Beruflich Dokumente
Kultur Dokumente
Amanda Palmeira*
INTRODUCTION
P
rison can be a lonely place. 1 However, a prisoner looking for
companionship can join an online prisoner-dating website to
make romantic connections outside of his or her cellblock. 2
Creating a dating profile on such a website not only serves as a
spark of potential love, but has garnered legal significance in
Massachusetts—it can meet the participation element required to label a
plaintiff a public figure. 3 This label greatly impedes an individual’s
defamation case, making it almost impossible to win. 4 Massachusetts’
* Juris Doctor, New England Law | Boston (2017). Bachelor of Arts, Magna cum laude,
University Honors, Honors in Major, Journalism, University of Central Florida (2014); Associates
of Arts, Summa Cum Laude, Honors Diploma, Phi Theta Kappa, General Education, Seminole
State College Florida (2011). I would like to thank Shannon Boyne for her continuous support
and invaluable guidance in writing this Case Comment and navigating law school. I also
would like to thank Brian Flaherty for his fantastic instruction in and enthusiasm for legal
research.
1 Voices from Solitary: “Loneliness Is a Destroyer of Humanity,” SOLITARY WATCH (July 7,
2012), https://perma.cc/UXX4-R5HN.
2 Alexis Garrett Stodghill, Online Sites for Dating Prisoners on the Rise, THE GRIO
4 Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974) (“[The actual malice standard] exacts
a correspondingly high price from the victims of defamatory falsehood. Plainly many
581
582 New England Law Review [Vol. 51|3
I. Background
compensation of individuals for the harm inflicted on them by defamatory falsehood.”); see
also Masson v. New Yorker Mag, Inc., 501 U.S. 496, 517 (1991) (citing the Substantial Truth
Doctrine: “Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the
sting of the libelous charge be justified.’”); Milkovich v. Lorain Journal Co., 497 U.S. 1, 13
(1990) (“[D]ue to concerns that unduly burdensome defamation laws could stifle valuable
public debate, the privilege of ‘fair comment’ was incorporated into the common law as an
affirmative defense to an action for defamation.”); Yohe v. Nugent, 321 F.3d 35, 43 (1st Cir.
2003) (defining the Fair Report Privilege).
2017] Orange is the New Participation 583
8 See Stromberg v. California, 283 U.S. 359, 369 (1931) (“The maintenance of the
opportunity for free political discussion to the end that government may be responsive to the
will of the people . . . is a fundamental principle of our constitutional system.”).
9 See N.Y. Times, Co. v. Sullivan, 376 U.S. 254, 278 (1964) (“Whether or not a newspaper
can survive a succession of such judgments, the pall of fear and timidity imposed upon those
who would give voice to public criticism is an atmosphere in which the First Amendment
freedoms cannot survive.”).
10 See Stromberg, 283 U.S. at 369.
11 ELM Med. Lab., Inc. v. RKO General, Inc., 532 N.E.2d 675, 678 (Mass. 1989).
12 Sibley v. Holyoke Transcript-Telegram Publ'g Co., 461 N.E.2d 823, 826 (Mass. 1984).
the privilege typically applies to media sources, 16 and that the privilege
still requires that reports be accurate. 17 The flexibility that the privilege has
gained from case language such as in ELM Medical, calling only for the
“gist” of the report to be accurate, is captured in the Restatements as well. 18
concurring).
16 RESTATEMENT (SECOND) OF TORTS § 611 cmt. c. (1977).
17 Id. at cmt. f.
18 ELM Med., 532 N.E.2d at 678; RESTATEMENT (SECOND) OF TORTS § 611 cmt. f (1977) (“It is
not necessary that it be exact in every immaterial detail or that it conform to that precision
demanded in technical or scientific reporting. It is enough that it conveys to the persons who
read it a substantially correct account of the proceedings.”).
19 See Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517 (1991) (applying the Substantial
Truth Doctrine to a libel suit brought against a publisher and book author); Reilly v. Assoc.
Press, 797 N.E.2d 1204, 1210–14 (Mass. App. Ct. 2003) (applying Substantial Truth Doctrine to
a defamation case against a newspaper).
20 See Masson, 501 U.S. at 517; ELM Med., 532 N.E.2d at 678.
21 Masson, 501 U.S. at 517.
22 Id. Massachusetts has codified the Substantial Truth Doctrine in a statute that states:
“The defendant in an action for writing or for publishing a libel may introduce in evidence the
truth of the matter contained in the publication charged as libelous; and the truth shall be a
justification unless actual malice is proved.” MASS. GEN. LAWS ch. 231, § 92 (2016).
