Libel

10. What defenses are available to journalists?

In addition to attempting to show that some vital element — usually fault — is absent from the plaintiff’s case, defendants in libel actions will often turn to legal defenses to prevent plaintiffs from winning.  A defense is simply a legally acceptable justification for publishing defamatory material.

The truth defense

Although the U.S. Supreme Court has said that in most cases libel plaintiffs must prove the falsity of defamatory statements to win, truth still is a libel defense available to journalists.^[148]  In other words, if a journalist can prove the truth of his or her story, the plaintiff loses.  It is important to remember, though, that truth means the charges themselves are true, not merely that you accurately repeated defamatory allegations made by someone else.  The defense does not require that every minor detail be correct, just that the defamatory statement is “substantially true,” i.e., that the “gist” or “sting” of the story is true.  This was well illustrated in a 1993 North Carolina case in which security guard Janice Brewer sued the Hendersonville Times-News, a reporter and a source for saying she was not promoted to chief of security at a development because she had been convicted of “felony assault.” In fact, Brewer had been convicted of misdemeanor aggravated assault. A N.C. Superior Court dismissed her complaint, saying that “the ‘gist’ or ‘sting’ of the publications at issue here would be no different than had the publications correctly characterized her assault conviction.”^[149] 

The fair report privilege

By far the most important libel defense for journalists is the qualified or conditional privilege that protects accurate, fair, complete and non-malicious reports of official government proceedings and records.  This includes accounts of legislative, judicial and quasi-judicial administrative proceedings and records at all levels of government.  This qualified privilege, called the fair report privilege, is based on the premise that in a democratic society the citizens have both the right and responsibility of knowing how their government is operating and what government officials do and say.  This journalistic privilege, however, is not absolute and can be lost if reports are inaccurate, unfair, incomplete or motivated by an intent to cause harm.

Extent of the privilege.  Reports on the official proceedings of all legislative bodies — the U.S. Congress, N.C. General Assembly, city councils, town boards, county commissions and school boards — and their committees or subcommittees are protected against libel actions under the fair report privilege.  The privilege covers meetings, public hearings, reports and other official documents, and it applies to statements made by all participants in the proceeding, including members of the public who testify or are given permission to address the legislative body.  It is extremely important for journalists to recognize, however, that the privilege may not apply to comments made outside the legislative proceeding itself.  For example, the privilege may not apply to an interview with a legislator after the meeting, a phone conversation in which a reporter seeks to clarify or elaborate on what occurred during a meeting or a side conversation between members of the legislative body.

Judicial proceedings and records open to the public are covered by qualified privilege.  Statements made during the proceeding by all participants — the judges, attorneys, witnesses, jurors and parties — are privileged if fairly and accurately reported.  Likewise, reports based on judicial records, such as warrants, indictments, judicial orders, transcripts, judgments and liens, are covered.  

In 2001, the N.C. Court of Appeals recognized the privilege in a case involving a news report of arrest warrants. In LaComb v. Jacksonville Daily News Co.,^[150] the newspaper accurately reported in its “police blotter” section that Daniel and Gail LaComb were arrested and charged with contributing to the delinquency of a minor. The LaCombs sued for libel because, as the court put it, the newspaper’s punctuation and sentence structure were “grammatically lacking.”^[151]  The arrest warrants themselves were ambiguously worded, stating that the defendants “unlawfully, willfully did knowingly . . . cause, encourage and aid [the juveniles] to commit an act, drinking beer and smoking cigarettes, and engage in a sex act.”  The Daily News reported, “The two were both accused of encouraging cigarette smoking; beer drinking and engaging in sex acts involving a 15-year-old boy and 16-year-old girl.” The LaCombs claimed the misplaced semicolon in the news report falsely implied that they themselves were accused of engaging in sex acts with the juveniles.^[152]

“Although the fair report privilege has never been explicitly defined by North Carolina case law,” the Court of Appeals wrote, “the privilege nonetheless exists to protect the media from charges of defamation.”^[153]  Quoting a federal district court case, the North Carolina court declared that the privilege covers “‘reports of the arrest of persons and the charges upon which the arrests are based, as well as other matters involving violations of the law. This privilege remains intact so long as the publication is confined to a substantially accurate statement of the facts and does not comment upon or infer probable guilt of the person accused.’”^[154]  The court concluded, “Although the semicolon is admittedly misused in the sentence, its use does not cause the article to fail the substantial accuracy test when compared to the warrant.”^[155]

