The woman’s plea deal (which may or may not go through, but let’s assume it does) would give her a very light sentence (effectively no jail time), in exchange for her promising to keep the man’s name secret for her 3-year term of supervised release. But it’s not so hard to imagine her slipping up and revealing, maybe unintentionally, the man’s name to a friend, who might then call the Globe and identify the guy, whereupon the Globe could run the story. Or maybe, 3 years down the road, she calls up the Globe herself, and they run with it.
The story would be true (the man has admitted paying for sex with this woman). Could it nonetheless be libel, committed either by the Globe or by whoever revealed the information to the Globe?
Now, I’m cheating a bit here. The issue in last week’s court case was a company email explaining to employees the reason that the plaintiff was being fired. That seems neither to concern “public figures,” nor to implicate a “matter of public concern.” Whereas it’s at least arguable that the hypothetical Globe story disclosing the identity of Mr. “Last Hurrah” would constitute a matter of public concern. And the courts have already held that even a story that concerns only private citizens can nonetheless be a “matter of public concern” — and in those circumstances, truth remains an absolute defense to a libel charge.
But is it so obvious that a follow-up story whose sole purpose was to reveal this man’s identity is indeed a “matter of public concern”? It isn’t to me. Certainly, the issue of shielding crime victims’ identities is a “matter of public concern,” as are issues surrounding the crimes of extortion and prostitution. But those matters have already been addressed in the stories now in the papers. A story published months or years later that added little more to the tale than the man’s identity could, it seems to me, be found to be not of “public concern.” And if it were so found, the newspaper that published it could indeed find itself on the losing side of a libel suit, with only the impossibly fuzzy “ill will” standard to protect it, should the First Circuit’s interpretation of MA libel law stand up. A newspaper losing a libel suit for publishing a true story would indeed be startling.
And yet, as TedF argued, maybe we should take “reputational injury” more seriously, so that publicizing the name of Mr. Last Hurrah should constitute libel. Obviously doing so would harm his reputation, and it’s not immediately clear that any social good would be enhanced in the process. In a strictly utilitarian sense, then, it would seem that publishing his name just for the sake of doing so is a bad thing that shouldn’t be allowed. On the other hand, even under the First Circuit’s decision, it’s only libel if the publication was malicious, yet the utilitarian calculus doesn’t seem to change depending on the publisher’s motivation. Whether they publish out of a sincere belief that the truth should always come out, or of a nasty desire to ruin this man’s reputation, the objective balance of good and harm (to the extent that such a thing exists) doesn’t seem affected.
It’s all very interesting. Add in the fact that Mr. Last Hurrah would likely not have been able to protect himself to the extent he has were he not able to afford very fancy and well-connected lawyers, and you’ve got a messy and complicated set of issues that probably will not be resolved for some time.
that we may never learn the identity of any future perpetrator of crime who isn’t already a public figure?
about whether the judge accepts the plea deal?
<
p>I predict: he rejects it.
<
p>Then what?
If he rejects it and sentences her to a lengthy prison term, presumably she’s then free to use the prison phone to call the Globe and disclose the name. Then, in a sense, everyone is worse off: she’s in prison for years, and his reputation is ruined.
<
p>Of course, that could lead to a libel suit, as outlined in my post.
<
p>Is that a good result? What would Judge Wolf have accomplished by effecting it?
…it seems the first amendment trumps other concerns. How would you enforce a gag on this tidbit if information? It seems the truth should always be a defense and as for Mr. Last Hurrah, he should have thought of this BEFORE he committed what is after all a crime.
Equal justice under the law. He broke the law, and should have been charged. Last I checked, there was no particular right to privacy for Johns who engage hookers (or drunk drivers, grafitti artists/vandals, barroom brawlers, etc) Why is this guy an exception?
He’s an exception specifically because he was being extorted and came forward rather than continue paying, when he could’ve continued paying and most likely kept his name secret. If you view reducing “the market for extortion” as a social good, then it is valuable to encourage other people who are being extorted to come forward. They’re going to be discouraged from going to the police or the law about it if they know that it will result in the very information they’re being extorted about, being made public.
<
p>He committed a crime, as did she (twice: prostitution, and then extortion). Keeping his name secret is justified if one views extortion as the far more serious crime, and therefore views efforts to deter extortion as trumping the prostitution aspect of this case.
He “came forward” only when it became clear that the demands would never end and would eventually make him a pauper. Initially, he paid her off, because it was more important to him to keep the whole thing secret than to bring to light a crime being perpetrated against him.
