By Dan Kennedy • The press, politics, technology, culture and other passions

Blogging the Murphy case

Despite my determination not to get sucked into blogland this week, things keep coming up. This morning I listened to a voice-mail left last week (sorry) by someone who didn’t identify himself, but who sounded as though he is a lawyer. He seemed to be quite familiar with Superior Court Judge Ernest Murphy’s libel case against the Boston Herald, and was contemptuous of my commentary about it.

I didn’t save his message, so no direct quotes. But I do want to consider his two main arguments:

1. Anyone who has done his homework would know that the reason Murphy asked Herald publisher Pat Purcell for $3.26 million rather than the $2.1 million a jury awarded him was because Murphy was figuring in interest.

There is a simple answer to this: No. Not true.

To review, on Feb. 19, immediately after the verdict, the Boston Globe quoted David Rich, one of Murphy’s lawyers, as saying that the award amounted to $2.7 million with the interest that had accumulated since the suit’s filing three years earlier. One day later, Murphy sent a letter to Purcell seeking $3.26 million as the price for ending the case.

Nor has Murphy’s lead counsel, Howard Cooper, explained the mark-up in a convincing manner. Last week, Mark Jurkowitz of the Boston Phoenix covered a news conference at which Cooper said the $2.7 million has grown to $2.95 million, as the 12 percent interest clock keeps ticking away. That makes sense. So what’s up with the $3.26 million? Jurkowitz wrote: “He [Cooper] claimed the judge’s dollar figure ‘could be seen to represent a hypothetical discount from the Herald’s worst case scenario,’ in which the paper could end up owing more.”

Huh? If Purcell had paid Murphy $2.7 million right after the trial ended, wouldn’t that have been the end of it? The “worst case scenario,” after all, involves several years of presumably fruitless appeals, mounting interest costs and huge legal fees, above and beyond what Purcell had already paid. None of those factors would have been in play last February. So we still don’t know what the answer is. Note: I’m not saying there isn’t a good answer — that would be going beyond the facts (see point #2, below). I’m just saying the $3.26 million hasn’t been adequately explained.

By the way, I’ve seen commentators — including at least one newspaper columnist — who haven’t even grasped the elementary point that interest costs have long since rendered the $2.1 million figure irrelevant. So this is hardly a shortcoming of blogs per se. (And in the case of Media Nation, not a shortcoming at all.) Which brings me to my caller’s next point.

2. It’s irresponsible for a blogger to write without doing any reporting. The lesson of the Herald case is that you have an obligation to report before you start typing.

Ah, the central dilemma of every blogger, or at least every one who takes his journalistic obligations seriously. Quite frankly, this is something with which I wrestle all the time. Most items on Media Nation, as well as across blogland, are unreported in the traditional sense — that is, I’m not picking up the phone and interviewing sources.

But that’s not what most blogs are. Rather, they consist of commentary on what other media are reporting. Is that a lower order of journalism than what you read in a good newspaper every day? Yes, of course. But it has value to the extent that a blogger can make sense out of the news in ways that you might not have thought about before.

A key to responsible blogging, I think, is disciplining yourself not to go beyond what you find in your excursions across the mediascape. Thus, I see absolutely nothing wrong with noting that Murphy asked Purcell for some $500,000 more than the $2.7 million judgment-plus-interest; that the tone of his letters to Purcell was bullying; and that well-known media observer Alex Jones had said the letters called Murphy’s own judgment into question. None of this goes beyond what’s on the public record. On the other hand, ascribing motives to Murphy’s behavior would be out of bounds unless I had some special insight I had gleaned — insight I could only gain by interviewing people.

I’m also free to express my opinion. And it remains my opinion that the Herald’s journalism with regard to Murphy, though sloppy and sensationalistic, did not rise to the level of reckless disregard for the truth, which is the threshold a public official such as Murphy must meet in a libel case. It is also my opinion that Murphy should have taken the Herald on in the court of public opinion — Holmes’ “marketplace of ideas” — rather than trying to intimidate the news media into soft-pedaling its reporting on public officials lest they be hit with a multimillion-dollar libel judgment.

Murphy has every right to hold his reputation in high regard. I wish he had the same regard for the central purpose of the First Amendment, which is to encourage vigorous, contentious and even irresponsible discussion of public affairs.

My previous Murphy posts are online here, here, here and here.

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  1. Anonymous

    Right-O, Dan.Bottom line: Judge Murphy basically demanded, in a very jerky sort of way, $500,000 more than he was awarded. If it walks like extortion, and it talks like extortion…Real court: Murphy is a winner. (ultra cliche)Court of public opinion(ultra cliche): Murphy is a bigtime loser.

  2. Anonymous

    I don’t pretend to know the details, but I wonder of that $3.2 million figure may also include attorney fees.

  3. Dan Kennedy

    Anonymous 1:25 — Read Howard Cooper’s remarks again. He comes off as being at least mildly puzzled himself.

  4. Anonymous

    Just to bring your last few posts together, don’t you think this comment applies equally well to oped pages: “But that’s not what most blogs are. Rather, they consist of commentary on what other media are reporting. Is that a lower order of journalism than what you read in a good newspaper every day? Yes, of course. But it has value to the extent that a blogger can make sense out of the news in ways that you might not have thought about before.” Does that not sound exactly like what an oped page also does? By that standard, the Globe oped page and T. Kennedy can be forgiven for relating the Standard-Times story about the Mao book because it was from a then-reputable source and had not been corrected. By that standard also, Jeff Jacoby should be scolded because the Oreo story had been discredited long ago and was available for him to find.

  5. Dan Kennedy

    Anonymous 2:12 — Your timing is a bit off. I don’t think it was a huge deal that neither the Globe nor Ted Kennedy picked up on the possibility that the Mao Zedong story was a fake. But it’s nevertheless true that the story was under widespread assault at the time that it was given additional credence on the Globe op-ed page.

  6. Rick in Duxbury

    In much the same way that some people hate their political opponents more than they love their country, there are those who hate the Herald’s right-wing (or the Globe’s left-wing) slant more than they love the truth. A real shame; civil discourse is the loser.

  7. Anonymous

    What do you know about civil discourse, you idiot?Look back at your past posts and tell me if you care about it or the truth, you fraud.

  8. Amusedbutinformedobserver

    I don’t understand how Murphy was “trying to intimidate the news media into soft-pedaling its reporting on public officials” by alleging a civil wrong. If a libel case is utterly without merit, it should be thrown out on a motion for summary judgment or a motion for judgment on the pleadings including a motion to dismiss for failure to state a claim upon which relief can be granted. In fact, counts against two other individuals WERE thrown out. The Herald has set a very nice trap into which many in the media have fallen — there is no discussion of the merits of the appeal, only on reaction to a rare glimpse into real-life lawsuit settlement negotiations.Commentators are allowing themselves to be diverted by the Herald (and Regan??) into debate over the amount the judge asked for in settlement, falling for the Herald’s tactic of making Murphy the issue, rather than the doomed daily’s reporting — which a jury found to violate the standard for libeling a public official.Why hasn’t the Herald printed the text of its appeal, or even reported substantially on the grounds? Why haven’t bloggers, reporters and critics read the court papers, rather than simply allowing the Herald to set the agenda by basing all reporting on 10-month-old letters? We hear nothing about the essence of the case: What are the grounds for appeal? Does the Herald claim that there was not sufficient evidence for a reasonable jury to reach the verdict it did — and what is the basis for that claim? Do the defendants claim inadequate instructions by the judge — and what about the instructions was legally incorrect? I’m talking about the substantive appeal here, not the frivolous motion to vacate the jury verdict filed last week.Reporting on the post-verdict aspects of this story, in traditional and cyber media, has been horrid. Bloggers and traditional reporters dutifully debate the Herald’s agenda, and while continuing to miss the story.

