Rehnquist’s long reach

If William Koch sues the Boston Globe and its columnist Alex Beam for libel, the outcome will depend in large measure on a decision written in 1990 by the late Supreme Court Chief Justice William Rehnquist.
Koch, a wealthy businessman, yachtsman and art lover whose collection is the subject of a coolly received exhibit at the Museum of Fine Arts, is angry over an Aug. 9 Beam column that pores over some less savory aspects of Koch’s past. Among them: an accusation – later dropped – that he had threatened his family with physical violence, and that, in Beam’s telling at least, Koch once got caught up in some dicey business practices with respect to an impenetrably complicated transaction regarding Turkish coins. (Koch appears to have been an unwitting player.) The Boston Phoenix’s Mark Jurkowitz has all the details in this piece, which will be coming out in tomorrow’s print edition, and a follow-up blog entry.

Assuming that Koch actually sues, one of the Globe’s principal defenses no doubt will be that Beam, as a columnist, was merely expressing his opinion, and that opinion is constitutionally protected speech under the First Amendment. But is that really the case? Well, yes and no. In Milkovich v. Lorain Journal, the Supreme Court essentially wrote into law the old dictum that while you’re entitled to your own opinion, you are not entitled to your own facts.

The case involved a high-school wrestling coach who was accused by a sports columnist of lying at a judicial proceeding about an altercation in which the coach’s team had been involved. Rehnquist, writing for the 7-2 majority, held that the columnist’s assertion was not merely his opinion, but was a verifiable statement of fact – and that, therefore, Milkovich, the coach, could proceed in the lower courts with a suit claiming that the column was false and defamatory. The decision continues:

REHNQUIST: If a speaker says, “In my opinion John Jones is a liar,” he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, “In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, “Jones is a liar.”

In no way am I going to try to parse what Beam wrote. I will make one observation about the most explosive section in Beam’s column: his noting that Koch was once accused by his wife (now his ex-wife) of threatening violence against his family. Consider this:

BEAM: Lawyers again rushed to Koch’s rescue in 2000, when he was arrested at his luxurious Osterville mansion for threatening “to beat his whole family to death with his belt,” according to Barnstable Deputy Police Chief Michael Martin. Four months later Koch’s soon-to-be ex-wife Angela dropped her lawsuit against him, and the criminal charges also disappeared. Angela Koch’s divorce lawyer told the Globe that the case ended as part of a divorce settlement in which his client got “substantially more” than the $5 million she was due under a prenuptial agreement – an assertion denied by Koch’s spokesman at the time.

Jurkowitz quotes a letter to the Globe written by Koch’s lawyer, Howard Cooper, who pointed out that Koch’s ex-wife “recanted allegations that Koch had threatened to kill her and his son with a belt.” Well, yes. And the Globe’s lawyers will no doubt note that Beam reported that. The issue, then, is whether Beam libeled Koch by couching it so as to make it appear that Koch really did threaten his family despite the fact that the charges were dropped. Arguing that distinction will earn lawyers many, many thousands of dollars if this ever goes to court.

Will Koch really sue? The fact that his complaint has become public suggests that he and Cooper would rather force a settlement. But as Jurkowitz writes, Cooper, against all odds, took the Boston Herald to court last winter on behalf of state Superior Court Judge Ernest Murphy, who claimed the Herald had libeled him by falsely portraying him as “heartless” judge who had “demeaned” victims. Cooper won $2.1 million on Murphy’s behalf, an outcome that surely made an impression on Koch when he started searching for a lawyer.

My one not-very-courageous prediction: This case is going to be with us for quite a while to come.

Follow-up: I’m told that Jurkowitz’s Phoenix piece will not run in tomorrow’s print edition – it’s a Web exclusive. And I thought I knew how things worked over there. Also, I’ve tweaked my description of Beam’s column with respect to the Turkish coins; as best as I can tell, Koch’s role appears to have been an unwitting one, and I don’t want to imply otherwise.