Clarence Thomas wants to eviscerate the First Amendment

The ad that led to a landmark libel ruling.

Previously published at WGBHNews.org.

If U.S. Supreme Court Justice Clarence Thomas had his way, First Amendment protections for freedom of the press could be turned back not just to the pre-civil rights era but to the pre-Civil War era as well.

Let me explain. On Tuesday, Thomas wrote that the court ought to overturn its landmark 1964 New York Times v. Sullivan decision and allow the states free rein in deciding what standards should prevail in libel suits. In Sullivan, the court ruled that to prove libel public officials would have to show defamatory material about them was published with the knowledge that it was false or with reckless disregard as to whether it was true or false. That standard, known as “actual malice,” was later extended to public figures as well.

Now Thomas would reverse that. “The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas said. “We should reconsider our jurisprudence in this area.”

But the Sullivan decision was grounded in the failure of states to respect the right of the press to engage in “uninhibited, robust, and wide-open” debate, as the court put it, including “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The truth of the matter is that members of the white power structure in the South were seeking to weaponize libel laws in order to prevent the national press from reporting on its suppression of the civil rights movement. If the court hadn’t intervened, they would have gotten away with it.

The story of Times v. Sullivan is well told in Anthony Lewis’ book “Make No Law: The Sullivan Case and the First Amendment.” Supporters of the Rev. Martin Luther King Jr. took out a full-page ad in The New York Times in March 1960 titled “Heed Their Rising Voices.” The ad contained several minor errors of fact. For instance, it stated that King had been arrested seven times on trumped-up charges; in fact, he had only been arrested four times. It said that black students at Alabama State College in Montgomery, Alabama, had been padlocked into their dining room “in an attempt to starve them into submission” — a bit of hyperbole that was not literally true.

L.B. Sullivan, the Montgomery city commissioner in charge of the police, sued the Times for libel even though his name appeared nowhere in the ad. Sullivan won a three-day trial in Alabama state court that was rigged in his favor. For instance, the following year, on the 100th anniversary of the founding of the Confederacy, Sullivan staged a re-enactment of the swearing-in of Confederate president Jefferson Davis, with the same judge who had presided over his libel trial administering the oath of office.

It was against this deeply racist backdrop that the Supreme Court acted to end such abusive libel cases in 1964. The solution hit upon by Justice William Brennan, who wrote the decision, was to hold the press harmless for unintentional errors of fact. As Andrew Cohen wrote in The Atlantic upon the 50th anniversary of the case several years ago, “If there were no Sullivan, there likely would not have been a release of the Pentagon Papers or a rigorous investigation into Watergate or much of any withering criticism of government that appears today in any medium.” Or as Lewis himself put it in another of his books, “Freedom for the Thought That We Hate: A Biography of the First Amendment,”“New York Times v. Sullivan revolutionized the law of libel in the United States.”

My contention that Justice Thomas would bring us back to the pre-Civil War era is based on his apparent contempt for how the 14th Amendment was used to extend freedom of the press. The amendment, adopted in the immediate aftermath of the Civil War, forbids the states from trampling upon rights guaranteed by the U.S. Constitution. It took a while for the Supreme Court to rule that the First Amendment was among those rights. But in the case of Gitlow v. New York (1925), the court cited the 14th Amendment in extending its jurisdiction for the first time over state laws regulating speech.

No matter that Benjamin Gitlow, the hapless communist who’d been convicted of violating New York’s criminal syndicalism law for publishing a turgid left-wing manifesto, was sent to prison anyway. By recognizing that “freedom of speech and of the press” are protected “from impairment by the States,” the court transformed “Congress shall make no law … abridging the freedom of speech, or of the press” into a guarantee pertaining to state and local government as well.

Thus Justice Thomas demonstrates not only ahistorical disdain for the role that combatting racism played in the Sullivan decision but also for the long-settled principle that state and local governments may not take away protections guaranteed by the Constitution. In his opinion this week, Thomas pays lip service to the 14th Amendment. But it’s hard to square that with his enthusiasm for turning over basic press protections to the tender mercies of the states.

Fortunately Thomas seems likely to find himself alone on this. President Trump, as we know, has spoken of his desire to “open up our libel laws.” But Adam Liptak, who covers legal affairs for the Times, wrote on Tuesday that both of Trump’s appointees, Justices Neil Gorsuch and Brett Kavanaugh, have spoken approvingly of Times v. Sullivan. The decision appears to be safe — at least for now.

Still, Thomas’ out-of-the-blue opinion — expressed in a decision about a libel suit involving Bill Cosby, of all things — shows that the battle for free speech is never completely won. Rather, it has to be fought, over and over again.

