UPDATE: 'Boston' Rocker Scholz Loses Boston Herald Libel Suit

 (Photo credit: DSMJ)

Suffolk County Superior Court Judge Frances A. McIntyre yesterday dismissed the defamation lawsuit brought by Tom Scholz, co-founder and keyboardist/songwriter of legendary rock band Boston, against the Boston Herald and two of its gossip columnists based on allegations concerning the March 2007, suicide of the band's lead singer, Brad Delp, according to reports in the Boston Globe and Boston Herald.

Scholz sued the tabloid in 2010 for defamation and intentional infliction of emotional distress, alleging that Fee & Raposa, who penned the Herald's Inside Track gossip column, implied he was to blame for Delp taking his own life, by quoting Delp's former spouse Micki, who said the singer was despondent over Boston's long-ago breakup and subsequent changes in the band (see "TUOL" posts 9/15/11 & 3/18/10). Scholz claimed the defendants made up the quotes attributed to Micki Delp and suggested that personal problems contributed to Delp killing himself, including his fiancee's purported infidelity and the discovery that Delp allegedly secreted a camera in the bedroom of his fiancee's younger sister.

In the 24-page opinion in Donald Thomas Scholz v. Boston Herald, Inc., Gayle Fee  & Laura Raposa (Case No. 10-1010), Judge McIntyre wrote that Scholz could neither prove nor disprove what prompted Delp to commit suicide, and "[a]ny views on the subject necessarily would be opinions." That is critical in defamation cases, which are rooted in false statements of fact, because, as Judge McIntyre noted, "an opinion cannot be false; the free expression of opinion on any matter of public interest is constitutionally protected by the First Amendment. Therefore, the publication by these media defendants of their opinion about the cause of Delp's suicide is not vulnerable to a claim of defamation."

Although acknowledging that Delp's suicide was a "private tragedy," Judge McIntyre wrote that "for the public who cared about him during his life, his death was an issue of public concern." The Herald account of the decision noted that the court rejected Scholz's assertion that the defendant columnists fabricated remarks attributed to Micki Delp. Among the alleged defamatory statements was a headline, "Pal's snub made Delp do it; Boston rocker's ex-wife speaks."

Boston's 1976 debut album sold 17 million copies, the second-biggest debut in U.S. rock history, according to the Globe article. The band's hits included Don't Look Back and Peace of Mind.

Scholz's counsel said his client has yet to decide whether to appeal Judge McIntyre's decision. If he decides to pursue an appeal, as a public figure saddled with the heightened defamation burden of proof of actual malice, Scholz is going to have to show by More than a Feeling that his reputation was sullied by false assertions.

Globe Takes Turn for the Worst: Voluntary Buyouts Offered

(Photo credit: Wikipedia)Forty-three Boston Globe workers, union members and management alike--including 20 newsroom staffers--have been offered voluntary buyouts, and another 10 employees were laid off, according to Globe Publisher and New England Media Group ("NEMG") President Christopher M. Mayer.

According to a report by the Globe's rival, the tabloid Boston Herald, the New York Times-owned broadsheet in May saw its daily circulation drop below 200,000 for the first time ever, fueling speculation that the Globe and another Times property, the Worcester Telegram & Gazette, may soon be offered for sale. Reportedly, the Telegram & Gazette laid off one staffer and offered voluntary buyouts to another 10.

According to a report by the Poynter.org Web site, the T & G will eliminate slots and layoffs will ensue if the buyouts are not accepted.  The Globe, which boasts a work force of 1,881, does not anticipate universal acceptance of the buyout offer. As part of a cost-savings measure, the Globe reportedly plans to close its suburban bureaus.

Boston Globe to Publish Boston Herald; Will Red Sox & Yankees Soon Share a Dugout?

Image via WikipediaTeamsters yesterday unanimously gave their blessing to a deal that will have broadsheet The Boston Globe printing and delivering its rival tabloid Boston Herald beginning January 23, the dailies announced separately.

Terms of the agreement were not disclosed, though 50 Teamsters--drivers and other personnel--will be laid off by the Herald. According to a story in the Herald, the Globe will print and deliver the city edition of the tabloid Sunday through Friday and the paper's entire Saturday run, but the Herald, Sunday through Friday, will print most of the copies of the paper from its plant in Chicopee, Mass., which will be distributed by wholesalers, some of whom are Globe-controlled.

The deal makes fiscal sense for both dailies, which, of course, will maintain separate newsrooms and editorial identities. The Herald report of  the business arrangement stresses its imminent move into "state-of-the-art" offices in Boston's fast-growing Seaport District, while the Globe account of the deal emphasizes the Herald's personnel layoffs in the lead paragraph, so the competitive newspaper spirit captured by The Front Page may not entirely be dead.

Deck the Halls (& Columns) With Clients of Holly

Image via WikipediaWhile trying to keep pace in grading the tsunami of end-of-the-semester term papers, the crack team at "TUOL" overlooked a local egregious ethics breach by a columnist at the tabloid Boston Herald.

