SJC upholds Herald libel verdict

The state’s Supreme Judicial Court, in a strongly worded opinion, has upheld a $2.1 million libel verdict against the Boston Herald. In March 2005 the Herald lost a suit brought by Superior Court Judge Ernest Murphy, who’d been characterized by the Herald in 2002 as a “wrist-slapping judge” who had “heartlessly demeaned” victims of crime — most notoriously, by allegedly saying of a teenage rape victim, “She can’t go through life as a victim. She’s [fourteen]. She got raped. Tell her to get over it.”

Massachusetts Lawyers Weekly reports the decision here, and reproduces the text of Justice John Greaney’s decision here.

Greaney’s view of Herald reporter Dave Wedge is pretty devastating. Under the U.S. Supreme Court’s 1964 Times v. Sullivan decision, Murphy had to prove not only that what Wedge reported about him was false and defamatory, but that he had acted with “actual malice” — that is, that he knew what he was reporting was false, or that he showed “reckless disregard” for whether his reporting was true or false. Greaney writes that Murphy met that standard:

Wedge’s lack of candor on the witness stand strongly supports the inference that he deliberately attempted to mislead the jury. Although disbelief in Wedge’s testimony alone is not sufficient to sustain a verdict for the plaintiff, we are satisfied that the evidence we discuss below would warrant a jury’s finding of actual malice by clear and convincing evidence. There is an abundance of evidence that, taken cumulatively, provides clear and convincing proof that the defendants either knew that the published statements found by the jury to be libelous were untrue, or that they published them in reckless disregard of their probable falsity.

I’ve written before that I don’t think Wedge committed “actual malice.” Though his reporting was sensationalistic and riddled with errors, I’m convinced he believes to this day that Murphy said the teenage rape victim should “get over it,” and that he believes Murphy said it in — well, a heartless, demeaning manner. Wedge’s one eyewitness source, former prosecutor David Crowley, testified during the trial that Wedge had captured the “gist” of Murphy’s meaning, even though it was more likely Murphy had said “She’s got to get over it” rather than “Tell her to get over it.”

But, at least according to Greaney, that’s not relevant — if Wedge got the quote wrong, then it’s up to the jury to decide whether he got the “gist” of Murphy’s meaning correct. Greaney writes:

The defendants assert in their brief that, “[h]aving noted that Crowley testified that the ‘gist’ of the ‘get over it’ statement was accurately reported in the Herald … the trial court needed to go no further.” This assertion is a misstatement of the law. A statement is false, for purposes of libel, if there has been a “material change in the meaning conveyed by the statement.” This determination is one for the jury, and not for a witness, to make.

Also interesting is Greaney’s application of Harte-Hanks v. Connaughton (1989), a U.S. Supreme Court decision in which a libel verdict was upheld because a newspaper’s editors were found to have deliberately avoided interviewing a source and considering other evidence that might have cast doubt on a story in which a local candidate for office had been accused of corruption. According to the decision, such a failure constituted “reckless disregard,” since it showed that the paper’s editors had harbored serious doubts as to whether what they were about to publish was true.

Wedge failed to interview two defense lawyers who were present when Crowley supposedly heard Murphy say that the victim should “get over it.” At the trial, both lawyers testified that they never heard Murphy say anything remotely like what Wedge had reported. But did Wedge deliberately avoid interviewing them, which would constitute “reckless disregard”? Or did he simply not bother, which would not? Greaney:

When substantial doubts have been raised as to the veracity of a reporter’s information, the purposeful failure to investigate known witnesses may be proof of actual malice. The evidence, clearly and convincingly, supports the inference that Wedge included the “tell her” quotation, which not one percipient witness had confirmed, to convey the impression (false) of callousness. The evidence equally clearly and convincingly supports the determination that Wedge purposely did not seek to interview any of the percipient witnesses who would have contradicted the alleged facts in his article.

To me, the bottom line is that Wedge allowed himself to be used as a conduit for the Bristol County district attorney’s office, whose officials were out to get Murphy because they believed — genuinely — that he was too lenient. It’s the sort of spoon-fed, prosecutor-driven journalism that news organizations practice all the time, although usually with greater accuracy than Wedge managed that day. But it certainly doesn’t mean Wedge believed his sources were lying to him. Quite the opposite, I think. From Wedge’s point of view, what could be more natural than interviewing prosecutors and reporting what they’d said?

I hope Herald publisher Pat Purcell appeals the SJC’s decision in the federal courts. Absent deliberate falsity or something close to it, harsh reporting on how a public official performs his official duties should never lead to a libel verdict, no matter how flawed that reporting may be. With all due respect to Justice Greaney, I think Wedge believed he got the story right at the time. Under the “actual malice” standard, that should be sufficient.

Update: David Kravitz, a lawyer, writes about the decision at Blue Mass Group, but his response to a comment of mine is especially valuable. Kravitz thinks Greaney wrote with an eye toward keeping this out of the U.S. Supreme Court (as Kravitz points out, the only federal court that can take an SJC appeal) by rooting his opinion as closely as possible in the facts of the case, while steering clear of anything that would suggest he was questioning precedents or theory.

With money, John

From today’s New York Times story on BostonNOW, whose editor, John Wilpers, is soliciting contributions from local bloggers:

Mr. Wilpers said he wanted to compensate bloggers but was still considering the best way to do so.

And I love this line: “Also appealing to bloggers is that they retain ownership of their submissions even after printing. They have not, however, received money from the paper for their work.” Such a deal!

Roger and out

I’m not a Roger Clemens-basher. I wish he’d never left the Red Sox. But now that he’s signed with the Yankees, I’ve got to hope that he’s trying to push his incredible career one season too far. Here are his stats from last year. Pretty good for an old man, but he averaged just a hair under six innings per start. Think that’s going to work out with the Yankees’ bullpen?

Pelosi’s helpful visit

Did you catch this, from the New York Times coverage of Condoleezza Rice’s meeting with Syria’s foreign minister?

… Ms. Rice took the time to telephone [Nancy] Pelosi before heading to Egypt this week, though Bush administration officials did not say whether Ms. Rice told Ms. Pelosi beforehand that she planned to follow her footsteps.

“She wanted to hear from Speaker Pelosi about her discussions with the Syrian president,” a senior State Department official said, adding that that the call centered on gathering information about Ms. Pelosi’s trip, not further condemnation for making it. Ms. Rice, he said, “didn’t want to poke her finger in her eye or anything.”

No, indeed. And in a rational world, Dick Cheney would now apologize for trashing Pelosi, whose visit may turn out to be very useful to the White House. Then again, we don’t live in a rational world, do we?

No right-wing rag

One of the great myths of journalism is that the Wall Street Journal is a conservative paper. To be sure, its editorial page is the most relentlessly right-wing and conspiracy-obsessed in the country. Its editors’ indifference to the truth was memorably cited in the suicide note of Vincent Foster, an associate of Hillary Clinton’s who’d become caught up in the non-existent “Clinton scandals.”

But the Journal’s news pages are run completely independently from the opinion operation, and are widely regarded as the pinnacle of careful reporting and graceful writing. Barney Kilgore, who virtually created the modern Journal, is even credited with inventing the “news feature,” a form that we take for granted today.

As for politics, a 2005 UCLA study found the Journal’s news operation to be more liberal than that of any major U.S. media outlet, including the New York Times. Now, I don’t know about that. But, clearly, when you hear someone say that it doesn’t matter if Rupert Murdoch wins control of the Journal because it’s already a right-wing rag, you can be sure that person doesn’t know what he’s talking about.

But why would Murdoch interfere with the Journal if he’s successful in his bid to purchase the paper and its parent company, Dow Jones, for $5 billion? Doesn’t he know that the Journal represents the gold standard in American journalism, and that he’d be crazy to mess with it?

Uh, get real. No, he might not be drag its news coverage to the right, or turn it into a screaming tabloid like his New York Post. But the reason he’s willing to pay so much for it is that he thinks he’s smarter than its current owners, the Bancroft family. And, in fact, he probably is smarter than the Bancrofts, if by “smarter” you mean better at maximizing its economic potential. Why should he spend $5 billion just to leave it alone, especially if he is firmly convinced that he can make it better?

In an interview with the Times today, Murdoch makes it clear that he can’t wait to start interfering with the Journal. He thinks the stories are too long. He thinks the news section should feature more political coverage. He would consider starting a Journal-branded weekend glossy magazine. He insists that he’s not planning deep cuts, but adds, “I’m not saying it’s going to be a holiday camp for everybody.” Oh, no. You can be sure of that.

If Murdoch is successful, it would be a disaster. And, at this point, it looks like he stands a good chance of pulling this off.

