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

Amici of the Herald

If the First Amendment means anything, it means that the media and citizens are free to report vigorously on — and to criticize — the actions of public officials in the course of performing their governmental duties.

And if the Supreme Court’s landmark 1964 libel decision, Times v. Sullivan, means anything, it means that public officials should not be able to sue successfully for journalism they don’t like unless they can show the news organization that published it knew it was false, or showed “reckless disregard” for whether it was true or false. This is known as the “actual malice” standard.

Which brings me to the appeal in the case of the Boston Herald and Superior Court Judge Ernest Murphy. Earlier this week the Herald reported on an amicus curiae (“friend of the court”) brief filed on its behalf by 13 news organizations concerned about the $2.1 million verdict Murphy won against the Herald in March 2005. I have posted a PDF of the brief here (warning: it’s four megabytes). The case is now before the state’s Supreme Judicial Court.

I’m not going to review the entire case today. For that, I would refer you to this February 2005 piece I wrote for the Boston Phoenix, and to this December 2005 Media Nation post on Murphy’s exceedingly odd letters to Herald publisher Pat Purcell.

Suffice it to say that though I believe the Herald’s characterization of Murphy as a “wrist-slapping” judge who “heartlessly demeaned” crime victims was irresponsible, I also believe it was substantially true, despite a few errors by reporter Dave Wedge. And given that Wedge’s source was a prosecutor within the Bristol County district attorney’s office, backed up by D.A. Paul Walsh, it strikes me as ludicrous to claim that the Herald went to press knowing or even suspecting that its story was false. Indeed, except for a few details, Wedge’s stories were not much different from accounts published in the Boston Globe and elsewhere around that time concerning the district attorney’s unhappiness with Murphy’s perceived leniency.

The amicus brief is signed by a virtual honor roll of news organizations and journalism associations, including the Washington Post, the Associated Press, the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, the Newspaper Association of America, the Massachusetts Newspaper Publishers Association, the New England Newspaper Association, Dow Jones, ABC and CBS.

And though the Boston Globe is not a signatory, it’s interesting that the lawyer for the 13 signers of the amicus brief is Jonathan Albano, who has represented the Globe on numerous occasions. [Note: This section has been corrected, as I originally mischaracterized Albano’s role. The Herald’s lawyers on the appeal are Bruce Sanford and Robert Dushman.]

Much of the brief concerns a matter that will be key to determining the Herald’s chances of success: an argument that the Supreme Judicial Court should not rely on the jury’s verdict in determining whether the Herald had committed actual malice, but should instead conduct its own independent fact-finding inquiry.

But there’s also a strong section in the brief on the Herald’s reliance on official sources, and on the self-censorship that would likely result if a libel verdict based on using such sources is allowed to stand. Here’s the relevant section:

In this case, much of the plaintiff’s actual malice argument is premised on attacking the Herald for relying on information provided by a District Attorney and members of his staff about the operation of the criminal justice system in cases prosecuted by their office. If accepted by the Court as clear and convincing evidence of actual malice, the precedent thereby established would have grave ramifications for future news reporting and would undoubtedly chill speech concerning governmental affairs.

The press routinely relies on District Attorneys — and other government officials — for information about the operation of the criminal justice system. This information often concerns the manner in which judges are discharging their public duties….

A finding of actual malice in this case, involving as it does news reports originating with a District Attorney’s Office, would mean that, in the future, the press could not rely on information about important government functions obtained from a public official who holds an office of public trust without risking without risking a multi-million dollar libel verdict.

As we all know, news organizations too often take handoffs from prosecutors and call them news. That’s hardly Pulitzer-caliber journalism, but it’s a depressing fact of media life.

But to hang a “libel” sign on such a dubious practice would be a grotesque overreaction that would harm not just the Herald, and not just the news media, but the public that depends on journalism to keep it informed about the actions of its government.

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  1. Anonymous

    I may be wrong here, but I thought the standard for libel was actual malice or ‘reckless disregard for the truth.’ That second part is what makes me take a very pitiless attitude toward the Herald here. They were publishing *hugely* inflammatory and controversial statements– which the reporter had heard second-hand. For something as damning as what the judge allegedly said (and apparently turned out not to have said at all), Wedge shouldn’t just have relied on hearsay; he should have had it on tape, with multiple copies, stored in locked drawers. Sloppy editing and sloppy reporting, pure and simple, where the Herald didn’t let facts and accuracy get in the way of a good headline.

