Content-Type: text/html Malice The malice muddle The changing definition of malice and its threat to the fair report privilege Deborah Gump University of North Carolina at Chapel Hill Ph.D. student and Freedom Forum Fellow 412 Tinkerbell Road Chapel Hill, N.C. 27514 919-967-8597 [log in to unmask] Submitted to the Law Division of the Association for Education in Journalism and Mass Communication Convention August 2000, Phoenix, Ariz. (Powerpoint capability preferred, but not required, in case of acceptance) The malice muddle The changing definition of malice and its threat to the fair report privilege Abstract Suppose a mayor accused a councilmember at a town meeting of selling drugs. Next, suppose the reporter from the Daily Banner was told by his editor to forget about the accusation because the mayor's libel suit would bankrupt the paper. Wouldn't happen, you say? Under new court interpretations of the fair report privilege, it might. The privilege protects reporters from libel suits if they cover official proceedings accurately, fairly, and without common law malice. However, some courts are applying the terms of actual malice, which could require reporters to investigate the likely truth of such accusations. This paper examines the resulting threat to the fair report privilege, a key media defense in libel suits. The malice muddle The changing definition of malice and its threat to the fair report privilege Larry Casteel, 48, had been accused of taking indecent liberties with a 15-year-old girl from the time she was 10. Wishing to avoid a trial, Casteel pleaded no contest to the felony. The Gillette (Wyo.) News-Record's story accurately reported the plea, but two sentences later said he "admitted" committing the acts. Casteel sued for libel because his "no contest" plea was not an admission of guilt. The Wyoming Supreme Court ruled for the newspaper. Its rationale: Although the story was wrong, it had "qualities of impartiality and honesty" and was free from "prejudice, favoritism, and self-interest." [1] ((( Reporter Sandy Hodson's tip had produced a great story: The FBI searched the records of a local cap factory for evidence the owner's son-in-law had invested profits from his alleged drug trafficking. But when no such evidence was found, the owner unsuccessfully sued the Jackson (Tenn.) Sun for libel in federal court. The court's rationale: The search warrant's supporting affidavits, which Hodson had used in her story, were wrong, but she had fairly and accurately described them. The court went on: Even though the affidavits had the facts wrong, the reporter didn't know they were wrong, and she didn't exhibit "reckless disregard" for the truth.[2] ((( As the town council meeting was ending, one resident stood up to say the city had "problems with drugs, and it'd help if we could get Mr. Moreno to quit dealing drugs out of the back of his police car." The Crookston (Minn.) Daily Times printed the accusation against Gerardo Moreno, later cleared in a federal investigation. Moreno took his suit to the Minnesota Court of Appeals and won. Its rationale: The facts were wrong, and it didn't matter that the paper reported them accurately. The paper had reason to believe the facts were wrong, and it reported them maliciously.[3] ((( The cases have three things in common: 1) All three newspapers relied heavily on one of the most widely used defenses in media libel law: the fair report privilege. 2) None of the rulings was based on the truth of the facts in the stories. 3) Instead, the outcomes hinged on how the papers handled their understanding of that truth. The fair report privilege was fashioned through centuries of common law, as courts realized that citizens needed help to stay on top of public affairs. Once upon a time, people could attend every trial in their community, or read for themselves every public document or record that affected their lives. But as people's free time dwindled and the civic agenda grew more complex and crowded, the media began to perform a critical go-between role. The common law defense of fair report developed as courts tried to help the media fill that role: If public officials have an absolute right to say or write anything they want in their official capacity - even false and libelous statements - the press must be able to report those statements without fear of libel prosecution. Under the common law definition, that conditional fair report right is protected if the press meets three general and simple requirements: The report must be fair and balanced, substantially accurate and complete, and made without malice, which under common law means ill will, spite, or intent to cause harm.[4] Because the fair report privilege is grounded in common law, its interpretation is up to individual states. Wyoming gave the privilege statutory standing with a very liberal interpretation: State law doesn't require that the story be true or accurate, just fair and impartial.[5] As long as the press can show it was fair - and the News-Record reporter filed an affidavit saying that his mistake in the Casteel story was "inadvertent and without malice" - the fair report privilege will stand. Tennessee courts have defined the state's common-law application more narrowly: Not only will an unfair and inaccurate report lose privilege, so will a report made with "actual malice," defined in Sullivan v. New York Times as publishing a story with knowledge that it is false or with reckless disregard for the truth.