Legal Commentary

I'm in the midst of casebook angst, and probably one shouldn't blog in this state, but here goes.  I've been valiantly and perhaps quixotically trying to update the defamation chapter of my Mass Media Law casebook (co-authored with Franklin, Anderson, and (soon) Krotoszynski, Jr.) while cutting it by at least 30 pages.  I thought I had discovered the ultimate "casebook-worthy" case on the "fair and accurate report privilege" to update the chapter-- Howell v. Enterprise Publishing Co., L.L.C., decided by the Supreme Judicial Court of Massachusetts on January 7, 2010--but I'm beginning to think I was wrong.

Here's what makes the case initially appear to be casebook worthy.  It has a beautiful, treatise-like consideration of the fair and accurate report privilege as it applies in defamation law.  It is from the high court of an important state.  It hearkens back to and quotes an 1884 case written by Justice (then-Judge) Holmes. It cites and quotes the Restatement and an important libel treatise by Judge Robert Sack.  It clearly and concisely states the major rationales for the privilege.  It deals with (and therefore allows the professor to raise in class) several important, controversial issues regarding application of the privilege:  Can a publisher take advantage of the privilege when he relies on an anonymous source?  Must the publisher give attribution to the source to qualify for the privilege?  Should the privilege apply when the "official" action or proceeding is closed to the public and the publisher obtains the information from an unauthorized leak?  The case also discusses core doctrinal issues that would otherwise have to be addressed in notes.  For example, it discusses the fact that the fair and accurate report privilege can be lost through abuse, and it discusses what counts as "fair and accurate" reporting for purposes of the privilege.  It also has a great and very persuasive dissent.  It sounds wonderful, doesn't it?  

It is, in fact, absolutely wonderful until you try to reduce its down to the four or five pages required to fit within the confines of a casebook.   After hours and hours and hours of work, I've managed to reduce the case to 10 pages.  The facts of the case dealt with 11 different newspaper articles published by the Enterprise.  The facts of the case alone were at least 10 pages.  I've condensed and summarized as much as I thought I could get away with without destroying the sense of the case, but it is still TOO LONG.  And the discussion section of the case includes citations to every case on the fair and accurate report privilege ever decided (or so it seems to me at this point).  Even with dramatic cutting and ellipses, the discussion section is still TOO LONG.   Having invested what I now consider to be way too much time into editing one case, I have to ask myself whether this case was truly casebook worthy after all.  On the other hand, having invested this much time, I'm now vested in making it work.