SYLVIA SMITH BOWMAN vs. DAVID HELLER. [Note 1]

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 plaintiff's 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

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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; [Note 2] and two claims under the Massachusetts Civil Rights Act (MCRA), G. L. c. 12, Section 11I (1992 ed.). [Note 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. [Note 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

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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

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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. [Note 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

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defendant did not appeal the disposition of his counterclaims. Those claims are not before us. [Note 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,"

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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 Circuit Courts of Appeal have developed various tests to aid judges in applying the two-prong limited purpose public figure standard set forth in Gertz. [Note 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"); [Note 8] Silvester v. American Broadcasting Cos., Inc., 839 F.2d 1491, 1493 (11th Cir. 1988) (adopting Waldbaum three-part limited purpose public figure test); Lerman v. Flynt Distrib. Co., Inc., 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.,

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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. Proximire, 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

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purposes that there was a public controversy. [Note 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. Section 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. [Note 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

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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. [Note 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. Section 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]tate `confers nonnegotiable [S]tate-law rights on employers or employees independent of any right established

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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 plaintiff's 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.

NOLAN, J. (dissenting, with whom Lynch, J., joins). I disagree with the court's holding that the plaintiff was not a limited purpose public figure because the union election was not a public controversy. I conclude that the plaintiff became a limited purpose public figure when she voluntarily thrust herself into the election campaign. I also conclude that the caricatures at issue addressed the plaintiff's campaign for the presidency, despite their horrid content. As a result, I would use the "actual malice" standard of liability in determining whether the plaintiff should recover on her claim of intentional infliction of emotional distress. [Note Dissent-1] Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988). Thus, because the plaintiff has failed to prove that the caricatures contained a false statement of fact, I dissent.

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In reviewing the trial judge's finding of liability on the plaintiff's claim of intentional infliction of emotional distress, we must "make an independent examination of the whole record" in order to insure "that the judgment does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964). Having reviewed the entire record, I am compelled to disagree with the court's conclusion that the plaintiff was not a limited purpose public figure. This court decided precisely this issue in Materia v. Huff, 394 Mass. 328 (1985), where we held that the plaintiff was a limited purpose public figure as a matter of law because he "voluntarily thrust himself into the controversy by campaigning for reelection to the position of secretary-treasurer of Local 526." Id. at 331. Nevertheless, today the court decides that an election campaign for the presidency of a union local is not a public controversy. In support of this decision the court states that "[t]here was no basis for concluding [that] the result of the election contest would be felt by persons who were not participants in the union election." Ante at 524. The court continues in this vein stating that "[t]he 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." Ante at 524.

These conclusions are in reference to the first prong of the three part test for determining whether an individual is a limited purpose public figure, set forth in Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1297-1298 (D.C. Cir.), cert. denied, 449 U.S. 898 (1980). The first prong, which addresses the issue whether there is a public controversy, requires the reviewing court to "ask whether a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution. If the issue was being debated publicly and if it had foreseeable and substantial ramifications for non-participants, it was a public controversy." (Footnote omitted.) Id. at 1297.

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In my opinion, an election is the absolute paradigm of a public controversy. The "immediate participants" in this union election campaign, the candidates, would not have been the only persons to have felt the impact of the election. Instead, the election would have had an effect on each of the 8700 members of Local 509. [Note Dissent-2] In addition, the Supreme Court of the United States has stated repeatedly that the public has an interest in labor unions in general and in union elections in particular. See Wirtz v. Local Union No. 125, Laborers' Int'l Union of N. Am., 389 U.S. 477, 483 (1968) (noting that the public has an interest in labor union elections); Wirtz v. Local 153, Glass Bottle Blowers Ass'n of the U.S. & Can., 389 U.S. 463, 475 (1968) (stating that "Congress [has] emphatically asserted a vital public interest in assuring free and democratic union elections"); Thornhill v. Alabama, 310 U.S. 88, 102-103 (1940) (stating that labor relations are not matters of mere local or private concern). See also National Ass'n of Gov't Employees v. National Fed'n of Fed. Employees, 844 F.2d 216, 220 (5th Cir. 1988) (indicating that the labor union election campaigns are a matter of public concern). Based on this authority, I conclude that the election campaign for the presidency of Local 509 was a public controversy. [Note Dissent-3] The plaintiff, therefore, became

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a limited purpose public figure when she voluntarily thrust herself into the election campaign for the presidency of Local 509. [Note Dissent-4] See Materia v. Huff, supra at 331. See also Jean v. Dugan, 20 F.3d 255, 262 n.7 (7th Cir. 1994).

Speech concerning a limited purpose public figure will qualify for the actual malice standard set forth in New York Times Co. v. Sullivan, supra at 279-280, only if that speech addresses the public controversy into which the limited purpose public figure has voluntarily injected herself. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). See also Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1298 (D.C. Cir.), cert. denied, 499 U.S. 898 (1980) (stating that the alleged defamation must have been "germane" to the limited purpose public figure's participation in the controversy).