It is unclear whether the fair report privilege would apply to reports based on judicial documents that have been sealed or to judicial proceedings that are closed to the public, such as adoption proceedings.  The appellate courts in this state have never addressed the question of whether fair and accurate articles based on non-public proceedings and documents are privileged.  The general rule in other states seems to be that the non-public aspects of the judicial process are not subject to qualified privilege.^[156]  However, some courts disagree with that general rule.  For example, a New York court ruled that a fair and accurate report of a closed juvenile proceeding was entitled to qualified privilege.^[157]

The extent of the qualified privilege relative to the activities of executive branch officials is harder to pinpoint.  The only North Carolina case in this area involved a news report on a quasi-judicial proceeding, which the court said was clearly privileged.  Quasi-judicial refers to proceedings in which administrative officials are required to make judicial-like decisions, such as settling disputes or gathering and evaluating facts and then making decisions based on those facts.^[158]  In Kinloch v. News & Observer Publishing Co., a federal court, applying North Carolina law, held that an article based on a hearing before the Alcoholic Control Board and a report by an ABC hearing examiner was entitled to qualified privilege.^[159]  The North Carolina appellate courts, however, have never discussed whether qualified privilege applies to other types of executive branch proceedings and records.

Case law suggests, though, that qualified privilege in North Carolina may be even broader and more protective than in other states and may extend to reports on non-governmental matters that are of public interest and concern.  In Kinloch the court provided a very expansive interpretation of qualified privilege:  “The law of North Carolina, which controls this case, is equally clear.  Publication of matters of public interest is conditionally privileged if fair, accurate, complete and not published for the purposes of harming the person involved, even though the information contained therein is false.”^[160]  In LaComb, the N.C. Court of Appeals also referred to the privilege as applying to “media reporting on a matter of public interest, such as an arrest.”^[161]

Mutual interest privilege. The court in Kinloch relied on two early N.C. Supreme Court cases in which qualified privilege was applied to reports about religious organizations.  In the first case, decided in 1905, a report of proceedings before the Board of Trustees of Trinity College, published in both a pamphlet distributed to college patrons and general circulation newspapers, was held privileged.^[162]  Fifty-three years later, the N.C. Supreme Court ruled that a report on conditions of a church mission in Hong Kong was privileged.^[163]  In both cases, neither of which involved a media defendant, the court relied not on the fair report privilege, which protects journalists when they report on government activities, but on another type of qualified privilege, known as the privilege for communications of mutual interest.  The N. C. Supreme Court defined this mutual interest privilege as applying to a statement made “about something in which (1) the speaker has an interest or duty; (2) the hearer has a corresponding interest or duty; and (3) when the statement . . . is made in protection of that interest or in performance of that duty.  It must be uttered in the honest belief that it is true.”^[164]

In 1962 the N.C. Supreme Court again relied on the privilege available for communications of mutual interest, this time to protect letters accusing county officials of election fraud written by the chairman of the N.C. Republican Executive Committee to the governor and State Board of Elections, with copies provided to the media.  The court said release of the letters to the press was protected because “every citizen of North Carolina is interested in each State-wide election being properly held in each and every precinct in the State.”^[165]

Based on those N.C. Supreme Court cases, a federal district court, applying North Carolina law in a 1982 case, held that a newspaper story about a crime was privileged as a communication of mutual interest.  In Nesbitt v. Multimedia, the court said:  “Criminal conduct and activities have consistently been acknowledged as matters of public interest. . . . A newspaper has a valid recognizable interest in publishing reports of criminal investigations and activities and the public has a corresponding interest in receiving this information.”^[166] 

These cases indicate that in North Carolina journalists enjoy a very broad qualified privilege, not only when reporting on official government proceedings and records but also when covering other matters of interest and concern to the public.

Conditions of privilege.  Reports of governmental proceedings or records can lose their privileged status if they are inaccurate, unfair, incomplete or motivated by malice.  This does not mean, however, that privileged reports must be verbatim accounts or totally free from minor errors. In Kinloch the news story contained some inaccuracies, and in LaComb faulty punctuation and sentence structure made the report potentially misleading.  Nonetheless, both courts found the news articles were substantially accurate.  “The law does not require absolute accuracy in reporting.  It does impose the word ‘substantial’ on the accuracy, fairness and completeness.  It is sufficient if it conveys to the persons who read it a substantially correct account of the proceedings,” the Kinloch court wrote.^[167]  Furthermore, the court rejected the plaintiff’s arguments that the article was not fair and complete.  “It covered the pertinent bases of the examiner’s recommendation and plaintiff’s statement to the full Board at the August 14 hearing.  The transcript of the May 30 hearing consumes 121 pages and the examiner’s report is a single-spaced, typewritten document consisting of 21 pages.  It was never contemplated that any newspaper could publish more than the highlights of any administrative or judicial proceeding.”^[168]

