His libel suit against the Boston Herald may have been a lucrative success, but the “fascinatingly repellent” letters he sent to the paper’s publisher drew the adverse attention of the state’s Commission on Judicial Conduct. [WSJ law blog, Aug. 21]. Full saga here.

More: Globe (Murphy, “who has said he suffers from post-traumatic stress because of his legal battle with the Boston Herald and the newspaper’s stories about him, has been on a paid leave of absence since July.”). The Herald’s coverage includes side stories on Murphy’s wish for a taxpayer-provided lawyer and the question of whether his cases will need to be reopened, as well as an unsparing Howie Carr column on the ins and outs of “involuntary disability” pensions for judges (”ask yourself this: If you or I wrote ‘allegedly threatening’ letters to somebody, would we get a disability pension, or a visit from the cops?”).

Durham, N.C. lawyer Keith Hempstead says he’s dropping his suit against the Raleigh News & Observer (Jul. 14, Jul. 20), the one that charged that the paper’s quality had gone downhill because of staff cuts. Hempstead said his point had been made by the wide publicity accorded the lawsuit, during which he was interviewed by many major news organizations. (Leah Friedman, “Subscriber drops suit against The N&O”, N&O, Jul. 28). A nameless WSJ law blog commenter takes the view that announcing this rationale for dropping the suit sets up a “prima facie” counterclaim of abuse of process, should the newspaper choose to pursue one. Does it?

So that this man can make his point, North Carolina taxpayers — and people with legitimate cases in that state’s courts — are just going to have to put up with a little extra burden:

A News & Observer subscriber is suing the newspaper for cutting staff and the size of the paper.

Keith Hempstead, a Durham lawyer, filed the suit last month in Wake Superior Court. He says he renewed his subscription in May just before the paper announced on June 16 the layoffs of 70 staff members and cuts in news pages.

The paper, he says, is now not worth what he signed up for and therefore the cuts breached the paper’s contract with him….

In a phone interview today, Hempstead, 42, said he could cancel his subscription but filed the suit to make a point.

Hempstead, a former reporter himself at a different paper who says he “loves” the N&O, has duly gotten a fair bit of publicity, certainly more than if he had just sent out a complaining press release or something. (Leah Friedman, “N&O subscriber sues the paper for cutting staff”, News & Observer, Jul. 10).

Jonathan Rauch:

Unfortunately, however, it is probably illegal for newspapers to form a subscription consortium [enabling consumers to pay for web content through a one-stop subscription to hundreds of newspaper sites]. Antitrust law was written generations ago, when newspapers were local monopolies or duopolies. Today, of course, they compete with the whole Internet. The problem now is that they have too little market power, not too much.

Even so, antitrust law regards collective pricing as collusion. “There is a well-established tunnel vision in applying antitrust laws,” says Lee Simowitz, a media lawyer with Baker Hostetler in Washington. “Broader values don’t enter the equation.” Allowing newspapers to combine forces, he says, is “really up to Congress.” …

Sooner or later, newspapers will need to get their acts together — literally — and charge collectively for content, and it will be in the public’s interest to let them do so.

(”How to Save Newspapers–and Why”, National Journal, Jun. 14; will rotate off site).

Antitrust law trips up pillar-of-counterculture-journalism Village Voice Media, cont’d: “San Francisco Superior Court Judge Marla Miller raised the amount the Weekly [SF Weekly] must pay in damages to the Bay Guardian — from $6.3 million to $15.9 million — for undercutting its rival with below-cost ads.” (Meredith May, “Judge raises damages in case against SF Weekly”, San Francisco Chronicle, May 21; earlier; sample SF Weekly business-bashing piece, channeling plaintiff’s lawyers’ contentions in Parmalat case). “Predatory pricing — selling ads below cost with the goal of putting your competition out of business — is typically something alt weeklies cover, not something they get caught and fined for.” (Josh Feit, TheStranger.com (which competes with VVM’s Seattle Weekly), Mar. 5).

