freelance reporter flew to Boston to sit for a deposition in a lawsuit revived by two emails he sent to check out a tip about a man by the name of Donald C. Arthur. A retired surgeon general of the U.S. Navy, Arthur was the subject of an allegedly defamatory story the reporter wrote in 2013. Arthur was admitted to the Massachusetts bar last November and is now an associate at Beauregard, Burke & Franco, the New Bedford firm he had hired a year earlier to renew his defamation claim against reporter Michael Volpe. Writing for the online outlet Crime Magazine (now defunct), Volpe had expanded on previous reporting by the Philadelphia Inquirer and Chicago Tribune about controversies related to Arthur’s academic credentials and service record that had arisen late in Arthur’s tenure as Navy surgeon general. Arthur initially sued Volpe and a number of other defendants in Suffolk Superior Court within months of the publication of Volpe’s article, “The Great Pretender,” on March 28, 2013. But Volpe, acting pro se, successfully prosecuted a motion to dismiss on personal jurisdiction grounds. Judge Shannon Frison found that Volpe had not purposefully availed himself of the forum state, as there was “no indication that Volpe deliberately directed his message at an audience in Massachusetts or meant to harm Arthur specifically in Massachusetts as
opposed to anywhere else.”
About 18 months later, Volpe received an anonymous tip that Arthur was enrolled in law school at the University of Massachusetts-Dartmouth. That piqued his interest, given that a J.D. was one of the degrees Arthur had claimed to have earned. According to Arthur, he had graduated from LaSalle University in Louisiana back in 1993, three years before the notorious diploma mill was raided by the FBI. But in his email to two deans and a student at UMass-Dartmouth, Volpe included links to his story about Arthur. That altered the personal jurisdiction equation, Arthur and his attorneys believed. They filed a new complaint in Barnstable Superior Court in May 2016, couching the email messages as republications of the original defamatory story, as well as tortious acts in their own right. In a May 8, 2017, decision, Judge Gary A. Nickerson agreed that the pleaded facts had “changed substantially” since Frison’s decision and were “sufficient to establish the requisite connection to in-state activities and purposeful availment.” To Volpe, Nickerson’s ruling is “absurd” and an infringement on his rights as a member of the free press. He is unsure how the judge would have suggested he check out the tip, other than the method he used.
Volpe’s concern is valid, says First Amendment
attorney Jeffrey J. Pyle of Boston. “Many journalists would be surprised to learn they could be sued in a far-off state just because they sent a couple emails there to confirm facts for a story,” the Prince, Lobel, Tye partner says. Lawyers in Prince Lobel’s media practice advise journalists to be careful about repeating defamatory statements to potential sources in the course of newsgathering, Pyle notes. “Defamation lawsuits based solely on such statements are rare, but they can happen,” he says. Journalists often face the challenge of trying to investigate facts or get a comment for a story without repeating another person’s potentially defamatory statement, Pyle says. For example, if a prominent media executive is accused of sexual misconduct, journalists may seek reaction from the executive’s colleagues and in the process repeat a statement the executive will later claim is false, he says.
Fellow First Amendment lawyer Jonathan M.
Albano agrees that a reporter can, in theory, defame a libel plaintiff by speaking to a source. But he says it’s rare that damage will result, unless the source takes action based on something the journalist has said. In a perverse way, Nickerson’s ruling premised on a mere two emails sent to Massachusetts may provide a disincentive to journalists confirming facts, Pyle theorizes. In a libel case involving a public official or public figure like Arthur, the plaintiff has to prove knowing falsity or reckless disregard of the truth by clear and convincing evidence, Pyle notes. Simply failing to check whether defamatory facts are true does not meet that standard, as long as doubts about the veracity of the information have not already been raised, he says. Following the logic of Nickerson’s decision, by engaging in interstate communications, the reporter is risking being hauled into court far from home and may be better off doing nothing. “We should want journalists to check their facts before publishing, though, even when the plaintiff is a public figure,” Pyle says. Pyle adds that the problem is all the greater for freelance or independent journalists like Volpe, who are not backed by large organizations able to bear the costs. Albano cautions, however, that it is too soon to know whether Arthur’s claim will succeed. “The personal jurisdiction question really tells us nothing about whether defamation occurred and whether the statements made to school officials were defamatory,” the Morgan, Lewis & Bockius lawyer says. Of the new information in Volpe’s article, perhaps the most problematic relates to Dr. Eric Gluck, who was two years behind Arthur at the College of Dentistry and Medicine in New Jersey in the late 1970s. Based on interviews and documents he had obtained, Volpe wrote that Arthur attempted to have Gluck committed to a military psychiatric facility and forced him to take a six-month supply of vaccinations all at once, which Gluck believes contributed to him developing multiple sclerosis a few months later. In his suit, Arthur maintains those claims are “unverified and unequivocally not true,” adding that he has never even met Gluck, much less forced him to do anything. Volpe also quotes extensively Dr. Frederick M. “Skip” Burkle, a Navy reservist called to serve in Operation Desert Shield, who clashed with Arthur and paints a grim picture of Arthur’s service — or lack thereof — at a Saudi Arabian medical base in February 1991. Volpe had “obvious reason to doubt Dr. Burkle’s reliability,” given that Burkle “had exhibited public animosity towards Dr. Arthur in a newspaper article years earlier,” Arthur’s complaint adds. Arthur’s complaint is also premised on what he says are Volpe’s slipshod attempts to offer him a chance to respond to his findings prior to publication. Volpe says the phone number he found online for Arthur turned out to be a fax line. He compiled a list of questions and sent them by fax but received no reply. Arthur’s attorneys declined to comment for this story.