[6] Because no evidence was presented to show that the Jackson Sun reporter knew her report to be false, or that she acted recklessly, the privilege protected her newspaper. However, the Minnesota Court of Appeals combined elements of common law and actual malice in ruling against the 4,000-circulation Crookston Daily Times. Sgt. Detective Moreno lost in the trial court because the judge ruled that the Times' story was a fair and accurate report, and no showing of malice could defeat the privilege to print it. When an angry Moreno appealed, his lawyer Stephen Rathke explained why: "The judge's decision allows newspapers to print anything, even if they know it's false. I don't think that's the law in the state of Minnesota. I think a person's reputation is more important than the so-called right of a newspaper to publish false statements simply because they were stated at a public meeting."[7] The state appellate court vigorously agreed, apparently blending the actual malice definition into its definition of common law malice: "The Restatement (Second) of Torts 611[8] (1977), providing that fair report privilege exists even though publisher does not believe defamatory words to be true or knows them to be false, does not represent Minnesota law; qualified privilege associated with common law fair reports privilege can be defeated under Minnesota law by showing common law malice."[9] Reporters rely so heavily on the fair report privilege that the question of how that privilege can be defeated is a critical one. Often, the court faces a variety of decisions that will determine if the privilege holds: (Does the statement, meeting, or document qualify for protection as an official proceeding? For example, the Cleveland Plain Dealer was sued last year by AirTran Airlines after the newspaper reported potential safety problems found in a preliminary draft of an FAA safety inspection report. In September, the newspaper's motion for summary judgment based on the fair report privilege was denied, in part because the draft was "uncertified and unauthenticated."[10] (Is the story fair? A National Enquirer story about a lawsuit filed against Larry Fortensky, Elizabeth Taylor's then-husband, was fair enough in its coverage of a court proceeding, even though it later quoted a fabricated neighbor to add "dramatic impact."[11] (Is it accurate? For a Pennsylvania paper, printing that the plaintiff was convicted of embezzlement, when in fact he was convicted of tax evasion and mail fraud, was accurate enough.[12] In determining fairness and accuracy, courts have ruled that stories don't have to offer a full summary of the facts if the abridgement presents a complete picture, and they don't have to be absolutely accurate if the published accusation has the same "gist" and "sting" of the actual accusation. The question of malice, however, is a much fuzzier issue. Traditionally, only common law malice would defeat the privilege, all other requirements being met. A review of case law found the Crookston Daily Times story to be an aberration: Most journalists don't go about their jobs with ill will in their hearts and intent to harm the people in their stories. However, if actual malice becomes an acceptable attack on the privilege, the ability to fully report on the absolutely privileged - and possibly libelous - comments of public officials will be in serious jeopardy. The meaning of malice Mention libel to most journalists and lawyers and their touchstone usually is the landmark Sullivan ruling in 1964, which brought libel law within the protective perimeter of the Constitution. Sullivan created a distinction in libel law between public officials and private plaintiffs because the "uninhibited, robust" public debate expected by the First Amendment was likely to spark "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."[13] The test of truth needed "breathing space" to hold its own in such an environment, so the Court in Sullivan and subsequent cases set up a two-tiered fault requirement. Under Sullivan and its progeny, public officials and later public figures[14] had to prove the libel was committed with the fault level of actual malice. After Gertz v. Welch,[15] private plaintiffs also had to prove some level of fault, and the Court left it up to the states to decide what their standard of fault would be. Most states adopted a standard of simple negligence; a few have chosen the Sullivan actual malice standard; and at least one is using a "gross irresponsibility"[16] standard. The term of actual malice is unfortunate because actual malice has nothing to do with the kind of malice that most people, including those who sit on juries, understand. Actual malice moves the question from the defendant's attitude toward the plaintiff - did he intend to hurt the plaintiff? - to the defendant's attitude toward the truth[17] - did the defendant behave recklessly with regard to the accuracy of his story? However, none of this applies when the fair report privilege is invoked. The fair report privilege applies whether the plaintiff is public or private, and traditionally, it didn't matter whether the publisher knew the story was false. Some states have enacted statutory provisions for the privilege, but in many states, the media still depend on common law for the privilege to fairly and accurately report from public proceedings and documents. Those states