2017] Orange is the New Participation 585
proof. 23 The Supreme Court has held that plaintiffs categorized as public
figures must meet a burden of proof called actual malice to be successful. 24
This burden requires proof that the defendant published the statements in
controversy with “knowledge that it was false or with reckless disregard of
whether it was false or not.” 25 The actual malice burden in defamation
cases has been called, by the Supreme Court in a subsequent case, “a
correspondingly high price from the victims of defamatory falsehood” that
many deserving plaintiffs “will be unable to surmount.” 26
In Gertz v. Robert Welch, the Supreme Court explained that a
defamation plaintiff who has come under the scrutiny of public debate and
media focus is prevented from easily recovering damages in defamation
suits if he or she is a public figure, expanding the actual malice standard
beyond the previously narrow scope of the doctrine to only public
officials. 27 After examining the rationale for the public official category
from New York Times, Co. v. Sullivan, the Gertz Court found that defamed
individuals who qualify as public figures or public officials both have
advantages over defamed private citizens because of their notoriety,
including their significant “greater access to the channels of effective
communication,” providing them a surefire method of countering any
defamation. 28
The plaintiff in Gertz was an attorney who represented a murder
victim’s family in a civil suit against a Chicago police officer who was
23 See N.Y. Times, Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (“The constitutional
guarantees require, we think, a federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official conduct unless he proves that the
statement was made with ‘actual malice.’”).
24 See id. Although Sullivan addresses “public officials,” under Gertz, “public figures” are
also held to the actual malice burden of proof. Gertz v. Robert Welch, 418 U.S. 323, 327–28
(1974). For a discussion of the difference between public officials and public figures, see Curtis
Publ’g. Co. v. Butts, 388 U.S. 130, 154–55 (1967).
25 Sullivan, 376 U.S. at 279–80.
success with which they seek the public's attention, are properly classed as public figures and
those who hold governmental office may recover for injury to reputation only on clear and
convincing proof that the defamatory falsehood was made with knowledge of its falsity or
with reckless disregard for the truth.”); see Sullivan, 376 U.S. at 279–80 (“The constitutional
guarantees require, we think, a federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official conduct unless he proves that the
statement was made with ‘actual malice.’”).
28 Gertz, 418 U.S. at 343–44.
586 New England Law Review [Vol. 51|3
A subcategory of the public-figure label was borne out of the Gertz test:
limited purpose public figure (LPPF). 35 Gertz does not explicitly use this
title; however, the opinion states:
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. For the most part those who attain
this status have assumed roles of especial prominence in
the affairs of society. Some occupy positions of such
persuasive power and influence that they are deemed
public figures for all purposes. More commonly, those
classed as public figures have thrust themselves to the
forefront of particular public controversies in order to influence
the resolution of the issues involved. In either event, they
29 Id. at 325.
30 Id. at 325–26.
31 Id. at 351.
32 Id.
33 Id. at 351–52 (“We would not lightly assume that a citizen's participation in community
and professional affairs rendered him a public figure for all purposes.”).
34 Gertz, 418 U.S. at 352.
35 See Astra USA, Inc. v. Bildman, 914 N.E.2d 36, 56 (Mass. 2009).
2017] Orange is the New Participation 587
42 Id. at 58.
44 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974); Proving Fault: Actual Malice and
Negligence, DIGITAL MEDIA LAW PROJECT, https://perma.cc/CG8F-6TTV (last visited July 11,
2017) [hereinafter Proving Fault].
588 New England Law Review [Vol. 51|3
D. Application of LPPF
Just two years after the Gertz decision, a U.S. District Court noted that
an attempt to define a public figure is “much like trying to nail a jellyfish to
the wall.” 46 The doctrine has been blurred since its conception, partly
because the Supreme Court has not defined the first prong, existence of a
public controversy, resulting in seemingly inconsistent application. 47
However, in Time, Inc. v. Firestone, the Supreme Court qualified what a
public controversy is not, striking down the defendant’s argument because
it sought to equate “‘public controversy’ with all controversies of interest
to the public,” which, the Court said, was unacceptable under Gertz. 48 The
Supreme Court also said in Hutchinson v. Proxmire that a behavioral
scientist’s research concerning public expenditures did not concern a
public controversy since public expenditures are a concern “shared by
most and relates to most public expenditures; it is not sufficient to make
[the plaintiff] a public figure.” 49 The Supreme Court cautioned against
indiscriminate findings of a public controversy in Time, saying the “use of
such subject-matter classifications to determine the extent of constitutional
protection afforded [to] defamatory falsehoods may too often result in an
improper balance between the competing interests in this area.” 50
Complicating the doctrine, the actual malice standard has been applied
depending less on the existence of a public controversy and more on
plaintiffs’ participation in the alleged controversy, their freedom in
choosing to participate, or whether they have utilized the media with
intentions of influencing the alleged controversy. 51
The Gertz Court defined the public figure standard as requiring that
45 Gertz, 418 U.S. at 352 (“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 his life.”); Proving Fault, supra note 44.
