One does not need to be too close to me to know my opinion about defamation actions. Most of these cases are frivolous, unfounded, and the result of a plaintiff abusing the legal system (and a lawyer ignoring his professional responsibilities).
Some free speech absolutists go even further than I do and advocate the complete abolition of the torts of libel and slander as being inconsistent with the First Amendment, no matter how well founded the case may be.
“The First Amendment is clear about robust protection of freedom of expression,” said [First Amendment attorney] Jon Katz. “I do not see any way the First Amendment can go uninjured if libel and defamation suits are allowed. “Fortunately, the courts have set high hurdles.”
This is probably the only legal issue that Katz and I would quibble over. I do agree that the First Amendment may very well prohibit libel suits by public officials or public figures. However, I also believe that when a private citizen is defamed, and that defamation causes real, articulable, and demonstrable damage, perhaps the case could be meritorious.
An interesting case straddles this line. In 2000, Charles Grapski successfully sued Florida Blue Key and John McGovern over fliers that falsely stated that Grapski had been arrested for child molestation, public exposure and lewd and lascivious conduct. However, Grapski was a candidate for Student Body President at the University of Florida. Sure, it’s not the U.S. Senate, but SB President is a pretty public position in Gainesville. Nevertheless, I don’t feel that this case was brought in bad faith, nor do I see it as damaging to the values that the First Amendment protects.
I am aware of painfully few defamation actions that rise to that level.
I have to say though, Murphy v. Boston Herald is another rare defamation action that seems to be justified — at least if you read the scathing facts that the Supreme Judicial Court included in its opinion. I said “justified.” I did not say “constitutional.”
In that case, the Massachusetts Supreme Court upheld a $2.1 million jury verdict against the Boston Herald for reckless reporting of a judge’s demeanor and handling of several cases. The essential facts of this case include the Herald’s reporting, and Reporter Dave Wedge’s repetition thereof on The O’Reilly Factor, that Judge Murphy had said of a rape victim:
She can’t go through life as a victim. She’s [fourteen]. She got raped. Tell her to get over it.
Inflammatory, no doubt. It caused a national media frenzy.
The jury found that Judge Murphy not only never said those words, but that he had likely said something completely contrary — that Judge Murphy actually said that the rape victim should be in counseling to help her cope with the crime, and that she needed help to “put the matter behind her and get on with her life.”
That’s a far cry from what the Herald reported, but it is what the Supreme Judicial Court believed that prosecutor David Crowley said.
The outcome of the case hinged on the Court’s version of the conduct and credibility of Herald reporter David Wedge.
“The press… is not free to publish false information about anyone (even a judge whose sentencing decisions have incurred the wrath of the local district attorney), intending that it will cause a public furor, while knowing, or in reckless disregard of, its falsity.”
The jury found that Wedge had not only likely fabricated the statement, but that he had fabricated a scene in which a tearful rape victim recounted her experience, and Judge Murphy had reacted with the extreme dismissiveness and heartlessness discussed above. The Mass. Supreme Court agreed, and found that not only had Wedge and the Herald entertained doubts as to the veracity of the statements, but that Wedge appeared to purposely avoid interviewing anyone who might have contradicted the version of the facts that he reported.
This testimony suggests, decisively, that Wedge possessed either a brazen disregard for the actual truth or a deliberate intent to give credence to a controversial story that he knew (at the time) to be false. We have no hesitation in agreeing with the jury that Wedge’s comments on “The O’Reilly Factor” were made with actual malice.
Of course, it doesn’t help that the jury found that the BS detector was beeping constantly during Wedge’s testimony.
Neither Wedge, nor any other Herald employee who testified at trial, could name one person at the Herald who either edited, or checked for accuracy of, the content of Wedge’s articles. It is fair to say that, by the end of Wedge’s testimony, his credibility on any material factual point at issue was in tatters.
And finally, the Supreme Judicial Court held:
The jury’s verdict in this case reflects their conclusion that Wedge and the Herald defamed the plaintiff, and that they did so with actual malice and an awareness that they were enabling a campaign by the district attorney for the Bristol district to discredit the plaintiff by attacking the core attributes a judge must possess — even temperament, lack of any bias, fairness at all times, and a particular sensitivity to the plight of victims of crimes. See note 9, supra. The statements in the Herald are not the type of “erroneous” statements recognized by the Supreme Court to be “inevitable in free debate, and that . . . must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’” New York Times Co. v. Sullivan, 376 U.S. 254, 271-272 (1964), quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963).
I am very uncomfortable with defamation actions in general, since I do believe that they are in tension with the First Amendment.
I add that discomfort to an even greater level of discomfort that comes from a public figure or a public official prevailing in a defamation action. Nevertheless, if the Court’s findings are correct and it the reporter made false statements of fact, seriously entertained (or should have entertained) doubts about their veracity, and purposely avoided anyone who might have contradicted his dramatized version of the facts, then that may create a problem. The Court also found that the reporter made wildly inconsistent statements, destroyed evidence, and all around failed to adhere to basic principles of responsible journalism. Tough charges, indeed, which (if true) would tend to support the verdict.
