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Friday, February 18, 2005  

Law: Libel win may be short-lived

The Boston Herald has lost a libel case at the trial court level. The lawsuit resulted from a a front page article that appeared Feb. 13, 2002. Despite the numerous threats of "I'll sue you" directed at reporters and media, relatively few cases are ever filed. The standard of proof, particularly in cases involving public officials and public figures, is too steep for most attorneys to be interested in pursuing litigation. Often, if an error has been made, the would-be plaintiff settles for a correction or retraction in the newspaper or on the broadcast. However, like most 'wins' in libel cases, the situation in Boston is not really probative at this stage. That is because most libel verdicts decided for the plaintiff are overturned on appeal.

The Washington Post summarizes the current outcome in that case.

BOSTON -- The Boston Herald was ordered Friday to pay $2.1 million for libeling a Superior Court judge in articles that portrayed him as lenient toward defendants and quoted him making insensitive comments about a 14-year-old rape victim.

In a case closely watched by the media and legal communities, a jury deliberated for more than 20 hours over five days before finding that the newspaper and reporter David Wedge were guilty of libeling Superior Court Judge Ernest B. Murphy.

Murphy claimed Wedge misquoted him as telling lawyers involved in the case about the teenage rape victim: "Tell her to get over it."

The case has the indicia of a libel verdict of likely to be overturned on appeal. The plaintiff, Murphy, is a public official . His remarks were made in regard to a work he had performed in his official capacity. An error, such as a misquotation, is not necessarily actionable. These criteria date back to the most important case in libel law, New York Times v. Sullivan, 376 U.S. 254 (1964). To understand contemporary libel law, it is necessary to understand Sullivan.

Leaders of the civil right movement sought to pressure business and civic leaders in the South by appealing to the citizenry of the rest of the nation. The National Association of Colored People (NAACP), took out an ad in the New York Times with that objective in mind. Sullivan, the commissioner of police in Montgomery, Alabama, had been in charge of patrolling and arresting civil rights protesters. The civil rights leaders alleged that unnecessary force had been used against them and protesters in the ad. Sullivan sued, claiming that he had been libeled. An Alabama jury rendered a verdict in his favor, and, the state supreme court affirmed it. The Supreme Court of the United States overturned the verdict, setting the criteria for modern libel law.

SCOTUS acknowledged there were errors in the ad.

It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not "My [259] Country, 'Tis of Thee." Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester. . . .

The Court also noted that Sullivan's tenure as police commissioner came after some of the abuses of civil rights leaders referred to in the ad.

Still, the Supreme Court ruled that, to be held accountable for the ad, the defendants must have knowingly lied about the plaintiff, or, have been indifferent to the truth or falsity of their statements. In order for Sullivan to prevail, he needed to offer proof that the errors were material and not merely mistakes.

Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice"--that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. Pp. 265-292.

(c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless "actual malice"--knowledge that statements are false or in reckless disregard of the truth--is alleged and proved. Pp. 279-283.

(e) The evidence was constitutionally insufficient to support the judgment for respondent, since it failed to support a finding that the statements were made with actual malice or that they related to respondent. Pp. 285-292.

Since Sullivan, public officials have had to accept that their actions, including comments about their work that may have been made away from the office, are subject to criticism they are unlikely to be able to sue over. In the balancing act between protection of their professional reputations and allowing the press to question their conduct, the latter interest prevails.

That explains why it is unusual for a public official to prevail in a libel action in the long run. But, it doesn't explain why trial courts give plaintiffs wins that fall by the wayside later. Study of successful libel verdicts at the trial court level suggests a couple reasons why this happens. Jurors are more likely to feel sympathy for a plaintiff public official than judges. They are less likely to fully grasp what evidence of "actual malice" or "reckless disregard for the truth" means. The result is verdicts that largely ignore the legal criteria. One response is for the trial judge to set the verdict aside as unsupported by the evidence. Another is to leave reexamination to the appeals courts. The latter is most common.

Judge Murphy should enjoy his successful libel verdict while he can. It will likely last for only as long as a court of appeals hasn't ruled.

Reasonably related

The Boston Herald was put in the uncomfortable position of reporting on itself regarding the Murphy case. Read its coverage of closing arguments here.

4:00 PM