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COMMENT

Orange is the New Participation: How


Expansion of the Public Figure Doctrine
in LaChance v. Boston Herald Endangers
Internet Users

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

(Dec. 20, 2011, 3:16 PM), https://perma.cc/SE8D-XTQA.


3 See LaChance v. Bos. Herald, 942 N.E.2d 185, 188 (Mass. App. Ct. 2011); infra Part II.B.

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

expansion of the public figure doctrine’s application reaches beyond a


danger to love-deprived prisoners, and implicates the integrity of the
limited purpose public figure doctrine constructed under the First
Amendment in Gertz v. Robert Welch, Inc. 5
This Comment argues that the application of the limited purpose
public figure doctrine in LaChance v. Boston Herald 6 improperly ignored the
principles established in numerous cases from the U.S. Supreme Court and
Massachusetts. Part I provides a background to the public figure doctrine
and how the limited purpose public figure doctrine has come to be
applied. Part II explains the holdings of the Superior Court of
Massachusetts and the Appeals Court of Massachusetts in LaChance v.
Boston Herald. Part III examines how the Appeals Court of Massachusetts
unnecessarily and incorrectly applied the limited purpose public figure
doctrine. Part IV discusses variations of the limited purpose public figure
test that have been followed in other jurisdictions, and the Appeals Court
of Massachusetts’ failure to subscribe to any of them. Part V asserts that the
Appeals Court of Massachusetts has further distorted the application of an
already obscure legal doctrine and describes the potential dangers that this
distortion poses.

I. Background

A. Defamation Claims Against Publications

Defamation suits, when filed against publications, face special barriers


designed to balance privacy interests of individuals against the
overarching concern of stifling the free press through threats of litigation. 7
The First Amendment ensures that critiques of public figures and
politicians are protected speech, as this serves the societal and political
interest of holding government and public leaders accountable without the

deserving plaintiffs, including some intentionally subjected to injury, will be unable to


surmount the barrier . . . .”).
5 Id. at 341–46; see infra Part III, V.
6 LaChance, 942 N.E.2d at 187–88.
7 See Gertz, 418 U.S. at 341 (“The legitimate state interest underlying the law of libel is the

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).
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punishment of facing a lawsuit. 8 Legal defenses have therefore been made


available to the media, which serve as facilitators of free debate, to prevent
the chilling effect that constant legal action would create. 9

1. The Fair Report Privilege

Political speech and media coverage that hold elected officials


accountable is the ascribed purpose of the Free Press Clause of the First
Amendment. 10 A legal protection of that principle is the Fair Report
Privilege, which “allows those who fairly and accurately report certain
types of official or governmental action to be immune from liability for
claims arising out of such reports.” 11 The privilege is in place to “ensure
that publications may perform the important function of informing the
public of actions taken by the courts.” 12 However, in order for this
privilege to apply, the publication’s or reporter’s portrayal of the official
action must be considered a fair report that is substantially correct. 13 This
privilege, adopted in Massachusetts under ELM Medical Laboratory, Inc. v.
RKO General, Inc., applies only when a statement’s “‘gist’ or ‘sting’ is true,
that is, if it produces the same effect on the mind of the recipient which the
precise truth would have produced.” 14
Massachusetts has also utilized Restatement (Second) of Torts § 611 in
defining the privilege, which applies the privilege to accurate descriptions
of matters of public concern. 15 Comments to the Restatement explain that

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).

13 Yohe v. Nugent, 321 F.3d 35, 43 (1st Cir. 2003).


14 ELM Med., 532 N.E.2d at 678.

15 RESTATEMENT (SECOND) OF TORTS § 611 (1977) (“The publication of defamatory matter

concerning another in a report of an official action or proceeding or of a meeting open to the


public that deals with a matter of public concern is privileged if the report is accurate and
complete or a fair abridgement of the occurrence reported.”). For Massachusetts cases that
have adopted this section, see generally Howell v. Enter. Publ’g Co., LLC, 920 N.E.2d 1 (Mass.
2010); Fustolo v. Hollander, 920 N.E.2d 837, 844 (Mass. 2009); ELM Med., 532 N.E.2d; Foley v.
Lowell Sun Publ’g. Co., 533 N.E.2d 196 (Mass. 1988); MiGi, Inc. v. Gannett Mass. Broad., 519
N.E.2d 283 (Mass. App. Ct. 1988); Jones v. Taibbi, 512 N.E.2d 260 (Mass. 1987) (Abrams, J.,
584 New England Law Review [Vol. 51|3

