If the First Amendment means anything, it means that the media and citizens are free to report vigorously on — and to criticize — the actions of public officials in the course of performing their governmental duties.
And if the Supreme Court’s landmark 1964 libel decision, Times v. Sullivan, means anything, it means that public officials should not be able to sue successfully for journalism they don’t like unless they can show the news organization that published it knew it was false, or showed “reckless disregard” for whether it was true or false. This is known as the “actual malice” standard.
Which brings me to the appeal in the case of the Boston Herald and Superior Court Judge Ernest Murphy. Earlier this week the Herald reported on an amicus curiae (“friend of the court”) brief filed on its behalf by 13 news organizations concerned about the $2.1 million verdict Murphy won against the Herald in March 2005. I have posted a PDF of the brief here (warning: it’s four megabytes). The case is now before the state’s Supreme Judicial Court.
I’m not going to review the entire case today. For that, I would refer you to this February 2005 piece I wrote for the Boston Phoenix, and to this December 2005 Media Nation post on Murphy’s exceedingly odd letters to Herald publisher Pat Purcell.
Suffice it to say that though I believe the Herald’s characterization of Murphy as a “wrist-slapping” judge who “heartlessly demeaned” crime victims was irresponsible, I also believe it was substantially true, despite a few errors by reporter Dave Wedge. And given that Wedge’s source was a prosecutor within the Bristol County district attorney’s office, backed up by D.A. Paul Walsh, it strikes me as ludicrous to claim that the Herald went to press knowing or even suspecting that its story was false. Indeed, except for a few details, Wedge’s stories were not much different from accounts published in the Boston Globe and elsewhere around that time concerning the district attorney’s unhappiness with Murphy’s perceived leniency.
The amicus brief is signed by a virtual honor roll of news organizations and journalism associations, including the Washington Post, the Associated Press, the Reporters Committee for Freedom of the Press, the Society of Professional Journalists, the Newspaper Association of America, the Massachusetts Newspaper Publishers Association, the New England Newspaper Association, Dow Jones, ABC and CBS.
And though the Boston Globe is not a signatory, it’s interesting that the lawyer for the 13 signers of the amicus brief is Jonathan Albano, who has represented the Globe on numerous occasions. [Note: This section has been corrected, as I originally mischaracterized Albano’s role. The Herald’s lawyers on the appeal are Bruce Sanford and Robert Dushman.]
Much of the brief concerns a matter that will be key to determining the Herald’s chances of success: an argument that the Supreme Judicial Court should not rely on the jury’s verdict in determining whether the Herald had committed actual malice, but should instead conduct its own independent fact-finding inquiry.
But there’s also a strong section in the brief on the Herald’s reliance on official sources, and on the self-censorship that would likely result if a libel verdict based on using such sources is allowed to stand. Here’s the relevant section:
In this case, much of the plaintiff’s actual malice argument is premised on attacking the Herald for relying on information provided by a District Attorney and members of his staff about the operation of the criminal justice system in cases prosecuted by their office. If accepted by the Court as clear and convincing evidence of actual malice, the precedent thereby established would have grave ramifications for future news reporting and would undoubtedly chill speech concerning governmental affairs.
The press routinely relies on District Attorneys — and other government officials — for information about the operation of the criminal justice system. This information often concerns the manner in which judges are discharging their public duties….
A finding of actual malice in this case, involving as it does news reports originating with a District Attorney’s Office, would mean that, in the future, the press could not rely on information about important government functions obtained from a public official who holds an office of public trust without risking without risking a multi-million dollar libel verdict.
As we all know, news organizations too often take handoffs from prosecutors and call them news. That’s hardly Pulitzer-caliber journalism, but it’s a depressing fact of media life.
But to hang a “libel” sign on such a dubious practice would be a grotesque overreaction that would harm not just the Herald, and not just the news media, but the public that depends on journalism to keep it informed about the actions of its government.