Free Speech

Duty to Stop Reporting Highly Incomplete Reports of Legal Proceedings

I'm continuing to serialize a forthcoming article of mine that discusses (among other things) such a proposed interpretation of libel law.

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

I blogged Friday about how publishing a knowingly incomplete report of legal proceedings—for instance, writing about a conviction but omitting that it had been reversed—may itself be libelous. But say that Donna's article about Paul, as originally published, was full and fair, because the only information then available was about Paul's having been convicted. Six months later (within the statute of limitations) the conviction gets reversed on insufficiency of the evidence grounds; Paul so informs Donna.

Donna's web site then still contains—and still displays to anyone who visits—her article, which is no longer a "fair and full" report of the overall proceedings. Should she be held liable if she continues to distribute such an incomplete report (without updating it to reflect the more recent development)?[1]

Here too I think that such a duty would make sense. Again, compare two scenarios. In the first,

  • January 1: Donna puts up the article about Paul's conviction.
  • July 1: Paul's conviction is reversed.
  • July 2: Paul informs Donna of the reversal, and asks that Donna update her article to note it.
  • August 1: Donna fails to update her article, so Paul sues her.

In the second,

  • July 1: Paul's conviction is reversed.
  • July 2: Donna's brother Dan learns of the conviction and the reversal.
  • July 3: Dan puts up an article about the conviction (an article identical to Donna's Jan. 1 article) but doesn't mention the reversal.
  • August 1: Paul sues Dan.

Note the similarity between Dan's and Donna's situations:

  1. The harm caused by the stories is identical: Paul is being damaged equally by both.
  2. Both stories omit an important detail, which keep them from being full and fair accounts: Both mention just the conviction and not the reversal.
  3. Donna and Dan have the same current mental state: They both know about the reversal.
  4. The chilling effect from the threat of liability is equally low: Such liability would apply only because both Donna and Dan have been notified of specific, credible evidence that the conviction has been overturned and their stories are thus seriously incomplete.
  5. The practical cost of avoiding liability is basically equal: All Donna and Dan had to do was to mention the reversal in the story (Donna by revising her story, Dan by publishing it correctly at the outset).

It's hard to see why Dan should be liable but Donna should be immune.

Now of course there is a difference between Dan and Donna here: Donna put up her article Jan. 1 (before the reversal) but Dan put it up July 3 (after the reversal). Thus, at the outset, Donna was entirely innocent, since she accurately reported on the facts as they existed, but Dan was culpable, since he knowingly failed to mention the reversal. What's more, Donna in this scenario wasn't even mistaken at the outset (the way Donna was in the hypothetical with which I started this Article); she wrote exactly the story that she should have written, as of Jan. 1.

But now, on Aug. 1—when Paul sues them—both Donna and Dan know that the articles posted on their sites mention only Paul's conviction and not the reversal, and are therefore highly incomplete. And Donna is being sued for wrongly keeping the stories up now, rather than for wrongly putting it up at the outset.

It thus makes sense for the duty to stop distributing libelous material to encompass a limited duty to update a story in light of new, highly significant legal developments (or to remove the story, if the author prefers that to updating it):

  1. These new legal developments are likely to be unusually important to the target's reputation and to readers. If Paul has been arrested or indicted, that tells people that the legal system thinks there is strong reason to believe he is guilty; a conviction does so even more clearly.
  2. For the same reason, the reversal of a conviction (especially on the merits) is an important signal to the public that the original charges may have been unsound; likewise for an acquittal or for charges being dropped for insufficient evidence.
  3. The new legal developments are likely to be easily verifiable, so Donna or her employer doesn't have to reweigh the evidence or interview new witnesses.
  4. The new legal developments are likely to be easily summarized, e.g., "UPDATE: Paul was acquitted of all charges."

The benefit to Paul's reputation (and to people who want to know the truth about Paul) is great, and the cost to Donna and her employer is small. And, again, this just reflects the principles set forth in earlier parts of the article (the duty not to keep distributing material once one knows it to be false) coupled with the basic libel law principle set forth in the preceding subsection: a report that mentions, say, an indictment but not an acquittal is in essence false.