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

2. The Substantial Truth Doctrine

A second privilege is the Substantial Truth Doctrine, which adopts


nearly the same language as the Fair Report Privilege, but is available to
media publications for topics beyond official or governmental action. 19
Applying the Substantial Truth Doctrine in Masson v. New York
Magazine, Inc., the Supreme Court used the same “gist” language from
ELM Medical’s discussion of the Fair Report Privilege. 20 In Masson, the
Court held that inaccuracies in quotations were not proof of actual malice,
and were covered by the Substantial Truth Doctrine unless the alterations
in quotes materially changed their meaning. 21 The Court explained the
Doctrine further, stating: “Put another way, the statement is not considered
false unless it ‘would have a different effect on the mind of the reader from
that which the pleaded truth would have produced.’” 22

B. The Public Official and Public Figure Doctrines

Another form of protection for media defendants is the


characterization of the defamation plaintiff as a public figure, which does
not directly protect the defendant but rather raises the plaintiff’s burden of

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.

26 Gertz, 418 U.S. at 342.


27 Id. (“Those who, by reason of the notoriety of their achievements or the vigor and

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

convicted of the murder. 29 The defendant publication, a magazine, accused


the attorney of being a “Communist-fronter,” a “Leninist,” and part of the
“frame-up” that led to the police officer’s conviction, even though he had
not been involved in the criminal prosecution of the officer. 30 The plaintiff
did not fall into the Sullivan category of public official, since he was not a
representative of the state; instead, the Court analyzed whether he was a
public figure. 31 Here, the Gertz Court created the test for how a defamation
plaintiff is characterized as a public figure: “In some instances . . . an
individual voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range of
issues. . . . [S]uch persons assume special prominence in the resolution of
public questions.” 32 The Gertz Court stated that there may be instances in
which an individual could come under the label of public figure through
his or her own “pervasive fame or notoriety” rather than through his or her
voluntary injection into public controversy, but the Court was careful to
narrow the test it created. 33 The Court stated that the public-figure question
should only examine the “extent of an individual’s participation in the
particular controversy giving rise to the defamation.” 34

C. Explanation of the Limited Purpose Public Figure Doctrine

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

invite attention and comment. 36


This language has been used to create the LPPF doctrine, and the
Massachusetts Supreme Judicial Court (SJC) has adopted the language
from Gertz for its own LPPF test. 37
In Astra USA, Inc. v. Bildman, the plaintiff was CEO of a pharmaceutical
company, and was the center of a sexual harassment controversy that was
covered by the press. 38 The plaintiff sent out multiple press releases
denouncing the sexual harassment allegations, and repeatedly contacted
the media including Business Week, The Boston Herald, The New York Times,
Wall Street Journal, Reuters, and several television networks. 39
Notwithstanding this media contact, the plaintiff claimed he was a private
figure and should not have to meet the actual malice burden. 40 The SJC first
defined the Gertz two-part public figure test as requiring: (1) proof that a
public controversy existed, and (2) analysis of the nature of the plaintiff’s
participation. 41 However, the Astra opinion modified the second prong of
the Gertz test, looking specifically at whether the plaintiff was a victim or an
unwitting participant in the media coverage at issue. 42 Because the plaintiff
in Astra was found to have “palpably engineered efforts to project himself
in the public limelight,” the Court assigned him a LPPF status, and he was
thereby required to show actual malice in order to have a successful suit—
which did not happen. 43
The idea behind the LPPF doctrine is that some private individuals so
intentionally thrust themselves into public debate through their actions or
communications that they become public figures within the matter they
have thrust themselves. 44 The actual malice standard that LPPF plaintiffs
face in defamation or libel suits only applies to the matter into which the
plaintiff has intentionally thrust himself or herself—being a LPPF in one
matter does not make that person an all-purpose public figure, subject to

36 Gertz, 418 U.S. at 345 (emphasis added).


37 Astra, 914 N.E.2d at 57; see, e.g. Tripoli v. Bos. Herald-Traveler Corp., 268 N.E.2d 350,
353–54 (Mass. 1971).
38 See Astra, 914 N.E.2d at 40–41.
39 Id. at 58 n.44.
40 See id. at 56–57.

