The Supreme Judicial Court today unanimously upheld a $2 million libel verdict against the Boston Herald and its reporter Dave Wedge. This is the case in which Wedge wrote several stories about Superior Court Judge Ernest B. Murphy, who according to Wedge made a series of insensitive comments about victims of crime (most famously, that he allegedly said of a 14-year-old rape victim, “She can’t go through life as a victim. She’s [fourteen]. She got raped. Tell her to get over it.”). Murphy sued, claiming that he never made the alleged comments.
The opinion, which concludes that Wedge’s stories were in fact false, and that he either knew they were false or he acted “with a high degree of awareness of their probable falsity” (the necessary standard to uphold a libel verdict), is not at all favorable to Wedge, or to the Herald.
As an initial matter, we conclude that there is overwhelming evidence in the record from which to conclude, as the jury did, that the statements were defamatory and false….
Wedge, however, was thoroughly and convincingly impeached by his own deposition testimony, taken in July and August, 2002. At his deposition, Wedge contradicted his trial testimony in every material respect….
Neither Wedge, nor any other Herald employee who testified at trial, could name one person at the Herald who either edited, or checked for accuracy of, the content of Wedge’s articles. 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.
Bad enough. But it gets worse.
Wedge’s lack of candor on the witness stand strongly supports the inference that he deliberately attempted to mislead the jury. Although disbelief in Wedge’s testimony alone is not sufficient to sustain a verdict for the plaintiff, we are satisfied that the evidence we discuss below would warrant a jury’s finding of actual malice by clear and convincing evidence. 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….
[I]t is certain that the jury found (and our independent review of the evidence leads us to the same determination) that Crowley never told Wedge that he had heard the plaintiff say, “Tell her to get over it.” This finding is supported by the jury’s obvious disbelief of FitzGerald, whom they likely found to be a biased witness, and of Wedge, whose testimony was discredited at every turn. The conclusion follows, inescapably, that Wedge knew that he had no percipient source for his report of the words attributed to the plaintiff. The evidence also supports the conclusion, as we next explain, that Wedge knew that the words “tell her” had, in fact, never been said….
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….
With respect to the statements that the “victim tearfully took the stand” and that the plaintiff “heartlessly demeaned victims,” neither Wedge, or any other Herald reporter, could name any source for these statements. It is more than reasonable to infer that he made them up out of whole cloth, in order to create a more compelling story. Falsely creating the context in which the plaintiff’s remarks were supposedly made is also, in our view, persuasive evidence that Wedge was aware of the falsity of the remarks themselves….
[T]he 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.
Yikes. And there’s even more — Wedge went on Bill O’Reilly after publishing the story, since O’Reilly likes nothing so much as a story about liberal judges being soft on crime.
Finally, we address the remarks made by Wedge on “The O’Reilly Factor” on March 7, 2002: “Yes, he [the plaintiff] said this. He made this comment to three lawyers. He knows he said it, and everybody else that knows this judge knows that he said it.” The statements were not true. The defendants in their brief characterize Wedge’s comments as “classic protected hyperbole.” We disagree. The question posed (“Are you absolutely one hundred per cent sure?”) was a serious one and no reasonable viewer would interpret Wedge’s response as anything other than a serious response based on his knowledge of actual facts…. This testimony suggests, decisively, that Wedge possessed either a brazen disregard for the actual truth or a deliberate intent to give credence to a controversial story that he knew (at the time) to be false. We have no hesitation in agreeing with the jury that Wedge’s comments on “The O’Reilly Factor” were made with actual malice.
Here’s the SJC’s conclusion:
No one would disagree with the importance of upholding the freedom of the press. Nor would anyone disagree about the media’s right (and duty) to examine the affairs of the judicial branch of government and to criticize activities of judges and other court officials that do not meet the high standards expected of judges and the courts. The press, however, is not free to publish false information about anyone (even a judge whose sentencing decisions have incurred the wrath of the local district attorney), intending that it will cause a public furor, while knowing, or in reckless disregard of, its falsity. The jury’s verdict in this case reflects their conclusion that Wedge and the Herald defamed the plaintiff, and that they did so with actual malice and an awareness that they were enabling a campaign by the district attorney for the Bristol district to discredit the plaintiff by attacking the core attributes a judge must possess–even temperament, lack of any bias, fairness at all times, and a particular sensitivity to the plight of victims of crimes. See note 9, supra. The statements in the Herald are not the type of “erroneous” statements recognized by the Supreme Court to be “inevitable in free debate, and that … must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.'”
The SJC’s opinion is quite long and quite thorough — and for good reason. Because this case implicates important First Amendment principles, there are grounds for an appeal to the US Supreme Court, and I would predict that the Herald will try to persuade the Court to take the case. Separately, it’s now a tough call for the Herald as to how to handle the fact that the state’s highest court has more or less called one of its top reporters a liar, and has also trashed the paper’s editorial standards and practices. Stay tuned to this one.
ryepower12 says
I read every word David… waaaaaay too much fun. Haha.
dkennedy says
As bad as the Herald’s journalism was, it’s still a stretch to think that Wedge knew his reporting was false, or that he even harbored serious doubts. David, as you recognize, there may well be federal issues here. I covered the trial, and here’s my take at Media Nation.
david says
The question is whether the US Supreme Court (the only court with jurisdiction over the SJC) will think them important enough to take the case. My guess: no. Even if you think the SJC got the facts wrong (i.e., you think Wedge was simply sloppy and sensationalistic, rather than acting with “actual malice”), the SCOTUS doesn’t usually like to take cases just to correct misapplications of established legal standards to a particular set of facts. The SJC no doubt knows this, and therefore wrote the opinion to be as well-rooted in the record and the jury’s verdict as possible. The SJC didn’t do anything to lower the standard applicable to sustain a libel verdict. What it did is hold that, on the evidence presented, the facts in this case met the high standard that is required. For the SCOTUS to take this kind of “error correction” case (if error there was) would be unusual. Not unprecedented, certainly, but my prediction is that they deny review.
centralmassdad says
Would only be given in order to narrow or overturn the Sullivan case, which was a true 1960s Brennan special.
