New Jersey and Kentucky Decisions Narrow Fair Report Privilege

In a prior post, we described the contours of the fair report privilege.  This common-law privilege protects journalists from liability for republishing factual errors that appear in official records -- such as a police report, government press release, or criminal indictment -- or that are made during official proceedings -- such as a city council meeting or criminal trial.  So long as the journalist provides a substantially accurate account of the record or proceeding, she will not face liability if the record or proceeding described contains an error that someone contends is defamatory.

The privilege serves an important function because it allows news organizations to report freely on newsworthy government records and proceedings without having first to go behind the records or proceedings to confirm the accuracy of the facts the records contain or of the statements made during the proceedings.  For example, reporters covering the Blagojevich scandal have been able to recount the details set forth in the lengthy affidavit that accompanied the Illinois governor's federal indictment without fear of being sued if any of those facts turn out to be false.  It is therefore critically important that courts give the privilege robust application.

Two recent decisions, one from New Jersey and one from Kentucky, give some cause for concern because they in different ways cabin in the operation of the privilege.  The New Jersey decision, Salzano v. New Jersey Media Group, Inc., involved a defamation claim that arose out of an article written about an adversary complaint lodged by the trustee in a federal bankruptcy proceeding.  The adversary complaint alleged that the plaintiff, a former officer of the bankrupt company, had misappropriated funds from the company for his own benefit.  The article was entitled "Man accused of stealing $500,000 for high living."  The trial court dismissed the plaintiff's defamation action under the fair report privilege.

On appeal, the appellate division reversed.  After discussing the origins and purpose of the fair report privilege, the court first concluded that the article's use of the word "stole" to describe the trustee's allegations in the adversary complaint constituted a fair and accurate account of those allegations.  According to the court, the article carried the "same essential sting" as the trustee's allegations, even though the former indicated that Salzano has "stole[n]" the funds, whereas the latter asserted that he had "unlawfully diverted, converted and misappropriated" the funds.

However, the court went on to conclude that the fair report privilege did not apply at all because the source of the article was an initial pleading in a legal action -- a complaint -- rather than a written decision or oral pronouncement in open court rendering a legal determination on the merits.  The court cited the Restatement (Second) of Torts, Section 611, as the policy basis for this distinction.  According to the court, if reporting upon the allegations contained in a court-filed complaint triggered application of the fair report privilege, it would allow a person to file a baseless complaint for the purpose of having defamatory allegations republished in the news media.

This narrow view of the fair report privilege has been rejected in several other jurisdictions.  For example, in concluding that the privilege does indeed protect substantially accurate accounts of initial court filings, a Pennsylvania court concluded:

Based upon this case law and theory, we cannot reach a conclusion other than that the fair report privilege does apply to reports of initial pleadings upon which no judicial action has been taken.  Pleadings are public records, maintained in government buildings, open for review by the general populace.  We find no sense to the argument that newspapers, or other media groups, cannot report on pleadings prior to judicial action without opening themselves to a libel action.  It is the media's job and business to keep the public informed of pending litigation and related matters conducted in taxpayer funded courthouses.

First Lehigh Bank v. Cowen, 700 A.2d 498, 502 (Pa. Super. Ct. 1997).

The broader view reflected in the Pennsylvania decision is more faithful to the purpose behind the fair report privilege.  The New Jersey approach, on the other hand, permits the tail to wag the dog -- concern over a potentially unscrupulous civil plaintiff winds up creating a substantial deterrent to reporting upon the business of the courts generally, even though many civil complaints are newsworthy in and of themselves because they involve legitimate factual disputes over matters of public concern.  Moreover, the narrower view ignores those procedures -- such as Rule 11 sanctions -- that exist to punish unscrupulous litigants for filing baseless legal actions.  By denying application of the fair report privilege, the approach reflected in the New Jersey court's decision punishes the reporter, who may have limited practical ability to test the allegations of the complaint once the parties involved have shifted into a litigation mode, rather than the bad-faith litigant.

A recent decision from a federal court in Kentucky imposed two discrete limitations on the application of the fair report privilege.  In Trover v. Paxton, the court held that the publisher must know that it is reporting on government activities for the privilege to attach, and the publication at issue must expressly attribute the allegations to a government record or proceeding.  The court ultimately found that the fair report privilege did not apply in Trover because the article sourced the allegations as appearing in a letter accusing the plaintiff of workplace misconduct but did not explain that the letter was included in official investigatory files of a licensing board.

These decisions underscore that there may be nuances from jurisdiction to jurisdiction in how doctrines such as the fair report privilege are interpreted and applied.  And those differences may impact significantly the degree of risk the news media face when reporting upon a particular subject or event.  For example, what one publisher may be comfortable printing or broadcasting about a newly filed civil action may differ depending upon whether the rule applicable in Pennsylvania or New Jersey applies.  It is therefore critically important that reporters and editors have a good understanding of the extent of the legal protections in their jurisdiction.

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