that have not passed fair report laws tend to rely on the guidance of the Restatement (Second) of Torts from the American Law Institute. Under the fair report privilege, the question becomes not one of truth or falsity but of accuracy and fairness. A balancing act The battle between defending one's reputation and defending the fair report privilege is as old as common law itself, but the value of a good name goes back centuries. Under Roman law abusive chants could be punished by the death penalty. In the seventeenth and eighteenth centuries, a person's investment in his reputation outweighed society's need for free speech[18] under common law. The concept of privilege existed only as a measurement to determine punishment, weighing the intent of the speaker against the falsity of his statement. The standard of the time was "actual malice," which, unlike the term's use in Sullivan, was defined as any "mean or crooked motive of which an honourable man would be ashamed."[19] The motive for making the statement was key to passing judgment: Was there a good reason, a possible excuse, for the slanderous statement? A typical case is Peacock v. Reynal, where a nephew-in-law wrote his uncle-in-law that the uncle's son was illegitimate, haunted taverns, and desired his father's death. The Star Chamber held that if the defamer's motive had been to help the father reform his son, there would have been no libel, but since it had been to gain the son's inheritance, it was malicious. In another early case, the plaintiff sued the defendant for falsely and maliciously "saying of him, that he heard he was hanged for stealing of an horse." The plaintiff was nonsuited because the words were spoken "in grief and sorrow for the news" rather than maliciously. [20] It wasn't until the nineteenth century, however, that case law began to carve out a separate defense status for a communication privilege, and one of the earliest was that of mutual interest: The speaker says something the hearer needs to know to protect a mutual interest. In Toogood v. Spyring,[21] a tenant farmer was sued when he told the land's owner that a workman, sent to the farm by the owner to make repairs, had instead gotten drunk and bungled the job. Baron Parke, in ruling for the tenant, said privilege existed for the good of society. A statement is privileged, he said, if it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defense depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society.[22] Since Parke's ruling, the scope of both malice and privilege broadened. Actual malice gave way to presumed malice - instead of the presence of malice being a question of fact to be determined, all false statements were presumed to have been made with malice - and the concept of privilege expanded beyond the immediate speaker and listener to include a third party who needed to hear the information.[23] One of the earliest expressions of support for such privilege in American courts was made by Justice Holmes, who endorsed its "supervisory" function in Cowley v. Pulsifer: It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.[24] The law we live with today, however, was profoundly shaped by two relatively recent cases. The legal definition of malice abruptly changed with Sullivan in 1964, and the policy underpinning of privilege was given a broad base in Medico v. Time. Inc.[25] in 1981. Time magazine published an article that used information from FBI records to link then-Congressman Daniel Flood with reported Mafia insiders Russell Bufalino and Philip Medico. The FBI was investigating accusations that the Pennsylvania congressman was using his influence to steer government contracts to the Medico construction business. In protecting Time's use of the material, the United States Court of Appeals for the Third Circuit laid out three rationales for the fair report privilege: (The "agency" rationale: A reporter, acting as an agent for the public, is covering activities to which the public is invited but unable to attend. (The "public supervision" rationale: The media keep the government open and accountable. (The "public's right to know" rationale: The public has a justifiable interest in matters of public importance. It is on the third point that the fair report privilege draws some of its sharpest criticism. The right to privacy has been dealt a devastating blow by encroaching media requests for public records, some critics argue. One commentary uses Cox Broadcasting Corp. v. Cohn[26] to argue for the right to keep some public records private. In Cox, which gave First Amendment protection for information disclosed in court proceedings, the Court ruled that Cox's broadcasting of a rape victim's name obtained from an indictment was protected. Author Karen Rhodes argues: First, publication of material derived from court records often does little to advance the public's interest in understanding and "supervising" the conduct of public affairs. _ Second, even if one accepts the premise that publication of material disclosed in court proceedings advances the public's supervisory interests, it is not clear that the First Amendment requires absolute protection for courtroom coverage to vindicate those interests. _ By constitutionally protecting all publications of matters of public record rather than simply those publications truly advancing public-supervisory interests, the Cox Broadcasting mandate serves only to protect those who publish matters of public record lacking any nexus to the supervision of government affairs.