Q: What do the Boston Globe, the Boston Phoenix and the Boston Herald agree on? A: The dangerous precedent that would be set if a ruling that undermines truth as a defense in libel cases is allowed to stand.
Earlier this week, according to the Boston Globe’s Jonathan Saltzman, noted First Amendment lawyer Robert Bertsche filed an amicus curiae brief (PDF) asking that the full U.S. Court of Appeals for the First Circuit overturn a decision reached recently by a three-judge panel of that court. The brief is signed by a host of media giants, including the New York Times Co. (which owns the Globe), GateHouse Media (which owns more than 100 newspapers in Eastern Massachusetts), ABC, CBS, NBC, CNN, the Washington Post, Time Inc., WGBH and many, many others.
As I reported in the Guardian on Feb. 17, the decision, written by Judge Juan Torruella, allowed a libel suit to move ahead on the grounds that the offending speech (an e-mail to some 1,500 Staples employees about a sales director who’d been fired for violating the company’s expense-report policies), though true, might be held libelous on the grounds that it was made with “actual malice.”
In making that ruling, Torruella relied on the meaning of malice as it existed in 1902, when the Massachusetts law at issue went into effect — a meaning that Torruella defined as “ill will” or “malevolent intent.” In Times v. Sullivan (1964), the U.S. Supreme Court redefined “actual malice” as a defamatory statement made even though it was known to be false, made with “reckless disregard” as to its truth or falsity.
The Torruella decision applies only to private persons, whereas the Times v. Sullivan and its progeny pertain to public officials and public figures. Nevertheless, in other decisions — most famously Gertz v. Robert Welch (1974) — the Supreme Court made it clear that even a libel suit brought by a private person must be based on a statement that was false and negligently made.
The amicus brief argues that if Torruella’s ruling is allowed to stand, plaintiffs will be able to win libel suits if they are merely able to prove that the defendant was “out to get them.” The brief continues:
In some quarters, it may even have the chilling effect of discouraging reporting and commentary on some of the most pressing issues of the day, such as the internal affairs of businesses coping with severe economic challenges, for fear that such matters might mistakenly be deemed to be of only “private concern.”
This is a case of enormous importance to the beleaguered news media and, more important, to the public, which depends on tough, fair, truthful reporting. Let’s hope the full court does the right thing.
Discover more from Media Nation
Subscribe to get the latest posts to your email.
dan bosley
Dan, I don’t have an opinion on this issue, you know this far better than I. But let me express the situations that frustrate me as a public official. First scenario; a person gets a high paying job in the private sector. The person is reported to get the job, with a much higher salary and the reporter explains that the person could pad their pension with a higher paying job. The reporter knows, but never explains that the new job isn’t contributing to the public pension, nor does the reporter state that the new job is from funds created outside of the public budget process even though the reporter knows both of these things. Second scenario; someone reports that the in-laws of a public figure are using someone (person A) who wants the public figure to take an action for them and pays for the in-laws on a particular capital purchase. The reporter knows that the “purchase” was paid after the in-laws paid person A as their agent. So, in fact, person A was acting as an agent, a job they hold, much the same as giving your lawyer a check for your mortgage expenses and then the lawyer cuts checks at a closing. The rightful party did pay for all appropriate costs in this case In both of these fictional cases, the reporter told the truth, but held back pertinent information that changed the story and lead to different conclusions than the public may have made should the public know the back stories.How do we stop malevolent behavior in these cases where the truth may be told but it is not the whole truth and nothing but the truth, and a reporter knows that they are shading the truth to create that reaction? Shouldn’t there be some recourse
Dan Kennedy
Dan: Should there be recourse? Yes. Should there be legal recourse? Why? Public officials have a megaphone. They should use it. What better example than former judge Ernest Murphy, who took his complaint against the Herald to the Globe, and who could have commanded any talk show he would have liked? Of course, that would not have been as lucrative, would it? I think it was Holmes who said the solution to bad speech is more speech.On a legal matter, though, defamatory statements that are what I like to call “accurate but not true,” as you have described, might be subject to a so-called false-light suit. It’s a hazy area, and I’m not sure whether Massachusetts recognizes false light. But there you go.
Michael Pahre
Ummm…Unlike your lede, I don’t believe that the Boston Globe necessarily agrees that the ruling would set a dangerous precedent. The Globe piece was a news story, not an opinion piece. They were primarily reporting on Ambrogi’s opinion that it was “the most dangerous libel decision in decades.”If (and when) the Globe writes an editorial expressing concern about the case, then I will agree that your lede is accurate.
L.K.
Rep Bosely,Surely that fictional protagonist could have survived in the political kitchen if he had chosen to stand up to the heat, would he not?I think you may be missing a part of the fictional story. The fictional..or is that fickle…public.No one forced the fictional protagonist to sign his signature to his resignation.If he wanted to pursue the matter, he could, as Dan has suggested, avail himself of his legal right to recourse. I am sure that he would find that the Court is not fictional, too.