41 See id. at 57–58.

42 Id. at 58.

43 Id. (quoting Tripoli, 268 N.E.2d at 353–54).

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

publicity in all matters. 45

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

1. Participation in the Public Matter

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

F.2d 859 (5th Cir. 1978).


47 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.”).
48 Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976).
49 Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979).
50 Time, 424 U.S. at 456.
51 See Proving Fault, supra note 44; infra Part I.D.1–3.
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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

2. Freedom to Choose to Participate

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

52 Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974).


53 See id. at 352.
54 Id. at 351–52.

55 See id. at 351.

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

3. Intentional Interaction with Media as a Platform Within


the Public Matter

Though the Supreme Court explained that the lack of participation


with media is a factor when deciding a plaintiff is not a LPPF, it has not
been so clear in defining how much participation with media is enough to
tip the scales. 67 In Time, Inc. v. Firestone, the Court addressed whether a
libel plaintiff, who received publicity in her divorce from Russell Firestone

60 See id.
61 Id. at 163, 167.
62 Id. at 166.

63 Alharbi v. Beck, 62 F.Supp.3d 202, 204 (D. Mass. 2014).

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

Digest Ass’n, Inc., 443 U.S. 157, 166–67 (1979).


2017] Orange is the New Participation 591

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

68 See Time, 424 U.S. at 454.


69 See id. at 485 (Marshall, J., dissenting).
70 Id.

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

interviewed on its evening news program in New York


and appeared in an interview on a Swedish television
program. 74
The Astra court also held that the plaintiff “played a central role, with
‘access to the channels of effective communication’ that most private
individuals do not enjoy.” 75

II. LaChance v. Boston Herald, Inc.: Application of the LPPF Doctrine to


a Prison Inmate on a Dating Website

A. Facts and Procedural History

The Boston Herald (the Herald) published three newspaper articles in


2005 about the dangers of inmates using online dating websites, and
featured Edmund LaChance 76 in each article. 77 LaChance sued the Herald
for defamation, claiming statements the Herald made about him, some of
which were admittedly inaccurate, defamed him by misrepresenting the
content of his personal ad, the crimes for which he was incarcerated, and

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

the details of his crimes. 78


LaChance was sentenced in 1990 to three to five years in prison on
armed robbery charges and ten to twelve years on rape charges. 79 After his
release from his first rape charge, he was found guilty of another rape and
was sentenced to seventeen to twenty-five years in prison. 80 It was while
LaChance was serving this sentence that the Herald printed the articles
about him. 81
In the Herald’s first article featuring LaChance, the Herald stated that
LaChance was incarcerated for manslaughter—which was incorrect. 82 The
Herald had referred to the docket, which had not been accurately updated
at the time, and LaChance’s online dating profile did not state any crimes
for which he had been incarcerated. 83 The second Herald article correctly
stated that LaChance was a convicted rapist; however, it then stated that
LaChance “claims on www.inmateconnections.com he is in jail for
manslaughter, rather than for a brutal sexual attack on an elderly
woman,” 84 even though LaChance made no statements on his profile about
his crimes, and the “brutal” attack had been incorrectly placed on the
docket. 85 Subsequent to the second article, LaChance contacted the
Middlesex Superior Court to request the docket be corrected, which was
granted. 86 However, the third Herald article stated, again, that LaChance
“claim[ed] he was in for manslaughter. In fact, LaChance is a two-time
rapist, convicted of attacking [a] Revere woman in 1989 when she was
20.” 87
The Superior Court of Massachusetts (Superior Court) granted the
Herald’s motion for summary judgment, ruling that the inaccurate
statements made in the articles were inactionable. 88 The statements
included those based on the inaccurate docket, and also statements that
LaChance had held a gun to his victim’s head (though it was actually a