This case seems to be a victim of some serious bad facts. Had the statements been true, the Plaintiff would not have prevailed. Had the statements been false, but the Court believed that the reporter turned over a single stone to figure that out, the Plaintiff still wouldn’t have prevailed. Had the story simply been opinion, hyperbole, or an editorial, the Herald would have prevailed. However, the Court held that falsely attributing this statement to the plaintiff, and the ensuing media frenzy that the defendant did nothing to quell, along with apparent “willful blindness” toward the truth, stepped over that fine and well-protected line into actionable defamation.
Of course, it is never that easy.
I did a little “Monday Morning Quarterbacking” and it seems like my beloved Supreme Judicial Court might have stretched the Actual Malice issue a little bit.
The first thing to note is what I stated above — that I can’t think of another recent case where the New York Times v. Sullivan standard was met.
The second thing to note is that this decision can be described as nothing short of scathing. In fact, it was brutal, and if the facts that are reported in the decision are correct, that brutality would be well deserved.
There is always another side to the story:
The defendant filed a motion for reconsideration on May 21, 2007 stating inter alia.
The ruling presents Crowley’s testimony as if Crowley viewed the statement about the young rape victim as warm and considerate.
According to the Motion for Reconsideration, Crowley seemed to testify that perhaps Judge Murphy wasn’t as sensitive as the Supreme Judicial Court thought.
Yes, in the sense that even if the sentiment was you can’t go through life as victim, and those are words I agree with, to say ‘get over it,’ I took that to be insensitive, said Crowley.
The gist of the Motion for Reconsideration is, however, this compelling paragraph:
The Court plainly believes that Judge Murphy did not make the insensitve remark attributed to him. We will never know. But the Court can hardly ignore that three prosecutors say that he said it. The Herald is paying, literally, for not disbelieving its sources, even when multiple reports in other newspapers questioning Murphy’s judicial temperament and verbal recklessness gave the reporter every reason to trust the prosecutors. Far from making the claims implausible, the historical context of the prior reporting on the Judge and his post-trial letters to the Herald publisher – both parts of the record the Ruling simply ignores – makes the allegations not “outrageous” but unusually credible. The Court may feel there is “another side” to “every story” involving criticism of a judge, but it is well-established that “reporters do not commit a libel . . . by publishing unfair one-sided attacks . . . The fact that a commentary is one sided and sets forth categorical accusations has no tendency to prove that the publisher believed it to be false.” (Motion for reconsideration at 9).
This sharply contradicts what the Supreme Judicial Court believed.
So, what are the implications of this decision?
The Herald shells out a big chunk of change, and David Wedge gets a black mark on his reputation.
But what are the broader implications of this decision? For now, I think we need to accept that the case is resolved. I doubt that a unanimous SJC is going to reverse itself, and I doubt that this case will be granted certiorari.
The Newburyport Daily News published an editorial that takes a very gloomy look at the ruling.
The Daily News correctly states that the Herald trusted the prosecutors who served as sources for the story, and that reliance was reasonable. The Daily News also states:
But the SJC would have you believe the Herald had reason to seriously doubt the accuracy of the story after it was published because a lawyer for the judge said he didn’t say what the paper had published, and the Boston Globe carried a story with Murphy’s direct denial.
Still, the district attorney didn’t back down. The Herald had ground for standing firm and continuing to believe the prosecutor’s office got it right even if the judge insisted otherwise. Furthermore, the reporter approached the judge directly at one point, and Murphy refused to talk with him. Shouldn’t that count for something in assessing the paper’s effort to get at the truth?
Apparently not. The SJC made much of collateral errors in the several stories the Herald published about Murphy and his conduct as a judge. But the central item was the “Tell her to get over it” quote that Murphy contends he never uttered and which triggered the national media attention.
As a final thought, the court said its ruling should not deter the press from reporting critically about judges or the judicial system. Yet that’s exactly what may well happen.
Given the thunderclap of the Murphy case, and the cost of the libel judgment, you can expect fewer local papers to risk challenging a bad judge. That hardly serves the public interest in a state where judges are appointed for life and not accountable to voters.
I will agree that if the Motion for Reconsideration is not a complete fabrication, that this case may have been decided wrongly. Nevertheless, it appears that if reporters in Massachusetts take the following steps, they will either stay out of trouble, or any action against them won’t be able to rely upon Murphy v. Boston Herald.
- If a story seems to be scathing, ask a few sources about it. If someone has a contradictory version of the facts, at least mention it.
- Have a policy for when you discard your notes. The longer the time period, the better. But, when a reporter is called to a deposition, he should be able to say “I destroyed my notes on this day, as is consistent with my policy.”
