Kerr v. Smith

A group of developers sued Gregg B. Smith in Massachusetts state court over his operation of a website and distribution of a newsletter under the name "Save Cape Ann." Smith disputed the ownership of a parcel of land and the developers' right to develop the land. The developers brought suit in September 2006 seeking injunctive relief for defamation, intentional interference with contractual relations, intentional infliction of emotional distress, and trespass. In particular, the plaintiffs sought to prevent Smith from the "distribution of any publications, website, videos, or other means of communication, regarding these unfounded statements about Plaintiffs." (Compl. ¶ 78).

According to the complaint, the website contained "false, disparaging, and derogatory allegations about not only individual members of the Hoffman family, but also about the Kerr family. . . and about Reeb Millwork Corporation." (Compl. ¶ 32).  The allegedly defamatory statements included:

• "Plaintiffs are continueing [sic] the crimes after two of the resident homes were illegally acquired. . ." (Compl. ¶ 33)
• "Tide Rock Developer and former Math professor . . . is a child preditor [sic]. For over 15 years he prayed [sic] on his students giving them illegal drugs." (Compl. ¶ 34).

The plaintiffs also accused Smith of making false and defamatory statements in letters sent to the plaintiffs and their employees.

The Massachusetts state court issued a prelminary injunction in October 2006, prohibiting Smith from (1) making certain defamatory remarks concerning the plaintiffs; (2) contacting the plaintiffs; (3) contacting employees, customers, or affiliates of certain plaintiffs; and (4) coming within 25 feet of "the Stone House." The court specifically ordered Smith not to publish statements claiming that the plaintiffs hired "crooked lawyers" to further their development activities or that they "illegally acquired property, have illegally destroyed homes or property of others, have interfered with the property of others in retaliation for opposition to real estate development activities, and/or otherwise engaged in 'real estate crimes.'"

In March 2007, the court issued a further order expanding the scope of the injunction to prohibit Smith from (1) "publishing any statement accusing any of the Plaintiffs of illegal activity unless and until such illegal activity is actually found and adjudicated"; and (2) "soliciting others to violate the injunction."  In June 2008, the court deleted provisions of the injunction relating to contacting employees and making generalized allegations of criminal activity.

In August 2008, after a trial, a jury returned a verdict for several of the plaintiffs on the defamation count and for one plaintiff on the intentional infliction of emotional distress count, but the jury awarded no damages for these two counts.  (The jury awarded Katherine Hoffman Sen and Scott Kerr $900 for trespass on land, but this was unrelated to Smith's publishing activities.) 

After the jury verdict, the plaintiffs moved the court for entry of judgment, including a permanent injunction prohibiting Smith from making specified defamatory statements about them. In January 2009, the court ruled that it would issue an order enjoining Smith from "publishing the statements which, based upon the evidence, . . . have been the statement or statements the jury found to be defamatory of certain of the plaintiffs."