46 Rosanova v. Playboy Enterprises, Inc., 411 F. Supp. 440, 443 (S.D. Ga. 1976), aff'd, 580
the plaintiff had “vigor and success with which they seek the public’s
attention,” characterizing participation as an intentional venture. 52 For
example, the plaintiff in Gertz, an attorney in a high-profile civil lawsuit,
was not involved in the criminal prosecution of his client, he never
discussed the litigation with the press, and he limited his participation in
the civil litigation solely to his representation of a private client. 53 And
even though the plaintiff was generally an active member in the
community, serving in local groups and publishing books and legal
articles, the Court found that it was “plain” that he was not a LPPF. 54
The defendant in Gertz claimed that the plaintiff’s willful participation
in housing committees appointed by the mayor of Chicago, combined with
his appearance at a coroner’s inquest of his client’s alleged victim of the
crime, made the plaintiff a public figure. 55 The Court looked at this claim as
having “little basis”; if this claim was adopted, the Court added, it “would
sweep all lawyers under the New York Times [v. Sullivan] rule [applying
actual malice] . . . and distort the plain meaning of the ‘public official’
category beyond all recognition.” 56
The holistic analysis of the nature and extent of a plaintiff’s
participation in a controversy lends itself to determining whether the
plaintiff had a choice in that participation, and that consideration has been
defined in subsequent cases. 57
Similar to how the Astra court analyzed whether the plaintiff was an
unwitting participant, courts analyze a defamation or libel plaintiff’s
participation in the controversy. 58 In Wolston v. Reader’s Digest Association,
Inc., the Supreme Court used the Gertz language concerning the second
prong of the public figure test to analyze whether the plaintiff had “thrust
[himself] to the forefront of particular public controversies in order to
influence the resolution of the issues involved.” 59 In Wolston, the defendant
56 Id.
57 See Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 167 (1979); see infra Part I.D.2.
58 Compare Astra USA, Inc. v. Bildman, 914 N.E.2d 36, 58 (Mass. 2009) (finding the
plaintiff’s actions were deliberate and thus participation), with Wolston, 443 U.S. at 166–67
(finding defamation plaintiff’s failure to respond to a subpoena was not participation in a
public matter).
