Supreme court reverses libel ruling

The state Supreme Court has reversed a lower court ruling that a repeat criminal is "libel-proof" - in other words, that his reputation was already so bad that even false statements about him in a newspaper article couldn't make it much worse.

The ruling means Terry Thomas, in state prison for receiving stolen property, according to the prison website, can proceed with a libel lawsuit against The Telegraph of Nashua and against police officers from New Hampshire and Massachusetts who were quoted in the article.

Also named in the case was a professor of criminal justice at Northeastern University in Boston. She cannot be sued, because she was expressing an opinion, the court said in Tuesday's ruling.

The December 1999 article quoted the police in Hudson and in the Massachusetts towns of Needham, Weston and Foxboro, who said that Thomas was a suspect in more than 1,000 home burglaries and that his luck had run out after 25 years. The police described him as "cunning," a "career criminal," "very smooth" and "a tough character to hold on to."

The Telegraph had argued Thomas was libel-proof for two reasons: He already had such a lengthy criminal record that even false statements could not damage his reputation further, and any disputed statements in the article would not harm his reputation beyond the true statements in the same article.

The high court, which said it had never considered the issue before, said some plaintiffs could be found libel-proof for the first reason but only if they were already notorious because of widespread publicity about their crimes. In Thomas's case, there was no major reporting of his previous crimes, the court ruled.

"Criminal convictions alone are not enough to justify application of the doctrine," the court said.

The court declined to decide the second question, saying that Thomas had challenged more than half the statements in the article and that, while evidence supported some of them as true, the lower court had not decided whether others were false, statements of opinion or protected by the fair-reporting privilege.

It sent the case back to the lower court to decide those questions, with guidance on the underlying issues.

The Telegraph was most concerned about the court's finding that quoting the police and police records is not covered by the fair-reporting privilege, unless the statements are part of an official action. But the court appeared to define official actions and proceedings to include only an official announcement of an arrest or a court hearing or record.

The Telegraph had argued it could not be sued for quoting incorrect information from the police and police reports.

The media "have traditionally operated with the protection that, if that's what the police tell you in their official capacity, you should be safe in reporting it," Dave Solomon, Telegraph Publishing Co.'s vice president for news, said yesterday. "All the media in the state . . . have a stake in this."

The ruling also could have a chilling effect on the police, making them reluctant to discuss cases with reporters beyond the bare facts, he said.

Gregory Sullivan, a media lawyer who was not involved in the case, said the ruling means reporters can no longer safely quote police blotters or sworn statements made by police officers - at least not until they're filed in court, he said.

The court's definition of an official action makes no sense, he argued. And reporters should not be required to investigate whether every statement in a police report is accurate, he said.

"When that officer signs that affidavit back at the police station and puts it in the file, why is that not also an official action?" Sullivan said.

The trial judge had ruled that in general, the police can be sued for making false statements about someone if the statements did not contain "important information" for the news media. (next page »)