“The Massachusetts Commission on Judicial Conduct recommended a $25,000 fine, a 30-day suspension without pay and a public censure for state court Judge Ernest B. Murphy for sending improper letters to Boston Herald publisher Patrick J. Purcell that demanded settlement of Murphy’s libel lawsuit against the newspaper.” (Sheri Qualters, “Suspension, Fine Recommended for Boston Judge Who Sent Improper Letters to Newspaper”, National Law Journal, Apr. 2). For more on Judge Murphy’s “fascinatingly repellent” letters and their “‘Surrender, Dorothy’ flavor”, see Dec. 23 and Dec. 8, 2005.
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There’s no comma in “Surrender Dorothy.” See here for why, and here for the original.
Given Judge Ernest Murphy’s recent bullying and overreaching judicial misconduct, it is hard to believe that the Boston Herald’s earlier reporting on Murphy, which gave rise to the huge libel award against it, was in fact recklessly libelous, as the Massachusetts Supreme Judicial Court erroneously ruled. The libel verdict against the Herald should have been reversed.
Murphy’s recent conduct seems to be in character with the bullying and overreaching alleged earlier by the Herald (that doesn’t make the earlier allegations true, but it makes them look anything but reckless).
Disturbingly, the Massachusetts Supreme Judicial Court upheld the huge libel verdict against the Herald based on its transparent belief that any news reporting that depicted a state judge like Murphy badly must almost by definition have been reckless toward the risk of falsity.
That turns the First Amendment upside down. That notion that criticism of state officials is reckless and suspect is not only factually false, but also fundamentally inimical towards the First Amendment, the public’s right to criticize perceived wrongdoing by government officials, and society’s compelling interest in robust and uninhibited debate on matters of public concern. (See New York Times v. Sullivan (1964)).
The Massachusetts Supreme Court’s attempt to chill criticism of Massachusetts state judges was fundamentally misguided and, in the long run, self-defeating.
As the U.S. Supreme Court observed in Landmark Communications v. Virginia, 435 U.S. 829 (1978), speech cannot be punished simply “to protect the court as a mystical entity or the judges as individuals or as anointed priests set apart from the community and spared the criticism to which in a democracy other public servants are exposed.”
And as Justice Black observed in Bridges v. California, “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. An enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.”