59 Wolston, 443 U.S. at 165.
590 New England Law Review [Vol. 51|3
publisher who had identified the plaintiff as a Soviet agent, claimed the
plaintiff was a LPPF because during the FBI’s investigation of his Soviet
involvement he failed to appear before a grand jury. 60 Though there was a
“flurry of publicity” surrounding the plaintiff’s failure to appear, the Court
found that his act was not dispositive on whether he was a LPPF—also
noting that the plaintiff actually avoided publicity by not testifying at the
grand jury hearing, where the media would have been attentive. 61 The
Court said that the plaintiff had never discussed the matter with the press,
and therefore was, at best, “dragged unwillingly into the controversy.” 62
A more recent example of a defamation plaintiff’s lack of participation
is seen in Alharbi v. Beck, which was a defamation claim, brought by a 20-
year-old student from Saudi Arabia against conservative political
commentator Glenn Beck, who falsely identified the student as a
perpetrator of the Boston Marathon bombing. 63 The student had been a
spectator at the Marathon on the day of the bombing and was injured by
the explosions, but had no demonstrable ties to the carrying out of the
terrorist attacks. 64 In analyzing whether the student was a LPPF, the
Massachusetts District Court found it was clear he had not voluntarily
thrust himself into the existing public controversy because, and though he
had been “the subject of numerous media reports after he was questioned
[by federal authorities], it does not indicate that he voluntarily sought out
this press attention.” 65 The court thus swiftly found the student was not a
LPPF. 66
60 See id.
61 Id. at 163, 167.
62 Id. at 166.
64 Id. at 205.
65 Id. at 208.
66 See id.
67 See e.g., Time, Inc. v. Firestone, 424 U.S. 448, 485 (1976); see also Wolston v. Reader’s
of the Firestone Rubber and Tire Company, was a LPPF because of her
publicized relationship. 68 Though the majority found that her salacious
divorce proceedings did not make her a LPPF, Justice Marshall’s dissenting
opinion points to a fact the majority astoundingly ignored: Mrs. Firestone
held press conferences while the divorce was underway, indicating the
plaintiff’s voluntary interaction with the press. 69 “Far from shunning the
publicity,” Marshall wrote, “Mrs. Firestone held several press conferences
in the course of the proceedings. These facts are sufficient to warrant the
conclusion that Mary Alice Firestone was a ‘public figure’ for purposes of
reports on the judicial proceedings she initiated.” 70 Justice Marshall used
the Gertz test to explain how these press conferences, which were
concerned specifically with her divorce, were sufficient participation to
qualify her as a LPPF. 71 Justice Marshall also explained that the majority
was hung-up on the requirement of an existence of a controversy, rather
than the plaintiff’s participation, which is one of the difficulties of using the
LPPF doctrine. 72
The SJC went through a similar analysis in Astra, in which the Court
examined whether the plaintiff had been “a ‘bit player’ in a media drama
created by forces over which he had no control,” or if he had rather
intentionally interacted with the media. 73 Indeed, the Court found that the
plaintiff had:
repeatedly contacted and used the media, including
Business Week, the Boston Globe, and the Boston Herald,
to comment on the investigation, deny and rebut Astra’s
allegations, and influence the resolution of the
investigation in the public eye. In addition, Bildman sent
press releases to various media outlets, including the New
York Times, Wall Street Journal, Reuters, United Press,
New England Cable News, CBS News, WCVB–TV, WLVI–
TV, and WHDH–TV in Boston. [The plaintiff] also entered
into unsuccessful negotiations with CBS News to be
71 See id.
72 See id. at 487 (Marshall, J., dissenting) (“Accordingly, Mrs. Firestone would appear to be
a public figure under Gertz. The Court resists this result by concluding that the subject matter
of the alleged defamation was not a ‘public controversy’ as that term was used in Gertz.”); id.
at 454 (majority opinion) (saying the defendant’s labeling of Mrs. Firestone’s divorce a public
controversy “seeks to equate ‘public controversy’ with all controversies of interest to the
public’”); supra Part I.D.
73 Astra USA, Inc. v. Bildman, 914 N.E.2d 36, 58 (Mass. 2009).
592 New England Law Review [Vol. 51|3
74 Id. at 58 n.44.
75 Id. at 58.
76 Edmund LaChance proved to be highly litigious. After being convicted of aggravated
rape, kidnapping, indecent assault and battery, and assault by means of a dangerous weapon
in 2001, LaChance obtained new counsel and appealed to the Appeals Court of Massachusetts
(Appeals Court), further appealed the Appeals Court’s affirmation to the SJC, and then
sought review from the U.S. Supreme Court. Commonwealth v. LaChance, 58 Mass. App. Ct.
1111, 1111 (2003), aff’d 444 Mass. 1102 (2003), cert. denied, 540 U.S. 1202 (2004). He also moved
for a new trial three times, with the third motion resulting in a notable decision from Justice
Robert J. Cordy of the SJC on a defendant’s Sixth Amendment right to a public trial. See
Commonwealth v. LaChance, 63 Mass. App. Ct. 1114, 1114 (2005), aff’d 444 Mass. 1105 (2005);
Commonwealth v. LaChance, 2012 WL 1142921, at *1 (2012), aff’d 469 Mass. 854 (2014) (Cordy,
J.), cert. denied, 136 S.Ct. 317 (2015). Furthermore, LaChance filed several civil suits after his
conviction, including § 1983 and § 1988 claims alleging his detainment violated his due
process rights, and a § 1983 suit against a female correctional officer he became enamored
with while in a New Hampshire State Prison. LaChance v. Commissioner of Correction, 978
N.E.2d 1199, 1206–08 (Mass. 2012) (remanding LaChance’s due process claims to a
Massachusetts trial court); LaChance v. Millette, No. 07-CV-121-PB, 2007 WL 3022205, at *4–5
(D.N.H. 2007) (dismissing LaChance’s § 1983 claims against the Attorney General of New
Hampshire, as well as the female correctional officer who filed a restraining order against him
and claimed he had stalked her).
