Reporter Who Made Up AWOL Story Has History Of Libeling GOP Candidates

Walter V. Robinson is the Boston Globe reporter who originally reported the Bush AWOL story based largely on misrepresenting the casual remarks of Brig. Gen. Turnipseed. He has a history of such things, apparently. Here is a court decision upholding a libel suit against him, brought by a Republican Candidate he slandered in one of his stories:

John R. Lakian v. Globe Newspaper Company & another n1

n1 Walter V. Robinson.

PRIOR HISTORY: [***1]

Norfolk.

Civil action commenced in the Superior Court Department on August 26, 1982.

The case was tried before George Jacobs, J.

The Supreme Judicial Court granted a request for direct appellate review.

DISPOSITION: Judgment affirmed.

HEADNOTES: Libel and Slander. Damages, Libel, Nominal damages.

SYLLABUS: A "public figure" plaintiff in a libel action, who accepted submission of the case to the jury on the basis that he would recover nominal damages only if they found that he had sustained an actual injury, thereby waived the benefit of any common law presumption of actual injury that would require the award of nominal damages to such a plaintiff on proof limited to falsity, defamation and actual malice. [382-384]

An appeal was inappropriate where the sole issue was a libel plaintiff's entitlement to nominal damages. [384]

COUNSEL: Norman Ray Grutman of New York (Jewel H. Grutman of New York & Charles W. Morse, Jr., with him) for the plaintiff.

Francis H. Fox (Jonathan M. Albano with him) for the defendant.

JUDGES: Hennessey, C.J., Wilkins, Nolan, Lynch, & O'Connor, JJ.

OPINIONBY: WILKINS

OPINION: [*379] [**1046] On August 18, 1982, the defendant Globe [***2] Newspaper Company (Globe) published an article, written by the defendant Walter V. Robinson, concerning John R. Lakian, a candidate for the Republican nomination for Governor in the September, 1982, primary election. The article stated that "inquiry into Lakian's background found what appears to be a pattern of discrepancies between what he says and what the [**1047] records show about his upbringing, schooling, military service and business career." The article continued, listing items in [*380] support of this conclusion, reciting records apparently contradicting certain of Lakian's assertions, and quoting or summarizing statements made by Lakian to the defendant Robinson in the course of tape-recorded interviews. Eight days later Lakian commenced this action, which for our purposes may be treated solely as one for libel. n2

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n2 The complaint as finally amended also alleged counts based on false light invasion of privacy and intentional infliction of emotional distress. The jury found for the defendants on these two theories, and no question involving those counts is before us.

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The jury returned a special verdict on the libel count. They answered that Lakian did not prove the gist of the article was false and defamatory, that five paragraphs or parts of the fifty-five part article were false, and that Lakian had proved that three of those were defamatory n3 and published with the defendants' knowledge of their falsity or while having serious doubts about their truth. n4 The jury further answered "-0-" to the question: "What amount of money would fairly and reasonably compensate the plaintiff for any actual injury he has proved [*381] he has suffered as a proximate result of the publication of the portion(s) identified in your answer [to the previous question, that is, identified as defamatory and published with actual malice]?"

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n3 Each of the false, defamatory paragraphs related to Lakian's alleged misrepresentations concerning the annual income of his investment management firm. These paragraphs were:

"A month ago, Lakian told The Globe that his investment management firm generated annual fees of between $ 4 million and $ 5 million. Pressed on that point this week, he conceded that those fees last year may have been under $ 3 million."

"Just last month, Lakian told The Globe that his firm, Fort Hill Investors Management Corp., earned fees of $ 4 million to $ 5 million a year."

"Lakian, pressed on that point this week after a Globe review of US Securities and Exchange Commission documents showed that his fee schedules were lower than he had stated, acknowledged that those figures were too high. He initially said a more correct range would be $ 2.5 million to $ 4 million. Later, he said that $ 2 million to $ 3.3 million 'would be a better bet.'" [***4]

n4 The Supreme Court of the United States has held that a public official who seeks to recover significant damages in a libel action must by clear and convincing evidence prove that the statement was published with "actual malice," that is, "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 285-286 (1964). Cf. Curtis Publishing Co. v. Butts, 388 U.S. 130, 162-165 (1966) (Warren, C.J., concurring) (extended to public figure).

