Tag: libel

Live-blogging the anti-SLAPP hearing

I’m watching the anti-SLAPP hearing here. Background on the case here.

And that’s a wrap. The Supreme Judicial Court will consider the arguments it heard this morning and issue a decision at some later time. It strikes me that the questions were equally tough for both sides — that Harvey Shapiro, the lawyer for journalist-activist Fredda Hollander, and Bruce Edmands, the lawyer for developer Steven Fustolo, were kept on the defensive during their arguments. No way of saying how this will come out.

To repeat my disclosure: I was paid by Fredda Hollander to write an affidavit (pdf) for her during an earlier stage of the case.

10:03 a.m. Edmands says Shapiro is correct that the media are covered in California, but the law is very different. If Shapiro wants anti-SLAPP protection extended to the media in Massachusetts, Edmands says, then “the correct forum is not this court, respectfully, but the Legislature.”

10:01 a.m. What about letters to the editor? asks one of the justices. Isn’t that petitioning? “It doesn’t have to go directly to the government body. Every official in town reads it,” he says. Edmands responds that letters are “widely understood to be expressions of opinion by the author,” unlike “factual” news stories.

The justice follows up by asking if the publisher wouldn’t be “petitioning” by publishing the letter. Edmands replies that it would be, but that the publisher should be treated differently from a reporter.

9:57 a.m. Edmands says the anti-SLAPP statute has never been extended to the media. It’s pointed out to him that a Superior Court decision did just that. “Don’t knock the Superior Court,” says one of the justices. “Some of us are graduates of the Superior Court.”

9:55 a.m. To clarify — Hollander and her husband, Bill Lee, were active in a North End neighborhood organization. She contends that her journalism for the Regional Review was an extension of that activism.

9:53 a.m. Justice asks what about a newsletter editor railing about an issue to his or her members. Edmands reponds that that would be closer to petitioning activity, but that’s not what Hollander did.

9:52 a.m. Edmands: “I think the statute was really intended to protect people who appear before governmental body … and speak out about their concerns.”

9:50 a.m. Now we’re hearing from Bruce Edmands, lawyer for developer Steven Fustolo, who’s suing Fredda Hollander for libel.

9:47 a.m. Justice asks if all investigative reporting would be covered. Purpose is “to cover something that is wrong so that the government will take action.” Shapiro replies that, yes, such reporting would be covered by anti-SLAPP law.

9:46 a.m. Justice asks if any other jurisdiction has adopted Shapiro’s interpretation. Shapiro replies that California anti-SLAPP law covers First Amendment activity. “They have uniformly covered journalists.” But he concedes the California law is broader in terms of activities that are protected.

9:43 a.m. Justice says applying anti-SLAPP to newspaper reporter is “a whole different kettle of fish.” Shapiro responds that “it embraces broader concepts of petitioning.” He adds: “Using the press is a fundamental form of petitioning.”

9:40 a.m. The justices are concerned that Shapiro’s interpretation would obliterate libel if anti-SLAPP can be invoked.

9:39 a.m. The justices question Shapiro about the lack of a personal stake journalists generally have in the stories they cover, whether they express an opinion or not. The idea is that the anti-SLAPP law generally covers only political activists with a stake in the outcome.

9:37 a.m. Justice asks Shapiro if community newspapers should be treated differently from the Globe or the Herald. Shapiro responds that if the reporter is writing in a way that “enlists public support,” then that is “petitioning activity” and should be covered.

9:36 a.m. Harvey Shapiro, lawyer for Fredda Hollander, is arguing before the state’s Supreme Judicial Court right now.

My affidavit in the anti-SLAPP case

Fredda Hollander, an activist-journalist who will appear before the state’s Supreme Judicial Court on Monday, has given me permission to post the affidavit (pdf) I wrote for her at an earlier stage of her case. It’s a public document, but given that I was paid to write it, I wanted to check in with her first.

The issue at stake is fairly complicated, and really doesn’t have all that much to do with libel, even though her claim is related to a libel suit filed against her. A North End developer, Steven Fustolo, is suing Hollander for libel in connection with articles she wrote for a local newspaper, the Regional Review. Hollander counters that she did not libel Fustolo, and that his suit is a form of harassment covered by the state’s anti-SLAPP law. SLAPP stands for “strategic lawsuits against public participation.”

