The Massachusetts Supreme Court is hearing the Boston Herald’s appeal of a libel lawsuit it lost several years ago. Here’s the crux of the matter:

Of the six justices who listened to oral arguments and questioned lawyers for both sides, only Chief Justice Margaret H. Marshall , who is married to a nationally prominent journalist, seemed sympathetic to Sanford’s argument that the courts should not impinge on the ability of the press to criticize public figures.

“It seems to me that what the prosecutors were complaining about, in criticizing Judge Murphy, was a bias in favor of defendants and against plaintiffs,” Marshall said, adding that “this goes to the heart of what the judge should be most concerned about.”

The mere presence of factual errors in a story does not prove malice on the part of the media, she said. Actual malice must be present for there to be a libel finding against a public figure.

If the state Supreme Court finds for the plaintiff, this case will surely go to federal courts. The U.S. Supreme Court set the burden of libel pretty high for public figures in Sullivan v. New York Times — I can’t imagine they’d agree that the Boston Herald’s reporting — however flawed — rises to the level of actual malice.

I think the issue here — just with the recent libel verdict in Illinois — is that the affronted party is a judge. Jurists seem to be the only public figures for whom the burden of libel is less than actual malice.