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The Fair Report Privilege

by JULIE HILDEN

On May 11, the New Jersey Supreme Court issued its decision in a significant case involving libel law. In the ruling, the court recognized a conditional “fair report” privilege. That privilege protects news organizations from being sued for libel when they report the allegations that are contained in a plaintiff’s complaint, after that complaint has been filed at the courthouse.

It has long been established that the allegations of any complaint that is filed at the courthouse are protected by the centuries-old, absolute judicial proceedings privilege. Under that privilege, neither the plaintiff who made the allegations, nor the attorney who drafted and filed the complaint, can be sued for libel simply based on the filing itself — even in a high-profile case where it is certain that those allegations will instantly become headline news.

Without this rule, virtually every lawsuit would also give rise to a defamation counterclaim regarding the very same issues. And that would, in turn, exercise a chilling effect on plaintiffs’ willingness to go to court — and, in particular, to go to court against deep-pocketed defendants.

In contrast, the question here was whether a news organization that retrieves a copy of filed complaint and reports its allegations enjoys a similar privilege — or whether the organization can be sued for libel for its report, just as it could be sued for libel for any other report that it publishes or posts online.

The New Jersey Supreme Court held that news organizations do indeed enjoy such a privilege. But unlike with the plaintiff’s and attorney’s judicial-proceedings privileges, the court held that news organizations’ fair-report privilege is not absolute; it is conditional.

For this conditional privilege’s requirements to be fulfilled, the court held, the news organization’s reporting as to a complaint’s allegations must be “full, fair and accurate.” Otherwise, a defamation suit may be brought.

In this column, I’ll explain why I believe the New Jersey Supreme Court reached the right result in recognizing a privilege here — and also consider whether the privilege it recognized should have been conditional or absolute.

The Court’s Ruling — and Its Costs and Benefits

Justice Virginia Long, in her opinion for the New Jersey Supreme Court majority, frankly acknowledged that the court’s ruling in favor of a conditional privilege would mean that news organizations will sometimes end up spreading the kind of falsehoods that seriously harm reputations. As she put it, the recognition of the fair-report privilege will inevitably lead to “uncompensated harm to a plaintiff’s reputation” in certain cases.

But Justice Long reasoned that, in this context, the First Amendment still militates in favor of a conditional privilege for news organizations. In support of that reasoning, she cited the U.S. Supreme Court’s decision in Cox Broadcasting Corp. v. Cohn, which emphasized the need for citizens to be fully informed by the news media, so that they may vote and comment on their government’s actions in a knowledgeable way.

Justice Long also noted that there may be other remedies against the plaintiff or his attorneys in cases where allegations in a complaint are false — such as a malicious prosecution action, or a sanctions motion. But realistically, such remedies rarely succeed.

And, of course, if falsities are repeated on the stand, perjury charges could theoretically ensue. But such charges, too, are rare — in part because the lie at issue must be absolutely clear and indisputable, and in part because the lion’s share of cases settle before trial.

It’s true, too, that lawyers need to have a good-faith belief in the accuracy of the allegations of the complaints they file — but not all lawyers honor this allegation. Indeed, some lawyers hardly make a distinction between complaints and public relations documents.

Also, it is typically acceptable for a lawyer — within limits — to include a tenuous but supportable allegation in a complaint if he flags it as being made “on information and belief.” This language indicates that the lawyer believes that the allegation is true (as is required for the lawyer to include it in the complaint), but has not been able to fully confirm it even after some investigation.

Without the ability to plead “on information and belief,” plaintiffs would be caught in a Catch-22 — unable to go to court to procure the very discovery that will make their circumstantial-evidence case a direct-evidence case. But the ability to plead “on information and belief” will also inevitably allow the filing (sometimes innocently) of meritless cases.

Thus, the court’s ruling had a clear downside, as Justice Long acknowledged: Meritless allegations — some of them very damaging — will be repeated with impunity. And existing remedies will not be nearly as effective as a libel suit would have been.

But Justice Long rightly concluded that the alternative to accepting some reputational damage was worse: Denying news organizations a fair-report privilege would seriously chill their — and the reading and listening public’s — ability to exercise their First Amendment rights.

For these reasons, the New Jersey court was correct to choose to recognize that the fair-report privilege applies to initial pleadings such as plaintiffs’ complaints. As Justice Long noted, many of its sister jurisdictions have also so held, and the modern trend among courts is in line with the New Jersey court’s holding. But the question whether the privilege should have been conditional, or absolute, is a more difficult one.

