Jones v. Taibbi

400 Mass. 786 (1987) 512 N.E.2d 260

PETER MARK JONES
vs.
MICHAEL TAIBBI & others.^[1]

Supreme Judicial Court of Massachusetts, Norfolk.

May 5, 1987. August 18, 1987.

Present: HENNESSEY, C.J., ABRAMS, NOLAN, & LYNCH, JJ.

Martin C. Gideonse for the plaintiff.

John Taylor Williams for Michael Taibbi & another.

Michael J. Liston for American Broadcasting Companies, Inc.

LYNCH, J.

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 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 (1976). Bufalino v. Associated Press, 692 F.2d 266, 269 (2d Cir.1982), cert. denied, 462 U.S. 1111 (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 (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 (1975). Lynch v. Lyons, 303 Mass. 116, 118-119 (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 (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 (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 as a matter of law.

The plaintiff also argues that the broadcasts in question were false and defamatory independently of Shamshak's accusations.^[6] The plaintiff's claims can be separated into two categories: (1) that Taibbi and Channel 5 made untrue assertions of fact during the broadcasts,^[7] and (2) used certain cinematic techniques or made editorial decisions which either implied the probable guilt of Jones, or indorsed, espoused, or otherwise concurred in Shamshak's accusations against Jones.^[8]

a. Untrue assertions of fact. As a basis for his claim, the plaintiff first relies on a statement that he had been charged with two counts of murder.^[9] We conclude below that this statement is privileged. See Williams v. WCAU-TV, 555 F. Supp. 198 (E.D. Pa. 1983). The plaintiff also bases his claim on the contention that the report falsely stated that Shamshak had passed four separate polygraph tests. We conclude, however, that the statement was essentially true. See infra at 800. Finally, the plaintiff argues that the description of him as Shamshak's "lifelong" or "boyhood" friend was false and defamatory.^[10] The description of someone as a friend (or even relative) of a criminal ordinarily is not in itself defamatory. See Bufalino v. Associated Press, supra (statement that one has a family relationship with mafia not ordinarily actionable). Even if we assume, however, that the statement was susceptible of a defamatory meaning, we conclude that the defendant has failed to establish the requisite degree of fault necessary to impose liability for that statement. Infra at 800.

The plaintiff also refers to statements made by Bergin during the course of a news conference. The statements by Bergin do not imply anything about the plaintiff or the veracity of Shamshak's allegations, and we conclude that they cannot be considered defamatory as a matter of law.

b. Indorsement of Shamshak's charges. With respect to the plaintiff's "indorsement" theory, we conclude that the broadcasts are not susceptible of the interpretation placed upon them by the plaintiff.

c. Truth as a defense. The defendants argue that the broadcasts were substantially true and accurate accounts of the plaintiff's arrest and detention within the context of an arrest and investigation by Massachusetts State police officials and the LAPD. However, the defendants cannot escape liability merely by attributing defamatory statements or actions to a third party. It is the truth of the underlying defamation that must be shown in order to establish the defense of truth. Lal v. CBS, Inc., supra. See Maloof v. Post Publishing Co., supra. Eldredge, supra at § 67. Since the defendants do not contend that the plaintiff committed the multiple murders as alleged by Shamshak, the reports cannot be considered substantially true. See Lal v. CBS, Inc., supra at 361. Rouch v. Enquirer & News, 137 Mich. App. 39, 43 n. 2 (1984), aff'd, 427 Mich. 157 (1986).

2. Privilege. There are, however, various recognized privileges permitting the publication of fair reports of certain proceedings even when the accounts contain defamatory statements. Medico v. Time, Inc., 643 F.2d 134, 137 (3d Cir.), cert. denied, 454 U.S. 836 (1981). There is a well established privilege to publish reports of judicial, legislative, or other official proceedings. See Cowley v. Pulsifer, 137 Mass. 392, 393-394 (1884); Barrows v. Bell, 7 Gray 301, 311-312 (1856); Coffin v. Coffin, 4 Mass. 1, 32-33 (1808). See generally S. Metcalf, Rights and Liabilities of Publishers, Broadcasters and Reporters § 1.78 (1986), and cases cited therein. The common law fair report privilege is embodied in the Restatement (Second) of Torts § 611 (1977).^[11] The defendants argue that, even if the broadcasts in question are not substantially true, they are protected under this privilege.

As that privilege is commonly applied, it clearly affords protection to the defendants against one of the plaintiff's claims. For example, "[t]he publication of the fact that one has been arrested, and upon what accusation, is not actionable, if true." Thompson v. Globe Newspaper Co., 279 Mass. 176, 188 (1932), quoting Commercial Publishing Co. v. Smith, 149 F. 704, 706 (6th Cir.1907). The reporting and broadcast of the plaintiff's arrest is therefore clearly privileged. The newscaster's statement that the plaintiff had been charged with murder is not so clearly protected. The United States District Court for the Eastern District of Pennsylvania has applied the privilege in a case similar to the facts of the instant case. Williams v. WCAU-TV, supra at 203-204. During a news report of a bank robbery, the plaintiff in Williams was filmed while under arrest, in handcuffs, being led by police officers to a police van. The audio portion of the broadcast stated that another suspect had earlier been taken into custody, and that both men "[would] be charged with the bank robbery." Id. at 203. The plaintiff was released shortly after his arrest and never was charged with the robbery. The court, however, concluded that the report was not rendered substantially inaccurate by the inclusion of the statement which, together with the accompanying film, implied that the plaintiff would be charged with the bank robbery, and held the broadcast to be privileged as a substantially accurate report of the plaintiff's arrest. Id. at 204. We conclude that similar reasoning applies here, and that the report of the plaintiff's arrest did not become substantially inaccurate merely because the report incorrectly stated that the plaintiff had been charged with murder. Over the course of several days of reporting the plaintiff's arrest, only once was it incorrectly reported that the plaintiff had been charged with a crime, and Taibbi's reports provided an accurate account of the plaintiff's status at all times. Although the plaintiff was not actually charged, the impact of that statement did not create a substantially greater defamatory sting than an accurate report that the plaintiff had only been booked on suspicion of murder.

We consider the remaining portions of the broadcast which form the basis of the plaintiff's defamation claim to determine whether they fall within the ambit of the official proceedings privilege.

In its discussion of this privilege, the Restatement explains that: "An arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege covered by this Section. On the other hand statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceeding or of the arrest itself and are not privileged under this Section." Restatement (Second) of Torts § 611 comment h (1977). Accordingly, "[t]here is also no privilege to report the unofficial talk of such officials as policemen, as distinct from their official utterances or acts, such as an arrest" (footnotes omitted). W. Prosser & W. Keeton, supra at 836. Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 89 (D.C. 1980) (reliance on unofficial police "hot line" not privileged).

We conclude that unofficial statements made by police sources are outside the scope of the fair report privilege. See id.; Bufalino v. Associated Press, 692 F.2d 266, 272 (2d Cir.1982) ("Only reports of official statements or records made or released by a public agency are protected by the § 611 privilege" [emphasis in original]). Cf. Patterson v. Tribune Co., 3 Fla. Supp.2d 107 (Fla. Cir. Ct. 1983), appeal dismissed, 446 So.2d 111 (Fla. Dist. Ct. App. 1984) (newspaper report on complaint filed with sheriff's office, based on information supplied by that office at an official briefing, was privileged); Sbarbati v. New York Post, 10 Media L. Rep. (BNA) 2190 (N.Y. Sup. Ct. 1984) (press conference by district attorney announcing a criminal investigation); Steer v. Lexleon, Inc., 58 Md. App. 199 (1984) (publication of erroneous police department press release of arrest). Cf. Molnar v. Star-Ledger, 193 N.J. Super. 12, 15-16, 21 (1984) (publication of erroneous information from deputy fire chief that plaintiff landlord had refused to take a lie detector test regarding fire at his property is protected by qualified privilege to report statements made by a public official with respect to matters within the scope of his official responsibilities); Ingenere v. ABC, 11 Media L. Rep. (BNA) 1227 (D. Mass. 1984) (television broadcast privileged when it relied upon investigative memoranda and letters from the General Services Administration which were not available to the public). Thus, the statements of Shamshak's mother and sister were not privileged and must be considered under the standards discussed below.

With respect to Taibbi's republication of Shamshak's allegations, it appears from an Associated Press report contained in the record, that at a press conference held by the LAPD after the arrest of Jones, Los Angeles Police Chief Gates outlined the substance of Shamshak's allegations against Jones. Therefore, the defendants may be entitled to rely on Gates's description of Shamshak's allegations as privileged. Should it be demonstrated that Shamshak's allegations were made public as part of an official statement by the LAPD, the defendants would be privileged to report that statement.

