U.S. Supreme Court Denies Cert in Fair Report Case

Among the cases for which the United States Supreme Court denied certiorari Monday was the case of Salzano v. North Jersey Media Group. The Court's decision not to accept the case for review allows an important fair report decision issued earlier this year by the New Jersey Supreme Court to stand.

As we previously reported, the opinion of New Jersey's highest appellate court overturned a lower court ruling that imposed a troubling limitation on the fair report privilege.  The privilege is a critical component of the battery of defenses reporters and news organizations have to fend off defamation and privacy claims.  Pursuant to the privilege, if a reporter provides a fair and substantially accurate account of information appearing in an official government record or matters discussed in a government proceeding, the reporter will not face liability even if the official information proves to be incorrect.  Without it, reporters would be forced to go behind official records and official statements, which would chill reporting on the business of government.

The Salzano case involved a media report upon a filing made in a bankruptcy matter.  Despite the fact that the filing -- which instituted a legal claim against the debtor -- was newsworthy, as were the allegations made by the bankruptcy trustee in that filing, the intermediate appellate court in New Jersey held that the fair report privilege had no application.  It reasoned that the privilege should protect only reports made of final decisions in civil proceedings, not initial allegations.

The New Jersey Supreme Court rejected that reasoning with strong language affirming the importance of the fair report privilege:

Because it is impossible for the citizenry to monitor all of the operations of our system of justice, we rely upon the press for vital information about such matters. Members of the public simply cannot attend every single court case and cannot oversee every single paper filing, although clearly entitled to do so. Thus, it is critical for the press to be able to report fairly and accurately on every aspect of the administration of justice, including the complaint and answer, without fear of having to defend a defamation case and without the inhibitory effect of such fear.

. . .

In short, we are convinced that the public policy underpinning of the fair-report privilege -- advancement of the public's interest in the free flow of information about official actions -- would be thwarted by the recognition of the initial pleadings exception. A full, fair, and accurate report regarding a public document that marks the commencement of a judicial proceeding deserves the protection of the privilege.

The U.S. Supreme Court's decision yesterday means that the Salzano decision will continue to stand as an important bulwark against efforts to undermine the scope and application of the fair report privilege.

N.J. Supreme Court Applies Fair Report Privilege to Civil Filings

New Jersey's highest court has overturned an intermediate appellate decision that had refused to apply the "fair report" privilege to accounts of initial pleadings filed in civil lawsuits.  The Supreme Court's decision, issued in the case of Salzano v. North Jersey Media Group, Inc., represents an important victory for the press and the public.

We previously reported on the decision of the New Jersey Court of Appeals, which took a narrow view of the application of the fair report privilege.  The privilege is critical to reporting on official statements and actions by government actors.  It shields a media organization from liability if an official document, statement, or proceeding is given a fair and accurate account, even if the official source contains some factual error that someone contends is defamatory.  Without the privilege, journalists would expose themselves and their organizations to defamation claims merely by reporting what a criminal indictment or arrest report contained, for example, or by reporting what a judge said on the bench.  That risk of liability would force journalists to go behind their official sources and confirm the accuracy of the facts they provided, which would severely hamper reporting on government activities.

The intermediate appellate decision in the Salzano case was troubling because it refused to extend the fair report privilege to initial filings in civil cases.  This would have had the effect of chilling reporting on civil complaints, since reporters would face some risk of liability from defendants or third parties who claimed allegations contained in the complaint were defamatory.  The threat of such litigation could be used to deter reporting on important civil lawsuits, especially those in which the filing of the complaint itself was newsworthy.

In a sweeping decision, the New Jersey Supreme Court reversed, holding that a fair and accurate account of a civil complaint is indeed covered by the fair report privilege.  According to the Court, "there is a clear trend away from recognizing the initial pleadings exception" to the fair report privilege.

The Court went on to explain the strong rationale for rejecting such an exception as follows:

Indeed, the initial pleadings exception is at odds with the reality that the complaint is open to public view. . . . If the initial pleadings exception is retained, an anomalous result obtains: Public documents to which the citizens of our state have free access cannot be disseminated or reported on without risk of a lawsuit.

Because it is impossible for the citizenry to monitor all of the operations of our system of justice, we rely upon the press for vital information about such matters.  Members of the public simply cannot attend every single court case and cannot oversee every single paper filing, although clearly entitled to do so.  Thus, it is critical for the press to be able to report fairly and accurately on every aspect of the administration of justice, including the complaint and answer, without fear of having to defend a defamation case and without the inhibitory effect of such fear.

