"Public criticism of public officials"

That is how renowned media lawyer Bruce Sanford, from the Washington, D.C., office of Baker Hostetler, appearing on behalf of the Boston Herald before the Massachusetts Supreme Judicial Court this morning, characterized the subject matter of the reporting at issue in the Herald's appeal of the 2005 $2 milllion libel award to Superior Court Judge Ernest Murphy.

And that is exactly right.

While the judicial climate in the SJC courtroom was not as frigid as the weather outside, my impression is that the Herald's arguments were met with something cooler than a warm welcome.

Justice Cowin, in particular, focused repeatedly on the words "tell her," which she said changed the gist of the reported statements. Sanford, however, viewed those words as immaterial and insignificant, and commented that applicable law does not require reporters and sources to agree precisely. He also noted that none of the reporter's [district attorney] sources ever contacted the paper to say that he was misquoted.

While acknowledging that the reporter may have made one or two technical mistakes in his stories, Sanford emphasized that such mistakes do not equal substantial falsity.

Sanford also cautioned that under the standards of Times v. Sullivan, appellate judges are not charged with being "superannuated editors."

Arguing for Murphy, Suffolk Law School professor Michael Avery referred to what he called the reporter's knowing fabrications, and essentially argued that whatever the standard of review, there is overwhelming evidence to support the jury's decisions in favor of Murphy.

In posing questions to Avery, Chief Justice Margaret Marshall noted that her own research showed that on appeal few libel awards in favor of public officials, and judges in particular, are upheld on appeal.

Let's hope that is a harbinger of the Court's decision in this case.