Just saying: My 1st Amendment day in court
This personal story has been dredged from my memory banks by the recent spectacular defamation battle between Fox News and Dominion Voting Systems, which wound up in a $787.5 million settlement against Fox minutes before it was headed to opening arguments in a Delaware courtroom.
I for one was looking forward to Fox News founder Rupert Murdoch on the witness stand followed perhaps by the puerile Tucker Carlson to undergo questioning about how the network and its star talking heads spewed lies about the 2020 election knowing full well they were almost entirely false.
A good place to start my tale of testifying in court on the 1st Amendment lawsuit is with my buddy Sherman and I sitting at the bar at Sam Rupert’s, a friendly establishment on the mountain road to the Sugarbush ski area in Vermont.
I rarely, if ever, saw anyone eating food at Sam Rupert’s, but Sherman, another newspaper guy, and I would occasionally make a bombing run to the Mad River Valley, where Sugarbush lay, to check old drinking stomping grounds.
Sam and Rupert, the owner’s two black labs, were, as usual, languidly patrolling the premises.
It was around 6 p.m., so like the rest of Vermont, we were watching Mickey Gallagher, the venerable white-haired news anchor of the CBS-TV affiliate in Burlington, run through his sequence of news stories, none of which was too minuscule to get air time.
So it was an amazement, probably like no other in my life, to hear Gallagher announce to viewers that the paper Sherman and I worked for, the Barre-Montpelier Times-Argus, along with one of its reporters, James Bornemeier, was being sued for libel by a Montpelier cop. I can’t recall my precise reaction, but I’m pretty sure we ordered another round of red-capped Molsons.
I wasn’t nearly so cavalier over the next two years as my day in court grew near. There were many nights where I obsessed over my predicament to the point that I had to teach myself to shut down that part of my brain that was firing up over the topic.
For those of you who followed the coverage of the Fox/Dominon case, the foundational legal precedent was the 1964 Times v. Sullivan Supreme Court ruling that lies at the heart of the media’s 1st Amendment right to write stories, even if they contain inadvertent errors, in order to have vigorous public debate about contentious issues. That ruling held that only if the media knowingly published false or defamatory material could it be held accountable. The key phrase is publishing with “actual malice.”
My case had to do with a playful incident at what was then Vermont College, a women’s school on a pretty campus on a hill overlooking downtown Montpelier. It was during that brief time when “streaking” came into vogue — taking off your clothes and running around naked in public in groups of like-minded streakers.
Long story short, the Montpelier cops obtained some photographs of some delirious au naturel female students. On my daily visit to City Hall to check in with the city manager, the public works folks and the cops, I was shown the rather tame photos. And wrote a story.
Conveniently, I can’t specifically recall where I made my mistake, but one of the cops felt I had implied that he had mishandled the photographs, although they never saw the light of day. He thought I had libeled him and found a notoriously litigious lawyer to take the case.
It took two years to come to trial, but there I was, on the stand, in the courthouse around the corner from my apartment, undergoing examination. It didn’t take very long, and I told what I had done and written, and then my long-dreaded courtroom episode was history.
I took my seat near the newspaper’s publisher, who hung out at his other newspaper in Rutland, Vermont, and whom I barely knew. A taciturn man, he gave me a sort of “Attaboy” look and we waited.
The judge didn’t waste any time. He began his short address to the court and jury: A “directed verdict” of not guilty, citing the lack of actual malice. One of my Times-Argus colleagues wrote the story and my brief journey through the justice system was over.
Many conservatives, and some Supreme Court justices, think that Times v. Sullivan sets too high a bar for the media to be held accountable and should be re-litigated.
I think the bar is at exactly the right height.