Note that this is not a "right to be forgotten," or a sort of expungement remedy. It does not order the removal of accurate (but supposedly old) information about past arrests, convictions, or civil verdicts. It does not order the removal of such information for legal decisions that have been reversed. It does not even require a newspaper to publish new stories about (say) an acquittal or dropped charges if the newspaper had published stories about the indictment. It is not a new form of liability or speech compulsion, such as the right of reply struck down in Miami Herald Co. v. Tornillo.

It is only a revival of the old principle that, when a publisher is constantly redistributing material to the public, and the material is in its aggregate libelous (even if by omission), the publisher can be held liable for defamation. Distributing information only about legally inculpatory decisions and excluding the exculpatory information is not a full, fair, and accurate account of government proceedings.

Extending the Statute of Limitations for Legal Updates

So far we've been assuming that, when I've published something false about you, you've promptly alerted me to the error, and sued within the statute of limitations. (Again, in half the states, the statute of limitations for libel claims is a year, and in most of the remainder it is two years.) This usually makes sense, since you'll usually have learned about the libel quickly, and wanted it corrected quickly.

But if a conviction is reversed on appeal, or a defendant is otherwise vindicated, that might well happen more than a year after the original publication. And this particular situation doesn't trigger the main concerns that justify statutes of limitations—that

  • a defendant shouldn't have to litigate "after memories have faded, witnesses have died or disappeared, and evidence has been lost," and
  • a plaintiff should be encouraged to act promptly.

Say I write about your January 2, 2025 conviction on January 3, 2025, it's not reversed until March 2, 2026, and you immediately inform me about it. You've acted as promptly as you could have, even though it was more than a year after my original article. And there will likely be no need for me to re-interview the witnesses from my original article; all that I will generally need to do is to add an update to my article discussing the newly-announced reversal of the conviction.

Most courts that have considered the issue have adopted the single publication rule for Internet publication; and they treat the rule as making the statute of limitations start running on the date the article is first posted. But it may make sense for a legislature to modify the statute of limitations, to provide something like,

(a) An action for libel shall be brought within one year of the publication date of the allegedly libelous statement.

(b) Single publication rule: "Publication date" shall mean the date a statement is first made available to readers.

(c) Multiple publication rule: Notwithstanding subsection (b), "publication date" shall mean the date that a statement is first available to readers after the publisher is made aware of an exonerating legal development, if all of the following conditions are present:

(i) the statement is available on an interactive computer system;

(ii) the statement contains an assertion about a named person's arrest, prosecution, conviction, detention, incarceration, or loss of any license or legal privilege, or about a civil judgment or verdict against the person;

(iii) the publisher has been made aware of an exonerating legal development;

(iv) including the exonerating legal development would diminish the reputation-damaging effect of the statement on the mind of the reasonable reader;[2]

(v) the publisher has not updated the statement to note the exonerating legal development within 14 days of being informed of the exonerating legal development.

(d) Definition: "Exonerating legal development" shall mean

(i) a court or administrative agency decision reversing or vacating the named person's conviction, loss of license, or loss of legal privilege, or reversing or vacating the civil judgment or verdict;

(ii) an acquittal of the named person;

(iii) a dismissal of charges filed against the named person; or

(iv) a nolle prosequi entered with regard to the named person,

but shall not include an action taken as a result of a plea agreement or a deferred prosecution agreement.

(e) No Effect on Statute of Limitations for Original Post: If a publisher has updated the statement to note the exonerating legal development, and done so within 14 days of being informed of the exonerating legal development, that update shall not be deemed to restart the statute of limitations.

This should be constitutional, because it would simply apply traditionally recognized libel law principles: Throughout much of American history, the multiple publication rule would have allowed liability in such situations in any event. (The First Amendment limits on libel liability imposed by cases such as New York Times Co. v. Sullivan have never been seen as rejecting the multiple publication rule.) Subsection (c) would simply revive that rule in a narrow set of cases.

Nor should the restriction be seen as unconstitutionally content-based in violation of R.A.V. v. City of St. Paul. Though the proposal would distinguish between statements about convictions (or similar government actions) and statements about other matters, "the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable": The covered statements, because they reflect the judgment of authoritative government actors (judges, juries, prosecutors, police officers), are especially likely to damage a person's reputation. And there is no reason to think that "the restriction is even arguably conditioned upon the sovereign's agreement with what a speaker may intend to say," and "no realistic possibility that official suppression of ideas is afoot."

[1] For a pre-Internet version of this, see Antwerp Diamond Exch. of Am., Inc. v. Better Bus. Bureau of Maricopa Cty., Inc., 637 P.2d 733 (Ariz. 1981) ("[a]fter publishing the newspaper article" in its report about the plaintiff, the Better Business Bureau, which continued to distribute the report, "did not follow up with the findings of the trial court which absolved Antwerp of the prejudicial aspects of the allegations in the news article"); Audition Div., Ltd. v. Better Bus. Bureau of Metro. Chicago, Inc., 458 N.E.2d 115, 120 (Ill. App. Ct. 1983) (citing Antwerp Diamond Exchange as standing for that proposition). But see Pacheco Quevedo v. Hearst Corp., No. FSTCV195021689S, 2019 WL 7900036 (Conn. Super. Ct. Dec. 19, 2019) ("The plaintiffs' defamation theory relies entirely on the Time's refusal to retract its truthful reporting about Pacheco Quevedo's arrest after the newspaper was informed that the charge had been dismissed. But the law of defamation does not impose a duty to update news coverage with later developments.") (applying single publication rule).

[2] This prong is based on the classic formulation from the substantial truth precedents: "whether the libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced." Fleckenstein v. Friedman, 266 N.Y. 19, 23 (1937).

NEXT: Today in Supreme Court History: March 22, 1957

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  1. Extensive and incisive analysis of an important subject.

    But, what is the lawyer doing about the billions of defamations a year around the world? Some result in arrests and executions, for example, false of allegations the person is a witch.

  2. How does this analysis affect the continuing statements that are multiple “credible” claims of sexual assault by Kavanaugh.

    1. That’s a good point, and one that bothers me, but whether a claim is credible or not is not as clear cut as a judicial decision, like a conviction or acquittal.

      That said, there WAS an FBI investigation, and despite this, media outlets including NPR continue to say “credible claims of sexual assault” against Kavanaugh.

      No, they were not credible! Any meanwhile they ignore Tara Reade’s credible claims of sexual assault against Biden.

      1. The problem is that the word “credible” is both subjective and such a low bar as to have no utility in describing an accusation. If it doesn’t defy the laws of physics and the person making the accusation isn’t secretly recorded saying, “Yeah, I made this up to get that guy,” one can describe it as “credible.”

        That ThePublius or David Nieporent doesn’t believe an accusation does not make it objectively not credible. The FBI investigation didn’t do anything to rule out Ford’s accusation. How could it? There wasn’t enough specificity to prove or refute it. One can still non-defamatorily describe Ford’s claims as credible.

        1. It seems to me that credible is an opinion, and ought to be dealt with as opinion, whereas an acquittal is a fact. The legal rule Prof. Volokh argues for should allow for people to say “credible charges of murder were filed against OJ Simpson” while perhaps requiring the person to tell readers that he was acquitted. I don’t have a problem with that at all.

        2. “There wasn’t enough specificity to prove or refute it.”

          I contend that this renders it not credible.

          One can establish criteria for credibility of accusations. For example:
          did the person report it or relate it to someone contemporaneously?
          is there a record of the incident?
          is the claim corroborated by witnesses?
          does the timeframe, place, and circumstances support the accusation?

          None of the above are true for Blasey-Ford’s accusation.

          Has the accuser been found to be sincere and forthright in their testimony and other statements?

          No. She lied about air travel, and other things as well.

          Is there exculpatory evidence that is credible?

          Yes, Kavanaugh’s calendars.

          So, not credible.

          1. I contend that this renders it not credible.

            You are mistaken; that’s simply not the definition of credible. Credible means that something is capable of being believed, not that it is actually believed or provable.

            When I was about 12, my father forgot to pick me up from an after school activity, and I had to stay there alone waiting for an hour until I finally could find a pay phone to call and have someone come get me. Is there anything specific in that statement about a time or place? No. (Indeed, at this point I don’t even remember for sure if it was an after school class or a soccer practice.) Were there witnesses? Not that I can remember. (This was back before everyone was so paranoid that a coach or teacher was required to wait until every kid had been picked up before they could leave.) Was it contemporaneously reported to anyone? No. Have I told the story to many people since? No. Does any of that mean that my claim isn’t credible? No.

