New Jersey Court Narrows Fair Report Privilege

Although no reporter or news organization wants to find itself defending against a defamation claim, the reality is that plaintiffs have and will continue to file claims alleging injury to their reputations based on media reporting.  Fortunately, media defendants faced with defamation claims enjoy a number of privileges and defenses that protect the “breathing space” the First Amendment requires.  One such protection recognized in a number of jurisdictions is called the “fair report” privilege.

As formulated in the Restatement (Second) of Torts, § 611 (1977),

[t]he publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.

Stated another way, the fair report privilege protects fair and substantially accurate reports of statements made in official proceedings—for example, law enforcement investigations, judicial proceedings, and open government meetings.  A reporter may report and rely on statements made in police reports of criminal investigations, even if the statements are later found to be factually untrue, as long as the reporting constitutes a fair and substantially accurate account of the police report.  The First Circuit in the case of Yohe v. Nugent described the privilege this way:

To qualify for the fair report privilege the report must be a fair and accurate portrayal of the official action. The test is whether a reporter’s “rough-and-ready summary” of an official action is “substantially correct.” “A statement is considered a fair report if its ‘gist’ or ‘sting’ is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced."

The theory behind recognition of the fair report privilege is that the public has a legitimate interest in knowing about official government actions, and the news media is, practically speaking, the primary source of information about these actions for most people.  According to the First Circuit in Yohe, “the only way news outlets would be willing to make such a report [concerning government proceedings] is if they are free from liability, provided that their report was fair and accurate."

Fairness and substantial accuracy are required for the privilege to attach, but, as mentioned above, some leeway is allowed between the content of the document or the official statements and the content of the media’s report.  The test is whether the report is a “substantially” correct account of the official documents or statements—the test is not whether the report is a substantially true statement of actual events.  Therefore, when evaluating application of the privilege to official documents and statements, a court must compare the media’s report to the official documents or statements in question.  See, e.g., Heekin v. CBS Broadcasting, Inc., 789 So.2d 355, 360 (Fla. 2d DCA 2001).

One illustrative case concerning the fair report privilege is Yohe v. Nugent, mentioned above.  In Yohe, the plaintiff sued two media defendants and the local chief of police for three statements made by the chief in interviews with the media and about which the media reported: namely, (1) that the plaintiff “was a retired member of the Army Special Forces of Green Berets and has been trained as a sniper;” (2) that the plaintiff had “threatened to kill himself and was reported to be armed with several large caliber weapons;” and (3) that “it was [the chief’s] belief that [the plaintiff] was suicidal.”  The chief’s statements were based on a police incident report concerning a domestic disturbance involving the plaintiff.

The Yohe court found that the statements fell squarely within the fair report privilege.  The First Circuit noted that the plaintiff did not dispute the accuracy of the media’s account of the chief’s statements; rather, the plaintiff argued that “material inaccuracies in the articles, as well as [alleged] negligent reporting on the [media’s] part should result in the newspapers losing the protection of the [fair report] privilege.”  According to the plaintiff, the fair report privilege did not apply to the articles concerning him because they “inaccurately reported that he was drunk and suicidal at the time of his arrest” and the media defendants were “negligent and failed to conduct an independent investigation, which, [the plaintiff] contends, would have caused them to discover that the hospitals had ‘exonerated’ him of being intoxicated and suicidal.”  The First Circuit recognized that the fair report privilege is not absolute and may be lost when a report of an official statement or action is not substantially correct; however, according to the court:

To qualify as “fair and accurate” for purposes of the fair report privilege, an article reporting an official statement need only give a “rough-and-ready” summary of the official’s report; it is not necessary that the article provide an accurate recounting of the events that actually transpired. That is, “accuracy” for fair report purposes refers only to the factual correctness of the events reported and not to the truth about the events that actually transpired. Indeed, it is well established that the fair report privilege “should not be forfeited even if the party making the report knew the statement to be false.”

In dicta, the First Circuit wrote that although the privilege may perhaps be overcome by a showing that the media acted with something more than negligent or knowing republication of inaccurate official statements (i.e., “malice”), the plaintiff had not made that showing in Yohe.  Note that allowing a showing of common-law malice (ill will) or actual malice (knowledge of falsity or reckless disregard for the truth) to defeat the privilege was not actually decided in Yohe; however, whether a showing of actual malice defeats the fair report privilege is the source of some disagreement among jurisdictions.  For example, in Q Int’l Courier, Inc. v. Seagraves, 27 Media L. Rep. 1982 (D.D.C. 1999), the U.S. District Court for the District of Columbia stated that actual malice will defeat the privilege.  See also Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069, n.27 (3rd Cir. 1988) (citing Dairy Stores, Inc. v. Sentinel Publ’g Co., 104 N.J. 125, 516 A.2d 220, 233 (1986)) (stating that actual malice may defeat the privilege under New Jersey law).  But see Restatement (Second) of Torts, § 611 (1977).

As a common-law defense, recognition and application of the fair report privilege are matters of state law.  Every state but Maine recognizes the fair report privilege in some form—whether common-law or statutory, conditional or absolute—but the scope and contours of the privilege and what may be required to defeat it vary among the states.  The range of documents and proceedings covered by the fair report privilege may vary from state to state as well, so it is important that reporters know the extent of the protection the privilege offers in their state.  For example, some state courts have expressly recognized that the privilege extends to accurate summaries of press releases and statements made at press conferences.  See, e.g. Freedom Communications, Inc. v. Sotelo (involving law enforcement press release and email).

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