3. Standard of liability. In order to impose liability for the publication of unprivileged, false, and defamatory statements, the plaintiff must demonstrate some degree of fault on the part of the publisher. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). Public officials and public figures may recover for publication of a defamatory falsehood upon proof of actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964). With respect to private persons, however, liability may be imposed upon proof of negligent publication of a defamatory falsehood. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 858 (1975). In all cases, a "plaintiff's recovery is limited to actual damages which are compensatory for the wrong done by the defendant." Id. at 860.

The defendants argue that the plaintiff's status is that of a limited issue public figure, and, therefore, that he must meet the actual malice standard. The Court in Gertz identified a limited issue public figure as one who "voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues," and consequently has achieved "special prominence in the resolution of public questions." Gertz v. Robert Welch, Inc., supra at 351. In determining the plaintiff's status as a limited issue public figure, this court must look "to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation." Id. at 352. See Hutchinson v. Proxmire, 443 U.S. 111, 134-136 (1979); Wolston v. Reader's Digest Ass'n, 443 U.S. 157, 166-169 (1979).

Even if we assume that the serial murders which lead to the plaintiff's arrest constitute a "public controversy," see Schultz v. Reader's Digest Ass'n, 468 F. Supp. 551, 558 (E.D. Mich. 1979) (disappearance of James R. Hoffa recognized as public controversy), "[a] private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention." Wolston v. Reader's Digest Ass'n, supra at 167. S. Metcalf, Rights and Liabilities of Publishers, Broadcasters and Reporters, § 162 (1986).

The United States Supreme Court's analysis of a plaintiff's limited public figure status in Wolston v. Reader's Digest Ass'n, supra, is instructive. In Wolston, the Court was required to determine whether the plaintiff, the nephew of admitted Soviet spies, became a limited purpose public figure by virtue of his failure to appear during a 1957-1958 grand jury investigation of Soviet intelligence activities in the United States, and his subsequent citation for contempt. The Court found that the plaintiff had neither "voluntarily thrust" nor "injected" himself into any public controversy, but rather had been "dragged unwillingly" into the investigation, and that he played "only a minor role" and "limited his involvement to that necessary to defend himself against the contempt charge"; and concluded that he was not a "limited-purpose public figure" within the meaning of Gertz. Wolston v. Reader's Digest Ass'n, supra at 161, 166-167. Here, it is fair to conclude that the plaintiff was "dragged unwillingly" into the investigation of the Hillside stranglings, rather than having "voluntarily thrust" or "injected" himself into the proceedings. Wolston, supra at 166. Therefore, we perceive no conduct on the part of the plaintiff which would cause him to be considered a limited-purpose public figure.

The defendants argue that the plaintiff became an involuntary public figure. "Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare." Gertz v. Robert Welch, Inc., supra at 345. Wolston, supra at 166, and Hutchinson v. Proxmire, supra at 135, emphasize that a significant aspect in the determination of a plaintiff's public figure status is the plaintiff's voluntary participation in a particular controversy. The United States Court of Appeals for the District of Columbia Circuit recently has reiterated the Supreme Court's recognition in Gertz that involuntary public figures will be "few and far between." Dameron v. Washington Magazine, Inc., 779 F.2d 736, 743 (D.C. Cir.1985), cert. denied, 476 U.S. 1141 (1986). Although the Dameron court held the plaintiff to be an involuntary, limited purpose public figure, id. at 741, the nature of the plaintiff's public sector employment, which caused him to be a primary actor in a matter of public concern, was a determining factor. We conclude that, on the facts of this case, Gertz and its progeny compel a conclusion that the plaintiff is not a public figure, and thus retains his status as a private person.

Given our conclusion that the plaintiff is a private person for the purposes of this action, he need prove only the negligent publication of a defamatory falsehood to recover from the defendants for actual damages. Stone v. Essex County Newspapers, Inc., 367 Mass. at 858. "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.'" Appleby v. Daily Hampshire Gazette, 395 Mass. at 36, quoting Restatement (Second) of Torts § 580B comment g (1977).