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If, however, the contested speech does not address the controversy into which the limited purpose public figure has thrust herself, then the States may impose liability "on a less demanding showing than that required by New York Times Co. [v. Sullivan]," as long as they do not impose liability without fault. Gertz v. Robert Welch, Inc., supra at 347-348. "Whether . . . speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-148 (1983). After reviewing the entire record and considering the content, form, and context of the caricatures, I am compelled to conclude that the speech in this case addressed a matter of public concern -- the plaintiff's candidacy for the presidency of Local 509. [Note Dissent-5] See Connick v. Myers, supra at 147-148. Although I find the content of the caricatures to be totally repulsive, even "the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth." Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53, 63 (1966). As a result, liability for intentional infliction of emotional distress should be imposed on the defendant only if the plaintiff can prove by clear and convincing evidence that the caricatures contained a false statement of fact and that the defendant had knowledge of the falsity or had acted with

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reckless disregard of the truth. See Hustler Magazine, Inc. v. Falwell, supra at 56.

Even if the plaintiff was a private figure, despite her entering the election campaign for the presidency of Local 509, the actual malice standard remains the appropriate standard to use in this case. See Batson v. Shiflett, 325 Md. 684, 728 (1992); McKinnon v. Smith, 52 Misc. 2d 349, 352 (N.Y. 1966). The Supreme Court of the United States has used the actual malice standard in free speech cases involving unions because "federal policies favor[] uninhibited, robust, and wide-open debate in labor disputes." Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 273 (1974) [Letter Carriers]. The Supreme Court has recognized that "exaggerated rhetoric was commonplace in labor disputes and protected by federal law." Id. at 286. Therefore, in order to avoid "unwarranted intrusion upon free discussion" in labor disputes, the Court adopted by analogy the actual malice standard used in New York Times Co. v. Sullivan, supra at 279-280. Linn v. United Plant Guard Workers, supra at 65. As a result, the Supreme Court held that Federal labor policy preempts State libel actions for defamatory statements, made in the course of a labor dispute, which were published without knowledge of their falsity or with reckless disregard for the truth. See id. Subsequently, in Letter Carriers, the Supreme Court rejected the argument that the actual malice standard applied only in the context of a labor-management dispute or a representation campaign. See Letter Carriers, supra at 278-279. [Note Dissent-6] Instead, the Supreme Court reasoned that "application [of the actual malice standard] of Linn [v. United Plant Guard Workers] must turn on whether the defamatory publication is made in a context

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where the policies of the federal labor laws leading to protection for freedom of speech are significantly implicated." Letter Carriers, supra at 279.

In the present case, the Labor Management Reporting and Disclosure Act (LMRDA) is the relevant federal law because the controversy arose in the context of union officer elections. [Note Dissent-7] See Petersen v. Dole, 956 F.2d 1219, 1223 (D.C. Cir. 1992); 29 U.S.C. Section 481 (1988). "[T]he [LMRDA's] overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections." Finnegan v. Leu, 456 U.S. 431, 441 (1982). Congress "recognized that democracy would be assured only if union members are free to discuss union policies and criticize the leadership without fear of reprisal. Congress also recognized that this freedom is particularly critical, and deserves vigorous protection, in the context of election campaigns. For it is in elections that members can wield their power, and directly express their approval or disapproval of the union leadership." United Steelworkers of Am. v. Sadlowski, 457 U.S. 102, 112 (1982). Thus, a claim for intentional infliction of emotional distress, in the context of a union election, implicates the same federal labor policies leading to the protection of freedom of speech as in Linn v. United Plant Guard Workers, supra at 65, and Letter Carriers, supra at 279. See Henry v. National Ass'n of Air Traffic Specialists, supra at 1211; Ross v. Duke, 116 Ariz. 298, 300-301 (1977).

By imposing an outrageousness standard on union election speech, today's decision will permit a candidate for a union

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office to seek damages for emotional distress from fellow union members who "say naughty things during [election campaigns]." Linn v. United Plant Guard Workers, supra at 67 (Black, J., dissenting). The Supreme Court has recognized the dangerously chilling effect of such a standard on free speech stating that "`[o]utrageousness' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. An `outrageousness' standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience." Hustler Magazine, Inc. v. Falwell, supra at 55. It is unavoidable, therefore, that the court's imposition of an outrageousness standard will chill protected speech in the context of a union election. See L. Tribe, American Constitutional Law Section 13-26, at 1131-1132 (1988). Thus, to provide "adequate `breathing space' to the freedoms protected by the First Amendment," the actual malice standard is the appropriate standard to use in the context of a union election. Hustler Magazine, Inc. v. Falwell, supra at 56. See Beruan v. French, 56 Cal. App. 3d 825, 828-829 (1976) (stating that labor union operates like a system of government and strong policies favor the full exercise of the right to free speech in union election campaigns).

Where the actual malice standard applies, the "sine qua non of recovery . . . is the existence of falsehood." Letter Carriers, supra at 283. In the present case, the plaintiff has not proved that the caricatures contained a false statement of fact. Accordingly, I dissent. [Note Dissent-8]