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Constitutionality 10/15/2009 2:35:35 PM EST Will We Turn Back the Clock on Freedom of the Press? Senior Vice President and General Counsel of Reed Elsevier Inc.
“Sunshine is said to be the best of disinfectants,” said Justice Louis Brandeis. Americans like their public officials to operate under scrutiny, widely and candidly reported.
We are so steeped in our belief in Freedom of the Press that we tend to forget that the seminal Supreme Court decision protecting the Constitutional right of the press to report on official conduct, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was front-page news itself only 45 years ago. That case concerned the efforts of law enforcement officials to intimidate newspapers from reporting on their misconduct toward civil rights workers by filing libel suits in local courts. Free reporting triumphed then, and we assume that free reporting will continue to flourish for the public good. But even well-established freedoms must be guarded vigilantly. And so it is today, for even as we now rally for the rights of citizens in autocratic nations to speak to and about their governments without retribution, in the state where Justice Brandeis practiced, New York Times may be at risk.
At issue is a recent Massachusetts appellate court ruling in Howell v. The Enterprise Publishing Co., LLC, 72 Mass. App. Ct. 739 (2008). In 2005, 11 newspaper accounts reported on the termination of a town’s superintendent of the sewer department after city officials determined that he had misused town computers for, among other things, inappropriate images as well as sending inappropriate e-mail messages to a subordinate. The newspapers also reported that some of the materials in question were pornographic, relying on the word of the town officials who made that determination and reported it to the newspapers following executive sessions. However, the appellate court held there was a genuine issue of material fact as to whether the images found on the computers were actually pornographic. The court further held that news staff should have investigated the underlying facts independently instead of relying solely on the word of the government officials who took action against the superintendent. Therefore, the newspapers could be held liable for defamation even after accurately reporting these statements.
This decision is in conflict with established First Amendment law. An essential underpinning of New York Times is the rule “that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” (376 U.S. at 280-81). How else can a free press cover public officials without fear leading to self-censorship? The news media must be able to report on the activities of the government, even when the government’s claims are wrong. When officials can make negative reporting about a government official unreasonably risky, whether through direct censorship or the threat of a private defamation suit, it discourages critical reporting and induces self-censorship, resulting in an overly cautious and diffident press that is incompatible with our national commitment to freedom of speech and the disinfectant function of reportage. It is therefore critically important that courts carefully examine whether particular plaintiffs are “public officials” for New York Times purposes and ensure that libel claims are not used as stalking-horses for government censorship.
Reed Elsevier Inc. and its LexisNexis division ardently support the rights of the media defendant in this case, now under review by the Massachusetts Supreme Judicial Court (Howell v. The Enterprise Publishing Company et al. [SJC No. 10359]). In partnership with The Associated Press, we have filed a friend of the court brief (PDF file) in this case. Self-interest plays a limited role here. We could have relied on our indemnities from the primary news media. A more pertinent consideration is that as an aggregator and archive of third-parties’ news, we have an interest in preserving the integrity of that news. Principally, however, we believe that as a company invested in providing timely and comprehensive legal information, we have a special knowledge and obligation to defend and promote the Rule of Law. We must stand up now to protect Freedom of the Press from erosion so our news media can continue investigating and reporting aggressively on the activities of public officials, resisting intimidation, and exposing abuse of power and office to the sunshine of public scrutiny.
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