            What if you found out that I am estranged from my father and often express dislike for him? (Note: this is the first part of my anecdote that is purely hypothetical.) One could argue that this estrangement gives me a motive to invent a story that makes him look bad. It makes it less likely that my accusation of parental neglect is true. But does it render my claim incredible? Of course not.

            There are no facts that render my story, or Ford’s, impossible, or highly implausible. Of course, Kavanaugh denies it, and there’s no corroboration, which you can weigh in deciding whether to believe her claim. But merely disbelieving it does not render it incredible.

            (Now Julie Swetnick’s accusations are another story. Those were incredible.)

  3. Let’s say I’m more of a blogger than a seasoned crime reporter on a first name basis with all the court clerks. How much work should I have to do?

    Arrests and convictions are shouted from the rooftops. Acquittals and reversals get buried.

    It is public policy here that criminal records searches should not be easy for the general public. One public records dispute involved a reporter trying to build a list of all public corruption cases. Prosecutors said no information for you. I believe the reporter was ultimately entitled to the docket numbers that people in the prosecutor’s office could still remember, even though the state’s computers have or could easily get a database index listing everybody convicted of a particular crime in the computer era. That case was, as far as I know, decided before you could look up court cases and docket numbers online.

    One prosecutor’s office wouldn’t tell me the final outcome of a case that had been in the news a few years earlier. Based on the scant evidence I have, I suspect the defendant was too mentally ill to prosecute or convict. Another case I wanted to follow up on led me to a district court docket number, but the case had been closed without a verdict noted. Could be dismissed for lack of evidence (it was DUI where the driver blew below the limit), could have been kicked up to Superior Court (felony arrests move from District Court to Superior Court once an indictment is handed down). But I didn’t find a Superior Court case. So my blog post about an DUI homicide charge for a presumptively legal BAC stands unmodified. With a load of money on the line I would inquire further. How much work should I have to do?

    1. I agree that authors — whether amateur bloggers or professional mainstream media — shouldn’t have to keep monitoring dockets on all the past cases they wrote about. I’m writing here about what they should do if they are expressly informed of the new legal developments (which the subject of the story would presumably have an incentive to do).

      1. But this leads immediately to practical questions since the subject of the story also has an incentive to lie about the case’s resolution. How does this analysis change if your write a story about me and I “expressly inform” you of my exoneration but:

        a. strict case – you have no way to verify my statement.
        b. softer case – you would have to pay money to verify my statement.
        c. it won’t cost you money but you will have to spend considerable time verifying my statement.
        d. it will cost you only a little time to verify my statement.

        Under which of those scenarios is an amateur blogger obligated to either retract or update the original story? And why is that the right place to draw the line?

        1. I think the subject of the story should have to provide the relevant court documents. If he does so, and the documents show that, say, the conviction has been reversed, it seems a reasonable burden to require the author — whether a blogger or a journalist — to update the story to say so.

          Indeed, that’s precisely the burden when the subject alerts the blogger before the story is published. Say that I’m writing an item about Paul’s conviction, and he learns about it (maybe I’ve e-mailed him or his lawyer, or maybe I’ve asked a third party who then told Paul about my query); he e-mails me the court records showing that the conviction has been reversed.

          Do you think I should have no duty to mention the reversal when I’m mentioning the conviction? Or do you think the burden of mentioning the reversal (and thus look through the relevant documents) is an acceptable burden to place on me if I learn of the documents before I post, but not if I learn of them afterwards?

          But I appreciate the point that I should make clear that the duty is triggered only if the subject does pass along the relevant court records.

          1. Given all the cases that you have personally documented of forgery of court documents, I am somewhat surprised by the implication that you think a subject-provided copy of a court document would trigger an automatic obligation to retract or update here.

            Personally, I think a subject-provided copy triggers an obligation to re-investigate but I also think that obligation is fairly weak. If I can confirm the validity of the documents easily, that’s a very different burden than if I have to start figuring out court dockets or paying for documents.