[27] Besides, Rhodes continues, why should public-record information deserve more protection than information from other sources? In fact, she suggests, non-public-record information is in greater need of public supervision because that is where secrets are likely to be hidden. She also questions whether the public has an unrivaled interest in public affairs. Citing Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. [28] - which suggests that a consumer's interest in commercial information "may be as keen, if not keener by far, than his interest in the day's most urgent political debate" - Rhodes argues that if the "established hierarchy of First Amendment values is indeed unjustified, so too are the unique protections afforded publications of matters of public record on the grounds that they advance public-supervisory interests." [29] The media also have been chided for their attempt to push the fair report privilege beyond official actions and proceedings to unofficial actions. For example, David Elder, law professor at Northern Kentucky University, rejects a suggestion that the press was acting within its rights when it identified Richard Jewell as a suspect in the Olympic Park bombing. Elder asserts that the media too often try to equate "truth" with accurately reporting what "police say": Media apologists invariably try to bootstrap such unauthorized government leaks into protected fair-report status by breast-beating incantations of their "watchdog" role over government. This attempted justification is perverse. Law enforcement officers and criminal justice officials share a common duty: to protect the citizenry from unfounded charges or allegations by filtering out speculative or unsubstantiated allegations of crime from bona fide, substantiated charges warranting prosecution.[30] Clearly, the fair report-reputation relationship balances on a fine point: An unabridged defense of reputation drains the fair report privilege of its power to help citizens become partners in the public process. If greater weight is given to the goals of an involved citizenry, the ability to defend one's reputation suffers. The relationship is not unlike a playground seesaw: When one side rises, the other falls. The challenge is to find a steady middle point, where justice flows evenly to both sides. Newsrooms at risk In one of the most elegant expressions of the value of reputation, Justice Potter Stewart wrote, "The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being - a concept at the root of any decent system of ordered liberty."[31] As the judicial system works to protect that right, however, the range of speech that falls within the purview of the courts can determine how a reporter does his job, and how an editor guides her newspaper. If speech about matters of public concern is narrowly defined, warns Stephen M. Stern, "courts of law will replace editorial boardrooms; if defined broadly, newsgathering will become the defense nouvelle for all violations of general laws."[32] The role of malice - common and actual - in the standing of the fair report privilege is unclear, yet it poses a potentially devastating threat. Ruth Walden, a professor at the University of North Carolina at Chapel Hill, poses the following scenario: For example, if a state legislator speaking on the floor of the General Assembly made defamatory allegations against the governor, a journalist might feel those charges should be reported in the press, even if the journalist seriously doubted their truth or even knew they were false. The journalist might reason that the public needed to know that a legislator was making unsubstantiated and irresponsible charges against the governor. Since the basic purpose of the fair report privilege is to enable the media to inform the public about the actions of government officials and operations of government, whether the journalist knew or suspected that the statements made by the legislator were false would seem irrelevant.[33] The American Law Institute, created more than seven decades ago after a task force found that uncertainty and complexity in the law had produced "general dissatisfaction with the administration of justice,"[34] has tried to discourage states from using either common law or actual malice to defeat the privilege. Its post-Sullivan Restatement (Second) of Torts abandons the stance of the 1938 Restatement (First) of Torts that a corrupt motive defeated the privilege. To many, motive had become irrelevant in Sullivan's wake. The presence of ill will does not necessarily negate the value of a speaker's comments, as the Supreme Court said in Garrison v. Louisiana: Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. [35] That line of thinking convinces some authorities that the fair report privilege is, in essence, an absolute privilege. As Bruce W. Sanford writes: This result is sensible. If constitutional "actual malice" were sufficient to defeat the privilege, the policies behind the privilege would, for all practical purposes, be eviscerated. The basic aim of the privilege is to encourage accurate and fair reporting of statements made during public proceedings. The editor's belief in the truth or falsity of such statements should not matter; the point is that the statements were made. The fairness and accuracy requirements afford ample protection to reputational interests once an individual has become embroiled in public proceedings.