Appeals Court Dismisses Libel Case Against Herald

The state Appeals Court today issued an opinion dismissing a libel case brought against the Boston Herald and reporter Michele McPhee. The plaintiff, Edmund LaChance Jr., an incarcerated prisoner, alleged he was libeled by three articles McPhee wrote about online “dating” by incarcerated felons.

The defendants conceded that the articles contained three inaccuracies:

1. That LaChance had been convicted of manslaughter. In fact, he was convicted of rape, aggravated rape, armed robbery, kidnapping, indecent assault and battery, and assault by means of a dangerous weapon. 
2. That he claimed in his online ads to be in prison for manslaughter.
3. That he had committed a “brutal sexual attack on an elderly woman.” 

A Superior Court judge had granted summary judgment dismissing the case and, in today’s opinion, the Appeals Court affirmed that dismissal.

The case is notable for three reasons:

• The court held that LaChance was a “public figure” for purposes of libel law because, by placing his ads online and making deceptive assertions in those ads, he had injected himself into a matter of public concern, “specifically the dangers of interacting with violent felons online.”
• Even though the stories contained inaccuracies, they were not “actionably false” within the meaning of libel law because “publication of the plaintiff’s actual criminal record … would have been, at the very least, equally as damaging to the plaintiff’s reputation in the mind of a reader.”
• The court affirms the applicability of the “fair reporting privilege,” a privilege that protects the publication of information taken from judicial, legislative or other official proceedings. The newspaper’s report that LaChance had committed a sexual assault on an elderly woman was based on the incorrect statement in a court docket that he had committed an “assault and battery on an elderly person.” Because the newspaper had no way of knowing the docket was incorrect, its reporting of that information was privileged, the court said. 

If you’d like to read the full opinion, it is here: LaChance v. Boston Herald.

Is Libel Law Dead or Alive?

John Koblin has a fascinating piece in The New York Observer, The End of Libel? He quotes well-known-media-lawyer after well-known-media-lawyer saying that no one is bringing libel lawsuits anymore. The libel lawyer for Time Inc., Robin Bierstedt, says she is retiring because there are "no more lawsuits." George Freeman, VP and assistant GC at the New York Times, says that, for the first time in his 29 years there, there are no active domestic libel suits. The dean of media lawyers, Floyd Abrams, says he knows of no litigators "who are doing a lot in this area."

If I didn't know which side they were on, I would almost suspect a wisp of nostalgia in their comments, as if an abundance of libel lawsuits represented the good old days.

Why the diminishing number of libel cases? The article attributes it to the glut of information made available via the Internet, the ability of those who feel wronged to disseminate their viewpoints, and the willingness of publications to correct their mistakes.

I am not qualified to quibble with the likes of George Freeman and Floyd Abrams about anything having to do with media law. But I wonder whether libel is dead or merely being redirected towards a different type of publisher. Even if it is true that libel actions against newspapers are dropping, there seems to be an increasing trend to threaten libel actions against bloggers and other types of online publishers and commentators. Perhaps the reason many big-name lawyers are not seeing these cases is that these small-time bloggers can't afford to hire them.

And on the subject of the death of libel, I would love to hear what Howard M. Cooper would have to say. Cooper is the lawyer who has made a national name for himself as the go-to advocate in libel matters, particularly when the subject of the alleged libel is a judge. As The Boston Globe recently said, "Get me Howard Cooper" has become the rallying cry for judges from the Virgin Islands to New Hampshire who feel they have been libeled by media outlets.

If libel lawsuits are down for some, libel business is clearly on the upswing up for Cooper, and not just on behalf of judges. Earlier this year, he represented Tom Scholz of the band Boston in a libel matter.

My sense is -- to paraphrase Mark Twain -- that reports of the death of libel are greatly exaggerated.

Boston Lawyer Wins Libel Case for Former V.I. Judge

A former Superior Court judge in the U.S. Virgin Islands won a $240,000 libel verdict this week against the Virgin Islands Daily News. The former judge, Leon Kendall, was represented in the lawsuit by Howard Cooper, the Boston lawyer who in 2005 won a $2.1 million verdict against The Boston Herald for former Massachusetts Superior Court Judge Ernest Murphy.

According to a report today in The Daily News, the jury on St. Thomas returned the verdict Tuesday. Jurors found that the newspaper and one of its reporters damaged Kendall's reputation through a series of 16 news stories and an editorial published from 2005 to 2009.