<
p>I don’t necessarily disagree with your larger point. I just think we shouldn’t paint Mr. Last Hurrah as some kind of selfless anti-extortion crusader.
Exploit the economic desperation of the prostitute in order to satisfy his sexual appetite, but didn’t care for life on the other end of the exploitation equation. A guy used to having things go his way, no doubt.
In what way did I paint him as a selfless anti-extortion crusader? I gave the very simple case for why they’re keeping his name secret: They want other people who are being extorted to understand that going to the police will not undo them, so that if they have a choice, they’ll be more likely to go to the police than they otherwise would. Just because you really care that this guy not be viewed favorably, is no reason to pin your strawman on my explanation. It’s not “my larger point”, it is my point. I care not one whit whether Mr. Last Hurrah is viewed favorably or not, and I didn’t address it at all in my comment.
to convince the presumably huge population of hooker-extortionists that their crimes won’t pay is so much more pressing than making an example of Mr. John, to show the Johns of the world that they shouldn’t be paying women to have sex with them. What if Mr. John was a pedophile priest who was being extorted by a former victim? Would the government cut a similar deal, if only because the Feds have jurisdiction over the crime of extortion?
When I first heard this story, I found it very odd that the Feds would seemingly ignore the john’s illegal activities- it reminded me of a story in the paper about a month ago about a guy who got beat in a drug deal then reported it to the cops as a robbery- he got arrested on the spot, and we were all meant to laugh at his stupidity.
She’s charged with extortion. Unless he gave her a ride to Portsmouth or Providence, I don’t think the feds would give two damns about the prostitution.
<
p>If we make it a condition of prosecuting extortion that the sleazy journalists get to publish whatever the juicy bit of news that was used for blackmail, then we have chosen to make blackmail significantly more attractive as a career option, haven’t we?
<
p>There wasn’t a gag order just to protect an evil rich person, there was a gag order because she was BLACKMAILING the guy.
I saw the distinction having to do with malice.
<
p>How about another hypothetical situation. A man is arrested for frequenting a prostitute 30 years ago. He pays his fine, does his time, whatever.
<
p>30 years later, this man takes on the role of a public figure in a community. Maybe he is a teacher, maybe he’s a city councilor, maybe he’s a business owner, maybe he’s a neighborhood activist.
<
p>Someone doesn’t like him for whatever reason — his politics, his position on an issue, even his looks. They manage to dig up this piece of information.
<
p>They then mail a flyer to a group of people to which this man’s reputation is important, detailing the facts. Or they poster the neighborhood with it. No lies, all facts. They essentially ruin his current reputation.
<
p>Why? Solely because they had malice against this person, they wanted to hurt him, to hurt him hard.
<
p>I could see that not necessarily being a protected form of speech.
You’ve answered your own question. If the man is a “public figure,” truth is an absolute defense. Though the mere fact that he’s a “teacher” or “business owner” probably would not make him a “public figure” for libel law purposes.
A public figure must prove that statement was was damaging, untrue, and made with malice. Previously, if either the statement was true or it was not made with malice, there was no libel. They have a higher standard of proof to show they were libeled.
<
p>A non-public figure doesn’t need to show malice — they just have to show damage and untruth. It is a lower bar. That would mean that a teacher or business owner could show libel simply if a damaging, untrue statement was published.
<
p>Correct me if I’m wrong, but I thought the court just ruled that if true statements were made with malice, it could be libel. The change would be that malice is the new standard, regardless of the veracity of the statement.
<
p>This ruling would seem to imply that a teacher or business owner might also be able to show libel by proving that a statement was made with malice, even though it was true.
<
p>I don’t know how being a public figure would work here — though I think that “public figure” has been narrowly applied in the past.
<
p>Again, I can see this being in the “not constitutionally protected speech” category, like screaming fire in a crowded theater.
Unfortunately, part of the confusion here is that the word “malice” has been redefined in some counterintuitive ways. In “public figure” libel cases, “actual malice” means “knowledge of, or reckless disregard for, the falsity of the statement.” You don’t actually have to show “ill will” — the more traditional meaning of the word “malice,” and the one that the First Circuit just reintroduced into libel law last week.
<
p>I haven’t got time to tease all of this out right now, but the key point is that in “public figure” cases, the “ill will” of the person publishing the alleged libel is not relevant.
So malice, in libel context, means “knowledge that the statement was false”?