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The trial judge authorized entry of a judgment declaring that Lakian should recover nothing, dismissing each count of the amended complaint, and awarding the defendants their statutory ("token") costs under G. L. c. 261, § 23 (1984 ed.), and no discretionary costs. Lakian has appealed contending that, in response to the jury's special verdict, the judge was bound to enter a judgment on the libel count awarding him nominal damages and costs. We granted Lakian's application for direct appellate review and now affirm the judgment.

Lakian's argument is that, once [***5] the jury found that the defendants had published false, defamatory statements with knowledge of their falsity or while having serious doubts about their truth, he was entitled to an award of nominal damages as a matter of law. This argument assumes that, under the common law of the Commonwealth, a libel plaintiff who proves a publication to be false, defamatory, and made with malice is at least entitled to nominal damages and further assumes that constitutional rights of free speech and free press do not forbid an award of nominal damages to a public figure plaintiff such as Lakian.

The common law recognized liability for libel from the publication of a false statement which tended "to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community." Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853 (1975). See Ingalls v. [**1048] Hastings & Sons Publishing Co., 304 Mass. 31, 33 (1939). n5 Awards of substantial sums for presumed damages could be upheld at common law without proof that the [*382] libeled plaintiff had suffered any special harm or any injury to reputation. [***6] See Restatement (Second) of Torts § 621 comment a (1977); W.L. Prosser & W.P. Keeton, Torts § 112, at 795 (5th ed. 1984). See also Carey v. Piphus, 435 U.S. 247, 262 (1978). Further, there is authority requiring the award of at least nominal damages to any plaintiff who proves that he was defamed by the publication of false statements of fact. See Jackson v. Longcope, 394 Mass. 577, 579 (1985) ("[A] libel plaintiff who cannot prove damages is normally entitled to an award of nominal damages if he establishes that he was libeled . . ."); Godin v. Niebuhr, 236 Mass. 350, 353 (1920); W.L. Prosser & W.P. Keeton, Torts § 116A, at 845 (5th ed. 1984); Restatement (Second) of Torts § 620 (1977).

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n5 The common law simply assumed the existence of damage from the publication of a false statement that tended to hold the plaintiff up to scorn or contempt in the minds of a considerable and respectable segment of the community. W.L. Prosser & W.P. Keeton, Torts § 112, at 795 (5th ed. 1984). Damage was not an element of a cause of action for libel because the publication itself was an injury. Restatement of Torts § 569 comment c (1938); 2 F. Harper & F. James, Torts § 5.30, at 251 (2d ed. 1986).

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We need not decide in this case whether constitutional rights of free speech and free press restrict common law principles so as to forbid the award of nominal damages to a public figure plaintiff in the absence of proof of actual damages. n6 Lakian accepted as a premise for his right to a favorable judgment that he must prove that he sustained actual injury. He eschewed reliance on the presumption of actual injury which the common law recognized and which free press principles may or may not [*383] tolerate when the question is the award of nominal damages to a public figure libel plaintiff. Without objection, the judge instructed the jury that Lakian had to prove "that he suffered actual injury or harm as a proximate result of the publication in question." Again without objection, the judge told the jury that they could award nominal damages if they found that Lakian suffered some actual injury but that the proven actual injury was so insignificant as not to be reasonably measured in dollars. n7 Lakian did not request that the jury be advised that they must find nominal damages in such circumstances.

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n6 After Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), this court undertook to "reaffirm" controlling principles on the subject of damages in libel actions in Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 860-861 (1975), and made no mention of nominal damages. We did assert that a "plaintiff's recovery is limited to actual damages, which are compensatory for the wrong done by the defendant." Id. at 860. The Supreme Court of the United States has not decided whether the protection of First Amendment rights bars recovery of nominal damages against a newspaper by a public figure plaintiff who proves publication of a false, defamatory communication with actual malice but fails to prove that he sustained any actual injury. One Federal District Court judge has held that, as a matter of Federal constitutional law, nominal damages may not be recovered in such circumstances. Schiavone Constr. Co. v. Time, Inc., 646 F. Supp. 1511, 1518-1519 (D.N.J. 1986). See also Jackson v. Longcope, 394 Mass. 577, 580 (1985), stating that a libel-proof public figure plaintiff is not entitled to maintain an action solely for nominal damages. It has been suggested, however, that when a defendant has published a defamatory, false communication with actual malice, nominal damages are recoverable. Restatement (Second) of Torts § 620 comment c, at 319 (1977). See Buckley v. Littell, 539 F.2d 882, 897 (2d Cir. 1976), cert. denied, 429 U.S. 1062 (1977). [***8]

n7 The judge's words on nominal damages were: "If the plaintiff proves that a defendant is liable for damages, and that he has suffered some actual injury, but you conclude that there is no proof of serious harm to the plaintiff, and that the proven actual injury is so insignificant as not to be susceptible to reasonable translation into dollars, you may award nominal damages. The term 'nominal damages' means damages in name only, and can be represented, if awarded, by a token sum."

