The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
You publish something on your blog reporting about a lawsuit. You accurately report the factual claims alleged in the complaint, which means you're protected by the so-called "fair report" privilege even if the allegations prove to be false. But you don't mention that the case was settled—does that make your report so incomplete that it is libelous?
No, said the New Jersey Supreme Court today in Petro-Lubricant Testing Laboratories, Inc. v. Adelman (link added):
[Plaintiff John] Wintermute argues that Adelman should be stripped of the privilege because the modified article failed to report that Wintermute and Laforgia had settled the case. A settlement of the lawsuit, however, is not an adjudication of the truth or falsity of a complaint's allegations. The fair report privilege may not protect a publication that only reprints the allegations but not the favorable verdict.
A settlement, however, is different from a favorable verdict. A settlement generally "reflects ambiguously on the merits of the action" and is not a determination of whether the allegations are true or false.
Here, the parties agreed that the terms of the settlement would remain confidential, and therefore the settlement terms were not made available to the public. Nothing in the record suggests that the settlement, which resulted in a dismissal of the complaint, constituted a judgment on the merits or on the truth or falsity of the allegations. In the mind of some readers, reference to a settlement might even have suggested an admission of fault.
In short, we conclude that the modified article is a full, fair, and accurate account of a court-filed complaint alleging gender discrimination, workplace harassment, and retaliation and is protected by the fair report privilege.
Of course, it is probably good practice to mention that a case was settled when writing about the complaint, just because it offers more information to readers. But neglecting to do so is not libelous. (The result may be different, as the court points out, if one fails to mention a defense verdict, that may not satisfy the fair report privilege's precondition that the story be a "full, fair, and accurate" summary of court documents.)
This is particularly important because, in some situations, a publisher might be liable for a post that was privileged when first posted, but that becomes libelous later. That could happen when the story is updated enough to be treated as a new publication (which the court held happened here). It could also happen if the state generally takes the view that there is a duty to take down one's recent defamatory allegations, once one knows they are false. But even in such situations, the New Jersey Supreme Court concludes, it's not libelous to fail to mention the settlement.
Disclosure: My students Nate Barrett, Charles Linehan and Michael Smith and I filed a friend of the court brief in the case, via my Scott & Cyan Banister First Amendment Clinic, on behalf of the Reporters Committee for Freedom of the Press, and I also argued on behalf of amici in the Appellate Division and before the New Jersey Supreme Court; many thanks to our invaluable pro bono local counsel, Daniel Schmutter of Hartman & Winnicki.