Reporting on criminal suspects

Stories about crime make up a significant proportion of the news. They also often require the most precise reporting and writing because asserting that someone committed, or has been accused of committing, a crime is defamatory on its face.

A journalist’s strongest protection for reports about criminal suspects is the fair and accurate report privilege that would apply to protect accurately and fairly reported information contained in arrest reports or court documents.

Where reporters get into trouble, though, is when they rely on informal disclosures by law enforcement officers that may not be privileged. This was the case when former Olympic Park security guard Richard Jewell sued the The Atlanta Journal-Constitution in 1997 after it reported that he sought publicity for saving lives during the 1996 bombing at the Summer Olympic Games in Atlanta, and that investigators thought he fit the profile of a lone terrorist. Federal authorities later arrested and charged Eric Robert Rudolph with planting the bomb and cleared Jewell. Although all 22 of Jewell’s claims against the Journal-Constitution were eventually dismissed, the case wound through the courts for 11 years before reaching this resolution.

In many states, the fair and accurate report privilege will extend to official statements made outside formal proceedings or meetings, including comments by police, assuming the reporter did not know, nor should have known that an official’s statement was false. In some states, Texas for example, the falsity element of a defamation claim is linked to the truth or falsity of whether official allegations were in fact made, rather than the truth or falsity of the underlying allegations. As such, the fair and accurate report privilege is likely to protect informal disclosures by law enforcement officials in many states.

However, reports that rely on these informal, sometimes anonymous, disclosures may also expose publishers to subpoenas from criminal suspects for the identities of the law enforcement officials -- a legal process that presents entirely different issues and difficulties than those posed by libel suits.

In some cases, like Jewell’s, the plaintiffs seek this information to boost their defamation claims against the publisher. In other cases, they need the identities of the confidential sources in order to sue the sources or their employers for violation of the Privacy Act. This occurred in the case of Dr. Steven Hatfill, the original -- and like Jewell, later cleared -- suspect in federal law enforcement officials’ investigation of the deadly 2001 anthrax attacks. Hatfill sued The New York Times and a Times writer who authored a series of columns on the case for libel. He also filed a Privacy Act claim against the government and subpoenaed a string of journalists, including USA Today reporter Toni Locy, for the identities of the confidential sources they used to report on him. Although the defamation suit was dismissed, the Privacy Act case continued for months, and Locy was held in contempt of court for refusing to name her sources and hit with escalating fines for each day she refused to comply.

The Hatfill case is another strong example of why reliance on official documentary sources over statements made outside official proceedings is preferable. But because Hatfill was never charged, his case is also a good example of why reliance on official reports is not always possible. When that is the case, and you are forced to rely on informal, usually anonymous, disclosures by law enforcement officials investigating a particular criminal matter, be mindful that you may face a subpoena from the suspect in the case for the identity of the official.