Yesterday Massachusetts' highest court rejected the Boston Herald's motion to reconsider its decision in a defamation case brought by Judge Ernest Murphy. A month ago the Massachusetts Supreme Judicial Court had voted unanimously to affirm a $2.1 million jury verdict against the Boston Herald for its publication of a story in which it quoted Superior Court Judge Ernest Murphy as saying that prosecutors should tell a 14-year-old rape victim "to get on with her life and get over it."
Given that the SJC failed to understand the actual malice standard in its original ruling, it is not surprising that the court refused the motion for reconsideration. Although it seems clear that David Wedge, a Herald reporter, was sloppy in his reporting of Judge Murphy -- for example, he incorrectly reported that a witness had "tearfully" taken the stand when that witness never testified at all -- Judge Murphy's evidence that the Herald had published his "tell her to get over" comment with actual malice was woefully inadequate. Indeed, the fact that at least one prosecutor testified that he told Wedge that the judge had said "tell her to get over it" all but demolishes Judge Murphy's argument that the Herald published the story knowing that it was false, or with reckless indifference to its truth or falsity.
Given that the plaintiff in this case was not merely any old public figure but a judge with lifetime tenure, if anything the SJC should have applied the actual malice standard more vigorously. Although some have suggested that the Justices on the SJC reacted negatively to the Boston Herald's publication because it involved a judge, the Justices' questions at oral argument and Judge Greaney's opinion indicate a deeper problem: the SJC simply did not understand the actual malice standard and the important role it plays in promoting public debate. As the U.S. Supreme Court explained in New York Times v. Sullivan, an "erroneous statement is inevitable in free debate, and . . . must be protected if the freedoms of expression are to have the 'breathing space' that they need to survive."