Applying this standard to the conduct of Channel 5 and Taibbi, we conclude that a jury could find that Channel 5 and Taibbi acted negligently in publishing their reports of Shamshak's allegations. Cf. King v. Globe Newspaper Co., ante 705, 709 (1987) (where reporter "had obvious reasons to doubt the veracity and accuracy" not of source, but of source's undisclosed informant, evidence would warrant jury finding of actual malice). Sufficient facts existed to permit the jury to find that the defendants had or should have had reasonable doubt as to the truth of Shamshak's allegations. For example, Taibbi was aware, from information obtained from a former Boston police officer, that Shamshak had not proved to be a reliable informant in the past. More importantly, Taibbi himself recognized certain inconsistencies in Shamshak's story, reporting that "often, on crucial points, he's been way off the mark." Therefore, if it is determined that the republication of Shamshak's allegations was not privileged, it is for the jury to determine whether Taibbi's decision to broadcast the allegation that Shamshak had seen Jones murder at least two, and perhaps three, women in the back of a van, was reasonable under the circumstances. The same determination must also be applied to the comments of the members of Shamshak's family concerning the veracity of Shamshak's story.

However, concerning the statements that Shamshak had passed four separate polygraph tests and that Shamshak was a "boyhood pal" of the plaintiff, we conclude that summary judgment was correctly granted. Although the Massachusetts State police officer who interviewed Shamshak and procured the polygraph tests stated in his affidavit that Shamshak had passed two sets of polygraph tests, the record makes clear that at least one set was not inaccurate as a matter of law. It is also true that Shamshak and the plaintiff were acquainted for some indefinite time, and it is doubtful that liability would arise merely from the characterization of the relationship complained of by the plaintiff. In addition, there is nothing in the record to indicate that the sources of these statements were unreliable, and, as to these statements, we perceive no evidence of conduct on the part of the defendants which could be considered negligent.

II. Invasion of Privacy.

The plaintiff's remaining claim against Taibbi and Channel 5, and his sole claim against ABC, is for invasion of his "right against unreasonable, substantial or serious interference with his privacy." G.L.c. 214, § 1B.

The plaintiff asserts that the ABC reports of his arrest invaded his privacy in two respects. He claims that the film of his arrest (1) "gave unreasonable publicity to a private fact," and (2) "conveyed the false light impression that sufficient credible evidence inculpating Jones, amounting to probable cause, existed to warrant the extraordinary action of taking Jones into custody." We view these assertions to be without merit.

The plaintiff's claim based on the disclosure of a "private fact" must fail because ABC has disclosed no private fact. The theory that the plaintiff's arrest was a private affair is without merit. A person's arrest must be recorded by the police, and that record is public information. Moreover, the public has a right to be informed about matters in which it has a legitimate concern. See, e.g., Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979) (when "public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield to the public interest"). Where the information concerning a plaintiff is already public, a defendant is not liable merely for giving further publicity to that information. Restatement (Second) of Torts § 652D comment b (1977).

The plaintiff argues that ABC's broadcast of his arrest cast him in a "false light" and constituted an invasion of privacy under G.L.c. 214, § 1B. We need not address the issue whether G.L.c. 214, § 1B, encompasses a false light claim for invasion of privacy.^[12] We note only that (1) the impression created by the report was not false, as alleged by the plaintiff, and (2) nothing in ABC's broadcasts involved a distortion or high degree of offensiveness in the portrayal of the plaintiff's arrest sufficient to constitute false light invasion of privacy. See generally Restatement (Second) of Torts, supra at § 652E.

Although the plaintiff also raises an invasion of privacy claim against Taibbi and Channel 5, that portion of the plaintiff's argument does not rise to the level required to merit our consideration of the issue. Mass. R.A.P. 16 (a) (4), as amended, 367 Mass. 919 (1975).

III. Conclusion.

Accordingly, we conclude that the publication of the statements of Shamshak's family, to the effect that he (Shamshak) was telling the truth and therefore, inferentially, that Jones was the Hillside strangler, was not privileged. Therefore, it is for a jury to determine whether the defendants' decision to broadcast those statements was reasonable under the circumstances. With respect to the plaintiff's claim regarding the republication of Shamshak's allegations, as we have stated above, the republication of Shamshak's allegations would be privileged if made public as part of an official statement by the LAPD. The burden is on the defendants to prove, when the issue is properly raised, the existence of a privilege to publish a defamatory communication. Humphrey v. National Semiconductor Corp., 18 Mass. App. Ct. 132, 134 (1984). Restatement (Second) of Torts, supra at § 613(2). The defendants have made no showing that Shamshak's allegations were made public during an official proceeding as required by the privilege. The mere fact that the statements to the press after Jones's arrest concerning Shamshak's allegations were made by the Los Angeles police chief is insufficient to establish that those allegations were privileged. We conclude that, for the purposes of summary judgment, the defendants have failed to satisfy their burden of proof on this issue. Therefore, on remand, the trial court shall determine whether Shamshak's allegations were made public as part of an official statement by the LAPD. If the republication of Shamshak's allegations is not privileged, it is also for a jury to determine whether the defendants' decision to broadcast the allegations was reasonable. Summary judgment was properly granted with respect to the remainder of the plaintiff's defamation claims. Summary judgment was also properly granted with respect to the plaintiff's invasion of privacy claims.