77 See Michele McPhee, Exclusive: Behind the Wall and on the ‘Net’; Jailed Thugs Look for Love
in Cyberspace, BOS. HERALD, Apr. 25, 2005, at 2 [hereinafter McPhee, Exclusive]; Michele
McPhee, Inmate Personals: Match Made in Hell?, BOS. HERALD, Apr. 26, 2005, at 14 [hereinafter
McPhee, Inmate Personals]; Michele McPhee, Victim Outraged by Predators’ Web Dating, BOS.
HERALD, Apr. 27, 2005, at 5 [hereinafter McPhee, Victim Outraged].
2017] Orange is the New Participation 593
boxcutter), 89 that he had stalked his victim before raping her 90 (though he
was never convicted of stalking; the term “stalk” was used in a general,
colloquial sense), 91 and other general character-shaming statements made
by the articles’ sources and implied by headlines. 92
The Superior Court did not analyze whether LaChance was anything
more than a private individual in its analysis for summary judgment. 93
Also, after LaChance appealed the Superior Court’s decision, the Herald
filed an appellate brief with the Appeals Court of Massachusetts that
analyzed the facts purely under defamation law relevant to private
individuals only—the Herald never alleged that LaChance was any form of
public figure. 94
In ruling that LaChance’s claims were defeated, the Superior Court did
not address whether LaChance failed to meet his burden of proof but
rather held that the printed inaccuracies were inactionable because of the
Substantial Truth Doctrine. 95 The court also found some of the statements
LaChance claimed to be defamatory were actually opinions, not stated as
factual, and “an opinion based on a false or defamatory fact is not
separately actionable, even if the defamatory statement of fact is.” 96 These
holdings did not depend on LaChance’s status as a private, public, or
limited purpose public figure, and because these were regarding the basis
of his defamation claims rather than the Herald’s defenses, the Superior
Court granted summary judgment for the Herald. 97
The Superior Court’s analysis of the charges did not need to go farther
than the Substantial Truth Doctrine to decide the soundness of LaChance’s
claims; however, the court also cited the Fair Report Privilege of the press
as further protection for the Herald’s publications. 98 Though the privilege
only extends to “fair and accurate reports of official actions or
92 Id. at *9–10 (listing the statements LaChance challenges in his defamation suit, including
opinions stated in interviews about him and his profile, and headlines attached to the Herald
articles).
93 Id. at *5 (stating LaChance’s defamation claim must meet the “double burden” of
showing the published statements both concerned him and were defamatory, which is a
standard applied to both private and public figures).
94 See Brief for Defendants/Appellees, supra note 78, at *15–17.
95 See LaChance, 2009 WL 3053543, at *6–10.
96 Id. at *10.
97 See id. at *9–11.
98 See id. at *10.
2017] Orange is the New Participation 595
99 Id. (citing Howell v. Enterprise Pub. Co., LLC, 893 N.E.2d 1270, 1281 (Mass. App. Ct.
2008)).
100 LaChance v. Bos. Herald, 942 N.E.2d 185, 187 (Mass. App. Ct. 2011).
102 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (defining actual malice);
the fact that LaChance had lied on his profile about his age and release
dates—though the Court failed to explain why the truthfulness of a dating
profile injects one into a public controversy or amounts to participation. 108
Because LaChance’s profile was “dangerously deceptive” and he “kept
hidden his true crimes,” the Appeals Court held that LaChance had
“voluntarily inject[ed] himself . . . into a particular public controversy.” 109
Characterizing LaChance as a LPPF doomed his case, as the court easily
found there was no support to show the Herald published its articles with
actual malice. 110
ANALYSIS
III. The Appeals Court Misapplied the LPPF Doctrine Beyond Its
Intended Use, Thus Obscuring to Whom It Applies
Though the Appeals Court discussed the LPPF test set down in Astra,
it failed to properly analyze LaChance’s actions through Massachusetts’
modified definition of participation. 116 In Astra, the SJC found the plaintiff
was a LPPF because he had willingly reached out to media sources with
press releases containing his comments on the matter of controversy. 117
Though Astra contains blatant instances of the plaintiff interacting with
media regarding the relevant controversy, the Astra Court also stated the
type of plaintiffs who would be considered unwitting and therefore not a
LPPF: “a ‘bit player’ in a media drama created by forces over which he had
no control.” 118
Using the proper Astra definition for participation, the Appeals Court
could not have found LaChance a LPPF. 119 The public controversy in Astra
existed because of the sexual harassment allegations made against the
plaintiff, but the Astra Court found that the plaintiff was a LPPF not
because of the media attention resulting from the allegations, but because
of his actions that drew the spotlight onto him (his intentional interactions
with the media). 120 In LaChance, the Appeals Court did the opposite and
pointed to an existing public controversy—the dangers of interacting with
violent felons online covered by the Herald—and described LaChance’s
online dating profile as intentional participation in this public controversy,
even though he had made no contact with the press regarding the dating
profile or any other matter. 121 Furthermore, even if the LPPF test analyzed
a plaintiff’s actions before media attention or the public controversy began,
LaChance did not write about his crimes at all in his profile, thereby
bypassing any contribution to the topics that the court called a public
116 Compare Astra USA, Inc. v. Bildman, 914 N.E.2d 36, 57–58 (Mass. 2009) (analyzing
whether the defamation plaintiff participated with media coverage or if he was a victim or
unwitting participant in coverage), with LaChance v. Bos. Herald, 942 N.E.2d 185, 188 (Mass.
