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From the Winter 2005 issue of The News Media & The Law, page 14. The only case in which the…

From the Winter 2005 issue of The News Media & The Law, page 14.

The only case in which the U.S. Supreme Court has referred to the “neutral reportage” privilege was in 1989’s Harte-Hanks Communications Inc. v. Connaughton, which involved a judicial candidate who sued a newspaper for publishing an accusation by a grand jury witness that he had engaged in “dirty tricks.”

At issue was whether an appeals court had determined that the plaintiff clearly and convincingly proved actual malice.

In a footnote, the Supreme Court noted that the trial court had rejected a neutral reportage defense because the accuser did not qualify as a “responsible, prominent” speaker. Since the newspaper did not raise the issue before the Supreme Court, the court did not review it.

But Washington, D.C., media attorney Lee Levine, who argued the newspaper’s case before the high court, said Justice Harry A. Blackmun’s questions from the bench seemed to indicate a desire to find a way to protect the media in that situation.

“He asked a number of questions at oral argument that basically went to, ‘I don’t see how this is defamatory,'” Levine recalled. “The newspaper wasn’t endorsing these charges, it was just reporting them in a news story in which it was covering all sides of what people were saying.

“I think what Justice Blackmun was going for was, actual malice doesn’t fit this situation; isn’t there a way that the First Amendment protects this, separate and apart from actual malice? It may be neutral reportage, it may be constitutionalization of at least part of the ‘defamatory meaning’ inquiry, but there’s got to be some way that the First Amendment protects it,” Levine said.

Indeed, Justice Blackmun’s concurring opinion in Harte-Hanks noted that because of the “odd posture” of the case, the court could not fully consider certain aspects of potential constitutional significance &#151 including the possible application of neutral reportage. “Were this Court to adopt the neutral reportage theory, the facts of this case arguably might fit within it,” he wrote.

Blackmun’s opinion prompted at least a few legal commentators to draw favorable inferences about the doctrine’s viability.

Whether there is still reason to be optimistic, however, is unclear. Blackmun retired in 1994 and his replacement, Justice Stephen G. Breyer, is “generally counted as not a great friend of the press in these cases,” said Supreme Court correspondent Tony Mauro of Legal Times.

“He’ll balance the competing interests, [but] I don’t think he puts this thumb on the scale for the First Amendment,” Mauro said. “I think he regards it just as one of many factors, no more [weighty] than the other factors.”

A decision on whether the Supreme Court will agree to hear Troy Publishing v. Norton is not expected until this spring at the earliest. — KK