Tag: libel

Judge upholds fair-report privilege in Herald case

Sounds like musician Tom Scholz is really reaching as he pursues his libel suit against the Boston Herald.

Scholz, as you may know, claims that the Herald’s “Inside Track” gossip column libeled him by reporting in 2007 that Micki Delp had said Scholz bore some responsibility for the suicide of her ex-husband, Brad Delp. Scholz was the founder and leader of the band Boston, and Delp was the lead singer.

Apparently Scholz also charged that the Herald libeled him by reproducing parts of those articles in reporting on his lawsuit against the paper when he filed it in 2010. One problem: the articles were an official part of the lawsuit.

Which means that the Herald had every right to report on the contents of those 2007 articles accurately, even if they ultimately are proved to be libelous. Which means, too, that Superior Court Judge John Cratsley dismissed Scholz’s complaint about the 2010 articles yesterday. As the nationally renowned First Amendment lawyer Floyd Abrams told the Herald:

It’s a complete victory based on deeply rooted principles of English and American law. It’s a privilege of the press to publish a fair account of just about anything that happens in court. Without that right, the public would never know what goes on in court.

The fair-report privilege is a vital protection for the press. Because of the privilege, for instance, a reporter may write about what takes place at a city council meeting without having to worry whether someone might have said something libelous.

As Abrams (and Cratsley) notes, court proceedings are covered by the privilege as well. I still recall reporting on a rather outrageous allegation someone had told me he’d included in a lawsuit he’d filed. The Boston Phoenix’s lawyer flagged it before publication. I double-checked, showed my editor the language in the lawsuit and the lawyer told us to go ahead and publish.

The Herald is still at risk over its 2007 reports. Cratsley recently dismissed Scholz’s suit against Micki Delp, ruling that the statements at issue were solely the Herald’s responsibility. Yesterday’s ruling, though, was a victory not just for the Herald, but for the First Amendment — and all of us.

The Boston Globe covers yesterday’s ruling here. Earlier coverage of the Scholz lawsuit here.

How will ruling in Scholz lawsuit affect the Herald?

A Superior Court judge’s ruling in the messy legal aftermath of Boston singer Brad Delp’s suicide represents a setback for Boston founder Tom Scholz, the Boston Herald reports. But what effect it will have on Scholz’ libel suit against the Herald itself is unclear.

Judge John Cratsley dismissed Scholz’s suit against Delp’s ex-wife, Micki Delp, ruling that Scholz failed to prove she had defamed him. Relying in part on quotes from Micki Delp, the Herald’s Inside Track reported shortly after Brad Delp’s 2007 suicide that she blamed her ex-husband’s death on Scholz.

But Cratsley’s decision goes on to say that some of the Herald’s reporting that might be found libelous was not traceable to Micki Delp:

While Micki’s statements speak to Brad’s “dysfunctional professional life,” … it is the Boston Herald writers who create the connection to Scholz and the possible implication that Scholz was responsible for the “dysfunction” and thus, Brad’s suicide.

Cratsley said that Micki Delp made six statements to the Herald (two of which she denied having made) and that those statements were about her ex-husband and his state of mind — not about Scholz. “The Herald writers, for whatever reason, added Scholz’ name and his quotes [in response to Micki Delp’s statements],” the judge wrote. “So if there is any possibility that the article is ‘of and concerning’ Scholz, it is the Herald writers’ doing.” (“Of and concerning” is a reference to one of the legal standards for proving libel.)

As I wrote earlier this year, it would have a chilling effect if the Herald were held liable for statements by Micki Delp whose veracity the newspaper had no reason to doubt. But if Scholz’ lawyer, Howard Cooper, is able to show that the Herald libeled him on its own, without any reliance on Micki Delp, then that would be another matter entirely.

I realize this is all a bit murky. I hope one of our legal bloggers takes this on in the next day or so.

A troubling libel suit against the Herald

Brad Delp

Geoff Edgers’ story in Sunday’s Boston Globe on the troubled life of Boston singer Brad Delp raises some interesting questions about libel law. The most important is this: If a newspaper publishes a report that is accurate, what obligation does it have to verify that it is also true?

