Tag Archives: Gloria Fox

The takeaway from the Herald libel verdict

PyleBy Jeffrey J. Pyle

What should we take away from Wednesday’s $563,000 jury verdict against the Boston Herald? As a lawyer who represents newspapers, magazines and broadcasters, I have a few thoughts.

Much of the attention on the case has focused on the provocative words “sexual acts.” That’s how the Herald described what happened between Marinova and her then-boyfriend, inmate Darrell Jones, in the visitor’s room of the Old Colony Prison in Bridgewater in November 2008. The Herald relied on a prison disciplinary report, but failed to mention that the report alleged only that Jones had kissed Marinova and touched her knee. Marinova’s lawyers argued that “sexual acts” means sexual intercourse, and thus the “gist” of the article was false and defamatory. The jury apparently agreed.

But if the only problem with this story had been the explosive description of the conduct as “sexual acts,” this case probably would never have made it to a jury. That is because the prison disciplinary report did, in fact, charge Jones with engaging in “sexual acts” with Marinova. The Herald put quotes around those words and cited the disciplinary report. So why wasn’t the Herald protected under the fair report privilege?

The fair report privilege, of course, is the age-old legal protection that allows the media to report on official proceedings without being held liable for fairly and accurately describing them. It’s an exception to the rule that a “republisher” of a libel (the press) is just as guilty as the original publisher (the false accuser). However, the privilege only applies to official government proceedings or statements, and any description of a proceeding must be fair and accurate.

The Supreme Judicial Court applied this rule in Howell v. Enterprise Publishing Co., where a public employee was fired for having inappropriately explicit images on his work computer. He sued the Enterprise for describing the images as “pornography” and “porn” — words he said were so exaggerated as to be inaccurate. However, a formal charging document against Howell described the images as “photographs and cartoon-style pictures of a pornographic nature.”

The court held that “[w]hether the images were pornographic or not,” the fair report privilege applied because “it was not substantially inaccurate or unfair” of the Enterprise “to report that the official accusation leveled against Howell was that the images were ‘pornographic.’” In other words, even if a reasonable person wouldn’t have considered the images “pornography,” the fair report privilege allowed the Enterprise to report that the town had charged him with possessing “pornography,” and thus the report wasn’t unfair or inaccurate.

By contrast, in Marinova, the jury heard a litany of ways in which the Herald failed to fairly and accurately describe the prison disciplinary report beyond the mere use of the words “sexual acts.” The article said that Jones was “cited” for “sexual acts” with Marinova, but failed to mention that a hearing officer had dismissed the charge, finding that the conduct did not, in fact, constitute “sexual acts.” A report is not fair, the SJC has ruled, if it is “edited and deleted as to misrepresent the proceeding and thus be misleading.” Second, the article suggested that Marinova herself had been “bagged” and “written up” for the acts. She was never charged with anything. In that sense, Marinova had a good argument that the report was inaccurate — that it did not convey a “substantially correct account of the proceedings,” in the SJC’s words. Third, the article said that Rep. Gloria Fox was under scrutiny for “sneaking” Marinova into the prison, even though Marinova, according to her lawyers, had been cleared to visit the prison just two days earlier. The jury found all these statements to be false and defamatory, and rejected the Herald’s argument that its article fairly and accurately described the disciplinary report.

The takeaway for journalists is pretty clear: when you’re reporting on official documents or proceedings, feel free to quote even their most salacious allegations. But, don’t ignore important elements of those proceedings, like a dismissal, or the fact that only one and not two people were charged. When you do, and the article hurts someone’s reputation, it’s easy for even a public figure to win a libel suit. The jury here found not only that the Herald’s reporter was negligent, but that she published the statements with knowledge of their falsity or with reckless disregard for the truth.

Jeffrey J. Pyle is a partner at the Boston law firm of Prince Lobel Tye and a trial lawyer specializing in First Amendment and media law.

Another perspective on the Herald libel suit

Here’s an interesting perspective on the Boston Herald libel suit. In July 2009, the Jamaica Plain Gazette reported that inmates were claiming that prison officials were cracking down on their efforts to reach out to young people as part of an anti-crime initiative. The article includes this:

Recent articles in the Boston Herald that claimed state Rep. Gloria Fox sneaked a woman into prison for illicit visits were incorrect, several sources told the Gazette, confirming a press statement issued by Fox. In fact, Fox also was responding to complaints about retaliation against prisoners, and the false tips that led to the Herald’s articles were part of that payback, according to Hudson and other sources.

“Hudson” is a reference to a prisoner named Mac Hudson. The Gazette story also quoted Steven Kenneway, head of the guards union, as denying that any retaliation had taken place.

