Court of the United States in the seminal 1963 case of New York Times v. Sullivan. In that case, the Court laid out constitutional standards to protect the press from defamation claims brought by public officials. holding that a public official could not recover for libel unless the plaintiff could show that the defamatory statement was made with "actual malice," which the Court defined as making the defamatory statement with knowledge of its falsity or with reckless disregard of whether it was true or false.


The Noonan case, of course, involved a private plaintiff and defendant.