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Is Accurately Repeating a Defamatory Allegation Itself Defamatory?

It's complicated.


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. (See, e.g., 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: 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." 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.

Some courts would hold that the newspaper would be protected in such a case under a First Amendment "neutral reportage" privilege, because the charges themselves were newsworthy even if they were 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.) Some courts have held that, "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 doctrine. As I noted above, sometimes the very existence of an allegation may be important, for instance because it could affect the behavior of public officials. 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 for them to pass along such rumors—even perhaps ethically obligatory. 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 9th 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.

(This is a revised version of a January 2017 post about a Buzzfeed controversy, but the discussion of the rumor exception, which was inapplicable to that controversy, is entirely new.)

NEXT: "Forget the Blue Wave and Behold the Purple Puddle"

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  1. "This, and all other Gavin Belson rumors are unsubstantiated. The alcoholism, the sexual impropriety at work..."

  2. "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." The problem for those courts is that they can't possibly be correct. The first amendment admits no balancing test; accurately describing events without placing value judgments on the events described cannot possibly be punished under the framework of a free press. Our society has accepted the primacy of protection for the press, even though that freedom sometimes causes negative consequences. I have zero doubt that if a case regarding this issue came before the Roberts court, at the very least, liability would be foreclosed as long as the reporting was truly neutral.

    1. The problem with your analysis, (And it's been discussed here.) is that "the press" as an institution, have no special constitutional status. "The Press" of the 1st amendment is the instrumentality of the printing press, freedom of "the press" refers to the freedom of EVERYBODY to use that and similar instrumentalities.

      Journalists have no rights anybody else lacks. They're just people who happen to professionally do what anybody has a right to do.

      And, yes, this has been the position of the Roberts court, as it has courts before it. "The Press" think they're specially privileged by the Constitution. Nobody else does.

      1. "Journalists have no rights anybody else lacks."

        This depends on which state one happens to be standing in.

        I also tend to believe that a case of neutral reporting would likely find sympathetic ears at USSC.

        I think there's a distinction between repeating a defamation and reporting a defamation. Being of "the press" (or "the Press") is no guarantee that the case comes out one way and not the other, and "the Press" isn't getting a pass for being "the Press" but for knowing how (and why) to report neutrally. If someone who isn't a professional ALSO reports neutrally, I think the liability naturally lies with the maker of the lie.

        1. In terms of the federal 1st amendment, I meant. Yes, some states do give them special privileges.

          "I also tend to believe that a case of neutral reporting would likely find sympathetic ears at USSC."

          Probably, so long as it was available to everybody, not just professional journalists.

    2. There is no problem because I didn't mean press as you described; my points are still valid. I used the press in the sense of publicly reporting information, regardless of the medium, because that is relevant to the specific point at issue. If the reporting is accurate and neutral, then it is protected, no matter the speaker, regardless of the erroneous holdings of the courts described.

  3. I would have thought Norton v. Glen would have turned on Glen being a public figure (perhaps not nationally but certainly within his community). Certainly sounds like a far stronger defense than neutral reportage.

    1. But remember that there's no absolute immunity for false and defamatory statements about public figures -- one can still be held liable for them, if one knows the statements are false or are likely false (that's the misnamed "actual malice" standard). And the newspaper reporter was likely aware that Glenn's allegation, which they were publishing, was likely false -- so "actual malice" as to that allegation was likely present. That's why the newspaper wanted to have the absolute immunity provided by the neutral reportage privilege, and not just the actual malice test.

  4. So if I understand what you wrote correctly, the courts that reject exception [4] would also rule that you are liable for the real-life example you just posted here to illustrate [4]?

    1. I suppose that, at some point, 2nd hand, 3rd hand, 4th hand, it probably becomes too remote to be actionable. Or else you could sue the entire country as a rumor circulated.

    2. Nice question! But the answer is that my post is protected by [3] -- the privilege for fair report of official proceedings -- because I'm reporting information from a court opinion.

      1. And [6], as long as you read about it on the interwebs, right?

  5. Does the analysis change if Don writes, "Teresa falsely alleges Paul committed armed robbery."? Compared to simply saying that Paul denies the allegations or trying to remain a neutral reporter.

    1. I see why one might argue that it should -- but the Rhode Island Supreme Court's Martin v. Wilson Pub. Co. decision, discussed in item 1, allowed liability for a statement very close to your hypo ("[s]ome residents stretch available facts when they imagine Mr. Martin is connected with [the fires]"; "[l]ocal fire officials feel that certain local kids did it for kicks").

      1. Though, of course, the Rhode Island Supreme Court sets the law for a VERY small portion of the United States. It may be that the 49 other states reach different conclusions for their jurisdictions.

        What would the law be in an area that had only federal jurisdiction? There is no federal common-law.

        Can I go to a federal reserve of some kind, print up lots of malicious lies, and whoever takes them off the reserve is guilty of publishing them in whatever state they entered on their way off the reserve?

        1. There is indeed federal common law in places where the federal government has exclusive jurisdiction. Traditionally, for instance, the law of various territories was federal common law. Same with admiralty law.

    2. Sure, then you get sued by Teresa, instead. 😉

  6. ===According to the article, the police file on petitioner took "a big, Irish cop to lift."===

    No reason, it was just fun to paste it here as it was for the 1974 decision.

  7. What if I say there are "credible allegations he is a rapist"?

    1. Then you're in trouble with the European Court if the person can provide evidence of all the women they *didn't* rape.