The stories related to Kendall's work as a judge and bail rulings he made. The editorial called for his resignation. Kendall retired from the bench last year.

The Daily News says it will appeal the verdict.

Jury Verdict in Noonan v. Staples

Remember Noonan v. Staples? That was the 1st Circuit decision I described as the most dangerous libel decision in decades. In it, the court upended the bedrock principle of libel law that truth is an absolute defense. It said that even a true statement can be subject to a libel lawsuit if it was said with actual malice.

At issue in the case was an e-mail sent by a Staples executive to some 1,500 employees about the termination of Alan Noonan, a Staples sales director. The e-mail said -- truthfully -- that Noonan was terminated after a company investigation determined that he had violated Staples' travel and expense policies.

The 1st Circuit remanded the case to the district court for trial. Reportedly, the trial is now complete and a jury last week rendered its verdict. The jury found no malice on the part of Staples and returned a verdict in the company's favor.

I learned this from National Law Journal reporter Tresa Baldas, who posted a report on the verdict this afternoon.

SJC Hears Fair Report Case

The Supreme Judicial Court today heard oral arguments in Howell v. The Enterprise Publishing Co., a defamation case arising out of a series of newspaper articles regarding a town's termination of an employee. The case is particularly important because it could define the scope of the fair report privilege in Massachusetts. You can view a webcast of today's oral arguments at this page. That page also has links to the parties' briefs.

The SJC heard the case on further appellate review from a decision of the Appeals Court. The case involves allegations of defamation against a newspaper that accurately reported on findings made by officials in the town of Abington after conducting two investigatory hearings. The officials twice concluded that plaintiff Howell had used town computers to access images of a "pornographic nature." Even though the newspaper reported these findings accurately, the Appeals Court held that if a jury disagrees that the images were pornographic, the newspaper could be liable for defamation. This is a misapplication of the fair report privilege, which protects news outlets against claims for libel when they report information provided in official government documents or statements. 

1st Circuit Denies Review of Libel Ruling

The 1st U.S. Circuit Court of Appeals today turned down a petition asking the full circuit to rehear en banc the controversial decision Noonan v. Staples, in which a three-judge panel ruled that truth is not an absolute defense to libel. My earlier post about that ruling is here.

Following is the text of today's order. A note on the order said that Circuit Chief Judge Sandra Lynch recused herself from the case and did not participate in the vote.

Staples's petition for rehearing en banc, construed also as a petition for panel rehearing, challenges the constitutionality of the Massachusetts General Laws ch. 231, § 92, as construed in the panel's rehearing opinion. Since its initial brief, Staples has argued under the premise that the term "actual malice" in § 92 means "malevolent intent." Yet, Staples did not then challenge the constitutionality of such a construction. Thus, the rehearing opinion found that it need not consider the issue. See Rehearing Opinion at p. 17, n.7.

Staples now contends that it raised the issue in its initial brief. But that brief simply acknowledged that the statute was not constitutional as applied to a matter of public concern. Staples did not timely argue that the present matter was a matter of public concern or that the statute was unconstitutional as applied to a matter of private concern. That Staples did not timely raise the issue is also made clear by the fact that it has not, until now, filed the notice required for a challenge to the constitutionality of a state statute. See Fed. R. App. P. 44(b). The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver. See, e.g., Rosado-Quiñones v. Toledo, 528 F.3d 1, 6 (1st Cir. 2008) (deeming waived the "question of law about whether there is added First Amendment protection for public employees' filing of lawsuits against their employers on matters in which the public has no interest"); Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 n.7 (1st Cir. 2008); see also Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703 (1982) ("Because the requirement of personal jurisdiction represents first of all an individual [due process] right, it can, like other such rights, be waived.").

Further, Staples has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down a state statute, without the required notice to the state attorney general. Staples still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern. The Massachusetts Supreme Judicial Court ("SJC") case relied upon by Staples did not hold that truth is an absolute defense in private concern cases, but rather that a private figure may recover for a negligently made defamatory falsehood in a case of public concern. Stone v. Essex County Newspapers, Inc., 330 N.E.2d 161, 164 (Mass. 1975). And the Supreme Court has stated that as to matters of private concern, the First Amendment does "not necessarily force any change in at least some of the features of the common-law landscape." Phila. Newspapers v. Hepps, 475 U.S. 767, 775 (1986); see also Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 761 (1985) ("In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages -- even absent a showing of 'actual malice.'"). In fact, were the issue as clear-cut as Staples suggests, the SJC would not likely have limited its own invalidation of § 92 to matters of public concern. Shaari v. Harvard Student Agencies, 691 N.E.2d 925, 929 (Mass. 1998) ("To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment." (emphasis added)). Thus, whether § 92 is a "feature[] of the common-law landscape" left unchanged for matters of private concern is an issue on which we now take no position.

