PETER MARK JONES vs. MICHAEL TAIBBI & others.
Supreme Judicial Court of Massachusetts
August 18, 1987
400 Mass. 786
Norfolk. May 5, 1987. Present: HENNESSEY, C.J., ABRAMS, NOLAN, & LYNCH, JJ.
The repetition by a television news reporter and subsequently by two broadcasting companies of untrue allegations that a plaintiff was implicated in a series of notorious murders was defamatory as a matter of law. [791-792]
On a claim alleging that several television news broadcasts were false and defamatory on the ground that a reporter made certain untrue assertions of fact, the judge correctly granted summary judgment for the defendants where the statements in issue were, variously, privileged; true; or not defamatory as matter of law; or where the plaintiff had not established the necessary degree of fault on the part of the defendants for liability to attach. [792-794]
The plaintiff in a civil action could not maintain a claim for defamation on the theory that certain news broadcasts by a television station were “indorsements” of the false allegations reported, where the broadcasts were not susceptible of such an interpretation. [794]
Truth was not a defense to a claim of defamation where the television news reports broadcast about the plaintiff, which consisted in part of accounts of defamatory statements or actions attributed to a third party, were not substantially true. [794]
On a plaintiff‘s claim alleging he was defamed by a television news broadcast, summary judgment was properly ordered for the defendants, where the privileged report that the plaintiff had been arrested did not become substantially inaccurate because the report also incorrectly stated that the plaintiff had been charged with murder. [794-796]
On a defamation claim, summary judgment was improperly entered for the defendants where the allegedly defamatory unofficial statements of police sources reported by the defendants in a television broadcast were outside the scope of the common law fair report privilege as set forth in Restatement (Second) of Torts § 611, upon which the defendants were otherwise entitled to rely. [796-797] ABRAMS, J., concurring.
The plaintiff in a defamation action was not a limited issue public figure by reason of his being arrested for, but not charged with, a series of
On claims against a reporter and a television broadcast company for publishing untrue allegations made by a prison inmate that the plaintiff was implicated in a series of notorious murders, the judge incorrectly granted summary judgment in favor of the defendants where the materials before him revealed genuine issues of material fact as to the requisite elements for a jury finding that the defendants knew the falsity, or should have had reasonable doubt before publication as to the truth, of those allegations as well as statements of members of the inmate‘s family to the effect that he was telling the truth. [799-800] ABRAMS, J., concurring.
On a defamation claim, summary judgment was properly granted for the defendants where the record supported the accuracy of statements they had published, where nothing in the record indicated that the sources of the statements were unreliable and where no evidence of negligent conduct on the part of the defendants appeared. [800]
A plaintiff‘s contention in his claim for damages for invasion of privacy that his arrest was a private fact that the defendant unreasonably published was without merit [801]; and summary judgment was properly granted in favor of the defendants on his claim that the television broadcast of his arrest cast him in a false light and constituted an invasion of privacy, where the impression given by the broadcast was not false or the portrayal distorted or offensive [801-802].
CIVIL ACTION commenced in the Superior Court Department on March 23, 1979.
The case was heard by George N. Hurd, Jr., J., on motions for summary judgment.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
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.
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
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
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 fiancée saying that Jones could not be connected with the murders. There was also a segment reporting
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). Restate-
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
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
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
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
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,
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
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
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
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 comprised “four different tests,” and we conclude that the report 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.”
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
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
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
Last, assuming the statements do not fall under the privilege of § 611, the statements may be protected under Restatement
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