Publication: Defenses for News Organizations
Defenses commonly available to news organizations
Where a news story is written in such a way that a plaintiff might be able to prove all five of the elements of a libel, the law nevertheless affords defenses to news organizations in certain circumstances. Among the most prominent are the "fair comment privilege," the "fair and accurate report privilege," and the "neutral report privilege." They are referred to as privileges because, where properly invoked, a news organization is "privileged" to print what otherwise would be an actionable libel.
Publication: Defenses for News Organizations
• Defenses commonly available to news organizations
Where a news story is written in such a way that a plaintiff might be able to prove all five of the elements of a libel, the law nevertheless affords defenses to news organizations in certain circumstances. Among the most prominent are the "fair comment privilege," the "fair and accurate report privilege," and the "neutral report privilege." They are referred to as privileges because, where properly invoked, a news organization is "privileged" to print what otherwise would be an actionable libel.
1. Fair comment
The fair comment (sometimes, "fair criticism") privilege long predates the opinion doctrine and continues, in most states, to exist as an independent matter of state law. The right of fair comment has been summarized as follows: "Everyone has a right to comment on matters of public interest and concern, provided they do so fairly and with an honest purpose. Such comments or criticism are not libelous, however severe in their terms, unless they are written maliciously. Thus it has been held that books, prints, pictures and statuary publicly exhibited, and the architecture of public buildings, and actors and exhibitors are all the legitimate subjects of newspapers' criticism, and such criticism fairly and honestly made is not libelous, however strong the terms of censure may be." (Hoeppner v. Dunkirk Pr. Co., 1930.)
Some states, such as Texas, have recognized the fair comment privilege as a matter of statutory law. The Texas statute protects reasonable and fair comment or criticism of the official acts of public officials and of other matters of public concern when published for general information.
Not all states recognize this privilege, and the specifics of its application vary among the states that do recognize it. But where an otherwise potentially libelous story is important to the public interest, careful consideration of whether this privilege might protect publication of the report may be appropriate.
2. Fair and accurate report
Under this privilege, a fair and accurate report of a public proceeding (such as a city council hearing) or document (such as a pleading filed in court) generally cannot be the basis of a libel suit.
Pursuant to the Texas fair report statute, for example, the privilege applies to "a fair, true and impartial account" of: (a) judicial proceedings; (b) an official proceeding to administer the law; (c) all executive and legislative proceedings; and (d) the proceedings of public meetings dealing with public purposes. New York and several other states likewise have created the privilege by statute along similar lines; in some states, the privilege is a product of judge-made law.
In order to qualify for the privilege in the states that recognize it, the account must be both substantially accurate and fair. This does not mean the newspaper is required to publish a verbatim account of an official proceeding or the full text of a government document, but any abridgement or synopsis must be substantially accurate and fairly portrayed. Where it applies, the privilege relieves a news organization of responsibility for determining the underlying truth of the statements made by the participants in these contexts, precisely because the very fact that the comments were made in an official proceeding is newsworthy regardless of whether the statements are actually true.
It bears emphasis, however, this privilege is limited to statements made in the contexts defined under state law, and it behooves practitioners to learn the particulars of the privilege in the states in which they practice journalism.
Statements made by government officials outside of official proceedings (e.g., statements by police or a prosecutor or an attorney on the courthouse steps), or in documents that have not been officially made part of the government record (e.g., a draft pleading provided by a lawyer that has not yet been filed with the court) may or may not qualify as privileged, depending on what state you are in and on the circumstances in which the statements are made. Some states only extend the privilege to such out of court statements if made by specified top officials. At least one New York trial court, however, has applied this fair report privilege to a news report based on information provided "off the record" by police sources.
In New York and some other states, court rules provide that the papers filed in matrimonial actions are sealed and thus not open to inspection by the general public. It is not clear whether the fair report privilege will attach to publication of the contents of such papers, which by court rule, or order of the judge, are to be kept confidential.
In one case where this very situation arose, the vice president of a company filed a libel suit in New York alleging that he was fired because a newspaper published his wife's charges of infidelity set forth in divorce proceedings. The newspaper responded that its report was a true and fair account of court proceedings. The New York Court of Appeals rejected that argument on grounds that the law makes details of marital cases secret because spatting spouses frequently make unfounded charges.
The lesson of this case is that information gleaned from "confidential" court documents might not be covered under the fair report privilege. In such a case, the paper will be put to the test of proving that it made a reasonable effort to determine the truth of the allegations before publishing them.
