To Be or Not to Be, Malice Is the Question: an Analysis of Nebraska's Fair Report Privilege from a Press Perspective

• Publication year: 2022

36 Creighton L. Rev. 21. TO BE OR NOT TO BE, MALICE IS THE QUESTION: AN ANALYSIS OF NEBRASKA'S FAIR REPORT PRIVILEGE FROM A PRESS PERSPECTIVE

Creighton Law Review

Vol. 36

MICHAEL C. COX(fn*) Elizabeth M. Callaghan(fn**)

I. INTRODUCTION

The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious.(fn1)

Protection for publishing matters of public concern originated primarily from two sources - one is constitutional, beginning with the rules articulated in New York Times Co. v. Sullivan.(fn2) The second is the common law, where a privilege known as the "fair report" privilege or "record" privilege developed.(fn3)

Historically, the republication of a libel was actionable under the common law maxim that "tale bearers are as bad as tale makers."(fn4) In other words, courts traditionally held that "in giving currency to libelous or slanderous reports and publications, a party is as much responsible, civilly and criminally, as if he had originated the defamation."(fn5) The fair report privilege, however, protects both the press and individuals for the republication of libelous matters.

A majority of the states have adopted some form of a fair report or record privilege that provides protection when reporting on public hearings and official documents. These states, however, are not consistent in the amount of protection their privileges provide. A number of states apply a common law qualified privilege similar to that in section 611 of the First Restatement of Torts, while almost an equal number apply the absolute privilege articulated in section 611 of the RESTATEMENT (SECOND) OF TORTS.

While most forms of the fair report privilege have been adopted to provide protections to any entity reporting on official documents, proceedings or meetings,(fn6) the purpose of this article is to examine the conflicting fair report privileges throughout the United States and address why a change in Nebraska's fair report privilege is necessary.

The article begins with an examination of the history of defamation law from the press' perspective in order to understand the emergence of defamation law into regulation of the press. The history and evolution of the fair report privilege follows to aid in understanding why fair report privileges were adopted in the majority of the states. This short discussion is followed by a discussion of the codification of the privilege in the original Restatement of the Law of Torts and the RESTATEMENT (SECOND) OF TORTS in order to gain an understanding of where Nebraska's current standard for the fair report privilege developed from and where it should go in the future. A brief discussion of the introduction of constitutional principles into defamation law is included to show the historical background these principles played in the development of the modern version of the fair report privilege. Examining the current status of the privilege across the United States then shows the move a number of states have taken by adopting the modern version of the fair report privilege. The article concludes with an analysis of the need for a change in Nebraska law regarding the fair report privilege.

II. HISTORY & DEVELOPMENT OF DEFAMATION LAW

In order to have a clear understanding of the development of defamation law, a brief history of the development of the press and regulation of the press in English history is necessary. England was introduced to printing, and therefore the press, in 1476.(fn7) However, it was not until the reign of Henry the VIII that strict regulation of the press began.(fn8) This strict regulation of the press lasted for centuries and survived a number of historic periods.(fn9)

Throughout its lengthy history, regulation of the press took a number of forms. Common regulations included royal proclamations that prohibited certain publications, investigations by the Privy Council into alleged seditious publications, and a comprehensive licensing system.(fn10) In fact, in 1586 a decree was issued that required all books to be licensed by the Archbishop of Canterbury and the Bishop of London.(fn11) Even law books required a license issued by the Justices.(fn12)

The establishment of Parliament did nothing to divert strict regulation of the press in England. Parliament conducted investigations and took action on any publication they deemed to be an "obnoxious publication" or "whenever a particularly irritating publication appeared."(fn13) Heavy regulation of the press continued to the time of the Commonwealth and after the Restoration.(fn14) In the 17th Century, the Printing Act of 1662 was passed, and the high level of control that the English government exercised over the press could be seen in the statutory language. The Printing Act continued to require the licensing system that was already in place, along with a number of other regu-lations on publications.(fn15) Although the Printing Act expired in 1694, regulation of the press continued.(fn16)

During this heavy regulation of the press, a common law action for defamation emerged that placed even greater restrictions on the press. "The common-law claim of defamation at civil law sought to redress those injuries to reputation caused by the publication of false information damaging another's reputation."(fn17) The English common law claim of defamation held a defendant liable for defamation if an unprivileged publication, that contained false or defamatory statements, injured the reputation of the plaintiff, even if the defendant was not at fault.(fn18) Therefore, a defamation claim under the common law imposed strict liability.(fn19) A party asserted a common law claim for defamation under one of two separate tort theories: libel or slander. "In short: libel is written or visual defamation; slander is oral or aural defamation."(fn20)

Libel, the tort that is the focus of this article, began as a criminal offense in the common law.(fn21) It was generally considered a protection of the reputation or inviolability of government and the ruling class, including feudal lords, monarchs, and the church.(fn22) "Prosecutions for seditious libel and proceedings by the House of Commons and the House of Lords against publishers for breach of parliamentary privilege were major vehicles of suppression during the eighteenth century."(fn23) Truth was not a defense to a libel charge, and the charge normally arose out of a writing that injured the reputation of the state, an established religion, or an individual who would be provoked to breach the peace.(fn24)

"By the 19th Century, libel was focused on community-based reputational or good name interests of the individual citizen."(fn25) Libel developed into a civil action as opposed to a criminal action, and the focus of the tort became the protection of personal reputations.(fn26) Further, truth emerged as a defense to the presumption that defamatory statements were false.(fn27)

Not only did a truth defense to libel emerge, but privileges also developed that eliminated liability for libel. These privileges developed into two different categories: absolute privileges and qualified privileges.(fn28) An absolute privilege gave the speaker total immunity from liability because of his/her position or status.(fn29) The earliest absolute privileges were provided to public officials and those who served as judicial officers, legislators, and executive officers.(fn30)

On the other hand, a qualified privilege had nothing to do with the speaker's identity, but focused on circumstances surrounding the defamatory statement.(fn31) The basis for the first qualified privileges generally arose in one of five different situations:

[W]hen the speaker seeks to protect the speaker's own interest; the interest of the recipient of the communication or a third person; an interest the speaker holds in common with others; the interest of a member of the speaker's immediate family; or of the immediate family of the recipient or of a third person; and the interest of the public in general.(fn32)

Throughout this evolution of the libel tort, the press felt an impact. In the early stages of the tort, any writing that injured the reputation of the state or a religion could subject its author to a criminal penalty.(fn33) In the 19th Century, the press had to consider the reputation of individuals to be sure that they were not the subject of a civil libel action.(fn34)

It was the adoption of fundamental documents in American history that caused a great divergence from the system of English control of the press and a change in the standards for libel. The Declaration of Independence, the adoption of state constitutions, and the later ratification of the First Amendment significantly changed the rights of the press.(fn35) According to Justice Black, "to assume that English common law in this field became ours is to deny the generally accepted historical belief that 'one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press.'"(fn36)

Through this change in the regulation of the press, changes in the libel tort took place. The main reason behind these changes was the...