The Fox Street Journal

So Rupert Murdoch wants to buy the Wall Street Journal. This might prove to be as futile as Jack Welch’s bid to buy the Boston Globe from the New York Times Co.: the Bancroft family, which controls Dow Jones, the Journal’s parent company, is reportedly opposed. But this certainly raises some questions, doesn’t it? Here are a few:

  • If Murdoch succeeds, he’s really not stupid enough to wreck one of the great brands in journalism, is he?
  • But can he help himself?
  • Is the Journal’s nutty editorial page too right-wing even for Murdoch? By contrast, the Murdoch-owned Weekly Standard is a model of moderate sobriety.
  • Could Neil Cavuto have tugged his forelock any more obsequiously in his Fox News interview with Murdoch?
  • Does Murdoch know he could also wind up owning the Cape Cod Times, the New Bedford Standard-Times and other community papers? Will he drop by for a visit? Will he stop the bleeding?

And here’s some completely unfounded speculation. Dow Jones stock has underperformed for years, and at least some factions of the Bancroft family have reportedly pushed for a sale from time to time.

It’s possible that the moment for that sale has arrived, and that previous talks involving the Times Co. and the Washington Post Co. will be revived. Murdoch may have offered such a huge premium in order to get something done quickly and pre-empt other buyers. But given the Bancrofts’ initial reaction, he may already have failed.

Update: From the New York Observer: “‘It’s out of the frying pan and into a thermonuclear blast,’ said one Journal staffer. ‘This was the worst-case scenario — other than being sold to Vladimir Putin.'”

Counting readers

I’ve been seriously under the weather the past couple of days, and I’m wary about trying to post when I’m feeling as woolly-headed as I am right now. But I do want to call your attention to Robert Gavin’s story in today’s Globe about efforts by people in the newspaper business to convince advertisers that print and online readers need to be considered together.

Yes, print readership is dropping like a rock, but Web readership continues to rise. A reader’s a reader, right? Unfortunately, that’s not the way the advertising business has looked at it. Even aside from the fact that there still aren’t nearly as many online readers as print readers, ad executives have continued to insist that a Web reader isn’t as valuable as a print reader. That’s got to change.

My Northeastern colleague Steve Burgard, director our School of Journalism, tells Gavin:

The challenge is to get advertisers to buy into this new model of counting readers. This is a transition period. The question is, “Will revenues recover?”

Meanwhile, Sean McCarthy, late of the Herald, presents some figures from Scarborough Research showing, again, that you just can’t measure circulation without considering the online component.

As you’ll see, what’s especially valuable about the Scarborough numbers is that they purport to take into account people who use both the print and the Web editions, thus eliminating some overlap. On a weekly basis, Scarborough found that the Globe’s print edition reaches 42 percent of the local market, and 47 percent when the Web is factored in. Comparable numbers for the Herald are 25 percent and 26 percent.

One big problem, as I’ve noted before, is that Web readership is infinitely measurable — too measurable for the good of the news business, perhaps. If you have a busy week at work and pitch your stack of unopened Globes at the end of the week, no advertiser will be the wiser. By contrast, an online advertiser will know exactly how many readers saw her ad, how many clicked on it and how many used it to buy something.

There’s no going back, but right now the formula completely favors the advertiser. There’s got to be some way of restoring the balance.

McCain and abortion rights

Scott Helman’s story in today’s Globe about Republican flip-floppers only provides a hint of Sen. John McCain’s tortured history with respect to abortion rights. Helman, whose intent is to show that former Massachusetts governor Mitt Romney is not the only GOP flip-flopper, writes this about McCain:

McCain has also made conflicting comments about whether he believes Roe v. Wade, the landmark 1973 Supreme Court decision that legalized abortion, should be overturned. He told the San Francisco Chronicle in 1999 that he did not support a repeal. But earlier this year, speaking to about 800 people in Spartanburg, S.C., he sought to assure conservatives that he did.

“I do not support Roe versus Wade. It should be overturned,” McCain said, according to the Associated Press.

That’s true, as far as it goes. But McCain did not wait eight years to renounce his 1999 remarks about Roe v. Wade, as you might be led to believe from Helman’s article; in fact, he started backpeddling almost immediately. Yet even though McCain had been a pro-life conservative for his entire political career, he was never quite able to reassure the right during the 2000 presidential campaign. Every time he opened his mouth about abortion, he committed a gaffe, defined by Michael Kinsley as when a politician accidentally tells the truth.