[36] Sanford writes encouragingly of the paucity of reported cases in which common law malice defeated the privilege; in fact, he cites the Restatement (Second) of Torts' assertion that there have been no cases,[37] although that was written before this summer's appellate setback for the Crookston Daily Times. The newspaper's appeal has been accepted by the Minnesota Supreme Court, but at least one major newspaper company has already voiced concern. Barbara Wartelle Wall, who writes a legal news summary for the Gannett Co.'s member papers, notes that if the appellate decision stands, "the fair report privilege will be narrower in Minnesota than in many jurisdictions."[38] The legal status in other states is murky. Sanford suggests that the ruling in Schiavone v. Time, Inc. supports the viewpoint that malice cannot be a weapon against the fair report privilege.[39] However, as the Crookston Daily Times found out, not all states share that view. Method and research questions A clearer picture of how courts are addressing the malice issue is essential to understanding what risk it presents to the newsgathering process. This paper surveyed 140 cases in the 1990s that involved the fair report defense: 106 cases were culled from the indexes of Media Law Reporter, 21 cases were found in the West Decennial Digest, and 13 found through a LEXIS search using the key words "libel," "fair report," and "malice." Many more cases might be found in those sources under a search for "privilege," but only those cases where the court was unambiguous in its discussion of the fair report privilege, as opposed to another privilege such as communication of mutual interest, were included. The 50-state Media Libel Law Survey from the Libel Defense Research Center was also used to collect data. The opinions were analyzed to consider these questions: (In what percentage of the cases is the issue of either kind of malice discussed, either in the summary or the full opinion, in regard to the fair report privilege? Often, the determination of whether the privilege had been abused did not pivot on the issue of malice; many decisions were based on other points of law, such as fairness, accuracy, and whether the material qualified for the privilege. However, the fact that courts felt obliged to even raise the question of malice indicates it is still a factor for many of them. ( In how many cases did the court expressly state that common law malice could defeat the fair report privilege, all other conditions being met? Did any plaintiff, beside officer Moreno, prove such malice? (In how many cases did the court expressly state that actual malice was the standard necessary to defeat the fair report privilege? Did any plaintiff manage to meet that standard and on what evidence? (What arguments were used in the opinions to support or deny charges of either type of malice? A portrait of malice Judges frequently say in libel opinions that they must view the story as a whole and not consider any of its statements in isolation. As one opinion put it, "A magnifying glass is no aid to appreciating a Seurat, and the pattern of a complex structure is often discernable only at some distance."[40] Thus, the survey of cases offers a canvas of disturbing opinions, but trying to determine a provable trend is akin to using the art critic's magnifying glass: The cases offer glimpses, but perhaps not the full picture. Those glimpses, however, show that the traditional common-law definition of malice as ill will is getting a lot of company from actual malice, the relatively new kid on the block in fair report cases. Of the 140 surveyed cases, 32 (or 23 percent) mentioned a malice standard. Of those 32 cases, 18 set a common law standard of fault, and 14 required a showing of actual malice. Although three of the actual malice cases were in Georgia, the rest were spread across the country: the District of Columbia, Florida, Louisiana, Maryland, Minnesota, New Jersey, Pennsylvania, Tennessee, South Dakota, and Texas. In Georgia, Maryland, Pennsylvania, and New Jersey, different courts used different standards of fault. To compound the confusion, a few cases mentioned both ill will and actual malice in the same discussion of the fair report privilege. Clearly some judges are as confused as juries about the distinction, and in some cases, they can blame their own state law. Consider the case of Dr. David Brown and nurse Shelley Russell, who were disciplined by the Utah State Division of Licensing because he provided her drugs and medical treatment. Eight months after Russell submitted to a drug-testing program and a month after Brown agreed to a six-month suspension, the Daily Spectrum in Cedar City, Utah, published a story with the details of the case, obtained from the director of the licensing division: Brown overprescribed narcotics to Russell and did medical procedures that were "ethical no-no's." When asked what the procedure was, the director replied, "It's for abortion." The director also told the reporter that Brown and Russell were rumored to be romantically involved and that doctors and nurses often "trade drugs for sex." After the Spectrum's story appeared, Russell sued for libel,[41] and her case eventually reached the Utah Supreme Court. In its discussion of the paper's fair report defense, the court said that Utah's statute required the plaintiff to show "actual malice" to defeat the privilege. In its subsequent description of what qualifies a statement for the privilege, the opinion said "it must be made without 'malice.'" A look at Utah's statute explains why the opinion used both wordings: The degree of malice that must be proven to overcome successfully the statutory privilege set forth in Subsection (4) is the common law standard from which the statute was derived. This standard creates, in effect, an absolute privilege for a defendant's statements unless the statements were made with ill will, were excessively published, or the defendant did not reasonably believe his or her statements were true.