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

Judge upholds fair-report privilege in Herald case

Sounds like musician Tom Scholz is really reaching as he pursues his libel suit against the Boston Herald.

Scholz, as you may know, claims that the Herald’s “Inside Track” gossip column libeled him by reporting in 2007 that Micki Delp had said Scholz bore some responsibility for the suicide of her ex-husband, Brad Delp. Scholz was the founder and leader of the band Boston, and Delp was the lead singer.

Apparently Scholz also charged that the Herald libeled him by reproducing parts of those articles in reporting on his lawsuit against the paper when he filed it in 2010. One problem: the articles were an official part of the lawsuit.

Which means that the Herald had every right to report on the contents of those 2007 articles accurately, even if they ultimately are proved to be libelous. Which means, too, that Superior Court Judge John Cratsley dismissed Scholz’s complaint about the 2010 articles yesterday. As the nationally renowned First Amendment lawyer Floyd Abrams told the Herald:

It’s a complete victory based on deeply rooted principles of English and American law. It’s a privilege of the press to publish a fair account of just about anything that happens in court. Without that right, the public would never know what goes on in court.

The fair-report privilege is a vital protection for the press. Because of the privilege, for instance, a reporter may write about what takes place at a city council meeting without having to worry whether someone might have said something libelous.

As Abrams (and Cratsley) notes, court proceedings are covered by the privilege as well. I still recall reporting on a rather outrageous allegation someone had told me he’d included in a lawsuit he’d filed. The Boston Phoenix’s lawyer flagged it before publication. I double-checked, showed my editor the language in the lawsuit and the lawyer told us to go ahead and publish.

The Herald is still at risk over its 2007 reports. Cratsley recently dismissed Scholz’s suit against Micki Delp, ruling that the statements at issue were solely the Herald’s responsibility. Yesterday’s ruling, though, was a victory not just for the Herald, but for the First Amendment — and all of us.

The Boston Globe covers yesterday’s ruling here. Earlier coverage of the Scholz lawsuit here.

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  1. Dan Hamilton

    There’s an important “gotcha” lurking in this privilege, one that I have had some personal experience with.

    In Mass., the privilege is constrained only to include items which have had some sort of judicial review. In other words, if I file a lawsuit against you and that filing contains libelous material, reporting on it is NOT protected until it has seen some “action” by the court.

    That “action” has been interpreted as loosely as having any motion ruled on, for example, but the logic behind this is that anyone with 50 bucks can file suit and so frivolous suits without merit which contain defamatory material are not afforded the full shield. You can still report, but without a guarantee that everything in them is protected from libel action until or unless they go in front of a judge for some “action.” If they are immediately thrown out, for example, the protection could be less than absolute.

    As a practical matter, this doesn’t constrain reporting very much, but it does mean that reporters have to check the docket very carefully.

  2. I agree with the ruling, certainly, but I can see where this might be used, in future, to legitimize some seriously sleazy “journalism”.

    The Generic Paper says, “Jim Sullivan is a puppy-kicking wife-beating vagrant!”

    I sue.

    While the lawsuit is ongoing, The Generic Paper “reports” on the trial in 47 different articles each day, each appearing on a different page, and each saying, “The words in question were “Jim Sullivan is a puppy-kicking wife-beating vagrant!””

    I expect this was the crux of Scholz’s argument, that such repetition of the libelous language (if found libelous, of cuorse) should be considered just as injurious, or maybe even more so with the power of repetition.

    • Dan Kennedy

      @Suldog and @Dan: I was hurrying, but I should add that a basic part of the fair-report privilege is it doesn’t apply if it can be shown that you knew or strongly suspected that the allegations you’re passing along are false. In the Herald’s case, the judge may have decided there was no need to take the chance of weakening the privilege, since the substance of Scholz’s suit against the Herald remains intact pending trial or settlement.

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