A newsworthiness privilege for republished defamation of public figures.

ABSTRACT: When the media knowingly republish defamation of public figures, the media are subject to possible libel actions by the defamed parties to the same extent as the original defaming parties, even when the defamatory statements are themselves newsworthy in context. This is the dilemma created by the Supreme Court's decision in New York Times Co. v. Sullivan, in which the Court went to great lengths to protect the media's ability to report the news--even news that is false--so long as the republication is not done with a reckless disregard for the truth. What, then, should be done about information that is known to be false but is nonetheless necessary to inform public discourse? This Note suggests allowing republication based on the newsworthiness of the defamatory statements, i.e., when it is newsworthy that the defamatory statements were made. Such a newsworthiness privilege would serve defamation plaintiffs, media defendants, and the public better than any of the existing approaches.

 
  I. INTRODUCTION 
 
 II. PRIVILEGES FOR REPUBLISHED DEFAMATION 
     A. THE FAIR-REPORTING PRIVILEGE 
     B. NEW YORK TIMES CO. v. SULLIVAN: THE ACTUAL-MALICE 
        STANDARD FOR DEFAMATION 
     C. EDWARDS V. NATIONAL AUDUBON SOCIETY, INC.: THE 
        NEUTRAL-REPORTING PRIVILEGE 
 
III. NEWSWORTHINESS DENNED 
     A. NEWSWORTHINESS AS AN ELEMENT OF THE NEUTRAL-REPORTING 
        PRIVILEGE 
     B. NEWSWORTHINESS AS AN ELEMENT OF THE TORT OF PUBLICATION 
        OF PRIVATE FACTS 
     C. NEWSWORTHINESS AS DEFINED BY THE MEDIA 
 
 IV. NEWSWORTHINESS AS THE TEST FOR REPUBLISHED DEFAMATION 
     A. A BETTER PRIVILEGE FOR DEFAMATION PLAINTIFFS 
     B. A BETTER PRIVILEGE FOR MEDIA 
     C. A BETTER PRIVILEGE FOR NEWS CONSUMERS 
 
  V. NEWSWORTHINESS APPLIED 
 
 VI. CONCLUSION 

I. INTRODUCTION

At a borough council meeting, a councilmember claims that he saw the borough mayor and the council president engaging in a homosexual act in the council president's house. (1) The same councilmember issues a statement "strongly implying" that he considers the council president and the mayor to be "'queers and child molesters'" and that the councilmember feels obligated to make the public aware of this information. (2) The accusations are false.

A reporter for a local newspaper takes down the councilmember's comments and records the mayor's reaction: "'If [the councilmember] has made comments as bizarre as that, then I feel very sad for him, and I hope he can get the help he needs.'" (3) Though the reporter knows that the substance of what the councilmember said is false, the reporter includes the councilmember's exact statements in an article headlined "Slurs, insults drag town into controversy"; (4) the news is not that the council president or mayor may be guilty of the outrageous charges, but rather that an elected official would make such allegations. Regardless, the mayor and council president sue the councilmember--and the newspaper--for defamation and republished defamation, taking their case all the way to the state supreme court, and win. (5)

Such were the facts of Norton v. Glenn, in which the Pennsylvania Supreme Court wrestled with the right of the media to republish defamatory comments about public figures when the media know that the comments are defamatory. (6) Since New York Times Co. v. Sullivan, when the U.S. Supreme Court ruled that public figures cannot sue the media for publishing false information unless the media did so with reckless disregard for the truth, (7) courts have disagreed about how to handle cases where the media knowingly publish false-yet-newsworthy information. This Note urges courts, when assessing liability of the media for republished defamation of public figures, to protect republication when it was newsworthy that the original party made the defaming statement.

Courts have largely used proxies for newsworthiness rather than newsworthiness itself. One common-law response to the dilemma of republished-yet-newsworthy defamation was the fair-reporting privilege, which protected all fair and accurate accounts of defamation that occurred at public meetings. (8) Other courts have adopted a similar but expanded privilege--the neutral-reporting privilege--that protects fair and accurate accounts of defamation, so long as the republished information came from a prominent source. (9) Other courts, such as the Pennsylvania Supreme Court in Norton, (10) have hewed to Sullivan's exact language and explicitly declined to protect any form of republished defamation.