The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
(For the full draft PDF, with footnotes, see here.)
Let's turn to a hypothetical: Say two reporters, Ophelia Often (who tends to checks her voice-mail often) and Randy Rarely (who tends to check his rarely), are writing stories about Starlight Rainbow, accusing her of mistreating a fifth-grade student. (For convenience, assume that Starlight is a principal and thus a public figure or public official under state law.) It turns out, though, that both reporters erred: The actual allegations of mistreatment were about a different teacher with the same last name, Cynthia Rainbow.
Starlight learns about the planned stories, and leaves voice-mails for both reporters with persuasive evidence that she's not actually the guilty party. (She actually works at a different school.) Ophelia listens to her voice-mail before her story is posted, but Randy listens to his only after. For whatever reason, Ophelia still posts her story, and Randy doesn't correct his story.
Starlight now sues Ophelia (and her employer) for posting her story and Randy (and his) for continuing to keep his story up. The statement in each story—that Starlight was accused of mistreating the student—is false and defamatory. Ophelia and Randy are both aware now that it's probably false. Both of their employers are keeping up the stories without correction, even though they are aware that the stories contain false and defamatory statements.
Starlight's claim against Ophelia's employer will thus likely prevail: Ophelia posted knowing that the statement was probably false (which likely counts as "reckless disregard" of the truth and therefore "actual malice"), and liability is imputed to Ophelia's employer under respondeat superior. Starlight can thus use the threat of liability to pressure Ophelia's employer to correct the story on its site. And it's hard to see why Starlight's claim against Randy should be treated any differently:
- The harm caused by the stories is identical: Starlight is being damaged equally by both.
- The value of the statements about Starlight is equally low in both stories: Both statements are false.
- The current mental state of the reporters and employers is equal: Randy and Randy's employer are as aware of the falsehood now as Ophelia and Ophelia's employer were when Ophelia's story went up.
- The current culpability of the reporters and employers is thus also equal: Randy and Ophelia are continuing to distribute material that they now know to be false, and that's culpable whether or not their initial posting was culpable at the outset (as Ophelia's was but Randy's wasn't).
- The chilling effect from the threat of liability is equally low: Such liability would apply only because both reporters have been notified of specific, credible evidence that the statement was false—they wouldn't be chilled from continuing to write and keep posted material that they believe is true.
- The practical cost of avoiding liability is basically equal: All the reporters would have to do would be to correct the story to name the right Rainbow.
Correcting a story once it's posted might call for a bit more work—the publication may feel obligated not just to make a silent change, but to add a correction notice (e.g., "Editor's Note: This story initially misidentified the teacher; the actual name, corrected above, is Cynthia Rainbow—we regret the error"). And if the request doesn't come in until several months after the publication (but before the statute of limitations runs), the reporter might need some time to get back up to speed on the story to confirm that a correction really is needed. But these don't strike me as sufficient bases to justify immunity for Randy.
This duty to make such corrections also mirrors similar duties in other areas of the law. When I disclose something in civil discovery, and I "learn that in some material respect the disclosure or response is incomplete or incorrect," I have to "supplement or correct [my] disclosure." Lawyers have similar duties to inform the tribunal if they had inadvertently offered evidence but later "come to know of its falsity." People who make a statement related to the offer for sale of securities, and then learn that it was mistaken, must correct it. More broadly, even if I have no affirmative duty to protect you from various kinds of harms, I may acquire such a duty if I created the peril to you in the first place (even if I wasn't at fault in so creating it).
And I think such a duty is also ethically sound. Damaging another's reputation through knowingly or recklessly false statements is wrong. It's wrong if the author posts the statements knowing that they are false. But it's also wrong if the author learns that the statements are false, but nonetheless continues to distribute them without correction.
To be sure, recognizing a duty to stop knowingly libeling (and thus to correct posts that continue to libel someone) will mean more requests for correction, which publishers will have to consider. But I doubt this marginal effect will be particularly great:
- Publishers already get requests for corrections and retractions, and generally take them seriously as a matter of journalistic ethics (and common decency), even when they have no legal obligation to correct.
- Publishers already get demands for corrections backed by a threat of litigation. The subjects of erroneous stories often assume that the authors were negligent (or even had actual malice) at the outset. And even if the publisher did have a categorical right to escape liability when such initial negligence or actual malice can't be shown, the publisher might not be sure that the jury will find that.
Publishers will thus have to deal with only a slightly larger volume of correction requests, and requests of a sort that they already have to consider. And while those requests will have some cost, they will also have a benefit: less enduring reputational damage to people who can show that the charges against them are indeed false and defamatory.
Publishing a correction, however, should not restart the statute of limitations (except as to claims that the correction itself is libelous). "Whether a modified article is a republication"—i.e., an event that restarts the statute of limitations—will largely turn "on whether the altered article contains defamatory statements not expressed in the original article." If the only material added softens the original charges, rather than adding new defamatory statements, the statute of limitations would thus not be restarted. And even if the new material is itself allegedly defamatory, adding such material should not restart the statute of limitations as to old material that remains unchanged.
(Starlight Rainbow, by the way, is the real name of the plaintiff in Rainbow v. WPIX, Inc., a 2020 New York case; the facts in the text are based on Rainbow, but modified for the sake of the hypothetical.)