The Lincoln Plawg - the blog with footnotes
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 
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  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 , 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.
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