[42] When the statute defines common-law malice as both "ill will" and doubt about the story's veracity, it's no wonder an opinion would use both wordings. The court resolved the case by sending it back for a jury decision on whether the licensing director made the abortion statement, a quote that he denied making. If jury decided he did, the fair report privilege would hold. Some actual malice determinations appear to rest on very soft precedent. James Sedore and Paul Reynolds sued the Bernardsville (N.J.) News after it listed them as the owners of an Audi dealership that closed after employee paychecks began to bounce.[43] The trial court denied the paper's request for summary judgment based on the fair report defense because it mistakenly said the paper had failed to produce evidence on the plaintiff's public or private figure status. If the fair report privilege is invoked, the status of the plaintiff becomes irrelevant, as the appellate court pointed out: In so ruling, the trial judge _ misapplied prevailing requirements and misconceived the nature of the case. _ It was clearly erroneous for the trial court to have based its ruling on the need to make that determination. Defendants have premised their positions upon arguably applicable qualified or conditional common law privileges, rather than on the federal/state constitutional privilege.[44] The appellate opinion went on to describe the deficiencies of the word "malice," quoting liberally from a 1986 state supreme court case, and concluded by dismissing the libel complaint. The state supreme court case was, in fact, generous in its dislike for "malice" as a legal description: The term "malice" caused enough confusion when it was confined to the common law, but now it that has assumed a constitutional dimension, the confusion is compounded. Understandably, the differing definitions of "malice" have confounded trial courts. "Malice" adds nothing to the legal analysis of an allegedly defamatory statement, and it can become a pitfall in the underbrush of the common law. Consequently, we lose nothing by striking "malice" from the vocabulary of the common law of defamation. _ Indeed, the Restatement eschews the term altogether, speaking instead of the "abuse of privilege." It is more direct to recognize the legal consequences of the publication of certain statements without recourse to so ambiguous a word with such a checkered past. For example, we need not resort to the term "malice" to state that no one has a license to lie.[45] That's a clear-cut answer to the question of what defeats the fair report privilege. The only problem, however, is that "fair report" is never discussed in the decision. The opinion refers consistently to the "fair comment" privilege, which protects nonmalicious statements of opinion about matters of public interest. Perhaps the court intended its comments to apply to both the fair comment and fair report defenses. Perhaps not. A final area in which the actual malice standard has been applied are cases where the newspaper "plainly adopts" the malicious statement as its own through lack of proper attribution. This survey uncovered two such cases, but in both situations, the reporters protected themselves when they accurately attributed the quotes.[46] In addition to legal confusion, the survey found language in some dissenting opinions that reveals judicial disgruntlement with the level of "privilege" the press enjoys. In August, the Nevada Supreme Court ruled that members of the general public enjoy an "absolute" privilege to republish statements from official proceedings that they know to be false.[47] However, two judges wrote a blistering dissent, saying the court majority had fashioned the fair report "shield" into a "sword" to be used as a weapon: _ I find the premise upon which the fair report privilege is based - that all court documents are factually reliable - to be questionable in today's society. We have seen lawsuits with extravagant claims filed for political or strategic purposes, and I would not guarantee the veracity of some of the allegations I have seen or read about in various pleadings. But aside from the dubious premise upon which the fair report privilege is based, I believe that the absolute privilege the majority espouses today may lend itself too much mischief. _ The First Amendment does not and should not be contorted to protect malicious liars merely because the lies were contained within the context of a judicial action.