There is some confusion in the case law over what type of malice is sufficient to overcome a journalist’s claim of qualified privilege.  Traditionally the type of malice required to defeat a privilege was ill will or an intent to cause harm.  In Kinloch, for example, the court said the privilege applied because there was “no suggestion of personal ill-will.”^[169] In more recent cases, however, courts have tended to combine the traditional definition of malice with the New York Times v. Sullivan definition of actual malice.  For example, in Nesbitt the court said there was “no showing of actual malice either in terms of the traditional ill will or spite or under the New York Times standard of knowledge of falsity or reckless disregard.”^[170]

The neutral reportage defense

A few courts in the United States have accepted a libel defense known as neutral reportage, which is a constitutional defense grounded in the First Amendment.  The neutral reportage defense protects impartial news stories about accusations brought against public officials or public figures by reliable and responsible individuals or organizations, even if the charges were made outside official proceedings or records and even if the reporter writing the story doubted the accuracy of the accusations.  The North Carolina courts have not discussed whether the neutral reportage defense applies in this state.  However, if qualified privilege is as broad as the courts have indicated in such cases as Kinloch and Nesbitt, this new defense may be encompassed within the fair report privilege defense in North Carolina.

The U.S. Court of Appeals for the Second Circuit first recognized the neutral reportage defense in a 1977 case that resulted from a New York Times article reporting that National Audubon Society officials had accused three prominent scientists of being paid to lie about the effects of DDT on the bird population of North America.  The article included the names of the scientists as well as their denials of the charges.  The court ruled that the First Amendment protected “accurate and disinterested reporting” of newsworthy charges against public figures made by a “responsible, prominent organization,” such as the National Audubon Society, “regardless of the reporter’s private views regarding their validity. . . .  What is newsworthy about such accusations is that they were made.”^[171]

A handful of courts have accepted the neutral reportage defense while a few have expressly rejected it.  The vast majority of jurisdictions, like North Carolina, have taken no position.

The opinion defense

There are two sources of protection for statements of opinion:  the First Amendment and the traditional common law defense of fair comment and criticism.

Constitutional protection.  The First Amendment provides protection for two types of opinion statements.  The first category consists of exaggerated, loose, figurative language, rhetorical hyperbole or parody, that is, statements no reasonable person would take as declarations of fact.  This category includes such things as calling an employee who crosses a picket line a “traitor”^[172] and saying that a developer was engaged in “blackmail” when he refused to sell a piece of property needed for a new high school until the city helped him change the zoning on another piece of property.^[173]

The second type of constitutionally protected opinion consists of statements that are incapable of being proven true or false, such as imprecise evaluations like good, bad, untalented and ugly.  This protection is simply the logical extension of the Court’s decision in Philadelphia Newspapers v. Hepps, which requires plaintiffs to prove falsity in libel cases resulting from reports on matters of public concern.^[174]

In 2006, the N.C. Court of Appeals affirmed the dismissal of a libel suit by Sybil Daniels, an insurance adjuster, against Metro Magazine and its editor and publisher, Bernie Reeves, saying that all of the allegedly defamatory statements were “either (1) expressions of pure opinion not capable of being proven or disproven; or (2) rhetorical hyperbole which no reasonable reader would believe.”^[175]  In a column, Reeves recounted his experience and dissatisfaction with Daniels and the insurance company for which she worked after his car was stolen and then crashed into a tree.  Among other things, Reeves wrote that Daniels spoke to him in a “quiet Gestapo voice” and a “calm, sinister voice,” “lapsed into bureaucratic order-giving that would put former Soviet security police to shame” and accused him of stealing his own car.^[176] The court said that “Reeves’ open and obvious emotion and irrationality, combined with the absurd tone of the piece, greatly detract from his credibility and provide the reader with facts from which his or her own conclusions may be drawn. . . . A reasonable reader would therefore recognize Reeves’ statements against plaintiff as an ‘expression of outrage,’ unsupportive of a claim of libel.”^[177]   

