The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Wednesday, March 30, 2005

Neutral reporting privilege lottery: Supreme Court ducks

Judith Miller and Matthew Cooper beware!

The repetition rule in defamation law means that, in general, a newspaper that prints an allegation made by a third party is liable as if it had made that allegation itself.

In some US jurisdictions, there is an exception to that rule for reports of [1]
serious charges of a public official involved in an ongoing controversy and concerning other public officials irrespective of the publisher's belief as to the falsity of the charges, provided that the report does not espouse or concur in the charges and in good faith believe (sic) that the report accurately conveys the charges made.

Despite an amicus brief from leading media organisations urging the US Supreme Court to grant certiorari in Troy Publishing v Norton in order to establish such a rule [2] nationwide, it has declined.

There is not, I think, a circuit conflict on the point - the cases cited by the Penn SC as supporting the privilege (SC, DC, CA) are all District Court decisions. But, trivially, SCOTUS could have taken the case if it had felt strongly enough on the issue.

In many cases, media organisations escape liability in such cases under the New York Times v Sullivan rule; in Norton, the trial judge had not heard evidence on the existence of actual malice in the newspaper [3], and the plantiff's appeal allowed by the Penn SC had been for a new trial in which such evidence could be heard.

Clearly, the more outrageous the allegations, the more likely a court will find that the publisher has been reckless in printing them without independently reporting them.

  1. Formulation of trial court in Norton v Glenn: Pennsylvania Supreme Court opinion (PDF). (Background.)

  2. Aka neutral reportage privilege.

  3. Neutral reporter's privilege is not, unlike the Sullivan rule, dependent on a lack of actual malice.

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