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Trump keeps threatening to weaken libel protections. It’s time to take him seriously.

The ad that sparked a libel revolution. See the original at the National Archives.

Among President Trump’s few animating principles is his deep and abiding belief that the libel laws were created for his personal enrichment. Thus it should have surprised no one when White House chief of staff Reince Priebus said over the weekend that Trump may seek to dismantle a vital protection against libel suits for journalists who report on matters of public interest.

“I think it’s something that we’ve looked at,” Priebus said on ABC News’ “This Week” in response to a question by Jonathan Karl. “How that gets executed or whether that goes anywhere is a different story.” Priebus added that news organizations must “be more responsible with how they report the news.”

Read the rest at WGBHNews.org. And talk about this post on Facebook.

Boston Herald settles libel suit

In a final coda to a longstanding libel suit, the Associated Press reports that the Boston Herald has agreed to pay $900,000 to Joanna Marinova, the woman whom the paper had falsely claimed engaged in “sexual acts” with an inmate she was visiting at Bridgewater state prison.

I’m not sure why there seems to be such a disparity between the $900,000 reported by the AP and the $563,000 cited last March by attorney Jeffrey Pyle in a guest commentary for Media Nation.

The details of the case are enormously complex. Here is what I wrote when the jury verdict against the Herald was handed down. It includes links to more background information.

The takeaway from the Herald libel verdict

PyleBy Jeffrey J. Pyle

What should we take away from Wednesday’s $563,000 jury verdict against the Boston Herald? As a lawyer who represents newspapers, magazines and broadcasters, I have a few thoughts.

Much of the attention on the case has focused on the provocative words “sexual acts.” That’s how the Herald described what happened between Marinova and her then-boyfriend, inmate Darrell Jones, in the visitor’s room of the Old Colony Prison in Bridgewater in November 2008. The Herald relied on a prison disciplinary report, but failed to mention that the report alleged only that Jones had kissed Marinova and touched her knee. Marinova’s lawyers argued that “sexual acts” means sexual intercourse, and thus the “gist” of the article was false and defamatory. The jury apparently agreed.

But if the only problem with this story had been the explosive description of the conduct as “sexual acts,” this case probably would never have made it to a jury. That is because the prison disciplinary report did, in fact, charge Jones with engaging in “sexual acts” with Marinova. The Herald put quotes around those words and cited the disciplinary report. So why wasn’t the Herald protected under the fair report privilege?

The fair report privilege, of course, is the age-old legal protection that allows the media to report on official proceedings without being held liable for fairly and accurately describing them. It’s an exception to the rule that a “republisher” of a libel (the press) is just as guilty as the original publisher (the false accuser). However, the privilege only applies to official government proceedings or statements, and any description of a proceeding must be fair and accurate.

The Supreme Judicial Court applied this rule in Howell v. Enterprise Publishing Co., where a public employee was fired for having inappropriately explicit images on his work computer. He sued the Enterprise for describing the images as “pornography” and “porn” — words he said were so exaggerated as to be inaccurate. However, a formal charging document against Howell described the images as “photographs and cartoon-style pictures of a pornographic nature.”

The court held that “[w]hether the images were pornographic or not,” the fair report privilege applied because “it was not substantially inaccurate or unfair” of the Enterprise “to report that the official accusation leveled against Howell was that the images were ‘pornographic.’” In other words, even if a reasonable person wouldn’t have considered the images “pornography,” the fair report privilege allowed the Enterprise to report that the town had charged him with possessing “pornography,” and thus the report wasn’t unfair or inaccurate.

By contrast, in Marinova, the jury heard a litany of ways in which the Herald failed to fairly and accurately describe the prison disciplinary report beyond the mere use of the words “sexual acts.” The article said that Jones was “cited” for “sexual acts” with Marinova, but failed to mention that a hearing officer had dismissed the charge, finding that the conduct did not, in fact, constitute “sexual acts.” A report is not fair, the SJC has ruled, if it is “edited and deleted as to misrepresent the proceeding and thus be misleading.” Second, the article suggested that Marinova herself had been “bagged” and “written up” for the acts. She was never charged with anything. In that sense, Marinova had a good argument that the report was inaccurate — that it did not convey a “substantially correct account of the proceedings,” in the SJC’s words. Third, the article said that Rep. Gloria Fox was under scrutiny for “sneaking” Marinova into the prison, even though Marinova, according to her lawyers, had been cleared to visit the prison just two days earlier. The jury found all these statements to be false and defamatory, and rejected the Herald’s argument that its article fairly and accurately described the disciplinary report.

