Thursday, February 10, 2005

LIBEL, LIBEL EVERYWHERE. Never in my wildest imagination did I ever think I would have to devote an entire Media Log post to an update of local libel news. But I do. So here we go:

The Herald libel case. I've got a long piece on Superior Court judge Ernest Murphy's libel suit against the Boston Herald, which you can read here. (Thanks to Phoenix staffers Deirdre Fulton and David Bernstein for sharing courtroom duty with me.)

In today's Herald, Greg Gatlin reports on the testimony of Bristol County assistant DA Gerald FitzGerald, which took place after the Phoenix's deadline. It turns out, not surprisingly, that FitzGerald was the source of the infamous "Tell her to get over it" quote about a 14-year-old rape victim, which Murphy has denied ever saying.

Herald reporter Dave Wedge's only direct source, former prosecutor David Crowley, testified on Tuesday that Murphy actually said something more like "She's got to get over it." However, Crowley said that the Herald got the "gist" of it right.

I'm sympathetic to Murphy, who was put through a very public kind of hell. But this isn't libel.

An old Globe libel case. Last week, the Boston Globe easily won a libel case brought by a Stoneham lawyer. Today, an older - and considerably more fascinating - case rears its head.

Three years ago, the Globe lost a libel suit to Dr. Lois Ayash, who argued she had been defamed by the paper's coverage of the circumstances surrounding the 1995 death of Globe columnist Betsy Lehman. Lehman and another woman were both given overdoses of anti-cancer medication; Lehman died, and the other woman was seriously injured. (She later died as well.)

The Globe lost after a default judgment was entered against the paper, the consequence of a decision by the paper and reporter Richard Knox (now with NPR) to refuse to identify a confidential source. A judgment of $2.1 million was entered against the Globe, and that judgment was upheld yesterday by the state's Supreme Judicial Court. (Herald report here; Globe report here.)

Here's part of yesterday's SJC decision that addresses the matter of Knox's confidential source (for clarity, I've removed citations without using ellipses):

This is clearly not a case where the Globe defendants were unable to comply with the orders. We do not suggest that their refusals to obey the discovery orders were in bad faith. Despite their assertions to the contrary, however, the Globe defendants had no special constitutional or statutory testimonial privilege, based on their status as a newspaper publisher or reporter, that would justify their refusal to obey the orders. We have recognized that values underlying the First Amendment to the United States Constitution, and art. 16 of the Amendments to the Massachusetts Constitution, may give rise to a common-law privilege that would allow a news reporter to refuse to reveal his sources. In deference to the effect that compelled discovery has on free speech, and to avoid the "needless disclosure of confidential relationships," our cases require a judge ruling on discovery requests, on a showing that "the asserted damage to the free flow of information is more than speculative or theoretical," to conduct a balancing test between "the public interest in every person's evidence and the public interest in protecting the free flow of information." As has been stated above, the judge carefully performed that balancing test and properly concluded that, in this case, the plaintiff's need for the requested information outweighed the public interest in the protection of the free flow of information to the press.

This is a classic case involving the clash of libel law and the so-called reporter's privilege to protect confidential sources. The Globe has said that it might appeal yesterday's ruling to the US Supreme Court.

Libel mishegas. In today's Globe, David Abel reports that Suffolk County district attorney has sentenced five kids who acted up at the Patriots rally to read and write essays on All Souls, Michael Patrick MacDonald's celebrated memoir of growing up on the mean streets of Southie.

Further inside the paper, though, is an Alex Beam column recounting the events behind - yes - a libel suit filed against MacDonald by Richard Marinick, a former state trooper who went bad, and who is described in All Souls as having strangled MacDonald's wounded brother after a busted heist.

DEFENDING THE MAINSTREAM MEDIA. Steve Silver has some useful thoughts on the subject here. His main point is one I've been trying to make off and on for some time: the blogger-MSM thing is a dialectic. A few blogs have proven to be an incredibly useful corrective to what the mainstream media puts out. But without the mainstream media, what would the bloggers have to write about?

We need a fair, impartial, and professional (as in "paid"; I'm not talking about any particular credentials) media as much as ever. Just because the MSM consistently falls short doesn't mean that the bloggers will or should take over.


Anonymous said...

Re: Libel proceedings- As usual, spot on, DK. Simplified but not simplistic. Knowing a little about the MA judicial appointment process, I find MA judges in general, (and Murphy in particular) a bit disingenuous. They like the byzantine landscape and appointment process just fine when it works to their benefit. When the old-boy network (which they foster)doesn't protect them, however, crocodile tears are shed. I have a hard time feeling sorry for someone who games the system and then experiences it rising up to bite them.

Anonymous said...

Hey, Dan - Nothing on Ward Churchill? What gives?

Dan Kennedy said...

Re: Ward Churchill. Hey, I write about what I write about. I haven't been following it that closely, but it seems like there's something bad to say about everyone - Churchill for his ludicrously offensive remarks, and the politicians for trying to violate his tenure by getting rid of him. Is there really anything more to say?

Anonymous said...

I see your point, Dan, what could you say in your capacity as media analyst that would represent more than regurgitation of the whole defense-of-academic-freedom-even-when-the-academic-in-question-is-an-idiot thing.

However: I do feel there is something here that could help facilitate discussion of how the left will define itself and defend itself against the onslaught of Fox News, etc. The O'Reilly faction stops little short of calling Churchill "un-American."

Isn't it the job of the Left to stand up for the VALUE of free speech in this situation? Specifically: if Chuchill is un-American, the Left should make it clear that it is not because he is expressing a radical, wildly unfamiliar, or uncomfortable point of view. The Left should be portraying Churchill as what he is, a ham-fisted hack who's out to shock in a manner that has more in common with Howard Stern than with a true radical like--say--Curtis White. We can't let the Right keep using its usual scare tactics to equate Churchill's claptrap with radicalism.

- Tim, Chicago