Free Speech

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.

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(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).

NEXT: Today in Supreme Court History: March 19, 1891

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  1. It seems to me most reversals on appeal could be described in an article using a statement of opinion like “let off on a technicality”. In a Massachusetts case the prosecutor concealed the fact that the defendant was in jail when the alleged crime was committed. The appeals court ordered acquittal. Clearly they got the wrong man, and it would be misleading for me to rely on the guilty verdict. But the defendants in “Bridgegate” and the Massachusetts patronage hiring prosecution (US v. Tavares et al.) did what they were accused of doing. They were merely not guilty of violating a short list of federal statutes.

    1. Actually you have identified a third way a person gets off. What he did was slimy, but not a crime. Rare, but not unheard of. SCOTUS occassionally goes there, when it knocks down the Government’s more creative interpretations of the criminal code.

      That could still be defamatory. “John Doe is a convicted criminal” is defamatory if the highest court in the land decided what he did is not a crime. OTOH, “John Doe is a corrupt slimeball, and got off because the law did not cover his sliminess,” is not.

      1. As the word “corrupt”, like the word “criminal” implies violation of statutes, in this case ones against corruption, why is it not equally libelous?

        1. “Corrupt” is a flexible word in common use. I consider Tavares et al. corrupt, based on facts publicly revealed during and in relation to criminal proceedings. But from the moment charges were announced I thought “there’s no federal crime here.” And the First Circuit agreed.

          In legal contexts “corruptly” can be almost circularly defined. The law prohibits doing something corruptly. To pick from a set of jury instructions the internet found for me, something is done corruptly if done “with an improper motive or purpose” or if it is “conscious wrongdoing”. What is wrongdoing? I suppose breaking the law is wrongdoing. Bribery is illegal when it is illegal bribery.

        2. I disagree with your premise. “Corrupt” may be criminal (as in, a violation of statutes) but often it is not. Nepotism, for example, is frequently seen as an indicator of corruption yet (except in a very few instances) it is not a violation of statute.

          1. Exactly Rossami. Many unethical practices are corrupt while not being criminal

      2. And it seems to me that it just takes minimal media responsibility to get this stuff right. If someone’s confession was thrown out, you can say he got off on a technicality. If someone was involved in a sleazy stock fraud scheme, but the jury found it didn’t violate the law, you can say slimy but not a crime. And if someone turned out to have an alibi, say he was innocent.

  2. How does the republication rule work when the fact of the (false) accusation is newsworthy apart from its truth, e.g., you report, accurately, that the President of the United States (falsely) accuses election officials in an important state of rigging the vote? Are you off the hook if you say that the speaker offered no evidence? Do you have to do that?

  3. Like the first mate who hates his captain, and one night writes in the log, “The captain was sober tonight.”

  4. “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.”

    It seems that at least some of the cancel cultures lies exactly in the realm of such half-truths.

  5. Interesting. I’ve been referring to Oliver North, for decades, as “Perjurer and convicted felon Oliver North.” (Deliberately omitting that his conviction was reversed by a higher court.) What I always wrote was truthful (he did lie repeatedly while under oath and he was convicted). But I definitely did fail to give the entire picture, so I guess that made me liable. I feel like, at the very least; in the future, I should modify this, to something like, “…speaking in favor of Trump was perjurer and convicted felon, and guy who was nice enough not to sue me for writing the above, Oliver North, who…”

    Eugene, serious question: Would it be sufficient for me to use my usual description of Oliver North, and then drop a footnote, where it makes clear that his criminal conviction was later overturned? What if, instead of a footnote (which a good number of people will not bother to read), I use an endnote (which almost everyone will not bother to read)?

    1. North was not convicted of perjury, though, so even if his convictions had stood your statement would be misleading. Quoting the D.C. Circuit decision vacating his convictions: “North was convicted in May of 1989 on three counts: aiding and abetting an endeavor to obstruct Congress in violation of 18 U.S.C. Secs. 1505 and 2 (“Count 6”); destroying, altering, or removing official NSC documents in violation of 18 U.S.C. Sec. 2071 (“Count 9”); and accepting an illegal gratuity, consisting of a security system for his home, in violation of 18 U.S.C. Sec. 201(c)(1)(B) (“Count 10″).” (US v. North, 910 F.2d 843 (D.C. Cir. 1990)) (Of the panel, Judge Wald died in 2019, Judge Sentelle is staying out of trouble, and Judge Silberman is this very day being charged with heresy for calling out the liberal media. Wald voted to uphold the convictions while the two Reagan appointees voted to vacate them.)

      The obstruction count was for creating a misleading document that somebody else later used to mislead Congress, not for perjury. There was no investigation when the act allegedly happened; the decision held that obstruction of a future Congressional investigation was also illegal.

      Ultimately North was not guilty because the prosecution was unable to disprove a presumptive Fifth Amendment violation. As I suggested earlier this is the kind of outcome that people sometimes call “getting off on a technicality” (rather than on the merits). So you can say you believe the jury’s verdict while grudgingly acknowledging that he is not in fact a convicted felon.

  6. “Interesting. I’ve been referring to Oliver North, for decades, as “Perjurer and convicted felon Oliver North.” (Deliberately omitting that his conviction was reversed by a higher court.”

    Given the fact that a higher court found that he was not properly convicted, you are probably simply making a false statement, and I doubt you can cure that with a footnote.

    1. (Assuming that there had never been a civil trial). Are you saying that, post-acquittal in criminal court, I could not refer to OJ Simpson as a multiple murderer? I totally get why I could not say that he was a “convicted” murderer. But under the theory of Truth is a Defense why can’t I say the first thing? Of course, if he had sued me, I’d have to prove my case to a jury/judge. But only by a preponderance of the evidence. And after I got to depose OJ. Etc etc.

  7. Although it was more than 30 years ago now, one of my very best war stories involves representing a potential defamation plaintiff in a situation almost exactly like your opening hypothetical, Prof. Volohk. But I can’t tell it in a way that could possibly indirectly identify my client, due to continuing client confidences.

    I can say that it involved high-stakes litigation in which one side learned that a principal in the other side (whom my firm represented) had an undisclosed drug dealing conviction, which was indeed affirmed on appeal. Our opponents were about to make that loudly public. What they failed to consider was not a reversal, but that the judgment of conviction had, even after affirmance, been expunged under the Federal Youth Corrections Act. Indeed, had they checked, they’d have learned that the sentencing judge wrote a glowing memorandum opinion when he entered the expunction, describing the youthful offender as the “absolute model of the kind of worthy person for whom Congress intended this statute to rehabilitate.” The caselaw describes such an expunction as more potent than a presidential pardon; among other things, it privileges the recipient to deny under oath that he’s ever been convicted, just as if he never had been.

    We were able to dissuade them from going public, and the lawyers who’d been saved from potential personal liability in a very serious defamation claim were frankly (and appropriately) grateful.

  8. This post is nitpicky. Address the billions of online defamation. I have proposed ending defamation jurisprudence and shifting liability to parties acting on defamation. To deter.

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