The case is remanded for further proceedings in accordance with this opinion.

So ordered.

ABRAMS, J. (concurring).

I believe the court correctly has applied the principles of defamation law and the "fair report" privilege in reaching its conclusion that summary judgment was improperly granted as to two of the plaintiff's claims.

The court correctly applies the Restatement (Second) of Torts § 611 (1977), to conclude that the statements of Shamshak's family and the republication of Shamshak's allegations, on the basis of the summary judgment record, do not fall within the scope of the fair report privilege.^[1] The defendants, however, have not provided the court with a record sufficient to determine whether the republication of Shamshak's allegations falls within the fair report privilege. The record is unclear as to whether Shamshak's allegations were disclosed in official statements.^[2] While the scope of § 611 of the Restatement (Second) of Torts as to what statements are official statements is not clearly defined, see Cianci v. New Times Publishing Co., 639 F.2d 54, 70 (2d Cir.1980), the developing law appears to be that statements made at a press conference by law enforcement officials relating to an arrest and the investigations forming the basis of the arrest should be considered official statements and therefore should fall within the fair report privilege. Kilgore v. Younger, 30 Cal.3d 770, 776-777 (1982). See Porter v. Guam Publications, Inc., 643 F.2d 615, 617 (9th Cir.), cert. denied, 454 U.S. 940 (1981) (privilege applies to republication of information appearing in police bulletin); Mathis v. Philadelphia Newspapers, Inc., 455 F. Supp. 406, 416-417 (E.D. Pa. 1978) (privilege applies to republication of information supplied by police department and FBI in informal reports concerning ongoing investigation); O'Neal v. Tribune Co., 176 So.2d 535, 547 (Fla. 1965) (privilege applies to publication of matters which involve "open violations of law, public misconduct justifying police interference, and matters in connection with and in aid of prosecution of inquiries regarding the commission of a crime"); Stice v. Beacon Newspaper Corp., 185 Kan. 61, 66-67 (1959) (privilege applies to republication of "matters in connection with and in aid of the prosecution of inquiries regarding the commission of crime"). See also Kilgore v. Koen, 133 Or. 1, 12 (1930) (privilege applies to republication of statements made by police). Cf. Yerkie v. Post-Newsweek Stations, Michigan, Inc., 470 F. Supp. 91, 94 (D. Md. 1979) (the privilege "does not apply to statements made by the police ... as to the facts of the case or the evidence expected to be given which have not yet been made a part of the judicial proceeding or of the arrest process"); Restatement (Second) of Torts, supra at § 611 comments d and h. While this court has not determined what statements constitute official statements, in an analogous situation, the court said that a newspaper is not liable for republishing stories from reputable wire services. See Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 37-38 (1985). The same reasoning may apply to republishing public statements by the police. The court correctly leaves that issue open.

Last, assuming the statements do not fall under the privilege of § 611, the statements may be protected under Restatement (Second) of Torts, supra at § 612. That section provides in relevant part: "(1) one who provides a means of publication of defamatory matter published by another is privileged to do so if... the person providing the means of publication reasonably believes that the other is privileged to publish it." Although statements may be privileged under this section, there would be a factual issue to be resolved by the fact finder as to whether the republisher "reasonably" believed that the person providing the information initially was privileged to do so.

A court's obligation is to "``make an independent examination of the whole record' in order to make sure that ``the judgment does not constitute a forbidden intrusion on the field of free expression.'" Bose Corp v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984), quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964). The court, however, may not supply missing facts in an effort to fulfil its obligation. The task of supplying the needed facts is for the parties.^[3]

NOTES

[1] Boston Broadcasters, Inc. (WCVB-TV Channel 5) and American Broadcasting Companies, Inc.

