Photo from the Middlesex County district attorney’s office via NHPR
It’s been a major loose end in a frightening story about harassment and threats directed at journalists.
Four men have been sentenced to federal prison for carrying out a campaign of terror against New Hampshire Public Radio journalist Lauren Chooljian, her parents and her editor, Dan Barrick. All four appeared to be motivated by Chooljian’s reporting on Eric Spofford, the founder of several addiction treatment centers, who, according to Chooljian’s reporting, had engaged in sexual abuse and harassment.
Yet Spofford denied any involvment and was not charged. He even turned around and sued Chooljian and NHPR for libel, a suit that was dismissed by a New Hampshire state judge.
Now, according to a story by WBUR and posted at NHPR, federal authorities are charging Spofford with orchestrating a conspiracy to vandalize the homes of Chooljian, her parents and Barrick — vandalism that included threatening and offensive graffiti. The story says in part:
Prosecutors say Spofford paid his close friend, Eric Labarge, $20,000 in two installments to vandalize the homes in 2022. Spofford allegedly provided the addresses and specific instructions on what to do. Labarge then found three others to carry out the attacks.
Spofford reportedly lives in Salem, New Hampshire, and in Miami. He was arrested Friday and will be arraigned in U.S. District Court in Boston on Monday. According to a press release from the U.S. attorney’s office, Spofford, 40, was indicted by a grand jury on four counts of conspiracy and stalking. If he’s found guilty, he could face a prison sentence of up to five years and a fine of up to $250,000 on each of the four counts.
The harassment endured by Lauren Chooljian, a reporter for New Hampshire Public Radio, is frightening and horrifying. David Enrich of The New York Times reported last week (free link) that Chooljian, her parents and her editor have been subjected to vandalism and threats after she reported on sexual misconduct allegations against Eric Spofford, who founded the state’s largest network of addiction treatment centers.
Spofford denies having anything to do with the vandalism. But there’s an interesting wrinkle to the case that I want to discuss, and that’s Spofford’s libel suit against Chooljian and NHPR. Because of Spofford’s prominence, he has been designated as a public figure, which means that he must show actual malice (as well as falsity and defamation) in order to win his suit. Actual malice, as you probably know, requires that the plaintiff prove the defendant published the offending material despite knowing or strongly suspecting it was false.
NHPR has been ordered by Judge Daniel St. Hilaire to turn over transcripts of interviews, including with anonymous sources. “Legal experts,” Enrich wrote, “called the ruling unusual and alarming, saying such decisions could make it harder for journalists to investigate potential wrongdoing by public figures.” And Enrich quoted one of those experts, Chad Bowman, as saying it was “‘deeply troubling’ for a judge to force journalists to hand over unpublished materials when the plaintiff hadn’t yet made a viable legal claim.”
The last part of that statement is the key: Spofford has not yet presented the sort of evidence that would suggest he could win if allowed to proceed. St. Hilaire seems to be putting the cart before the horse. But if Spofford does have a viable case, then he’s entitled to gather the evidence he needs to pursue it. Remember, he needs to prove actual malice. That means it’s essential that he be allowed to probe the inner workings of Chooljian’s and NHPR’s reporting and editing processes to see whether they knew what they were broadcasting was false or if they harbored any serious doubts about it.
At one time libel had been regarded as what you might call a no-fault tort. That is, if you could show that you had been defamed with falsehoods, then you would win your case, regardless of the news organization’s motivation. In the 1974 case of Gertz v. Robert Welch, however, the Supreme Court ruled that even private individuals would have to prove negligence. With at least two members of the current Supreme Court, Justices Clarence Thomas and Neil Gorsuch, having suggested they’d like to revisit libel law, it’s worth thinking about whether negligence might be a better standard than actual malice, even for public officials and public figures.
The problem with actual malice has always been that though it makes it extremely difficult for a plaintiff to win a libel suit against the news media, it also gives the plaintiff entree into a news outlet’s private communications. Consider that, in 2005, The Boston Globe lost a libel suit brought by a doctor in the case of Betsy Lehman, a Globe reporter who died after receiving a massive overdose of a chemotherapy drug. In that case, the judge ruled that Dr. Lois Ayash won what turned out to be a $2 million judgment by default after the Globe refused to turn over its confidential sources, as the judge had ordered.
Ayash was entitled to that information, but there was no way the Globe was going to betray its confidential sources. If a negligence standard had been in effect rather than actual malice, then the jury could have determined whether the Globe had acted negligently without probing into its reporting processes.
So, too, with the NHPR case. The problem here, again, is that it’s not clear whether Chooljian reported anything that was false. Truth is almost always considered an absolute defense in a libel case, which is why Judge St. Hilaire seems to be acting prematurely. Nevertheless, the case is a good illustration of why actual malice — defined in the landmark Times v. Sullivan case in 1964 — may have been a mistake, and why negligence may be a more workable standard.
