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.”
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.