<
p>I still can see how a truthful statement could be used in such a way to destroy someone. I think the passage of time might be an important factor, I think the relevance of the statement is also important. It might be important to know that a teacher was convicted of pedophilia 25 years ago, but it might not be important to know that he was convicted of statutory rape when he was 21 — yet the latter could certainly destroy his career if someone chose to make that public at every possible opportunity, such as sending letters to parents in every district the person lands a job.
What about this: a lobbyist who sues for libel after a national newspaper publishes an article that could be read to imply that she had a romantic relationship with a presidential candidate while he was chairman of a Congressional committee before which she had business?
<
p>The New York Times and Vicki Iseman settled Ms. Iseman’s libel lawsuit today, with no money changing hands. Ms. Iseman’s lawyers have issued a statement raising concerns similar to the concerns I raised in the comment to which David linked in his post:
<
p>
<
p>Of course, Ms. Isemen’s case is quite different from the Robinson case (or the Noonan case, for that matter, because Ms. Isemen denied having a romantic relationship with Senator McCain. And maybe Ms. Isemen would not have been able to show that she was a private rather than a public figure. As I read her lawyers’ statement, they realized that they were unlikely to win because they were unlikely to be able to show that the case should fall outside of the public figure/public concern category. If she were a private figure, though, her lawyers’ words would carry a good deal of weight with me.
<
p>TedF
an extramarital affair of a candidate for president is surely a “matter of public concern” for libel law purposes. So truth would have been an absolute defense in that case.
–that’s why she dropped the case. It seems clear she would lose, as I say in the comment.
<
p>It’s been a pretty busy week on the libel front, I’d say!
<
p>TedF
“Truth is a defense” is not a full statement of the law in cases involving public figures. Under New York Times v. Sullivan, the statement doesn’t need to be true for the defendant to win. The plaintiff must prove that an untrue, defamatory statement was published with “actual malice,” i.e., the defendant knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of this high bar, public figures rarely win these cases, and journalists are pretty much unaccountable.
See above. I was just responding to Ted’s comment, particularly the part that hypothesizes that Ms. Isemen might not have been a “public figure” for libel purposes.
Maybe that’s why he is reaching out. How stimulating.
whose wife wouldn’t miss $240,000 vanishing from the family checking account.
Don’t assume that the matter of Noonan and Staples is purely one of private concern, David. That’s what a three-judge panel of the appeals court says, but it isn’t necessary so.
<
p>As First Amendment lawyer Robert Bertsche said in an e-mail to Media Nation:
<
p>”[T]he court offers no guidance about how to distinguish what is of ‘public concern’ from what is of ‘private concern.’ (You can be sure that among the 1,500 employees of Staples who received the company’s statement about Noonan’s firing, this was a matter of quite public concern.)”
If this is a matter of public concern, so is anything that any newspaper chooses to print because the, which means that nothing is private at all.
First, although it’s been clear for a long time, both in America (but maybe not Massachusetts?) and in England, that truth is a defense to a civil claim of libel or slander. But I think it’s significant that truth, at least traditionally, was thought to be an affirmative defense that the defendant had the burden to plead prove, not an element of the tort itself. So at least traditionally, there was no necessary link between liability and truth or falsity. But there are now both constitutional and common law grounds for the position that the plaintiff must prove not only falsity, but also some degree of fault on the part of the defendant. The point I want to emphasize is that these are relatively recent developments, and that historically, falsity was not essential element of libel or slander.
<
p>Second, my reference in the earlier post to moral or even religious considerations is maybe not as irrelevant to the legal questions as it might seem. Slander and libel were originally not remedied by the common law at all, but were matters for the ecclesiastical courts. Only after the Reformation, when the ecclesiastical courts were abolished and their jurisdiction taken over by the common law courts, did a common law of defamation develop. The point is that defamation has always been motivated by traditionally moralistic considerations, at least until the law of defamation became constitutionalized.
<
p>Lastly, I thought folks might find this blurb from the Restatement (Second) of Torts interesting in light of the Noonan case:
<
p>
<
p>TedF
In British law, truth is not just a defense, it is the only defense, and the burden of proof is entirely on the defense.
They are completely, publicly humiliated– names, ages, addresses, etc.
This businessman was lucky to be the “victim” of extortion.
The FBI was once again involved in this prostitution sting, which apparently “rescued” precisely zero underage prostitutes, and netted perhaps one male pimp or john (his involvement in the sex stuff is unclear). Is this sort of thing a new priority for the Feds under Obama? Why is it even in their jurisdiction?