That interpretation of the privilege more fully advances the principles informing it than any other view.  Indeed, if a citizen presents himself at the local courthouse, there is no question but that he can see filed pleadings for himself.  They are not sanitized nor are they filtered through a veracity lens.  A full, fair, and accurate report of the contents of the pleadings, that is, what plaintiff claims and how defendant defends, places the citizen in the exact same position as if he were present on the scene.  From that perspective, interposing an artificial barrier between the citizen and a truthful and accurate report of what is actually occurring makes no sense.

. . .

In short, we are convinced that the public policy underpinning of the fair-report privilege -- advancement of the public's interest in the free flow of information about official actions -- would be thwarted by the recognition of the initial pleadings exception.  A full, fair, and accurate report regarding a public document that marks the commencement of a judicial proceeding deserves the protection of the privilege.

The Court then expessly adopted the majority view the fair report privilege is absolute -- once the reporter establishes that the report was fair and accurate, then the privilege attaches and cannot be overcome with a showing of malice.

In sum, the Salzano decision marks an important victory against efforts to limit the scope of the fair report privielge, a critical defense for reporters who report on government activity.

Massachusetts High Court Extends Fair Report Privilege

In late January, the Supreme Judicial Court of Massachusetts affirmed that the fair report privilege applied to information attributed to an anonymous source.  The 6-1 decision in Howell v. The Enterprise Publishing Company dismissing the plaintiff's complaint held that so long as the reporter accurately reported what the confidential source reported to him or her, the privilege applied.

As reported by the First Amendment Center, the case involved claims for defamation, intentional infliction of emotional distress and invasion of privacy brought by the former superintendent of the town sewer department who, the defendant reported, had been fired for having pornography on his work computer and for alleged conflicts of interest.

 The paper wrote a series of more than 10 articles about the scandal, many of which quoted anonymous sources who reported what happened at various closed-door meetings concerning the superintendent (Howell).  For example, the paper reported:

A town official close to the investigation who spoke on condition of anonymity said the allegations against Howell include improper use of town equipment for personal business. The source declined to specify the type of equipment that was used but alluded to a possible criminal investigation by Abington police.

 In a later article, the paper reported: 

"These were images you wouldn't want your children  to see," the commission member said. Commission members would not say who came forward with the allegations against Howell. "The point is, it happened. The board, acting on behalf of the town, was forced into action and would have been negligent if it had not acted. The potential is still very real for a sexual harassment lawsuit," the commission member said. The source added that Howell "thinks he did nothing wrong."

In dismissing Howell's claims, the Court engaged in a lengthy analysis of the history and policy considerations underlying the privilege.  The Court identified two key policies supporting broad recognition of the fair report privilege.  The first, the Court said, "protects the press when it reports on official actions and statements that members of the public could have witnessed for themselves, that is, when it acts as the public's eyes and ears."  The second key policy is that of "public supervision," meaning the role of the media in serving as "a check on the power of government by giving the public the opportunity to be informed citizens and voters."

In the case of a report of government action (i.e., "official action") whose source is anonymous, the Court said

Reports of official statements are covered by the privilege so long as the reports fairly and accurately describe the statements, even though the statements themselves may contain defamatory material, or inaccurately report on official actions in a defamatory way. But an anonymous statement is not an official one. The privilege to report official actions would mean very little, however, if to qualify for its protection, the media were limited to reporting such actions solely on the basis of on-the-record statements by high-ranking (authorized to speak) officials or published official documents. Consequently, the privilege extends to reports of official actions based on information provided by nonofficial third-party sources.  It should be of no moment that a reporter's source is, in fact, a high official, a low official, or a mere witness who overheard the proceedings, so long as it is official action that is reported. If, however, the source is an unofficial or anonymous one, a report based on that source runs a risk that the underlying official action will not be accurately and fairly described by the source, and therefore will not be protected by the privilege, or that the information provided will go beyond the bounds of the official action and into unprivileged territory.

Thus, the Court established that so long as a news report of official action based on material from an anonymous source fairly and accurately reports what the source said, it will be privileged.

Given the increasing prevalence of off-the-record or "background" sources in news stories concerning issues of public concern, this decision may be an important landmark in protecting the media from otherwise baseless lawsuits.

Arkansas Supreme Court Affirms Fair Report Privilege

The Arkansas Supreme Court held last week in a unanimous decision that the fair report privilege protected reporters from The Courier newspaper who had reported allegations about a rape investigation based on the contents of a police report.