[48] The encouraging news from this survey is that with the exception of Moreno v. Crookston Daily Times, malice by either definition never defeated the privilege. Most bids by plaintiffs to establish common law malice rested on the manner in which the newspaper or television station edited its report: Were both sides fully represented? Did the language skew the reader to one opinion or the other? In essence, did the existence of common law malice produce an unfair story, which would fail one of the basic requirements of the fair report privilege? For example, a Pennsylvania bank sued over a newspaper story that it said failed to fairly reflect the facts of a complaint filed against it.[49] The bank said the newspaper intended to harm it by using the word "tricked" in the headline and "euchred" and "cozy" in the story, which the court found to be an acceptable "smart alecky" style of writing. The bank also accused the newspaper of not making it clear that the allegations against it were as yet unproven, but the court pointed out the repeated use of words like "claim," "charges," and "contends." Finally, the bank offered these arguments as proof of intent to cause it harm: The paper had run a series of critical articles about the bank three years before; the reporter didn't contact anyone at the bank for comment on the complaint; and another reporter testified that he would have talked to the bank had he written the story but that he wouldn't have chosen to write the story in the first place. The court's response? "We are unpersuaded," reads the opinion. The newspaper was under no requirement to contact the bank, it continued, and the other reporter's opinions and the previous articles were "without merit." The absence of common law malice was "so clear that reasonable minds cannot differ."[50] In Crookston, the only case in which the court upheld the plaintiff's accusation of common law malice, the opinion offered no specific reasons for its decision. The Minnesota appellate decision focused its discussion entirely on why common law malice, which it described with elements of both ill will and knowledge of falsity, should defeat the privilege, not how the Crookston Daily Times story displayed that malice.[51] Attempts by plaintiffs to establish actual malice focused on arguments that had the reporter done a little more checking, he would have found the allegations to be false. Sheriff's deputies in Broward County, Fla., sued a local television station when it aired reports that they had been disciplined for using excessive force.[52] The court, in finding the station had accurately reported information in press releases from the sheriff's press information office, said the station had no further obligation to determine the accuracy of the information. Conclusion The fact that malice by any definition almost never defeated the fair report privilege is not to say the privilege is a sure thing. Courts denied the privilege in 23 percent of the cases in this survey for reasons besides malice; for example, the courts often ruled that the stories did not report privileged statements or that the stories were not substantially accurate or fair. However, for a privilege that is so essential to full and frank coverage of our designated representatives, the specter of an actual malice weapon is disturbing. What is a reporter to do if the mayor accuses a local businessman of making violent threats? If a local businessman calls the mayor a slut and an extortionist at a public meeting, should the newspaper remain mum? And if the police chief accuses the mayor of selling drugs, do reporters avoid the story, fearing the legal wrath of both the police chief and the mayor? A growing body of opinion is making a case for eliminating malice altogether from the fair report equation. As Sanford suggests, what matters to an informed citizenry is that the information contained in public proceedings is conveyed to them, not the motive with which it is conveyed. Complicating the question, however, is the relevance of malice to fairness. For a reporter to be fair, he must have an accurate understanding of the story's meaning. If his understanding is clouded by ill will and spite, how reliably can he trust his fairness? The courts have offered little guidance in their opinions. For example, in the Crookston case, the appellate court offered no explanation for its finding that the paper acted with malice. Was malice evident in the reporting of the story? The presentation of the story? The conduct of the reporter or editor? Editors and attorneys who hope to find the answer in the court's opinion will come away empty-handed. Furthermore, the often-muddy language in many court opinions indicates that courts themselves may be in need of guidance. Such guidance could come from giving the fair report privilege statutory standing, as 16 states have done, but Georgia's law suggests that unless the law is written with crystal clarity, doubt can remain. The Georgia statute opens with a flat statement that "fair and honest" reports of legislative or judicial bodies are privileged.[53] However, a few short paragraphs later, confusion creeps in: In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice and not bona find in promotion of the object for which the privilege is granted, the party defamed shall have a right of action.