By Mike Hiestand
Following their annual intrastate rivalry, quarterbacks from the two football teams got into a bar fight and were arrested. Student newspapers from both schools covered the story. Both published articles reporting that the fight started after one of the players insulted the other’s girlfriend, who was pregnant. A month later, both papers received phone calls from the girlfriend’s attorney. She is not pregnant, the attorney tells them, and their stories reporting that she is unmarried and sexually promiscuous have humiliated her and caused irreparable harm to her reputation. Get ready to be sued.
In fact, only one of these papers has a potentially serious problem.
Paper A’s reporter was close to the scene when the trouble started and talked to multiple witnesses to the fight. She also spoke to the bartender, other players on the team, both team’s coaches and the player who allegedly insulted the girlfriend. Finally, she talked to a police officer outside the bar who gave her an informal rundown of what had happened.
Paper B’s reporter talked to no one. He didn’t hear about the fight until two days later, and, as a result, reported his story only from information in the sworn criminal complaints he was able to obtain. He did not attempt to interview anyone else.
So who should be more worried?
Unfortunately, despite their reporter’s efforts, Paper A may still be on the hook.
Paper B, whose reporter obtained and attributed his information to sworn criminal complaints, can likely invoke the fair report privilege in his state. The fair report privilege (also sometimes called the public proceedings or public records privilege) protects the news media from being successfully sued for libel when they publish fair and accurate accounts of information contained in official documents or statements made during official proceedings. The privilege is important because it protects the news media even in cases where the official information later turns out to be false.
In our hypothetical case, for example, the criminal complaint contained a statement from one of the witnesses that “the fight started after Jones called Smith’s pregnant girlfriend ‘fat and dumpy.'” Because Reporter B carefully reported and attributed that information to the complaint, there is little that the girlfriend can do other than ask for a clarification, which Paper B should agree to publish.
Paper A, unfortunately, is not so lucky. While the girlfriend’s libel claim is far from certain, without the privilege, the paper may be forced to show that their reporter, at a minimum, did everything that a reasonable reporter should have done to verify that the girlfriend was, in fact, pregnant. While she did a nice job reporting the fight, it’s not clear that the reporter was as thorough confirming the girlfriend’s pregnancy.
The fair report privilege is based on the idea that keeping citizens informed about matters of public concern is sometimes more important than avoiding occasional damage to individual reputations. It gives reporters a bit of breathing room to report on official governmental conduct without having to first prove the truth of everything the government says, an overwhelming burden in some cases.
As the example above makes clear, the privilege can sometimes make all the difference in shielding a news media organization from significant liability.
While the fair report privilege seems fairly simple on its face, keep in mind the following before concluding that it will keep you out of trouble:
(1) The information must be obtained from a record or proceeding recognized as “official.” This is generally the most difficult hurdle. State laws vary and not all government documents or proceedings qualify. News reports based on judicial and legislative documents or proceedings will generally be privileged. Beyond that there can be significant differences. In some states, the privilege has been interpreted broadly and extends to virtually all government records or meetings of any significance. In other states, courts have been less willing to provide such blanket coverage to the press. For example, publishing information obtained from a police department press release may be protected in some states, but not in others. The same goes for verbal statements made by police officers. It is important, in such cases, to know the law in your area.
(2) The news report must fairly and accurately reflect what is in the public record or what was said during the official proceeding. News reports that provide an inaccurate or misleading account or that contain “extra” information not found in the official record might fall outside of the privilege. An Illinois court recently ruled that a newspaper was not entitled to rely on a fair-report defense where it erroneously used a yearbook photo of a high school honor student and star athlete for an article about the drug arrest of another student with the same name. The reporter claimed that she had been provided a “data sheet” by the police that included the erroneous yearbook photo. The court, however, noted that the data sheet itself did not report that the student was arrested and charged with any crime. Thus, even if the fair report privilege could apply to such “data sheets,” the published news article was not an accurate report of the what was in the record.
(3) The source of the statement should be clearly noted in the news report. While not all states require that the source of information be included in the story to invoke the privilege, it is a good practice to follow and prevents a person from claiming that the information was obtained from a non-privileged source.
(4) You may not be able to rely on the privilege if you act in bad faith. Traditionally, a reporter’s motivation in publishing public information has been irrelevant. As long as the information was fairly and accurately reported, the privilege was available. That is still usually the case, but maybe not always. Minnesota courts, for example, have ruled that a fair report privilege can be lost if a reporter or publisher knows the information is false when published and is motivated by ill will or a desire to hurt the subject of the news report. While few courts have followed Minnesota’s lead, student papers that publish information with “bad intent” may do so at their peril.
The fair report privilege provides significant protection to student news media seeking to inform readers about the official workings of their government. But it will only work if it is used – and used correctly.