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.

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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.

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.”