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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.

Law: Fetal homicide laws often attack abortion

I have previously considered national legislation that designated the death of a fetus during a crime against a pregnant woman homicide. The federal Unborn Victims of Violence Act was enacted last year. A recent effort by a state legislator to pass a fetal homicide statute in Oregon led me to take a closer look at the movement to create such legislation in the states. Oregon Speaker of the House Karen Minnis (R-Wood Village, District 49) has introduced HB2020, which purports to protect the lives of fetuses injured or killed during attacks on pregnant women.

HB2020:

Expands criminal homicide to include causing death of unborn child. Provides exception for lawful abortions and acts committed by pregnant woman.

Creates crime of assault of unborn child. Punishes by maximum of 10 years' imprisonment, $250,000 fine, or both.

Be It Enacted by the People of the State of Oregon:  
SECTION 1. ORS 163.005 is amended to read:   163.005.  { + (1) As used in this section:  
(a) 'Criminal homicide' is murder, manslaughter or criminally negligent homicide.  
(b) 'Human being' means:  
(A) A person who has been born and was alive at the time of the criminal act; and  
(B) An unborn child.  
(c) 'Unborn child' means a member of the species Homo sapiens at any stage of development while carried in the womb. + }

Not all fetal homicide laws are unconstitutional. The key determinants are whether they acknowledge the legality of abortion and apply to only viable fetuses. Constitutional laws about injury to fetuses during crimes use viability -- the ability of the fetus to survive independent of the mother -- as determining whether a fetus can be considered a victim independently. Under Roe v. Wade, 410 US 113 (1973), a fetus has rights the state protects at the point of viability, usually about six months of gestation. Minnis' bill does not recognize that distinction, defining "unborn child" as any conception. For example, if a woman was found to be three weeks pregnant during an autopsy, under Minnis' bill the assailant would be subject to a second charge of homicide. It is unclear whether Minnis is serious about passing a bill that is unconstitutional under both state and federal law. She could consider the proposal a sop to the pro-life movement, part of her Right Wing constituency.

It is interesting to compare "unborn child" statutes to laws that do not clash with state and federal law. In Commonwealth v. Morris (2004), the Kentucky Supreme Court held that a viable fetus can be the subject of seperate charges if killed.

We hold that felonious killing of a viable fetus can be prosecuted as a homicide under Chapter 507 of our Penal Code.

But, what of the motivation to pass legislation protecting fetuses in general? Research shows that the most common cause of death of a pregnant woman is homicide. I will speculate that the phenomenon has something to do with being vulnerable. People who appear defenseless have a heightened risk of being victimized. Women who are pregnant appear to be vulnerable -- to strangers if the pregnancy is visible, to those who know of the pregnancy prior to visibility. (Predictably, assaults and murders of pregnant women are often domestic violence.) So, there is, arguably, a reason to pass fetal homicide laws that doesn't have anything to do with abortion. Viable fetuses may need to be protected because of the heightened risk of abuse pregnant women are subject to. However, when the legislation begins by defining the fetus as being protected from conception, it is an attempt to evade both state and federal laws guaranteeing the right to abortion. I believe "unborn child" laws are unconstitutional and will fail when subjected to judicial scrutiny. Minnis' bill may be even more short-lived if her fellow legislators treat it as an anti-abortion maneuver, not a serious effort to protect viable fetuses from harm. It may not surmount the barriers to passage.

• Oregon currently doesn't have a fetal homicide statute. Washington's fetal homicide law applies to viable fetuses. Where does your state stand? Read more about the trend at About.com's Women's Issues forum.

• The National Right to Life site describes "unborn child" fetal homicide statutes in 18 states. Another 12 states have statutes that include some language that purports to protect non-viable fetuses.

News: Scalping suspect sets new low

But, I realized I would need to expand my 'news of the weird' entry to included Idaho yesterday when I learned about the accused scalper. KGW-TV reports.

BOISE, Idaho -- A woman suspected of scalping a teenage girl in Idaho surrendered to authorities Wednesday.

Marianne Dahle was arrested at the Ada County Jail on suspicion of aggravated battery for allegedly tying up the 16-year-old acquaintance and cutting away a six-inch by eight-inch section of her scalp.

The victim, a 16-year-old girl whose hair was cut in a mohawk, survived. Police said a member of a punk clique scalped her as punishment for her disrespectful behavior toward women.

Dahle was visiting Kirkham Hot Springs in central Idaho with the girl and a friend when the attack occurred Jan. 18. The teen spent two weeks in the hospital and is now recovering at home.

Authorities did not release the victim's name, though she identified herself as Sheila to Boise TV station KTVB.

Dahle, (pictured) 26, may be the leader of a group with cult-like tendencies. According to investigators, Sheila was scalped as punishment for violating a rule. Participants in the punk-related group say Dahle claimed the girl 'disrespected women,' by uttering something Dahle disagreed with. As is all too typical in groups, cults or not, the dissenter became the enemy and was summarily punished. No information on why a practice as arcane as scalping was chosen is available. A detective thinks there are sexual implications, such as the adult establishing dominance over a younger consort.

Sheila was dropped off at a hospital bleeding from the large wound in her head. She is in the process of receiving a series of skins grafts. In interviews, the adolescent appears bewildered. She doesn't understand why people she considers friends did her dirt. Welcome to the real world, kid.

