Bowman v. Heller

651 N.E.2d 369, 420 Mass. 517, 11 I.E.R. Cas. (BNA) 515, 1995 Mass. LEXIS 282

• Court: Massachusetts Supreme Judicial Court
• Decided: June 13, 1995
• Status: Published

Opinions

Abrams, J.

The defendant, appealing from a judgment that was based in part on his intentional or reckless infliction of emotional distress on the plaintiff, seeks refuge in the fact that at the time of his wrongdoing the plaintiff was a candidate for election to the office of president of their union local. From this, the defendant argues that the First Amendment to the United States Constitution protects him from liability in the absence of proof of actual malice. The defendant’s claim fails from its inception because the activity on which liability was based was, on the defendant’s own admission, not intended to influence the union election. The Supreme Court has distinguished plaintiffs’ claims for defamation or intentional infliction of emotional distress on the basis of the plaintiffs’ prominence with regard to public controversies relevant to their causes of action. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). Because there was no evidence of a public controversy, the plaintiff was neither a public figure nor a limited purpose public figure.

After the election, the plaintiff sought recovery on four related claims: one count of intentional infliction of emotional distress; one count of reckless infliction of emotional distress;² and two claims under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, § 111 (1992 ed.).³ After a jury-waived trial, judgment was entered in favor of the plaintiff, and damages were awarded in the amount of $35,000. The trial judge ruled that “any one of the plaintiff’s claims . . . [was] a sufficient basis” for the $35,000 judgment, but refused to award “duplicative” damages. The defendant appeals. We transferred the case to this court on our own motion. We conclude that the judgment based on the tort claim of intentional or reckless infliction of emotional distress should be affirmed.⁴

I. Facts. At the time of the incident which gave rise to this litigation, the plaintiff, Sylvia Smith Bowman, was a sixty year old supervisor in the Worcester office of the Department of Public Welfare (department). She began working as a social worker for the department in 1967, and was a longstanding and active member of Local 509 of the Service Employees International Union (union). In the 1987 union election, the plaintiff challenged the incumbent president of the local chapter of the union.

In October, 1987, while the plaintiff was on an approved leave to campaign in the union election, the defendant, David Heller, an employee in the plaintiff’s office who supported the incumbent president, created two distinct photocopied representations of the plaintiff by superimposing a photograph of her face and name on two different photographs of women striking lewd or masturbatory poses. The photograph of the plaintiff’s face was taken from a campaign card she had distributed to union members. The photographs on which the defendant superimposed the plaintiff’s face were taken by the defendant from pornographic magazines. In one of the photographs, the model is nude from the waist down, except for garters, and is posed toward the camera with her legs wide apart as she holds a banana next to her exposed breast. In the other photograph, the model is entirely naked, and appears to be engaged in masturbation. The representations were crafted by the defendant during regular office hours and reproduced on photocopiers owned by the department. The defendant then distributed his handiwork to five coworkers in the Worcester office. Subsequently, the representations were reproduced by employees other than the defendant and distributed to a wider office audience.

The trial judge credited the defendant’s claim that, in distributing the caricatures, “it was not his intent to sway votes or to induce people not to vote for [the plaintiff],” and that he sought to make the plaintiff “look ridiculous.” The trial judge also credited Heller’s statement that he wanted “[t]o make sure they wouldn’t be seen by [the plaintiff],” because they were “a private satire among a select group of friends.”

When the plaintiff returned to the office from her campaign leave in November, 1987, she learned of the sexually explicit nature of the photocopies and their distribution throughout the office. The defendant made various allegations that the plaintiff harbored a desire for revenge, and that she made various crude references to men in general and the defendant in particular.

