A federal appeals court rules that NH’s criminal libel law is constitutional

The 1735 trial of John Peter Zenger

If we know anything about libel law, then we know that false, defamatory speech is not a crime. It’s a civil matter, to be worked out between the two parties in court. Right? Well … hold on.

On Tuesday, the U.S. Court of Appeals for the First Circuit ruled that New Hampshire’s criminal-libel statute passes constitutional muster. The case was especially pernicious because the defendant, Robert Frese, was charged with claiming that the police chief in his town of Exeter was a coward who had “covered up for a dirty cop.” That statement may be entirely false; but the idea that someone could be charged with a misdemeanor for criticizing the police is chilling indeed.

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In 2019, I gave the Exeter Police Department a New England Muzzle Award for charging Frese with a misdemeanor, writing that the New Hampshire law amounted to “seditious libel, making it a crime to criticize the government.” It’s something we thought had faded away with John Peter Zenger, a New York printer who was acquitted nearly 300 years ago.

But Judge Jeffrey Howard, noting that the Supreme Court’s landmark 1964 Times v. Sullivan decision does not protect knowingly false, defamatory speech directed at public officials, ruled that Frese did not have a case. Howard wrote:

Mindful of the Supreme Court’s guidance that “the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection[,]” we conclude that Frese’s allegations fall short of asserting viable constitutional claims.

No one would be surprised that Howard would assert that Times v. Sullivan doesn’t protect knowingly false, defamatory statements. But his assertion that such statements may form the basis of a criminal case rather than a civil lawsuit is worrisome — especially at a time when there are rumbles coming out of the Supreme Court that it may be inclined to dial back libel protections, as I wrote for GBH News last year.

Judge Howard and his colleagues had a chance to stand up for freedom of speech. Instead, they chose something else.

A federal judge deals a huge setback to Nicholas Sandmann’s legal crusade

Nicholas Sandmann, the former Kentucky high school student who sued multiple media organizations after he was described as “blocking” a Native American activist in Washington, has just lost big-time. On Tuesday, a federal district court judge threw out his libel claims against The New York Times, CBS News, ABC News, Gannett and Rolling Stone. Erik Wemple of The Washington Post tweeted out the news Tuesday night:

Judge William Bertelsman granted summary judgment, which means that he found Sandmann’s case so lacking that it should not proceed to a full trial, according to Hailey Konnath of Law360.

Sandmann achieved fame and notoriety in 2019 when he and his fellow students at Covington Catholic High School were confronted by a Native American activist named Nathan Phillips while they were demonstrating against abortion rights. Videos of the scene showed Sandmann wearing a “Make America Great Again” cap and standing his ground, apparently refusing to move for Phillips, who got extremely close to Sandmann while beating a drum.

Phillips told reporters that Sandmann “blocked my way and wouldn’t allow me to retreat,” a statement that formed the basis of Sandmann’s libel suits. Judge Bertelsman ruled that Phillips’ words were a matter of opinion, not fact, and that opinion that can neither be proved true or false was protected under the First Amendment. Bertelsman wrote that

a reasonable reader would understand that Phillips was simply conveying his view of the situation. And because the reader knew from the articles that this encounter occurred at the foot of the Lincoln Memorial, he or she would know that the confrontation occurred in an expansive area such that it would be difficult to know what might constitute “blocking” another person in that setting.

Sandmann had already settled out of court with The Washington Post, CNN and NBC News — actions I hope they now regret. Deep-pocketed media defendants in libel suits should refuse to settle when weak claims are filed against them lest they provide an incentive for others to file similar suits.

Sandmann’s lawyer says he plans to appeal. But of course.

Should a media defendant be able to keep sources confidential in a libel suit?

Everett Square circa 1905. Photo is in the public domain.

Adam Gaffin has a wild story in Universal Hub about a lawsuit filed against the Everett Leader Herald and the city clerk by Everett Mayor Carlo DeMaria. There are all kinds of entertaining details. Among other things, we learn that the Leader Herald “has referred to DeMaria as ‘kickback Carlo,’ said he is ‘on the take,’ and referred to ‘DCF,’ or ‘DeMaria’s Crime Family.’”

