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The fair report privilege may not be the best legal approach in defending journalists from defamation suits. From the Summer…

The fair report privilege may not be the best legal approach in defending journalists from defamation suits.

From the Summer 2006 issue of The News Media & The Law, page 37.

By Peter Saharko

Jose Spencer Sotelo is not a sex offender, but two news outlets in Texas reported that he is. To the untrained observer, Sotelo’s case would seem a classic example of libel.

But the source behind the inaccurate reports was a press release from the local police department. Texas news organizations are immune from liability under the fair report privilege, which allows journalists to report incorrect information if it comes directly from an official source.

Two recent state court decisions again affirmed reporters’ right to be free from liability when they fairly report on a public proceeding as occurred last year in Sotelo’s case. But lingering questions remain in many states about what journalists can report when they know or should have known a public official’s statement is false.

Questions also remain about whether the fair report privilege should be absolute or qualified — meaning it can be overcome in certain situations — and even where that is settled, some media attorneys have begun to question whether formally asserting the privilege is the most effective means of ensuring such cases are dismissed before media companies spend time and resources fighting them.

Illinois’ highest court held in June in Solaia Technology v. Specialty Publishing Co. that reporters have an absolute privilege from liability when reporting accurately on an official proceeding, regardless of whether they knew of or recklessly disregarded the falsity of those reports.

A Texas appellate court, in Freedom Communications, Inc. v. Sotelo, applied state law in finding in June that journalists were protected by a qualified privilege because they reported without reckless disregard for the truth or knowledge of falsity.

The Illinois case centered on Start magazine’s 2002 articles about Solaia Technology and its patent infringement lawsuits against manufacturers. The fair report aspect of the defamation case involved Start‘s reporting on an antitrust case filed by manufacturer Rockwell Automation against Solaia, the holder of the patent, and plaintiff in the case. The state’s highest court held Start‘s reporting was protected from liability because it was an accurate summary of Rockwell Automation’s suit.

“Plainly, freedom of the press is illusory if a cloud of defamation liability darkens the media’s reports of official proceedings,” wrote Illinois Supreme Court Justice Thomas R. Fitzgerald.

In the Texas case, two media organizations incorrectly identified a man as a sex offender because they accurately reported what police officials told them. Despite the false information reported about Sotelo, KWES-TV, the Odessa American and its reporter David Jay Lee were immune from liability because the incorrect information came from an Odessa Police Department news release, the Texas Court of Appeals in Eastland ruled, reversing a lower court decision.

Under Texas law, “the qualified privilege is lost when the communication is made with malice, and here [the media companies] negated malice,” said Charles Babcock, a Texas media attorney.

Both cases cited the Restatement of Torts section 611, the leading summary of the legal standard on the issue, which reads, “the 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.”

“The Restatement, I think, has it right,” said Lee Levine, a media attorney in Washington, D.C. “I think the general consensus both among the courts and among scholars is that it is absolute, as the Illinois court ruled.”

Courts have found a common law, statutory law and a constitutional basis for the fair report privilege. States such as New York and California have passed laws establishing an absolute privilege for fair reportage. Texas, on the other hand, offers a qualified privilege based on statute, which does not extend to statements made with knowledge of or reckless disregard for falsity. Illinois now has affirmed a common law privilege.

Sondra Hemeryck, the attorney representing Specialty Publishing in the Illinois case, said the trend is towards the state Supreme Court’s common law approach, but some confusion remains about the standard for defeating the privilege.

Journalists in some states also face an unusual twist, where diligence in following up on uncertain allegations can increase, rather than lessen, the potential for liability. In Moreno v. Crookston Times Printing Co., Minnesota’s highest court concluded in 2000 that the additional investigation by a Minnesota daily newspaper of allegations against a police officer made by a citizen at a public meeting added credibility to the charges and “could increase the defamatory effect” of the article.

Absolute v. qualified

Critics of an absolute privilege argue that if journalists know or should have known the allegations they are reporting are false, they should not print them. To media attorneys, that criticism misses the point.

John Bussian, an attorney representing Freedom Communications in the Texas case, said the factual determination of whether actual malice exists often results in long periods of deposition taking, document productions and even jury trials.