Following Delp’s suicide in 2007, the Boston Herald’s Inside Track reporters, Laura Raposa and Gayle Fee, wrote that Delp’s ex-wife, Micki Delp, blamed Delp’s death on his troubled relationship with Tom Scholz, Boston’s founder and leader. According to court documents examined by Edgers, the Tracksters also relied on e-mails from Micki Delp’s sister Connie Goudreau. (Here’s some more background on the case and its principals.)

Scholz, in turn, sued Micki Delp and Connie Goudreau for defamation, and in 2010 filed a libel suit against the Herald as well, charging that the Herald should have known Micki Delp had a personal vendetta against Scholz. Goudreau has settled with Scholz, but the other cases remain unresolved.

Edgers presents powerful evidence that Delp’s suicide should not be blamed on Scholz. Delp had suffered from depression for years, and his relationship with his fiancée, Pamela Sullivan, was troubled. Still, who knows what could drive a person to suicide?

In simple terms, the legal question is whether the Herald was obliged to go beyond accurately reporting what Micki Delp and Goudreau were telling its reporters and determine whether their accusations against Scholz were actually true. Was Delp as upset with Scholz as his ex-wife and sister-in-law claimed? Did that so traumatize Delp that it could have contributed to his suicidal state of mind?

A verdict against the Herald would be very bad news for the press. Because Scholz is a public figure, he would have to prove that the Herald knew or strongly suspected that its reporting was false. Even if Fee and/or Raposa knew Micki Delp had it in for Scholz, it doesn’t necessary follow that they thought she was lying.

In the relevant Supreme Court case, Harte-Hanks Communications v. Connaughton (1989), the court found in favor of a public official who’d been maligned after it was proven (among other things) that the managing editor of the local newspaper literally ordered reporters not to interview a source or examine documents that might contradict the story she wanted to publish.

That is not remotely what’s at issue in the Scholz case. Based on Edgers’ article, it seems to me that not only did Fee and Raposa not doubt they’d gotten the story right, but that Scholz would have a very difficult time proving they’d gotten it wrong in any definitive way.

Photo (cc) by Craig Michaud via Wikimedia Commons and republished here under a Creative Commons license. Some rights reserved.

Libel suit filed over Gloria Fox’s prison visit

Rep. Gloria Fox

The Boston Herald has been hit with a libel suit for the second time this year. The Boston Globe’s David Abel reports that the plaintiff is Joanna Marinova, who accompanied state Rep. Gloria Fox, D-Boston, to the Old Colony Correctional Center in Bridgewater last year.

The Herald published a front-page story on May 28 by Jessica Van Sack claiming Fox had snuck Marinova in to see her boyfriend, a convicted murderer named Darrell Jones, and that Marinova had been “previously bagged for engaging in ‘sexual acts’ with the killer con.” The Herald cited “two prison sources,” both anonymous.

Marinova sued the Herald and WHDH-TV (Channel 7), which also ran the story, saying through her lawyer, David Rich, that the news organizations “blatantly ignored readily available facts that would have demonstrated the falsity of these assertions.”

According to Abel, the Herald declined to respond and no one at Channel 7 would return his calls.

As with a libel suit recently brought against the Herald by Tom Scholz of the band Boston, it makes sense to wait and see what’s in the Herald’s and Channel 7’s official response. In this case, though, Adam Reilly did some reporting last year for the Boston Phoenix that cast considerable doubt on (1) the Herald’s claim that Fox had falsely portrayed Marinova as her aide and (2) that Marinova and Jones had engaged in illicit sex during a prison visit.

Reilly, now a producer with “Greater Boston” on WGBH-TV (Channel 2), noted that Marinova had told the Globe that the so-called sexual contact for which Jones had been punished consisted of Jones touching her knee during a visit. And Reilly pointed to other sources, including Jones’ blog and an official report, that tend to support that version of events.

If the Herald’s and Channel 7’s reporting was wrong, that doesn’t necessarily mean they committed libel. Even though it is Marinova who’s suing, it’s Fox’s involvement that made this a newsworthy story. A judge could rule that because Fox is a public official, Marinova must prove that the Herald and Channel 7 either knew their reporting was wrong or strongly suspected it, yet went ahead anyway — a legal standard known as “reckless disregard for the truth.”

