From the Fall 2004 issue of The News Media & The Law, page 24.
Do journalists need the right to repeat lies? The question might sound easy, with many people answering negatively and cynics suggesting that politicians could not be accurately quoted without such a right.
The issue of such a “neutral report” privilege — accurately repeating statements made about a public controversy usually involving public officials — was raised recently before the Pennsylvania Supreme Court. The court didn’t quite take the issue head-on. Instead, in its October decision in Norton v. Glenn, it focused on whether the U.S. Supreme Court has ruled that the First Amendment demands such a policy, even while acknowledging “some visceral appeal” in the idea.
Furthermore, the Pennsylvania court only considered whether such a right is absolute, or is qualified by application of the “actual malice” standard — i.e., there would be liability only if a journalist knew or recklessly disregarded whether he or she was reporting a false statement. Unwittingly passing on false information about a public official would be protected due to the lack of actual malice.
Promoting the right to repeat known falsehoods in public controversies may not be popular, especially as studies continue to show eroding public faith in the news media. But nonetheless, the question must be considered. And one of the best examples of when such a right is necessary comes from the Pennsylvania case in which it was rejected.
According to the state high court’s summary, members of the Parkersburg Borough Council traded insults during and after a 1995 council meeting. In a story on the incident, The (Chester County) Daily Local News reporter Tom Kennedy wrote that councilman William Glenn Sr. claimed that Council President James Norton III and another counsel member were homosexuals, and that Glenn had issued a statement “strongly implying” that he considered the two to be “queers and child molesters.” Glenn also reportedly said that he had been sexually accosted by Norton.
The kicker, of course, is that Kennedy and his newspaper did not believe the statements about Norton were true, and therefore this “knowledge of falsity” constitutes the actual malice necessary for Norton to prevail in the libel cases he filed against Glenn and the newspaper.
But citizens have a right to know what’s happening at meetings of their elected representatives, and the inflammatory statements made by Parkersburg councilmembers during the council meeting could be repeated in the media, thanks to the “fair report” privilege. That privilege — which exists in some form in all states but is interpreted differently in each of them — exempts from defamation liability the republication or rebroadcast of statements made during official proceedings.
Yet when a meeting adjourns, public controversies don’t end. In fact, some of the most meaningful exchanges in politics occur outside the formal strictures of a planned meeting. Candidates, councilmembers and citizens get the chance to expound on their views to whoever is willing to listen, rather than being confined to a two-minute prepared statement or a few exchanges during a public comment period. And citizens have the right to know what statements are being made in the informal public arena just as much as in the official forum.
Since the fair report privilege generally only covers formal meetings, the news media is left arguing a fallback position — the “neutral report” privilege — when the controversial information is not in this context. This privilege is not nearly as broadly accepted as the fair report privilege.
After the Supreme Court ruled, Norton’s attorney told reporters that Kennedy “admitted he knew these statements were false. What was withheld from the story is significant information about what this reporter knew about the speaker and some of the speaker’s behavior.”
But ironically, adding additional information may actually be counterproductive, and could lead a court to conclude that the extra reporting removes the shield of the fair report privilege.
The Minnesota Supreme Court held just that in its May 2000 decision in Moreno v. Crookston Times Printing Co. A newspaper report concerning allegations made at a city council meeting about a police officer included followup with the police department about an official investigation into the allegations. That extra information could be viewed as adding credibility to the speaker’s charges and “could increase the defamatory effect” of the article, the court held. Thus, the fair report protection would be lost if the extra information made the statements defamatory in the eyes of a jury, the court found.
So what’s a responsible journalist to do with a false allegation made by a public official — investigate it as if it were just part of another story, or reprint it faithfully with no further reporting or commentary in hopes of being protected by a neutral report privilege?
It’s never good practice to rely on a legal privilege for protection from defamatory reporting. Reporters should always seek to verify, challenge and even rebut allegations made before passing them on to the public. To avoid the Minnesota trap, journalists should be careful to refrain from presenting additional information in a way that gives the appearance of bolstering the speaker’s arguments or validating false, defamatory allegations.
But when the reporter knows the fact is false — or recklessly disregards whether it is true — republishing it will not be protected under the law, except in the few jurisdictions that recognize the neutral report privilege. Journalists can call the Reporters Committee’s hotline, 800-336-4243, for questions about the law in their states and federal circuits.
Maybe the Norton case, or another case to come, will be appealed and decided by the U.S. Supreme Court. But short of that relief, reporters are left with a tough choice when covering public controversies and the often false and defamatory allegations made during heated debates. The public is ultimately the loser, deprived of full and accurate accounts of what their public officials are saying.
Gregg Leslie is the legal defense director of the Reporters Committee.