The other side of the bench

Two recent cases show that concerns about judicial influence can mar the court proceedings when judges sue the media for libel.

From the Summer 2007 issue of The News Media & The Law, page 29.

By Sean Hill

Judges in two recent cases have successfully sued newspapers for libel, reaping multimillion-dollar windfalls. However, one of those newspapers has turned the tables, putting the judge in the defendant’s seat.

The Kane County (Ill.) Chronicle and former columnist Bill Page have filed suit in federal court to fight a $4 million judgment against them in a defamation action brought by Illinois Supreme Court Chief Justice Robert R. Thomas.

The newspaper’s parent company, Shaw Suburban Media Group, and Page sued Thomas and 10 other state judges in June, seeking to have the defamation judgment declared unenforceable.

The Chronicle’s lawsuit was filed the same month that Massachusetts’ highest court refused to revisit its decision to uphold a trial court’s $2.01 million judgment in a libel suit brought by a state court judge against a Boston newspaper.

The two cases have raised questions about whether the media is treated fairly in libel suits involving judges, and whether large judgments might inhibit criticism of judges.

The Media Law Resource Center is aware of 13 cases since 1980 in which the media was sued by a judge. In those cases, plaintiffs prevailed in five cases after all appeals were complete. At least one case aside from Thomas’ involved a state Supreme Court judge.

However, the Chronicle’s case presents new issues, said Bruce Brown, an attorney representing the Chronicle in its federal lawsuit.

“I am fairly confident there has never been anything like this case,” he said. “There have been judges who have sued before for libel, obviously…[but] there’s never been a case where a judge’s status as head of a court system and then suing in his or her court has created the kind of judicial contortions that have unfolded in Illinois.”

Brown and attorney Bruce Sanford, both of Baker & Hostetler in Washington, D.C., are representing the media in both of these strange cases involving judges.

Joseph A. Power, a Chicago attorney who represents Thomas, could not be reached for comment. But he told The New York Times that the federal lawsuit was “the type of case that a mentally challenged pro se plaintiff would file” and that “instead of retracting, they continue to defame.”

Creating conflicts

The defamation suit brought by Thomas stems from comments by Page in columns he wrote in 2003 about a disciplinary hearing for a Kane County state’s attorney.

Page wrote that Thomas was “politically motivated to punish” the attorney, and that Thomas agreed to a more lenient punishment in exchange for political support of a judicial candidate he “favored” by “high profile” supporters of the disciplined state’s attorney.

A jury awarded Thomas $7 million, but the trial judge later reduced the verdict, saying the original amount “shocks this judicial conscience.”

Along the way, the legal proceedings were marked by conflicts that the Chronicle says robbed the newspaper of its constitutional rights to “an impartial tribunal” in both the trial and appeals courts.

Through the course of the lawsuit, the Illinois Supreme Court whose justices now include the plaintiff and four justices Thomas called to testify during the trial on three occasions transferred the case to trial or intermediate courts without noting whether Thomas recused himself, according to the Chronicle’s complaint.

Six justices, two of whom have since left the court, were subpoenaed to provide documents and deposition testimony. However, they said a judicial deliberation privilege, which had never been recognized in the state, prevented them from testifying. The trial court judge found that the privilege existed but certified questions for appeal.

The appellate court found that an absolute privilege existed for communications between justices, between justices and law clerks, and between law clerks. Because the privilege is absolute, it cannot be overcome by a showing of necessity to the information by a party.

The newspaper appealed to the state’s Supreme Court, but five justices recused themselves, leaving no quorum. According to the Chronicle’s complaint, the court ordered the case back to the trial court with the privilege intact.

Steve Helle, a University of Illinois journalism professor, said the actual malice standard, which requires knowledge or reckless disregard to the falsity of the statements, failed in this case.

“This should have been the classic case where the actual malice privilege would have protected the defendant and promoted the cause of free speech,” Helle wrote by e-mail. “You had an elected, powerful public official being alleged to have engaged in activities connected to his office and regarding a matter of much public interest. Instead, the actual malice privilege failed miserably.”

In the state court action, the appeal of the $4 million judgment has been assigned to a panel designated by the Illinois Supreme Court after the Second District Appellate Court recused itself, said Stephen Rosenfeld, a Chicago attorney representing the newspaper.

But the newspaper said in its federal lawsuit that it is impossible for the intermediate court to judge the issue fairly.

“One cannot doubt the obvious unfairness inherent in asking the inferior judicial officers appointed to this appeal to sit in judgment over a $4 million award to their Chief Justice and to evaluate the testimony of both the Chief Justice and his fellow Supreme Court Justices their judicial bosses with [a] critical and exacting eye,” the complaint states.

