NEWS MEDIA UPDATE · U.S. SUPREME COURT · Confidentiality/Privilege · Oct. 4, 2005
High Court refuses to hear four media cases
Oct. 4, 2005 · The U.S. Supreme Court turned down the appeals of numerous media cases on Monday, including a massive libel damage award against the Boston Globe due to its refusal to reveal a confidential source. Other cases included a copyright infringement case, a California privacy case, and another libel case.
Many observers felt that in the wake of Judith Miller’s imprisonment, the Court wanted an opportunity to clarify its thoughts on reporters privilege and the issues brought up in Ayash v. The Boston Globe.
“If the case stands for anything, it shows the broad discretion for trial court judges in Massachusetts with confidential sources,” said Jonathan Albano of Bingham McCutchen, media counsel for the Globe. “We’re hoping that it will be limited to its unique facts.”
In the case, Dr. Lois Ayash had sued the Globe following a 1995 story about the death of Globe columnist Betsy Lehman due to an overdose of cancer drugs. The newspaper reported, through a confidential source, that Ayash led the team of doctors caring for Lehman and that she countersigned the order giving Lehman the drugs. The Globe later corrected the story to say that Ayash had not countersigned the order, but stood by its reporting that Ayash led the doctors.
Ayash filed suit against the Globe for defamation and against the hospital for releasing the information to the newspaper. When the Globe refused to reveal the name of the confidential source, the case against the hospital had to be dismissed because Ayash could not prove the hospital leaked the information. The judge then granted a default judgment in the libel case for Ayash. A jury then awarded $1.68 million dollars in damages to Ayash. The judgment was upheld by the Supreme Judicial Court of Massachusetts.
“The Globe defendants made a deliberate choice to protect [its] sources and to forgo their (potentially meritorious) defenses to the claims asserted against them rather than obey the judge’s orders,” wrote Justice John M. Greaney in the decision. “The judge was not trying to punish the Globe defendants. He clearly felt that he had no alternative method of enabling the plaintiff to obtain the information she needed, and he left open to the Globe the option to remove the default by complying. The question for our review is whether the judge’s order constituted an abuse of the ‘broad measure of discretion’ afforded him.”
Media lawyers had argued that the court should not be allowed to declare a default judgment in a libel case by a public figure where the plaintiff has not proven actual malice.
“The confidential sources were not part of the libel case,” Albano said. “But the sanctions were a default judgment on the libel claim. To my knowledge, that’s never happened before.”
The court also declined to hear Gates v. Discovery Communications, Inc., in which the California Supreme Court made clear that invasion of privacy suits cannot be brought over information that is contained in the public records of court files.
“It protects the media in reporting on historical records,” said Kelli L. Sager, an attorney for Discovery Communications. “It’s nice that [the Supreme Court] has finally put a nail in that coffin.”
The court also denied to hear O’Rourke v. Smithsonian Institution Press, a case in which the federal court in New York City dismissed a copyright suit against the federally controlled museum over jurisdiction issues, and Gilroy v. Letterman, a libel case against CBS Television and two of its talk show hosts that had been summarily dismissed by lower courts.
As is its usual custom, the Supreme Court did not comment or give any reasons for not reviewing any of the cases.
(Ayash v. Dana-Farber Cancer Institute; Media Counsel: Jonathan Albano, Bingham McCutchen, Boston) — CM