Friday, January 13, 2017

Eugene Volokh on Libel Law: "When ‘there is serious reason to doubt’ rumors and allegations, is it libelous to publish them?"

More Just as importantly, after reading the schlocky, amateur, borderline retarded "35 pages" thing, how could anyone ever again justify paying Orbis Business Intelligence actual money for anything they produce?

(Nicholas Kamm/Agence France-Presse via Getty Images)
BuzzFeed, as everyone now knows, has published unverified allegations about Russia having “compromising material and information on [Donald] Trump’s personal life and finances”; the allegations had been apparently included in a “classified report delivered to President Obama and President-elect Donald Trump.” This raises all sorts of important questions about national security, journalistic ethics and more. I will set those aside under Mr. Ed’s Law, since I don’t have anything helpful to add about them.

But it also raises one question that a reader asked me about, and on which I actually know something: When a publisher knows “there is serious reason to doubt” certain allegations (which BuzzFeed’s top editor expressly said), is it libelous for the publisher to pass along those allegations (assuming they ultimately prove to be factually false)? Or is the publisher free to publish them on the theory that it is accurately reporting what has been alleged, even if the allegations are not accurate? It’s unlikely that Trump, despite his talk about libel law, will actually sue BuzzFeed over this, but these questions come up often with regard to reports about accusations about lower-level public figures. And the answer is, “It’s complicated.”

1. The republication rule: Say that Alan writes, “Betty alleges Charlie committed armed robbery.” Alan’s statement is literally true: Betty did make the allegation. But the statement Alan is reporting on (Betty’s statement) is false. American libel law has long adopted the “republication rule,” under which Alan is potentially liable for defamation — if Betty’s allegation actually proves to be false — even if he expressly attributes the statement to Betty. (See Restatement (Second) of Torts § 578.)
And this is true even if Alan distances himself from the allegation, for instance by saying that Charlie has denied the statement, or that Betty has reason to lie. The principle is that “Tale bearers are as bad as the tale makers.”

2. The “absence of malice” / absence of negligence defense: Of course, Alan (like Betty) would still have the benefit of the First Amendment defamation defenses that the Supreme Court has crafted. For instance, if Charlie is a public official or a public figure, Alan is immune from liability unless he spoke knowing that the statement was false, or at least having “serious doubts as to the truth of” the allegation. (That’s the famous “actual malice” standard, though that term is confusing, because it doesn’t actually mean “malice.”) If Charlie is a private figure, Alan would be immune from liability if he reasonably believed the allegations.
Very often, people who are passing along such allegations do sincerely believe them, even if they are unwise to do so. If that’s true, and Charlie is a public figure or public official, then Alan is off the hook. But assume, as in the BuzzFeed situation, that Alan does indeed know that “there is serious reason to doubt” the accuracy of Betty’s charges. The “absence of malice” defense thus falls away, and we get to the really interesting stuff.

3. The fair report privilege: The republication rule can’t be the whole story, though. Say a reporter is covering a trial, in which witnesses are making assertions that the reporter knows are false, or knows are likely false; or say a reporter is reporting on some official government report. The law has long recognized that such coverage must be immune from liability, under the so-called “fair report privilege,” at least when the coverage is substantially accurate and evenhandedly summarizes the testimony. In many states, this is an absolute privilege, applicable even when the reporter knows that the statements within those proceedings are likely to be false.
The fair report privilege also generally extends beyond reports of court proceedings, to include reports of public meetings of government bodies, including legislative and executive bodies. But most cases don’t extend it to reports of nonpublic government discussions. A report of allegations included in a secret government briefing, for instance, wouldn’t qualify for this privilege (though maybe they would qualify for others).

4. The possible neutral reportage privilege: But what if the statement is outside a government proceeding? Consider this incident, from Norton v. Glenn, a 2004 Pennsylvania Supreme Court case: William T. Glenn Sr., a city councilman, claimed that council president James B. Norton III and mayor Alan M. Wolfe were gay, implied that they were child molesters and claimed “that Norton had made homosexual advances toward Glenn which escalated to Norton grabbing Glenn’s penis.” A newspaper published an article accurately describing the charges and quoting Norton’s unequivocal denial; the newspaper didn’t endorse Glenn’s statements. Norton and Wolfe sued both the newspaper and Glenn, and the jury found that the statements were false....MUCH MORE