On the other hand, a judge could rule that because Marinova herself is a private person, then she need only prove that the defendants acted negligently.

Looking down the road, I would imagine that Marinova will try to force the defendants to reveal their confidential sources as well.

Needless to say, this will be a very interesting case to watch.

And so they meet again

It’s Howard Cooper versus the Boston Herald, round two.

Cooper, you may recall, is the Boston lawyer who represented then-judge Ernest Murphy in his libel suit against the Herald, which had portrayed him as someone who had “heartlessly” demeaned a teenage rape victim. Murphy won a $2 million-plus verdict against the Herald in 2005. I don’t think Murphy was libeled, but Cooper was able to convince a jury otherwise. Here is more than you’ll ever want to know about that case.

Now Cooper is suing the Herald on behalf of Tom Scholz of the band Boston, claiming that Inside Track reporters Gayle Fee and Laura Raposa fabricated quotes attributed to Micki Delp, ex-wife of Boston lead singer Brad Delp, as well as from unnamed “insiders,” to make it appear that Delp had blamed Scholz for her husband’s suicide.

Courthouse News Service has a detailed account of the suit, though there’s a mistake in the lede — Delp committed suicide in 2007, not 1997. The story is accompanied by a copy of the complaint (pdf). I have not had a chance to do more than skim it, so I’m staying away from any detailed analysis. I do see that Cooper cites Boston magazine’s 2006 story “Gals Gone Wild,” by John Gonzalez, as example of what Cooper calls Fee and Raposa’s “unprofessional, irresponsible and reckless tactics and methods.” For good measure, Cooper calls them “so-called ‘reporters.'”

The Herald has not yet filed a response. Herald spokeswoman Gwen Gage tells the Boston Globe, “We’re aware of the complaint and we will review it. Beyond that, we have no further comment.”

In 2006 Mark Jurkowitz wrote an in-depth profile of Cooper for the Boston Phoenix (via Romenesko). The headline: “The media’s worst nightmare?” At One Herald Square, the answer to that question would be a decided “yes.”

ACLU attorney Wunsch on the anti-SLAPP ruling

Sarah Wunsch, staff attorney for the ACLU of Massachusetts, e-mailed her thoughts on the state Supreme Judicial Court’s ruling that journalists are not protected by a state law prohibiting “strategic lawsuits against public participation” — also known as the anti-SLAPP statute. The Associated Press covers the ruling here. Background here. Below is Wunsch’s e-mail, presented in its entirety.

Despite our amicus brief urging otherwise, the SJC has affirmed Judge Hines’s Superior Court denial of the special motion to dismiss under the anti-SLAPP statute that had been filed by the journalist, Hollander, after she was sued by the developer, Fustolo. The unanimous opinion is written by Justice Botsford. Her opinion focuses on the fact that Hollander was not seeking to redress a grievance or to petition for relief of her own. She says, “As in Kobrin, the defendant’s conduct was not an attempt to redress a wrong he suffered, nor was he petitioning on his own behalf.”

Although the opinion says that a person is protected only if personally seeking redress of a grievance of his or her own, Justice Botsford distinguishes a case in which an attorney was given protection under the anti-SLAPP statute for his statements on behalf of his clients, and not for himself. To do that, she asserts that reporters occupy a different position with respect to a petitioning party than does the party’s attorney.

“There is nothing about the role or function of a staff reporter of an independent newspaper that by its nature renders the reporter a representative or agent of every, or indeed any, community organization that the reporter may cover,” particularly where the reporter denies representing a particular viewpoint. She contrasts this with Baker v. Parsons, where a biologist employed by an organization testified about her views and was protected by the SLAPP statute. (This reasoning seems to leave out of the equation whether the media outlet itself is the “petitioning party.” She seems to assume that it is only the community-based advocacy groups whose views the journalist is promoting.)

Thus, one of our concerns, that employees of advocacy organizations would not be protected by the anti-SLAPP statute, appears alleviated. Even if you are working for someone else as an advocate, as long as it is clear you are advocating for something, you should be protected.

Justice Botsford does reject the concept in Judge Hines’ opinion that because Hollander was paid, she had a private reason for her reporting, and was not sued for her petitioning alone. Being paid does not take a person out of the SLAPP protection.