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I doubt that the result a revisit of public figure libel law would be at all pleasing to the tweed and elbow patch set most likely use the term “chilling” in connection with what it views as “the fourth branch” of government.
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Other professions–even the legal profession, which also is recognized in the Constitution– must contend with professional malpractice liability, and are not “chilled” out of existence. My goodness, what if a malpractice judgment against a criminal defense attorney made attorneys reluctant to take defense cases?They have insurance, and it doesn’t. It has never been clear to me why the media should be any different.
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Based on my reading of that case (thanks for the link, guy who is supposed to be away) they found he actually knew that the allegations were false because he lied like a rug, and because he actually destroyed his own (likely damning) notes after learning of the claim, and then lied about that. Short of credible testimony by the reporter that “yes, I manufactured the story out of whole cloth in order to injure a judge” that seems like as neat a way to establish his knowledge as there is.
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And, wow, they don’t mince words about how they view that reporter at all. Isn’t he a pooh-bah in the Herald newsroom?
dkennedy says
And I suspect you are, then Wedge’s failure to try to interview either of those two defense lawyers will be key.
eddiecoyle says
I am wondering what impact a $ 2 million libel judgment against a tabloid newspaper already fiscally treading water has on the long-term viability of the Boston Herald. Although I find most of the news and editorial content in the Herald to be barely worthy of being an excrement receptacle for my dog, I do not feel sanguine about Boston, perhaps, becoming a one-newspaper town. Maybe, after Rupert Murdoch finishes his negotiations with the Bancroft family over the Wall Street Journal, he will turn his attention to saving the last surviving metropolitan competitor of the boring Boston Globe.
goldsteingonewild says
david says
it’s available for purchase, so they’d be crazy not to have it.
ryepower12 says
Still cost them a sizable chunk. Lawyers, etc. I don’t know how that type of insurance will work, but if they aren’t responsible for any of the cost, at the very leas their premiums would be going way, way up. lol. They’ll have to be that much careful about it in the future.
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All that said, I have no desire for Boston to be a two-town paper. Although, it’s kind of arrogant calling it that now, but still I’d prefer the Herald exist than not exist.
ruppert says
As I read this I just heard a promo on radio station WATD (95.9FM) for State Senator Bob Hedlund’s Monday Night show wich said Wedge would be making his first public comments on this just before 7:00 pm.
I have some mixed opinions about the case but I fall in line with Dan Kennedy for the most part. Ryan, If you care about a free press read Dan’s take on this.
bob-neer says
After a jury of his peers, and two separate courts, including the highest judicial authority in the state, have concluded that he deliberately publishing false and defamatory information about an important state official?
harry-lyme says
As a general matter, the Herald’s editorial staff has long been arrogant, inept and ideological, and that this decision slaps them so hard is a good thing.
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The most remarkable aspect of this case to me, and in the decisions below, were the fact that Murphy, as a public figure, had an enormously high burden to meet in proving his allegations. From the evidence the SJC discusses in the record, it appears that he more than carried his burden.
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Although the idea of a two newspaper town is a good one, in practice it hasn’t worked out in a long time. Because of its ineptitude, the Herald long ago stopped being any real competition for the Globe. Maybe this libel verdict, and the swirling insurance premiums that arise from it, will finally put that rag out of business.
dkennedy says
Have a look at what other news outlets were reporting about Judge Murphy at the time. The Globe even used the “get over it” quote, attributing it to “prosecutors.” I’m not saying any of this is as egregious as what the Herald did, but there was a context.
ryepower12 says
circulation numbers would prove otherwise. The Globe has a lot more newspapers being printed every day, but not so much that’s it’s anything remotely like a manopoly in town.
johnk says
Purcell and Wedge statements.
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While nothing new from Wedge, Purcell on the other hand seems desperate with his judges won’t turn on their own shtick.
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capital-d says
This decision is a much deserved slap in the Media’s face…..especially the Heralds.
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The reporting on Government officials whether they are elected, appointed or career public servants is a disgrace.
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I hope this adresses the “gotcha” journalism that has pervaded the media in recent years.
not-the-senator says
As a layperson who follows Massachusetts politics, and despite the fact that I’m a member of the ACLU, I can’t disagree with this verdict. Dave Wedge has a long and lurid history of being sensationalistic and shall we say ‘loose’ with the facts. He’s written multiple hit pieces against Massachusetts Democrats that have been used by National media to attack Kennedy/Kerry/Patrick. He’s a favorite link of Drudge. I think that’s fine in opinion pieces but when you play close to the line and manufacture quotes in a supposed news article, it is possible to go too far. I and the SJC think that the line was crossed here. Public figures have a very difficult time meeting the extremely high libel standard, as they should. Never the less, I think there should still be some level of standard that can be met.
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I don’t think it’s in the public interest to allow absolutely unbridled fabrication unless it is lin the realm of opinion or parody. If the Herald political coverage chooses to represent itself as parody, then fabricate away. Otherwise, they will have to adhere to some minimum standards.
ruppert says
Hey NTS, just curious , how do you feel Wedge treated Romney? Seems he was just as fair as Phillips and the rest!