Nor it is appropriate to now certify the question to the SJC. We have answered the question of state law regarding the proper interpretation of the statute, and Staples has not challenged that matter on rehearing. The question of the constitutionality of that state law under the First Amendment is a federal question, which we could answer without certification. Though Staples suggests that § 92 may violate the Massachusetts Constitution, it presents no argumentation whatsoever relating specifically to that contention. Further, Staples should not be allowed to escape the consequences of waiver through certification.

The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied. The alternative request for certification to the SJC is also denied.

Journalists Warily Eye Massachusetts Libel Ruling

AP reporter Denise Lavoie has this story today on the 1st U.S. Circuit Court of Appeals decision in Noonan v. Staples that I wrote about on Feb. 16.

Libel Ruling Protects Anonymous Comments

Maryland's highest appellate court has issued a significant ruling underscoring the First Amendment's protection of anonymous comments posted online. The Maryland Court of Appeals decision, Independent Newspapers v. Brodie, is only the second by a state supreme court to confront the disclosure of those whose anonymous comments are alleged to be defamatory. The court established a strict, five-step process that courts in Maryland must follow before requiring disclosure of someone's identity:

When a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

The case involved anonymous comments critical of the cleanliness of a Dunkin' Donuts owned by Maryland developer Zebulon Brodie. Brodie sued the online newspaper that hosted the comments and three John Doe defendants. The trial judge dismissed the newspaper from the lawsuit under the Communications Decency Act, but nevertheless ordered the newspaper to provide identifying information about the three John Doe defendants and two others not named in the complaint.

It is interesting to note that the Court of Appeals could have disposed of this case without addressing this important issue. In reviewing the lower-court proceedings, it found that the three John Does identified in the complaint had nothing to do with the allegedly defamatory comments concerning cleanliness of the Dunkin' Donuts. The two who did make those comments were never named in the complaint. In light of this, Brodie had not established a valid cause of action for defamation against any defendant and the judge had no grounds to order the disclosures. But the Court of Appeals went on to decide the broader issue anyway, explaining, "We did not take this issue just to sort out the record but to give guidance to trial courts addressing similar matters."

You can read more about this case from The Baltimore Sun and The Washington Post.

More Views on 'Dangerous' Libel Case

Friday's 1st Circuit decision that truth is not always a defense to libel -- which I posted about here and here -- continues to draw reactions from other bloggers:

• At Nieman Journalism Lab, Martin Langeveld writes: "The case threatens to muzzle both news and entertainment media, and could be particularly dangerous to independent bloggers and small startup news organizations — neither of which is likely to have the legal resources a traditional established news organization has to battle libel suits."

• Los Angeles entertainment lawyer Gordon P. Firemark blogs: "If allowed to stand, this case could make anybody a potential defendant. It will certainly have a chilling effect on important forms of speech, such as documentary films and many forms of investigative journalism."

More on 1st Circuit's 'Dangerous' Libel Ruling

The 1st Circuit's libel ruling that I wrote about here yesterday has drawn reaction from a number of commentators. Dan Kennedy wrote about it for his weekly column in the Guardian. (In fact, it was Dan's request for comment that led me to write my post.) Dan also wrote about it on his blog, Media Nation, and at the blog of the New England First Amendment Center. Dan's Media Nation post includes a lengthy analysis by Rob Bertsche, one of the top media lawyers in New England. Other comments about the case come from Bill Ketter, vice president of news for Community Newspaper Holdings Inc., and Sam Bayard, posting at the Citizen Media Law Project. The ABA Journal also has a short piece about it.

Just to highlight two of the many thoughtful comments these others have made, let me start with this from Dan Kennedy's Guardian piece:

If Torruella's dangerous opinion were to lead federal judges' finding state laws similar to the 1902 statute in Massachusetts, the result could turn back the clock on freedom of speech and freedom of the press.

If the truth no longer sets us free, then the first amendment will have shrunk beyond recognition. The media will lose, of course. But so will the public they ostensibly serve.

