I'm not so sure about this one. If McX says that Wyman is a child molester, and the Daily Wossname reports it under the headline "McX: Wyman child molester," without mentioning that there is no evidence whatsoever to support McX's charge, then the Daily Wossname has done quite a lot to destroy Wyman's reputation. I wouldn't be inclined to give much credence to the defense "We just reported what McX actually said."
Or put it this way: It looks to me that you could call this "Glenn Reynolds linking privilege."
Yes, there are cases we wouldn't want to see protected, but it looks like this ruling removes protection entirely. In the case in question, the paper printed rebuttals from the people concerned, and was still held liable.
Well, the newspaper hasn't been held liable yet. The decision lets the suit go forward, under the usual Sullivan v. Times standards.
"McX: Wyman child molester; Wyman denies it" is still defamatory. It leaves the impression that Wyman might be a child molester. I'm not saying that this case has merit; I'm not sure; but I'm definitely not willing to sign on the idea that "Well, he said it" should be a get-out-of-jail free card. And the neutral reporting privilege looks like it's meant to eliminate all such cases rather than to allow discrimination between the cases in which the article wound up defamatory and the cases in which it didn't.
The article expressed concern that this would chill reporting on political campaigns--but if it forces reporters to find some evidence about whether the charges pols make are substantiated that's a good thing.
if it forces reporters to find some evidence about whether the charges pols make are substantiated that's a good thing
I was thinking about that, but then also thinking of whether this makes it more difficult to expose people who have started whispering campaigns, and engaged in dirty tricks. The newspaper might decide that the person being helped by the story won't sue, but there's no guarantee.
IANAL but it looks to me as though the decision of the PA Supreme Court requires the plaintiffs to show actual malice on the part of the newspaper to recover damages from the newspaper. See the top of p. 8.
Ok, that sounds right. In which case the ruling really is the removal of blanket protection, replaced with regular protections for printing true things without malice. Are we on the same page?
No. 6 is a concern. That seems to be what the First Amendment advocates are worried about. But if the exposé doesn't include the information that the charges are baseless it might not be much of an exposé.
This is difficult terrain, but I do feel as though there shouldn't be an absolute privilege here. We've seen too much "We're just reporting that X said [ridiculous lie] p, which in itself is newsworthy."
Yes, though I don't see this making much difference there; papers can still do that, as long as someone somewhere in the story says "nuh uh," however lamely.
Some states now have a "neutral reporting privilege" under that state's interpretation of state and/or the federal constitutions. Some states, like PA, don't. The US supreme court not taking on the case didn't change this.
Which is to say it could have been worse. If the US supreme court had picked up the case, it could have ruled that no "neutral reporting privilege" is implied by the federal constitution. This would mean states could only imply a "neutral reporting privilege" under a state contitution. (and, they would look silly if the state constitution closely tracks the federal constitution.)
The Supreme Court declining review of a case-- denying certiorari in this instance-- has NO precedential value. It means nothing-- they can take or leave any case, and trying to devine a rule-of-law from that is futile. There are a lot of reasons they might have said no, ranging from "we don't want this issue now" to "the briefs were so fouled up we aren't taking it" to "let's let the facts develop a little more and then see." So trying to argue what the Supreme Court did/was-thinking is off base. An extreme example of the falacy of intent.
As far as the Penn. Supreme Court went, I'd like to know more. I would think a newspaper report that "councilman so-and-so said this and mayor thus-and-such responded 'he's crazy'" would be priveleged-- that is, protected by the rule that non-malicious falsehoods are still protected from suit.
That is, in fact, not what happened in Pennsylvania. The paper was covering a borough council meeting, and reported some comments made outside of the council chambers. These statements were found to be defamatory, and the speaker was found liable to the tune of 17,500 for the two he defamed. The newspaper, however, was not found liable (indeed, they were granted summary judgment, if I read correctly). Upon appeal to the Supreme Court in Pennsylvania, the summary judgment (or the judgment), was overturned.
It looked at Edwards v. Nation Audubon, in which the NYT was sued for defamation. NYT was not found liable because they were repeating the charges of a "responsible, prominent organiztion." But the PSC found that the reading of some cases leading to this conclusion was faulty, in which the defendant (Time) was cleared because the quoted was not proved to be speaking with actual malice.
The court also looks at NYT v. Sullivan, which set the precedent of a higher standard for public figures to recover on defamation. They also look at St. Amant v. Thomson, in which the publisher can only be held liable if they "entertained serious doubts as to the truth of the publication."
In the end, the court finds that "the Pennsylvania Consititution's protection of free expression is no broader than its counterpart in the federal Constitution." They state that neither constitution provides a neutral reportage doctrine, and thusly say, Huzzah.
I'm not so sure about this one. If McX says that Wyman is a child molester, and the Daily Wossname reports it under the headline "McX: Wyman child molester," without mentioning that there is no evidence whatsoever to support McX's charge, then the Daily Wossname has done quite a lot to destroy Wyman's reputation. I wouldn't be inclined to give much credence to the defense "We just reported what McX actually said."
Or put it this way: It looks to me that you could call this "Glenn Reynolds linking privilege."
Posted by Matt Weiner | Link to this comment | 03-29-05 3:40 PM
Yes, there are cases we wouldn't want to see protected, but it looks like this ruling removes protection entirely. In the case in question, the paper printed rebuttals from the people concerned, and was still held liable.
Posted by ogged | Link to this comment | 03-29-05 3:53 PM
The US Supreme Court didn't take on the case. It gets a lot of appeal requests and can only take on a small number of them.