78 Br. for Defs./Appellees 1*, Feb. 5, 2010, No. 2009-P-2129.


79 LaChance v. Bos. Herald, No. 2007-00334A, 2009 WL 3053543, at *1 (Mass. Super. Ct.
Aug. 17, 2009).
80 Id. at *2.
81 Id.; McPhee, Exclusive, supra note 77.
82 McPhee, Exclusive, supra note 77.
83 See LaChance v. Bos. Herald, 942 N.E.2d 185, 190 (Mass. App. Ct. 2011).
84 McPhee, Inmate Personals, supra note 77.
85 See LaChance, 942 N.E.2d at 186; LaChance, 2009 WL 3053543, at *3.
86 Br. for Defs./Appellees, supra note 78, at *10–11.
87 McPhee, Victim Outraged, supra note 77.
88 LaChance, 2009 WL 3053543, at *10–11.
594 New England Law Review [Vol. 51|3

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

89 McPhee, Victim Outraged, supra note 77.


90 Id.
91 LaChance, 2009 WL 3053543, at *8.

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

proceedings,” the Superior Court found that the inaccurate statements


based on the then-existing docket entry were protected. 99

B. Appeals Court of Massachusetts

LaChance appealed the decision to the Appeals Court of


Massachusetts (Appeals Court), where the case was heard de novo. 100
Instead of applying the same falsity tests that the Superior Court had—
asking whether the admittedly inaccurate reports were false and
defamatory to LaChance—the Appeals Court applied the LPPF test. 101 This
characterization raised the burden of proof to proving actual malice as
opposed to only proving that the statements were false and defamatory. 102
Applying the Gertz LPPF test, the Appeals Court first asked whether a
public controversy existed. 103 It found that the Herald’s articles dealt with
“matters of public concern, specifically the dangers of interacting with
violent felons online,” and concluded the first part of the test was met. 104
The Appeals Court then considered LaChance’s involvement with this
controversy, using the language in Astra to explain that LaChance was not
an “unwitting participant” in the Herald’s coverage, because he had placed
a personal advertisement on Inmate Connections; the Appeals Court said
this action showed LaChance “actively sought the attention of those
visiting the site by indicating that he was seeking friendship, romance,
legal help, and monetary donations.” 105 Supporting the fact that LaChance
made an overt effort to post on Inmate Connections, the Appeals Court
stated that LaChance had posted online despite prison regulations that
prohibit maximum-security prisoners like LaChance from using the
Internet. 106
The Appeals Court did not attempt to find that LaChance wanted to
influence this controversy with his involvement as the Gertz LPPF standard
would examine, but instead focused on his “misleading and controversial”
profile, which the Court called “especially deceptive.” 107 The Court cited to

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).

101 See id. at 188 (concluding that LaChance is a LPPF).

102 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (defining actual malice);

LaChance, 942 N.E.2d at 188.


103 LaChance, 942 N.E.2d at 187–88.
104 Id. at 188.
105 Id.
106 See id.
107 See id.
596 New England Law Review [Vol. 51|3

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

The Appeals Court’s application of LPPF to LaChance expanded the


doctrine dangerously far, distorting the meaning of participation in a
public controversy and to whom it may be applied. 111 This expansion was
unnecessary in LaChance, since the Superior Court had already found
LaChance’s claims were defeated with a private-individual analysis, as
well as under the Fair Reporting Privilege and the Substantial Truth
Doctrine. 112 It is also dangerous for media publications that may not be able
to predict how a court will qualify the subject of a news article—as a
private individual, or as a public figure. 113 The Appeals Court’s distortion
of what participation means in a LPPF analysis endangers private
individuals who should not be under an actual malice burden in their
defamation suits. 114 Furthermore, the court took a dangerous step in
categorizing online dating profiles as participation, as social media and
online activity becomes more prevalent in everyday life. 115

108 See id.


109 LaChance, 942 N.E.2d at 188–89 (quoting Gertz v. Robert Welch, Inc. 418 U.S. 323, 351
(1974)).
110 Id. at 189. LaChance appealed the Appeals Court decision, but the SJC denied review of

the case. LaChance v. Bos. Herald, 459 Mass. 1112 (2011).


111 See Proving Fault, supra note 44 (explaining that inconsistent application of the LPPF

doctrine makes it difficult to predict).


112 See LaChance v. Bos. Herald, No. 2007-00334A, 2009 WL 3053543, at *10 (Mass. Super.
Ct. Aug. 17, 2009) (“Therefore, because these statements are privileged, judgment as a matter
of law for the defendants is also warranted.”).
113 See supra text accompanying note 23.
114 See supra text accompanying note 24–26.
115 See Social Media Fact Sheet, PEW RES. CTR. (Jan. 12, 2017), https://perma.cc/FAL8-YB6V.
2017] Orange is the New Participation 597

A. The Appeals Court Misapplied the Participation Standard Set Forth


in Astra

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.