And then this from Rob Bertsche, via Kennedy's blog:

With this decision, the First Amendment has been replaced by the maxim, "If you don't have anything nice to say, don't say it."Consider the irony: The Supreme Court has said that there is constitutional protection for false statements on matters of public concern, but now the First Circuit says there is no constitutional protection for true statements on matters of private concern. What's worse, the court offers no guidance about how to distinguish what is of "public concern" from what is of "private concern."

As I said in my original post: Be afraid, be very, very afraid.

Think You Know Libel Law? Think Again

A bedrock principle of libel law is that truth is an absolute defense. If what you say about someone is true, the person cannot win a libel case against you, even if you defame them. The federal appeals court in Boston put a jackhammer to the bedrock this week. In Noonan v. Staples, it ruled that even a true statement can be subject to a libel lawsuit if it was said with actual malice. In so deciding, the three-judge panel did an about face, reversing its own earlier decision in the same case. You need not be superstitious to appreciate the import of this Friday the 13th ruling. It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech.

To reach this outcome, the 1st U.S. Circuit Court of Appeals panel dusted off a 1902 statute that the highest state court in Massachusetts long ago ruled unconstitutional in a related context. The statute, G. L. c. 231, Section 92, says that truth is a defense to libel "unless actual malice is proved." In a 1998 case, Shaari v. Harvard Student Agencies, the Supreme Judicial Court ruled that statute unconstitutional as applied to matters of public concern. Citing a line of U.S. Supreme Court opinions leading back to the seminal 1964 case, New York Times v. Sullivan, the SJC said, "To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment."

Remarkably, the 1st Circuit sidestepped Shaari with barely a nod to its significance. In a 34-page opinion written by Circuit Judge Juan R. Torruella, the court gave Shaari only a footnote. It dismissed Staples' argument that Shaari applied here on a procedural formality. "This argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time." It ignored Shaari even though the SJC suggested in dictum that the ruling should apply equally to private cases. "Although the Supreme Court has instructed that private figure plaintiffs may recover 'on a less demanding showing than that required' in cases of public figure plaintiffs, ... the falsity of the defendant's defamatory statement regarding matters of public concern remains a prerequisite to recovery," the SJC said.

At issue in this case was an e-mail a Staples executive sent to some 1,500 employees about the termination of Alan Noonan, a Staples sales director. The company terminated Noonan for cause after investigators concluded that he had deliberately falsified expense reports. The next day, Executive Vice President Jay Baitler sent the e-mail. "It is with sincere regret that I must inform you of the termination of Alan Noonan's employment with Staples," he wrote. "A thorough investigation determined that Alan was not in compliance with our [travel and expense] policies."

As the 1st Circuit itself acknowledged, "everything said in the e-mail was true." But it said Noonan could still have a claim under the 1902 statute if he could show that the e-mail was sent "with actual malice." The Supreme Court's decision in New York Times v. Sullivan defined actual malice as requiring knowledge that a statement was false or reckless disregard for its truth or falsity. The first time the 1st Circuit decided this case, it applied that standard to dismiss Noonan's appeal. This time, it leapfrogged back in time over 40 years of Supreme Court precedent to apply a 1903 SJC ruling that defined actual malice as "malicious intention," which Torruella recasts as "ill will."

"From this evidence, a jury could permissibly infer that Baitler singled out Noonan in order to humiliate him," Torruella wrote. He cites three pieces of evidence he considers key. First, Baitler had never before referred to a fired employee by name in a communication to employees. Second, he sent no memo about another employee who was fired for embezzling money through fraudulent expense reports. Third, he sent the e-mail to some 1,500 employees, many of whom did not travel and had no reason to be reminded of the policy. "The presence of these three pieces of evidence support inferences upon which a jury could base a verdict for Noonan," Torruella said.

This is far from the end of this case. The 1st Circuit's decision sends it back to the lower court for a trial to determine how the case should be decided. Most likely, Staples will ask the full panel of 1st Circuit judges to review this case en banc. It could even make its way to the Supreme Court. For the time being, however, be afraid -- be very, very afraid -- of this precedent. If ill will is all that is needed to turn a truthful statement into libel, then everyone is a potential defendant.

Judge Reprimanded for Letters to Publisher

The judge who sent threatening letters to the publisher of The Boston Herald received a public reprimand today from the Supreme Judicial Court. The SJC concluded that Superior Court Judge Ernest B. Murphy violated standards of judicial ethics when he wrote two letters to Herald Publisher Patrick J. Purcell on official court letterhead demanding payment of a more than $2 million libel award. From today's opinion:

It is beyond serious dispute that the letters sent by Judge Murphy do not promote public confidence in the judiciary. Judge Murphy concedes that he should not have used judicial letterhead. But more than stationery is at issue here. Although a judge is not prohibited from communications related to personal litigation, including those in pursuit of settlement, permissible communications must reflect the standards required to be followed by a judge both on and off the bench.