What caught my eye, though, was that the Leader Herald has agreed to go along with a court order to identify 10 of 12 confidential sources. The names had previously been given to Superior Court Judge James Budreau, who ruled that their claim to anonymity was weak. In the following excerpt from Budreau’s opinion, Resnek is a reference to Joshua Resnek, the publisher and editor.

A threshold question facing the Court is whether Defendants have insufficiently supported their claim that the 12 sources used by Resnik [sic] in the articles core to this litigation were given a promised [sic] of confidentiality in exchange for their information…. Defendant Resnek subsequently filed an affidavit which states that all the sources at issue had “provided information to me based on the promise/understanding that their names/identities would not be revealed and would be kept confidential.” Not only does this averment lack specificity for each of the 11 [?] alleged confidential sources, but it’s unclear whether each source was promised or merely understood or believed that their identities would not be disclosed. If they understood, what was the basis of their understanding?

In other words, the judge concluded that Resnek failed to make a strong case that the sources had been granted confidentiality in the first place. Perhaps that will take the sting out of Resnek’s decision to go along with the judge’s order and allow those sources to be publicly identified.

The problem of keeping sources confidential in a libel case is reminiscent of a dilemma that The Boston Globe faced in 2002, when the paper was sued by Dr. Lois Ayash for incorrectly identifying her as the “leader of a team” that signed off on an overdose of an experimental chemotherapy drug that was given to two patients at Dana-Farber Cancer Institute. One of those patients was Globe reporter Betsy Lehman, who died as a result of the overdose.

In that case, the Globe refused an order by Superior Court Judge Peter Lauriat to reveal his confidential sources. Lauriat ruled that, because Ayash did not have the evidence she needed to pursue her suit — evidence to which she was entitled as a matter of law — then she should win her case by default.

“The Boston Globe, long a champion of the freedom of information and of unfettered access to public (and even not-so-public) records, has unilaterally and unnecessarily interrupted the free flow of information that may be critical to Ayash,” Lauriat wrote, according to an account by the Reporters Committee for Freedom of the Press. A jury awarded her $2 million, a judgment that was upheld by the state’s Supreme Judicial Court in 2005.

Richard Knox, the Globe reporter whose story was at issue in Ayash’s libel suit, thought the court should have respected his promise not to identify his confidential sources. “I’m disappointed that the courts don’t understand that honoring commitments to sources goes to the heart of what journalists do every day,” he was quoted as saying.

But though Knox and the Globe may have acted out of principle, they were mistaken to think that should have come without a cost. In fact, there is no ironclad legal right for journalists to protect their confidential sources. I’d say that Judge Lauriat made the right call in demanding that the Globe give up its sources; after all, Ayash was entitled to make her best case. The Globe also made the right call, expensive though it was, by saying no.

The situation in Everett, by contrast, is weird and hard to parse. Is Resnek really breaking a promise of confidentiality if the guarantees he made to his sources were not plainly stated, as Judge Budreau suggests? Needless to say, it will be interesting to see what those sources have to say.

The Supreme Court may be poised to weaken libel protections for the press

Photo (cc) 2005 by zacklur

Previously published at GBH News.

If we’ve learned anything about right-wing politics in the Age of Trump, it’s that what once seemed impossible becomes plausible — and then morphs into a new reality. We’ve seen it with the refusal to accept the outcome of a democratic election. We’ve seen it with attacks on face masks and vaccines. And now we may be seeing it with libel law.

For more than half a century, protections enacted by the U.S. Supreme Court have shielded the press by enabling journalists to hold the powerful to account without having to worry about frivolous libel suits. The 1964 case of New York Times v. Sullivan established the principle that a public official would have to prove a news organization acted with “actual malice” — meaning that the offending material was known to be false or was published with “reckless disregard for the truth.” That standard was later extended to public figures as well. The decision provided journalism with the armor it needed to report fearlessly, enabling stories such as the Pentagon Papers and Watergate.

It seemed impossible that this bulwark would fall when, during the 2016 presidential campaign, then-candidate Donald Trump promised to “open up libel laws” in order to make it easier for people to sue media outlets. And it seemed only slightly less impossible in early 2019, when Supreme Court Justice Clarence Thomas wrote an intemperate dissent arguing that Times v. Sullivan should be overturned in its entirety, returning libel law to the tender mercies of the states.

After all, the actual malice standard was enacted because the racist white power structure in the South had weaponized libel during the civil rights era as a way to intimidate the press. Surely Thomas’ fellow justices had no desire to return to those blighted days. Besides, a strong First Amendment appeared to be one of the few areas on which liberal and conservative judges agreed.

But weakening those protections began to seem more plausible several months ago when Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia praised Thomas — and joined his call to overturn Times v. Sullivan. Silberman threw a judicial tantrum, blasting what he viewed as liberal media bias and writing that “when the media has proven its willingness — if not eagerness — to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press’ power.”

Impossible. Then plausible. And, now, a glimmer of a potential coming reality: Earlier this month, Supreme Court Justice Neil Gorsuch joined Thomas in dissenting from a decision not to hear a case brought by the son of a former Albanian president against the author of a book who’d accused him of illegal gunrunning. Thomas’ opinion bristles with indignation and approvingly cites Silberman. Gorsuch, in turn, cites Thomas. But unlike Silberman and Thomas, Gorsuch’s opinion is all sweet reasonableness, discussing how much the media have changed since 1964 and asking, gosh darn it, why we shouldn’t acknowledge that social media, cable news and clickbait websites require a different approach to libel.

Arguing — correctly, I should note — that the actual malice standard allows media outlets to escape a libel judgment if they can prove they believed the defamatory falsehoods they published were true, Gorsuch writes: “It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy…. Under the actual malice regime as it has evolved, ‘ignorance is bliss.’”

Gorsuch’s conclusion oozes good intentions. “I do not profess any sure answers,” he writes. “I am not even certain of all the questions we should be asking. But given the momentous changes in the Nation’s media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the ‘safe deposit’ of our liberties.”

Gorsuch’s opinion relies heavily on an academic paper titled “Rescuing Our Democracy by Rethinking New York Times Co. v. Sullivan,” by David A. Logan, a professor at the Roger Williams University School of Law. Logan writes that actual malice has provided the media with “what amounts to an absolute immunity from damages actions for false statements,” which in turn has “facilitated a torrent of false information entering our public square.”

Logan’s examination of the data shows that libel judgments have plunged in the years since Times v. Sullivan, suggesting that the decision has created a nearly insurmountable obstacle to public officials and public figures who’ve been wronged. He suggests several possible remedies, such as narrowing the definition of a public figure or devising a system that would allow plaintiffs to “secure a judgment of falsehood in return for giving up a claim for damages.”

And he closes with the big one: getting rid of the actual malice standard altogether and replacing it with something easier to prove, such as “highly unreasonable conduct.”

Changes that result in fewer protections for the press make me queasy. But if the Supreme Court is serious about revisiting actual malice, then adopting something like a juiced-up negligence standard, as Logan proposes, wouldn’t necessarily be the worst outcome. Negligence is already the standard for private figures in most states, as laid out in the 1974 case of Gertz v. Robert Welch. It would certainly be better than overturning Times v. Sullivan altogether.

But remember: What seems impossible today may become reality in the not-too-distant future. Changes to libel protections that we had long taken for granted are starting to look inevitable, especially in the hands of a Supreme Court built by Trump and Mitch McConnell. Let’s just hope the justices don’t do too much damage to the press’ ability to hold the powerful to account.

Muzzle follow-up

Well, it happened. The 2021 New England Muzzle Awards, published on July 1, singled out former President Donald Trump for whipping up fears about race in the classroom. As I noted, New Hampshire was one of several states considering a ban on the teaching of “divisive concepts” about race and gender in public schools and in the workplace.

Trump won. Last Friday, the Portsmouth Herald reported that the ban was inserted into the state budget by Republican legislators, and Gov. Chris Sununu, also a Republican, signed it into law. Oyster River Superintendent James Morse called the new law “a fundamental affront to academic freedom in teaching in terms of teachers making decisions on how they apply the curriculum set by the school board.”

About that libel suit against Fox

Dominion’s libel suit against Fox seems pretty solid given that it was the company’s own hosts, not just their guests, who were spreading false information. And if they actually believed what they were saying — the key to an “actual malice” defense — surely their bosses knew better.

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.”