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Under these instructions, the jury answered "-0-" when asked what amount of money would compensate Lakian for any actual injury he had proved. This was the only question which could have provided a [**1049] jury determination that Lakian was entitled to nominal damages. Lakian did not object to the form of this question or to the absence of a question directly related to nominal damages. Because of the manner in which the case went to the jury, considering both the judge's charge and the form of the special verdict questions asked, the jury's answers justified the entry of a judgment dismissing the libel count. [***9] Lakian abandoned whatever presumption of actual injury survives today for a public figure libel plaintiff that would require the award of nominal damages on proof solely of falsity, defamation, and actual malice. He accepted submission of the case to the jury on the basis that he would obtain an award of nominal damages only if the jury found that he sustained actual injury. n8

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n8 There is from the jury's answer of "-0-" damages an implication, although it is not compelled, that the jury declined to award nominal damages because the defamatory, false portions of the Globe article caused no injury to Lakian when considered in connection with numerous other true but derogatory statements in the article. Just because the jury found various allegedly defamatory statements not proved to be false, we cannot properly assume that the jury found those statements to be true. It is, however, a reasonable prospect, in light of Lakian's recorded admissions of error and of documentary proof on other matters, that the jury found that the demonstration of Lakian's embellishment of the truth in other respects made the defamatory false statements of no effect on Lakian's reputation among readers of the article.

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[*384] In the circumstances, the failure to award nominal damages would not be reversible error, even if under Mass. R. Civ. P. 49 (a), 365 Mass. 812 (1974), Lakian was entitled to entry of such a judgment in the trial court. Cf. May v. Gillette Safety Razor Co., 18 Mass. App. Ct. 916 (1984) (personal injury action). Lakian could not properly receive statutory costs if he were to obtain a judgment in a nominal amount (see G. L. c. 261, § 4 [1984 ed.]), nor are there any discretionary costs he claims he would have had an opportunity to receive if he had received a nominal award. His sole goal is a judgment of vindication in a nominal amount. Such a judgment would add nothing, however, to what he has obtained from the answers the jury returned. Whatever vindication Lakian is entitled to claim comes from those answers. This appeal is inappropriate when the most Lakian could recover is $ 1.00. See Jackson v. Longcope, 394 Mass. 577, 580 (1985). To paraphrase our Jackson opinion, "we accept the principle that [a public figure libel plaintiff who has shown no actual injury] is not entitled to burden a defendant with [an appeal] in which the most favorable [***11] result the plaintiff could achieve is an award of nominal damages." Id.

Judgment affirmed.

Course Material for Media & Politics

Professor Susan E. Gallagher, UMASS Lowell

Flood the Zone With Innuendo: Walter V. Robinson's Approach to the News

In his long career as a political reporter at the Boston Globe, Walter V. Robinson has come to specialize in what fans of his work describe as resume deflation and critics denounce as character assassination. Robinson's forte, which he has pursued for over twenty years, is digging up discrepancies between what public figures say about themselves and what documentary records and/or other people say about their achievements. In some cases, as in his articles on apparent gaps in President George W. Bush's performance of his duties while serving in the Texas Air National Guard, Robinson has focused squarely on documentary records and factual accounts. In others, Robinson has strayed into the far more slippery terrain of psychological profiling. Thus, in front-page portraits of former vice president Al Gore, former Boston mayor Ray Flynn, civil rights leader Paul Parks, and historian Joseph Ellis, Robinson did not simply point out inconsistencies between claims that each of these men had made about himself and what each had actually done, he called in psychologists to speculate about their motivations and summarized the opinions of of vaguely defined sources rather than relaying what specific individuals actually said.

