Defaming a Judge: Murphy v. Boston Herald

Justice System Journal, 2008 by Hurwitz, Mark S

Public officials and figures must satisfy a high standard to obtain damages for defamation, based on the Supreme Court's seminal decision on the First Amendment in New York Times v. Sullivan, 376 U.S. 254 (1964), and its progeny. Specifically, plaintiffs who are public figures or officials must prove by clear and convincing evidence that a defendant published false and defamatory material about the plaintiff with "actual malice" (at 280). In Murphy v. Boston Herald, Inc., 865 N.E.2d 746 (2007), which garnered both local and national media attention, superior court judge Ernest B. Murphy apparently satisfied this burden of proof, as Justice John M. Greaney for a unanimous Supreme Judicial Court of Massachusetts upheld Judge Murphy's $2 million defamation award against the Boston Herald.

This case began when the Boston Herald ran a series of articles beginning in February 2002 that were highly critical of Judge Murphy's actions on the bench. The gist of the articles, written by Boston Herald reporter David Wedge (who was also named as a defendant in the lawsuit), was that Murphy was soft on crime, biased in favor of criminal defendants, hostile to victims and prosecutors, and otherwise incompetent to sit on the trial bench.

At the heart of this series in the Boston Herald was an allegation that Judge Murphy made the following statement to prosecutors about a teenage rape victim: "She can't go through life as a victim. She's [fourteen]. She got raped. Tell her to get over it" (at 750). This statement, which was repeated throughout the series, attracted much attention. Indeed, shortly after publication reporter Wedge was a guest on the popular cable television show The O'Reilly Factor, on which he reiterated his claim that Judge Murphy made this callous remark about the teenage rape victim.

In June 2002 Judge Murphy filed a complaint in Massachusetts Superior Court against the Boston Herald, reporter Wedge, and three other individuals, claiming the stories were false, had damaged his reputation, and were published with actual malice. After a twenty-day trial, the trial judge entered judgment in favor of two of the defendants as a matter of state law. The jury was then given a lengthy questionnaire that "properly defined the requirements of defamation involving a public official" and constituted the foundation of the jury verdict (at 751). The jury returned a verdict in favor of Judge Murphy against two of the remaining defendants, the Boston Herald and Wedge, while finding the other defendant (Wedge's coauthor on the articles) not liable. The jury awarded Judge Murphy $2.09 million in compensatory damages. After a defense motion for a judgment notwithstanding the verdict (JNOV) or for a new trial, the trial judge "upheld the bulk of the verdict, but concluded that three of the statements for which the jury found the defendants liable qualified as protected statements" (at 751). Thus, the defendant's JNOV motion was granted and denied in part, which resulted in a judge-modified jury verdict in favor of Judge Murphy of $2.01 million.

The Boston Herald and Wedge filed an application for direct appellate review, which was granted by the Supreme Judicial Court of Massachusetts. In May 2007 the Massachusetts high court affirmed the judgment based on the jury's verdict. The defendants' claims on appeal centered on whether Judge Murphy met his burden of showing actual malice under First Amendment law. In this regard, the court stated that the "plaintiff is, indisputably, a public official" (at 752, n. 8). Accordingly, the New York Times v. Sullivan standard applied to Judge Murphy, who had to prove the published statements were false and defamatory and were made with actual malice.

The court concluded there was "overwhelming evidence" that statements in the articles were false and defamatory (at 754). Focusing on the alleged statement by Judge Murphy that the rape victim "get over it," the court rehashed the testimony at trial to show that the evidence supported Judge Murphy's version of the facts. In particular, the court discussed how Judge Murphy's remarks were not made at or in the vicinity of the rape trial but instead were made at a lobby conference for a separate, unrelated robbery case. Moreover, the court felt that Judge Murphy was concerned about the well-being of the rape victim, such that counseling was available to her so she could get on with her life. The court believed, as apparently did the jury, that comments by Judge Murphy about the rape victim were sympathetic and caring, not callous and noxious.

Constitutional standards required that Judge Murphy go beyond simply proving the media made false statements about him, as he had to demonstrate actual malice on the defendants' part. To prove actual malice, the plaintiff must show by clear and convincing evidence that "the defendants published each statement either knowing that it was not, or entertaining serious doubts that it was, true" (at 758-59). Judge Murphy fulfilled his burden here, in part because of the "lack of candor" (at 759) of reporter Wedge, whose testimony as a witness at trial was "discredited at every turn" (at 760). Accordingly, the evidence "strongly supports the inference that [Wedge] deliberately attempted to mislead the jury" (at 759).