  2. Z

    Dan,I agree with your assessment and conclusion. However, from what it appears and if I am not mistaken, the Globe went to print with a story that contained information directly from the prosecutor’s office. I agree with your conclusion because this was apparently done in good faith.However, what I find interesting is that the media, as you say, is there to report on the actions of government officials. This, to me, shows an inherent distrust of government officials. I am not saying that this inherent distrust is not justified. What I am getting at is, if there is an inherent distrust, why would a reporter blindly trust information provided by a government official without checking it out further for clarification?I am not saying that this lack of investigation in this matter is deserving of “prosecution” or a civil award, because, like I said, it seems that the information was acquired, trusted, and published in good faith (hence lacking actual malice). But, what I am saying that reporters should dig a little deeper when the information is provided by someone they inherently distrust.Bless,Z

  3. Dan Kennedy

    Anon 11:09: I have three responses for you:1. In subsequent court decisions, the Times v. Sullivan standard was refined to make it clear that “reckless disregard” meant the news org had to harbor a strong suspicion that what it was about to publish was false. You’re defining “reckless disregard” as gross negligence, but that’s not what it means.2. A news org ought to be able to report what one government official says about another — especially when it involves the performance of his official duties — without being successfully sued for libel.3. Before we get to “reckless disregard,” we at least have to establish that what the Herald reported about Murphy was false. In fact, to this day it appears that the Herald’s reporting was substantially true, which is the legal standard. If Wedge fouled up the “get over it quote,” it doesn’t matter if he got the “gist” of it right — which his source, then-prosecutor David Crowley, testified under oath that he did.

  4. Anonymous

    EB3 here,Dan can you link to the briefs by the Herald and Murphy’s lawyers.Those will detail the facts as presented at trial, with transcript annotations.That is needed to best analyze this. The is factbased, not law based. What did Wedge do? Exactly? The amicus brief doesn’t point to trial trstimony to support it’s comclusions and is requesting the SJC to act as the jury as opposed to applying the abuse of dicretion standard. That is legal procedure and not he other aspect of the case, which is based on the facts of the case. So, if poosible and if you have access, could you link to those two briefs?

  5. Dan Kennedy

    EB3: I do not have those documents. If someone were to send them to me, I would post them. (That’s a hint.) However, I would suggest that my Phoenix story gives a pretty good account of the facts, even though it was published before the trial was over. I think the real key is that Murphy’s side leaned heavily on the fact that Wedge misquoted Crowley on the “get over it” quote attributed to Murphy, yet Crowley himself said that Wedge got the gist of it despite the fact that it wasn’t entirely word for word.

  6. Anonymous

    It’s a minor, obvious point – my specialty – but someone needs to say it. The fact that the paper in question is a Rupert Murdoch tabloid hasn’t exactly helped otherwise level-headed people myself maintain the kind of objectivity that is necessary to fully grasp the broader implications of this case. Dan, I am once again in your debt.

  7. Anonymous

    EB3 again,Most respectfully Dan, to me that is huge. A judge administering tough law v. one who tells a rape victim to “get over it” are two very different things indeed. If that is all I have— the judge never said “get over it” and Wedge was never told the judge said “get over it” —- then that in my book is the malice Times v. Sullivan speaks. So, in defense of Wedge I would like to see the facts that came out in trial as reported by each party – with trial annotations.Becaue in my opinion, based on what i know from reading you, Wedge did a pretty shitty thing by assigning that quote to the Judge when no person, including the ada source, attributed those words to him. So what exactly were the words attributed to him and who was present when they were said? Those facts came out in the trial and they are reported in the briefs (public information) submitted by each party.That is what I, as a reader, would like to know.

  8. Dan Kennedy

    EB3: I really think you need to bone up on the case. Please read my Phoenix story. Both sides agree that Murphy said the victim had to “get over it.” Now, follow the bouncing quotes:Wedge reported that Murphy said, “Tell her to get over it,” and that he said it in a way that was demeaning to the victim.Murphy said his words were, “She’s got to get over it,” and that he was actually being solicitous of the victim.Crowley — Wedge’s source — testified that Murphy said, “She’s got to get over it.” However, his interpretation was that Murphy was, indeed, being demeaning to the victim, which is why he said that Wedge got the “gist” of it right.

