A Newsworthiness Privilege for Republished Defamation of Public Figures

AuthorMatthew J. Donnelly
PositionJ.D. Candidate, The University of Iowa College of Law, 2009
Pages01

J.D. Candidate, The University of Iowa College of Law, 2009; B.S.J., Medill School of Journalism, Northwestern University, 2003. I dedicate this Note to the editors and writers of Volume 94 of the Iowa Law Review.

Page 1025

I Introduction

At a borough council meeting, a councilmember claims that he saw the borough mayor and the council president engaging in a homosexual act in the council president's house.1 The same councilmember issues a statement "strongly implying" that he considers the council president and the mayor to be "'queers and child molesters'" and that the councilmember feels obligated to make the public aware of this information.2 The accusations are false.

A reporter for a local newspaper takes down the councilmember's comments and records the mayor's reaction: "'If [the councilmember] has made comments as bizarre as that, then I feel very sad for him, and I hope he can get the help he needs.'"3 Though the reporter knows that the substance of what the councilmember said is false, the reporter includes the councilmember's exact statements in an article headlined "Slurs, insults drag town into controversy";4 the news is not that the council president or mayor may be guilty of the outrageous charges, but rather that an elected official would make such allegations. Regardless, the mayor and council president sue the councilmember-and the newspaper-for defamation and republished defamation, taking their case all the way to the state supreme court, and win.5

Such were the facts of Norton v. Glenn, in which the Pennsylvania Supreme Court wrestled with the right of the media to republish defamatory comments about public figures when the media know that the comments are defamatory.6 Since New York Times Co. v. Sullivan, when the U.S. Supreme Court ruled that public figures cannot sue the media for publishing false information unless the media did so with reckless disregard for the truth,7courts have disagreed about how to handle cases where the media knowingly publish false-yet-newsworthy information. This Note urges courts, when assessing liability of the media for republished defamation of public figures, to protect republication when it was newsworthy that the original party made the defaming statement.

Courts have largely used proxies for newsworthiness rather than newsworthiness itself. One common-law response to the dilemma of Page 1026 republished-yet-newsworthy defamation was the fair-reporting privilege, which protected all fair and accurate accounts of defamation that occurred at public meetings.8 Other courts have adopted a similar but expanded privilege-the neutral-reporting privilege-that protects fair and accurate accounts of defamation, so long as the republished information came from a prominent source.9 Other courts, such as the Pennsylvania Supreme Court in Norton}10 have hewed to Sullivan's exact language and explicitly declined to protect any form of republished defamation.

The arguments for and against a privilege for republished defamation reflect divided perspectives on the enormous latitude that sullivan has granted the media to print falsehoods. In broad terms, those who oppose media restrictions believe that rulings like Norton reduce the media's tenacity and lead to self-censorship,11 while those who support media restrictions believe that they promote diligence and accuracy.12 However poor its reasoning,13 Norton shows how unsettled defamation law remains and even indicates judicial unrest with Sullivan itself.14 Justice Scalia said that he Page 1027 would vote to overturn Sullivan if given the chance,15 and Justice Thomas has repeatedly made comments that the press is "universally untrustworthy."16 Such sentiments could embolden a backlash against the years of deference that Sullivan has afforded the press.17

A fairer and more workable solution would be for courts to use newsworthiness as general criteria by which to evaluate republished defamation of public figures. Such a privilege would have two prongs: (1) whether the defamation was reported in an accurate and fair manner and (2) whether it was newsworthy that the defamatory remarks were made, given their context. A newsworthiness privilege would encourage courts to consider not only who uttered the defamation (neutral reporting) or where and when the defamation was uttered (fair reporting), but also what was uttered, how it was uttered, and why it was uttered. Indeed, several state courts have already made determinations of newsworthiness in republished defamation cases, as well as in other areas of law.18 A judicial determination of newsworthiness would promote responsible reporting by creating broader but not overly burdensome legal oversight of newsroom decisions,19 while giving the media more freedom to report the news.20

Part II discusses the fair-reporting privilege, New York Times Co. v. Sullivan, and the neutral-reporting privilege developed in Edwards v. National Audubon Society, Inc."21 Part III surveys courts' attempts to define newsworthiness, the pitfalls that those courts have encountered, and how the media themselves define newsworthiness.22 Part IV discusses why a newsworthiness standard would benefit both defamation plaintiffs and the media.23 Part V offers a hypothetical scenario to illustrate how a Page 1028 newsworthiness privilege would function compared to the fair-reporting privilege, the neutral-reporting privilege, and a regime without any privilege.24

II Privileges for Republished Defamation

The law of republished defamation has its origins in the common law, but it has been through a whirlwind of change since the U.S. Supreme Court revolutionized libel law in New York Times Co. v. Sullivan..22, The Sullivan Court's test for libel of public figures, however, left unanswered an important question with regard to republished defamation-when can the media knowingly reprint republished defamation of public figures.26

A The Fair-Reporting Privilege

Common law treated a party republishing defamation no differently than the original defamer.27 Both the republishing party and the original speaker were strictly liable for any harm that the defamation caused.28 The fair-reporting privilege protects "knowing republication of defamatory statements in specified settings without regard to the plaintiff's identity."29Originally intended to protect news of trials in England, the privilege was extended in the United States to cover administrative, executive, and legislative proceedings in order to supervise officials' acts and allow the media to act as the public's agent.30 Page 1029

As an example, in Medico v. Time, Inc., Time magazine published an article about the suspected criminal activities of Congressman Daniel Flood.31 The article cited evidence culled from FBI sources.32 In holding for Time magazine's right to exercise the fair-reporting privilege, the court stated, "To ameliorate the chilling effect on the reporting of newsworthy events occasioned by the combined effect of the republication rule and the truth defense, the law has long recognized a privilege for the press to publish accounts of official proceedings or reports even when these contain defamatory statements."33 The privilege generally hinges on the original source of the defamation-where it was first published. Application of the fair-reporting privilege, however, is by no means uniform among courts.34

B New York Times Co. v. Sullivan: The Actual-Malice Standard For Defamation

Modern defamation law dates back to New York Times Co. v. Sullivan.55 In Sullivan, the U.S. Supreme Court held that the media could only be liable for defamation of a public official upon proof that the media published false material with a reckless disregard for the truth.36 Prior to Sullivan, media publishing false information were liable for defamation upon the plaintiff's production of proof that the information was false.37 The facts of Sullivan illustrate just one of the problems with the old standard.

The Sullivan case had its origins in the Reverend Martin Luther King Jr.'s nonviolent protests against racial discrimination in Montgomery, Alabama.38 King's supporters placed an advertisement in the March 29, 1960 Page 1030 edition of The New York Times entitled "Heed Their Rising Voices," which asked readers for donations to support King's cause of racial integration in the South.39 The advertisement described an "unprecedented wave of terror" meeting protestors.40 The problem occurred in the advertisement's third paragraph, in which its authors claimed that police, "armed with shotguns and tear gas," expelled protestors from Alabama State College's campus.41 This was undisputed. The paragraph then, however, went on to detail more outrageous acts, using either passive-voice verbiage or the subject pronoun "they" to describe the parties, such that the advertisement could be read to ascribe the attempted assassination of King and the bombing of his home to the local police.42 L.B. Sullivan, a Montgomery police commissioner, sued for libel, and the U.S. Supreme Court ultimately granted certiorari.43

The Court's defense of the Times' right to publish defamation was broad and sweeping.44 Citing John Stuart Mill's On Liberty, ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT