AP PHOTO BY GREG GIBSON
The Georgia Supreme Court in January declined to review a lower court ruling in the case between the Atlanta Journal-Constitution and the estate of Richard Jewell, the former security guard who was briefly — and incorrectly — a suspect in the 1996 Atlanta Olympic Park bombing. The decision effectively ended the 15-year-long litigation.
The case began when Jewell sued the Journal-Constitution (and a number of other media outlets) for libel when they reported that the FBI considered him a suspect in the bombing. The FBI’s suspicions were later deemed unfounded and he was eventually exonerated.
The close of the Jewell litigation brings to mind the thorny legal issues that can arise when journalists report on accusations — particularly those, like the Jewell case, that are newsworthy — but which may turn out, ultimately, to be untrue.
In the course of reporting on live and active controversies, reporters often find themselves relaying the accusations of one person or institution against another. In some cases, this may take the form of reporting on official criminal charges filed against a suspect, or perhaps, like the Jewell case, a situation where no charges have been filed and an individual is merely a suspect. And when reporting on a civil lawsuit, a reporter is conveying the perhaps unsubstantiated accusations of wrongdoing one party makes against another.
In any case, the charges may not be true; they may be damaging to a person’s reputation; and they therefore may be defamatory.
Most jurisdictions in the United States have adopted some form of what is commonly referred to as “republication” liability. In essence, this more-than-a-century-old doctrine states that a person who repeats a defamatory falsehood first said by another can be held liable just as the original speaker can, even if attributing the statement as “according to” another person. In other words, as a Louisiana court put it 60 years ago, “talebearers are as bad as talemakers.”
AP Photo by Alan Mothner
This notion, if carried to its logical extreme, could have severe consequences for journalists. If, for example, a journalist reports that a man has been arrested and charged with rape, yet he is later exonerated, that reporter could face liability for repeating the false and defamatory accusation that the man was a rapist. Or, as in the Jewell case, perhaps formal charges have not been brought and a person is merely a suspect who is later cleared.
As one Texas court put it, “such allegations would never be reported by the media for fear an investigation or other proceeding might later prove the allegations untrue, thereby subjecting the media to suit for defamation. Furthermore, when would an allegation be proven true or untrue for purposes of defamation? After an investigation? After a court trial? After an appeal?”
Such a rule could be devastating to the notion of a free press.
The harshness that republication liability would seem to entail has been limited somewhat in nearly every state. Over time, courts and legislatures have fashioned a variety of legal rules that help to mitigate the chill on the press that the republication rule could impose. These protections and privileges vary from state to state, however, and can sometimes require rather precise attribution by a reporter when they report on accusations.
The third-party allegation rule
One of the clearest rules in use today was adopted by Texas more than 20 years ago in a case called McIlvain v. Jacobs. The so-called “third-party allegation” rule states that when the media reports on accusations made against a third party, the relevant statement for purposes of evaluating the truth or falsity of the report is whether the accusations were accurately reported, not whether the accusations themselves were true, according to Tom Leatherbury, a Dallas-based media lawyer.
Leatherbury represents reporter Nanci Wilson in Neely v. Wilson, a case pending before the Texas Supreme Court that may test the ongoing validity of this rule. The Reporters Committee for Freedom of the Presss filed a brief in support of Wilson.
Wilson, a reporter formerly with KEYE in Austin, was sued for libel over reporting she did on medical malpractice lawsuits filed against an Austin neurosurgeon, and the effectiveness of the Texas Board of Medical Examiners in policing the medical profession in Texas. Dr. Byron Neely sued her for libel.
Wilson said that, while unbiased reporting is always important, it becomes even more so when you have a situation involving potentially inflammatory allegations. And, even though the law in Texas does not necessarily require reporters to confirm whether accusations are true, she nonetheless is always evaluating the integrity of her sources and seeking to confirm their statements. “I’m big on documents. I want to see things in writing — sworn statements, depositions, that kind of thing,” Wilson said. “I’ll always have the same standards regardless of the law.”
Texas’s rule is, in some ways, more speech friendly, Leatherbury said, but is generally consistent with the approach other jurisdictions take. But the value in the Texas rule is the clarity it offers. “It recognizes the practical reality of reporting” that the press must be able to report allegations as allegations, Leatherbury said, without assuming responsibility for the truth or falsity of the allegations themselves.
Whereas some privileges, like the fair report privilege, attach only when someone repeats an allegation made in an official report, the courts in Texas have not made this protection contingent on any particular source. Courts have found stories to be substantially “true” for purposes of libel when they accurately recounted, for example, allegations made by parents or in police investigations, by private sources or public sources, Leatherbury said.
Texas courts have not required that the subject of the accusation be a public figure or the subject of the controversy be a matter of public interest.
