Murphy v. Boston Herald, Inc.

• Decision Date: 07 May 2007
• Docket Number: No. SJC-09782.,SJC-09782.
• Citation: 449 Mass. 42,865 N.E.2d 746
• Parties: Ernest B. MURPHY v. BOSTON HERALD, INC., & another.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

865 N.E.2d 746

449 Mass. 42

Ernest B. MURPHY v. BOSTON HERALD, INC., & another.¹

No. SJC-09782.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued February 8, 2007.

Decided May 7, 2007.

Bruce W. Sanford, of the District of Columbia (Bruce D. Brown, of the District of Columbia, & Jeffrey P. Hermes, Boston, with him) for the defendants.

Michael Avery (Howard M. Cooper, Boston, with him) for the plaintiff.

Jonathan M. Albano & Carol E. Head, Boston, for The Associated Press & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & COWIN, JJ.

GREANEY, J.

We have before us on direct appellate review the special verdict of a jury in the Superior Court in a defamation case brought by the plaintiff, a judge of the Superior Court, against the defendants, the Boston Herald, Inc., and its reporter, David Wedge. The jury found that the defendants published a series of false statements about the plaintiff that held him up to public disgrace and contempt, and, further, that they published the statements either with actual knowledge that the statements were false, or with a high degree of awareness of their probable falsity. 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.

We summarize the undisputed facts necessary to set the general context of this appeal, reserving certain details essential to the disposition for discussion of the relevant issues. On February 13, 2002, the Herald published the first in a series of articles attacking the plaintiff's perceived "softness on crime." The front-page article, authored by the defendant David Wedge and another reporter, Jules Crittenden, ran under the headline "Murphy's law." The article was subtitled "Lenient judge frees dangerous criminals," and included a photograph of the plaintiff with a caption describing him as "Under fire." The article began as follows:

"A wrist-slapping New Bedford Superior Court judge under fire for letting four accused rapists return to the streets in the past week has a pro-defendant stance and has heartlessly demeaned victims, according to records and sources.

"According to several courthouse sources, Judge Ernest B. Murphy said of a teenage rape victim, `She can't go through life as a victim. She's [fourteen]. She got raped. Tell her to get over it.'

"The exchange occurred in Murphy's New Bedford Superior Court chambers last week when prosecutors confronted Murphy over his lenient sentencing practices. He also belittled a [seventy-nine] year old robbery victim when prosecutors pushed for a tough jail term for her attackers, reportedly saying, `I don't care if she's [one hundred and nine],' sources said."

The article characterized the plaintiff as a "career civil attorney now sitting as a judge on criminal cases, [who] has come under heavy scrutiny from prosecutors and police for doling out probation to violent offenders and allowing accused rapists to walk out of court on bail." Paul F. Walsh, Jr., district attorney for the Bristol district, was quoted as saying, "He sees the courts as a social service agency to help defendants. All his compassion goes to the defendants and not the victims and that's not justice." The article listed specific instances where the plaintiff allegedly favored violent criminals over victims, to the outrage of victims' families and law enforcement. Walsh was quoted as saying, "I rue the day when one of these people comes back and hurts someone again. It's going to happen."

The next day the Herald ran a second article by Wedge about the plaintiff, this one entitled, "Rape victim's mom pleads ... Dump the judge." The article began, "A criminal-coddling judge who has let four accused rapists walk out of court in the past week should be removed by acting Gov. Jane Swift, the enraged mother of one of the rape victims said yesterday." The article described how the young victim "took the stand and tearfully told the judge how the rape has affected her," and reported that the plaintiff sentenced the defendant to probation for eight years, "[d]espite the teen's heart-wrenching testimony." The article, which included a photograph of the "enraged mother," continued, "According to courthouse sources, Murphy made a heartless comment about [her] daughter to a prosecutor behind closed doors just days after the lenient sentence. `She can't go through life as a victim. She's [fourteen]. She got raped. Tell her to get over it,' sources quoted the judge as saying."

