Judge rules rocker can't sue Herald over articles written about lawsuit

By Joe Dwinell
Boston Herald

In what is being hailed as a victory for the First Amendment, a Superior Court judge dismissed claims today brought by Tom Scholz, the founder of the band Boston, against the Herald over articles reporting on the rocker's lawsuit against the paper.

Scholz is suing the Herald over three 2007 Inside Track columns that he claims imply he drove fellow band member Brad Delp to commit suicide in March 2007. In May of 2010, the Herald published several articles reporting on Scholz's lawsuit and the parties' respective litigation positions in it. Scholz claimed that the Herald's May 2010 articles had defamed him and caused him emotional distress.

Massachusetts Superior Court Judge John C. Cratsley previously ruled that the Herald's articles accurately reported on the litigation. After the case was reviewed by an Appeals Court judge, Scholz argued that the articles were "unfair" and published with "malice."

However, after review, Judge Cratsley reiterated that the articles were not only accurate, but that Scholz had "come up empty handed" in presenting evidence that the articles were unfair or published for a reason other than to inform the public.

One of the country's preeminent First Amendment lawyers said that the ruling validates the fundamental protections provided by the U.S. Constitution.

"It's a complete victory based on deeply rooted principles of English and American law," said attorney Floyd Abrams.

"It's a privilege of the press to publish a fair account of just about anything that happens in court," Abrams added. "Without that right, the public would never know what goes on in court."

He said the decision "vindicates the journalism of the Herald."

"This is a victory not only for the Herald, but more broadly for the public and its right to be informed of what occurs in its courts," said attorney Joseph Lipchitz, counsel for the Herald. "When someone files a public lawsuit and then uses his representatives to publicize it, he cannot then try to chill the media from fulfilling their First Amendment responsibility to cover that lawsuit by filing defamation claims."

The Herald placed a call to Scholz's lawyer, Nicholas Carter, which was not immediately returned.

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