- Don’t let your lawyers talk you into skipping the intermediate appellate court. If you do that, the only option you have is to petition the Supreme Court — good luck with that.
Would those steps, if followed, have turned this case around? I’m not sure. Nevertheless, had they been, the SJC would have needed to employ different logic in order to arrive at the same result.
Criticism of the Decision
After reading Justice Black’s dissent Ginsburg v. Goldwater, 396 U.S. 1049 (1970) (where he quoted his concurrence in Rosenblatt v. Baer, 383 U.S. 75, 95 (1966)), I have to say that I am in the Katz/Daily News camp. This decision was wrong, and the claim should have been barred by the First Amendment.
This case illustrates I think what a short and inadequate step this Court took in the New York Times case to guard free press and free speech against the grave dangers to the press and the public created by libel actions. Half-million-dollar judgments for libel damages like those awarded against the New York Times will not be stopped by requirements that ‘malice’ be found, however that term is defined. Such a requirement is little protection against high emotions and deep prejudices which frequently pervade local communities where libel suits are tried. And this Court cannot and should not limit its protection against such press-destroying judgments by reviewing the evidence, findings, and court rulings only on a case-by-case basis. the only sure way to protect speech and press against these threats is to recognize that libel laws are abridgments of speech and press and therefore are barred in both federal and state courts by the First and Fourteenth Amendments. I repeat what I said in the New York Times case that ‘An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.”
It may be a dissent citing a concurrence, but who am I to argue with Justice Black?
Even if we do not accept that this type of libel case is inconsistent with the First Amendment, what of the neutral reportage doctrine?
At stake in this case is a fundamental principle. When a responsible, prominent organization … makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter’s private views regarding their validity. Edwards v. National Audubon Soc., 556 F.2d 113, 120 (2d Cir. 1977) (citing Time, Inc. v. Pape, 401 U.S. 279, 28 L. Ed. 2d 45, 91 S. Ct. 633 (1971); Medina v. Time, Inc., 439 F.2d 1129 (1st Cir. 1971))
Is the Herald a “responsible, prominent organization?” Some might argue that it is not, given its tabloid status. However, the Herald is hardly The Weekly World News. The Herald is well-known, prominent, and a responsible newspaper. It may be prone to sensationalism, and it may also appeal to a less refined audience than the New York Times, but it is still a true and honest member of the New England press, and frequently breaks stories of major public importance. Therefore, there seems to be strong authority that runs against the grain of the SJC’s decision.
What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.
Edwards v. National Audubon Soc., 556 F.2d 113, 120 (2d Cir. 1977) (citations omitted).
How does this reasoning not fit into the facts of this case? I admit that a 2d Circuit decision is not binding upon the SJC, but I have always taken pride in the fact that Massachusetts is more speech tolerant than most other states. Is the SJC retreating from that position? It appears so. In this case, the statements were attributed to a prosecutor. That prosecutor is a member of the bar, and a person in whom we place great public trust. Who could David Wedge have relied upon if not this source? The judge wouldn’t talk to him. What was Wedge to infer from that? If I were the reporter, I would have inferred that the judge had something to hide.
The contours of the press’s right of neutral reportage are, of course, defined by the principle that gives life to it. Literal accuracy is not a prerequisite: if we are to enjoy the blessings of a robust and unintimidated press, we must provide immunity from defamation suits where the journalist believes, reasonably and in good faith, that his report accurately conveys the charges made. Edwards v. National Audubon Soc., 556 F.2d 113, 120 (2d Cir. 1977) (citations omitted) (citing Time, Inc. v. Pape, supra).
At this point, as said by the Newburyport paper, the media in Massachusetts will be more wary of serving as a check on judicial abuses. Perhaps Murphy never said these horrible things, but David Wedge believed reasonably, and in good faith, that his reporting was accurate. That should be the end of the road.
That is not to say that I espouse zero responsibility, nor does the authority I cite. Had Wedge deliberately distorted the statements, been making a personal attack, he would have properly been held responsible for the underlying statements. Nevertheless, in this case, I can’t see where the jury found that, nor where the SJC found that.
What is certain is that neutral reportage is wounded in Massachusetts. If the Herald and Mr. Wedge do not appeal, Massachusetts may find itself to be a neutral reportage-free zone.
That would be bad.
Resources for further research:
- Murphy v. Boston Herald.
- General info on Massachusetts defamation law.
- Massachusetts Bar Association web page on libel.
- Related Group v. Stranahan House Update
- Slapp Happy? Related Group v. Stranahan House.
- Veranda Partners v. Giles
- Massachusetts Rule of Appellate Procedure 11. Murphy v. Boston Herald went directly from the trial court to appellate review before the Supreme Judicial Court without a stop before the Massachusetts Court of Appeals.
- New York Times v. Sullivan
- Article: Reining in the Neutral Reportage Privilege
Updated May 29, 2007