Is Accurately Repeating a Defamatory Allegation Itself Defamatory?

It's complicated.

(A comment on the Incomplete Reports of Legal Proceedings as Libel thread leads me to repost this item from two years ago; there has been a lot of talk of libel since then, so I thought reposting it might yield an interesting conversation.)

Say that Don writes, "Teresa alleges Paul committed armed robbery." Don's statement is literally true: Teresa did allege that. But the statement Don is reporting on (Teresa's statement) is false. Can Paul sue Don for defamation and win?

[1.] The republication rule: Often, yes. American defamation law has long adopted the "republication rule," under which Don is potentially liable for defamation—if Teresa's allegation actually proves to be false—even if he expressly attributes the statement to Teresa. See Restatement (Second) of Torts § 578. (You could tell that Don was destined to be a defendant just from the first letter of his name.)

The principle is that "Tale bearers are as bad as the tale makers." And this is true even if Don distances himself from the allegation, for instance by saying that Paul has denied the statement, or that Teresa has reason to lie. A stark example: Martin v. Wilson Pub. Co. (R.I. 1985), which held that reporting a rumor that a local developer had been guilty of arson could be defamatory even though the newspaper expressly said that "[s]ome residents stretch available facts when they imagine Mr. Martin is connected with [the fires]," and that "[l]ocal fire officials feel that certain local kids did it for kicks."

[2.] The "absence of malice" / absence of negligence defense: Of course, Don (like Teresa) would still have the benefit of the First Amendment defamation defenses that the Supreme Court has crafted. For instance, if Paul is a public official or a public figure, Don 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 Paul is a private figure, Don would generally be immune from liability if he reasonably (i.e., nonnegligently) believed the allegations. (In a few states, if Paul is a private figure and the accusation is seen as a matter of purely private concern, e.g., an accusation of adultery rather than a serious crime, Don might be "strict liable," even if he reasonably investigated the matter; but most states require at least negligence in all cases.)

But often enough, a jury could determine that Don was negligent, or even that he was aware that the statement might well be false and thus entertained serious doubt as to its truth. Does that mean that Don is liable?

Well, it often means that, but it can't always mean that, right? The theory behind the First Amendment exception for defamation is that "there is no constitutional value in false statements of fact," because such statements do not "materially advance[] society's interest in 'uninhibited, robust, and wide-open' debate on public issues." But sometimes the very existence of an allegation or a rumor is indeed of importance to public issues.

Thus, consider the following two exceptions.

[3.] The fair report (of government proceedings) privilege: 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. In all of these cases, the very fact that something has been said—even if there's reason to believe it's false—is important for the public to understand what the government body is doing.

[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:

1. William T. Glenn Sr., a city councilman, claimed that council president James B. Norton III and mayor Don 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."
2. A newspaper published an article accurately describing the charges and quoting Norton's unequivocal denial; the newspaper didn't endorse Glenn's statements.
3. Norton and Wolfe sued both the newspaper and Glenn, and the jury found that the statements were false.

Some courts would hold that the newspaper would be protected in such a case under a First Amendment "neutral reportage" privilege—

when a responsible, prominent organization … makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges,

even when the reporter has serious doubts about the accuracy of the charges. (That's from Edwards v. National Audubon Society (2d Cir. 1977).) And some other courts have extended this to certain charges on matters of public concern against private figures, and to statements made not just by responsible, prominent organizations but by any public figure, or even by any non-anonymous source.

There's much to be said, I think, for the neutral reportage privilege. Sometimes, charges themselves can be newsworthy even if they are false: Among other things, for instance, Glenn's charges against Norton and Wolfe could be important to the public because they reflected on Glenn's fitness for office. And it seems bad in a democracy when elite insiders know what rumors are swirling around, but ordinary voters are denied access to those rumors

Nonetheless, a majority (though not an overwhelming majority) of courts that have considered the matter have rejected the neutral reportage privilege, because of the harm that false allegations—including ones passed along, rather than created in the first place, by the defendant—can cause to people's reputations. In Norton v. Glenn, for instance, the Pennsylvania Supreme Court held that Norton's and Wolfe's lawsuit against the paper could go forward, and the paper could be held liable if it published Glenn's statements knowing that they were likely false; the case eventually settled for an undisclosed amount. The New York high court has also rejected the neutral reportage privilege, as have several others.

And there are other exceptions as well.

