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

SJC upholds Herald libel verdict

The state’s Supreme Judicial Court, in a strongly worded opinion, has upheld a $2.1 million libel verdict against the Boston Herald. In March 2005 the Herald lost a suit brought by Superior Court Judge Ernest Murphy, who’d been characterized by the Herald in 2002 as a “wrist-slapping judge” who had “heartlessly demeaned” victims of crime — most notoriously, by allegedly saying of a teenage rape victim, “She can’t go through life as a victim. She’s [fourteen]. She got raped. Tell her to get over it.”

Massachusetts Lawyers Weekly reports the decision here, and reproduces the text of Justice John Greaney’s decision here.

Greaney’s view of Herald reporter Dave Wedge is pretty devastating. Under the U.S. Supreme Court’s 1964 Times v. Sullivan decision, Murphy had to prove not only that what Wedge reported about him was false and defamatory, but that he had acted with “actual malice” — that is, that he knew what he was reporting was false, or that he showed “reckless disregard” for whether his reporting was true or false. Greaney writes that Murphy met that standard:

Wedge’s lack of candor on the witness stand strongly supports the inference that he deliberately attempted to mislead the jury. Although disbelief in Wedge’s testimony alone is not sufficient to sustain a verdict for the plaintiff, we are satisfied that the evidence we discuss below would warrant a jury’s finding of actual malice by clear and convincing evidence. There is an abundance of evidence that, taken cumulatively, provides clear and convincing proof that the defendants either knew that the published statements found by the jury to be libelous were untrue, or that they published them in reckless disregard of their probable falsity.

I’ve written before that I don’t think Wedge committed “actual malice.” Though his reporting was sensationalistic and riddled with errors, I’m convinced he believes to this day that Murphy said the teenage rape victim should “get over it,” and that he believes Murphy said it in — well, a heartless, demeaning manner. Wedge’s one eyewitness source, former prosecutor David Crowley, testified during the trial that Wedge had captured the “gist” of Murphy’s meaning, even though it was more likely Murphy had said “She’s got to get over it” rather than “Tell her to get over it.”

But, at least according to Greaney, that’s not relevant — if Wedge got the quote wrong, then it’s up to the jury to decide whether he got the “gist” of Murphy’s meaning correct. Greaney writes:

The defendants assert in their brief that, “[h]aving noted that Crowley testified that the ‘gist’ of the ‘get over it’ statement was accurately reported in the Herald … the trial court needed to go no further.” This assertion is a misstatement of the law. A statement is false, for purposes of libel, if there has been a “material change in the meaning conveyed by the statement.” This determination is one for the jury, and not for a witness, to make.

Also interesting is Greaney’s application of Harte-Hanks v. Connaughton (1989), a U.S. Supreme Court decision in which a libel verdict was upheld because a newspaper’s editors were found to have deliberately avoided interviewing a source and considering other evidence that might have cast doubt on a story in which a local candidate for office had been accused of corruption. According to the decision, such a failure constituted “reckless disregard,” since it showed that the paper’s editors had harbored serious doubts as to whether what they were about to publish was true.

Wedge failed to interview two defense lawyers who were present when Crowley supposedly heard Murphy say that the victim should “get over it.” At the trial, both lawyers testified that they never heard Murphy say anything remotely like what Wedge had reported. But did Wedge deliberately avoid interviewing them, which would constitute “reckless disregard”? Or did he simply not bother, which would not? Greaney:

When substantial doubts have been raised as to the veracity of a reporter’s information, the purposeful failure to investigate known witnesses may be proof of actual malice. The evidence, clearly and convincingly, supports the inference that Wedge included the “tell her” quotation, which not one percipient witness had confirmed, to convey the impression (false) of callousness. The evidence equally clearly and convincingly supports the determination that Wedge purposely did not seek to interview any of the percipient witnesses who would have contradicted the alleged facts in his article.

To me, the bottom line is that Wedge allowed himself to be used as a conduit for the Bristol County district attorney’s office, whose officials were out to get Murphy because they believed — genuinely — that he was too lenient. It’s the sort of spoon-fed, prosecutor-driven journalism that news organizations practice all the time, although usually with greater accuracy than Wedge managed that day. But it certainly doesn’t mean Wedge believed his sources were lying to him. Quite the opposite, I think. From Wedge’s point of view, what could be more natural than interviewing prosecutors and reporting what they’d said?

I hope Herald publisher Pat Purcell appeals the SJC’s decision in the federal courts. Absent deliberate falsity or something close to it, harsh reporting on how a public official performs his official duties should never lead to a libel verdict, no matter how flawed that reporting may be. With all due respect to Justice Greaney, I think Wedge believed he got the story right at the time. Under the “actual malice” standard, that should be sufficient.

Update: David Kravitz, a lawyer, writes about the decision at Blue Mass Group, but his response to a comment of mine is especially valuable. Kravitz thinks Greaney wrote with an eye toward keeping this out of the U.S. Supreme Court (as Kravitz points out, the only federal court that can take an SJC appeal) by rooting his opinion as closely as possible in the facts of the case, while steering clear of anything that would suggest he was questioning precedents or theory.

