383 Mass. 406

March 4, 1981 - April 17, 1981

Suffolk County


Allegations in a complaint that, shortly after the plaintiff was appointed Commissioner of the Metropolitan District Commission, the defendant newspaper published a series of articles concerning the plaintiff's activities some ten years earlier, that the newspaper accounts were based on or contained unsubstantiated and uncorroborated "raw investigative material," and that the publication of the unsubstantiated, ten year old material was reckless and unwarranted were sufficient to state a cause of action for violation of the plaintiff's statutory right of privacy under G. L. c. 214, Section 1B. [407-409]

CIVIL ACTION commenced in the Superior Court Department on August 6, 1979.

The case was heard by Adams, J., on a motion to dismiss.

After review was sought in the Appeals Court, the Supreme Judicial Court ordered direct appellate review on its own initiative.

Robert Emmet Dinsmore (Clifford S. Hochman with him) for the plaintiff.

James F. McHugh for the defendant.

NOLAN, J. The judge erred in allowing the defendant's motion to dismiss under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).

The complaint avers that the plaintiff was appointed Commissioner of the Metropolitan District Commission (M.D.C.) by Governor Edward J. King on the day after the latter's inauguration in January, 1979. As a result of the published materials which are under review in this case, he was forced to resign. Annexed to and made a part of the complaint are several articles published by the defendant in

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editions dated February 24, 25, 26, 27 and March 5, 1979. A precis of these articles would reveal the following allegations which represent the raw material of this litigation. The immediate sources of this information were files in the M.D.C. and in the Attorney General's office. Earlier in his public service, the plaintiff had filled the position of associate commissioner of the M.D.C., a part-time billet, from 1960 to 1975. Certain dissident members of Local 88, the Compressed Air and Tunnel Workers, AFL-CIO, in 1969 complained that the plaintiff, who was president of the union at the time, was unfair to organized labor. He resigned the presidency in August, 1969. These members charged the plaintiff with conflict of interest, payroll padding, misuse of union funds and mismanagement. Admittedly, these charges were never proved, though the then Attorney General conducted an investigation. The defendant also revealed in these articles the allegedly close alliance of the plaintiff to one Thomas DiSilva, named by Governor King to the position of associate commissioner of the M.D.C. on February 9, 1979, on the strength of the plaintiff's recommendation. DiSilva was charged by the union dissidents with being a straw for the plaintiff in permitting a crane owned by the plaintiff to be leased and used on M.D.C. projects. The articles linked a business associate of DiSilva with organized crime and asserted that the leader of organized crime in New England was an investor in a corporation of which DiSilva was a principal. Accompanying one by-line was a photograph of certain union members picketing M.D.C. headquarters in 1969, and carrying sandwich boards protesting that the plaintiff was unfair to organized labor.

Additionally, there was embroidered into some of the articles on the plaintiff's earlier tenure at the M.D.C. an account of the unsolved 1970 murder of one of the dissident union members.

The plaintiff's complaint correctly alleges that these newspaper accounts were based on or contained unsubstantiated and uncorroborated "raw investigative materials."

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This is an accurate description of their origin, derived as they were from interviews and tape recordings made of the interviews of the dissident union members by police detectives.

In evaluating the judge's action we apply the settled law that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957), quoted with approval and adopted in Nader v. Citron, 372 Mass. 96, 98 (1977). Longever v. Revere Copper & Brass Inc., 381 Mass. 221, 222 n.1 (1980). The instant complaint expressly bids for recognition of sufficient facts to make out a violation of the plaintiff's statutory right of privacy under G. L. c. 214, Section 1B. It just barely succeeds.

The journalism of which the plaintiff complains and which is appended to his complaint speaks more forcefully than the averments of his complaint. Section 1B recognizes "a right against unreasonable, substantial or serious interference with [one's] privacy." While it is perfectly clear that the plaintiff was a public figure at the time of the defendant's publications, the plaintiff avers, although obliquely, the reckless and unwarranted publication of this unsubstantiated, ten year old material. On this record and at this threshold stage of the case, it is unwise to give a complete gloss to Section 1B as it may or may not protect a public figure's right to privacy, require malice, permit truth as a defense, demand an averment of falsehood, or implicate other facets of the current jurisprudence on defamation and "false light" invasion of privacy. See Cantrell v. Forest City Publishing Co., 419 U.S. 245, 249 (1974). It is true, as the defendant argues, that this court as well as the Appeals Court has spoken of Section 1B in earlier cases, [Note 1] but we have not

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yet been confronted with the peculiarities of the instant case.

The indulgent reading which we are obliged to give the complaint, see Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 88-89 (1979); Charbonnier v. Amico, 367 Mass. 146, 152-153 (1975), leads us to conclude that the plaintiff has alleged a set of facts for which some form of relief may be appropriate. Jessie v. Boynton, 372 Mass. 293, 302-303 (1977).

Judgment reversed.


[Note 1] See Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 748 (1980); New Bedford Standard Times Publishing Co. v. Clerk of the Third Dist. Court of Bristol, 377 Mass. 404, 414-415 (1979); Attorney Gen. v. School Comm. of Northampton, 375 Mass. 127 (1978); Hastings & Sons Publishing Co. v. City Treasurer of Lynn, 374 Mass. 812, 817-820 (1978); Police Comm'r of Boston v. Municipal Court of the Dorchester Dist., 374 Mass. 640, 657 n.11 (1978); Broderick v. Police Comm'r of Boston, 368 Mass. 33, 44 (1975), cert. denied, 423 U.S. 1048 (1976); Cefalu v. Globe Newspaper Co., 8 Mass. App. Ct. 71, 77-78 (1979), appeal dismissed, 444 U.S. 1060 (1980); Boston v. Ditson, 4 Mass. App. Ct. 323, 330 n.8 (1976), cert. denied, 429 U.S. 1057 (1977).