  9. Anonymous

    EB# hereDan, I have witnessed too many trials first handand then actually read accounts of them in the newspaper. Like two different cases. You report on it but yet you admittedly did not see all of the trial. I just want credible facts before I draw an opinion. Facts easily obtained by journalists. And in this electronic age it should be nothing to link to the two briefs. I did read your piece and you admittedly did not witness the full trial. And a reasonable person could interpret the facts to opinion that Wedge took a quote and twisted it slightly so as to make the statements intent appear much differntly. And in this case cause the speaker to be held up to publuic scorn and ridicule. So dan, again I ask, can’t a news outlet link to the briefs so a reader can decisde for him or herself? That is how I “bone up” on the case. Thank you.Much the same as I have never seen a link to Tom Finneran’s deposition testimony from which his perjury indictment arises. Why can’t a news outlet provide that transcriptso the reader can make up his or her own mind.

  10. Dan Kennedy

    EB: I can’t link to something that isn’t available. I was able to obtain a PDF copy of the amicus brief, so I uploaded it myself. If the other briefs were online I’d gladly link to them. And if someone (hint, hint again) wants to send them to me, I will upload them.

  11. Anonymous

    EB3 -sorry dan. Didn’t mean you. This is my bitch with “journalism” in general. A newspaper webh site should provide the type of easily obtained info when a reader is relying on a reporter’s interpretation.No one disagrees with you or the amicus brief on the point that a reporter should be able to rely on information given by a government official.That is a red herring in this case.There is some fire to this smoke perhaps.And the judge’s misguided bravado letters to Pat Purcell are another red herring and have nothing to do with the underlying argument.The ultimate question is ‘Was Wedge being a prick when he made it appear that the judge was heartless?”Only wedge knows for sure, but the globe, herald, or phoenix should provide copies of these public documents.

  12. Dan Kennedy

    Was Wedge being a prick when he made it appear that the judge was heartless?Well, the answer to that is “yes.” I don’t think that’s a legal question, though.Here are two even more relevant questions:1. Did Paul Walsh and his staff truly believe that Judge Murphy had said heartless, demeaning things about victims of crime? I believe the answer to that is “yes.” But, for the sake of argument, let’s say it’s “no.” Then —2. Did Dave Wedge truly believe that Walsh and company truly believed that Murphy had said heartless, demeaning things about victims of crime? I would suggest that all of the evidence points to the answer being “yes.” And under the “actual malice” standard with regard to public officials such as Murphy, if “yes” is the answer, then no libel occurred.

  13. Anonymous

    As long as we can agree Wedge is a prick (can we maybe up that to total prick?), I’m satisfied.

  14. Dan Kennedy

    I will restrict my evaluation of prickitude to that story. I have no problem with Wedge.

  15. Anonymous

    EB3,You missed the third question, and my main point:Can the Globe, Herald, or Phoenix provide the online reader the complete briefs submitted on this case. Why is this difficult? Why is it not done?Why aren’t we (readers)encouraged to think for ourselves?What is journalism anyway? Is it one’s interpretation of events? Or is it providing readers object information so they may form their own opinions. If it is the latter, then isn’t it obvious in some cases what information should be provided. Without consideration.Like posting the briefs. Or Tom Finneran’s deposition tetimony.It’s not what the da’s office believed. it is what wedge took from it and how far he ran. I need the details. Like the ones I assume are provided in the briefs.

  16. Anonymous

    EB3 -Sorry Jack. By me using the dick head standard I needlessly started something that should not have been. SorryHe probably is a good guy. And shit, ‘he don’t need dis’.Question Jack:As an editor, if you could, would post the herald and the judges briefs on line, thereby providing the reader with the best available facts?Same for Finneran deposition testimony which is the subject of the criminal indictment?That is my question? So it is more of a question for journalism in general. This case at hand is illustrative.

  17. Anonymous

    EB3 here,jack, you tell me to go look for myself when i want to see posted documents that any decent reporter should read before writing about the subject. The publicly available briefs. And you, the editor, tell me to,”Go look for it yourself”That’s the problem Jack. You make it difficult for a reader to trust what a reporter writes. Make it more difficult to confirm what a reporter writes. Make it tougher to be an independent thinker. And what is funny is that it is no hair off the newspaper’s ass to post it. Shouldn’t an editor require a reporter to read the briefs before writing a story?That is where the meat of the story is. Fact wise I mean. Differnt from entertainment wise. Maybe we should define our priorities.IS THAT TOO MUCH TO ASK JACK?

  18. Eric Goldscheider

    Dan,(I posted this diary to the wrong diary. Sorry. Here it is again.)I looked at the docket and it seems oral arguments for this case are set for January 4. That happens to be the same day the SJC is set to hear oral arguments from James Rehnquist in the LaGuer case. It should be an interesting day.p.s. All the filings in that case are available at

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