The trial judge found that once the plaintiff saw the pictures she was “shocked” and experienced severe stress, crediting her testimony that she felt “degraded, publicly humiliated, and vulnerable upon seeing the photocopies; [and that] she also felt that the matter was too serious for her to remain silent.” The judge also credited the testimony of an expert who explained the sequelae associated with posttraumatic stress disorder (PTSD) and opined that the plaintiff suffered from PTSD and that the trauma of being represented in the workplace in the compromising caricatures created by a coworker was the cause. According to the record, the plaintiff had to undergo, and still is undergoing, psychological therapy for PTSD. The trauma of the event had a negative impact on her ability to function as productively as she had for many years at her job.⁵ The judge found that this trauma was unrelated to the plaintiff’s loss in the union election.

As a result of her distress about the photocopies, the plaintiff filed formal complaints with department administrators and the union. The department officials determined that the defendant’s conduct was sexually harassing, reprimanded the defendant, and explained to the plaintiff that “the production and limited distribution of sexually explicit material by [the defendant] which contained a reproduction of your facial features . . . subjected [you] to highly improper and unacceptable behavior which constituted sexual harassment.” The union trial board concluded that the defendant’s conduct was unbecoming to a union member. The union’s determination resulted in a public apology by the defendant to the plaintiff.

Subsequently, the plaintiff filed her tort claims, and amended her complaint to add her statutory claims. The defendant filed counterclaims alleging the plaintiff had defamed him. The trial judge allowed the plaintiff’s motion for summary judgment on the defendant’s counterclaims. The defendant did not appeal the disposition of his counterclaims. Those claims are not before us.⁶

II. The plaintiff is neither a public figure nor a limited purpose public figure. The trial judge ruled that the plaintiff was a public figure because she voluntarily became involved in the local union election. See Hustler Magazine, Inc. v. Falwell, 486 U.S. 46 (1988). Whether the plaintiff is a public figure is a question of law. See Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 165-169 (1979); Materia v. Huff, 394 Mass. 328, 331 (1985). The Supreme Court has said that an individual plaintiff’s status is context-dependent and thus determined “by looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the [tort liability].” Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974). “Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of [her] life.” Id. The fame required for an individual to be a public figure for all purposes, as opposed to a limited purpose public figure, is very great; the individual must be a “household name” on a national scale. Tavoulareas v. Piro, 817 F.2d 762, 772 (D.C. Cir.), cert. denied, 484 U.S. 870 (1987) (although plaintiff was “highly prominent individual, especially in business circles,” he was not a general purpose public figure for “all aspects" of his life where his “celebrity in society at large [did] not approach that of a well-known athlete or entertainer — apparently the archetypes of the general purpose public figure”). The plaintiff clearly is not a general purpose public figure.

The Federal Courts of Appeal have developed various tests to aid judges in applying the two-prong limited purpose public figure standard set forth in Gertz.7 See, e.g., Clyburn v. News World Communications, Inc., 903 F.2d 29, 31 (D.C.Cir. 1990) (applying test for limited purpose public figure first set forth in Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-1298 [D.C. Cir.], cert. denied, 449 U.S. 898 [1980]: “[1] that there have been a public controversy; [2] that the plaintiff have played a sufficiently central role in the controversy; and [3] that the alleged defamatory statement have been germane to the plaintiff’s participation in the controversy”);⁸ Silvester v. American Broadcasting Cos., 839 F.2d 1491, 1493 (11th Cir. 1988) (adopting Waldbaum three-part limited purpose public figure test); Lerman v. Flynt Distrib. Co., 745 F.2d 123, 136-137 (2d Cir. 1984), cert. denied, 471 U.S. 1054 (1985) (requiring a defendant to show that the plaintiff has: “[1] successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation; [2] voluntarily injected himself into a public controversy related to the subject of the litigation; [3] assumed a position of prominence in the public controversy; and [4] maintained regular and continuing access to the media”); Contemporary Mission, Inc. v. New York Times Co., 842 F.2d 612, 617 (2d Cir.), cert. denied sub nom. O’Reilly v. New York Times Co., 488 U.S. 856 (1988); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 590 (1st Cir. 1980) (“first task” is to determine “the sort of public controversy referred to in Gertz”). Courts must determine if there is a public controversy because of the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it should include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

Because most cases involve media defendants reporting on controversies of interest to the public, the courts have had little difficulty in recognizing public controversies in most of the limited purpose public figure cases, and thus they have ruled that the plaintiffs had limited purpose public status. Of course, media attention does not alone transform a private controversy into a public one, Time, Inc. v. Firestone, 424 U.S. 448 (1976), and the attention that a defendant’s alleged wrong itself generates does not create a public controversy necessary for limited purpose public figure status. See Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979) (“Clearly, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure”).