App. Ct. 2011) (finding placing an online advertisement to be participation).
117 Astra, 914 N.E.2d at 40–41, 58 n.45.
119 Compare id. (analyzing whether the defamation plaintiff was a victim or unwitting
participant even though he sent out press releases) with LaChance v. Bos. Herald, No. 2007-
00334A, 2009 WL 3053543, at *3 (Mass. Super. Ct. Aug. 17, 2009) (illustrating facts of
LaChance’s online activity and actions before articles were printed).
120 See Astra, 914 N.E.2d at 40–41.
121 See LaChance, 942 N.E.2d at 188 (“Although he did admit that he was incarcerated, the
controversy. 122 Thus, LaChance aligns with the Astra court’s definition of
what is not a LPPF: a focus of media drama that was created by forces over
which he had no control. 123 The Appeals Court even emphasized that
LaChance was prohibited from using the Internet while in prison, and
failed to explain how such a maximum-security prisoner could possibly be
a willful participant in media coverage with such a restriction. 124
seeking attention of site visitors, thereby making him a witting participant under Astra’s
language).
125 See supra Part I.D.1.
126 Compare Astra, 914 N.E.2d at 58 (analyzing whether the defamation plaintiff was a
victim or unwitting participant even though he sent out press releases), with LaChance v. Bos.
Herald, No. 2007-00334A, 2009 WL 3053543, at *3 (Mass. Super. Ct. Aug. 17, 2009) (illustrating
facts of LaChance’s online activity and actions before articles were printed).
127 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).
128 See id. at 325–27.
129 See id. at 352.
130 See LaChance, 2009 WL 3053543, at *2–3.
131 See Gertz, 418 U.S. at 352 (finding plaintiff did not participate in public controversy
2017] Orange is the New Participation 599
Had the Appeals Court aimed to expand the Astra holding to include
participation that deserved media attention rather than sought it, the
Appeals Court would still have to find that LaChance had participated in a
public matter through his dating website post. 137 The Appeals Court
claimed that “interacting with violent felons online” was the public
since he did not represent his client in the criminal case the media discussed); LaChance v.
Bos. Herald, 942 N.E.2d 185, 188 (Mass. App. Ct. 2011) (analyzing LaChance’s online profile
and internet activity to be participation, not his crimes).
132 Gertz, 418 U.S. at 342.
133 See id. at 352 (“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 his life.”); Proving Fault, supra note 44 (“[T]he actual malice
standard extends only as far as defamatory statements involve matters related to the topics
about which they are considered public figures.”).
134See Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 167–68 (1979).
135Id. at 165–66.
136 See id. at 166–67 (finding the plaintiff should not be classed as a LPPF because he did
not voluntarily thrust or inject himself into the forefront of a public controversy).
137 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974) (creating two-part LPPF test);
Astra USA, Inc. v. Bildman, 914 N.E.2d 36, 57 (Mass. 2009) (applying the two-part Gertz LPPF
test).
600 New England Law Review [Vol. 51|3
138 LaChance v. Bos. Herald, 942 N.E.2d 185, 188 (Mass. App. Ct. 2011).
139 Street v. Nat’l Broad. Co., 645 F.2d 1227, 1234 (1981) (“The Supreme Court has not
clearly defined the elements of a ‘public controversy.’ It is evident that it is not simply any
controversy of general or public interest.”).