118 Id. at 58.

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

plaintiff did not disclose the nature of his convictions.”).


598 New England Law Review [Vol. 51|3

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

B. The Appeals Court Misapplied the Supreme Court’s LPPF Analysis of


Participation

The broader Supreme Court definition of participation 125 would find


that LaChance’s activities that landed him in the limelight would not be
participation. 126 Gertz illustrated the Supreme Court’s broader definition. 127
The plaintiff in Gertz, who garnered media attention for the criminal case
of which his client’s family member was a victim, was criticized by media
sources who claimed he and his alleged communist beliefs underhandedly
interfered with justice in the criminal case. 128 Furthermore, the attorney
made no attempts to interact with the media coverage of him or the cases,
and the Court therefore found he was not a LPPF. 129
Although the media focused on LaChance partly because of his past
criminal convictions, the main focus of the articles was that LaChance had
a dating profile despite his crimes. 130 Both Gertz and LaChance are instances
of media coverage with a crime focus, and in both cases, the thrust of the
plaintiffs’ participation had nothing directly to do with those crimes: the
plaintiff in Gertz was the attorney for the civil, not criminal suit; and the
Herald wrote about LaChance’s dating profile and his crimes, though his
profile never mentioned his crimes at all. 131 Therefore, under the Supreme

122 See id.


123 Astra, 914 N.E.2d at 58.
124 See LaChance, 942 N.E.2d 185, 188 (characterizing LaChance’s online post as “actively”

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

Court’s Gertz analysis of participation, the Appeals Court incorrectly found


LaChance’s activities to be “seek[ing] the public’s attention.” 132 Even if the
Appeals Court wanted to analyze LaChance’s past crimes as eligibility for
the media attention, being a LPPF under such a rationale would make him
a LPPF only for coverage of those crimes, not his dating profile. 133
Further analysis under Supreme Court LPPF cases supports this
conclusion, as Wolston analyzed not if there was participation but whether
the plaintiff’s actions amounted to sufficient participation to qualify for the
LPPF label. 134 Under the Wolston analysis, the plaintiff had not “thrust
[himself] to the forefront of particular public controversies in order to
influence the resolution of the issues involved” because he did not discuss
any of the controversial issues with the press—and therefore was “dragged
unwillingly into the controversy.” 135 Thus, even if the Appeals Court found
that LaChance’s online activity should amount to participation, the
Supreme Court analysis in Wolston indicates that this participation would
not have been sufficient participation to label LaChance a LPPF unless it
was meant to influence the resolution of some public issue. 136

C. LaChance Did Not Participate in a Public Controversy under the


Supreme Court’s Definition, Nor Astra’s Definition

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

controversy at issue. 138


Though the Supreme Court has contributed little to the definition of
public controversy, 139 it has explicitly said that a public controversy is not
“all controversies of interest to the public.” 140 Therefore, even if the Herald
articles regarding online interaction with felons would be of interest to the
public, as the Appeals Court claimed, this does not automatically mean
that LaChance was involved in a public controversy. 141
Massachusetts has interpreted Gertz’s public-controversy element to
mean the only requirement is that a public controversy “exists.” 142 In Astra,
the SJC made a brief but illustrative analysis explaining why the sexual
harassment issues involved in the case were a public controversy. 143
Considering the case facts, the SJC said it had “little difficulty” in
determining that the narrow issue of “widespread sexual harassment at a
publicly traded company employing 1,000 people is a matter of general
concern.” 144 Though the plaintiff argued that the case facts—the instances
of sexual harassment—were only relevant to those involved, the SJC held
that:
[T]he issue of sexual harassment in the workplace is a
focus of a considerable body of State and Federal law and
regulation and a matter of frequent and often heated
public debate. The topic of [the plaintiff’s] actions echoed
far beyond Astra, its employees, and their families. For
many months, it wove its way into the national and
international discourse about permissible conduct in the
workplace and the place and treatment of women in the
private sector. 145
The SJC analysis implies that a showing of a public controversy
requires, to some extent, something that is a subject of legal regulation, of
heated public debate, and of national discourse that the plaintiff’s actions

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).