Though it might seem like a short step from showing that someone has lied to portraying that person as a liar, a review of Robinson's work over the years illustrates that this shift can transform the writing of a story into a profound abuse of power. That is, when Robinson's aim has not been to expose contradictions, but to promote particular judgments about specific individuals, his reporting exhibits precisely the characteristics that he attributes to his targets, namely, a tendency to embellish, exaggerate, and stretch the truth to suit his purpose. However, whereas Gore, Flynn, Parks, and Ellis had all, according to Robinson, twisted facts in the interest of self-promotion, Robinson engaged in what is usually seen as a much more egregious form of deception by misrepresenting other people's lives. It is, after all, hard to figure out who is harmed when public figures such as Gore, Ellis, Parks, and Flynn commit the sin of self-inflation, but Robinson's misleading reporting on both well-known and ordinary people has ended careers, ruined reputations, inflicted deep humiliation, and, at least in the case of clergy sex abuse victim Paul R. Edwards, the latest addition to Robinson's roster, brought a blameless man to the brink of suicide.

Robinson's demolition of Edwards, which ensued after Edwards charged Monsignor Michael Smith Foster, a powerful canon lawyer, with sexual misconduct, stands out both for its viciousness and for its magnitude: Robinson and his allies at the Globe have assaulted Edwards' character and credibility in over twenty inaccurate articles, and the paper's editors, reporters, and ombudsman have ignored repeated calls for corrections from victim advocacy groups. However, what is most significant about Robinson's blitzkrieg against Edwards is not its anomalous aspects, but how closely it resembles his previous attacks. Indeed, what becomes obvious when the Edwards story is placed against the backdrop of Robinson's campaigns against more prominent people is that most of his smears involve a few well-worn devices, a set of journalistic sleights of hand that allow him to undermine his targets without having to draw on any significant body of verifiable facts.

Unlike Globe intern and New York Times reporter Jason Blair, who gave his counterfeit articles an air of authenticity by inventing atmospheric details, or former Globe columnist Patricia Smith, who nearly won a Pulitzer for fabricating plausible people, or former Globe columnist Mike Barnicle, who attempted to enhance his hilarity by copying jokes from a book that he claimed he had not read, Robinson achieves his ends by omission, distortion, and repetition, techniques that slant the truth but make it difficult to catch him in an outright lie. Surveying Robinson's deployment of these techniques between the early 1980's, when a jury found that one of his articles contained a substantial amount of false information, and 2003, when he finally collected the Pulitzer Prize, does not explain why he has labored to destroy so many people. However, it does shed some light on the indifference to the truth that has historically plagued the Globe's internal culture, and it also shows how dangerous it can be when journalists attempt to score points by playing up preconceived ideas about other people's character flaws.

In 1982, in an early instance of what would eventually become his stock-in-trade, Robinson wrote an unflattering profile of John R. Lakian, a candidate for the Republican nomination in the Massachusetts gubernatorial primary. As he would in subsequent articles on other public figures, Robinson focused on contradictions between his target's self-portrayal and what documentary records seemed to indicate. Thus, in the Lakian profile, Robinson led with the line that his "inquiry into Lakian's background found what appears to be a pattern of discrepancies between what he says and what the records show about his upbringing, schooling, military service and business career."

Then, as evidenced in the jury verdict in John R. Lakian v. Globe Newspaper Company, Robinson proceeded to malign Lakian with a series of true statements, along with a handful of erroneous assertions. According to the verdict, Robinson's 55-paragraph profile of Lakian included five paragraphs of substantially false information and three of those paragraphs were defamatory. Despite this finding, Robinson and the Globe claimed victory because the jury elected not to award Lakian any damages. The jury opposed any compensation for Lakian because the "libelous" information contained in the story did not alter its overall drift, which the jurors found to be generally accurate.

With Friends like These...

While most journalists would probably concede from this outcome that they ought to show more regard for the truth, Robinson apparently concluded that his mistake in the Lakian case was that he had relied too heavily on actual records. In any event, when later reporting on seemingly similar discrepancies in the personal histories of Parks, Ellis, Gore, Flynn, and Edwards, Robinson seized a new tactic, one which simultaneously increased the credibility of his allegations against his subjects, but decreased his need for verification. Specifically, rather than focusing on written documents or quoting particular individuals, Robinson adopted a practice of taking down his targets by summarizing the thoughts and opinions of vaguely defined collections of "colleagues" and "friends."

http://www.catholicsandsurvivors.net/a_survey_of_walter_v.htm

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