The decision arose out of a defamation claim against the paper made by Kevin Whiteside, who was named in the police report of a rape investigation in December 2006.  The report said that a witness at a party hosted by Whiteside saw Whiteside with the alleged rape victim.  In January 2007, The Courier published a story about the allegations based on the police report.  The story was quite high-profile, since in 2005 Whiteside and his friend, also named by the witness, had found the dead body of a local beauty queen.  In fact, at the time of the alleged rape the friend was free on bond awaiting trial on charges relating to the woman's death.

Whiteside claimed in his lawsuit, however, that after the police report was taken, but before the story was published, the witness recanted her story.  While the paper published a "clarification" of this fact, Whiteside said in his complaint that it was insufficient.  The trial court granted the newspaper's motion for summary judgment and subsequently denied Whiteside's motion for new trial and for relief from judgment.

On appeal, Whiteside claimed that the witness statements in the first police report should not have been released and should not be considered a report of an "official action or proceeding" under Section 611 of the Restatement (Second) of Torts.  While the Arkansas Supreme Court agreed that the witness statement should not have been made available to the reporters according to police policy, the court said that the report was indeed covered under Section 611 and that the paper had done nothing improper in obtaining it.

Whiteside argued, however, that the privilege should not apply here because the paper knew, or should have known, that it was not supposed to be able to see the witness statements.  Citing The Florida Star v. B.J.F., the court rejected that argument, holding:

It seems clear that an inadvertent release of information is not analogous to an involuntary release or an illegal gain of information.  As discussed, the record is devoid of any evidence of any wrongdoing on the part of the Newspaper in obtaining the information.  It was not incumbent upon the Newspaper to determine what information could or could not be published after its release by the police.

Finally, Whiteside asserted on appeal that the description of the contents of the police report was not substantially accurate.  Specifically, Whiteside said that the story was misleading because it interspersed comments in the report from the police officer and comments from the witness in unclear ways.  The court said that the organization of the story may have been confusing, but it was essentially "an accurate and complete or a fair abridgment of the occurrence reported."

For general information on the fair report privilege, click here.  For a previous report we have published on the privilege, click here.

New Jersey Supreme Court Stays Fair Report Decision

We previously reported a recent intermediate appellate court decision from New Jersey in which the court took a narrow view of the fair report privilege.  That decision gave cause for concern for news organizations in New Jersey because it held that the privilege does not apply to reports on the contents of civil court complaints and filings other than final decisions by the court.

On Tuesday, the New Jersey Supreme Court issued a one-paragraph order that temporarily stayed the effect of the lower court decision while the court considers whether to accept the newspaper's appeal.  The stay restores New Jersey law on the fair report privilege to the law as it existed prior to the earlier decision.  However, the court's action does not signal the ultimate outcome of the case -- the court could ultimately decline to exercise appellate review, which would reinstate the intermediate appellate decision, or it could accept review and affirm the decision.

The Reporters Committee for the Freedom of the Press, along with numerous other media organizations and the New Jersey Press Association submitted an amici curiae brief to the New Jersey Supreme Court, asking it to accept review and reverse the previous decision.  We will continue to monitor the progress of this case as it moves through the New Jersey appellate system.

New Jersey and Kentucky Decisions Narrow Fair Report Privilege

In a prior post, we described the contours of the fair report privilege.  This common-law privilege protects journalists from liability for republishing factual errors that appear in official records -- such as a police report, government press release, or criminal indictment -- or that are made during official proceedings -- such as a city council meeting or criminal trial.  So long as the journalist provides a substantially accurate account of the record or proceeding, she will not face liability if the record or proceeding described contains an error that someone contends is defamatory.

The privilege serves an important function because it allows news organizations to report freely on newsworthy government records and proceedings without having first to go behind the records or proceedings to confirm the accuracy of the facts the records contain or of the statements made during the proceedings.  For example, reporters covering the Blagojevich scandal have been able to recount the details set forth in the lengthy affidavit that accompanied the Illinois governor's federal indictment without fear of being sued if any of those facts turn out to be false.  It is therefore critically important that courts give the privilege robust application.

Two recent decisions, one from New Jersey and one from Kentucky, give some cause for concern because they in different ways cabin in the operation of the privilege.  The New Jersey decision, Salzano v. New Jersey Media Group, Inc., involved a defamation claim that arose out of an article written about an adversary complaint lodged by the trustee in a federal bankruptcy proceeding.  The adversary complaint alleged that the plaintiff, a former officer of the bankrupt company, had misappropriated funds from the company for his own benefit.  The article was entitled "Man accused of stealing $500,000 for high living."  The trial court dismissed the plaintiff's defamation action under the fair report privilege.