The takeaway for journalists is pretty clear: when you’re reporting on official documents or proceedings, feel free to quote even their most salacious allegations. But, don’t ignore important elements of those proceedings, like a dismissal, or the fact that only one and not two people were charged. When you do, and the article hurts someone’s reputation, it’s easy for even a public figure to win a libel suit. The jury here found not only that the Herald’s reporter was negligent, but that she published the statements with knowledge of their falsity or with reckless disregard for the truth.

Jeffrey J. Pyle is a partner at the Boston law firm of Prince Lobel Tye and a trial lawyer specializing in First Amendment and media law.

Another perspective on the Herald libel suit

Here’s an interesting perspective on the Boston Herald libel suit. In July 2009, the Jamaica Plain Gazette reported that inmates were claiming that prison officials were cracking down on their efforts to reach out to young people as part of an anti-crime initiative. The article includes this:

Recent articles in the Boston Herald that claimed state Rep. Gloria Fox sneaked a woman into prison for illicit visits were incorrect, several sources told the Gazette, confirming a press statement issued by Fox. In fact, Fox also was responding to complaints about retaliation against prisoners, and the false tips that led to the Herald’s articles were part of that payback, according to Hudson and other sources.

“Hudson” is a reference to a prisoner named Mac Hudson. The Gazette story also quoted Steven Kenneway, head of the guards union, as denying that any retaliation had taken place.

The libel suit was brought by Joanna Marinova, an activist who, according to the Herald, was caught engaging in “sexual acts” with an inmate during a visit to the Old Colony Correctional Center in Bridgewater. On Wednesday, a Superior Court jury ruled that the Herald’s story, written by Jessica Van Sack, was false and awarded Marinova about $563,000.

The Herald maintains that its reporting was correct and, in this story, says “it will continue to defend its article and reporter Jessica Van Sack going forward.”

Tom Scholz loses libel case against Boston Herald

Brad Delp

Tom Scholz, founder of the band Boston, lost his libel suit against the Boston Herald on Wednesday. Suffolk Superior Court Judge ­Frances McIntyre ruled that the Herald’s reporting on what drove Scholz’s former bandmate Brad Delp to suicide was a matter of opinion, which is protected speech under the First Amendment. Boston Globe coverage here; Herald coverage here.

Delp killed himself in 2007, and the Herald’s “Inside Track” gossip columnists, Gayle Fee and Laura Raposa, subsequently reported that Delp’s ex-wife Micki Delp blamed his death on his falling-out with Scholz. I have not had a chance to read McIntyre’s decision, but according to the news coverage, she ruled that Micki Delp could not prove that she did not make that statement, and that, in any case, what led to Brad Delp’s suicide was a matter of opinion.

Raposa recently left the Herald to pursue other interests.

Scholz is reportedly considering an appeal. I hope he won’t. On the face of it, McIntyre’s decision seems like a sound one. As a public figure, Scholz would have to prove the Herald knew that its report was false, or that it strongly suspected it was false and published it anyway. By citing the opinion privilege, McIntyre removed the dispute beyond the realm of fact and into an area of speech that enjoys full constitutional protection. Enough.

Earlier coverage.

Photo (cc) by Craig Michaud and published under a Creative Commons license. Some rights reserved.

Globe versus Herald: Brad Delp edition (II)

Two days after the Boston Globe published a lengthy story by arts reporter Geoff Edgers questioning the Boston Herald’s defense in a libel suit brought by Tom Scholz, leader and founder of the band Boston, the Herald has struck back.

Edgers’ article, based on court documents, centered on the notion that Boston lead singer Brad Delp committed suicide in 2007 because he’d been caught placing a camera in the bedroom of his fiancée’s sister, Meg Sullivan. Scholz sued the Herald after Gayle Fee and Laura Raposa, the paper’s Inside Track gossip columnists, wrote that Delp’s ex-wife Micki Delp blamed the suicide on Scholz’s abusive behavior. (Last year a judge dismissed Scholz’s suit against Micki Delp, ruling she had done no such thing.)

The Herald’s Joe Dwinell today counters Edgers’ story with a statement from Sullivan blasting the Globe and Scholz:

The article printed recently in the Boston Globe seems to imply that Brad took his life because he was so horrified at the idea of confessing to my sister what he had done. The article neglects to print the fact that Brad had already told her about the incident. Quite contrary to what the article implies, Brad’s fear of the repercussions from the event between us was not the reason that he decided to end his life. They had discussed it and were dealing with it together as the loving couple they were….