The libel suit was brought by Joanna Marinova, an activist who, according to the Herald, was caught engaging in “sexual acts” with an inmate during a visit to the Old Colony Correctional Center in Bridgewater. On Wednesday, a Superior Court jury ruled that the Herald’s story, written by Jessica Van Sack, was false and awarded Marinova about $563,000.

The Herald maintains that its reporting was correct and, in this story, says “it will continue to defend its article and reporter Jessica Van Sack going forward.”

Libel suit against Herald will proceed

Judge Raymond Brassard

A Superior Court judge recently refused to throw out a libel suit brought against the Boston Herald by a woman who claims the paper defamed her by falsely reporting she’d had sex with an inmate during a visit to the Old Colony Correctional Center in Bridgewater. The suit was filed in 2010, and I posted some background on the case at that time.

The plaintiff, Joanna Marinova, accompanied state Rep. Gloria Fox, D-Boston, on a visit to the prison in May 2009. The Herald published a front-page story on May 28 of that year by reporter Jessica Van Sack saying that Fox had snuck Marinova in to see her boyfriend, a convicted murderer named Darrell Jones, and that Marinova had been “previously bagged for engaging in ‘sexual acts’ with the killer con.”

Marinova says the story is false. According to prison records introduced as part of the lawsuit, Jones had been disciplined for kissing Marinova and rubbing her leg, but there was no suggestion the two had had sex.

According to a story in the current Massachusetts Lawyers Weekly (sub. req.), the Herald’s lawyer, Elizabeth Ritvo, argued that the case should be dismissed because Marinova’s contention that the Herald had claimed she and Jones had sex was “a strange and tortured interpretation” of what the paper actually published.

But Judge Raymond Brassard disagreed, saying “it seems to me that not only a reasonable reader, but virtually any reader, even a First Amendment lawyer would read that and think this person was involved in some sort of sexual intercourse with this man at the prison. I don’t know how a reasonable person could think otherwise.”

Marinova’s lawyer is David Rich, who was part of the legal team that successfully sued the Herald on behalf of former judge Ernest Murphy several years ago. In an unrelated action, Tom Scholz, leader of the band Boston, is suing the Herald for libel over accusations that were made following the suicide of lead singer Brad Delp.

Marinova had also sued WHDH-TV (Channel 7), which broadcast a story similar to the Herald’s. Lawyers Weekly reports that the two sides have apparently reached a settlement.

The hearing that led Judge Brassard not to grant the Herald’s motion for summary judgment was held on Sept. 22. I have posted the document here.

Libel suit filed over Gloria Fox’s prison visit

Rep. Gloria Fox

The Boston Herald has been hit with a libel suit for the second time this year. The Boston Globe’s David Abel reports that the plaintiff is Joanna Marinova, who accompanied state Rep. Gloria Fox, D-Boston, to the Old Colony Correctional Center in Bridgewater last year.

The Herald published a front-page story on May 28 by Jessica Van Sack claiming Fox had snuck Marinova in to see her boyfriend, a convicted murderer named Darrell Jones, and that Marinova had been “previously bagged for engaging in ‘sexual acts’ with the killer con.” The Herald cited “two prison sources,” both anonymous.

Marinova sued the Herald and WHDH-TV (Channel 7), which also ran the story, saying through her lawyer, David Rich, that the news organizations “blatantly ignored readily available facts that would have demonstrated the falsity of these assertions.”

According to Abel, the Herald declined to respond and no one at Channel 7 would return his calls.

As with a libel suit recently brought against the Herald by Tom Scholz of the band Boston, it makes sense to wait and see what’s in the Herald’s and Channel 7′s official response. In this case, though, Adam Reilly did some reporting last year for the Boston Phoenix that cast considerable doubt on (1) the Herald’s claim that Fox had falsely portrayed Marinova as her aide and (2) that Marinova and Jones had engaged in illicit sex during a prison visit.

Reilly, now a producer with “Greater Boston” on WGBH-TV (Channel 2), noted that Marinova had told the Globe that the so-called sexual contact for which Jones had been punished consisted of Jones touching her knee during a visit. And Reilly pointed to other sources, including Jones’ blog and an official report, that tend to support that version of events.

If the Herald’s and Channel 7′s reporting was wrong, that doesn’t necessarily mean they committed libel. Even though it is Marinova who’s suing, it’s Fox’s involvement that made this a newsworthy story. A judge could rule that because Fox is a public official, Marinova must prove that the Herald and Channel 7 either knew their reporting was wrong or strongly suspected it, yet went ahead anyway — a legal standard known as “reckless disregard for the truth.”

On the other hand, a judge could rule that because Marinova herself is a private person, then she need only prove that the defendants acted negligently.

Looking down the road, I would imagine that Marinova will try to force the defendants to reveal their confidential sources as well.

Needless to say, this will be a very interesting case to watch.