LFNeilson
Llibel law gets curiouser and curiouser. This one is troubling as it relies on the intent of the defendant, or more accurately, the court’s opinion of the intent. Which goes to examining why something was printed. I’m sure that each side would have its own opinion on that. In our field, I guess that would rest on legitimate news value. In the case of a fired employee vs. the employer, it might be more of a privacy issue. Truth has always been a rock-solid defense. If that cracks, it would be akin to an earthquake.zzzzzzzz
Dan Kennedy
Larz: That’s the key. If Noonan had sued on a privacy claim, no one would care. And he might have a case.
MeTheSheeple
Mr. Pahre said: "Unlike your lede, I don't believe that the Boston Globe necessarily agrees that the ruling would set a dangerous precedent." You ask for an editorial.The New York Times Co., which owns the Boston Globe, is among the filers of the amicus; as is NECN, which I understand is at least a partner to the Boston Globe. Rather than merely write an editorial, as you suggest, they've become advisers on the case.Via OCR: ABC, INC., ADVANCE PUBLICATIONS, INC., ALLBRITTON COMMUNICATIONS COMPANY, THE ASSOCIATED PRESS, ASSOCIATION OF ALTERNATIVE NEWSWEEKLIES, ASSOCIATION OF AMERICAN PUBLISHERS, INC., THE BLETHEN MAINE NEWSPAPERS, INC., BLOOMBERGNEWS, BOSTON HERALD, INC., CABLE NEWS NETWORK, INC., CBS CORPORATION, ClTIZEN MEDIA LAW PROJECT, COMMUNITY NEWSPAPER HOLDINGS, INC., DOW JONES & COMPANY, INC., ENTERCOM COMMUNICATIONS CORP., ESPN, INC.. THE E.W. SCRIPPS COMPANY, GATEHOUSE MEDIA, INC., GLOBALPOST.COM, GREATER MEDIA, INC., HARPER'S MAGAZINE FOUNDATION, THE HARVARD CRIMSON, INC., HEARST CORPORATION, HOME BOX OFFICE, INC., INCISIVE MEDIA, LLC, MAGAZINE PUBLISHERS OF AMERICA, INC., THE MASSACHUSETTS BROADCASTERS ASSOCIATION,MASSACHUSETTS NEWSPAPER PUBLISHERS ASSOCIATION, THE MEDIA BLOGGERSASSOCIATION, THE MEDIA LAW RESOURCE CENTER, INC., METRO CORP.. NATIONAL PUBLIC RADIO, INC., NBC UNIVERSAL, INC., NEW ENGLAND CABLE NEWS, NEWENGLAND NEWSPAPER ASSOCIATION, NEW ENGLAND PRESS ASSOCIATION, NEWSPAPER ASSOCIATION OF AMERICA, NEWSPAPERS OF NEW ENGLAND, INC., THE NEW YORK TIMES COMPANY, NORTH JERSEY MEDIA GROUP INC., PMCG MANAGEMENT, LLC, REPORTERSCOMMITTEE FOR FREEDOM OF THE PRESS, SOCIETY OF PROFESSIONAL JOURNALISTS, TELEGRAPH PUBLISHING CO., TIME INC., TRIBUNE COMPANY,UNION LEADER CORPORATION, U.S. NEWS & WORLD REPORT, L.P.,THE WASHINGTON POST, WENNER MEDIA LLC, WGBH EDUCATIONAL FOUNDATION
Dan Kennedy
Michael: What Sheeple said. The Globe is a party to the case.
dan bosley
Public officials always have the right to sue. However, that keeps the “false” story on the front page day after day. That is not a solution. I have a colleague who used to say that even if you win, “where do you go to get your reputation back. We like to think that all reporters (and all politicians) are doing their jobs, but both have individual feelings and preferences and tend to editorialize when the public merely needs to know the facts. I don’t have an answer and I subscribe to the notion that a free press is absolutely essential. It is frustrating tho’.
The Perfessor
Mr. Bosley, is it not the case that those who are in command of the “facts” too often are the ones who hide them, or dissemble them, or manufacture them, such that (a) their credibility is dissipated and/or (b) reporters use what they can get?For example (since you allude to it), should the press and the public accept as “facts” only what the “agent” and the “public figure” have to tell us?I’ll remember that when I need to get rid of one of my extras Sox tickets.
dan bosley
Absolutely not, but they should report the whole truth and let people decide the facts as opposed to spoon feeding one side of a story in order to sensationalize a story or get more front page time.And absolutely we should hold everyone including politicians to the same standard. I am not exactly sure what Sox tickets have to do with this, but at these prices, there are no such thing as extra tickets.