Based on what I know, what I observed, what Brad told me before he took his life, what Brad told others before he took his life and several pretty clear facts, I do not believe that this incident was what led Brad to take his life. I am sorry, and I am outraged, that Mr. Scholz has treated Brad’s family and friends the way he has in the 5 years since Brad’s death, filing lawsuits, threatening lawsuits, serving subpoenas and forcing all of us to relive one of the most traumatic events of our lives. Whether he does this in order to obtain publicity, out of a penchant for bullying those without the resources to fight back, or for other reasons, I do not pretend to know.

Dwinell also writes a sidebar noting that Edgers appeared on television to discuss the case in February 2011 and, according to Dwinell, “seemed to endorse Scholz’s claims against the Herald.”

Since Edgers’ journalistic integrity is now being questioned, I should note that I worked with him at the Boston Phoenix some years back and considered him to be a good, reliable reporter. I now work with his wife, Carlene Hempel, at Northeastern.

Dwinell does not dispute the accuracy of Edgers’ reporting on court documents regarding the hidden-camera incident. And Edgers himself noted on Sunday that Sullivan believed Scholz had contributed to the depression that caused Delp to engage in such behavior.

As I wrote two days ago, “Libel suits contain many twists and turns.” The only thing we can be sure of is that if this ever goes to court, it’s going to be one hell of a trial.

Earlier coverage.

Globe versus Herald: Brad Delp edition

Brad Delp in 2006

In case you missed it, the Boston Globe uncorked a high, hard one at the Boston Herald on Sunday.

The Globe’s Geoff Edgers reported on court documents that strongly suggest the 2007 suicide of Brad Delp, lead singer of the band Boston, was tied to Delp’s having been caught placing a hidden camera in his fiancée’s sister’s bedroom. The documents portray Delp, who had long suffered from depression, as being distraught over the incident. He killed himself a little more than a week later.

The Herald is fighting a libel suit brought by Boston founder and leader Tom Scholz over a story in the paper’s Inside Track gossip column, which reported that Delp’s ex-wife, Micki Delp, had blamed the singer’s suicide on his poisonous relationship with Scholz.

Superior Court Judge John Cratsley dismissed Scholz’s suit against Micki Delp last August, ruling that though Micki Delp had spoken about her late husband’s “dysfunctional professional life,” it was the Herald that “create[d] the connection to Scholz” and thus his suicide.

Last Wednesday the Herald’s Joe Dwinell wrote about court documents in which friends of Delp portrayed Scholz as an abusive tyrant who belittled the other band members — behavior that reportedly sent the sensitive Delp into a deep depression. As Edgers noted in his Globe story, the Herald account makes no recognizable mention of the hidden camera.

Edgers quoted from a statement released by Herald spokeswoman Gwen Gage in which she hailed her paper’s “accurate and excellent” coverage of the libel suit and criticized the Globe for letting “journalistic rivalry getting the better of editorial judgment.”

Libel suits contain many twists and turns, and the court papers Edgers cited do not necessarily contradict the theory that Scholz’s allegedly abusive behavior led Delp to kill himself.

For instance, Edgers noted that the fiancée’s sister, Meg Sullivan, at one point said, “I believe that Tom Scholz and Boston caused the depression which caused Brad to put a camera in my bedroom.”

Earlier coverage.

Photo (cc) by Carl Lender and republished here under a Creative Commons license. Some rights reserved.

Former Liberian dictator threatens to sue Boston Globe

Days before the Boston Globe published a withering editor’s note essentially retracting its Jan. 17 story about former Liberian dictator Charles Taylor’s alleged ties to the CIA, African news sources were reporting that Taylor was threatening to sue the Globe for libel.

Taylor escaped from a jail in Plymouth, Mass., in 1985, under circumstances suspicious enough to stoke rumors that U.S. authorities were involved. He is now facing charges in a war-crimes trial stemming from his brutal reign.

This past Monday, two days before the editor’s note appeared, the New Dawn, based in the Liberian capital, Monrovia, quoted Taylor’s lawyer, Courtenay Griffiths, as saying that Taylor denied having worked as a spy for the U.S. government. The article includes this:

“I spoke with Mr. Taylor,” Mr. Griffiths said. “He was very adamant that he has never worked for any American (spy) agency. The Liberian Security Agencies have worked … His National Patriotic Party of Liberia (NPFL) … But he as an individual has never worked (for the US Intelligence Agency).

“I know Mr. Taylor is very angry and he is not taking this likely [sic],” Griffiths told the New Dawn.

The story was carried in All Africa, which aggregates African news from a variety of sources. It includes the text of a letter Griffiths said he sent to Globe editor Marty Baron and others at the newspaper demanding copies of the documents they relied on in putting together their report. But the Globe now tells us there are no documents.