  9. Dan Kennedy

    Amused but Informed — I have stated precisely why I believe the Herald appeal has merit. I refer you to my previous coverage, especially this article. Juries loathe the media, and it’s hardly a surprise that the Herald would be punished for its irresponsible journalism. But that doesn’t mean it fits the legal definition of libel. That’s why libel verdicts are often thrown out on appeal.As for the post-verdict reporting, you raise a good point. But why are you pointing the finger at unpaid bloggers? The Boston Globe, the Boston Business Journal, WBUR Radio and the Associated Press immediately come to mind as news organizations that could allow one of their paid reporters to spend a day or two at the courthouse poring over documents.That is, if there are any documents to see. I’m not sure the Herald has filed its formal appeal yet.

  10. Rick in Duxbury

    4:26: Thanks for the gutsy flame, Mr. Anonymous. Your tone pretty much proves my point.

  11. Anonymous

    Dan at 2:20: I’m sorry, I must have missed something. Didn’t you say in previous posts that there was “widespread speculation” that the Standard-Times’ reporting was wrong? Wasn’t that speculation from the blogs? Don’t blogs do no reporting, but only comment? Aren’t they not to be taken as reliable as journalism? You’re confusing me all over the place.

  12. Anonymous

    There is no “text of an appeal” to be reported on yet. All that’s happened so far is the filing of a one-page “notice of appeal.” The briefs explaining both sides’ positions will not be filed for months, so there are no “court papers” on the appeal being ignored by bloggers, journalists or anyone else.

  13. Dan Kennedy

    Anonymous 12:39 — That is such a distortion and willful misreading of what I’ve written that I can only hope Media Nation readers can see it for what it is. You’re not confused. You’re looking to start a flame war.

  14. Anonymous

    12:39,as DK has noted elsewhere, the Globe itself had doubts about the stroy’s accuracy when it published TK’s op-ed (which referred to The Communist Manifesto rather than The Little Red Book).The second-guessing that eminated from blogs were based on common-sense smell tests (which the Standard’s story hardly passed) and not reporting.

  15. Amused

    Thank you for pointing me to your post-verdict piece. It raises a plausible argument, but I still wish there was more context reported then and now about things like the judge’s instructions on applying the concept of actual malice to the evidence and about any questions the jury answered in its verdict.We may not have briefs to read, (I’m glad to be set straight on that, too) but certainly there is more in the Heralds motion to vacate the verdict than just some 10 month old letters. For starters maybe someone could explain just what legal ground the paper used for its Motion to Vacate. Was a memorandum of law or affidavits attached?

  16. Anonymous

    Dan,I certainly don’t intend a flamewar here and I have no aggressive intent at all. But this is the dichotomy you’re setting up:1. By the time the Globe printed the T. Kennedy oped piece, there was widespread speculation that the Standard-Times article was false. I think you’ll have to agree with me that the only source of that speculation was on blogs and that there was no reporting to that speculation, only speculation.2. The Oreo cookie episode, on the other hand, was verifiably false at the time Jacoby wrote his piece. By verifiably, I mean that the Baltimore Sun actually went out and talked to people who were at the speech.If this is a deliberate misreading, please tell me how. The next slight jump in logic is that the reliablity of the bloggers’ speculation is more like that of an oped page than that of actual reporting. That’s the end of my point. If this is the start of a flame war, then someone is a little sensitive to someone actually thinking about what you’ve been writing over several days.

  17. Anonymous

    i’m glad that “amused but informed observer” has finally removed the “but informed” from her ID line. She basically has no information — just animus toward the Herald (“doomed daily”), a profound ignorance of libel law or the facts of the Murphy case, and a strange, nagging need to spin the unspinnable on behalf of Murphy and Cooper.

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