Yesterday, a Massachusetts court upheld a $2-million defamation award against the Boston Herald and some of its reporters, including David Wedge. Because we don't know anything about anything, we called in David Lat, the fine (yet deliciously shallow!) legal mind behind Above the Law, to tell us what this means for newspapers and bloggers who don't like getting sued—and what it means for those who do so enjoy suing.
AboveTheLaw So I thought I'd check in re: the Murphy case—did you want to chat about it?
Gawklins Well, I think it might be most helpful! Because I am—what is the opposite of a legal scholar? A legal idiot? So will you talk to me as if I were an idiot?
AboveTheLaw Sure, I can try.
Gawklins Okay, so, for starters, it looks to me as if this dude got TOTALLY FACED at his appeal. Like they basically said he recanted his original testimony.
AboveTheLaw Yes, that's right. A number of inconsistencies between his trial testimony and his earlier deposition testimony. Not good...
Gawklins Query: What law-talking person would let that happen to a client???
AboveTheLaw Good question! Such things should get ironed out beforehand in witness prep, ideally.
Gawklins That seems ideal! So your advice to these sort of people is work it out *before* court!
AboveTheLaw Totally. That's what witness coaching, um, er, "witness prep" is for.
Gawklins I've seen that on the Law & Order.
AboveTheLaw Exactly — just like on TV.
Gawklins So, this is a case that had amicus brief-whatever-thingies filed by everyone and their mother. Dow Jones, AP, the whole lot of 'em.
AboveTheLaw Yes — it seems like a lot of other news organizations were following it. It involved a high-profile figure and a pretty good-sized verdict (north of $2 million).
Gawklins But now, after reading the decision this week, this case doesn't seem like something I'd want to be all "I am friend" to!
AboveTheLaw It does seem like the reporter and the Herald were, um, a bit sloppy at times...
Gawklins But in general, this case aside, it seems that it's hard to get shafted on a defamation claim in this day and age, if the Media Law Center and the like are to be believed.
AboveTheLaw Shafted from whose perspective?
Gawklins Ah, an excellent point. I speak as someone who doesn't like the idea of getting sued for defamation, and only rarely think of myself as someone who would like to sue for being defamed.
AboveTheLaw Well, me too, as a blogger now. Generally these cases are very hard to win for the plaintiff b/c the standard — "actual malice" — is so tough to satisfy.
Gawklins If this was like, Fox News, I'd start yelling at you like, "IS THIS A SLIPPERY SLOPE, DAVID?"
AboveTheLaw And I suppose it is.... Which is why the news organizations were coming to the Herald defense... Even though they probably turn up their noses at the Herald and wouldn't be caught dead reading it on the T.
AboveTheLaw Because no media outlet likes to see a $2 million libel verdict get upheld.
Gawklins Yeah, that's a lot of newspapers to sell. Though I suppose they have libel insurance?
AboveTheLaw I would think this would be covered (but don't know for sure).
Gawklins Oh yeah, so, you read law cases a lot. Is this crazy harsh?
"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."
Gawklins TATTERS! MEOUCH!
AboveTheLaw OUCH. The technical term for that is a whopping bench-slap.
Gawklins Even I thought so!
AboveTheLaw Which is why news organizations maybe don't have to be TOO worried, since a lot of this is fact-specific to Wedge (the reporter) and the Herald. But, on the other hand, bloggers — who don't exactly have formal "fact-checking" processes in place — should take note of that.
Gawklins Ooh, tell me more!
AboveTheLaw Well, who at Gawker is responsible for fact-checking all of your posts? I mean, I WISH I had a little fact-checking minion...
Gawklins Let me answer your question with a question! Who fact-checks YOU?
AboveTheLaw EXACTLY. So, if someone sues a blogger, they can cite the language from the Murphy opinion. Because that's the argument that the court shoots down in Murphy.
Gawklins Do go on!
AboveTheLaw And it's no defense to say, "Well, this is blogospheric practice not to have fact-checking..."
Gawklins The New York Times doesn't have fact-checkers. Though they have a copy-desk. Bad analogy.
AboveTheLaw That's true. Their formal editing process is a check. Whereas with most bloggers, there's not much separating you and the world except for that little "save" button in Movable Type...
Gawklins In most cases, nothing at all! Should Jeff Jarvis and the citizen-journalist committee be out in the streets marching?
AboveTheLaw To the barricades!
AboveTheLaw Well, my general approach is to only write about silly or frivolous stuff, stuff that would be too embarrassing to sue over...
Gawklins Like haircuts.
AboveTheLaw Exactly. Or bad outfits.
Gawklins Not about judicial infidelities.
AboveTheLaw Where the embarrassment from the suit would outweigh anything to be gained. I think a lot of bloggers (and journalists) hear stuff that they sit on for fear of that kind of thing.
Gawklins Is it true, or just true in my mind, that invasive discovery periods are deterrents to potential plaintiffs?
AboveTheLaw You're right — definitely. Because the other side can dig into all kinds of stuff in your life.
Gawklins Like, if I wanted to sue you for being mean to my hair, you'd get to read all my email and MySpace private accounts and stuff?
AboveTheLaw And since truth is an absolute defense to libel, if you're suing over say infidelity claims, they can poke around into your bizness... Maybe we'd take a deposition of your stylist... Issue a document request to the local Duane Reade to find out what product you've purchased in the past year...
Gawklins That does sound invasive.
AboveTheLaw I mean, and who knows what THAT might turn up...
Gawklins So true. SO TRUE. Question!
"The defendants contend that, under Sullivan and its progeny, the plaintiff may not recover damages for any libelous statements therein without proof of actual malice as to each reporter. We disagree. An original publisher of defamatory material is liable for subsequent republication where "the repetition was authorized or intended by the original defamer, or the repetition was reasonably to be expected."
Gawklins Scary! Does republication include from, like, different publications? Like, if I repeated the NY Post's defamatory claims (if there ever were any, I mean!)?
AboveTheLaw Under this language — check your own jurisdiction, actual mileage may vary, etc. — no. You wouldn't be in trouble for repeating Page Six's claim.
Gawklins Oh thank God. Cuz I do it every day! In that case, would I be an injured party? Could I sue?
AboveTheLaw But like I said, the rule may differ from jurisdiction to jurisdiction. Objects in the rear view mirror, etc. Sue Page Six for fraud...
Gawklins Not impossible, right??
AboveTheLaw In this case, it sounds from the opinion like the Herald was trying to use other reporters and other articles to broadcast Wedge's erroneous "scoop." Hence the republication liability. But query whether republication of Page Six items in Gawker is so "reasonably to be expected" that it would fall under this... since you guys cover them (and make fun of them too) so regularly Also, it's interesting that this case involves a judge as plaintiff. A cynic might say its judges protecting their own.
Gawklins Was there a jurisdiction problem here?? Or whatever you call it?
AboveTheLaw Oh, a recusal issue b/c of a conflict — yes. They had to bring in a judge from another court to hear the case. Because the case was filed in the court where Judge Murphy sits. That was at the trial level. Because otherwise the case would be heard by one of his colleagues, perhaps a friend (or enemy).
Gawklins Well, of course, this judge was also pals with the newspaper's owner!
AboveTheLaw Small world!
Gawklins Ha! So I guess it doesn't do anyone any good to be friends with newspaper owners.
AboveTheLaw I know, right! What's friendship with a media mogul worth if it can't get you some favorable coverage?
Gawklins Guess I'll cross Jared Kushner off my party list.
AboveTheLaw He seems like a nice kid though
Gawklins Oh he's a delight, I'm sure.