Actual Malice vs. Negligence: Two Cases Illustrate the Difference

Boston area prosecutors were unhappy with Superior Court Judge Ernest B. Murphy. They considered the judge too lenient on defendants. Boston Herald reporter David Wedge picked up on this dispute and wrote a story saying prosecutors had held a confrontational meeting with Murphy about his lenient sentence of a man convicted of raping a teenage girl. According to Wedge's story, Murphy had said of the teenage rape victim, "She can't go through life as a victim. She's 14. She got raped. Tell her to get over it." Murphy sued for libel and won a damage award of $2.01 million.

As a public official, Murphy had to prove Wedge published the story with actual malice, meaning he either knew his story was false or was aware his story was probably false. The Herald appealed the verdict to the Massachusetts Supreme Judicial Court on the grounds that Murphy lacked sufficient evidence of actual malice. But the Massachusetts high court concluded the jury had abundant evidence from which it could find Wedge had possessed a high degree of awareness of the story's probable falsity.

Among other things, Wedge's initial sources for the story were prosecutors he knew bore grudges against Murphy and, therefore, were likely to provide biased information. He had admitted in pretrial depositions his sources had told him Murphy had said of the teenage rape victim, "She's got to get on with her life and get over it" and had not said, "Tell her to get over it." He had no source at all for calling the conference between the attorneys and Murphy a "confrontation." None of the attorneys he had talked to before his story was published had attended the meeting with Murphy. Wedge did not speak to an attorney who participated in the meeting until after the story ran in the Herald, and the evidence showed that attorney had never said Murphy made the "tell-her-to-get-over-it" statement.

Furthermore, although Wedge had taken notes during all of his interviews for the story, when asked to produce his notes, the reporter said it was his practice to discard notebooks after a few weeks. But the Massachusetts Supreme Judicial Court found that improbable. Murphy's attorney had contacted Wedge and the Herald just two days after the story was published, alleging that the judge had been misquoted. Wedge could not recall when or where he had discarded the notebook. The absence of the notebook, the court said, allowed the jury to conclude the reporter was hiding evidence that his story was false.

All of these factors allowed the Massachusetts high court to find that the trial jury had good reason to conclude Wedge and the Herald had been aware of the probable falsity of the story at the time it was published.

On the other hand, even grossly bad judgment on the part of a journalist is not evidence of actual malice.

A school student in Lewiston, Maine, placed a sack containing ham on a lunch table where Muslim students from Somalia were eating. The Somalis complained because pork products are considered unclean in Muslim culture, and the student who pulled the prank was disciplined. Stories about the incident appeared in the Lewiston Sun Journal and the Boston Globe.

The lunchroom incident also formed the basis for a news parody written by Nicholas Plagman and published on a website called Associated Content. The parody included phony quotations attributed to Leon Levesque, the Lewiston school superintendent. Among the phony quotations were, "These children have got to learn that ham is not a toy and that there are consequences for being nonchalant about where you put your sandwich," and "All our students should feel welcome in our schools, knowing that they are safe from attacks with ham, bacon, porkchops, or any other delicious meat that comes from pigs."

The staff for the Fox News show "Fox and Friends" found Plagman's parody through Google News and thought it was a legitimate news story. Fox hosts Steve Doocy and Brian Kilmeade berated Levesque on one show over the phony quotations. They asked the question: "Ham sandwich: hate crime or just lunch?" Doocy called it the No. 1 story of the day.

Although the Fox staff had found the Lewiston Sun Journal and Boston Globe stories that verified the incident, they had found no other source attributing the outrageous quotations to Levesque. The superintendent sued Doocy and Fox News for libel. Federal District Judge D. Brock Hornby had no trouble finding that the broadcast was false and defamatory. The portrayal of Levesque as overreacting to a student prank was likely to bring public contempt upon him. But Levesque, as a school superintendent, is a public official and must prove actual malice. And here his case ran into trouble.

Hornby concluded Doocy, Kilmeade and the rest of the "Fox and Friends" staff had been negligent, gullible and unprofessional, but they had genuinely believed their story was true. Doocy and other Fox staff said they had mistakenly believed Google News searched only legitimate news sites and the Associated Content parody was fact. Hornby found no evidence that their belief in the truth of their story was anything less than genuine or that they entertained any suspicion that the story was false. Therefore, they had not published with actual malice.

"First Amendment principles developed long before the Internet … provide protection to the gullible news program hosts…," Hornby wrote. "Poetic justice would subject the defendants to the same ridicule that they accorded the plaintiff. But in real life, the aggrieved school superintendent must be satisfied with their later retraction and a professional reputation sullied less than theirs."

Murphy v. Boston Herald, 865 N.E.2d 746 (Mass. 2007).

Levesque v. Doocy, 557 F.Supp.2d 157 (D.Maine 2008).