[54] "Venting private malice" has all the earmarks of someone acting with the ill will and spite found in common-law malice. What, then, are journalists to conclude? What protection do they have to fully report the public's business when that business contains libelous statements? The coverage of lawsuits alone becomes a minefield of potential litigation for journalists. Given a long history of negative reader surveys and comments like those of the dissenting Nevada justices, editors, their attorneys, and state press associations would be wise to carefully consider the situation in their state and, where necessary, lobby for clear and absolute protection for the fair report privilege. Anything less compromises the media's ability to report the public's business and risks the free flow of information vital to an informed democracy. [1] Casteel v. The News-Record Inc., 22 Media. L. Rep. (BNA) 2153 (Wyo. 1994). [2] Billy Stem, d/b/a Crown Manufacturing v. Gannett Satellite Information Network, Inc., a/k/a Nashville Offset, d/b/a The Jackson Sun, 866 F. Supp. 355 (D.Tenn. 1994). [3] Moreno v. Crookston Times Printing Co., 27 Media L. Rep. (BNA) 2180 (Minn. Ct. App. 1999). [4] 53 C.J.S. Libel and Slander 191 (1987 ) [5] Wyo. Stat. 1-29-105. [6] New York Times Co. v. Sullivan, 376 U.S. 254 (1964). [7] Jaime DeLage, Libel Case Against Crookston Paper Dismissed, Grand Forks Herald Online (Oct. 13, 1998) . [8] The American Law Institute's widely consulted guide of legal interpretations. At 611, it says: "The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported." The section continues at paragraph a "_ the privilege exists even though the publisher himself does not believe the defamatory words he reports to be true or even when he knows them to be false." [9] Moreno v. Crookston Times Printing Co., 27 Media L. Rep. (BNA) 2180, 2180 (Minn. Ct. App. 1999). [10] AirTran Airlines, Inc. v. Plain Dealer Publishing Co., No. 1:98-cv-1750-CAM, 1999 U.S. Dist. LEXIS 14134 (D. Ga. 1999). [11] Fortensky v. National Enquirer Inc., 22 Media L. Rep. (BNA) 724 (Calif. Super. Ct. 1994). [12] Reilly v. North Hills News Record, 27 Media L. Rep. (BNA) 729 (W. Pa.1998). [13] New York Times Co. v. Sullivan, 376 U.S. at 270. [14] Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130 (1967). [15] 418 U.S. 323 (1974). [16] New York, in Chapadeau v. Utica Observer-Dispatch, Inc., 341 N.E.2d 569, 1 Media L. Rep. (BNA) 1693 (N.Y. 1975). [17] Perez v. Scripps-Howard Broadcasting Co., 520 N.E.2d 198, 202 (Ohio 1988). [18] W. Page Keeton, Prosser and Keeton on the Law of Torts, 112, at 795 and 113, at 804 (1984). [19] See William B. Odgers, The Law of Libel and Slander 204 (2d Eng. ed. 1887). [20] M.M. Slaughter, The Development of Common Law Defamation Privileges: From Communitarian Society to Market Society, 14 Cardoza L. Rev. 351, 367 (1992). [21] Toogood v. Spyring, 149 Eng. Rep. 1044 (Ex. 1834). [22] Id. at 1049-50. [23] See Davies v. Snead, 5 L.R.-Q.B. 608, 611 (1870): "[W]here a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, _ it is a privileged communication." [24] Cowley v. Pulsifer, 137 Mass. 392, 394 (1884). [25] 643 F.2d 134 (3d Cir.), cert denied, 454 U.S. 836 (1981). [26] 420 U.S. 469 (1975). [27] Karen Rhodes, Open Court Proceedings and Privacy Law: Re-Examining the Bases for the Privilege, 74 Tex. L. Rev. 881 (1996). [28] 425 U.S. 748 (1976). [29] Rhodes, supra note 27. [30] David Elder, Law Doesn't Protect Media Irresponsibility, Nat'l L. J., Jan. 20, 1997, at 16. [31] Rosenblatt v. Baer, 383 U.S. 75, 92 (1966). [32] Stephen M. Stern, Witch Hunt or Protected Speech: Striking a First Amendment Balance Between Newsgathering and General Laws, 37 Washburn L.J. 115 (1997). [33] Ruth Walden, Mass Communication Law in North Carolina 26-27 (1993). [34] About the American Law Institute Web page (visited Oct. 15, 1999) . [35] Garrison v. Louisiana, 379 U.S. 64, 73 (1964). [36] Bruce W. Sanford, Libel and Privacy 490 (1999). [37] Id. at 489. [38] Barbara Wartelle Wall, Minnesota Appeals Court Narrows Fair-Report Privilege, Legal Watch, Gannett Co. Web site (visited Oct. 23, 1999) < http://www.gannett.com/go/newswatch/99/july/nw0702-6.htm>. [39] Sanford, supra note 36, at 489. The ruling in Schiavone v. Time, Inc., 569 F. Supp. 614, 619 (D.N.J. 1983), according to Sanford, holds that the fair report privilege is not defeated by proof of defendant's ill motives or 'malice in fact.'" [40] Chapin v. Knight-Ridder Inc., 21 Media L. Rep. (BNA) 1449, 1456 (4th Cir., 1993). [41] Russell v. Thomson Newspapers, d/b/a The Daily Spectrum and Messerly, 842 P.2d 896 (Utah 1992). [42] Utah Code Ann.  45-2-3 (4). [43] Sedore and Reynolds v. The Recorder Publishing Co., 716 A.2d 1196 (N.J. Super. 1998). [44] Id. 1998 N.J. Super. LEXIS 395, at section III. [45] Dairy Stores, Inc. v. Sentinel Pub. Co., 104 N.J. 125, 150 (N.J. 1986). [46] Chapin v. Knight-Ridder Inc., 21 Media L. Rep. (BNA) 1449 (4th Cir. 1993); Boyd v. University of Maryland Medical System, 26 Media L. Rep. (BNA) 1401 (D. Md. 1998). [47] Sahara Gaming Corporation v. Culinary Workers Union Local, 984 P.2d 164 (Nev. 1999). [48] Id. at 170 (Rose, C.J., concurring). [49] First Leigh Bank v. Cowen, 24 Media L. Rep. (BNA) 2409 (Pa. C.P. 1996). [50] Id. at 2416. [51] Moreno v. Crookston Times Printing Co., 27 Media L. Rep. (BNA) 2180 (Minn. Ct. App. 1999). [52] Stewart v. The Sun Sentinal Co., 24 Media L. Rep. (BNA) 1318 (Fla. Cir. Ct. 1995). [53] Ga. Stat. 51-5-7: "The following communications are deemed privileged: _ (5) Fair and honest reports of the proceedings of legislative or judicial bodies; (6) Fair and honest reports of court proceedings; (8) Truthful reports of information received from any arresting officer or police authorities; _" [54] Ga. Stat. 51-5-9: "In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action."