Boston Lawyer Wins Libel Case for Former V.I. Judge

A former Superior Court judge in the U.S. Virgin Islands won a $240,000 libel verdict this week against the Virgin Islands Daily News. The former judge, Leon Kendall, was represented in the lawsuit by Howard Cooper, the Boston lawyer who in 2005 won a $2.1 million verdict against The Boston Herald for former Massachusetts Superior Court Judge Ernest Murphy.

According to a report today in The Daily News, the jury on St. Thomas returned the verdict Tuesday. Jurors found that the newspaper and one of its reporters damaged Kendall's reputation through a series of 16 news stories and an editorial published from 2005 to 2009.

The stories related to Kendall's work as a judge and bail rulings he made. The editorial called for his resignation. Kendall retired from the bench last year.

The Daily News says it will appeal the verdict.

Legislature to Hold Hearing on Reporters' Shield Bill

Massachusetts remains one of the minority of states without a shield law to protect journalists' confidential sources. That could change if a bill to be heard by the legislature next week becomes law. The bill, House Bill 1650, would prohibit courts and government agencies from forcing members of the news media to reveal their news sources. The bill would also protect reporters against the compelled disclosure of notes, outtakes, photographs and recordings.

The bill is under review by the legislature's Joint Committee on the Judiciary, which has scheduled it for a public hearing on Tuesday, Feb. 23, at 1 p.m. in State House Room B1. If you have any interest in supporting this bill, you should show up and make your position known to the members of the committee.

Notably, the bill as drafted would cover some bloggers as well as traditional print and broadcast journalists. Coverage is not based on a journalist's employment, but on the journalist's engagement in "bona fide news gathering" for any form of news media. "News media" is defined as "any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution."

Thus, a blogger who is engaged in news gathering and who regularly gathers and disseminates news would be covered by the bill if it became law.

This bill is derived from one that was filed in the previous session of the legislature and that I helped draft as part of an ad hoc coalition of journalists, news organizations and media lawyers. That bill died without ever being reported out of the Judiciary Committee.

SJC Affirms Public's Right to View Jury Selection

The Massachusetts Supreme Judicial Court issued an important decision today underscoring the right of the public and the press to sit in on jury selection in criminal cases. The opinion, Commonwealth v. Cohen, concludes that even a partial closure of the courtroom -- with some family members and non-parties allowed in -- can violate both the First Amendment rights of the public and press and the Sixth Amendment rights of the defendant.

The public trial right applies to jury selection proceedings ... which are "a crucial part of any criminal case." ... At that stage, "the primacy of the accused's right [to a public trial] is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness." ... The "sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known." ... Throughout a trial, an open court room "enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system." ... Thus, courts recognize a "strong presumption in favor of a public trial," ... "overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."

The case arose out of jury empanelment in the criminal prosecution of David M. Cohen, an attorney and former Stoughton, Mass., police sergeant. On the fourth day of empanelment, Cohen's defense counsel noticed a sign on the courtroom door that said, "Jury empanelment. Do not enter." After learning that the sign had been on the door throughout the empanelment process, the lawyer moved for a mistrial. The judge denied the motion. The lawyer repeated his motion for a mistrial later the same day, after learning that members of the public were removed from the courtroom. Again, the judge denied the motion.

"The defendant has thus established that the jury selection procedures used in this case violated his Sixth Amendment right to a public trial; he has also shown that he did not waive this right," the SJC concluded. Finding that there would be no other way to remedy the violation, the court ordered that Cohen be granted a new trial.

Survey of Media Access to Mass. Courts

The Judiciary/Media Committee of the Supreme Judicial Court is considering revisions to the Guidelines on the Public's Right of Access to Judicial Proceedings and Records. In order to evaluate whether the guidelines should be amended or expanded and what other initiatives the committee might wish to pursue, the committee is asking members of the news media to complete a survey on media access to the courts.

As a member of the Judiciary/Media Committee and in my capacity as executive director of the Massachusetts Newspaper Publishers Association, I am helping to disseminate the survey and compile its results. If you are a journalist who covers the Massachusetts courts, please take a moment to complete the survey and return it to me.

You can download the survey here, in Microsoft Word format: Survey of Media Access to Courts.

Scott Brown's Short-lived Bill for a Reporters' Shield

Although various groups have lobbied for a reporters' shield law in Massachusetts, the state remains without one. But in 2005, just a year after he was elected to the state Senate, U.S. Sen.-elect Scott Brown made an aborted attempt to change that.