A hearing officer has recommended a reprimand for Boston judge and libel-suit winner Ernest B. Murphy over those “fascinatingly repellent” letters he sent to the publisher of the Boston Herald demanding a settlement of what proved a winning $2 million libel suit (Jessica Van Sack, “Public reprimand urged for Judge Murphy”, Boston Herald, Nov. 21; see Sept. 28, etc.). The operators of the Irish Pub & Inn in Atlantic City, New Jersey are suing the publishers of Philly magazine over their description of the tavern as a “dive bar”, and aren’t buying the magazine’s claim that the description was intended as complimentary. (Michael Klein, Philadelphia Inquirer “Inqlings”, Nov. 18). And a New York lower court judge has declined to order Google/Blogspot to divulge the identity of “Orthomom”, whom a Lawrence, N.Y. school board member had sought to sue on the theory that it was defamatory to have termed her a “bigot”. (Nicole Black, Nov. 18, with links to other blog coverage).

More: And Eugene Volokh (Nov. 27) posts today on a disturbing case from Canada in which a lawyer involved in the shutting down of “hate speech” websites proceeded to sue for defamation — successfully so far in the Ontario courts — over having been called (among other things) an “enemy of free speech”.

A month ago St. Louis Post-Dispatch columnist Bill McClellan wrote a less-than-respectful column reporting on the course of a controversial defamation suit filed by disbarred local attorney Amiel Cueto. Now Cueto has notified McClellan that he regards him as having acted as an “agent” of the defendant in the suit, the Madison-St. Clair Record, and he’s threatening him with compulsory process as a witness. McClellan, whom Overlawyered readers will remember as having been the target of appalling legal bullying from Metro-East plaintiff’s lawyers in the past, retains his cheerful tone in a new column. (Bill McClellan, “Amiel Cueto has a gift, or maybe he doesn’t”, St. Louis Post-Dispatch, Aug. 31; “Accusations, lawsuit make me nostalgic”, Sept. 30).

The underlying action arose from an item that ran in the U.S. Chamber-supported Madison-St. Clair Record on Jan. 30, 2006, alleging that Cueto, who served six years in prison on an obstruction of justice conviction, had been spied at a meeting of St. Clair County judges. “Once one of the most powerful lawyers in Southern Illinois, Cueto was said to have ‘owned’ fifteen of St. Clair County’s seventeen judges in the mid-1990s,” the column further asserted. Cueto sued the paper, in a hard-fought action currently in process. In other actions, as Ted noted Feb. 26, Cueto has sued the Illinois Civil Justice League and its political action committee over a campaign ad, and a local resident over a letter to the editor in the Belleville, Ill. News-Democrat (Malcolm Gay, “Power Broken”, Riverfront Times, Sept. 5; Ann Knef, “Amiel Cueto takes aim at ICJL”, Madison-St. Clair Record, Feb. 20; ICJL, Dec. 4, 2006).

Massachusetts Superior Court Judge Ernest B. Murphy is well known to readers of this site for winning a $2 million libel suit (upheld by the state’s high court) against the Boston Herald, which had published pieces portraying him as soft on crime and insensitive to victims. When the paper wired Murphy $3.4 million in June (the sum included interest), Legal Times’s Tony Mauro cited the episode as one of a string that had led the press to be newly wary of having to face off in court against judges (”Press Frets as More Judges Sue for Libel”, Jun. 22). And in July a state disciplinary panel filed misconduct charges against Judge Murphy for having sent the Herald’s publisher a “bring me a check and keep quiet” letter that media critic Dan Kennedy termed “fascinatingly repellent“.

Judge Murphy has maintained that because of the stories the Herald ran about him, he has suffered debilitating post-traumatic stress disorder [PTSD]. As of Aug. 1, he was on sick leave for this disorder, although Massachusetts Gov. Deval Patrick rejected his request “to retire early with a special judicial disability pension that would have netted him 75 percent of his salary”. Which makes it all the more surprising that a Herald reporter-photographer team would catch the judge looking relaxed and at ease over two days at the races in Saratoga Springs, N.Y., where he bet at the $50-minimum window, picnicked with his wife and chatted with other spectators. Call it one of those miracle recoveries (Jessica Van Sack, “Bay State judge plays ponies for two days at N.Y. track”, Boston Herald, Sept. 27).