The anti-SLAPP statute — similar to ant-SLAPP laws in other states — is designed to protect political activists from being harassed by their well-heeled targets, who can afford to abuse the legal system as a form of intimidation. The law specifically states that “petitioning” activity is protected. Hollander’s lawyer, Harvey Shapiro, argues that the grassroots advocacy journalism Hollander engaged in qualifies as “petitioning” in the sense that she was attempting to influence government decisions.

The implications for bloggers and citizen journalists are potentially huge. Not only are such folks frequently motivated by their strong opinions on local issues, but they are far more vulnerable to being damaged by a meritless libel suit than would an established news organization. (Please note that I am not saying Fustolo’s suit is meritless. I am merely saying that, if it is, then Hollander deserves to be able to use the anti-SLAPP law in order to persuade a judge to dismiss his claim.)

Unfortunately I will not be able to attend Monday’s argument because of a family matter. Assuming all systems are go, I’ll be watching the webcast instead.

An activist-journalist SLAPPs back

Adam Gaffin has posted an excellent summary of an important press-freedom case that will be argued before the state’s Supreme Judicial Court on Monday.

Fredda Hollander, an activist-journalist who once wrote for a local newspaper called the Regional Review, is arguing that a libel suit filed against her by a North End developer should be thrown out on the grounds that it amounts to harassment illegally aimed at silencing her.

The developer, Steven Fustolo, counters that the law on which Hollander is basing her claim — a state law that bans “strategic lawsuits against public participation” — was never intended to protect journalists.

Disclosure: I was a paid expert for Hollander, writing an affidavit arguing that community-based advocacy journalism should be protected under the so-called anti-SLAPP law.

Libel battle won, but war remains lost

A battle has been won over a bizarre and dangerous decision by a federal appeals court earlier this year that truth may not be a defense in libel cases brought by private parties. Unfortunately, the war remains lost.

According to lawyer Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, a jury found recently that the office-supply chain Staples did not act with malice when a manager sent an e-mail to some 1,500 employees informing them he had fired a sales manager named Alan Noonan for violating the company’s travel and expense policies. (Ambrogi points to an article in the National Law Journal, but it’s subscription-only.)

As I reported earlier this year in the Guardian, the U.S. Court of Appeals for the First Circuit, in Boston, ruled that Noonan’s libel suit against Staples could proceed even though the contents of the e-mail were true. The court relied on an old provision of Massachusetts libel law pertaining to “actual malice,” which Judge Juan Torruella wrote should be defined as “ill will” or “malevolent intent.” Torruella earned a Boston Phoenix Muzzle Award for his anti-First Amendment decision.

Although Staples may not spring immediately to mind when one thinks about freedom of the press, the implications for the news media are obvious.

In the 1964 U.S. Supreme Court case of Times v. Sullivan, actual malice is defined as pertaining to a defamatory statement made with knowing falsity, or with “reckless disregard” for the truth. And though Times v. Sullivan applies solely to public officials, a series of subsequent decisions by the Court made it clear that a defamatory statement can never be found libelous if it is true — a principle asserted by free-speech advocates since the 1735 trial of John Peter Zenger.

First Amendment lawyers such as Ambrogi and Robert Bertsche wrote that Torruella should have thrown out the Massachusetts law, on the books since 1902, as unconstitutional in light of Times v. Sullivan.

So far, though, Torruella’s toxic handiwork remains in effect — at least in Massachusetts.

First Circuit rejects libel appeal

The U.S. Court of Appeals for the First Circuit in Boston has refused to overturn a ruling (PDF) that statements made in matters of private concern may be found libelous even if true.

The court has also declined to accept (PDF) an amicus curiae brief filed by several dozen of the largest and most influential media organizations in the country, citing a conflict of interest that would be created if it were to do so. Apparently one of the judges has a tie to a media organization, which would force a recusal.

No word on what comes next. Is it possible that the U.S. Supreme Court will rule on this? The idea that a statement must be defamatory and false in order to be held libelous is so fundamental to our notion of a free press that it’s hard to imagine the ruling will stand, even if it pertains only to Massachusetts, based as it is on a 1902 state law.

From the time I reported on this case for The Guardian, I’ve heard a low buzz suggesting that the ruling may not matter all that much, given that it pertains to private parties — and that, in fact, private persons deserve more protection under the libel laws than public officials and public figures.

My answer to that is that they already do, but that private figures — according to all the libel law that we understand — still have to prove falsehood.

