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Mass. high court offers cover for anonymous sources

By Douglas Lee
Special to the First Amendment Center Online

Chalk one up for anonymous sources.

Anonymous sources, as we know, have been under attack. Pilloried by many inside and outside the news media, anonymous sources have been blamed for the regression of our reporting, the polarization of our politics and the sensationalism of our scandals. Recently offered a clear shot at these unnamed villains, however, the Supreme Judicial Court of Massachusetts refused to fire, instead recognizing that anonymous sources can provide valuable information about government activity.

The court’s Jan. 7 decision in Howell v. The Enterprise Publishing Company was not about whether a newspaper must disclose the name of an anonymous source, but rather about whether it could invoke the fair-report privilege to protect information attributed to a confidential source. The court, in a 6-1 decision, held that it could, as long as the article accurately and fairly reported official actions.

In the case, James Howell, the superintendent of a municipal sewer department, was placed on administrative leave and later fired for possessing inappropriate and unauthorized materials on his office computer and on a laptop computer owned by the municipality. The Enterprise, published in Brockton, Mass., printed several articles about the incident. In many of them, the newspaper cited anonymous sources for information about the details of the charges against Howell and the nature of the material found on the computers.

Howell sued for defamation, intentional infliction of emotional distress and invasion of privacy. He complained that the articles inaccurately described some of the material as “porn” and “pornography,” falsely reported that a conflict-of-interest charge had been upheld and implicitly accused him of fraudulently collecting unemployment benefits. The Enterprise moved for summary judgment, claiming the articles were protected by the fair-report privilege because they accurately and fairly reported government actions and statements.

The trial judge denied the motion, ruling that the defamation and emotional-distress cases should proceed to trial because the accuracy and fairness of the articles presented questions of fact that could be decided only by a jury. The privacy claim also should be tried, the judge said, because Howell’s collection of unemployment benefits was not a matter of legitimate public interest.

Ruling on the newspaper’s appeal, the appellate court agreed with the trial judge about the defamation and emotional-distress claims but ordered that the privacy claim be dismissed. The Enterprise then appealed to Massachusetts’s highest court.

The high court, in a decision authored by Associate Justice Robert Cordy, reversed the appellate court’s order regarding the defamation and emotional-distress claims and directed that judgment be entered for the newspaper on all counts of Howell’s complaint. In doing so, the court rejected the lower courts’ view that the application of the privilege was a question of fact, reviewed the articles and held that they fairly and accurately described the government actions and official statements at issue. While acknowledging that one article mistakenly reported that the conflict-of-interest charge had been upheld, the court ruled that Howell, a public figure for the purpose of the investigation, could not satisfy his burden of proving that the newspaper published the statement with actual malice.

In its decision, the high court examined the history of the fair report privilege, the public policies supporting it and its applicability to statements of anonymous sources.

The privilege, the court said, “emerged as a safety valve to the common-law rule that a republisher of a defamatory statement was subject to the same liability as the original defamer. … The fair report privilege establishes a safe harbor for those who report on statements and actions so long as the statements or actions are official and so long as the report about them is fair and accurate.”

This safe harbor, the court noted, serves three important purposes. First, it protects the press when it reports on official actions and statements that members of the public could have witnessed for themselves. Second, it allows the news media to serve as a check on government “by giving the public the opportunity to be informed citizens and voters.” Third, it encourages the reporting of matters about which there is general public interest.

Emphasizing the first two of these purposes, the court said the privilege extended to “proceedings and actions taken out of public view as long as they are official.” However, because “reports of nonpublic or closed-door official actions are often disclosed by anonymous rather than official sources, it can be difficult to gauge whether the privilege should attach.” Therefore, the court said, “it is important to distinguish reports of official statements from reports of official actions, both of which are covered by the fair report privilege.”

An anonymous statement, the court observed, “is not an official one” and accordingly is not privileged as an official statement. “The privilege to report official actions would mean very little, however,” the court said, “if, to qualify for its protection, the media were limited to reporting such actions solely on the basis of on-the-record statements by high-ranking (authorized to speak) officials or published official documents. Consequently, the privilege extends to reports of official actions based on information provided by nonofficial third-party sources.”

It shouldn’t matter, the court continued, whether a source is “a high official, a low official, or a mere witness who overheard the proceedings, so long as it is official action that is reported. If, however, the source is an unofficial or anonymous one, a report based on that source runs a risk that the underlying official action will not be accurately and fairly described by the source, and therefore will not be protected by the privilege, or that the information provided will go beyond the bounds of the official action and into unprivileged territory.”

The articles about Howell, though based in part on information from anonymous sources, did not come close to this unprivileged territory. The description of some of the materials as “porn” or “pornography,” the court said, was substantially accurate and based on the official accusations made against Howell. The fact that Howell believed those accusations were made as part of personal vendetta against him “is a complaint to be lodged against his accusers, not the press.”

The dissenting justice, Francis Spina, argued that the privilege should not be extended to details of a meeting conducted in executive session. Disclosure of such details by an official sworn to secrecy “is not consonant with good government,” Spina wrote. Accordingly, a “newspaper that publishes such detail before the government body releases its records to the public cannot be said to be acting in its public supervision role.”

The majority disagreed, holding the issue was accuracy, not anonymity.

“Our common law considers fair and accurate reports of official actions to be privileged because we value the light the press shines on those charged with stewarding the public trust,” the court said. “The nature of the privilege is such that we cannot pick and choose when to engage its protections; either it must apply all the time or it will never apply at all.”


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