The North Carolina court’s reference to providing “the reader with facts” relates to a 1990 U.S. Supreme Court decision, Milkovich v. Lorain Journal Co., in which the Court said that even unverifiable statements of opinion can be actionable if they 1) imply the existence of false, defamatory but undisclosed facts; 2) are based on disclosed but false or incomplete facts; or 3) are based on erroneous assessments of accurate information.  Although the Court’s opinion is somewhat confusing, it is clear that the Court intended to deny protection for opinions that are based on false or incomplete statements of fact or that imply the author knows — but doesn’t share with the audience — detrimental facts to support his or her opinion.^[178]  The Court explained that the statement “John Jones is a liar” would not be protected opinion because it leaves the audience with the impression the author knows of facts to support that allegation.  Because the truth or falsity of such supporting facts can be determined, the statement would not be protected as opinion.  Furthermore, the Court said adding the phrase “in my opinion” or “I think” would not necessarily convert the accusation into a protected statement of opinion.^[179]  The best way for a journalist to ensure that he or she can claim First Amendment protection for statements of opinion is to provide the audience with accurate facts to support the opinions.^[180]

The blogger case discussed above, Lewis v. Rapp, underscores the importance of providing readers accurate and complete facts to support statements of opinion. Defendant contended that his April 12, 2010, blog post was merely his opinion on a matter of public concern, but the court disagreed.^[181] Noting that Rapp failed to include in his post the portion of the Code of Judicial Conduct that exonerated Judge Lewis of wrongdoing and that he said an attorney friend of his “agreed that there was ‘probable cause’ for disciplinary action to be taken by the proper authorities,” the court said Rapp “attempt[ed] to mislead the readers.” Quoting Milkovich’s language regarding false or incomplete facts or erroneous assessments of true facts, the appellate court concluded that even though the blog post “was framed as an opinion,” it was actually a false assertion of fact, that Judge Lewis had violated judicial ethics. ^[182] 

Fair comment and criticism.  Long before the U.S. Supreme Court decided the First Amendment protected some defamatory statements, states provided protection for opinion through a defense known as fair comment and criticism.  Until New York Times v. Sullivan, the fair comment defense was the primary mechanism used to protect criticism of government officials and candidates for public office.  Now the First Amendment is the primary source of such protection, but fair comment remains a viable defense for those who espouse opinions on subjects of legitimate interest and concern to the public, such as the performances of entertainers and athletes; the works of artists and writers; the operation of public institutions, like schools, churches and medical facilities; and the quality of services and products offered to the public, including restaurants, hotels, consumer products and the mass media.

In a 1955 case in which the mayor of Gastonia sued the Gaston Citizen over an editorial criticizing the city’s purchase of some property, the N.C. Supreme Court said the fair comment privilege was based on the N.C. Constitution’s free press clause.  Quoting a New York case, the court said:  “‘Every one has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose.  Such comments or criticism are not libelous, however severe in their terms, unless they are written maliciously.’”^[183] Note that, like the fair report privilege discussed above, the fair comment defense can be destroyed by malice.

The fair comment defense requires that an opinion relate to a matter of legitimate public interest, but this requirement is generally interpreted quite broadly to include any person or organization that participates in public activities, seeks public patronage or support, offers goods or services to the public, or becomes involved in public issues.  The opinion, however, must relate to the public aspects of an individual’s life.

Just as the First Amendment defense requires a true factual basis for an opinion, the fair comment defense generally requires statements of opinion be based on facts that are either stated in the article, readily available to the public or widely known.  Thus a movie reviewer need not provide all the details of a film to support her opinion because the facts are readily available to anyone who chooses to see the film.  Or a columnist who criticizes a university president who frequently has been in the news can base his opinion on already publicized facts.  The idea here is that the audience needs to know or be provided with the factual basis for opinion statements so it can evaluate their validity.  If a factual basis is not provided, the audience might assume the author is privy to defamatory facts, and the opinion may be accorded more credibility than it deserves.  The North Carolina appellate courts have never indicated whether the factual basis requirement applies in this state although it is widely accepted elsewhere.

A good example of the factual basis requirement comes from a lawsuit against The New York Times and singer Janis Ian.  The Times quoted Ian as saying that another singer, Phoebe Snow, had been “screwed” by her former manager.  When the former manager sued, the court held that Ian was protected by the fair comment defense because in her interview she provided true facts to support her opinion.  The Times, however, omitted those facts from the article and thus was unable to rely on the fair comment defense.^[184]

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