Posted by joe o | Link to this comment | 03-29-05 4:05 PM
Well, yes, with the result that the lower court's ruling against the papers is now the law of the land.
Posted by ogged | Link to this comment | 03-29-05 4:07 PM
Well, the newspaper hasn't been held liable yet. The decision lets the suit go forward, under the usual Sullivan v. Times standards.
"McX: Wyman child molester; Wyman denies it" is still defamatory. It leaves the impression that Wyman might be a child molester. I'm not saying that this case has merit; I'm not sure; but I'm definitely not willing to sign on the idea that "Well, he said it" should be a get-out-of-jail free card. And the neutral reporting privilege looks like it's meant to eliminate all such cases rather than to allow discrimination between the cases in which the article wound up defamatory and the cases in which it didn't.
The article expressed concern that this would chill reporting on political campaigns--but if it forces reporters to find some evidence about whether the charges pols make are substantiated that's a good thing.
Posted by Matt Weiner | Link to this comment | 03-29-05 4:13 PM
if it forces reporters to find some evidence about whether the charges pols make are substantiated that's a good thing
I was thinking about that, but then also thinking of whether this makes it more difficult to expose people who have started whispering campaigns, and engaged in dirty tricks. The newspaper might decide that the person being helped by the story won't sue, but there's no guarantee.
Posted by ogged | Link to this comment | 03-29-05 4:18 PM
IANAL but it looks to me as though the decision of the PA Supreme Court requires the plaintiffs to show actual malice on the part of the newspaper to recover damages from the newspaper. See the top of p. 8.
Posted by Matt Weiner | Link to this comment | 03-29-05 4:20 PM
Ok, that sounds right. In which case the ruling really is the removal of blanket protection, replaced with regular protections for printing true things without malice. Are we on the same page?
Posted by ogged | Link to this comment | 03-29-05 4:25 PM
No. 6 is a concern. That seems to be what the First Amendment advocates are worried about. But if the exposé doesn't include the information that the charges are baseless it might not be much of an exposé.
This is difficult terrain, but I do feel as though there shouldn't be an absolute privilege here. We've seen too much "We're just reporting that X said [ridiculous lie] p, which in itself is newsworthy."
Posted by Matt Weiner | Link to this comment | 03-29-05 4:25 PM
Yes, though I don't see this making much difference there; papers can still do that, as long as someone somewhere in the story says "nuh uh," however lamely.
Posted by ogged | Link to this comment | 03-29-05 4:28 PM
[redacted]
Posted by [redacted] | Link to this comment | 03-29-05 4:30 PM
We're on the same page, except that our comments keep crossing. FL, on the other hand....
Posted by Matt Weiner | Link to this comment | 03-29-05 4:35 PM
Some states now have a "neutral reporting privilege" under that state's interpretation of state and/or the federal constitutions. Some states, like PA, don't. The US supreme court not taking on the case didn't change this.
Which is to say it could have been worse. If the US supreme court had picked up the case, it could have ruled that no "neutral reporting privilege" is implied by the federal constitution. This would mean states could only imply a "neutral reporting privilege" under a state contitution. (and, they would look silly if the state constitution closely tracks the federal constitution.)
Posted by joe o | Link to this comment | 03-29-05 4:56 PM
The Supreme Court declining review of a case-- denying certiorari in this instance-- has NO precedential value. It means nothing-- they can take or leave any case, and trying to devine a rule-of-law from that is futile. There are a lot of reasons they might have said no, ranging from "we don't want this issue now" to "the briefs were so fouled up we aren't taking it" to "let's let the facts develop a little more and then see." So trying to argue what the Supreme Court did/was-thinking is off base. An extreme example of the falacy of intent.
As far as the Penn. Supreme Court went, I'd like to know more. I would think a newspaper report that "councilman so-and-so said this and mayor thus-and-such responded 'he's crazy'" would be priveleged-- that is, protected by the rule that non-malicious falsehoods are still protected from suit.
Posted by TomFreeland | Link to this comment | 03-29-05 10:26 PM
Tom,
That is, in fact, not what happened in Pennsylvania. The paper was covering a borough council meeting, and reported some comments made outside of the council chambers. These statements were found to be defamatory, and the speaker was found liable to the tune of 17,500 for the two he defamed. The newspaper, however, was not found liable (indeed, they were granted summary judgment, if I read correctly). Upon appeal to the Supreme Court in Pennsylvania, the summary judgment (or the judgment), was overturned.
It looked at Edwards v. Nation Audubon, in which the NYT was sued for defamation. NYT was not found liable because they were repeating the charges of a "responsible, prominent organiztion." But the PSC found that the reading of some cases leading to this conclusion was faulty, in which the defendant (Time) was cleared because the quoted was not proved to be speaking with actual malice.
The court also looks at NYT v. Sullivan, which set the precedent of a higher standard for public figures to recover on defamation. They also look at St. Amant v. Thomson, in which the publisher can only be held liable if they "entertained serious doubts as to the truth of the publication."
In the end, the court finds that "the Pennsylvania Consititution's protection of free expression is no broader than its counterpart in the federal Constitution." They state that neither constitution provides a neutral reportage doctrine, and thusly say, Huzzah.
Posted by tweedledopey | Link to this comment | 03-30-05 7:46 AM
I'd also like to note that the opinion was written by Mr. Chief Justice Cappy, a distant cousin of Andy Capp.
Posted by tweedledopey | Link to this comment | 03-30-05 7:47 AM