[5.] The privilege for private communications of rumors, described as such: Defamation law applies not just to newspapers, broadcasters, bloggers, and the like, but also to people who speak to only a few listeners—an employer talking to its employees (or vice versa), a person talking to a friend, and the like. In such situations, courts have developed the following test, summarized in § 602 of the Restatement (Second) of Torts: When "the relation of the parties, the importance of the interests affected and the harm likely to be done make the publication reasonable," it's generally not defamation to "publish[] a defamatory rumor or suspicion concerning another," even if you "know[] or believe[] the rumor or suspicion to be false," if you "state[] the defamatory matter as rumor or suspicion and not as fact." The Restatement offers two illustrations:

• "A informs his friend B that there is a rumor he has heard concerning the honesty of C, B's servant [here, likely meaning any employee -EV]. The fact that A knows nothing of C, and therefore neither believes the rumor nor has knowledge of facts that would lead a reasonable man to the belief, does not constitute an abuse of the privilege."
• "A informs his daughter B that there is a rumor that C, B's fiance, is an embezzler. The fact that A believes the rumor to be false does not constitute an abuse of the privilege."

The parties have a relationship (friends, family members, potentially coworkers) that makes it reasonable—even perhaps ethically obligatory—for them to pass along such rumors. This creates a so-called "conditional privilege" that will generally defeat a defamation claim even if the rumor proves false, so long as it's just passed along as a rumor.

[6.] 47 U.S.C. § 230: But online speakers could have another source of immunity here—the federal 47 U.S.C. § 230 statute. That statute (enacted in 1996 as part of the Communications Decency Act) is famous for protecting online publications from being held liable for user comments. If you write unsubstantiated rumors in the comments to this post (and please don't!), Reason and I aren't going to be liable; Congress chose to provide such protection because it worried that otherwise online-service providers—such as America Online, back in the day—would simply refuse to host user posts or user comments.

But the statute has generally been read quite broadly, including to online publishers' deliberate decisions to forward particular materials. Thus, in Batzel v. Smith (9th Cir. 2003), Ton Cremers ran an email newsletter about allegedly stolen art; Robert Smith submitted an item that alleged that Ellen Batzel possessed a painting that had been stolen by the Nazis from its rightful owner; and Cremers deliberately chose to include the item in his newsletter and on his site.

A federal appellate court held that this too was protected by § 230, because that statute broadly provides that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Cremers was a "user of an interactive computer service"; Smith was an "information content provider"; Cremers was therefore immune from liability for distributing Smith's email.

Likewise, in Barrett v. Rosenthal (Cal. 2006), Ilena Rosenthal forwarded an email that she received from someone else; that email contained charges against Stephen Barrett. Barrett sued Rosenthal as well as the original sender, but the California Supreme Court held that Rosenthal was immune under § 230. The court acknowledged that this immunity was very broad (paragraph break added):

We share the concerns of those who have expressed reservations about … [such a] broad interpretation of section 230 immunity. The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications.

Nevertheless, by its terms section 230 exempts Internet intermediaries from defamation liability for republication. The statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended. Section 230 has been interpreted literally. It does not permit Internet service providers or users to be sued as "distributors," nor does it expose "active users" to liability.

So if Teresa e-mailed Don the claims about Paul, and Don posted them on-line (which is what happened with Cremers and Rosenthal), Don might well be protected by § 230. If he decided to print the material offline, or even repeat it orally, it wouldn't get such immunity, since § 230 only covers online publications. But online sites get this extra statutory protection.

On the other hand, many courts might find this result quite unappealing: Not only does it completely gut the republication rule for online publications, but it gives online media outlets a huge advantage over offline media outlets, within the core of the media's traditional function—what a publication chooses to distribute to its readers—and not just as to comments. A court might thus refuse to accept Batzel or Barrett (which are binding precedent only in Ninth Circuit federal courts and in California state courts).

[7.] The bottom line: I told you it was complicated! That just shows how ridiculously over-complicated our legal system has become, some might say. No, others might say, it just reflects the crooked timber of humanity and the inherent complexity needed in rules that deal with a complex world.

In any case, I don't make the law, I just report on it. And the short version of the law is that you can neither accurately say

Accurately repeating a false and defamatory allegation is categorically protected against liability, because the statement 'Teresa accused Don of …' is true.

nor accurately say

Accurately repeating a false and defamatory allegation is categorically subject to liability, because the accusation being reported is false and defamatory.