There are other "traps" to be aware of when relying on this privilege. For example, statements made on the floor of convention sessions or from speakers' platforms organized by private organizations may not be privileged under the fair report privilege. Strictly speaking, conventions of private organizations are not "public and official proceedings" even though they may be forums for discussions of public questions.
Similarly, while statements made by a governor in the course of executive proceedings have absolute privilege for the speaker (even if false or defamatory), the press' privilege to report all such statements is not always absolute. For example, after a civil rights march, George Wallace, then governor of Alabama, appeared on a television show and said some of the marchers were members of communist and communist-front organizations. He gave some names, which newspapers carried. Some libel suits resulted.
3. Neutral reportage
Once viewed as a promising development in the law likely to spread across most states, the advancement of the neutral report privilege has not proceeded as once anticipated. Many states have declined to consider whether the privilege should exist, while others have rejected it outright (most recently, in Pennsylvania in 2005). Where recognized, the neutral report privilege protects a fair, true and impartial account of newsworthy statements, regardless of whether the reporter knows or believes those statements to be true, if the statements have been made by prominent and typically responsible persons or organizations. The rationale is that some statements are newsworthy, and should receive public attention just because of who has made them.
Thus, for example, a news report concerning a statement by Michael Jordan concerning corruption in basketball, or by the NAACP regarding discrimination committed by a business, likely would be privileged as a neutral report, even if it should later turn out that Jordan or the NAACP were mistaken, since the mere leveling of charges by such prominent sources typically is of public concern.
Significantly, the privilege, where it exists, does not apply when the author of an article goes beyond reporting the fact the statements made and espouses or adopts the charges as the author's own.
California is one of the few states to recognize the neutral report privilege. There, the privilege is available when the plaintiff is a public figure, the defamatory statement is made by one who is a party to a public controversy and the publication is accurate and neutral. One California court applying the privilege found that a newspaper's account of an accusation that a police officer had improperly obtained a false confession to a crime from a person later released as innocent was not actionable where the newspaper also printed the officer's denial of the charge.
In some states, courts appear to have applied the principle without naming the privilege as such. In one 1997 case in Texas, the court held that a story that accurately reported that parents of school children had accused a schoolteacher of physically threatening and verbally abusing their children was substantially true regardless of whether the parents' allegations themselves were accurate. Similarly, in Illinois, a federal appeals court in 2004 held that several stories that accurately reported that a charitable organization was the target of a federal investigation into terrorism funding were not actionable because the fact that the organization was under investigation was true, regardless of whether it was actually guilty of funding terrorism.
New York state courts do not recognize a privilege for neutral reportage, though a federal court in New York has actually found a neutral reportage privilege grounded in the U.S. Constitution. As the federal court described the neutral report privilege in that case, "when a responsible, prominent organization ... makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity." (Edwards v. National Audubon Society, 1977.)
• Summary of practical points
Although every AP story is expected to be accurate and fair, stories that involve negative reports about individuals or companies warrant particular attention. When evaluating such a story, it usually is prudent to ask these questions:
1. Are any statements in the story capable of defamatory meaning? In this regard pay close attention to the use of certain "red flag" words that may sound more negative (and thereby more defamatory) than if a different, but similar, word had been chosen. Words such as "fraud," "crony," "linked," "suspicious" and "contaminated" may suggest or imply bad conduct or have criminal connotations (like: "connected" to the Mafia or organized crime). Careful editing can ensure that the facts get reported without the use of "buzz words" that may trigger a libel claim.
–Remember that the fact that police are questioning someone about a crime does not necessarily justify the label suspect. Witnesses are obviously also questioned about a crime.
2. Are those statements ones of fact (capable of being proven true or false), or protected as opinion, or simply rhetorical hyperbole that no reasonable reader would understand as a statement of fact?
3. Could someone reading the report reasonably understand it to be about a specific person, whether or not the person is actually named? Could readers understand it to be about more than one person – the person we intend, but also someone else?
–Remember to be careful of descriptive phrases that may give rise to cases of mistaken identity. A report that "an elderly janitor for a local school" was arrested could lead to suits from every elderly janitor in the school district.
4. Could you prove that the statements in question are true (and do so without violating promises to any confidential sources)?
5. If it turns out that you have the facts wrong, would a jury think you did not do something that any reasonable journalist would have done to get it right?
6. Assuming there is some possibility that the first five questions could be answered in the plaintiff's favor, is there a privilege that nevertheless justifies proceeding to publish? For example, is the report a fair and accurate report of an official government proceeding or document?
–If a privilege applies, remember that the privilege does not remove the need for careful reporting and the use of editorial judgment. In many cases, courts have held that it is up to the jury to decide whether a particular publication was a fair and accurate report or whether there was "actual malice."