"That the standards imposed on judges are high goes without saying. Because of the great power and responsibility judges have in passing judgment on their fellow citizens, such standards are desirable and necessary and there should be strict adherence to them. Failure on the part of even a few judges to comply with these standards serves to degrade and demean the entire judiciary and to erode public confidence in the judicial process." Matter of Morrissey, 366 Mass. 11, 16-17 (1974). In sending the letters at issue, Judge Murphy did not meet the high standards required of judges.

The full-text of the opinion is here: In the Matter of Ernest B. Murphy, SJC-10179 December 18, 2008.

Mass. Libel Case Survives Appeal

A libel case brought by a former Abington town official against the Brockton Enterprise will be allowed to proceed to trial, based on a ruling issued today by the Massachusetts Appeals Court. In Howell v. The Enterprise Publishing Company, the court refused to dismiss claims against the newspaper, despite the newspaper's arguments that its stories were protected by the "fair report" privilege.

The case involves a 2005 series of stories by reporters Elaine Allegrini and Allan Stein covering James F. Howell's termination from his position as superintendent of Abington's sewer department. His termination came after the town sewer commission determined that he had used town computers for personal business and for storing inappropriate images. Howell's libel suit alleged that the Enterprise defamed him by accusing him of storing pornography on town computers and by making other allegations that he says are false.

The Enterprise sought to have the case dismissed through summary judgment, which requires a finding that there are "no issues of material fact" that need to be decided through a trial. As to each of Howell's allegations, the court found that there were disputed issues of fact, making summary judgment inappropriate. Among the key contentions addressed by the court's decision:

• The Enterprise described images on Howell's computer as pornographic, relying in part on the sewer commission's characterization of them as such. Howell contends that the images were comical, e-mailed to him by friends, and not pornographic. The court ruled that a jury should decide whether they were pornographic.
• Some Enterprise reports about Howell alluded to the unrelated case of an East Bridgewater official who was found to have child pornography on his computer. These allusions, Howell argues, raised the insinuation that he had child pornography. The court agreed, finding that a "reader reasonably could conclude" there was an association.
• One article inaccurately reported that a conflict-of-interest charge against Howell had been sustained. The Enterprise argued that the "gist" of its article was correct. But the court found that the "inaccuracy was not merely a question of degree."
  

A significant aspect of this opinion is the court's discussion of the fair report privilege -- the idea that a newspaper has a right to rely on and report what is contained in official government reports. As noted above, the Enterprise based its reporting in part on findings by the town sewer commission that characterized the images as pornographic. To that, the appeals court said:

"Even assuming, but not deciding, that the fair report privilege is otherwise applicable to the matters reported on in the articles about Howell, its protection extends only to reports that are both fair and accurate. ... In determining whether a report is fair and accurate, the test is whether a reporter's 'rough-and-ready summary' of the matter reported on is 'substantially correct.' ... Where there is a basis for divergent views, the question whether a report is fair and accurate is for the jury. ... As discussed, supra, here there are material factual issues in dispute regarding whether the articles are fair and accurate. Thus, the judge correctly concluded that summary judgment is not appropriate as to Howell's defamation claims."

Howell had also sued the Enterprise for invasion of privacy. The Appeals Court agreed with the Enterprise that the privacy claim should be dismissed, concluding that Howell's termination was a matter of legitimate public interest.

Libel Suit Tossed Against Local News Site

A Vermont judge has dismissed the libel lawsuit filed against Chris Grotke and Lise LePage over a comment posted on the community news site they co-founded, iBrattleboro.com. The plaintiff, Effie Mayhew, had argued that they should have edited or removed the allegedly defamatory comment. But the judge found that they are immune from liability under section 230 of the Communications Decency Act.

David Ardia has full details at Citizen Media Law Project.

Libel Win Pit Newspaper Against Newspaper

Always good news when a newspaper beats a libel lawsuit, but in an ironic twist to a Texas case decided last week, the victorious newspaper was defending itself against a plaintiff that was also a newspaper. As Tex Parte Blog reports, the Sept. 20 ruling from the state's 8th Court of Appeals was a victory for Belo Corp., publisher of The Dallas Morning News. The suit had been brought by the Mexican company Publicaciones Paso Del Norte, publisher of El Diario, after the Dallas paper ran an article suggesting that the Mexican paper may have soft-peddled its reporting of the murders of some 400 women in Juarez, Mexico. The appeals court concluded that there was "less than a scintilla of evidence to create a genuine issue of material fact concerning actual malice" and entered summary judgment dismissing the case.

