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The U.S. Supreme Court has been asked to consider the controversial 'neutral reportage' privilege From the Winter 2005 issue of…

The U.S. Supreme Court has been asked to consider the controversial ‘neutral reportage’ privilege

From the Winter 2005 issue of The News Media & The Law, page 13.

By Kimberley Keyes

Ten years after a Pennsylvania newspaper accurately reported that a local politician called two colleagues “queers and child molesters,” the U.S. Supreme Court has the chance to decide a First Amendment issue it has never tackled head on.

The West Chester Daily Local News asked the high court on Jan. 18 to review a Pennsylvania Supreme Court decision rejecting the media’s “neutral reportage” defense. At issue is whether the First Amendment shields the media from liability when they accurately and objectively report a defamatory accusation by one public official against another &#151 even if they doubt the truthfulness of the charge.

The case, Troy Publishing Co. v. Norton, arose from a 1995 newspaper article about longtime infighting among members of the Parkesburg Borough Council. The Daily Local News reported that Councilman William T. Glenn Sr., who was up for re-election, issued a written statement accusing Council President James B. Norton and Parkesburg Mayor Alan M. Wolfe of being “queers and child molesters.” The statement &#151 which Glenn tried unsuccessfully to read aloud at a public meeting &#151 also claimed Norton had made sexual advances toward him. Reporter Tom Kennedy included in his story comments from Norton and Wolfe, who denied the allegations and urged Glenn to “get the help he needs.”

Norton and Wolfe sued Glenn and Kennedy, as well as the paper’s editor and publisher, for defamation and false light invasion of privacy. The trial court ruled that the three media defendants were protected by the neutral reportage privilege, which allowed them to accurately report Glenn’s statements even if published with actual malice, meaning they knew the charges were false or recklessly disregarded whether or not they were true. The court initially confused the doctrine with the better-known “fair report” privilege, which shields the publication of statements made in the context of a government proceeding, but later clarified the distinction.

On appeal, the Pennsylvania Superior Court refused to adopt the neutral reportage privilege and reversed the trial court’s decision. The Pennsylvania Supreme Court affirmed, concluding that neither the First Amendment nor the state Constitution mandated adoption of the privilege.

Federal and state courts are split on whether neutral reportage is a constitutionally viable doctrine. Many that have rejected the privilege, including Pennsylvania, point out that it protects the media more broadly than the actual malice standard. Under the U.S. Supreme Court’s current First Amendment jurisprudence, the press may be held liable for defaming a public official if it “entertained serious doubts” about the truthfulness of a published statement about that person.

But proponents of the doctrine say it is necessary to enable the media to report newsworthy accusations that arise in the context of public controversies involving government officials.

“Here, it seems to me there can’t be any question that the public needed to know what this fellow [Glenn] was saying about other public officials, because it reflected upon his ability and competence to serve as a public official,” said media lawyer Lee Levine of Levine Sullivan Koch & Schulz in Washington, D.C. “It served to give people information they needed to make judgments about who to vote for for public office, and it gave people information to assess whether or nor their government was functioning well, because this guy was disrupting the meeting.

“For all of those reasons, it can’t be that the First Amendment does not protect this disinterested, neutral, non-endorsing report of what this guy had to say,” he said.

First Amendment lawyer Floyd Abrams of Cahill Gordon & Reindel in New York agreed the Pennsylvania case illustrates the need for the neutral reportage privilege.

“With respect to the publication of statements such as those involved in [this] case, the actual malice doctrine is of very little help to the press, since the journalist frequently does not believe &#151 or in any event has no idea whether to believe &#151 the charges made,” he said.

In 1977, Abrams convinced the U.S. Court of Appeals in New York (2nd Cir.) to adopt the neutral reportage privilege in the seminal case Edwards v. National Audubon Society. There, several scientists sued Abrams’ client, The New York Times, and two Audubon Society employees, Robert Arbib and Roland Clement, over a news story in which Arbib essentially called the plaintiffs paid liars for claiming that bird populations were thriving despite use of the controversial insecticide DDT. The Times reporter who wrote the article, Jack Devlin, was following up on similar charges Arbib had made a few months earlier in the Audubon Society publication American Birds.

The jury was instructed that “the Times could be found guilty of actual malice if Devlin had serious doubts about the truth of the statement that the [scientists] were paid liars, even if he did not have any doubt that he was reporting Arbib’s allegations faithfully.” The jury found the Times and Clement liable for defamation, and awarded the plaintiffs more than $60,000.

The Second Circuit reversed, holding that “when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter’s private views regarding their validity.”

“What is newsworthy about such accusations is that they were made,” the court stated. “The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.”

The Supreme Court declined to review the Edwards case. Since then, various state and federal courts have adopted the privilege while others have rejected it.

Now, nearly 30 years later, the high court has a chance to rule on the neutral reportage privilege in Troy Publishing.