On appeal, the appellate division reversed.  After discussing the origins and purpose of the fair report privilege, the court first concluded that the article's use of the word "stole" to describe the trustee's allegations in the adversary complaint constituted a fair and accurate account of those allegations.  According to the court, the article carried the "same essential sting" as the trustee's allegations, even though the former indicated that Salzano has "stole[n]" the funds, whereas the latter asserted that he had "unlawfully diverted, converted and misappropriated" the funds.

However, the court went on to conclude that the fair report privilege did not apply at all because the source of the article was an initial pleading in a legal action -- a complaint -- rather than a written decision or oral pronouncement in open court rendering a legal determination on the merits.  The court cited the Restatement (Second) of Torts, Section 611, as the policy basis for this distinction.  According to the court, if reporting upon the allegations contained in a court-filed complaint triggered application of the fair report privilege, it would allow a person to file a baseless complaint for the purpose of having defamatory allegations republished in the news media.

This narrow view of the fair report privilege has been rejected in several other jurisdictions.  For example, in concluding that the privilege does indeed protect substantially accurate accounts of initial court filings, a Pennsylvania court concluded:

Based upon this case law and theory, we cannot reach a conclusion other than that the fair report privilege does apply to reports of initial pleadings upon which no judicial action has been taken.  Pleadings are public records, maintained in government buildings, open for review by the general populace.  We find no sense to the argument that newspapers, or other media groups, cannot report on pleadings prior to judicial action without opening themselves to a libel action.  It is the media's job and business to keep the public informed of pending litigation and related matters conducted in taxpayer funded courthouses.

First Lehigh Bank v. Cowen, 700 A.2d 498, 502 (Pa. Super. Ct. 1997).

The broader view reflected in the Pennsylvania decision is more faithful to the purpose behind the fair report privilege.  The New Jersey approach, on the other hand, permits the tail to wag the dog -- concern over a potentially unscrupulous civil plaintiff winds up creating a substantial deterrent to reporting upon the business of the courts generally, even though many civil complaints are newsworthy in and of themselves because they involve legitimate factual disputes over matters of public concern.  Moreover, the narrower view ignores those procedures -- such as Rule 11 sanctions -- that exist to punish unscrupulous litigants for filing baseless legal actions.  By denying application of the fair report privilege, the approach reflected in the New Jersey court's decision punishes the reporter, who may have limited practical ability to test the allegations of the complaint once the parties involved have shifted into a litigation mode, rather than the bad-faith litigant.

A recent decision from a federal court in Kentucky imposed two discrete limitations on the application of the fair report privilege.  In Trover v. Paxton, the court held that the publisher must know that it is reporting on government activities for the privilege to attach, and the publication at issue must expressly attribute the allegations to a government record or proceeding.  The court ultimately found that the fair report privilege did not apply in Trover because the article sourced the allegations as appearing in a letter accusing the plaintiff of workplace misconduct but did not explain that the letter was included in official investigatory files of a licensing board.

These decisions underscore that there may be nuances from jurisdiction to jurisdiction in how doctrines such as the fair report privilege are interpreted and applied.  And those differences may impact significantly the degree of risk the news media face when reporting upon a particular subject or event.  For example, what one publisher may be comfortable printing or broadcasting about a newly filed civil action may differ depending upon whether the rule applicable in Pennsylvania or New Jersey applies.  It is therefore critically important that reporters and editors have a good understanding of the extent of the legal protections in their jurisdiction.

Understanding the Fair Report Privilege

Although no reporter or news organization wants to find itself defending against a defamation claim, the reality is that plaintiffs have and will continue to file claims alleging injury to their reputations based on media reporting.  Fortunately, media defendants faced with defamation claims enjoy a number of privileges and defenses that protect the “breathing space” the First Amendment requires.  One such protection recognized in a number of jurisdictions is called the “fair report” privilege.

As formulated in the Restatement (Second) of Torts, § 611 (1977),

[t]he publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.

Stated another way, the fair report privilege protects fair and substantially accurate reports of statements made in official proceedings—for example, law enforcement investigations, judicial proceedings, and open government meetings.  A reporter may report and rely on statements made in police reports of criminal investigations, even if the statements are later found to be factually untrue, as long as the reporting constitutes a fair and substantially accurate account of the police report.  The First Circuit in the case of Yohe v. Nugent described the privilege this way:

To qualify for the fair report privilege the report must be a fair and accurate portrayal of the official action. The test is whether a reporter’s “rough-and-ready summary” of an official action is “substantially correct.” “A statement is considered a fair report if its ‘gist’ or ‘sting’ is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced."