141 See id.; LaChance, 942 N.E.2d at 188.

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

contribute to or are concerned with. 146


The Astra analysis is exceedingly more thorough than that in
LaChance. 147 The Appeals Court failed to articulate an analysis beyond
summarizing the case facts, pointing out how LaChance was “especially
deceptive,” and that a public controversy of “interaction with violent
felons” existed; followed by concluding that, “[i]n these circumstances, we
determine that we are presented with a situation where the plaintiff has
‘voluntarily inject[ed] himself . . . into a particular public controversy.’” 148
Considering the SJC’s past analysis of what a public controversy is, as well
as its lack of legal analysis in LaChance, labeling LaChance as a LPPF had
no foundation. 149
Under Massachusetts precedent, the Appeals Court would have had to
show that “interacting with violent felons” was at least one of the things
Astra pointed to: that the plaintiff’s actions contributed to or were
concerned with a subject of legal regulation, of heated public debate, or of
national discourse. 150 Not only was no such analysis made, but the court
would have likely failed in attempting to show the supposed public
controversy existed in any of the three categories. 151

IV. The Appeals Court’s Application of the LPPF Doctrine Does Not
Align with Other Interpretations of the Doctrine

A. The Appeals Court’s Use of the LPPF Doctrine Fails to Resemble


Accepted Variants 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

146 See id.


147 Compare LaChance v. Bos. Herald, 942 N.E.2d 185, 188 (Mass. App. Ct. 2011)
(concluding the plaintiff was a LPPF), with Astra, 914 N.E.2d at 57 (explaining how the
plaintiff participated in a public controversy).
148 LaChance, 942 N.E.2d at 188.
149 Compare Astra, 914 N.E.2d at 57 (analyzing whether a public controversy existed) with
LaChance, 942 N.E.2d at 188 (concluding LaChance was a LPPF).
150 LaChance, 942 N.E.2d at 188; see Astra, 914 N.E.2d at 57.

151 See LaChance, 942 N.E.2d at 188.

152 See supra Part III.

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.

157 Id. at 1043–44.

158 Id. at 1044.

159 Stern, supra note 153, at 1043.

160 Stern, supra note 153, at 1043.

161 Stern, supra note 153, at 1043–44.

162 Stern, supra note 153, at 1066 (citing Waldbaum v. Fairchild Publications, Inc., 627 F.2d

1287, 1292 (D.C. Cir. 1980)).


163 Stern, supra note 153, at 1044.
2017] Orange is the New Participation 603

LaChance to be a LPPF. 164 However, analyzing the facts in LaChance under


the equitable model more closely resembles the Appeals Court findings. 165
First, this is evident in the Appeals Court’s lax analysis of whether there
was an existing public controversy. 166 The Appeals Court opinion more
closely resembles an equitable model analysis in how it downplayed the
existence of a public controversy and instead focused on LaChance’s
dating profile in light of the Herald articles being printed, rather than
requiring the existence of a public controversy before LaChance created his
profile or before the Herald featured him. 167 Second, the Appeals Court
accepted a lesser degree of activity to satisfy its LPPF test, which is typical
of the equitable model analysis. 168 Third, because the Appeals Court
approached LaChance’s activities objectively, looking not at what he
personally expected to have as an audience but what a reasonable person
could foresee as an audience, the Appeals Court’s reasoning aligns more
closely with the equitable model’s objective approach. 169 LaChance’s
personal dating profile was not intended for a large audience, which
would be considered in a subjective analysis of what LaChance considered;
but using an equitable analysis, a court would consider that a reasonable
person may think that someone with a past of sexual crimes on a dating
website would garner some form of undesired attention. 170
However, even under the equitable model, a LPPF label is only applied
when the plaintiff “invite[d] attention and comment.” 171 The equitable

164 See supra Part III.


165 Compare LaChance v. Bos. Herald, 942 N.E.2d 185, 188 (Mass. App. Ct. 2011) (finding
LaChance’s online activity amounted to participation, despite not interacting with the media,
thereby meeting the equitable model’s negligible requirement for participation), with infra
Part III.B. (examining the LaChance decision under both models).
166 Stern, supra note 153, at 1043 (“[C]ourts taking an equitable approach have displayed a

