New Jersey newspaper appeals “fair report” ruling

From the Winter 2010 issue of The News Media & The Law, page 21.

The New Jersey Supreme Court is poised to decide whether a 2008 libel ruling that considerably narrowed the protections afforded to journalists who report from court documents should be overturned.

The appeals court effectively ruled that the state’s fair report privilege, which protects journalists from libel liability provided their stories are accurately based on official court filings, only applies to court decisions, not pretrial filings — a sharp departure from prior interpretations of the privilege that would fundamentally affect day-to-day coverage of the courts.

The case, Salzano v. North Jersey Media Group, began when Hackensack’s The Record ran a story based on a complaint filed by a bankruptcy trustee for the Newark-based telecommunications company NorVergence that alleged Thomas John Salzano, the son of a NorVergence executive, had misappropriated roughly $500,000 from his father’s company.

The article, which also appeared on the on the paper’s Web site and in the community newspaper The Glen Ridge Voice, ran under the headline “Man Accused of Stealing $500,000 for High Living” and said Salzano “allegedly stole close to $500,000 from the company, using the money to pay for drinks, trips to area clubs and for a five-bedroom Glen Ridge house.” It attributed the information to the trustee’s bankruptcy court filing.

The trial court dismissed the libel claim, citing the fair report privilege. But a New Jersey appellate court ruled that though the fair report privilege has long protected journalists who report from official proceedings, the privilege only applies when journalists quote from court decisions or “judicial actions” — not from court pleadings filed by individual parties or other pretrial filings.

In January of last year, the New Jersey Supreme Court suspended the effect of the appellate ruling — essentially returning the law to its previous, more media-friendly state — until it hands down its opinion. Oral arguments in the case took place in October 2009, but the state Supreme Court has yet to rule.

Bruce Rosen, attorney for the North Jersey Media Group, which owns The Record, said that the narrow approach suggested by the appellate court is used only in a minority of jurisdictions across the country due to an established unwillingness to dictate from which sources the media can report.

“The reluctance is old, and so is the rationale that the courts need to be paternal and supervise what the press writes,” Rosen said, citing modern treatises on defamation that say the privilege should be broadly construed. “The bread and butter of all media, new and old, is reporting from courts.”

Because the appellate decision said that the fair report privilege applies only to judicial actions, Rosen said that in modern litigation, a case could be filed, held up for two years, and then settle out of court — without ever being covered by the news media.

“Does that mean you could never write about the case?” he said. “It’s really hard to imagine in this day and age, with TMZ and almost every major website including copies of court filings. If a document is filed, there’s really no good answer to why it shouldn’t be covered by fair report privilege.”

Other states have chosen to construe the fair report privilege quite broadly.

In Howell v. The Enterprise Publishing Company, the Massachusetts Supreme Judicial Court on Jan. 7 dismissed a libel suit against a Brockton newspaper, ruling that information in a series of articles on a fired sewer department employee was protected by the fair report privilege, though it was obtained anonymously, because it accurately reflected an official government action.

When the newspapers in the Salzano case appealed the appellate court’s decision to the state Supreme Court, The Reporters Committee for Freedom of the Press joined 18 other news organizations to support a friend-of-the-court brief filed by the New Jersey Press Association. The brief argued that limiting the fair report privilege chills speech by making it nearly impossible for reporters to know what type of court documents will be covered by the privilege.

The brief urged the New Jersey court to find that the fair and accurate reporting of information contained in public court documents is constitutionally protected.

Others who signed onto the media brief were ABC, Advance Publications, The New York Times Company, NYP Holdings, Gannett, The Associated Press, Daily News, Dow Jones, NBC Universal, Courthouse News Service, First Media, ALM Media, the Newspaper Association of America, the American Civil Liberties Union of New Jersey, The Association of American Publishers, WPIX and the American Society of News Editors.