Consider, for example, a Robert Novak column from Aug. 26, 1999, shortly after the Chronicle reported McCain’s seeming change of heart. (I couldn’t find the original Chronicle article.) Novak began thusly:

Perhaps spending the day with rich, liberal northern California Republicans, who cannot win elections but contribute lots of money, had its impact on Sen. John McCain. That is the only plausible explanation for his telling the San Francisco Chronicle editorial board last week that “certainly in the short term, or even the long term, I would not support repeal of Roe v. Wade.”

“It was a mistake, a terrible mistake,” a McCain adviser told me, contradicting his presidential campaign’s official line that the senator’s opposition to abortion had not diminished (using the old saw that his remarks were taken out of context). McCain spent the weekend trying to straighten out his position, and was still sculpting his language Tuesday, five days after his first remarks.

McCain’s mistake was explained privately by supporters as common to Republican politicians who don’t care much or know much about abortion. They try to please both grass roots, pro-life activists and the well-heeled, pro-choice campaign contributors, in abundance last Thursday when McCain addressed San Francisco’s Commonwealth Club. But it is a special problem for McCain. Waffling on abortion confirms his developing image as the most liberal Republican candidate, which might give him momentary pleasure as runner-up, but deny him ultimate satisfaction as the nominee.

McCain’s abortion problem was no mere slip in San Francisco. His staff knew he blundered and sought quick correction. Appearing Sunday on CNN’s “Late Edition,” he no longer mentioned “the long term,” but still opposed getting rid of Roe v. Wade “immediately.” That didn’t work either. Later that day, he issued a written statement: “I have always believed in the importance of the repeal of Roe v. Wade, and as president I would work toward its repeal.”

But in both Sunday’s CNN interview and his written statement he repeated the canard that immediate repeal “would force thousands of young women to undergo dangerous and illegal operations.”

After much polishing by his staff, McCain sent a letter to the Right to Life Committee on Tuesday, affirming his desire to overturn Roe v. Wade, with not one word about “dangerous and illegal operations.”

I caught a glimpse of McCain’s attempts to have it both ways in February 2000, when I spent several days following McCain and George W. Bush around South Carolina in the run-up to their pivotal primary. Among other things, McCain was desperately trying to stress his conservative credentials after allowing himself to be portrayed as a moderate in libertarian New Hampshire, where he had handily defeated Bush.

Unfortunately, I didn’t quote McCain on abortion rights, so I can’t report exactly what he said. But I did write this, about an appearance McCain made on MSNBC’s “Hardball” at Clemson University: “McCain stressed his archconservative stand on social issues including gay marriage (‘it’s crazy’), abortion rights (he hopes the Supreme Court will someday overturn Roe v. Wade), and affirmative action (he’s staunchly against quotas).”

As I also wrote at the time, McCain was in trouble with the right for answering a hypothetical question about his 15-year-old daughter’s becoming pregnant by saying it would be her decision whether to have an abortion. He later “corrected” it by saying it would be a family decision.

The point of Helman’s story in today’s Globe is certainly valid: McCain and Rudy Giuliani, no less than Romney, have changed their minds on key issues as they seek the Republican nomination for president. Romney himself went after his two chief rivals earlier this week; Helman cites an Associated Press report in which Romney criticized McCain’s one-time opposition to overturning Roe v. Wade. The former governor said:

Senator McCain voted against the Bush tax cuts. Now he’s for them. He was opposed to ethanol. Now he’s for it. He said he was opposed to overturning Roe v. Wade. Now he’s for overturning Roe v. Wade…. That suggests that he has learned from experience.

So why does the flip-flopper charge seem to stick to Romney more than it does to his rivals? Republican operative Roger Stone tells Helman:

I think you can certainly move your political positions within a career and even within a campaign, but when you trade in your old philosophy for a new one, and you did it overnight across the board, it smacks of opportunism.

Well, yeah. I don’t think I can recall a politician who has so conveniently and quickly done a 180 on a whole range of social and cultural issues in order to repackage himself for a different audience and a different audience. Yes, they all do it to some degree, but Romney is unique in his thoroughness, moving from socially moderate — even liberal — to ultraconservative virtually overnight.

McCain is another matter. Eight years ago he failed in his attempts simultaneously to appease conservatives and moderates. This time, he’s falling short in his efforts to move to the right and stay there. Of course, as McCain himself has said repeatedly, he probably has no chance unless the war in Iraq — his main issue — starts to look like a winner. Sadly, there doesn’t seem to be much chance of that.