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

prominently featured, addressed matters of public concern, specifically the dangers of


interacting with violent felons online. Additionally, the plaintiff ‘was neither a victim nor an
unwitting participant’ in the defendants' coverage. Here, the plaintiff, of his own volition,
placed a personal advertisement on the Web site ‘Inmate Connections . . . .’” (citations
omitted)).
168 See LaChance, 942 N.E.2d at 188; Stern, supra note 153, at 1043.
169 See LaChance, 942 N.E.2d at 188; Stern, supra note 153, at 1044.
170 See Stern, supra note 153, at 1043–44 (explaining the objective approach under the

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

model looks at this requirement through an objective lens, asking whether


a reasonable person would have seen the plaintiff’s actions as inviting
comment. 172 Therefore, if it was using the equitable model, the Appeals
Court would have at least analyzed whether a reasonable person would
see LaChance’s online dating profile as inviting attention and comment. 173
The equitable model’s objective approach is illustrated in Waldbaum v.
Fairchild Publications, Inc., which states that a LPPF is someone who “is
attempting to have, or realistically can be expected to have, a major impact
on the resolution of a specific public dispute . . . .” 174 However, Waldbaum
also shows that although the objective approach allows a court to consider
what a reasonable person would have thought could happen, rather than
what the plaintiff thought would happen, there is a counterbalance that
requires an objective expectation of a “major impact.” 175 This
counterbalance, or sliding scale, that considers both an expectation’s
reasonableness with its projected impact illustrates what Stern discusses as
the equitable model’s fluid approach to the LPPF doctrine. 176
The Appeals Court highlighted that LaChance, “of his own volition,”
placed an ad on Inmate Connections that included a picture of himself,
finding that this activity showed LaChance “actively sought the attention
of those visiting the site by indicating that he was seeking friendship,
romance, legal help, and monetary donations.” 177 Considering the sliding
scale, to apply the LPPF label, the Appeals Court needed to have found
either that a reasonable person would definitely have thought LaChance’s
actions were inviting attention, or that LaChance aimed to have a major
impact on an existing public controversy. 178 Defying the equitable model,
the Appeals Court found neither. 179 If the analysis had been performed, the
Appeals Court would have found that a dating profile does, in fact, elicit

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

V. The Appeals Court’s Expansion of the LPPF Doctrine Further


Distorted the Doctrine’s Purpose

A. The Appeals Court Decision is Dangerously Broad and Incorrectly


Focused on LaChance’s Profile Rather Than His Participation

Narrowly drawn, the LaChance decision would apply to the dating


profiles of those convicted of sexually violent crimes, making such profiles
a matter of public controversy and eligible for defamatory publication
without consequence to the publisher absent a showing of actual malice. 184
However, broadly drawn, the decision would apply to online posts of any
sort that are open to the public, made by anyone seeking for the post to be
seen by any size audience, allowing such posts to be eligible for
defamatory publication without consequence so long as the post can be
said to concern a matter of public interest. 185 Narrowly or broadly drawn,
the decision overstretches the LPPF doctrine. 186
In forming its decision, the Appeals Court focused on LaChance’s
former crimes and stated that the public controversy at issue was
“interacting with violent felons online.” 187 The Appeals Court did not
narrow this public controversy down to include only sexual crimes, but

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.

183 Waldbaum, 627 F.2d at 1292.

184 See 11 M.H. SAM JACOBSON, PERSPECTIVES: TEACHING LEGAL RESEARCH AND WRITING,

120–22 (2003), https://perma.cc/5Q9U-ZSB5.


185 See id.
186 See supra Part III.
187 LaChance, 942 N.E.2d at 188.
606 New England Law Review [Vol. 51|3

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

First Amendment principles support frequent application of the LPPF


doctrine, as it expands the protections that publications have to report on
potential issues of public concern. 198 However, that expansion, without
limits, threatens the privacy expectations of individuals who post on the
Internet—and who have no reason to expect that such posts may become
the subject of a press flurry. 199 Opinions such as LaChance indicate that
there is a danger to a liberal application of an unclear or haphazard
application of the LPPF doctrine. 200 LaChance should be examined for its
far-reaching implications and used to show that courts must be cautious in
expanding the application of the actual malice doctrine. 201

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.