[2] Under California law, when a person is taken into police custody without a warrant and later released with no formal charges listed against him, "[t]hereafter, such arrest shall not be deemed an arrest, but a detention only." Cal. Penal Code § 849(c) (Deering 1985). However, in his complaint, answers to interrogatories, and in his brief to this court, the plaintiff categorizes his detention as an arrest.

[3] The original complaint, which was brought against several additional defendants, including another journalist and a State police officer, sought damages for alleged violations of Jones's right to privacy and his civil rights, for defamation and for false imprisonment. The case was removed to the United States District Court, which dismissed the Federal civil rights claim. Jones v. Taibbi, 508 F. Supp. 1069 (D. Mass. 1981). The plaintiff thereupon dismissed or dropped the claims against the other defendants. An amended complaint was subsequently filed in the Superior Court against Taibbi, Channel 5, and the American Broadcasting Companies, Inc.

[4] The plaintiff does not raise any issue as to these statements on appeal, and, therefore, we need not consider them.

[5] The plaintiff does not contend that the statements by Gates are defamatory, and therefore we do not consider them. The plaintiff does argue, however, that the questions by Taibbi during the course of the interview indorse Shamshak's allegations.

[6] We address the plaintiff's additional argument, that the broadcasts of the "actual detention" were defamatory, in our discussion of the fair reporting privilege asserted by the defendants.

[7] In his complaint, Jones identifies four allegedly untrue statements of fact: (1) that "police charged Jones with two counts of first degree murder"; (2) that Shamshak had submitted to four polygraph tests; (3) that Jones was the "lifelong friend" of George Shamshak; and (4) that Jones was "arrested" rather than involuntarily detained. We need address only the first three assertions. The contention that Jones was not "arrested" is contradicted by Jones himself. He characterizes the event as an arrest in his answers to interrogatories and brief to this court. Moreover, this claim is not specified in his complaint.

[8] Jones's chronicle of editorial techniques and cinematic manipulation includes: (1) the "appeal to the authority of an ``insider'"; (2) the implied "motive for urgency"; (3) the contextual diminution of exculpatory information; (4) the use of "close juxtaposition"; (5) the use of "conscious artifice"; (6) the use of "cinema verite" techniques; (7) the use of "ellipsis"; (8) the use of "ironic contrast"; and (9) the excising of "highly relevant material."

[9] On March 31, 1978, at 6 P.M., the Channel 5 newscaster reported that "[t]his morning, Los Angeles police charged Jones with two counts of first degree murder."

[10] In his affidavit, the plaintiff asserts that he was unaware of Shamshak's existence until the fall of 1977.

[11] Section 611 provides: "The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported."

[12] False light invasion of privacy theory has yet to be adopted in Massachusetts. Fox Tree v. Harte-Hanks Communications, Inc., 398 Mass. 845, 848-849 (1986).

[1] In his brief, the plaintiff asserts that "[t]he exclusive Shamshak family interview, filmed before [the plaintiff's] detention, containing the answers of family members to Taibbi's leading questions, and Taibbi's comments, is an obvious [i]ndorsement of Shamshak's veracity, and therefore of his defamatory accusations." The plaintiff's indorsement theory is not valid in this case, and the court so states. See ante at 794.

The court also states, ante at 790 n. 5, that the plaintiff argues that Taibbi's questions during the course of the interview with Gates constituted an indorsement of Shamshak's allegations. Again, the indorsement theory is not valid in this case and therefore liability may not be imposed on that basis.

[2] An Associated Press report contained in the record indicates that Police Chief Gates held a press conference and disclosed the substance of Shamshak's allegations. The record, however, does not disclose the source of the defendants' information. Therefore, the issue whether the allegations were part of the official statements of the police department must be left open.

[3] There may be no factual dispute as to the source of the defendants' information. If the facts are not in dispute and if the defendants file a new motion for summary judgment, the judge again should consider whether those statements fall within the fair report privilege as a matter of law. Although the court has not yet followed the Supreme Court's decisions in Celotex Corp. v. Catrett, 477 U.S. 317 (1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), I believe that, in ruling on the defendants' motion for summary judgment, the judge should follow those cases and place on the plaintiff a somewhat greater burden because the plaintiff has the burden of proof on the issue of fault and opposes the motion. See Celotex, supra; King v. Globe Newspaper Co., ante at 719 (1987).