I think the most telling case is that of Gertz v. Robert Welch, a 1974 Supreme Court decision about a libel suit brought by a lawyer who had been falsely defamed by a John Birch Society publication. The court ruled that the lawyer, Elmer Gertz, was a private figure, and would thus not to have to prove “actual malice” as defined by Times v. Sullivan (1964) — that is, he would not have to prove that the Birchers had published defamatory material knowing it was false, or with reckless disregard for the truth. Instead, the court ruled that, henceforth, private figures would have to show negligence at the very least, with the states free to adopt more stringent language if they chose.

Reading the Gertz decision, you can’t help but be struck how the notion of falsehood is raised over and over. The phrase “defamatory falsehood” is used repeatedly. The most famous section of the majority decision, written by Justice Lewis Powell, is built around the principle that libel is a false and defamatory statement of fact:

We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Remember, Gertz was a private figure. Powell was writing quite specifically about the libel standards that should prevail when a private citizen brings a libel suit, yet he made it absolutely clear that falsehood and defamation are the two key elements of libel.

It’s hard to imagine what the First Circuit is thinking.

Media heavyweights seek libel relief

Q: What do the Boston Globe, the Boston Phoenix and the Boston Herald agree on? A: The dangerous precedent that would be set if a ruling that undermines truth as a defense in libel cases is allowed to stand.

Earlier this week, according to the Boston Globe’s Jonathan Saltzman, noted First Amendment lawyer Robert Bertsche filed an amicus curiae brief (PDF) asking that the full U.S. Court of Appeals for the First Circuit overturn a decision reached recently by a three-judge panel of that court. The brief is signed by a host of media giants, including the New York Times Co. (which owns the Globe), GateHouse Media (which owns more than 100 newspapers in Eastern Massachusetts), ABC, CBS, NBC, CNN, the Washington Post, Time Inc., WGBH and many, many others.

As I reported in the Guardian on Feb. 17, the decision, written by Judge Juan Torruella, allowed a libel suit to move ahead on the grounds that the offending speech (an e-mail to some 1,500 Staples employees about a sales director who’d been fired for violating the company’s expense-report policies), though true, might be held libelous on the grounds that it was made with “actual malice.”

In making that ruling, Torruella relied on the meaning of malice as it existed in 1902, when the Massachusetts law at issue went into effect — a meaning that Torruella defined as “ill will” or “malevolent intent.” In Times v. Sullivan (1964), the U.S. Supreme Court redefined “actual malice” as a defamatory statement made even though it was known to be false, made with “reckless disregard” as to its truth or falsity.

The Torruella decision applies only to private persons, whereas the Times v. Sullivan and its progeny pertain to public officials and public figures. Nevertheless, in other decisions — most famously Gertz v. Robert Welch (1974) — the Supreme Court made it clear that even a libel suit brought by a private person must be based on a statement that was false and negligently made.

The amicus brief argues that if Torruella’s ruling is allowed to stand, plaintiffs will be able to win libel suits if they are merely able to prove that the defendant was “out to get them.” The brief continues:

In some quarters, it may even have the chilling effect of discouraging reporting and commentary on some of the most pressing issues of the day, such as the internal affairs of businesses coping with severe economic challenges, for fear that such matters might mistakenly be deemed to be of only “private concern.”

This is a case of enormous importance to the beleaguered news media and, more important, to the public, which depends on tough, fair, truthful reporting. Let’s hope the full court does the right thing.

Will Hoyt write about the “Note to Readers”?

Here’s part of what New York Times public editor Clark Hoyt wrote about the paper’s report on John McCain’s non-affair last Feb. 24:

A newspaper cannot begin a story about the all-but-certain Republican presidential nominee with the suggestion of an extramarital affair with an attractive lobbyist 31 years his junior and expect readers to focus on anything other than what most of them did. And if a newspaper is going to suggest an improper sexual affair, whether editors think that is the central point or not, it owes readers more proof than The Times was able to provide.

Given that this is a libel settlement we’re talking about, Hoyt is unlikely to call the Times’ “A Note to Readers” for what it is. But unless he’s changed his mind, we know what he’s thinking.

The Times’ unromantic “Note to Readers”

From the New York Times’ “A Note to Readers,” published today as part of its libel-suit settlement with lobbyist Vicki Iseman:

The article did not state, and The Times did not intend to conclude, that Ms. Iseman had engaged in a romantic affair with Senator McCain …

From the Feb. 21 story at issue:

Convinced the relationship [with Iseman] had become romantic, some of his [McCain’s] top advisers intervened to protect the candidate from himself — instructing staff members to block the woman’s access, privately warning her away and repeatedly confronting him, several people involved in the campaign said on the condition of anonymity.