“The significance [of an absolute privilege] is probably obvious – you don’t have to get into proving your state of knowledge at the time of publication or broadcast, which can sometimes be a grueling process because of the way the law of actual malice has developed,” Bussian said.

Babcock agreed that the advantage of an absolute privilege is the elimination of the threat of costly and time-consuming litigation, a guarantee that press freedoms will not be chilled by a bad court decision.

“The importance of what is said is the fact that the government is saying it,” Babcock said. “It’s true that the government issued this press release. . . . It’s true that they made these allegations about him. The underlying facts may not be true, but it’s important that the press be able to report the allegations, without needing to prove the truth of them.”

Even among courts that recognize an absolute privilege, certain specific applications of the privilege remain unsettled, especially for court and justice reporters. One issue on which courts split nationally but on which Illinois found for the media defendants is on the question of lawsuits that have been filed but have not yet gone before a judge. States including Colorado, Massachusetts, and Minnesota do not extend the privilege to accusations contained in pleadings for cases that have not been filed with the court. New York, Washington, D.C., California, and many other jurisdictions, grant the privilege beginning when the lawsuit is filed, according to state rules.

In the Illinois case, Justice Charles E. Freeman’s partial concurrence/partial dissent from the majority warned of the implications of allowing the privilege for reporting on lawsuits in their early stages.

“The majority’s holding invites collusion between a party who files a frivolous complaint containing defamatory statements and a defendant who publishes the defamatory statements, with full knowledge of the falsity of the statements but with equal certainty of protection through application of the fair report privilege,” Freeman wrote.

Hemeryck said the absolute privilege is crucial.

“The purpose of the fair report privilege is to make sure the public has access to fair and accurate reports of what is said in public proceedings and in order to do that you need to protect the reporters who are making those reports so long as they are fair and accurate,” Hemeryck said. “If you start looking at underneath that [at the truth or falsity of the allegation]… then you undermine the reporters ability to give the fair and accurate report to the public.”

Depends on the meaning of the word “It”

Basing truth or falsity on the fact that government spoke, rather than on what the government said, is the basis of a different approach to defending libel or defamation suits in Texas, Babcock said.

“One school of thought is that if you can advocate and persuade the courts, as occurred in Illinois, that the privilege is absolute and the only issue then is whether or not the report was made and accurately portrayed in the media, then you can get out of a lot of cases [decided] at summary judgment at an early stage . . .,” he said. “The other school of thought is that while useful, the fair report privilege sounds like something special that the media is getting and many judges, especially in more conservative states like Texas, react badly to giving the media special privileges.”

Babcock said there is a growing sentiment among media lawyers that the better way to attack a case dealing with newsworthy allegations is to link the truth or falsity element of a libel or defamation case to truth of falsity of whether official allegations were in fact made, rather than the truth or falsity of the facts of the underlying allegations.

“On summary judgment, the trick is defining the ‘it’,” Babcock said. “Is the ‘it’ the newsworthy allegations that have been truthfully reported or is the ‘it’ the truth of the allegations behind the statement?”

Babcock said Texas courts have been overwhelmingly receptive to defining the ‘it’ as the fact the allegations were made, rather than the content of the allegations. The effect is the same protection as the “fair report” privilege without requiring judges to rule that journalists are offered a special privilege.

In a 1997 case, KTRK Television v. Felder, the Texas Court of Appeals ruled that the “report” in a libel or defamation case is merely that allegations were made and are under investigation, and that the media company must prove only the substantial truth of the fact that the allegations were made.

“Otherwise the media would be subject to potential liability every time it reported an investigation of alleged misconduct or wrongdoing by a private person, public official, or public figure,” then-Chief Justice Paul C. Murphy wrote for the court.

Such an approach would encompass the spirit of the fair report privilege but avoids the use of “privilege” and also makes malice irrelevant, as the state of mind in reporting on the truth that allegations were made would be irrelevant.

In a related case, the Tarrant County District Court in Texas in June granted the motion of ABC News, journalists Charles Gibson and Brian Ross, and other defendants in a case involving Gamal Abdel-Hafiz, an FBI agent of Muslim faith who was alleged to have refused to secretly record other Muslims. Abdel-Hafiz sued, and Babcock, representing ABC, used the “substantial truth that an allegation was made” approach in arguing successfully for summary judgment.