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  1. Anonymous

    There are some incredibly troubling passages in this decision, including very sympathetic portrayals of Judge Murphy turning from “(O)nce a proud, gregarious man,” to becoming “diminished, scared, and sad” and “his reputation in the legal community and collegial relationships with colleagues deteriorated to the point where he felt ‘radioactive.'” And, “Indeed, there is no evidence in the record that the plaintiff’s interactions, at any time, with those in his court room, be they court officials, prosecutors, defendants, victims, or the families of victims, could be characterized in any way but respectful and professional.” Perhaps Justice Greaney never saw stories questioning Judge Murphy in the Fall River, Taunton, Brockton, Quincy and Cape Cod papers.That, to me, is over the top from Greaney and reveals a bias for a fellow jurist that taints this opinion. Greaney also rewrote state libel and defamation law by writing a footnote “To the extent that there is any doubt that a corporate defendant, such as the Herald, is capable of possessing the subjective state of mind required for a determination of “actual malice,” we put that doubt to rest. Where an article is written within the scope of a reporter’s employment, his “state of mind” may be imputed to his employer for purposes of liability.” This turns journalism on its head. Be afraid. Be very afraid.

  2. Anonymous

    thanks for your thoughtful discussion of the issue, Dan, but I don’t know how you did it without recalling the talk radio hosts’ piling on Murphy,even in a postscript.

  3. Dan Kennedy

    Anon 2:18: I also wrote about it without recalling Murphy’s truly bizarre post-verdict letters to Purcell. But I’ve written about all of it at one time or another; no need to repeat myself.

  4. Anonymous

    The Herald crucifies judge’s all the time. This time they tried to nail a guy who fought back. It may not be a point of constitutional law, but the Herald got nailed for carrying the DA’s water. Too bad. No one really cares what Herald readers think. What matters are the TV and radio people who pick up on the Herald’s constant diet of negative swill.

  5. jason

    Dan: With the Herald in financial trouble, is a $2.1 million payout a real blow to it? This might be a dramatic premise, but could this lead to the death of the paper?

  6. Anonymous

    The bottom line is that if David Wedge paid even minimal respect to Reporting 101, and got TWO rather than one eyewitness source for the judge’s supposed statement, this never would have happened. Wedge and every editor who touched this story before it ran should have been fired long ago.

  7. Anonymous

    Dave Wedge 1) took the quote second hand from an anonymous source and 2) then misquoted the second hand source. Sloppy, sloppy, sloppy. When you have something as controversial as this you have to CONFIRM it. Read the quote back to the source and get it confirmed. Then find another source to corroborate the quote, or make it clear in the story that this quote comes from one, anonymous source in case that single source is using you for their own ends. When you take second hand info and report it with the implication that you got it first hand, you run the risk of getting your leg pulled. If you misquote, it just gets worse.

  8. Mike

    Problem with a further appeal is that the reporting was so sloppy it violates all accepted news gathering practices and it can be argued that the only way a seasoned professional could get it so wrong was if it was done intentionally. Your last excerpt from Greaney drives that point home.

  9. man who's not a murphy fan

    Problem with a further appeal is that the reporting was so sloppy it violates all accepted news gathering practices and it can be argued that the only way a seasoned professional could get it so wrong was if it was done intentionally.Thank god this is not, usually, how our legal system works. The argument you make is essentially the same as “The only reason this patient died on the table was because the experienced surgeon must have killed them intentionally.”Unfortunately, that’s what the SJC has decided is the case. Since justice is already completely miscarried here, why not see things taken to the opposite extreme, eh? Wouldn’t it be delicious if the Herald really open the floodgates and show the judges what real libel is all about. The kind of libel that gets people into “burn the judge in effigy” mode.

  10. Anonymous

    I’m no lawyer (or judge) but isn’t it there something implicitly wrong about judges being asked to determine whether one of their own has been wronged? I don’t know that there’s any alternative, but any of these all too human judges has to be thinking “there but for the grace of God go I.” I am sure if it was an egregious case of judicial wrong-doing a judge would no hesitate to slap down on of his or her own, but the Murphy case is a far different situation, and one where the hurt feelings of a judge and his family are very much in play. Which is to say, as much as the ruling strives to appear law-based, there’s an emotional component to it that no one, especially the ruling judges, dares to acknowledge.

  11. Mike

    Not a Murphy fan said: The argument you make is essentially the same as “The only reason this patient died on the table was because the experienced surgeon must have killed them intentionally.”I’d be glad to flesh out your own analogy, as it reinforces my argument. A surgeon that disregarded accepted medical practice, and ignored pertinent vital signs and other essential information would likely be sued for criminal negligence…and would probably lose. There are provisions in the law for an “honest mistake.” The distinction is slim between the aforementioned surgeon and a reporter whose pursuit of a story caused him to both ignore contrary evidence and to fail to present information in his possession that went against the central tilt of his story. If anything, the reporter had an additional “out” on his side that the surgeon doesn’t have: the necessity of a finding of actual malice.The comment by Greaney that holds papers liable for the actions of their reporters — Where an article is written within the scope of a reporter’s employment, his “state of mind” may be imputed to his employer for purposes of liability.” — speaks to the accepted practice of having a story read by many sets of eyes before hitting the street. Any of the four or five responsible higher-ups could have said “We can’t run this.” None did.

  12. Anonymous

    Mike,Maybe the four or five higher-ups who saw it thought as Wedge did that the quotes were accurate. And if they did, they may have been wrong but, as Dan and many others have pointed out, they did not commit “actual malice.”

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