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

End of the line?

A wise local reporter recently told me to stop wishing for Herald publisher Pat Purcell to appeal the $2.1 million libel verdict against his paper to the U.S. Supreme Court. I see his point — given the court’s recent outrageous ruling on pay equity, it’s hard to imagine (OK, it’s easy to imagine) what Roberts, Alito, Scalia et al. might do to Times v. Sullivan, the 1964 ruling that makes it difficult for public officials to win libel suits.

Perhaps this is going to end with a whimper. The Globe reports today that the state’s Supreme Judicial Court has declined to revisit its recent decision upholding the 2005 libel verdict in favor of Superior Court Judge Ernest Murphy, who’d claimed the Herald had falsely portrayed him as making demeaning statements about a 14-year-old rape victim — specifically, that he had said, “Tell her to get over it” during a meeting with lawyers.

Apparently there’s a brief in the Herald, too, but right now the paper’s Web site is down.

Not to relive this endlessly, but Times v. Sullivan and its progeny required Murphy to show that Herald staffer Dave Wedge knew or strongly suspected he was reporting false information. The jury and the SJC bought it, but I still don’t. Even though Wedge’s reporting was sensationalistic and marred by several key errors, I don’t think he ever believed he was doing anything other than passing along the honest views of his sources in the Bristol County district attorney’s office.

In Massachusetts, at least, Times v. Sullivan no longer provides journalists with the near-absolute protection they’d had to report fearlessly about public officials. Some may say that’s a good thing. I certainly don’t.

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  1. Anonymous

    EB3 here.I read the decision and agree with the majority on the pay raise issue. It is a law and congress makes the change. Not the court. Now Dan, you are better than that. You have an oponion different that every single justice on the SJC regarding the Wedge case. These are lawyers. Good ones. You are not. Now you argue that the the US Supreme Copurt could never do the right thing because you disagree with a 5-4 decisiopn regarding a time schedule in a statute for certain pay wage issues.Wedge shot a gun into a crowd. He did not mean to kill someone. The Herald’s standards have long bordered on shooting a gun into a crowd. David Wedge hit someone that bled and fought back. Very rare. But should be a reminder to “journalists”.Dan, you say “Even though Wedge’s reporting was sensationalistic and marred by several key errors…”I ask you Dan, regardless of Sullivan v NY Times, shouldn’t Wedge be discipline for several key reporting errors?

  2. Dan Kennedy

    EB3: Justice Greaney’s decision in the Herald case is completely unremarkable in terms of the law. That he and his fellow justices are lawyers and I’m not is irrelevant — what’s at issue here are the facts. And Greaney, in my view, based on direct observation, has distorted the facts to fit the law.Now, it’s also true that appeals courts are loath to mess with a jury’s findings of fact. But the courts have said that the First Amendment is so important that appeals courts must evaluate the facts as well as the law. I just can’t find any support for the notion that Wedge conspired with his sources to fabricate an incident that never happened. For that matter, I don’t even think it’s been firmly established that the “gist” of it (to quote Wedge’s only eyewitness source) never happened.You ask: Should Wedge be disciplined for reporting errors? My answer is simple: As long as he didn’t commit “actual malice,” that should be a decision for his editors to make, not the courts.

  3. Anonymous

    EB3,So Dan , a reporter only crosses the line of ethics when he violates Sullivan v. Times?EB3 here againIs that, in your opinion, what the standard for a newspaper with integrity should be? Sullivan v . NY Times defines journalistic ethics.If that is true than continued negligence in reporting is ok?

  4. Dan Kennedy

    EB3: You need to take my Law of the Press course … I’ll straighten you out!No, Times v. Sullivan has nothing to do with ethics — zero, zilch, nada, as they say. It is simply the law.As I tell my students over and over, just because a journalistic practice is unethical doesn’t mean it’s illegal.

  5. Anonymous

    EB3 hereI agree. So did wedge violate a ethics rules? Forget about sullivan v Times.Were his errors violate some test of competency or ethics?

  6. Dan Kennedy

    EB3: I assess Wedge’s journalism here.

  7. Anonymous

    EB3 back againThanks Dan, I read your link. You conclude with the following:”Murphy deserved better journalism than he received. But that doesn’t necessarily mean he was libeled.”I agree with you that he deserved better journalism. The question I can’t seem to get answered, did Wedge’s conduct rise to a level requiring internal discipline and denouncing that type of journalism. ThHerald can admit it was bad journalism without making any admissions to libel.

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