140 Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976).
142 See Astra, 914 N.E.2d at 57; see also Bowman v. Heller, 651 N.E.2d 369, 374 n.7 (Mass.
1995).
143 Astra, 914 N.E.2d at 57.
144 Id.
145 Id.
2017] Orange is the New Participation 601
IV. The Appeals Court’s Application of the LPPF Doctrine Does Not
Align with Other Interpretations of the Doctrine
The Appeals Court analysis of the LPPF doctrine differs from the SJC’s
application, as well as from the Supreme Court’s application. 152 Departure
from the established LPPF doctrine has been characterized as a modified
version of the LPPF analytical framework, known as the equitable model,
while the regular analysis has been termed the formal model. 153 The
153 See Nat Stern, Unresolved Antitheses of the Public Figure Doctrine, 33 HOUS. L. REV. 1027,
1043 (1996).
602 New England Law Review [Vol. 51|3
equitable model, though used as a LPPF test, ignores the Gertz framework
from which it came, applying only some parts of the established test. 154
Nat Stern writes in Unresolved Antitheses of the Public Figure Doctrine
that the formal model encompasses the traditional public figure analysis
set out in New York Times, Co. v. Sullivan, Curtis Publishing Co. v. Butts, and
Gertz—requiring a public controversy into which the plaintiff has thrust
him- or herself, 155 a significant degree of activity to amount to
participation, 156 a subjective approach to the plaintiff’s intentions, 157 and
the existence of a public controversy before the alleged defamation
occurs. 158 Alternatively, the equitable model has a relaxed approach to the
public-controversy requirement, if the plaintiff’s conduct warrants it. 159 It
also accepts a lesser degree of activity to amount to participation than the
formal model, typically lowering the bar if there is an important First
Amendment interest. 160 Furthermore, the equitable model takes an
objective approach to the plaintiff’s actions, asking whether a reasonable
observer would suspect the plaintiff’s actions would garner attention 161
(though it still requires that the plaintiff’s actions would foreseeably have a
“major impact on the resolution of a specific public dispute”). 162 As a result
of these differences, the equitable model is more likely to find plaintiffs are
LPPF’s, while the formal model rarely applies the LPPF label. 163
B. The Appeals Court Did Not Properly Apply the LPPF Doctrine
through the Formal Model nor the Equitable Model
Under the formal model, which most closely aligns with Gertz and the
Astra adaptation of Gertz, the Appeals Court could not have found
154 See id. at 1057 (“The most striking departures from the formal standard for limited
public figures occur in those opinions that dispense with selective parts of the Gertz test,
particularly the requirement of a public controversy.”).
155 Id. at 1043 (“The formal model adheres strictly to the Court’s characterization of limited
public figures. Plaintiffs must fully exhibit each of the discrete attributes suggested by the
Court’s formulation in Gertz.”).
156 See id.
162 Stern, supra note 153, at 1066 (citing Waldbaum v. Fairchild Publications, Inc., 627 F.2d
willingness to relax or even waive this threshold requirement [of showing a public
controversy existed] where the plaintiff’s conduct is thought to warrant doing so.”).
167 See LaChance, 942 N.E.2d at 188 (“The articles at issue here, in which the plaintiff was
equitable model).
171 Stern, supra Note 153, at 1066 (“[E]quitably oriented courts acknowledge that plaintiffs’
behavior may predictably ‘invite attention and comment’ sufficient to make them public
604 New England Law Review [Vol. 51|3
figures without evidence that they had contemplated that result.” (citations omitted).
172 See Stern, supra note 153, at 1066.
173 See Stern, supra note 153, at 1066.
174 Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1292 (D.C. Cir. 1980) (emphasis
added).
175 Id.
176 See Stern, supra note 153, at 1047–48 (“[A] controversy of unusual magnitude or with
close connection to the core concerns of the First Amendment may diminish the degree of
involvement ordinarily expected of a plaintiff.”).
177 LaChance v. Bos. Herald, 942 N.E.2d 185, 188 (Mass. App. Ct. 2011).
178 See Waldbaum, 627 F.2d at 1292; Stern, supra note 153, at 1066 (citing Gertz v. Robert
Welch, Inc., 418 U.S. 323, 345 (1974)).
179 See LaChance, 942 N.E.2d at 188 (characterizing LaChance’s internet profile as seeking
attention).
