Massachusetts High Court Applies Fair Report Privilege to Anonymous Account of Closed Meeting

As both a journalist and a techie, I'm pretty keen on the free flow of information, and thus pretty keen in turn on the importance of protecting journalists, both professional and citizen, who are in the business of facilitating that flow. So it was reassuring to see that the Massachusetts Supreme Judicial Court ruled on the side of the angels this week in the case of Howell v. Enterprise, granting protection from libel claims to reporters who fairly and accurately report official government proceedings.

The back-story: apparently, one James Howell, a former superintendent of the Abington sewer department, was fired from his job in 2005 for storing "inappropriate images" on a town computer, showing those images to a subordinate, and using a town computer for private business.  The Enterprise, a Brockton-based newspaper, reported several times on Mr. Howell's termination, including quotes from an anonymous commissioner describing a closed session of the sewer commission's deliberations on Howell.

In response to the news reports, Howell sued The Enterprise and the reporters who wrote the articles in Massachusetts state court for defamation, intentional infliction of emotional distress, and violation of his privacy.  The Enterprise moved for summary judgment, arguing that Howell's termination was a matter of public concern, that Howell could not prove that the articles were materially false, and that overall the articles were fair and accurate reports of government proceedings (even if they did contain some errors), and thus were protected under the fair report privilege.  The Superior Court judge disagreed and denied the motion, ruling that a reasonable jury could find that Howell's firing was not of public interest and that the reports were not fair and accurate. The Appeals Court upheld this ruling, while reversing other aspects of the lower court's opinion.

On further appeal, the SJC reversed and ordered that summary judgment be entered for Enterprise on the defamation claim.  The high court wrote that the fair report privilege is meant to "dispos[e] of cases at an early state of litigation" and should be "construed liberally."  It added that the privilege hinged on two factors: whether the topics at issue in the articles were official government actions, and whether the reports were fair and accurate, i.e. they didn't contain either of "two sorts of reporting errors: mistakes in reporting what actually happened (accurate), and liberties taken in reporting the character of what actually happened (fair)."

The SJC found that that the sewer commission's deliberations over Howell's termination were indeed official government actions. That the deliberations were closed to the public (in executive session) and only reported via an anonymous source did not, in the court's view, make them any less "governmental" or "formal."

The SJC also examined each of The Enterprise articles at issue and found them fair and accurate accounts of the underlying proceedings, but for one misstatement about a dropped conflict-of-interest charge against Howell.  The SJC added that, even though that one misstatement fell outside the privilege, Howell still failed to provide evidence that it was made with malicious intent.  Thus, Howell's defamation claim failed.

I'm glad the SJC ruled the way it did, because this case seems like a complete no-brainer.  (Certainly, The Enterprise itself is pleased; see its editorial on the subject here.)  How can the public be informed about its government's activities if the press has to worry about being sued for reporting on official government activities that touch on inflammatory topics?  And it's laughable to describe these Abington sewer commission goings-on as anything other than official—sure, the commissioner who offered up some of the juicier details may not have wanted his name used, but he's still a commissioner commenting on the commission's formal inquiries into Howell's performance.

I disagree with Justice Spina's dissent, which seems to misunderstand the policies underlying the fair report privilege.  Justice Spina argues that the two policies for the privilege—the agency rationale and the public supervision rationale—are not furthered in the case of the Enterprise's report on the closed executive session about Howell's termination.  But I think Justice Spina misses the point on both of these policies. 

First, Justice Spina indicates that the agency rationale, which says that the press is protected when reporting on official meetings that the public could witness for itself, is not furthered under the circumstances because the particular session reported upon was closed.  But, having a commissioner give what the SJC calls "a near perfect account of the testimony" at the closed session is arguably a de facto public presence.  Yes, it may have been a closed session, but if members of the commission are willing to recount the events that occurred there in toto, it doesn't seem all that farfetched to say that the public really did have access. 

I suppose this really depends on the history of such sessions—if the Abington sewer commission's executive sessions had typically been highly classified and this was the first breach, then yeah, he might have a point.  But if the sewer commission was happy to chat up anyone who actually wanted to hear about the maintenance of Abington's sewers (and I suspect this is probably the case), it's hard to see how the public didn't already have a de facto presence in the meetings, and thus the agency rationale would apply.

Second, I think Justice Spina gets wrong the public supervision rationale, which sees the fair report privilege as allowing the media to serve as a check on government power by giving the public an opportunity to inform itself.  Justice Spina seems to think that The Enterprise should show a good reason for concern that the government is doing something wrong before being allowed to report on closed sessions.  But, in my opinion, he misunderstands what the media watchdog role is about. 

Despite what the popular wisdom says, the media itself is not a check on the government.  Rather, the media is simply an information conduit to the public–it is the public that is the real check.  When the government does something scandalous, it is not the media that will force them to mend their ways, but rather the public that will do so.  If the press is required to justify every report they make about closed government sessions, the public's ability to hold government accountable is undermined, as they won't get all the information they need from the press to make an informed decision about the government's actions.  Justice Spina's insistence that the press must have a good reason before reporting on closed sessions puts the cart before the horse.  After all, the press just reports—the public decides.

I must admit: I'm making a bit of a mountain out of a molehill.  After all, Justice Spina was the sole dissenter, so there's not much risk that the judicial winds will shift any time soon.  But it's still worth keeping an eye on what the judges think and why it might be of concern.  After all, it's up to the public to keep an eye on the government, and that includes the judiciary.

(Arthur Bright is a third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at The Christian Science Monitor.)


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