Patterico's Pontifications

3/28/2005

Surprising Non-Ruling

Filed under: Civil Liberties,Court Decisions — Patterico @ 7:14 pm



I am very surprised at this. The Supreme Court has let stand a Pennsylvania Supreme Court ruling that there is no “neutral reporting privilege” implicit in the First Amendment. In plain English, this means that you can be held liable for reporting false allegations, even if it is legitimate news that the accusation was made at all.

In other words, reporting that “Politician Jones said Politician Smith is a child molester” can lead to civil liability, if done with reckless disregard for the truth of the allegation about Politician Smith — even if it is undeniably true that Politician Jones made the accusation.

I would have thought that the mere fact that such an allegation is made is a legitimate news story, regardless of (or perhaps even because of) the lack of a factual basis for the allegation. Letting such a ruling stand has a significant chilling effect on speech. For example: if there is no such privilege, how can a newspaper report fully on a defamation suit, if it cannot republish the statements that give rise to the suit?

I’d like to see Eugene Volokh weigh in on this.

UPDATE: Some quick research appears to indicate that California courts have not yet decided whether the privilege exists in California. A famous Second Circuit case found such a privilege, so you New York journalists appear to be okay. (That’s not legal advice! I don’t give legal advice.) Surprisingly, many other jurisdictions have rejected it. In California, there appear to be some extremely limited statutory provisions in the Civil Code that don’t provide much solace.

This seems like it would have been a perfect issue for the Supreme Court to tackle.

I could be wrong about this; I’m no expert. Justin Levine, where are you when we need you?

19 Responses to “Surprising Non-Ruling”

  1. […] bout the importance of the Grokster case. I still wish he or Volokh would weigh in on the “neutral reporting privilege” issue. […]

    Patterico's Pontifications » Grokster Case is Critical to Free Speech (0c6a63)

  2. Has the US Supreme Court….
    ….gone off the deep end?

    Media Lies (11ee8e)

  3. California newspapers have always (at least since Sullivan vs. New York times Co.) operated under a neutral reporting privelege.
    I cannot remember the press ever being challenged in California.
    Ok, I know you are watching….. what do the LA Times lawyers say?

    Flap (f32e2f)

  4. Flap,

    I think you are confusing the NYT v. Sullivan decision with the neutral reporting privilege.

    Take a hypothetical situation. Flap is running for the state Senate, and his rival calls him a serial rapist. It’s an obviously ridiculous charge. I write a story about it — repeating the charge, but documenting why it’s obviously false, and showing that Flap’s opponent is slinging mud with no basis in fact. In the article, I clearly say: “This publication is certain the charges against Flap are false.”

    Under NYT v. Sullivan, if Flap sues me for defamation, I just admitted liability. I explicitly said I don’t believe the charges against Flap to be true. But I reprinted them anyway.

    If Flap sues me, I lose.

    Although I lose under the Sullivan standard, I would have a defense under the neutral reporting privilege. My argument is that I made it clear to readers that there is no basis to the accusations against Flap. In fact, my story was designed to discredit his opponent for making such scurrilous accusations with no factual basis.

    Without the privilege, I can’t run the story.

    That’s absurd.

    But the Supreme Court, by ducking the case, is allowing such nonsense to prevail.

    I am ashamed of Justice Scalia. Where is his dissent from the denial of certiorari??

    Patterico (756436)

  5. It sucks for Pennsylvania, but on balance I’m glad the Supremes denied cert. Until Justice Stevens, Souter, Breyer, Ginsburg or O’Connor retires, I don’t want the them hearing any First Amendment cases. They’ve done enough damage already.

    Xrlq (c51d0d)

  6. I thought about that. Another argument in favor of the nuclear option, eh?

    Patterico (756436)

  7. “I would have thought that the mere fact that such an allegation is made is a legitimate news story, regardless of (or perhaps even because of) the lack of a factual basis for the allegation”

    Wouldn’t it be easy to disclaim your actual malice by appending a disclaimer, or by stating that ? Publisher liability is well-established: repeating libels is a no-no.