Via Rossmiller, more on Judge Murphy’s libel suit:

Though [Judge] Murphy won his case against the Herald, he has not emerged unscathed. The Commission on Judicial Conduct filed charges last month with the Supreme Judicial Court alleging that Murphy sent letters to the Herald that constitute “willful misconduct which brings the judicial office into disrepute.”

Murphy sent the letters to Purcell after the verdict, requesting a private meeting to discuss getting more money from the tabloid, according to the commission.

“You will bring to that meeting a cashiers check, payable to me, in the sum of $3,260,000,” wrote Murphy in a handwritten letter on Superior Court stationery. “No check no meeting. You will give me that check and I shall put it in my pocket.”

In another letter, Murphy wrote, “It would be a mistake, Pat, to show this letter to anyone other than the gentleman whose authorized signature will be affixed to the check in question. In fact, a BIG mistake.” A date has not yet been set for Murphy’s hearing on the misconduct charges.

Earlier this month, Governor Deval Patrick rejected an appeal by Murphy to retire early with a lucrative disability pension based on his contention that he has post-traumatic stress disorder as a result of the defamation case.

Murphy, not satisfied with his $3.41 million collection from the Boston Herald, has sued the Herald’s insurance carrier for $6.8 million for alleged bad faith. (Shelley Murphy, “Judge seeks $6.8m from Herald’s insurer”, Boston Globe, Aug. 18). Earlier: Jul. 15, May 11, Dec. 23, 2005, etc.

Now it’s Australia where food writers are getting nervous: the country’s High Court decided that Sydney Morning Herald critic Matthew Evans had defamed the Coco Roco restaurant in 2003 in a review:

The flavours of the limoncello oysters “jangled like a car crash”, he wrote, while the sherry-scented apricot white sauce on a steak was a “wretched garnish”.

Overall, he concluded that “more than half the dishes I’ve tried at Coco Roco are simply unpalatable”.

The ruling does not however preclude the defendants from offering defenses as proceedings continue in the case. (Deborah Cameron and Helen Westerman, “Ruling leaves sour taste for food critics”, Melbourne Age, Jun. 15; Barbara McMahon, “Review of meal that ‘jangled like a car crash’ deemed defamatory”, The Guardian, Jun. 16). Eoin O’Dell at the Irish law site Cearta.ie has assembled a substantial links list on this and earlier restaurant-review lawsuits from various countries (Jun. 16). Previously at this site: Mar. 10, etc.

Peter Lattman reported on Gary Farmer, a Florida judge who decided to try his hand at humorous legal writing in the course of deciding a lawsuit. Discussion of the opinion around the internet (see, e.g., Orin Kerr) focused on the propriety of a judge turning his job into a forum for self-promotion. Regardless of whether judges are allowed to have fun with their work, in my opinion, it wasn’t very funny at all. But perhaps I had lost my sense of humor after reading the ridiculous nature of the lawsuit.

The case was brought by the owners of the championship racehorse Funny Cide against the publishers of the Miami Herald, for a newspaper report that the horse’s jockey had used an illegal device to help him win the Kentucky Derby. The report was false, and the paper ran a correction. But that wasn’t good enough for the owners of Funny Cide; they sued in May 2005.

Their complaint? Although Funny Cide won the Preakness, the false report caused the horse to lose the Belmont Stakes, and hence miss out on the Triple Crown, which would have been worth large sums of money.

Their theory? Funny Cide’s jockey was so motivated to disprove the false report that he worked the horse too hard in the Preakness, which tired the horse out so it couldn’t win the Belmont three weeks later.

As you can imagine, this theory is (to use the technical legal term) loony. Even if they had a snowball’s chance of proving causation — as if there were no other possible reason a horse might lose a race? — they would also have to show that it was foreseeable by the Herald that their report would cause this to happen. This they obviously could not do, and so the court granted summary judgment to the newspaper. What makes this case especially egregious, though, is that the humorous opinion being discussed above wasn’t written by the trial court; Gary Farmer is an appellate judge. That’s correct: the horse’s owners appealed the dismissal of their frivolous lawsuit.

In case you were wondering, Bruce Rogow was listed as one of the attorneys for the horse’s owners.

Mr. Rogow has taught Civil Procedure, Federal Jurisdiction, Constitutional Law, Appellate Practice, Criminal Law and Legal Ethics.

