Incomplete Reports of Legal Proceedings as Libel

A bit of background on the current law of libel; I'll have more about the implications of this in an upcoming post.

(For the full draft PDF of the article from which this is excerpted, see here.)

Say that I accurately write that you have been convicted of a crime, but I fail to mention that the conviction has already been reversed. (If you're a public figure, assume I know that this is so.) To make the matter particularly stark, say the conviction has been reversed on grounds that show you were innocent (rather than for procedural reasons). What I have written may be literally true, but may be so misleading in its "gist"—its overall tenor, which suggests that you are indeed guilty—that it might be actionable libel.[1] "It is a misleading half-truth to say that a person was convicted … without including the fact that his conviction was overturned on appeal."[2]

Another way of reaching the same result is through the "full and fair" element of the fair report privilege. Usually, fair reports about court proceedings and court documents are immune from defamation liability, regardless of whether they may have been some false statements in those proceedings or documents. But the reports have to be "full, fair, and accurate reports"[3] and "[a] report may not be 'fair' if it fails to reveal the ultimate outcome of the reported accusation."[4] In a sense, this is another version of the libel by omission theory:

1. Under the libel law republication rule, repeating false and reputation-injuring allegations is generally itself libelous, even if the repetition accurately summarizes the allegations: Saying "A said that P stole money from petty cash" is libelous if P didn't steal the money, even if it's accurate that A said that P stole the money.[5]
2. The fair report privilege is a limit on this republication rule: Saying "The indictment said that P stole money from petty cash" or "The civil complaint said that P stole money from petty cash" isn't libelous, even if P didn't steal the money, so long as the summary of the legal documents is full, fair, and accurate.[6] That privilege exists because the ability to write about formal allegations made in court proceedings is seen as so important.
3. But saying "The indictment said that P stole money from petty cash," but omitting P's acquittal, is no longer a "full and fair" report, precisely because it omits an important fact.

In such a situation, "[t]he falsity … lies not in what was said but in what was left unsaid…. For example, a person who is arrested erroneously, based on mistaken identity, thereafter should not be subject to media reports citing his arrest while ignoring his subsequent vindication."[7]

The scope of this principle is limited. For instance, it isn't libelous to mention an arrest without mentioning that it was expunged or that charges were dismissed for non-innocence-related reasons.[8] Likewise, it isn't libelous to mention that a lawsuit was filed without mentioning that it was settled.[9] In these situations, omitting the follow-up information doesn't sharply change the gist of the original information: An expungement or settlement, for instance, doesn't demonstrate innocence of the original charge. But mentioning a prosecution yet omitting the acquittal may well be libelous.

[1] The classic example of such a literally-true-but-false story is Memphis Pub. Co. v. Nichols, where the Memphis Press-Scimitar wrote, that plaintiff Ms. Nichols was shot by another woman "after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols." 569 S.W.2d 412, 414 (Tenn. 1978). The story neglected to mention that "The undisputed proof showed that not only were Mrs. Nichols and [the shooter's husband] at the Nichols' home but so, also, were Mr. Nichols and two neighbors, all of whom were sitting in the living room, talking, when [the shooter] arrived." Id.