    I’m sure they can come up with non-libelous ways of saying that a libel has occured.

    actus (f9abe0)

  8. Actus,

    Did you read the whole post, the linked material, the update, and the previous comments? If I understand you correctly, you are saying that the publication could say in a disclaimer: of course, this is not true. As I explained to Flap, I think that would simply be an admission that the NYT v. Sullivan “reckless disregard” standard is met.

    Publisher liability is well-established: repeating libels is a no-no.

    Not in jurisidictions that have the neutral reporting privilege.

    Patterico (756436)

  9. In your NYT v SUllivan example, Flap could sue you, but what damages could he expect? Clearly your article exonerates him of any wrongdoing, and indeed helps him in his defense against baseless accusations. He could maybe claim that the baseless charges were given wider play by your actions, but that might have happened anyway, word-of-mouth.

    And he’d be silly to sue since it would make him look churlish if not stupid.

    Kevin Murphy (6a7945)

  10. “Did you read the whole post, the linked material, the update, and the previous comments? ”

    I would think that you would be smart enough that the relevant info would be in your post.

    I’m sure there is a way to discuss the occurrence of a libel without reckless disregard for truth / actual malice. If you’re saying that the charge is not true, its hard to show you have actual malice or reckless disregard for the truth.

    What would make it easier to show you have disregard for the truth, however, would be if you followed today’s fad of objectivity — presenting both sides as equals. “X said Y is a rapist, Y’s camp retorted that it is false and libelous.”

    actus (ebc508)

  11. I’d be interested to know if the intent behind this was based on Michael Moore’s tactics of citing obvious hokum as the basis for convoluted anti-US screeds — and if so to what degree.

    I know this has the potential for misuse but I can also see loopholes under the present system that allow people to essentially fabricate elaborate lies for libelous purposes without actually being liable for breaking any libel laws – since after all their friend’s brother’s third cousin on the father’s side heard it from (blah blah blah – by the time they get done explaining exactly who the quote came from, the listener’s head is hurting too much to really question it or put it in context, which is what the liar is relying on).

    Scott (57c0cc)

  12. What would make it easier to show you have disregard for the truth, however, would be if you followed today’s fad of objectivity – presenting both sides as equals. “X said Y is a rapist, Y’s camp retorted that it is false and libelous.”

    That does it. I’m suing you in Pennsylvania, and inviting Y to join me as a co-defendant. No, I’m not going to post the briefs on the Internet, as doing so would involve the republication of both libels.

    X (c51d0d)

  13. co-defendant = co-plaintiff
    Duh.

    Xrlq (c51d0d)

  14. ” No, I’m not going to post the briefs on the Internet, as doing so would involve the republication of both libels.”

    That would evince a care and high regard for the truth, rather than a reckless disregard for it.

    Thats why X is suing right? Because it cares about the truth?

    Maybe I need to read up on this ‘neutral reporting’ exception, but as far as I know I don’t think its very “neutral” to pass on what you recklessly know to be false.

    actus (ebc508)

  15. Johnny Cochran: The Supreme Court Case (What now?)
    Of course I am not the only one who feels the need to speak ill of Johnnie Cochran. But Cochran’s death now begs the question: Since most courts still hold that you can’t libel a dead man, is the important…

    Calblog (2fb2f0)

  16. One of the most important Supreme Court Cases of our lifetimes
    Some (even many) may think that I am being a bit hyperbolic in my title for this post. But I honestly think its true. As bad as the dilution of the neutral reportage privilege is in terms of free speech,…

    Calblog (2fb2f0)

  17. Hmmm …

    Does this mean a newspaper could not report on a libel suit? Or that it could, but not if it mentioned the cause of the suit? Seems like “public record” isn’t a valid defense either.

    Kevin Murphy (6a7945)

  18. Kevin,

    That was one of the points I made in my post.

    Patterico (756436)


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