“It probably is enough of a ‘newsworthiness’ argument that they might look favorably on the press argument,” said Tony Mauro, Supreme Court correspondent for Legal Times. “Although when there’s sort of a privacy issue lurking in the background &#151 personal privacy &#151 I think they seem to be grudging in giving the press any kind of leeway.”

Levine, who is submitting a friend-of-the-court brief to the Supreme Court on behalf of numerous media organizations including The Reporters Committee for Freedom of the Press, said Troy Publishing presents an “ideal test case.”

“It is a case in which truly what is newsworthy about the allegations is that they were made,” not whether they were true, he said.

Reporter Kennedy also unquestionably had “serious doubts” as to the truth of Glenn’s accusations, “which would, under a strict reading of the actual malice standard, warrant a finding of liability &#151 which is absurd,” Levine said.

Finally, he said, the case involves accusations by one public official against other public officials, so the Court need not grapple with “dicey” issues such as whether the accuser is sufficiently responsible or prominent, or whether the plaintiff is a public figure.

Troy Publishing illustrates a situation not envisioned by the high court in New York Times v. Sullivan, according to Levine. The landmark 1964 decision fashioned the actual malice rule to apply to “garden-variety” defamation cases, “where a newspaper is reporting false and defamatory facts about a public official,” he said. But the Court also explained the “central meaning” of the First Amendment and why it protects political speech and reporting on public affairs.

Levine contends there can be a “disconnect” between these two ideas, as demonstrated by Troy Publishing, “where to vindicate our overriding interest in having wide-open and robust debate about public matters, you’ve got to protect speech, even though a strict application of . . . the actual malice rule would not impose any First Amendment limitation on state tort law,” he said.

The fact that so many federal and state courts are split on the question of neutral reportage may encourage the Court to take the case.

“It’s hard to say, in most situations, whether the Court will take a case,” Abrams said. “Certainly there is significant division in lower courts around the country as to whether neutral reportage is a constitutionally required principle.”

Michael E. Baughman of Dechert LLP in Philadelphia, attorney for Troy Publishing Co., declined to predict whether the high court will accept the case. “We have a compelling case, both because it’s a very important issue and is sort of divided in the lower courts . . . and the facts of our case in particular are compelling,” he said.

Both Levine and Baughman also said the case is attractive because it involves statements by one public official against others, so the Court could issue a narrow ruling.

“Courts want to proceed incrementally and they don’t want to bite off more than they need to [in order] to reach a ruling, so I think it’s both fortuitous and good that we have a public official versus public official situation here,” Levine said.

But the issue for the Supreme Court is not just whether there ought to be a neutral reportage privilege, both attorneys said. Some lower courts, while not expressly embracing the doctrine, have refused to hold the media liable for accurately reporting allegations regardless of their truth.

A U.S. District Court in Virginia last year, for example, dismissed scientist Steven Hatfill’s libel suit against Levine’s client, The New York Times, for failure to state a claim. Times columnist Nicholas Kristof accurately named Hatfill as someone whom biodefense experts had fingered as deserving FBI scrutiny in its anthrax investigation. The court found that Kristof’s columns were not reasonably capable of a defamatory meaning.

Neutral reportage “is the way one set of courts have chosen to deal with this situation, but the real question is, does the First Amendment protect this kind of reporting?” Levine said. “And whether you call it neutral reportage or whether you say it’s because in this context this report didn’t have a defamatory meaning because it didn’t endorse the statements the guy made, or whether you treat it as something else, there needs to be a First Amendment basis on which state tort law can be precluded from rendering this kind of speech actionable.”

Baughman, who cited the Hatfill case in Troy Publishing’s petition to the Supreme Court, also said the label one attaches to this type of journalism does not matter.

“There’s a couple of different ways you can look at it, but it all leads you to the same place, which is if you have accurate reporting of an event that is true, it ought to be protected under a whole line of cases . . . that say that true speech is protected,” Baughman said. “Another way to look at it is, these are not statements we are asserting as our own statements of fact. The implication a reasonable reader would draw is that we are reporting what happened, not espousing or concurring in the charges.

“I think whatever label you use, it’s protected under the First Amendment,” he said.

Some observers believe the Court deliberately has chosen not to disturb longstanding libel doctrines, according to Mauro. “Libel has been pretty settled law for the last decade or so,” he said. “I think a lot of people who follow these things have gotten the general feeling that the Court has a lot of other fish to fry.”

Norton’s and Wolfe’s briefs in the case are due Feb. 23, after which Troy Publishing will have time to reply. A decision on whether to accept the case is unlikely before March and the Court stops hearing cases from this term in April, so if it accepts Troy Publishing, oral arguments likely would not be scheduled until November, Mauro said.

Even if the Court declines to hear Troy Publishing, Abrams predicted that it will address the neutral reportage question within the next few years.

“It’s a very interesting issue, and it’s the sort of issue that interests the Court,” he said. “I think regardless of the view of the Court or of the public about the press, the question raised by the neutral reportage doctrine, and the consequences of not having it, are real enough so that I think the Court will at some point, reasonably soon, be interested enough to take it.”