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'Neutral reportage' privilege recognized

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NEWS MEDIA UPDATE   ·   UTAH   ·   Libel   ·   May 11, 2005

NEWS MEDIA UPDATE   ·   UTAH   ·   Libel   ·   May 11, 2005

‘Neutral reportage’ privilege recognized

  • Fair and accurate reporting of potentially defamatory statements made during a public controversy is protected by the neutral report privilege, the Court of Appeals of Utah ruled in early May.

May 11, 2005  ·   Reporting that federal government employees have dubbed a serial Freedom of Information Act requester and litigant a “FOIA terrorist” does not support a claim of defamation because the story was an “accurate and disinterested” report covered by the neutral report privilege, the Court of Appeals of Utah ruled last week..

It appears to be the first time the neutral report privilege — which protects accurate reporting of potentially defamatory statements in a public controversy — has been applied in a Utah appellate court.

In May 2003, The Salt Lake Tribune published a story about Salt Lake City resident Barbara Schwarz headlined “S.L. Woman’s Quest Strains Public Records System.” Schwarz has filed thousands of open records requests with the federal government and unsuccessful lawsuits against thousands of federal government employees for failing to disclose records.

Schwarz’s requests involve records she believes confirm her claims — recited in her numerous open records requests and on her Web site — that she is the granddaughter of President Dwight Eisenhower, daughter of Church of Scientology founder L. Ron Hubbard, that she was born in a village located in a submarine under the Great Salt Lake, that her husband is being held by the government for her murder, and other claims involving mind-control conspiracies and Nazi kidnaping, according to the Tribune article.

The Department of Justice has authorized government employees to refuse to respond to her requests until she pays outstanding fees for past requests, and two U.S. Courts of Appeals have ruled that her requests and lawsuits are frivolous.

The Tribune’s story elaborated on her claims, requests and lawsuits, and the burden government employees claim she has placed on government resources.

“As perhaps should have been expected when writing about vexatious litigants, Ms. Schwarz sued The Tribune after the Article was published,” Tribune attorney Michael O’Brien said in court documents. The trial court dismissed her lawsuit, and on May 5 a three-judge panel of the Court of Appeals affirmed in a short unpublished opinion.

Citing the seminal 1977 decision of the U.S. Court of Appeals in New York (2nd Cir.) in Edwards v. National Audubon Society, Judge James Z. Davis wrote that the Tribune article was protected by “the neutral reportage privilege because it contains ‘accurate and disinterested reporting’ of the information contained in the record.”

In Edwards, the U.S. Court of Appeals recognized a privilege to report potentially libelous accusations arising in public controversies. “What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth,” Judge Irving R. Kaufman wrote. “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.”

In March, the U.S. Supreme Court declined to review a decision of the Supreme Court of Pennsylvania that the neutral report privilege is not recognized in that state.

(Schwarz v. Salt Lake Tribune, Media Counsel: Michael O’Brien, Jones Waldo Holbrook & McDonough, Salt Lake City)GP

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