Neutral reportage privilege
Whereas Texas has developed a reporting privilege based on the common law doctrine that truth is a defense to libel, the Second and Eighth U.S. Circuit Courts of Appeals (and a number of state courts) have recognized that the First Amendment itself provides some measure of protection for reporting upon accusations and allegations.
This principle was articulated in a 1977 case by the U.S. Court of Appeals in New York City (2nd Cir.), in Edwards v. National Audubon Society. In that case, The New York Times reported that a spokesman for the Audubon Society had called certain paid spokesmen for the pesticide industry “paid liars,” accusing them of misrepresenting scientific evidence regarding how pesticides damage bird populations. The Times was sued for defamation for republishing the spokesman’s allegedly defamatory statement.
The case arose at the height of the controversy over the pesticide DDT. Recognizing that the public had an interest in being fully informed about the controversy between the Audubon Society and the pesticide industry, the court wrote that the First Amendment required that the Times be able to produce unbiased reports of the potentially defamatory statement. Traditional republication principles had to yield to the First Amendment.
As one student commentator noted in an article published by the UCLA Entertainment Law Review, this doctrine looked for a time like it may become quite influential, but the U.S. Supreme Court has never addressed this doctrine. Instead, it has been left to individual states and federal circuit courts to determine its applicability, and the result has been mixed.
For example, the Pennsylvania Supreme Court expressly refused to adopt this privilege in the 2004 case Norton v. Glenn, according to Gayle Sproul, a partner in the Philadelphia office of Levine Sullivan Koch & Schulz. In a lengthy examination of the issue, the court concluded that it was unlikely that the U.S. Supreme Court would adopt neutral reportage, and so declined to adopt it in the state of Pennsylvania.
Because of a lack of an authoritative ruling from the U.S. Supreme Court, the spread of the neutral report privilege has been somewhat scattershot across the country.
Fair report privilege
Probably the most widespread and least controversial reporting privilege, the fair report privilege generally allows the media to report on defamatory falsehoods contained in public proceedings and official documents and reports, so long as the report is fair and accurate. The rationale for this privilege is rooted in the idea that the journalist is merely conveying to the public that which they would be entitled to hear if they were present at the proceeding.
A review of the 2010-2011 Media Libel Law 50-State Survey, published by the Media Law Resource Center, revealed that nearly all states have adopted some form of the fair report privilege. Some have developed this through the common law, and others have specifically created the privilege by statute.
The precise scope of coverage of this privilege, however, can vary from state to state. For example, prior to Texas’s adoption of the third-party allegation rule, the fair report of judicial proceedings privilege in that state had been limited to only those complaints upon which the court had acted, according to Leatherbury. This rule “had no basis in reality,” Leatherbury said.
By contrast, Pennsylvania has relatively few limits on the fair report privilege, Sproul said. It can be applied to official press releases, reports, or police statements, as well as to court documents and filings.
The question of what documents are encompassed by the privilege is hardly academic. In January, the Maryland Court of Appeals — that state’s highest court — decided a case on the scope of the fair report privilege. Piscatelli v. Smith turned on whether information contained in discovery documents that were in the case file, but never introduced at trial, were privileged, said Peter Axelrad, who represented the Baltimore City Paper in the case. The court decided that because the documents were part of the public record, the privilege covered them, but the fact that the case was litigated to the state’s highest court nonetheless illustrates the fine lines drawn around this privilege.
Some jurisdictions also have specific rules on attribution in order to claim this privilege. In the District of Columbia, for example, the report must be both a “fair and accurate” report of a qualifying government source, and must properly attribute the allegedly defamatory statement back to that source, according to the D.C. Circuit Court of Appeals in Jankovic v. International Crisis Group.
Pennsylvania courts, however, consider whether the statement has been properly attributed as part of the overall question of whether the report is fair and accurate, but do not consider it a necessary element, Sproul said.
Navigating the field
Given the variation among states with regard to the protections offered for reporting on accusations, it is advisable — for those who have the option — to consult with an attorney to the greatest extent possible during the newswriting process.
A lawyer well versed in the relevant state’s privilege rules will be able to offer guidance on properly attributing any accusations, and how best to maintain neutrality or avoid giving the appearance of endorsing or adopting any allegations. Though some rules may seem overly formalistic, following them could mean the difference in a libel suit.
Aid of counsel is a service not available to all reporters. The Reporters Committee has resources available to help journalists navigate these issues themselves, including The First Amendment Handbook and the Digital Journalist’s Legal Guide, both available for free at www.rcfp.org.
The best practice is to exercise caution when reporting any allegations. Oversimplifying can lead to trouble, so take care not to omit details if they change the nature of the statements being made. Journalists covering police or courthouse beats must be certain they understand criminal and civil procedure and terminology, and should be especially careful to restate accurately any information obtained about arrests, investigations and judicial proceedings. And, while the pressure of daily or hourly deadlines in the age of online news can be immense, be cautious when editing. Make sure that attributions to official sources, where available, are not lost in a hasty rewrite.