A tip of the hat to the Blue Mass Group political blog that first brought to light last week Herald columnist Holly Robichaud's piece about potential challengers to fill the Congressional seat being vacated by Democrat Barney Frank after a mere three-decade run. Robichaud touts Mass. Rep. Shaunna O'Connell (R-Taunton), a freshman (freshperson?) legislator who ousted long-term Democratic Rep. James Fagan.

Robichaud suggested O'Connell "could pose a serious threat for the Democrats" eager to retain Frank's seat. Prognosticating about elections is red meat for columnists, but the "rub" as Shakespeare used to say, is that Robichaud also is a principal at the Tuesday Associates political consultant shop, which--now don't get ahead of us, readers--has pocketed more than $17k since 2009 from client Shaunna O'Connell, according to the Commonwealth's Office of Campaign & Political Finance ("OCPF"). Nowhere in her column handicapping the Congressional race to succeed Frank does Robichaud disclose she may "wanna Shaunna" to win.

Op-ed or operative? You be the judge.

UPDATE: Scholz Setback in Libel Suit Against Boston Herald

Cover of Tom ScholzCiting the long-recognized fair reporting privilege, Massachusetts Superior Court Judge John C. Cratsley has dismissed some of the defamation claims against The Boston Herald brought by Boston band co-founder Tom Scholz, the Herald reported today.

Scholz, the band's composer and keyboardist/guitarist, sued the daily last year in Donald Thomas Scholz v. Boston Herald, Inc., Gayle Fee & Laura Raposa (Case No. 10-1010), alleging emotional distress and defamation based on articles published in the tabloid in 2007 on March 15 & 16 and July 2 (see "TUOL" post 3/18/10), and later, in May 2010, when the Herald reported on the lawsuit itself and the parties' positions. Scholz alleges the defendants blamed him for the suicide of Boston vocalist and co-founder Brad Delp.

Judge Cratsley tossed the defamation claims arising from the May 2010, Herald articles, ruling the accounts had accurately reported about the lawsuit and were not unfair or published for any purpose other than to inform readers. The so-called fair reporting privilege is a well-established qualified defense to libel suits in which accurate, fair reporting of judicial proceedings (which are absolutely privileged) is not actionable. It's a qualified defense in that a biased, inaccurate and unfair account of a privileged court hearing would not afford the offending journalist protection.

The plaintiff's suit is still active regarding the allegedly defamatory 2007 items that appeared in the Herald's Inside Track column.  Scholz recently came up empty in a separate 2008 defamation suit against Delp's widow, Micki Delp, and her sister, Connie Goudreau. 

Prisoner of Love Loses Libel Suit Against Boston Daily

Image via WikipediaThe Massachusetts Appeals Court this week in Edmund LaChance Jr. v. The Boston Herald et al. (Docket No. 09-P-2129) upheld the trial court's grant of summary judgment dismissing the libel suit against tabloid daily The Boston Herald and reporter Michelle McPhee brought by a pro se plaintiff, an inmate, who claimed he was defamed by a series of articles in 2005 about online dating by felons.

LaChance placed a personal ad on the Web site Inmate Connections in September 2004, that included a photo, listed his interests (tunneling?), and acknowledged he was in stir, but did not articulate the criminal convictions that put him there. Herald reporter McPhee wrote three articles that the plaintiff alleged contained erroneous, defamatory information about him, including: 1) he was convicted of manslaughter; 2) his online ads said he was incarcerated for manslaughter; and 3) he sexually molested an elderly woman.

The Herald conceded that the above information it printed was factually inaccurate. The Superior Court judge granted judgment without trial to the Herald, finding the alleged defamatory statements about LaChance were substantially true or privileged.

The appellate court upheld the grant of summary judgment, holding that the newspaper articles involved a matter of public concern ("the dangers of interacting with violent felons online"), and that  LaChance was a limited public figure who had failed to prove the statements at issue were defamatory and false and that the Herald published them with actual malice--knowing the information was false or exhibiting reckless disregard about whether the information was true or false.

LaChance was not convicted of manslaughter; rather, he was in prison for rape, aggravated rape, armed robbery and a litany of other offenses that still might make a young woman hesitant to introduce him to her parents.  The Appeals Court ruled the Herald articles were shielded from libel under the fair and accurate report privilege because the inaccurate information that LaChance had sexually attacked an elderly woman was obtained by McPhee from an incorrect court docket entry she reviewed that subsequently was amended, which the Court said could not have been known by the Herald when it accurately reported the docket entry.

The Appeals Court noted that LaChance was "neither a victim nor an unwitting participant" in the Herald's coverage of online convict dating because he voluntarily place an ad on the Inmate Connections site. The Court said the ad at issue was misleading and deceptive because LaChance didn't specify the crimes that put him behind bars and because he said in the ad he was "not a bad man and I treat everyone the way I wish to be treated."

Statements that contain inaccuracies are not necessarily false for purposes of a defamation claim. Summary judgment is a device favored by courts in defamation claims because it weeds out meritless cases without the onerous cost of a trial and limits the restrictions on freedom of expression. In this case, the Appeals Court determined that LaChance's reputation wasn't impugned by erroneously reporting that he was doing time for manslaughter in that his long criminal record and the rape and other crimes he committed for which he was jailed hardly made him a pillar of the community with a stellar reputation in the eyes of the public.