The theory behind recognition of the fair report privilege is that the public has a legitimate interest in knowing about official government actions, and the news media is, practically speaking, the primary source of information about these actions for most people.  According to the First Circuit in Yohe, “the only way news outlets would be willing to make such a report [concerning government proceedings] is if they are free from liability, provided that their report was fair and accurate."

Fairness and substantial accuracy are required for the privilege to attach, but, as mentioned above, some leeway is allowed between the content of the document or the official statements and the content of the media’s report.  The test is whether the report is a “substantially” correct account of the official documents or statements—the test is not whether the report is a substantially true statement of actual events.  Therefore, when evaluating application of the privilege to official documents and statements, a court must compare the media’s report to the official documents or statements in question.  See, e.g., Heekin v. CBS Broadcasting, Inc., 789 So.2d 355, 360 (Fla. 2d DCA 2001).

One illustrative case concerning the fair report privilege is Yohe v. Nugent, mentioned above.  In Yohe, the plaintiff sued two media defendants and the local chief of police for three statements made by the chief in interviews with the media and about which the media reported: namely, (1) that the plaintiff “was a retired member of the Army Special Forces of Green Berets and has been trained as a sniper;” (2) that the plaintiff had “threatened to kill himself and was reported to be armed with several large caliber weapons;” and (3) that “it was [the chief’s] belief that [the plaintiff] was suicidal.”  The chief’s statements were based on a police incident report concerning a domestic disturbance involving the plaintiff.

The Yohe court found that the statements fell squarely within the fair report privilege.  The First Circuit noted that the plaintiff did not dispute the accuracy of the media’s account of the chief’s statements; rather, the plaintiff argued that “material inaccuracies in the articles, as well as [alleged] negligent reporting on the [media’s] part should result in the newspapers losing the protection of the [fair report] privilege.”  According to the plaintiff, the fair report privilege did not apply to the articles concerning him because they “inaccurately reported that he was drunk and suicidal at the time of his arrest” and the media defendants were “negligent and failed to conduct an independent investigation, which, [the plaintiff] contends, would have caused them to discover that the hospitals had ‘exonerated’ him of being intoxicated and suicidal.”  The First Circuit recognized that the fair report privilege is not absolute and may be lost when a report of an official statement or action is not substantially correct; however, according to the court:

To qualify as “fair and accurate” for purposes of the fair report privilege, an article reporting an official statement need only give a “rough-and-ready” summary of the official’s report; it is not necessary that the article provide an accurate recounting of the events that actually transpired. That is, “accuracy” for fair report purposes refers only to the factual correctness of the events reported and not to the truth about the events that actually transpired. Indeed, it is well established that the fair report privilege “should not be forfeited even if the party making the report knew the statement to be false.”

In dicta, the First Circuit wrote that although the privilege may perhaps be overcome by a showing that the media acted with something more than negligent or knowing republication of inaccurate official statements (i.e., “malice”), the plaintiff had not made that showing in Yohe.  Note that allowing a showing of common-law malice (ill will) or actual malice (knowledge of falsity or reckless disregard for the truth) to defeat the privilege was not actually decided in Yohe; however, whether a showing of actual malice defeats the fair report privilege is the source of some disagreement among jurisdictions.  For example, in Q Int’l Courier, Inc. v. Seagraves, 27 Media L. Rep. 1982 (D.D.C. 1999), the U.S. District Court for the District of Columbia stated that actual malice will defeat the privilege.  See also Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069, n.27 (3rd Cir. 1988) (citing Dairy Stores, Inc. v. Sentinel Publ’g Co., 104 N.J. 125, 516 A.2d 220, 233 (1986)) (stating that actual malice may defeat the privilege under New Jersey law).  But see Restatement (Second) of Torts, § 611 (1977).

As a common-law defense, recognition and application of the fair report privilege are matters of state law.  Every state but Maine recognizes the fair report privilege in some form—whether common-law or statutory, conditional or absolute—but the scope and contours of the privilege and what may be required to defeat it vary among the states.  The range of documents and proceedings covered by the fair report privilege may vary from state to state as well, so it is important that reporters know the extent of the protection the privilege offers in their state.  For example, some state courts have expressly recognized that the privilege extends to accurate summaries of press releases and statements made at press conferences.  See, e.g. Freedom Communications, Inc. v. Sotelo (involving law enforcement press release and email).