            1. I’ve got to agree with Rossami here. Subject-provided documents are themselves suspect.

              I would go with the rule from regular print, that if the material was truthful at the time it was posted (perhaps last updated if the writer does edit the piece after initial posting) then there should be no liability regardless of whether they choose to include the later disposition. Such updating should simply be a courtesy (that I suspect most would happily agree with if that disposition were a finding of actual innocence, less likely as the reason becomes more technical) but should not be anything more than that.

              1. You wrote what I was thinking. Rossami makes a good point and I agree that it actually creates a significant burden on publishers to verify proposed “corrections”.

                Also, I agree with Soronel that the rule from regular print should apply. Yes, putting something on the internet means it is now accessible repeatedly forever, but this doesn’t seem different in principle from books and newspapers being available in libraries indefinitely too. The harm to the person who wants a “correction” of an article that was accurate at the time published is the same. I understand Eugene’s thought is that corrections to blog posts are easier, but Rossami has an effective answer to that. The duty can become, in practice, be quite onerous and, thus, create an incentive silence stories you don’t like by creating that burden by simply telling the publisher the story is wrong, even though it might not be.

                And under Eugene’s rule, if I post a copy of a photo of an old newspaper with such a story, his rule would seem to be that I would have to make any necessary corrections to that article as well, even if I discovered it was wrong after I posted it. So it is wrong for me to post a picture of it, but fine for it to be in a library (in original form or on microfiche…okay, probably not on microfiche…..). And if I don’t have to put a correction in a caption to the photo, why is that different from an old blog post? The effort required to make the correction is precisely the same (being primarily in the investigation, rather than typing a sentence or two in an update to a blog post).

                I would say, as long as your pages/posts are clearly date-stamped with the date of publication (some websites/articles aren’t, which I find annoying anyway), then you get the same protections as print publications. You don’t have to go through all of your old posts to make changes (or investigate whether changes are necessary) as long as the article was not defamatory at the time it was posted.

                At least, this is my initial take on the subject.

            2. I also think that the court document should at most trigger a duty to investigate. Some reputation repair companies forge court orders. I would want to call the court to confirm. Which is work, and it might take a week to get a hard copy of the document from a state court. (I helped somebody get a copy of a paper filed in a ten year old probate case and she had it within a week. That particular court was competent and helpful. You get the whole range around here, from competent and helpful to alcoholics who can’t get a job outside of the patronage system.)

          2. Professor Volokh, you said, “I think the subject of the story should have to provide the relevant court documents. If he does so, and the documents show that, say, the conviction has been reversed, it seems a reasonable burden to require the author — whether a blogger or a journalist — to update the story to say so.”

            That puts a lot of onus on the subject of the story. Meaning, there could be hundreds of stories, given the viral nature of today’s media. That is a lot of people to track down and contact. Particularly in your example where a reversal occurred. First they are out legal fees, and then they are out quite a bit more, in time and money finding the stories, sending new information (conviction was reversed), making sure they’re updated, etc.

            Now, instead of reversal, what if the subject of the story was completely exonerated? Not reversed on a technicality, but exonerated because of innocence. To me that would be a particularly unjust outcome; an innocent person having to go to that time and expense to restore their good name.

            What about enforcement? How does that work? The subject of the story sends the genuine court docs, and the journalist/blogger chooses to do nothing. Then what? More legal fees that the subject of the story has to pay? Doesn’t seem just.

            1. That puts a lot of onus on the subject of the story. Meaning, there could be hundreds of stories, given the viral nature of today’s media. That is a lot of people to track down and contact. Particularly in your example where a reversal occurred. First they are out legal fees, and then they are out quite a bit more, in time and money finding the stories, sending new information (conviction was reversed), making sure they’re updated, etc.

              So what’s your alternate proposal? That if I post a truthful statement somewhere that someone has been arrested, charged with a crime, convicted, I must then affirmatively monitor court dockets for the rest of my life to see if the conviction was overturned, and proactively edit the old post to add this new information?

              (I considered the possibility that you’re only arguing that if I get notification from the erstwhile convict that his conviction was overturned, I have a duty to research it rather than forcing him to prove it to me. But your complaint was that the person shouldn’t even have to spend time and money finding the stories or sending out new information.)