2017] Orange is the New Participation 605
attention, though from a select audience only (the website’s visitors) and
not the general public. 180 Also, the Appeals Court would be hard pressed to
find a public controversy in which LaChance sought to make a “major
impact.” 181 Posting a dating profile online has little to no assertive value
into public controversies, unless the individual writes about specific
controversial topics in his or her profile; yet, LaChance wrote only that he
was “seeking friendship, romance, legal help, and monetary donations,”
while omitting any information about his crimes or other topics of public
interest. 182 Therefore, even using the equitable approach, the court could
not have found that a reasonable person would expect LaChance’s profile
to attract media attention or to make a “major impact” in any public
controversy. 183
180 See Stern, supra note 153, at 1066 (citing Gertz, 418 U.S. at 345).
181 Waldbaum, 627 F.2d at 1292.
182 LaChance, 942 N.E.2d at 188.
184 See 11 M.H. SAM JACOBSON, PERSPECTIVES: TEACHING LEGAL RESEARCH AND WRITING,
rather categorized the topic broadly to all violent crimes. 188 The FBI defines
a violent crime as any of four offenses: murder, rape, robbery, and
aggravated assault. 189 Considering the facts of LaChance, the Appeals
Court’s concern for the dating world interacting with a sexually violent
felon certainly has merit; however, the Appeals Court did not address
these concerns directly, nor why any violent crime, such as robbery, is of
particular concern to the dating world and thus implicated in its ruling. 190
The Appeals Court did reveal some of its rationale for its sweeping
language, however, in its discussion of the Substantial Truth Doctrine’s
application to the case. 191 Because the Appeals Court had to determine
whether the “gist” of the inaccurate statements was the same as if it had
accurately reported his crimes, the Appeals Court compared the Herald’s
statement that LaChance had committed manslaughter to if it had reported
correctly that LaChance committed rape. 192 The Appeals Court found that
saying LaChance committed manslaughter was “equally as damaging to
the plaintiff’s reputation in the mind of a reader” as reporting his actual
conviction of rape, and that reporting a rape conviction would have likely
had a “more deleterious effect on his perceived character . . . especially
within the context of the article.” 193 The Appeals Court concluded that the
gist was the same when comparing manslaughter and rape, since the
“‘gist’ . . . was that inmate advertisements in general should not be trusted
and the plaintiff’s particular advertisement was dangerously deceptive by
withholding his crimes while portraying himself in a light that would seem
more innocuous to potential respondents on a match-making Web site.” 194
Short legal analysis, along with emphasis on LaChance’s “decepti[on],”
occurs throughout in the Appeals Court’s opinion. 195 This juxtaposition
188 Id.
189 Violent Crime, FBI, https://perma.cc/JX9C-6V2T (last visited July 11, 2017).
190 See LaChance, 942 N.E.2d at 188.
191 See id. at 188–89. The Appeals Court cited Masson v. New Yorker Magazine, Inc. and its
protection of publications when it discussed the Herald’s printed inaccuracies. Id. (citing
Masson v. New Yorker Mag., Inc., 501 U.S. 496 (1991)).
192 Id.
193 Id. at 189.
194 Id.
195 See id. at 188–89 (“Although he did admit that he was incarcerated, the plaintiff did not
disclose the nature of his convictions. This is especially deceptive in light of his assertion in
the advertisement that ‘I'm not a bad man and I treat everyone the way I wish to be treated.’
Also, despite the plaintiff's noting in his advertisement that he was a person who ‘keep[s] it
real,’ it appears that he deliberately misstated his birth and release dates. . . .[The plaintiff]
lied about his past conviction, [and] he conveyed other lies in his ad and omitted any
reference to the single most important fact that any person reading his personal ad should
2017] Orange is the New Participation 607
reveals that the Appeals Court considered more than the context of his
crimes and his dating profile, but also LaChance’s personal character in
determining whether he met his burden and whether the Herald had an
applicable defense. 196 Such an application of the LPPF Doctrine does
violence to the doctrine’s original creation in Gertz, which stated that
categorizing an individual as a public figure who has done “no purposeful
action on his own, . . . must be exceedingly rare.” 197
CONCLUSION
want to know[.]”).
196 See LaChance, 942 N.E.2d at 188–89.
197 Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974) (emphasis added).
198 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (“The constitutional
guarantees require, we think, a federal rule that prohibits a public official from recovering
damages for a defamatory falsehood relating to his official conduct unless he proves that the
statement was made with ‘actual malice.’”).
199 See supra Part V.
200 See supra Part V.
201 See supra Part V.