Marianne Dahle, possible dominatrix and suspect in a despical act, has trumped a covey of contenders to lead this week's news of the weird.

News: Gov. Gregoire's life threatened

Gov. Christine Gregoire of Washington got her job the hard way. She fought for it. After a very close election, and a close recount, Gregoire (pictured) requested and paid for another recount. It brought her victory by a margin of 129 votes. Some Republicans have been apoplectic since Gregoire took office in January. Their rhetoric is usually easily dismissed. A typical claim is that her opponent, former state senator and multimillionaire Dino Rossi, won the election because he prevailed in the first two counts. However, it is the third hand-tallied recount that determines the outcome under state law. The Republican candidate did much better than expected, but did not win the election. Still, the fallout has escalated. Recently, a disgruntled person was arrested and charged with threatening to kill Gov. Gregoire. The Seattle Times reports.

OLYMPIA — A Yakima County man was arrested on suspicion of making a death threat against Gov. Christine Gregoire and her family last month.

Gregoire said she had received threats in the wake of her hotly contested election victory, and that's why her office has declined to release details of her schedule.

The State Patrol also has continued around-the-clock protection for Gregoire's opponent, Republican Dino Rossi, because of security concerns.

Jeff Martelli, 47, of Wapato, was arrested Jan. 19 on suspicion threatening Gregoire and her daughters, said Megan Murphy, a Yakima County deputy prosecutor.

Murphy said Martelli was being treated at a mental-health clinic when he made the threat. A clinician reported the threat to the State Patrol, and he was arrested the next day. Martelli was released from jail this week after posting a $10,000 bail.

Threatening the governor or her family is a felony and carries a maximum sentence of five years in prison and a $10,000 fine, Murphy said.

Though it is possible that Martelli might have threatened any public figure because of his mental health problems, I believe the ugly atmosphere created by some Republican activists played a role. They have taken to publicly denouncing Gov. Gregoire as having stolen the election. Some follow her from one public appearance to another, heckling and waving signs. Right Wing talk show hosts have made contempt for the governor a staple of their rhetoric. The uncouth response to Gov. Gregoire's victory may have attracted the attention of the suspect and led him to single her out. This episode is a reminder that actions have consequences. The consequence the irate Republicans want -- a reversal of the election results, preferably putting Rossi in the governor's seat -- is unlikely to happen. There is no evidence of fraud, the requirement to invalidate an election under state law. However, the activists have successfully created another consequence -- the hostile atmosphere that has led to death threats against an elected official and her children.

Reasonably related

How is Gov. Gregoire, death threats notwithstanding? She says she is adjusting to being governor and likes the job. Gov. Gregoire also discussed major issues the state is facing in an interview. The Seattle Post-Intelligencer has the story.

Internet: More spam than ever

Legislation meant to impose sanctions on those who shower netizens with unwanted email has existed for a year. The bill, S. 877, the Can Spam Act, was signed into law December 16, 2003. It went into effect January 1, 2004. But, in the year since, the email burden increased. An estimated 80 percent of all email sent is spam, defined as "unwanted e-mail (usually of a commercial nature sent out in bulk)."

The New York Times has the story.

Since the Can Spam Act went into effect in January 2004, unsolicited junk e-mail on the Internet has come to total perhaps 80 percent or more of all e-mail sent, according to most measures. That is up from 50 percent to 60 percent of all e-mail before the law went into effect.

To some antispam crusaders, the surge comes as no surprise. They had long argued that the law would make the spam problem worse by effectively giving bulk advertisers permission to send junk e-mail as long as they followed certain rules.

"Can Spam legalized spamming itself," said Steve Linford, the founder of the Spamhaus Project, a London organization that is one of the leading groups intent on eliminating junk e-mail. And in making spam legal, he said, the new rules also invited flouting by those intent on being outlaws.

Some experts say that the passage of the law set parameters for spam. Compliant generators of solicitation email then made sure their come-ons fit within the guidelines, then increased the bombardment. Spammers determined not to comply simply moved to servers not within the jurisdiction of American courts, with locations in China favored.

All is not bleak. Microsoft, Yahoo and other heavyweights have filed lawsuits against major spammers. Microsoft won a default judgment of $1.4 million judgment against Levon Gillespie, 21, a successful entrepreneur who specializes in spam. Jeremy D. Jaynes and Jessica DeGroot, among the most prolific, have also been the subjects of million-dollar judgments.

Senator Conrad Burns (R-Montana), the sponsor of Can Spam says critics are being too hasty. He says people should give the law more time to have an effect before concluding it is ineffective. Burns believes a major problem may be lack of enforcement of the Federal Trade Commission. He says he will personally pressure the agency to pursue large scale spam operations.

For those of us who were early adopters of the Internet, the spam takeover is most intrusive. I recall maybe 15-20 percent of my email being spam in 1994-96. In fact, the word 'spam' had not gelled as a definition of unwanted solicitation email. According to researchers, the proportion grew to about 60 percent by 2003, then peaked at 80 percent in 2004. The average Internet user spends 10 work days per year handling -- filtering, sorting and deleting -- spam.

Read the Can Spam Act here.