Lawyers Journal

$4.2M verdict a major blow to media's use of secret sources

The perils Massachusetts journalists face for protecting confidential sources have been underscored by a Feb. 12 Suffolk County jury verdict.
After an apparently unprecedented decision by Massachusetts Superior Court Judge Peter M. Lauriat, The Boston Globe and its former reporter, Richard A. Knox, have been ordered to pay more than $2 million in damages after they had repeatedly refused to identify confidential sources.
The jury verdict, which the newspaper and the reporter will appeal, came in a libel case brought by former Dana-Farber Cancer Research Institute physician Lois Ayash. In a 1995 Globe story, Knox cited confidential sources as the basis for writing that Ayash had countersigned an erroneous medical order that resulted in a patient's death and describing her as "leader of the team" handling the case. Ten weeks later, the Globe published a correction saying Ayash had not countersigned the order, but stood by its claim that she was the head of the treatment team.
The jurors ordered the Globe to pay Ayash $ 2.1 million for emotional distress, lost pay and damaged reputation. They also said Knox, now a reporter for National Public Radio, owed Ayash $360,000 for emotional distress and $60,000 in lost wages and injury to her reputation.
Including interest from the 1996 date the suit was filed, the awards total more than $3.5 million.
Massachusetts has no shield law to protect reporters from disclosing confidential sources. Instead, judges must do a "balancing test" suggested by the 1972 Branzburg v. Hayes U.S. Supreme Court decision, which determined that there is no constitutional protection of sources. Massachusetts judges must weigh parties' right to evidence against the public's right to the information.
Judge Lauriat concluded that Ayash's need to learn the names of Knox's confidential hospital sources was "tangible and substantial and outweighs the public interest in protecting the free flow of information."
As a result, the judge found the newspaper and the reporter in contempt, imposed a default judgement against them, and left only the amount of damages for the jury to determine.
Ayash, represented by Hale & Dorr attorney Joan A. Lukey, also was awarded $2.1 million, plus $50,000 in punitive damages from Dana-Farber for lost wages and emotional distress.
Bingham, Dana attorney Jonathan P. Albano represented Knox and the Globe, whose publisher, Richard H. Gilman, expressed disappointment in the jury verdict and indicated the company hopes it will get a chance to fully present its case on appeal.
Lucy Daiglish, executive director of the Reporters Committee for Freedom of the Press, shares other media lawyers' views that Judge Lauriat's decision is unprecedented. Occasionally, Daiglish noted, judges have told jurors they could conclude that reporters who failed to identify confidential source had no such sources. But none of the experts contacted for this article knows of a case in which refusal to disclose sources has been automatically equated with libel guilt.
The Massachusetts decision is "definitely ominous. It's becoming more and more difficult to keep sources confidential these days," Daiglish added, citing current, similar cases in Minnesota and Ohio.
In Massachusetts, she said, "I'd think there'll be some very interesting legal work on what the law looks like" now.
Boston media attorney Joseph D. Steinfield, of Hill & Barlow, though concerned about the judge's ruling, called it "extraordinarily rare" and notes that it will be appealed. He also points out that this is an unusual case, in which both reporter and paper have admitted the falsity of information they published.
Courts have traditionally afforded scant protection for non-confidential sources.
Last year, Massachusetts Superior Court Judge Margaret R. Hinkle ruled that Mark Maremont, then Business Week's Boston bureau chief, couldn't avoid a subpoena for non-confidential documents. Maremont, whose cover story, "Abuse of Power," triggered a sexual harassment suit against Astra USA, Inc. President Lars Bildman, had argued that the reporter's privilege protects even non-confidential information.
Globe crime reporter Ralph Ranalli, author of "Deadly Alliance: The FBI's Secret Alliance with the Mob," prefers named sources but has noted that some sources demand confidentiality for fear of reprisals or because they were subject to judicial gag orders or had been called as grand jury witnesses.
During a talk in early February before the New England Press Association, Ranalli said the Globe has recently pressed reporters to "tighten up" confidential sourcing by negotiating the most specific attribution possible. For example, he said, reporters are being pushed to describe someone as a "state health official," not just a "state official."
At first skeptical about the new policy, Ranalli now calls it a good idea. Having "a word-for-word understanding" with sources about just how they're to be identified "helps you sound authoritative and helps the reader," he said.

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