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Massachusetts libel case upholds Fair Report privilege

By J. DeVoy

The trial court’s opinion in Howell v. Enterprise was affirmed by Massachusetts’ Supreme Judicial Court earlier this month, reaffirming the special protection journalists have when reporting on difficult cases.  The Media Law blog offered its analysis of the case and its significance when the decision was released:

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.

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.

The Supreme Judicial Court tacitly supports a lenient standard in determining what constitutes an official action, but still applies a two-prong test to the speech. Namely, mistakes made in reports are examined for their accuracy — the factual relation of what happened — and their fairness, the event’s reported character.

This decision seems to back away from Murphy v. Boston Herald, previously discussed by Marc.  In that case, a judge’s alleged statements about a rape victim in criminal litigation were at issue, though, whereas here there’s merely the claim that a state employee viewed pornography on government computers.  While no less damaging for the individual here, the public effects of extreme statements about a judge have greater consequence than those about a generic state employee.  Murphy may even be a special case because of the importance of the public’s trust in the judiciary and the recklessness displayed by the journalist in gathering his facts — or, more accurately, failing to do so.

Still, the Fair Report privilege lives on, and may have received a new vigor from Howell.  Though the doctrine sounds like it was ripped off from Fox News, journalists everywhere are fortunate to have it.

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