Pajamas Media’s Martin Solomon reports on the Islamic Society of Boston’s extensive use of litigation to silence critics, ranging from moderate Muslims to a local interfaith group to local reporters and newspapers, who question whether the organization has ties to Islamic radicals. The David Project has a set of links to court documents. Daniel Pipes has also been covering the matter. ISB’s attorney is Howard Cooper, who recently won affirmance of a $2.1 million verdict against the Boston Herald, which had criticized a local judge (May 11). See also Jeff Jacoby, “New questions for the ISB”, Boston Globe, Apr. 25. Earlier on Overlawyered: Aug. 27 (ISB subpoenas talk show); May 19; Jan. 5, 2006.

“Massachusetts’ highest court on Monday upheld a $2 million verdict against the Boston Herald won by a state Superior Court judge who said the newspaper libelously depicted him as soft on crime and insensitive to the suffering of a 14-year-old rape victim.” Better be careful what you say about Judge Ernest Murphy in future. (AP coverage; Romenesko first, second posts; Dan Kennedy, Media Nation; Childs). Earlier coverage: Dec. 8 and Dec. 23, 2005.

The Milwaukee Journal-Sentinel explains that it’s discontinuing the practice because stepping onto porches and placing the paper behind the screen is just too dangerous, at least legally:

…A more critical reason for the new delivery policy is to insure distributor safety and to protect our subscribers from liability issues. Should an Independent News Distributor become injured while delivering on your property, you, as the homeowner are legally liable for damages. One of the major reasons Journal Sentinel is moving to doorstep delivery is to avoid this situation for both our customers and our distributors. …

Sincerely,

Sheila Davidson
[Vice President/Circulation]

(Romenesko, Apr. 23).

Defamation-suit Hall of Fame: a New Zealand prisoner serving a life sentence for the notoriously brutal murder of a 17-year-old girl has won cash compensation from newspapers which described him as a rapist. “Andrew Ronald MacMillan was granted legal aid - a government- funded scheme which allows people who cannot afford legal representation to get a lawyer - to sue Fairfax Media, publishers of New Zealand newspapers The Press and Dominion Post, for defamation and punitive damages.” The victim, whose body was discovered nearly naked, had suffered violence in intimate places, but authorities never charged MacMillan with rape in the case. (”Murderer gets compensation from paper over rape allegation”, DPA/MonstersAndCritics.com, Apr. 10). Two and a half years ago MacMillan won $1200 for hurt feelings and humiliation because the Corrections Department had not shown him the text of a letter accusing him of misbehavior while on prison furlough. (Bridget Carter, “‘Hurt feelings’ win killer $1200 compensation”, New Zealand Herald, Aug. 23, 2004).

New York Times legal correspondent Adam Liptak has a good article summing up the state of play on legal actions arising from unkind reviews of eateries, including several cases familiar to our readers (Feb. 27, Philadelphia; Feb. 10, Belfast; Jan. 3, 2006, Dallas)(”Serving You Tonight Will Be Our Lawyer”, Mar. 7). More: PhilaFoodie.

That’s Romenesko’s summary of this news item about a lawsuit by Chops Restaurant against food critic Craig LaBan over a review published in the city’s best-known newspaper, which the item rudely refers to as the InqWaster (Dan Gross, “Chops sues LaBan”, Philadelphia Daily News, Feb. 21). More on lawsuits over restaurant reviews: Jan. 3, 2006 (Dallas); Feb. 10, 2007 (Belfast).

“The Irish News must pay £25,000 plus court costs to a west Belfast Italian restaurant owner after a jury found a food critic’s review to be defamatory.” (”£25K for food critic’s poison pen”, BBC, Feb. 8). Journalist Caroline Workman, in a review of Ciaran Convery’s restaurant Goodfellas, had “described his staff as unhelpful, his cola as flat, and his chicken marsala ’so sweet as to be inedible’”. Guardian restaurant critic Matthew Norman described the jury verdict as “very worrying news”: “You really cannot overstate the imbecility of a libel jury: what we really need now is a sustained campaign against our ludicrous libel laws.” (Maev Kennedy, “Critics bite back after restaurant reviewer sued for calling chicken too sweet”, Guardian, Feb. 10).