The defendant does not claim that the election contest received any public attention. There was no basis for concluding the result of the election contest would be felt by persons who were not participants in the union election. The election in this case had no more public controversy than the usual election of a president of a social club or an election to the governing board of an educational institution, to the directorship of a corporation, or to the governing body of a condominium association (see, e.g., Sewell v. Eubanks, 181 Ga. App. 545, 546 [1987]).

The fact that the controversy was a union election does not provide an automatic basis for deciding for First Amendment purposes that there was a public controversy.⁹ The defendant makes no claim that Federal statutory or regulatory law preempts State tort law when a union election is involved. See Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 273 (1974); Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53, 65 (1966); 29 U.S.C. § 413 (1988). If all candidates for office in a union, particularly a union of State employees, are to be treated automatically as limited purpose public figures, the standard that courts have been following in determining that status will have to be abandoned. In sum, the plaintiff was not a limited purpose public figure because the circumstances did not involve a public controversy.¹⁰

Even if the election had received some public attention, “[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, 443 U.S. 157, 167 (1979). “It is speech on ‘matters of public concern’ that is ‘at the heart of the First Amendment’s protection.’. . . In contrast, speech on matters of purely private concern is of less First Amendment concern.” (Citations omitted.) Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-759 (1985). In Dun & Bradstreet, the Supreme Court followed the standard for determining whether an issue was of public concern set forth in Connick v. Myers, 461 U.S. 138, 147-148 (1983) (“Whether . . . speech addresses a matter of public concern must be determined by the [expression’s] content, form, and context ... as revealed by the whole record”), holding that a credit report was not of public concern. In addition, the Court noted that the report was available confidentially to only five subscribers and thus the information was not vital to “the free flow of commercial information.” Dun & Bradstreet, supra at 762. Thus, the Court concluded that no “special protection” was required for the credit reports “to ensure that ‘debate on public issues [will] be uninhibited, robust, and wide-open.’ ” Id.11 The imposition of tort liability in circumstances where the record does not disclose a public controversy is not prohibited.

The defendant argues that the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411 (2), provides the defendant, as a union member, with “extraordinarily broad freedoms.” We believe that the defendant mistakenly relies on decisions under the National Labor Relations Act, such as Marshall v. Local Union No. 815, United Textile Workers, 479 F. Supp. 613 (E.D. Tenn. 1979); and Rollison v. Hotel, Motel, Restaurant, & Constr. Camp Employees, Local 879, 677 F.2d 741 (9th Cir. 1982). The defendant does not argue that the statute is applicable. If the statute is not applicable, “[t]he test for preemption of a tort claim is whether the [S]tote ‘confers nonnegotiable [S]tote-law rights on employers or employees independent of any right established by contract, or, instead, whether evaluation of the tort claim is inextricably intertwined with consideration of the terms of the labor contract.’ ” Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993, 999 (9th Cir. 1987), quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213 (1985). On this record, there is no union contract involved. The defendant does not assert that the plaintifFs tort claims are “inextricably intertwined with the terms of the labor contract.” Id. The record does not support any such claim.

III. Conclusion. We conclude that the defendant’s speech was not entitled to constitutional protection because there was no public controversy. Further, because the defendant did not intend to influence the union election, the imposition of liability for the defendant’s speech does not chill constitutional rights of free speech.

Judgment affirmed.