The articles of February 13 and 14 were followed by other Herald articles sharply critical of the plaintiff, which contained sweeping allegations of his incompetence to sit on criminal cases, his bias toward defendants, and his open hostility to victims and prosecutors. The majority of articles repeated the statement first attributed to the plaintiff by Wedge on February 13, "She's [fourteen]. She got raped. Tell her to get over it," and those words drew national attention. On March 7, with the approval and encouragement of his editors, Wedge appeared as a guest on the televised talk show, "The O'Reilly Factor." When the show's host asked Wedge, "Are you absolutely one hundred per cent sure that Judge Murphy said that the rape victim should get over it?," Wedge responded, "Yes, he 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 Herald's publications devastated the plaintiff. Once a proud, gregarious man, he became diminished, scared, and sad. The plaintiff's physician described the plaintiff as psychologically "devastated and broken." Diagnosed with severe post-traumatic stress syndrome, the plaintiff suffered from duodenal ulcer disease and irritable bowel syndrome and was required to undergo multiple invasive endoscopic procedures. There was evidence that his reputation in the legal community and collegial relationships with colleagues deteriorated to the point where he felt "radioactive."

The plaintiff filed a complaint in the Superior Court in June, 2002, alleging that the stories were false, that they had damaged his reputation and caused other injuries, and that they had been published with actual malice.² The case was tried over a twenty-day period in January and February, 2005. The jury were given a twenty-two page special jury questionnaire, which properly defined the requirements of defamation involving a public official, and asked whether the plaintiff had proved all of the required elements of his claim on each of sixty-one statements appearing in seventeen exhibits.³ The questionnaire also asked the jury to determine the amount of damages (if any) to which the plaintiff was entitled, on each of the libelous statements, in accordance with the judge's instructions on damages. The jury found the defendants liable on twenty-two counts of defamation and awarded the plaintiff compensatory damages in the sum of $2.09 million.⁴

The defendants filed a motion for judgment notwithstanding the verdict, pursuant to Mass. R. Civ. P. 50(b), as amended, 428 Mass. 1402 (1998), or, in the alternative, for a new trial, pursuant to Mass. R. Civ. P. 59(a), 365 Mass. 827 (1974), and for remittitur. The judge⁵ upheld the bulk of the verdict, but concluded that three of the statements for which the jury found the defendants liable qualified as protected statements. The judge denied the defendants' motion in part, and allowed it in part, which had the effect of reducing the damages award to $2.01 million.

The defendants challenge their liability with respect to the remaining nineteen statements, which may be grouped into five categories as follows.

(a) The plaintiff stated "She can't go through life as a victim. She's [fourteen]. She got raped. Tell her to get over it."⁶

(b) "The exchange occurred in [the plaintiff's] New Bedford Superior Court chambers last week when prosecutors confronted [him] over his lenient sentencing practices."

(c) The plaintiff "heartlessly demeaned victims."⁷

(d) "The victim [in the rape case] took the stand and tearfully told the judge how the rape has affected her."

(e) "[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 defendants contend on appeal that the jury's verdict and award of damages are "incongruent with controlling authority under the First Amendment." Their arguments focus primarily on the sufficiency of evidence to support the jury's determinations that the above statements were false and meet the constitutional standard for a determination of "actual malice." They also challenge the judge's instructions on the doctrine of "republication" and assert errors in miscellaneous evidentiary rulings made by the judge with respect to damages. Finally, the defendants argue that two letters sent by the plaintiff to the Herald after the verdict, one on court stationery, were so inappropriate as to require that the judgment be vacated and the plaintiff's complaint be dismissed. We address each claim in turn.

1. a. The First Amendment to the United States Constitution sets clear limits on the application of defamation law with respect to any factual statement published in the news media about a public official or public figure,⁸ even when that statement is shown to be false and defamatory. In New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court held that, in such cases, the First Amendment requires that the plaintiff must prove, by clear and convincing evidence, that the defendant published the false and defamatory material with "`actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." See King v. Globe...