Judge Dread

The SJC’s libel ruling won’t cripple the media — but it could seriously hurt the Herald
By ADAM REILLY  |  May 9, 2007

JUST GET OVER IT?: Herald reporter Dave Wedge, left, is questioned during the paper’s failed libel appeal.

On Monday afternoon — a few hours after the Massachusetts Supreme Judicial Court (SJC) upheld his 2005 triumph in a libel case against the Boston Herald — Superior Court judge Ernest Murphy took the microphone at a celebratory press conference and waxed dramatic about the ruling. “I believe that this decision is a clarion call for the media to understand that the independence of the judiciary is fundamental to the democratic process,” Murphy announced. The press, he continued, should be “sensitive” when it covers the courts.

A few minutes later, Suffolk University law professor Michael Avery, who’d argued Murphy’s case before the SJC, offered a decidedly different gloss. “The decision as made in this case,” Avery said, “should cause no alarm to anybody in the media who’s concerned about his or her ability to engage in vigorous criticism of the government.”

So, which is it?

First, a quick refresher. Murphy’s case against the Herald centered on two articles the tabloid published on February 13 and 14, 2002, that depicted Murphy as callously indifferent to victims — a characterization the Herald wasn’t the first to make. Most important, the February 13 article — a front-page story — introduced a Murphy quote, attributed to “several courthouse sources,” and allegedly spoken during a confrontation with prosecutors about his sentencing practices, that involved a young rape victim: “She can’t go through life as a victim. She’s 14. She got raped. Tell her to get over it.”

The original ruling in Murphy’s favor, and the SJC’s decision this week, hinged on two main points: first, evidence that the quotation and Herald reporter Dave Wedge’s description of the context in which it was uttered were inaccurate; and second, Wedge’s failure to sufficiently check the quote prior to publication.

Back to the question of what this case means for the press. Like Murphy, the 15 news organizations that together filed an amicus-curiae brief on the Herald’s behalf last year suggested that profound journalistic principles were at stake — although, of course, they and Murphy wanted opposite outcomes. In their brief, these organizations (including the Associated Press and the Washington Post, but not the Boston Globe or its corporate parent, the New York Times Company) said the SJC could “ensure that the Commonwealth’s historic tradition of protecting speech of the judiciary is passed on to the next generation.”

The implication was that an unfavorable outcome could have a catastrophic effect. But Jonathan Albano, the Bingham McCutchen attorney who co-authored the amicus brief in question, tells the Phoenix that the SJC’s ruling is actually a mixed bag when it comes to freedom of the press.

On the one hand, Albano says, the court’s opinion, which was written by Justice John Greaney, emphatically reaffirmed the press’s established protections when it comes to reporting on public figures, including the “actual malice” standard. (“Actual malice” means that public figures like Murphy can’t win libel judgments simply for being subjected to false or defamatory coverage; they also need to show that the material in question was published with knowledge of or reckless indifference to its falsity.)

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  Topics: Media -- Dont Quote Me , Ernest Murphy, Ernest Murphy, Jonathan Albano,  More more >
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