2 The elements of a cause of action for reckless infliction of emotional distress are the same as those for intentional infliction of emotional distress. Thus, our discussion of the latter applies equally to the former cause of action.

3 The plaintiff alleged that the defendant’s actions violated her right to run for union office and her right to be free from sexual harassment. General Laws c. 12, § 111 (1992 ed.), provides in relevant part: “Any person whose exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with, as described in [ §] 11H, may institute and prosecute in his own name and on his own behalf a civil action for injunctive and other appropriate equitable relief as provided for in said section, including the award of compensatory money damages . . . .”

4 The defendant also claimed that the evidence was insufficient to support the judgment in the plaintiffs favor under the MCRA. The distribution of the two photocopies did not constitute a threat, intimidation, or coercion as defined by the MCRA. We vacate the judgment to the extent that it is based on any violation of the MCRA.

5 Pursuant to the settlement agreement between the plaintiff and the department, the plaintiff no longer works for the department.

6 The defendant does not challenge the trial judge’s findings of fact or the sufficiency of the evidence on the elements of the torts of intentional and reckless infliction of emotional distress. See Boyle v. Wenk, 378 Mass. 592 (1979); Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976). The judge found that the defendant’s actions in creating and distributing the photocopies at work were extreme and outrageous, e.g., outside all reasonable bounds of civilized society, were aimed intentionally at causing, and actually did cause, the plaintiff severe emotional harm. We review the judge’s findings of fact to determine whether they are clearly erroneous. See Powers v. Freetown-Lakeville Regional Sch. Dist. Comm., 392 Mass. 656, 659 (1984); Marlow v. New Bedford, 369 Mass. 501, 508 (1976). See also Mass. R. Civ. P. 52 (a), 365 Mass. 816 (1974). Conclusions of law are not set aside by a reviewing court unless inconsistent with applicable law. See Powers, supra-, Marlow, supra. We conclude that there is neither error of fact nor a mistake of law in the trial judge’s findings and order on these tort claims.

7 Gertz established the two-pronged analysis to determine if an individual is a limited public figure. First, a “public controversy” must exist. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). Second, “the nature and extent of the individual’s participation in the particular controversy” must be ascertained. Clark v. American Broadcasting Co., 684 F.2d 1208, 1218 (6th Cir. 1982), cert. denied, 460 U.S. 1040 (1983).

8 On the view we take of the issues, we need not decide if the defendant’s cartoons were germane to the plaintiffs participation in the union election.

9 The defendant does not argue that there was an issue of public concern in the union election. We have not found any case other than Materia v. Huff, 394 Mass. 328 (1985), in which the mere fact of involvement in a local union election was sufficient to establish the limited purpose public figure status of an otherwise private individual. See generally Annot., Who is a “Public Figure” for Purposes of Defamation Action, 19 A.L.R.Sth 1 (1994). The cases cited in the dissent all have public aspects which are not present in this case.

10 The defendant phrases his defense to the plaintiff’s claim under the “First and Fourteenth Amendments to the United States Constitution and in arts. 9, 16, and 19 of the Massachusetts Declaration of Rights.” We reject the defendant’s argument that art. 9, as interpreted in Batchelder v. Allied Stores Int’l, Inc., 388 Mass. 83 (1983), provides him broader protection than the First Amendment in these circumstances. On the facts before us, we decline to extend the protection of arts. 9, 16, and 19 to the circumstances of this case.

11 Earlier decisions had left open the question of the constitutional significance of speech about purely private issues. See, e.g., Monitor Patriot Co. v. Roy, 401 U.S. 265, 275 (1971) (in context of political campaigns, question left open “whether there remains some exiguous area of defamation against which a candidate may have full recourse” for reputational damage); Time, Inc. v. Hill, 385 U.S. 374, 391 (1967) (because “[different considerations might arise concerning the degree of ‘waiver’ of the protection the State might afford” under a privacy statute, Court left open “the question whether the same [First Amendment] standard should be applicable both to persons voluntarily and involuntarily thrust into the public limelight”).