  8. I hear that ____ _____ has ___ with ____s on a regular basis. I don't know if it's true, I'm just passing it along.

    1. I heard that ____ _____ posts under the name "Eddy".

    2. 1. Eddy
      2. Smith
      3. Drinks/drugs
      4. Pink Elephant

  9. I graduated from Law School in 1968, and most of this post sounds very similiar to what I read in Torts class (except for the public person stuff from Times v. Sullivan -- that case came down while I was in LS, but much of the elaboration of the doctrine has come in the decades since). My sense was/is that a lot of defamation law was based on, and is still influenced by, the attitudes of small villages and large manors in Merrie Old England. If Grammy Smith says that Mrs Jones told me that Mary Brown was fondling the Vicar after Sunday services -- well, we don't want such tale-bearing do we? And if a gentleman repeated derogatory information about another gentleman, would the former be safe from a challenge to a duel if he just said, I've heard a rumor that . . . .? As for reportage, in the era when the US adopted the First Amendment, the press was rife with false accusations about public figures circulated for political purposes. Even today, with the memory of the Kavanaugh hearings fresh in our minds, we wouldn't be entirely comfortable, would we, with granting a safe harbor to report false allegations if you just said "it's been said that"? For me, at least, as the King of Siam said, It's a puzzlement.

    1. "If Grammy Smith says that Mrs Jones told me that Mary Brown was fondling the Vicar after Sunday services -- well, we don't want such tale-bearing do we?"

      I graduated from law school in 2010, and the way it was taught to me, the case you propose would have failed for failure to show damages.

      " Even today, with the memory of the Kavanaugh hearings fresh in our minds, we wouldn't be entirely comfortable, would we, with granting a safe harbor to report false allegations if you just said "it's been said that"?"

      The fact that you're any memory of the Kavanaugh hearings was because they got lots of news coverage. The hearings themselves fall under the "official government reports" exemption. The analysis (whether critical of Kavanaugh, accusers, both, or neither) is based on what the witnesses reported, and is better out than kept secret by a handful of Senators.

  10. RE: "Tale bearers are as bad as the tale makers."

    Oh the freshmen down at Yale get no tale.....

  11. Excellent. Thank you, Volokh. This is why I read you.

    1. My pleasure, glad you found it interesting!

  12. Professor Volokh misstates the strict liability rule. Strict liability apples precisely when (and because) the allegations are considered serious. The rule now applies only to private figures because the First Amendment actual malice standard trumps conflicting rules for public figures, and not because the sort of things private figures sue under strict liability for are considered less serious.

    1. ReaderY: Can you elaborate, and perhaps point me to some specific cases? I'm pretty certain, for instance, that strict liability is only allowed for speech on matters of private concern; speakers can't be strictly liable for speech on matters of public concern, even about private figures (Gertz expressly so holds). My research also suggests that the great bulk of states reject strict liability even on private concern questions as a matter of state law. And generally speaking allegations of serious crimes tend to be matters of public concern (though I realize that the public/private concern line is rather mushy).

      But perhaps I'm mistaken -- can you let me know what exactly you have in mind?

  13. Excellent points raised. Considering today's technology allows a defamatory utterance to make it online in a matter of seconds, I can see why the debate on this topic may never be over. I align my self with thought that the point of origination is the person responsible , not every subsequent post. Otherwise, the SOL would never be over! Regardless what your thoughts are, best to you, Darren Chaker

  14. If he decided to print the material online, 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.

    Surely this should be "print the material offline"?

  15. It makes more sense to me (and I understand that this is NOT the law, so don't "correct" me) to treat the originator of the defamation as liable for damages that result from the defamation, and if the defamation is repeated by others, to treat any resulting damages as consequential to the original defamation rather than to be defamations of their own.
    I also see the problems in administering justice this way. One problem would be that a judgment-proof defendant could defame someone and then even if a deep-pockets repeated the defamation, the plaintiff would be left with no recovery. Another problem would be if plaintiff sued, and won, and collected damages, and then a fresh repeat of the defamation cause new damages. You'd have to have a way to re-open every defamation suit to hold a hearing to set additional new damages... for the life of the plaintiff, and possibly slightly beyond. Finally, you'd have some edge cases where something was defamation... provably false when first uttered... but true when repeated. So not just a hearing to set damages, each new claim potentially requires a new trial on the merits... if defendant can afford to keep defending, that is.

    The fact that I can see why administration-of-justice pushes the logic of the law into contorted shapes doesn't mean I don't still dislike the contorted logic.

  16. In both New York and California, there is case law holding that reporting that "A says P committed a crime, B says P is innocent, and there is evidence going both ways" is non-actionable opinion. See, e.g., Levin v. McPhee, 119 F.3d 189 (2d Cir. 1997); Thomas v. Los Angeles Times, 189 F. Supp.2d 105 (C.D. Cal. 2002).

  17. I was thinking about this while hearing reporters try to describe the allegations that Elon Musk made against that cave rescue guy.

    Good example of a time when I can see both sides: A public interest in the story but also a right in the victim of the libel. I think the public interest in free speech is ultimately more important, though, at least so long as the reporters make it clear that the accusation was completely without evidence.

  18. Also, does this mean there's essentially no benefit from calling a shooter in a mass shooting an "alleged gunman"? If you're negligent, you can't do it. If you're not, you can. Does adding "alleged" somehow reduce your negligence? I don't see how it would.

    1. That is, *if* there's no "neutral reportage privilege." The use of terms like "alleged gunman" assume there's a neutral reportage privilege, no?

      1. A professional reporter would use the term "alleged gunman" not because of fear of being sued, but because of fear of being wrong. When they know the ID is correct, they'll call him the shooter.

  19. This article is a convincing argument for why we should simply return to trial by combat.

  20. Thanks Eugene! This is really helpful.

    And to Martinned, sorry for the incredulous comment on this topic in the other thread. The truth is indeed rather complicated.

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