As the Senate took up debate on the state budget on May 23, 2005, Brown  and former Sen. Brian P. Lees, then the Senate's Republican leader, proposed a reporters' shield law as a budget amendment. But by the end of the first day of budget debate, they had withdrawn the proposed law. No explanation was ever given for why they filed the bill so suddenly or why they withdrew it just as quickly.

Titled the "Free Flow of Information Act," the bill would have prevented the state from compelling a reporter to testify except in narrow circumstances. It would have absolutely prohibited the state from forcing reporters to disclose confidential sources.

Brown never refiled the bill, but he did sign on as a sponsor of a shield bill drafted by a coalition of media representatives and filed in 2007. That bill died in committee. Two Senate shield bills have been filed in the current session of the legislature, SB 1673 and SB 1574. Brown did not sign on as a cosponsor of either.

When last I counted, Massachusetts was one of 16 states without a shield law.

Implications of SJC's Open Meeting Ruling

Reporter Kendall Hatch has a piece in The Metrowest Daily News considering the long-term implications of the Supreme Judicial Court's recent ruling in the open meeting law case, District Attorney for the Northern District v. School Committee of Wayland, which I previously blogged about here. I am among the sources Hatch interviewed for his article.

Mass. High Court Affirms Fair Report Privilege

The Supreme Judicial Court today issued a major ruling for members of the news media, affirming a broad immunity from libel for journalists who report fairly and accurately on official government actions and statements. The opinion in Howell v. Enterprise dismisses a defamation suit brought by a former employee of the town of Abington against The Enterprise newspaper in Brockton after it reported that he had used town computers to access pornography.

In affirming the applicability of the fair report privilege, the opinion by Justice Robert J. Cordy said, "[I]t is important that the privilege be construed liberally and with an eye toward disposing of cases at an early stage of litigation," and that courts should take "an expansive but not unlimited view" of what qualifies as an official action covered by the privilege. Applying these principles, the SJC concluded that the actions at issue in this case qualified as official.

"[W]e conclude that the articles appearing in the Enterprise reported on official actions, proceedings, and statements. The May 11 article reported that Howell had been placed on administrative leave. This was official action. When the Enterprise published articles on the sewer commission hearing (July 20 article), Howell's termination after a sewer commission vote (August 3 article), and the board hearing (August 24 article, August 25 article, September 17 article, September 19 article), it reported on official actions and proceedings. The statements and actions reported plainly implicated official duties and powers, either in the context of the official hearings or in the exercise of official powers as a result of the evidence adduced at those hearings. The Enterprise's reliance on anonymous sources did not destroy the privilege because the sources described official action. Similarly, that some of the actions were not public is not problematic: the actions were 'governmental' and 'formal.'"

Having decided that the news reports covered official matters, the SJC next considered whether the reports were fair and accurate. In making this determination, Justice Cordy wrote, the court must be:

"on alert for two sorts of reporting errors: mistakes in reporting what actually happened (accurate), and liberties taken in reporting the character of what actually happened (fair). We examine both through the lens of the reasonable recipient of the report to gauge the substantiality of the report's accuracy and fairness. This is, for lack of a better formulation, best described as a fairness overlay to the fair and accurate inquiries: is the report sufficiently factually incorrect or sufficiently mischaracterized that the impression on the reader is so unfair to the plaintiff as to warrant placing it outside the privilege? We note this because our task in the present case involves a combination of errors of 'accuracy' and 'fairness.'"

The SJC goes on to conclude that the bulk of the reports met both prongs -- that they were both fair and substantially accurate. One statement in one article was inaccurate, the SJC found, but lacked the requisite element of malice that would be required to prove defamation against Howell as a public figure in his town.

In another notable aspect of today's opinion, the SJC reversed the Appeals Court and said that Howell could not sue for intentional infliction of emotional distress. The Appeals Court had said that he could sue for such damages, even if the news reports were true.

Justice Francis X. Spina dissented to one aspect of today's opinion, saying he would not apply the fair report privilege to a story that provided details of a closed-door town meeting. "The policy behind permitting a governmental body to consider the discipline of a public employee in executive session and to extend the secrecy of those proceedings until the process is concluded, or for other valid reasons, is good government. ... A newspaper that publishes such detail before the governmental body releases its records to the public cannot be said to be acting in its public supervision role."