The newspaper also notes that it has been unlawfully denied a second appellate review in the state courts. With Thomas as the plaintiff and the four other Supreme Court justices as witnesses, the court would be unable to hear the case on appeal.

“I know of no case where a libel complaint tied up the appellate route for the newspaper forcing the newspaper to go to federal court,” Brown said. “I don’t think there’s ever been a case like it before.”

With its federal court complaint, the newspaper is bringing a federal civil rights action to stop the Illinois judiciary from handling the case, including preventing them from hearing an appeal or enforcing the judgment until Thomas and the other justices are no longer working as judges in the system.

Rosenfeld said that if the state court action runs its course before a decision is made in the federal action, the newspaper may be able to appeal to the U.S. Supreme Court.

“Typically you can petition for certiorari after you have the highest court in the state review it,” he said. “Now, in this case, it’s probably going to be after the appellate court looks at it because there would be no Supreme Court, no Illinois Supreme Court.”

‘Get over it’

In Massachusetts, the state’s Supreme Judicial Court in May upheld a $2.01 million judgment against the Boston Herald and one of its reporters in a defamation suit brought by Superior Court Judge Ernest B. Murphy.

In 2002, Murphy sued the paper and reporter David Wedge for statements in articles written by Wedge. Quoting anonymous sources, Wedge wrote that Murphy said of a rape victim, “Tell her to get over it.”

The jury awarded Murphy $2.1 million based on the article, as well as comments made by the reporter on the Fox News show “The O’Reilly Factor.”

The trial judge later reduced the verdict to $2.01 million. About a month after the state’s high court upheld the verdict, the court denied the paper’s petition for rehearing, instead revising some wording in its opinion, but not the outcome.

The paper has since paid about $3.4 million to Murphy, an amount representing the $2.01 million judgment plus about $1.4 million in interest.

In denying the petition for rehearing, the court wrote that the “substantial factual and legal premises underpinning [the opinion] are correct.”

The court wrote that Wedge had written “an incendiary story about the plaintiff which was replete with falsifications, intending that it create a media sensation, and knowing he had no credible source for the facts published as true.”

The court went on to write, “A reporter who does this, even if he or she may not positively know at the time of publication that the story is false, surely is acting in reckless disregard of the truth.”

In July, the state Commission on Judicial Conduct filed formal charges against Murphy stemming from a series of letters he wrote to Herald Publisher Patrick Purcell starting days after the verdict.

Murphy offered to settle the case because he said the newspaper had “ZERO chance” of winning an appeal. In the letters, some of which were penned on judicial stationery, Murphy demanded a $3.26 million cashier’s check from Purcell and wrote that it would be a “BIG” mistake to show the letter “to anyone other than the gentleman whose authorized signature will be affixed to the check.”

“I think it was clearly inappropriate,” T. Barton Carter, a Boston University communications and law professor, said about the letters. “I can’t speak to his motivation, but I think that putting it on official stationery in that fashion was not appropriate.”

The judicial commission said Murphy had “engaged in willful misconduct which brings the judicial office into disrepute.” Murphy, in a written response by his attorney, denied the charges and said the letters were part of private settlement talks with Purcell.

Squelching commentary?

Brown, who represented the Herald, said the Supreme Judicial Court’s decision upholding the libel judgment was an embarrassment, and that the “judges just refused to apply the law.”

“What the judges in Massachusetts never liked about this story was that they found it to be incendiary and they believe the Herald intended to create a media sensation,” Brown said. “Of course, those are not characteristics that pull a news article out of the protections of the actual malice rule.”

Carter agreed that, based on his knowledge of the case, the facts did not support a finding of actual malice.

“Based on reporting on it that I saw, I didn’t think it really stood up to the level of actual malice by clear and convincing evidence,” Carter said. “But, as we know, juries have a hard time wrapping themselves around that particular concept, so the trial verdict wasn’t a great shock.”

Carter said any large judgment is likely to have some impact on reporters.

“A large sum of money against a reporter at a paper, yeah, it gets their attention and they get nervous,” he said. “Hopefully they have good counsel that can explain the limits on this particular decision. But it’s hard to believe that it won’t at least for some period of time have some effect.”

Of the Illinois decision, Helle said the impact on journalists may not be obvious. But he believes the state’s Supreme Court will be less willing to rule in favor of defamation defendants in the future.

“The fallout from this case might be subtle, in that we will never know which stories will never be written now about public officials and particularly judges,” he wrote. “It does show how sensitive the judges can be and how willing to use the resources at their disposal to squelch unfavorable commentary.”