The editor’s note couldn’t be much tougher. It begins: “A front-page story on Jan. 17 drew unsupported conclusions and significantly overstepped available evidence when it described former Liberia president Charles Taylor as having worked with US spy agencies as a ‘sought-after source.'”

It goes on to describe the Globe’s longstanding Freedom of Information Act request that U.S. officials turn over documents related to what if any relationship the government had with Taylor. But though the Jan. 17 story, by longtime Globe staff reporter Bryan Bender, appears to be based at least in part on the documents, the editor’s note says otherwise:

[The US Defense Intelligence Agency] offered no such confirmation; rather, it said only that it possessed 48 documents running to 153 pages that fall in the category of what the Globe asked for — records relating to Taylor and to his relationship, if any, with American intelligence going back to 1982. The agency, however, refused to release the documents and gave no indication of what was in them.

The editor’s note concludes:

Taylor, now standing trial before a UN special court on charges of rape, murder and other offenses, denies he was ever a source for US intelligence. The Globe had no adequate basis for asserting otherwise and the story should not have run in this form.

There is still much that we don’t know. For instance, on Tuesday, Africa Review reported that Griffiths had “acknowledged that the Liberian Security agencies as well as his [Taylor’s] National Patriotic Party of Liberia worked or associated with US intelligence organs but not himself personally.” That’s hardly a blanket denial.

And at Foreign Policy’s Passport blog, Joshua Keating doesn’t seem all that upset about Taylor’s injured feelings. Calling the Globe’s note a “near retraction,” Keating nevertheless ends with this: “The fact that these ‘records relating to Taylor and to his relationship, if any, with American intelligence’ [quoting the Globe] exist but the CIA won’t release them is only going to increase the curiosity about what they contain. The correction is unlikely to stop the rumor mills in Monrovia, Washington, or The Hague.”

Bender is a good and careful reporter, and it seems pretty clear that there are other shoes yet to be dropped. The only thing we can say for certain at this point is that it’s all way too weird to come to any conclusions.

Appeal filed in bloggers-aren’t-journalists case

Lawyer-blogger Eugene Volokh has filed an appeal in the matter of the Montana blogger who lost a $2.5 million libel case after a federal judge ruled she was not entitled to the legal protections enjoyed by journalists.

“The motion for new trial,” Volokh writes, “argues that the First Amendment applies equally to all who speak to the public, whether or not they belong to the institutional media.”

I wrote about the case last month for the Huffington Post. In a nutshell, U.S. District Judge Marco Hernandez ruled that Crystal Cox, a self-described “investigative blogger,” could not be considered a journalist under Oregon law, where she was sued. Hernandez wrote that he reached that conclusion because Cox did not work for a newspaper or broadcast outlet, and because she lacked training and failed to demonstrate professional standards.

Hernandez’s ruling had two effects. First, Cox could not invoke Oregon’s shield law to protect her source or sources, whose identity was sought by the plaintiffs, a financial-services company and one of its executives. That ruling was actually of little account, since even established media organizations can’t invoke shield laws to defend themselves against libel suits.

Of far more importance was Hernandez’s ruling that the plaintiffs would not have to prove Cox had acted negligently — only that what she had published was false and defamatory. In the 1974 case of Gertz v. Robert Welch, the U.S. Supreme Court ruled that libel plaintiffs must prove the defendant acted with some degree of fault, with negligence as the lowest standard the states could require. But, seizing on an ambiguity in the wording, Hernandez claimed the Gertz protection only applies to professional journalists.

Volokh, by contrast, argues that the U.S. Supreme Court has made it clear for many decades that journalists do not enjoy any special protections under the First Amendment — meaning that any rulings the court has made about the press apply to everyone, not just to those carrying a press pass from a newspaper or television station. (Which was the main thrust of my Huffington Post commentary.) According to the brief, filed by Volokh and Benjamin Souede:

[W]hile the Oregon Supreme Court’s decision establishes what Oregon state libel law is, it is the judgments of the United States Supreme Court that are controlling on the First Amendment question. The United States Supreme Court has never held that the institutional press enjoys such extra rights. All the federal courts of appeals that have considered this question have specifically held that the institutional press lacks any such extra rights.

As several people who’ve looked at this case have reported, most notably David Carr of the New York Times, there is ample evidence that Crystal Cox’s conduct was reprehensible, and that the plaintiffs — Obsidian Financial Group and one of its executives, Kevin Padrick — might easily have won their libel case even if they had been required to meet the Gertz negligence standard.

What makes this case important is not Cox, but rather the principle that all of us — not just professional journalists — should be able to speak and write freely without inadvertently running afoul of libel laws.