The staff of "TUOL" suggests Inmate Connections undergo a Web site renaming along the lines of successful dating services such as eHarmony and humbly offers "e-Scape."

'Enemies Check' Delays City's Public Records Disclosure

Image by Mark Sardella via Flickr

Kudos to Atty. Bob Ambrogi's Media Law blog (http://medialaw.legaline.com) for highlighting the interesting approach the city of Lawrence takes to complying with Massachusetts' Public Records Law[M.G.L. c. 66, sec. 10(a)].

Pursuant to the statute, municipalities must reply to a records request within 10 days of receiving it and can't refuse to produce records based on the identity of the person seeking the records. Why, then, did Lawrence's city attorney take two months to respond to a request for city payroll records from The Boston Herald?

Because the city has numerous "enemies," and time was needed to investigate whether any nefarious ne'er-do-well was behind the request to learn the salaries of public employees funded by taxpayers.

Note to the city attorney interpreting the Commonwealth's Public Records Law:  unlike  '40s Hollywood gangster movies, when a reporter wearing a fedora inquires about the Mayor's salary, it's unacceptable to reply: "Who wants to know?"

Boston Media Outlets Sued for Alleging 'Sex Acts' Between Plaintiff and Inmate

Image via Wikipedia

The Boston Herald and WHDH-TV Channel 7 (an NBC affiliate) were sued for defamation in  Boston's Suffolk County Superior Court last month by a 27-year-old community activist who alleges the media  defendants falsely accused her of engaging in "sex acts" with her incarcerated boyfriend during a visit to the Old Colony Correctional Center in Bridgewater.

Joanne Marinova, co-director of the nonprofit Press Pass TV that works with youngsters to produce videos, denies having engaged in sexual activity with her boyfriend, convicted murderer Darnell Jones, in the prison's visiting area.  In previous press accounts, she has said that Jones was disciplined for the prison policy infraction of touching her knee during a visit.

The incident came to light when the media defendants reported in May 2009, about Marinova accompanying 67-year-old Mass. Rep. Gloria Fox on a visit to Old Colony in a story that suggested the pol had snuck Marinova into the facility for a conjugal visit with her beau.  A story by Herald reporter Jessica Van Sack prominently featured in the tabloid on May 28, 2009, began: "State Rep. Gloria L. Fox is under state scrutiny for allegedly sneaking a murderer's girlfriend--previously bagged for engaging in 'sexual acts' with the killer con--into a state prison in Bridgewater, the Herald has learned."  WHDH-TV repeated the allegations in a local news broadcast.

Marinova's attorney says the allegations against his client are false and have damaged her reputation in the social services community in which she has worked.  If the plaintiff is deemed a private individual, she only will have to prove the defendants were negligent in reporting the alleged false statement, a lesser evidentiary standard than "actual malice," that a public official or figure would have to prove, which  would involve showing that the media defendants published the alleged false statement with knowledge that it was false or with reckless disregard whether the statement was true or not.

'Boston' Rocker Sues Boston Herald for Libel

Tom Scholz via last.fm

Tom Scholz, the keyboardist/guitarist/songwriter who co-founded the rock band Boston, has filed a defamation suit in Suffolk County (Mass.) Superior Court against the daily tabloid The Boston Herald and its "Inside Track" gossip columnists Gayle Fee and Laura Raposa, accdording to the Courtroom News Service(CNS).

The 23-page complaint, Donald Thomas Scholz v. Boston Herald, Inc., Gayle Fee & Laura Raposa (Case No. 10-1010) alleges defamation and intentional infliction of emotional distress arising from articles that appeared in the daily in 2007 on March 15, March 16, and July 2. According to the complaint, the defendants allegedly wrote articles, including one under the headline "Pal's Snub Made Delp Do It," that blamed Scholz for the suicide of band vocalist Brad Delp in March 2007, and allegedly fabricated quotes by his widow Micki Delp in the "Inside Track" column. The complaint alleges Micki Delp demanded "Inside Track" retract the quotes attributed to her, but Fee purportedly refused to do so.

Scholz alleges the Herald articles "impute dishonesty, immorality, vice and dishonorable conduct to Mr. Scholz and injure Mr. Scholz in his trade or business." A 2008 defamation suit brought by Scholz against Micki Delp and her sister Connie Goudreau is still pending, CNS reports.

Representing Scholz is Boston attorney Howard Cooper, who bested the Boston Herald in 2005, scoring a more than $2 million libel verdict for Judge Ernest Murphy after the tabloid wrote an article alleging Judge Murphy harshly treated a teen rape victim in his courtroom. Cooper's success representing jurists in defamation suits has stretched to the Virgin Islands (see "TUOL" post 3/18/10).

Boston has sold more than 31 million albums worldwide and particularly shone during the 1970s and 1980s. Fans of the group's tunes may believe Scholz is just seeking "Peace of Mind," but based on the complaint and the attorney litigating it on his behalf, it's clear Scholz is looking for "More than a Feeling" from the Herald.