E-Mail This Article to a Friend Absence of malice (continued)

But despite these flaws, Wedge and the Herald’s lawyer, Robert Dushman, have continued to insist that the paper’s reporting was substantially true; and perhaps it was, and perhaps the jury will agree. In a 1986 Supreme Court decision, Philadelphia Newspapers v. Hepps, the court ruled that the burden in a libel case is on the plaintiff — that is, Murphy — to prove that the reporting was false. That’s a heavy burden — almost as heavy as having to show that Wedge acted with "reckless disregard" for the truth.

Not that any of this means the Herald will win. Juries can be unpredictable, and with the media’s public standing in low repute, there are few defendants less sympathetic than newspaper reporters. But if the jurors follow the instructions that the presiding judge, Boston Municipal Court chief justice Charles Johnson, is likely to give them, then the paper has a decent chance of winning.

"I think the plaintiff [Judge Murphy] is making a strong plea for the hearts of the jurors. But if they can follow the clear dictates of the law, from everything I’ve heard, there’s no way the Herald should lose the case," says Robert Bertsche, a prominent First Amendment lawyer who has represented the Boston Globe, but not the Herald. "The question and fear we always have as media lawyers is whether we can succeed at getting the jury to understand a concept as esoteric as ‘actual malice,’ which a public figure has to show."

IT’S UNUSUAL enough for a libel case to go to trial. What makes the Herald case doubly unusual is that several miles away, in Middlesex Superior Court, in Cambridge, the Boston Globe was defending itself in a very different sort of case. In the Globe suit, a Stoneham lawyer named Stephen Columbus claimed that the Globe’s Spotlight Team had libeled him in a 1999 story about houses built by vocational high schools. The Globe reported that Columbus had been able to take advantage of the program because of actions by his father, then–Stoneham building inspector Robert Columbus, a situation that the Globe described as "favoritism."

Because Stephen Columbus was ruled to be a private figure, he merely had to show that the Globe had acted negligently. Nevertheless, the jury found in favor of the Globe last Thursday, with the forewoman, according to news accounts, saying that jurors believed Spotlight Team editor Walter Robinson’s article and court testimony were truthful, despite two minor errors that were the subject of a Globe correction. "I was delighted to read that not only did the jury side with us, but that the foreperson of the jury very specifically said that they believed the Globe got the story right. I was really troubled, given what I do for a living. I was troubled by the potential chilling effect that a ruling against the Globe might have had," Robinson told the Phoenix. He added: "I lost 10 pounds. I would say the South Beach diet would be a preferable way to do it."

According to Sandra Baron, executive director of the Media Law Resource Center, in New York, of the several hundred libel and related cases filed against media organizations every year, only a handful ever goes to trial. Just 13 went to trial in 2004, she says. (One of those cases resulted in a $950,000 judgment against the Boston Phoenix on December 17. That verdict is being appealed.) Many suits, she adds, are thrown out by judges, whom she describes as being increasingly aggressive about asserting the First Amendment rights of media defendants. "I think the media does extremely well in getting cases dismissed before trial," Baron says.

Even among the cases that go to trial, few garner the attention that the matter of The Honorable Ernest B. Murphy v. Boston Herald, Inc., David Wedge, Jules Crittenden, Margery Eagan, and David Weber has received. (Crittenden, Eagan, and Weber have been named only because they repeated some of Wedge’s allegedly libelous reporting — or, in Crittenden’s case, shared a byline with Wedge.) There are several reasons for this. For one thing, Wedge went on Fox News’s The O’Reilly Factor several weeks after his first story appeared and expanded on his original allegations. When asked by host Bill O’Reilly if he was "100 percent sure" about Judge Murphy’s "get over it" quote, Wedge replied, "He made this comment to three lawyers. He knows he said it, and everybody else that knows this judge knows that he said it." This remark by Wedge was problematic: if he was referring to the three prosecutors to whom he spoke, only one of them heard it directly. And if he was referring to prosecutor David Crowley and the two defense lawyers, only Crowley has testified that he heard Murphy speak those words.