Should the Privilege Have Been Absolute?

Notably, the privilege that the New Jersey Supreme Court recognized is a conditional one: It only applies if news organizations’ reports on complaints’ allegations are “full, fair, and accurate.” (Also, information that is included in the same article, but that did not come from the plaintiff’s complaint, is not privileged at all. Some of that information, however, may fall within a separate libel safe harbor for “opinion based on disclosed fact,” with the facts, in this context, being the ones alleged in the complaint.)

At first glance, it might seem reasonable — and even innocuous — to require that a news report on a plaintiff’s complaint must be “full, fair and accurate.” But actually, the difference, in practice, between this conditional privilege and an absolute privilege is vast. As a journalistic ideal of a private news organization, “full, fair and accurate” sounds great. But as a legal requirement imposed by a court, it is very troubling.

Let’s begin with the accuracy requirement. In theory, requiring that a report on a plaintiff’s complaint must be “accurate” does not sound too burdensome — especially if a news organization has fact-checkers who are employed to do just that. However, in practice, what “accurate” means in this legal context may be developed through case law — meaning that a lawyer really ought to be involved in the vetting. And involving a lawyer adds time, delay, and cost. Granted, many publications already employ pre-publication libel-review attorneys, but this just adds one more inquiry for those attorneys to make, and imposes additional cost for the publication. Courts should think twice, especially in our world of 24-hour media, before adding requirements that predictably slow news-dissemination.

Second, there is the requirement of “full” coverage. Does “full,” here, mean that the newspaper must simply reprint the whole complaint, despite space constraints? Granted, online news outlets can — and would be well-advised to — simply link to a copy of the complaint. But print newspapers that still lack online counterparts don’t have that option, and asking them to reprint the whole complaint would be burdensome and costly. Also, it seems purposeless if the complaint is available from some other source online — as it likely will be in a newsworthy case, since anyone can go get a copy of a complaint at the courthouse, unless the complaint is under seal.

In addition, it’s far from clear that “full” coverage of a complaint just means fully summarizing the complaint or publishing its full text — yet exactly what else “full” coverage requires is unclear. How many persons named in the complaint need to be called for comment? How much research has to be done? Ultimately, the fear is that the court will Monday-morning-quarterback the reporters.

Finally, I believe that the “fair” prong of the conditional privilege should be eliminated altogether, because it involves the court in a constitutionally-inappropriate inquiry. It should not be a court’s role to embark on the inherently-content-based inquiry as to whether news reporting is “fair.”

Imagine a Democrat appointee assessing the fairness of a Wall Street Journal report — or a Republican appointee weighing in on a story in The Nation. That doesn’t just seem like the appearance of impropriety to me — it is impropriety.

And it’s impropriety with a high First Amendment cost. Libel law asks a judge to determine what is true, based on a comparison between evidence and text. But the conditional privilege asks a judge to determine what is fair — and much more than evidence alone informs any person’s sense of what is fair.

Indeed, a sense of fairness is developed over a lifetime and inevitably is partially intertwined with one’s political beliefs: Is Obama’s heathcare plan fair? Is the way Sarah Palin has been treated by the media fair? There are no wholly objective answers.

With all these problems plaguing the conditional privilege, an absolute privilege begins to seem more and more attractive. Granted, an absolute privilege has the same problem that Justice Long noted with the conditional privilege — and even more so: An absolute privilege would mean that the justice system not only gives reputational damage a free pass, but turns a blind eye to even unfair, inaccurate, or incomplete reportage.

Still, the justice system isn’t the only platform that defendants can employ here. Defendants can, and do, go to the media to convey their point of view. When a complaint is worthy of a news story in the first place — and that is, by definition, the only time this privilege will be triggered — it is also likely that the reporter will want to hear from both sides. And if the reporter turns a deaf ear, there are numerous media outlets that might listen — and they are more accessible than ever before, especially if one counts blogs and smaller websites, which can be very influential in their own right.

In sum, there were strong arguments for an absolute privilege here, and the way the court defined the conditional privilege — particularly, its inclusion of the fairness prong — is very troubling. My hope is that future courts confronting this issue will carefully consider the First Amendment implications of allowing a fairness prong into this analysis before they rule.

JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.

This column originally appeared on Findlaw’s Writ.

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