Finally, Justice Botsford disagrees that this ruling will chill journalists. She cites New York Times v. Sullivan and the protection for reporters under that and under the fair-report doctrine.

As I read the opinion, a reporter writing news stories that are supposedly “objective” will not be protected by the SLAPP statute, despite the very broad definition of petitioning activity. If an editor or publisher wants to stir up the public to get them to support government action by focusing a series of news articles on the subject, too bad. No anti-SLAPP statute protection seemingly for the journalist despite the fact that the definition of petitioning includes this. I do not think this result is correct.

Under the Botsford decision, an opinion columnist is likely going to be protected by the anti-SLAPP statute, as is an employee of an advocacy organization. It seems that the concept of objective fair news reporting operates here to deprive news reporters of anti-SLAPP statute protection. One question is whether the newspaper publisher will be protected. The Botsford opinion talks about advocacy organizations but doesn’t seem to recognize that news media organizations can be advocacy organizations or be the “petitioning party” itself, engaged in activity that meets the definition of petitioning under the statute.

SJC rules against journalist-activist

Adam Gaffin has already posted some details on the state Supreme Judicial Court’s ruling earlier today against Fredda Holland, a journalist who claimed that a libel suit filed against her should be dismissed on the grounds that it was aimed at putting a halt to her community activism. Gaffin has posted the full decision as well.

Hollander, a former reporter for the Regional Review, had been active in a neighborhood association along with her husband, Bill Lee. She had used her platform at the Review to oppose plans by a North End developer named Steven Fustolo. When Fustolo sued her for libel, Hollander’s lawyer, Harvey Shapiro, argued that she should be protected by the state’s anti-SLAPP law, an acronym that means “strategic lawsuit against public participation.”

For background, click here. Disclosure: I was paid to write an affidavit (pdf) on Hollander’s behalf at an earlier stage of the case.

An important libel ruling by the SJC

The state’s Supreme Judicial Court issued an important decision today that reaffirms protections for the news media against libel suits.

The case involved a town employee in Abington who was fired after sexually explicit images were discovered on his town-owned computer. The Enterprise of Brockton published a series of stories on official actions taken against the employee (who was eventually fired), based almost entirely on anonymous sources.

The SJC decision, written by Justice Robert Cordy, found that the fair-report privilege, which allows journalists to report libelous statements made in the course of official proceedings, applies even when those reports are based on anonymous sources.

Cordy also ruled that the Enterprise’s stories were substantially fair and accurate despite an error in one of the stories, and that the ex-employee could not sue the paper for intentionally inflicting emotional distress.

Those are the highlights. First Amendment lawyer Robert Ambrogi offers a deeper analysis here. The full text of the decision is here. (Via Universal Hub.)

ACLU lawyer explains libel and SLAPP

Sarah Wunsch, a staff attorney with the ACLU of Massachusetts, offers further analysis of how the state’s anti-SLAPP law would modify libel law if journalist-activist Fredda Hollander wins her appeal, now before the Massachusetts Supreme Judicial Court. (SLAPP stands for “strategic lawsuits against public participation,” and the anti-SLAPP law is aimed at preventing people from abusing the legal system by hauling activists into court.) Wunsch writes in part:

The defendant, the petitioner, may have made some misstatements that are harmful to the plaintiff’s reputation, but in order to give some breathing space to the right to petition, the law provides that as long as the petitioning wasn’t baseless, the SLAPP suit should be thrown out. Some people might think that is unfair but because society benefits when people aren’t afraid to get involved in local government issues, the statute gives them some extra protection.

To which I would add that though anti-SLAPP protection for journalists might offer them some extra protection against libel suits, the overall effect would probably be slight.

In most cases, I suspect, the person bringing the allegedly abusive suit (in Hollander’s case, North End developer Steven Fustolo) would be deemed a public figure. And under the U.S. Supreme Court’s 1964 Times v. Sullivan standard, a public figure can’t win a libel case unless he’s able to prove that the person he’s suing made false, defamatory statements knowing they weren’t true, or showing reckless disregard for the truth.

My standard disclosure: Hollander paid me to write an affidavit on her behalf at an earlier stage of her case.

Earlier coverage.