Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

A former Louisiana State University student recently filed a libel complaint against the student newspaper, the Daily Reveille, its management staff, and several officials associated with the university for alleged defamatory comments about the plaintiff that were anonymously posted on the newspaper’s website.  The Student Press Law Center provides a link to the amended complaint in a story about the lawsuit and also reports that the lawsuit has been dismissed in this follow up article.

The amended complaint alleged that the editor-in-chief and managing editor of the Daily Reveille “maintain control over approval and disapproval of all comments made” on the newspaper’s website.  The plaintiff pointed to four different allegedly libelous comments by anonymous posters published on the website. The Daily Reveille apparently published a news story in print and online concerning the filing of the lawsuit, which prompted the plaintiff to amend his complaint to include claims that the Daily Reveille’s coverage of the lawsuit “leads readers to believe that a possibility exists that the comments” identified as being libelous in the complaint “were indeed facts.”

The LSU case was an interesting twist on the pattern of anonymous Internet speech cases that we have reported on several times.  For example, we recently wrote about Independent Newspapers, Inc. v. Brodie, in which the Maryland Court of Appeals (the state's highest court) ruled that anonymous posters to an Internet news web site were protected by the First Amendment from having their identities disclosed to a civil litigant.  Like the LSU case, Independent Newspapers involved a defamation complaint concerning anonymous posts to a news website.  But, unlike Independent Newspapers, the plaintiff in LSU sought to hold the newspaper (and university officials) responsible for the allegedly defamatory content.  In Independent Newspapers, the plaintiff sought to compel the newspaper to reveal the posters’ identities through third-party discovery—the lawsuit was filed directly against the anonymous poster.

The plaintiff in the LSU case faced an uphill battle to hold the Daily Reveille liable for the posts due to Section 230 of the Communications Decency Act.  Indeed, according to the SPLC, the judge dismissed the lawsuit based on Section 230 immunity. 

Section 230 provides that providers or users of “interactive computer services” are generally not to be treated as the publishers of third-party content, and most courts that have considered the issue have interpreted the law so that newspaper websites qualify as providers of “interactive computer services.”  Thus, a newspaper that provides online news is generally immune from liability for defamatory statements made by anonymous (or non-anonymous) posters on the newspaper’s website. For more information on Section 230, including illustrative cases and examples of how immunity may be lost, see the Citizen Media Law Project’s website.

As noted by a source in the SPLC article on the LSU case, the usual way for a plaintiff to attempt to recover for anonymous Internet speech is to file a John Doe lawsuit and seek to compel disclosure of the posters’ identities through third-party discovery, as in Independent Newspapers.  The SPLC reports that the LSU student plans to pursue the anonymous posters directly now that his claim against the newspaper has been dismissed.  Of course, federal and state law often stand in the way of such compelled disclosure as demonstrated by Independent Newspapers and other cases, including this one from Florida recognizing the application of the state reporter’s shield law to anonymous posters’ identities, IP addresses, and other identifying information.  
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On January 29, 2009, a panel of the New York Supreme Court, Appellate Division, reversed a trial court’s order denying a motion to dismiss a plaintiff’s libel complaint, holding that the allegedly libelous statements constituted non-actionable opinion.  A copy of the decision is linked here.

In Bonanni v. Hearst Communications, Inc., No. 505007 (N.Y. App. Jan. 29, 2009), the plaintiff, a member of the City of Albany Police Department, sued the owner of the Times Union newspaper (actually the Hearst Corporation, not Hearst Communications) over the content of two articles that were labeled as “commentary.” 

In the first article, the author wrote that the plaintiff should be dismissed from the police force because the plaintiff had allegedly reported for work intoxicated and also had a history of disciplinary actions taken against him for “a series of serious incidents.”  The incidents mentioned in the article included the beating of a college student while not on duty and the accidental shooting of a suspect during a police chase.  The article did not mention that another officer fired the shot that killed the suspect in the car chase.

The second article mainly criticized the police officer’s union because it evidently opposed the Albany police chief’s “zero-tolerance alcohol policy.”  However, the commentary mentioned that the union supported the plaintiff in an arbitration proceeding.  The commentary discussed again that the plaintiff allegedly reported for duty under the influence of alcohol and restated the plaintiff’s history of disciplinary actions.  Once again, the writer called for the plaintiff’s ouster.

The plaintiff filed his complaint alleging that the defendant newspaper had defamed him by stating (among other things) that he had been intoxicated at work and was unfit to serve as a police officer.  He further alleged that the defendant had acted with actual malice (which, as a public official involved in a matter of public concern, he would be legally required to prove).  The defendant filed a motion to dismiss for failure to state a valid cause of action based in part on the fact that the allegedly defamatory statements were non-actionable opinion.

On review, the Appellate Division determined as a matter of law that the statements were opinion and, therefore, could not serve as the basis for a libel complaint.  In reaching its conclusion, the Appellate Division considered three factors to determine whether the statements constituted actionable fact or non-actionable opinion:

(1) whether the language of challenged statements has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether, considering the context in which the statements were made, readers are likely to understand the statements to be opinion, rather than fact.

When applying the test, the court stated that the immediate context of the statement and the “broader social context and surrounding circumstances” must be considered.

Applying the test for fact versus opinion, the Appellate Division found that the content and the context of the articles and their tone and purpose would lead a reasonable reader to understand that the articles were the writer’s opinion, not statements of fact about the plaintiff.  The clear identification of the articles as “commentary” in the print version of the newspaper and the articles’ location in the “opinion” section of the online version of the publication were persuasive (although not determinative) to the court.  The “tenor” of the articles also “signaled to the reader that [the author] was expressing his opinion.”  For example, the writer used colorful, subjective language such as this:  “’At long last, [plaintiff] is going to be shown the street instead of pounding it.  The city’s patience is exhausted, and so is the public’s, and radical action is way overdue.’”

Additionally, the Appellate Division found language in the articles qualifying the nature of the charges and disciplinary actions supported a finding that the articles constituted opinion.  For example, the first article characterized the accusation that the plaintiff arrived at work intoxicated as an “allegation.”  The second article qualified disciplinary charges stemming from that same accusation as “pending.”  According to the court, the discussion of the pending charges was not intended to convince readers of the plaintiff’s guilt but, rather, to encourage the union to support the police chief’s zero-tolerance alcohol policy.

Given the overall context of the articles and the broader social context in which the articles were published, which apparently included what the court characterized as “years of widespread television and print media coverage of the allegations of misconduct by plaintiff,” the court determined that a reasonable reader would understand that the author was expressing his opinion, not engaging in “objective news reporting.”  Therefore, the Appellate Division reversed the trial court and granted the defendant’s motion to dismiss.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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).

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link