What is "actual malice"?
I'm late to this, but in case you didn't see Jim Braude's take on the Herald libel case, I want to call it to your attention now.
You can watch it on NECN's Web site in two parts. In part one, Braude interviews Howard Cooper, the lawyer for Superior Court Judge Ernest Murphy, who won a $2.1 million judgment against the Herald in 2005, an award that was upheld by the Supreme Judicial Court last week. In part two, Braude talks with pair of lawyers — Ed Ryan, former president of the Massachusetts Bar Association, who supports the verdict against the Herald, and Mary-Rose Papandrea, who teaches at Boston College Law School and who holds the opposite view.
Braude's interview with Cooper is admirably tough-minded. Watch it, then watch Papandrea. I just don't see how anyone can escape the conclusion that the Herald was negligent — maybe even grossly negligent — but that it did not commit "actual malice." Did Herald reporter Dave Wedge report something that he knew was false, or harbor serious doubts as to its truth or falsity? I still think the answer is no.
Plug/disclosure: I'll be on "NewsNight" tonight to talk with Braude about genetic discrimination.
Labels: First Amendment, Herald
posted by Dan Kennedy @ 10:25 AM
8 comments
8 Comments:
I can escape that conclusion because it is clear that Wedge lied, repeatedly. He fabricated salacious details in the original stories. He conveniently destroyed his notes, and forgot when he did it.
It seems that to you, "clear and convincing" evidence requires direct evidence, which, when it comes to someone's state of mind, is an impossibility. Circumstancial evidence will have to do, and there was plenty of evidence that Wedge was, and is, a liar.
It seems as if your stance on the matter is that the "actual malice" standard is that there can never be a libel of a public figure, because the standard cannot be met, ever.
If journalism is to continue to pretend to be a profession, there must be consequences for such a gross breach of professional standards that are greater than an essay by a J-scholl professor and a tisk tisking on "On the Media."
Nice to hear from the Murphys.
Dan - I've followed your comments on this blog, and on your Beat the Press appearance, and I have to agree with the comment by Anonymous above that your stance comes pretty close to "no public figure plaintiff can ever establish actual malice." But my comment here is directed more at what I perceive to be the real divide between supporters and detractors of the SJC decision. It's pretty clear that if you had been sitting as a juror, you would have found that Judge Murphy failed to prove actual malice, as that phrase is defined in the law. It may be the case (but, in my opinion, more likely not) that one or more of the members of the unanimous SJC would have done the same. But that is not the court's job sitting as an appellate court. It's the jury's job to make that decision. The SJC's job is to make sure (even more sure than in the run of the mill civil litigation) that there was sufficient evidence introduced at the trial that a jury (honest to the oath they take) could have reached that decision on the basis of the evidence. As Justice Greaney was careful to point out, an appellate court does not have the benefit of observing witnesses as they testify -- observations that aid us in evaluating the credibility of a witness's testimony. (Think of my son's nervous eye-blinking as he insists that he did not eat the chocolate brownie intended as a Mother's Day treat for my wife.) That's why reading a cold transcript will never be a perfect substitute for sitting in the courtroom, as close to the witnesses as the jury and judge are. One might say that this is one reason why the right to a trial by jury has been around at least as long (and most would say approximately 550 years longer) than the First Amendment. So the real question is not whether you (or any of the many other commentators) would have reached the same conclusion as the jury did, but whether a reasonable juror could have reached the conclusion it did on the basis of the evidence presented at the trial. And on that score, I'm afraid you go too easy on Wedge, the Herald's editors (if any can be said to have done anything with respect to Wedge's reporting), and Herald's publisher. If Wedge's reaction upon first hearing the allegation was that the statement was "outrageous," and if he never spoke to anyone actually in the room other than Crowley, and if he never spoke to Crowley until the day after the first article appeared in print, and if Purcell knew that running the story would create a "media frenzy," and if Wedge had previously acknowledged that another aspect of his reporting -- the confrontational conference -- could have been fabricated, then can you really say that the jury could not have concluded as they did?
By the way, in an earlier post, "The Herald Wasn't Alone," you may have (intentionally or unintentionally, I'm not sure which) highlighted the difference between the Globe and Herald coverage of the Judge Murphy controversy. As you point out, the Globe editorialized, "According to prosecutors, Murphy stated that the victim should "get over it" — as if rape were somehow one of the bumps on the road of life." The difference being between reporting an accusation made by prosecutors (Globe version) and reporting a fact known to all participants in the lobby conference (Herald version). The former was the truth (prosecutors in Bristol County made that accusation to anyone who who would listen), while the latter was false. Given all of the evidence as outlined in the SJC opinion, I cannot fault a juror who, having the benefit of observing Wedge during the course of the trial, concluded that it was intentionally false.
Anon 3:43: Thank you for your very well-thought-out post. Yes, I do come close to believing that public officials should not be able to sue for libel. (Close, but not quite.) They have access to the media in ways that private figures do not, and if someone says something about them that is false and defamatory, they can fight back in the court of public opinion. Had Judge Murphy done that, he would have been far better off with respect to his reputation.
I will quibble with you on one point. Both the Herald and the Globe reported having gotten Murphy's alleged "get over it" quote from anonymous sources in the prosecutor's office. If the Herald is wrong, then so is the Globe.
By the way, one aspect I found especially interesting is that Howard Cooper, in his NECN interview, stated as a matter of course that the Globe got the "get over it" quote from the Herald. The Globe editorial says nothing of the kind. I assume that Cooper checked with the Globe and was told the paper simply picked it up from the Herald.
Now, the Globe, in reading the Herald's coverage, could see that the Herald relied solely on sources in the prosecutor's office and did not obtain a comment from Murphy. It seems to me that the Globe acted negligently in doing that. Of course, that's not actual malice. But, then, I don't think the Herald committed actual malice, either.
Um, let me weigh in here.
As far as I'm concerned, the damages that were awarded were ridiculously high. If the judge wanted to be vindicated, a finding of liability, with a nominal damage award (US$1) would be sufficient. It wasn't as if his having been libeled would have injured his earning ability. He would have remained a state court judge, and he would have continued to earn what he had been earning previously.
So, what were his real damages?
--raj
Surely a wanton disregard for the facts distorted the record.
As far as damages, who is pure enough to place proper value on another's reputation?
Raj, you must not be a MA native. Things are often not what they appear to be around here. This was never anything but another example of a "public servant" flexing his muscles.
Raj, you must not be a MA native.
No, I was raised in a conservative state--Ohio--in the 1950s, 1960s and the early 1970s. But you seriously do not believe that politics are different in MA than elsewhere, do you? I was in university (Ohio State) when Kent State occurred. The governor James Rhodes, totally corrupt, was lauded for what happened there, and was re-elected two more times thereafter.
--raj
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