Help me out here.

A chilling decision about libel

In my latest for the Guardian, I analyze one of the most dangerous First Amendment decisions in many years — an opinion handed down by a three-judge federal appeals court panel in Boston last Friday holding that truth may no longer be an absolute defense against a libel suit.

The decision, written by Judge Juan Torruella of the U.S. Court of Appeals for the First Circuit, allows Alan Noonan, a sales director fired by Staples, to pursue his libel claim against the company. Staples’s executive vice president, Jay Baitler, had sent an e-mail to some 1,500 employees stating that Noonan had been terminated for violating the company’s travel and expense policies.

Torruella found that the contents of the e-mail were true, but added that, because Noonan is a private figure, the e-mail may have crossed the line into “actual malice.” In reaching that conclusion, Torruella relied on a 1902 Massachusetts law and said that “actual malice” should be defined as “ill will” or “malevolent intent.” Never mind that, in the 1964 case of Times v. Sullivan, the U.S. Supreme Court redefined “actual malice” so that it now pertains solely to statements made with deliberate falsity, or with “reckless disregard” for the truth.

Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, calls the ruling “the most dangerous libel decision in decades.” Longtime Massachusetts newspaper editor William Ketter, now a top executive with the CNHI chain, writes that the decision “could chill aggressive reporting of tough stories for fear that a private individual might end up suing the media even when the published facts are true.”

In an e-mail to Media Nation, Robert Bertsche, a prominent First Amendment lawyer with the Boston firm Prince Lobel Glovsky & Tye, says:

A panel of the First Circuit Court of Appeals has decreed that truth is no longer an absolute defense to a libel charge in Massachusetts. The ruling is troubling on so many levels that it beggars the imagination. Begin with the court’s ruling that one can be found liable in damages for making a statement that is indisputably true — that is a notion that flies in the face of everyone’s most basic understanding of what libel is.

With this decision, the First Amendment has been replaced by the maxim, “If you don’t have anything nice to say, don’t say it.” Consider the irony: The Supreme Court has said that there is constitutional protection for false statements on matters of public concern, but now the First Circuit says there is no constitutional protection for true statements on matters of private concern. What’s worse, the court offers no guidance about how to distinguish what is of “public concern” from what is of “private concern.” (You can be sure that among the 1,500 employees of Staples who received the company’s statement about Noonan’s firing, this was a matter of quite public concern.)

It is mind-boggling that the Court of Appeals offered so little analysis, and gave so little explanation, for a decision that arguably makes Massachusetts the least speech-protective state in the nation. Why didn’t this federal court (in a diversity case, no less) ask the Massachusetts SJC [the state’s Supreme Judicial Court] to opine on the validity and interpretation of this statute passed in the days of the buggy whip? It’s a bit like the state police descending on Fenway Park to handcuff Terry Francona for violating state law against public spitting.

Talk about a chilling effect on speech! Lawyers across the state should advise their clients simply not to say negative comments about people. Even if what you say is true, you will be made to pay damages if a judge decides that what you said is not of “public concern” and a jury decides you were motivated by ill will.

This is a bad decision for employers and employees, because it will reduce the flow of information in the workplace. It’s a disastrous decision for the media, and in particular for the new media: bloggers, people who post on Facebook, indeed anyone who has a website but lacks press credentials. That’s because the mainstream media may be protected, at least haphazardly, by an assumption that if The Boston Globe writes about a topic, then by definition the topic is one of public concern. But no such presumption is likely to protect an outspoken blogger’s critical remarks.

This is an aberrational ruling from a well-respected court. I remain hopeful that the three-judge panel will reconsider the ruling, or that the full Court of Appeals will agree to rehear it and correct this misjudgment. But until that happens, everyone who cares about free speech should lobby his or her legislator to remove this archaic statute from the law books.

As it stands, Torruella’s decision applies only to Massachusetts. But what if the federal courts were to discover similar laws on the books in other states?

You might have thought that the court would find the 1902 law to be unconstitutionally restrictive in light of Times v. Sullivan and its progeny. Instead, Torruella chose to drag freedom of speech back into the pre-1964 dark ages. Amazing. And frightening.