Commenting beyond your own story

When Massachusetts Superior Court Judge Ernest B. Murphy's libel lawsuit against the Boston Herald and four of its reporters came to trial in January, the case garnered significant national media interest. But what captured the attention of media pundits wasn't the alleged libelous statements -- the Herald claimed Murphy told a rape victim to "get over it" -- or the fact that a rare libel lawsuit by a public official over comments about his job performance actually made it to trial.

What raised eyebrows was that Murphy was partially basing his case on statements Herald reporter David Wedge made during a subsequent appearance on Fox News' "The O'Reilly Factor." Commentators wondered whether the case signaled dire consequences for media cross-promotion and convergence, opening up whole new avenues of liability for journalists who appear in formats unfamiliar to them -- such as print reporters appearing on television, radio or online to talk about their stories.

The source of the original statement, and even its exact wording, remain unclear. One of Wedge's sources, prosecutor David Crowley, testified at trial that he heard Murphy say some version of "get over it," but could not remember the exact quote. Murphy denied making the statement at all.

During his March 7, 2002, appearance on "The O'Reilly Factor," Wedge was asked if the quote was "100 percent accurate." Wedge responded: "Yes he said this. He made this comment to three lawyers. He knows he said it, and everybody else knows that he said it." Because Murphy is a public official, he had the heavy burden of proving by "clear and convincing evidence" that Wedge acted with actual malice -- meaning he knew the statement was false or recklessly disregarded whether it was true or not. Pre-trial speculation hinted that Murphy might try to use the O'Reilly appearance to prove actual malice.

"As a strict technical matter [the post-publication comments] really shouldn't matter because the question really is what was the state of mind of the reporter at the time they wrote the story or aired the story," said Kurt Wimmer, a media lawyer with Covington & Burling in Washington, D.C. "What happens afterwards should really not be the focus."

However, "as a practical matter it does create a different inference for the jury who is now seeing not just the disinterested reporter writing what he thinks was correct, but the reporter as advocate on a television show reinforcing the point and driving it home, " Wimmer said.

In the end, that is not how the O'Reilly appearance figured into the trial, Dushman said. "It was almost like just another publication," he said.

The jury awarded Murphy a whopping $2.1 million in damages for 22 separate statements it found to be libelous, including two from the O'Reilly appearance. The jury had considered a total of 61 statements, five from the O'Reilly show. Murphy was awarded $300,000 for the "get over it" quote from the Feb. 13 article, and varying lesser amounts for the other statements. According to Dushman, the awards for the O'Reilly statements were roughly in line with the other damages awarded.

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