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

An important libel ruling by the SJC

The state’s Supreme Judicial Court issued an important decision today that reaffirms protections for the news media against libel suits.

The case involved a town employee in Abington who was fired after sexually explicit images were discovered on his town-owned computer. The Enterprise of Brockton published a series of stories on official actions taken against the employee (who was eventually fired), based almost entirely on anonymous sources.

The SJC decision, written by Justice Robert Cordy, found that the fair-report privilege, which allows journalists to report libelous statements made in the course of official proceedings, applies even when those reports are based on anonymous sources.

Cordy also ruled that the Enterprise’s stories were substantially fair and accurate despite an error in one of the stories, and that the ex-employee could not sue the paper for intentionally inflicting emotional distress.

Those are the highlights. First Amendment lawyer Robert Ambrogi offers a deeper analysis here. The full text of the decision is here. (Via Universal Hub.)

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  1. Harrybosch

    Not sure I’d use the term “sexually explicit” to describe the photographs found on the computer. Apparently, when the photos themselves were shown in court, judge and jury could not contain their laughter.

    Hard to say, but without seeing them, they sound like stuff you’d see everyday on Fark or some other humor website.

    It should also be noted that a jury recently awarded the employee in question close to half a million dollars, finding the town dismissed him without cause.

    Not sure if the Enterprise termed the photos “sexually explicit” too, but it sounds like that was patently false, if not libelous. But something like that can obviously ruin someone’s life.

    • Dan Kennedy

      @Harry: The Enterprise repeatedly used the term “pornographic,” and the SJC found that to be fair and accurate. From the decision:

      Whether the images were pornographic or not, it was not substantially inaccurate or unfair to report that the official accusation leveled against Howell was that the images were “pornographic.” The line between images “of a pornographic nature,” “pornography,” and the shorthand “porn” is not so clear as to render the Enterprise’s characterization unfair.

      The fair-report privilege applies only if reporting on official proceedings is substantially fair and accurate. Still, because there’s some question in my mind whether the images could be considered pornographic, I went with the more generic “sexually explicit” instead.

  2. Harrybosch

    Gotcha, Dan. The photos as described absolutely do not meet
    Webster’s definition of pornography (intended to cause sexual excitement), but perhaps legally it is defined differently.

    And the first sentence of that SJC decision makes me furious. Basically it says, “if they weren’t pornographic, it was okay to say that they were.

    To my own mind (again, having not seen the pictures), Perhaps “bawdy” or “ribald” might have been more accurate.

    But nobody knows what those words mean anymore.

    • Dan Kennedy

      @Harry: Let’s drill down into what the decision really means. Your paraphrase: “If they weren’t pornographic, it was OK to say that they were.” I’ll add to it: “If they weren’t pornographic, it was OK [for the Enterprise] to say that they were as long as the paper was fairly and accurately reporting what town officials were doing and saying.”

      In other words, if the town libels the ex-employee, the Enterprise can’t be blamed simply for accurately and fairly reporting what town officials are saying in their official capacity. That’s what the fair-report privilege is all about. (Since you say the ex-employee later won a settlement from the town, that makes this even better from a libel standpoint.) And the SJC decision extends the privilege by saying it’s not enough to protect the press when it reports on official proceedings at public events. The privilege must prevail even when the press is relying on anonymous sources. Again, as long as what’s reported is fair and accurate.

      Finally, my understanding is there is no legal definition of pornography. Obscenity, yes: it’s sexually explicit or excretory content so vile and so devoid of any other value that it deserves no First Amendment protection and can therefore be prosecuted. Indecency, yes: essentially it’s whatever the FCC says can’t be broadcast between 6 a.m. and 10 p.m.

  3. Jack

    I agree that this decision is really important for reporters, but your first post mischaracterizes the facts slightly.

    Only one of 11 stories was based on an anonymous source. This source told The Enterprise what happened during an executive session. While the court noted that the paper took something of a risk by basing a report on one source, it also concluded that the report was fair and accurate, and thus was protected by the fair report privilege. The other 10 stories were almost entirely based on public actions and statements.

    I agree with your comments on “porn.” What happened here is that town officials felt the employee had inappropriate images on his computer and repeatedly referred to them as pornographic. The Enterprise reported that fact.

    @Harry seems to suggest that the paper — which was not able to see the images until well into the saga — should not have repeated the town’s allegations. Fortunately, the Supreme Judicial Court doesn’t agree with him. Would Harry want the press to be incapable of reporting the crimes with which a person is charged? That could have frightening consequences, with people arrested and held for trial for charges that are never reported to the public.

    The images themselves had nothing to do with the suit against The Enterprise. All that mattered was whether the paper fairly and accurately reported town officials’ statements and actions.

    • Dan Kennedy

      @Jack: Thanks for the clarification. The Enterprise may not have relied on anonymous sources extensively, but the fact that the SJC extended the fair-report privilege to stories based on anonymous sources, as long as the stories are fair and accurate, is a huge part of the decision.

  4. Harrybosch

    Thanks, both Jack and Dan. I mis-read the first sentence of that SJC decision.

    If the town characterized the images as “pornographic,” then the Enterprise was well within their rights to publish that.

  5. Jerry

    What the decision really means is this: Testimony, documents, graphics, etc., etc., introduced under oath as part of a court proceeding, are “privileged,” which is to say immune from prosecution for libel or slander so long as they are quoted accurately. This is a longstanding principle. The SJC here has established fairness as a mitigating standard as well. There was a time when statements and materials brought forward at meetings of public bodies (city councils, boards of selectmen, etc.) also were privileged. I’m not sure that’s true now. Someone once told me, years ago, that this standard of “qualified privilege” in Massachusetts fell by the wayside in the 1950s because a small daily didn’t appeal an adverse ruling and no one else stepped in to do so.

  6. Jack

    Jerry, that is not what this decision says. No one was under oath during these proceedings, which were held by town committees, not by a court of law.

    And the SJC did not change the fair report privilege, which has long rested on the dual prongs of fairness and accuracy; it merely said that fair report applied in this case.

    This whole case concerned newspaper reports that were based on an anonymous source and on “statements and materials brought forward at meetings of public bodies (city councils, boards of selectmen, etc.)” All of these things continue to fall under the fair report privilege.

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