No chance for LaChance

In a to-the-point rescript opinion in Edward D. LaChance, Jr. v. Boston Herald et al.,the Appeals Court of Massachusetts this week affirmed a summary judgment dismissal of defamation and other claims brought by LaChance, an incarcerated prisoner, against the Boston Herald and one of its reporters.

In 2004, while serving a sentence for aggravated rape, LaChance placed a personal ad on a Web site known as “Inmate Connections” (in violation of prison rules barring maximum security inmates from Internet access). 

In 2005, the Herald published three articles on the topic of online “dating" by incarcerated felons. The articles variously stated—incorrectly—that LaChance had been convicted of manslaughter, that he claimed in his ad to be in prison for manslaughter, and that he had committed a brutal sexual attack on an elderly woman.

The Herald and its reporter concede that those assertions were factually inaccurate, in that LaChance was not in prison for manslaughter, did not make such a claim in his ad, and did not commit a crime against an elderly victim.

The trial court ruled that the alleged defamatory statements were either privileged or substantially true, and granted the defendants' motion for summary judgment.

In affirming the dismissal, the Appeals Court concluded that the newspaper articles at issue addressed matters of public concern—the dangers of interacting with violent felons online—and that as a result of his own actions—whereby LaChance thrust himself into a particular public controversy—LaChance was a limited purpose public figure. In arriving at that conclusion, the court noted that LaChance’s ad was misleading and controversial, finding particularly deceptive his assertion that, “I’m not a bad man and I treat everyone the way I wish to be treated.”

The court then turned to whether the subject statements were false and made with actual malice.

Although the articles contained inaccuracies (even a literal falsehood), the court concluded that such statements did not rise to the level of actionable falsity or defamation. The gist of the articles was accurate: inmate ads should not be trusted in general, and LaChance’s ad in particular was dangerously deceptive in that he withheld details of his violent criminal history and portrayed himself in a light that might seem more innocuous to potential respondents on the match-making site.

As LaChance offered no proof of actual malice—that is, that the statements were published with knowledge of falsity or reckless disregard for whether they were false—LaChance failed to carry his burden of proving actual malice.

Finally, the court rejected LaChance’s contention that the fair reporting privilege did not apply to his case. The published article contained a fair and accurate report of a court docket entry as it existed at the time of publication. Even though the entry was in error, it was not corrected until months after the publication of the articles, and the paper had no way of knowing about the error at the time of publication. As such, the reference to a brutal sexual attack on an elderly woman was, although inaccurate, privileged and insulated from a claim of defamation.

And to answer your question ("Who would represent this guy in a defamation case?") ... yes, LaChance represented himself. The media defendants were represented by Liz Ritvo.

Post-Season Play?

The Super Bowl is history, and pitchers and catchers have headed south for spring training, but for those of us keeping an eye on media and First Amendment issues, football is not yet out of the picture. At least not the off-field contest now being waged by Dan Snyder, principal owner of the Washington Redskins, against the Washington City Paper and related entities.

In his Complaint, Snyder alleges that the paper "has engaged in an ongoing campaign against [him] to smear his business and personal reputation through the publication of false and malicious articles ... ."  Snyder's "ability to turn the other cheek" allegedly was exhausted by a November 18, 2010, cover story, which he alleges provided "an 'encyclopedic tour' of the 'heinous deeds' and 'various perfidies of Dan Snyder'."

Snyder's complaint--which includes as an exhibit a copy of a November 24, 2010, letter sent by David P. Donovan, Redskins' General Counsel, to individuals associated with the paper's ownership group--apparently refers to the piece by columnist Dave McKenna, "The Cranky Redskins Fan's Guide to Dan Snyder." An online copy of that piece is dated November 19, 2010, and now includes a link to a letter from Amy Austin, publisher of the paper, concerning the legal action and a defense fund.

The paper is represented by Seth Berlin at the prominent media and First Amendment law firm Levine Sullivan Koch & Schulz. The paper's ownership group is represented by First Amendment powerhouse Floyd Abrams from Cahill Gordon & Reindell.

Now that Snyder has kicked off, stay tuned for details about the return by the defense. Given the First Amendment values here, I expect we will see a Statue of Liberty play at some point, and a strong blitz if Snyder regains possession.

"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.

Dismiss Me Once ...

On January 13, federal district judge Claude Hilton (E. D. Va.) again dismissed the defamation case brought by scientist Steven Hatfill against the Times and columnist Nicholas Kristoff. Hatfill claimed he was defamed by columns written by Kristoff about the government's anthrax investigations. A recent article in the Times provides the pertinent background.

As noted in that article, Judge Hilton previously dismissed the case on the grounds that there was no defamation. That dismissal was overturned by the federal court of appeals, and the Supreme Court declined to consider the case. Judge Hilton has not yet issued a memorandum, of decision, but I'll post a link as soon as it is available. Let's hope that this time the judge;s decision is bullet-proof, and that Hatfill decides to accept the second dismissal of his case.

Onward and Upward

The Boston Herald and the Boston Globe reported this morning that the trial judge yesterday denied the Herald's request to vacate the jury's $2.1 million award in the libel action brought by Superior Court judge Ernest Murphy against the Herald and one of its reporters.

The paper's motion was based, at least in part, on the outrageous post-verdict letters Murphy sent to Herald publisher Pat Purcell, some of which were on court stationery, in which Murphy, in effect, sought to bully the Herald into paying him more than the jury award, and dropping plans to appeal. The judge apparently felt that vacating the award was too extreme, and that an assessment of Murphy's conduct was better left to the appropriate commission.

The judge left open Murphy's motion to freeze the Herald's assets, which is reportedly based on Murphy's concerns over whether the Herald's media liability insurer will make good on the judgment if it is upheld on appeal.

Nationally-known media lawyer Bruce Sanford will represent the Herald in its appeal.