[2] Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 610 (E.D. Va. 2005); see also, e.g., Martin-Trigona v. Kupcinet, No. 87 C 3347, 1988 WL 93945, *5 (N.D. Ill. Sept. 2, 1988); Purcell v. Westinghouse Broad Co., 191 A.2d 662 (1963); LaMon v. Butler, 722 P.2d 1373 (Wash. Ct. App. 1986), aff'd on other grounds, 770 P.2d 1027 (Wash. 1989); Karuza v. Chance, 81 Wash. App. 1014 (1996) (characterizing LaMon as concluding that "[a] true statement can also be defamatory if it has been legally voided"); Martin v. Griffin, No. CV 990586133S, 2000 WL 872464 (Conn. Super. Ct. June 13, 2000) (suggesting that mentioning a felony coupled with "the omission to mention the reversal of the conviction" could be libelous); Klentzman v. Brady, 456 S.W.3d 239 (Tex. App. 2014) ("The failure to report that Wade was acquitted, leaving the impression that he was guilty of the [minor in possession] charge, was clearly more damaging to his reputation in the mind of the average reader than the truth would have been."), aff'd on other grounds, 515 S.W.3d 878 (Tex. 2017); see also Garcia v. Pucci, No. 108964/02, 2003 WL 22594218 (N.Y. Sup. Jan. 6, 2003) (reporting on complaint against plaintiff filed with the school but without mentioning "that the accusation was ultimately found to be baseless and expunged from plaintiffs teaching record" may be libelous under a "defamation by implication" theory, as not being the "substantial truth"); Reilly v. Gillen, 423 A.2d 311, 313–14 (N.J. Super. Ct. App. Div. 1980) (likewise); Entravision Commc'ns Corp. v. Belalcazar, 99 S.W.3d 393, 398 (Tex. App. 2003) (reporting on lawsuit against plaintiff but without mentioning that plaintiff had been dropped as a defendant may be libelous); Express Pub. Co. v. Gonzalez, 350 S.W.2d 589 (Tex. Civ. App. 1961) (same); see also G.D. v. Kenny, 15 A.3d 300, 308 (N.J. 2011) (suggesting that liability would be allowed when "a defendant widely publicizes that a plaintiff was charged with a criminal offense but knowingly [does] not mention that the charge was found to be baseless"). But see Hoyt v. Klar, No. 2020-235, 2021 WL 841059 (Vt. Mar. 5) (holding that defendant's mentioning plaintiff's criminal charges but "fail[ing] to mention" that they "were later dismissed" didn't constitute false light invasion of privacy, and presumably also didn't constitute defamation).

[3] E.g., Petro-Lubricant Testing Labs., Inc. v. Adelman, 184 A.3d 457, 471 (N.J. 2018); see also Restatement (Second) of Torts § 611.

[4] Fortenbaugh v. New Jersey Press, Inc., 722 A.2d 568, 573–74 (N.J. Super. Ct. App. Div. 1999); Mitan v. Osborn, No. 10-3207-CV-S-SWH, 2011 WL 4352550, *7 (W.D. Mo. Sept. 16, 2011) ("the fair report privilege" cannot "be met by pulling statements out of a brief filed in an official proceeding without reporting … the ultimate outcome of the proceeding"); Salzano v. N. Jersey Media Grp. Inc., 993 A.2d 778 (N.J. 2010) ("accurately reporting a … charge … but failing, in the same article, to report the subsequent dismissal of the charge is not covered by the fair-report privilege."); Torres v. Playboy Enters., 7 Media L. Rep. (BNA) 1182, 1185 (S.D. Tex. Oct. 22, 1980); see also Lee v. TMZ Prods. Inc, 710 F. App'x 551, 558 (3d Cir. 2017) (noting that the fair report privilege applied because "Lee's ultimate exoneration is not determinative. At the time the articles in question were published, the NYAG's allegations against Lee were actively pending."); O'Keefe v. WDC Media, LLC, No. CIV.A. 13-6530 CCC, 2015 WL 1472410, *5 (D.N.J. Mar. 30, 2015) ("Courts … have held that reports were not entitled to the protection of the fair-report privilege where the articles in question omitted ultimate exculpatory facts in ways that were misleading."). But see Jenzabar, Inc. v. Long Bow Group, Inc., No. 2007-2075H, 2008 WL 7163549, *4 n.5 (Mass. Super. Ct. Aug. 5, 2008) (concluding that there's no duty to "publish [a] follow-up" to an initial story when charges are retracted).

[5] Restatement (Second) of Torts § 578 cmt. b.

[6] Restatement (Second) of Torts § 561 cmt. f.

[7] LaMon, 722 P.2d at 659.

[8] Martin v. Hearst Corp., 777 F.3d 546 (2d Cir. 2015); G.D. v. Kenny, 15 A.3d 300 (N.J. 2011); Bahr v. Statesmen's Journal Co., 624 P.2d 664 (Ore. 1981). See also Casper v. Washington Post Co., 549 F. Supp. 376, 378 (E.D. Pa. 1982) (where newspaper article mentioned alleged police brutality incident, but didn't mention criminal prosecution or acquittal, wasn't "defamatory by the omission of the fact that the officers were later acquitted of criminal charges" because including that information "would not have placed the officers in any better light in the public mind").

[9] Petro-Lubricant Testing Labs. v. Adelman, 184 A.3d 457, 472 (N.J. 2018).