SJC Affirms Libel Verdict Against Boston Herald

The Massachusetts Supreme Judicial Court today affirmed the $2.09 million libel verdict against the Boston Herald and reporter David Wedge in a case brought by Superior Court Judge Ernest B. Murphy. In a decision written by Justice John Greaney, the court said: "We conclude that the verdict, as modified by the trial judge, holding the defendants liable for the calumnies published, is sound in fact and in law, and we now affirm the judgment entered on the jury's verdict."

• Full text of decision: Murphy v. Boston Herald.

At issue were a series of articles attacking Murphy as soft on crime. The first article ran under the headline "Murphy's law," with the subhead "Lenient judge frees dangerous criminals." It included the allegation that Murphy had said of a teenage rape victim, "She can't go through life as a victim. She's 14. She got raped. Tell her to get over it."

The SJC found "that there is overwhelming evidence in the record from which to conclude, as the jury did, that the statements were defamatory and false." The court came down particularly hard on Wedge, finding that his testimony at trial was not believable and was impeached by contradictions in his earlier deposition testimony. "It is fair to say that, by the end of Wedge's testimony, his credibility on any material factual point at issue was in tatters," Greaney wrote.

As for the statement about the rape victim, Greaney found that overwhelming evidence indicated that Murphy's actual statements showed compassion and concern, not callousness. "The actual remarks made by the plaintiff in the lobby conference in the rape case … are polar opposites to what Wedge reported and demonstrate that the plaintiff had acted with compassion and prudent regard to assist the victim in restoring her life."

Greaney found that Wedge "deliberately attempted to mislead the jury" and acted with "actual malice" in his reporting of the stories. "There is an abundance of evidence that, taken cumulatively, provides clear and convincing proof that the defendants either knew that the published statements found by the jury to be libelous were untrue, or that they published them in reckless disregard of their probable falsity."

"Despite obvious reasons to doubt the quotation's accuracy, however, and although Wedge knew that there were others -- not connected to the district attorney's office -- who had been present at the robbery case lobby conference at which the statements purportedly were made, Wedge failed to interview anyone other than Crowley," Greaney wrote.

"When substantial doubts have been raised as to the veracity of a reporter's information, the purposeful failure to investigate known witnesses may be proof of actual malice. … The evidence, clearly and convincingly, supports the inference that Wedge included the 'tell her' quotation, which not one percipient witness had confirmed, to convey the impression (false) of callousness. The evidence equally clearly and convincingly supports the determination that Wedge purposely did not seek to interview any of the percipient witnesses who would have contradicted the alleged facts in his article."

Greaney said that "most damaging" to Wedge were the circumstances in which he discarded his notes. Even though Wedge testified that he routinely discarded his notes within days, Greaney found it "highly improbable" that would discard them here, having already been put on notice by a lawyer that Murphy claimed he was misquoted.

"The jury were entitled to draw the negative inference that Wedge discarded his notebook in a deliberate effort to conceal what he knew were inaccuracies in his reporting. This inference, in turn, provides a strong basis for a finding of actual malice."

Greaney concludes: "The record contains sufficient evidence to permit the conclusion that the defendants published the quotation, and other defamatory statements concerning the plaintiff, with knowledge of their falsity or with serious doubts as to their truth."

SJC hears appeal in judge's libel case

From Associated Press via the Worcester Telegram & Gazette:

"The Boston Herald on Thursday asked the state's highest court to toss out a $2.1 million verdict won by a Superior Court judge who said the newspaper libeled him by reporting he made insensitive comments about a 14-year-old rape victim.

"In February 2005, a jury found the newspaper had libeled Judge Ernest Murphy in a series of articles. Murphy maintained a Herald reporter misquoted him as telling lawyers involved in a case about the rape victim: 'Tell her to get over it.' Murphy denied ever making the statement.

"An attorney for the Herald and its reporter, David Wedge, said Thursday that Wedge did everything he could to ensure the stories were accurate, including twice trying to get comment from the judge himself. The attorney, Bruce Sanford, said Wedge had several sources who attributed the comment to Murphy."

The video of the oral argument will be posted here.