In a lawsuit in which a newspaper published eleven articles on the investigation of and subsequent termination of an individual who served as the superintendent of the sewer department of a town, the individual alleging defamation, invasion of privacy, and intentional infliction of emotional distress claims against the newspaper, the appellate court affirmed in part and reversed in part the lower court’s rulings.

The newspaper, Enterprise, basing its articles on its sources of information, reported that pornographic images were found on the plaintiff, James Howell’s, computers. “Arguing that there was no material falsity in referring to the materials as pornographic, Enterprise notes that the commission sustained the charges accusing Howell of having images of a pornographic nature on his computers and that such ruling was upheld by the board. However, it is not of itself a defense that Enterprise’s information sources may have described the images as pornographic. “Absent a privilege, ‘the republisher of a defamatory statement is ‘subject to liability as if he had originally published it.’ Liability for a defamatory statement may not be avoided ‘merely [by] adding a truthful preface that someone else has so stated’ “….Here, there is a genuine issue of material fact as to whether the images found on Howell’s computers were pornographic as the word is commonly understood. A jury should be allowed to consider whether Enterprise’s articles on that point were false….”

Enterprise also referred to both the plaintiff and another man in articles and in an editorial as a “uniform subject,” according to the court, potentially causing confusion to the reader. “In seven of the articles written about Howell, Enterprise made references to Savino, a former town official in East Bridgewater who was found to possess child pornography and other hard-core pornographic materials on his work computers. Included among those articles is an August 27, 2005, editorial by Steve Damish, which repeatedly refers to the two men as a uniform subject and speaks of “their Internet garbage,” “their quirky cravings,” and “their depravity.” Howell claims that by so associating the two men and characterizing the circumstances that led to their respective dismissals as “similar,” Enterprise insinuated that he had child pornography (and other hard-core pornographic materials) on his computers. Enterprise counters that the articles are not reasonably capable of such a meaning. However, as the motion judge properly determined, the repeated associating, equating, and intermixing of Howell’s conduct with that of Savino could cause a reader to be unable to determine which images Howell possessed, and believe that he had child pornography and other hard-core pornographic materials on his computers. Particularly capable of generating such confusion is the Damish editorial, which included the following: “A new day has dawned, with dogs like Howell and Savino dragging their Internet garbage into public buildings, making a mess of once-revered places and a mockery of once-respected institutions…. Now [selectmen] have to stare at a topless Miss Piggy, or women and men having sex, or a naked toddler grabbing her genitals, or a man lifting a barbell with his private parts, or a person with a cigarette in his behind. Howell and Savino had hundreds of these images on their computers…. These two men could have … quietly carried their quirky cravings away with them. But they wanted their day in town hall. That meant officials and anybody else unlucky enough to be there had to witness their depravity firsthand…. They sat and had to stare at the oddball interests of two former town workers who lack self control. Photo after photo. Hour after hour they had to sit, along with the accused, and digest this stew of foulness.” Damish’s caveat that Savino “had the worst stuff–he had the images of people engaged in sexual acts” was inadequate to dispel the false impression that the images found on Howell’s computers, which then are described as “visceral” and “disgusting,” included child pornography and other hard-core pornographic materials. A reader reasonably could conclude from the editorial, coupled with the other articles, that although only Savino had images of people engaged in sexual acts, both men possessed child pornography and other pornographic materials. See Reilly, 59 Mass.App.Ct. at 778 (“Once the court has determined that a statement is capable of a defamatory meaning, it is for a jury to decide whether the statement was so understood by its recipient”).”

The case is Howell v. Enterprise Publishing,