Damn the Press, But Keep It Free

In the United States, editorial decisions are supposed to be made in the newsroom, not in the courtroom. That’s why the First Amendment is there—and it should protect good journalism as well as bad. But three recent libel cases in Massachusetts are chipping away at that notion.

Brad Delp planned his death carefully, because the last thing he wanted was to create a scene. He chose a night, March 8, 2007, when he was alone with his cat at his home in the quiet bedroom community of Atkinson, New Hampshire, just over the border from Haverhill. He penned a note warning visitors that there might still be unhealthy levels of carbon monoxide in the air, and taped it at the top of the stairs. He lifted the cat, Floppy, and tenderly placed her outside the door of the master bedroom. He paper-clipped a second note to the neck of his shirt: “Mr. Brad Delp. J’ai une ame solitaire. I am a lonely soul.” The note instructed rescuers how to contact his fiancée, Pamela Sullivan. “Unfortunately, she is totally unaware of what I have done,” he wrote. “I take complete and sole responsibility for my present situation.”

Then Brad Delp—lead singer of the band Boston, a group whose first album in 1976 had sold like no debut ever before, whose iconic “More Than a Feeling” became a pop-rock anthem—carried two charcoal grills into his upstairs bathroom. He arranged a pillow on the floor, sealed the room with duct tape, lit the grills, and lay down to sleep.

Eight days later, in an “Inside Track” column quoting Brad’s ex-wife, Micki Delp, the Boston Herald purported to tell its readers why. “Pal’s Snub Made Delp Do It: Boston Rocker’s Ex-Wife Speaks,” the Herald‘s headline blared. According to Micki Delp, “Brad was upset over the lingering bad feelings from the ugly breakup of the band Boston over 20 years ago” and “was constantly caught in the middle of the warring factions,” columnists Gayle Fee and Laura Raposa asserted. The “last straw” came when the band, led by Tom Scholz, dismissed one of Brad’s closest friends from the upcoming summer tour. “No one can possibly understand the pressures he was under,” the Herald quoted Micki as saying. “It got to the point where he just couldn’t do it anymore.”

Tom Scholz says that’s a bunch of rot—and powerful evidence has come to light since 2007 to suggest he may be right. Brad had told others that he was looking forward to the tour. None of his several suicide notes mentions Scholz or the band. Moreover, Brad had struggled with depression for years—and, only nine days before his death, he was mortified by the revelation that he had planted a spy camera in the bedroom of his fiancée’s sister. As Scholz sees it, to blame him for the death of his longtime pal and musical collaborator is defamation of the most vicious kind.

Should the Herald be punished merely for printing the speculation? No, ruled a Superior Court judge. Because “Delp’s final mental state is truly unknowable,” the Herald cannot be held responsible, even if Micki’s story proves to be false. That’s our First Amendment at work: As the Supreme Court held half a century ago, a free and uninhibited press is manifest in the Constitution, and it’s the mainstay of our culture. Under the First Amendment, “there is no such thing as a false idea.” Whether good, bad, or just plain ugly, expressions of opinion—even those we virulently disagree with—are protected in the United States. Case closed, right?

Not even close. Seven years and more than 550 docket filings later, 13 lawyers are still arguing about why a troubled musician decided to end his life. And this fall, the state’s highest court may decide whether, because of the way it reported Micki’s thoughts on the subject, the Herald should be held liable for any harm Micki’s opinions might have caused to Scholz’s reputation. While teasing out the cause of Delp’s suicide may sound like a bizarre endeavor, if the courts decide that the Herald‘s headline—“Pal’s Snub Made Brad Do It”—was provably untrue, then editors around the country will have a lot to think about the next time they get a scoop. In fact, this local case could have far-reaching effects on how news is reported in America.

As an attorney who specializes in media law, I’ve found that we love the First Amendment when it suits us, but loathe it when it bites us on the ass. We love flag waving, but hate flag burning. Yes to civil rights, no to Nazi marches. It’s precisely because of our disdain for other people’s opinions that the First Amendment protects deeply unpopular views. Sure, the Herald should have paused, soberly, and thought better of printing tabloid gossip in the wake of a man’s suicide, but do we want the reporting of even misinformed opinions to be inhibited because someone was offended by one?

A recent Massachusetts case reveals just how little slack juries are willing to give the “uninhibited, robust, and wide-open” press. The same month that Tom Scholz filed his case, an activist named Joanna Marinova sued the Herald for writing, in a piece ostensibly about prison security, that she had been “bagged” and “written up for engaging in prohibited ‘sexual acts’” with a “killer con” at Old Colony Correctional Center. (The acts in question were a kiss on the hand and a touch on the knee; Marinova’s boyfriend was the one charged, not Marinova; and the charge was dismissed, which the Herald didn’t mention.) This past March, a jury ordered the Herald to pay Marinova $563,000 for her reputational damage and emotional distress. The Herald has appealed.

Also in March, a judge refused to dismiss a libel claim brought against the New York Post for its infamous “Bag Men” headline, pasted above a front-page photo of 16-year-old Revere High student Salaheddin Barhoum and his track coach, 24-year-old Yassine Zaimi— Boston Marathon fans who had the misfortune to be caught on security cameras holding a backpack and duffel bag near the finish line last year. The article clarified that federal officials were merely seeking to identify and talk to the men, who were not considered suspects in the bombings—but those details may have been lost on the casual reader. The judge in the case declared that the Post’s coverage may have been “accurate,” but it was not “fair” because it was sensationalized in such a way as to suggest that the two men were wrongdoers.

Let’s just get this out there: All of the above are examples of the worst kind of journalism—impulsive, sensational, and borderline misogynistic or racist. But we don’t need a First Amendment merely for when the press does things right. More frequently, we need the First Amendment to protect bad journalism. If the court can hammer the media for what it determines to be “unfair” or “sensationalistic,” then the press may fear legal retribution and avoid any real journalism at all. In other words, libel lawsuits like these—which attack some of our worst journalism—are chipping away at the same First Amendment protections that protect the best of the Fifth Estate.

When the Supreme Court says that it protects “uninhibited” speech, that should mean that the Post can be sensational. And when it says it protects “robust” speech, then the Herald can oversimplify to make a point (as it did in the Marinova story). And when it says that the First Amendment protects speech that is “wide open,” then the Herald can speculate about why Brad Delp killed himself.

In the United States, editorial decisions are supposed to be made in the newsroom, not in the courtroom. The last thing we want, in these times, is an inhibited, cramped, self-censoring press. By holding a newspaper responsible for defamation, even when it expresses opinions or accurately republishes newsworthy statements made by others, we can bid adieu to vigorous journalism—the backbone of our democracy.