              1. David….I cannot think of a good alternative. It is a problem that does not seem to have a very ready solution at hand. The situation I outlined, though, seems unjust.

  4. There is a significant distinction between Donna and Dan — Donna’s article doesn’t “omit” anything. It is a full and accurate account as of the date of publishing. If you’re relying on an outdated article for information, that’s your problem, not the article’s. New information comes out every single day. Requiring anyone who’s ever published anything online to constantly go back and correct it is a fool’s errand and a very heavy burden to be placing. Information changes, and that’s just a fact of life. It’s not libel.

    1. If people are relying on, say, a year-old article — which they often do — it’s not just “their problem.” It’s also a problem for the person whom the article characterizes as a convicted criminal, without mentioning that (for instance) the conviction has been reversed.

      1. I’m with KenveeB here, though. It seems the duty to correct could become quite onerous. There are the substantial costs of verifying the allegedly defamed person’s claims. And maybe the person stopped editing the blog years ago and doesn’t remember the password or the newspaper went defunct, but (having used wordpress or something), it’s articles live on indefinitely. Does wordpress now have a duty to scrub all of its content if notified by the allegedly injured party?

        Also, how is this different from old newspapers being available in libraries (whether in paper, microfiche, or electronically imaged format?). Does the newspaper or the library have to attached corrections to all of these articles? And if nobody has a duty to correct these date-stamped articles (which may also be imaged on the internet), why should a date-stamped blog post be treated differently for purposes of liability for defamation?

        Some corrections have low burden (a reversed conviction is national news), others may require difficult or expensive efforts to locate records. Given this, I think there is a plausible argument that public policy is better served by not requiring modification of date-stamped publications (whether physical or electronic) that were non-defamatory when published.

        1. I see the occasional legal horror story where a person is ordered to do something, claims inability to comply, and gets a life sentence for contempt of court. (In practice commuted to some finite term eventually.) What sort of blogger forgets a password? You’re lying!

    2. That might make sense for physics or traffic conditions, where everyone knows, or ought to know, that things change. It does not make sense for court cases, where most don’t change, and those that do, change at irregular times, and where those irregular and uncommon changes have huge impacts on the people concerned.

  5. It sounds like we are creating a mess trying to impose different obligation on online publishers compared to broadcast publishers compared to printed page publishers.

    If nobody is required to use white-out to modify printed copies of old newspapers. If nobody is required to use scissors to edit archived video tapes of old broadcasts. Then how can we require publishers to edit online postings?

    It comes down to a troublesome interpretation of “if she continues to distribute such an incomplete report (without updating it to reflect the more recent development)”, or “Stop publishing”. The troublesome interpretation is “continues to distribute” means allowing the post to remain online. A less troublesome interpretation is that distribution or publishing happens only at the instant when the author pushes POST, not anytime after that.

    The second interpretation is closer to how we interpret “publish” for the printed page and for broadcast. For a newspaper or TV station, “continue to distribute” would mean repeating the article in future editions.

    1. Your final paragraphs seems correct, but I disagree with your conclusion that this is an unfair burden on online publishers. Keeping articles online is not free; their are monthly fees for hosting them, for instance. This is a clear distinction from print distribution, where ownership of the printed copies has changed hands.

      Here’s a hypothetical somewhere in between: Suppose a store posted newspaper clippings concerning a conviction on a bulletin board, and maintained them there with no report of changes, even when informed by the party that his conviction had been reversed. That seems to me grounds for a lawsuit, and it too has small but persistent regular costs, in that the bulletin board has less room for other notices, and maintaining the newspaper clipping in place takes some effort.

      1. That could have been clearer. I don’t mean to imply that the ownership costs affect the responsibility or not, only that because it is an ongoing cost, it differs from selling print copies and washing your hands of any responsibility for updating them.

        1. I’ve been thinking about a similar case.

          Paul is convicted.

          I put up a billboard that says “Paul convicted!”

          Paul’s conviction is reversed. Paul notifies me and provides good evidence.

          My billboard is still up, and people (including new people) are still seeing it.

          Do I have to take my billboard down, or update it?

          1. I think a date-stamped article or blog post is different from a billboard. I think that is more like if you create a website specifically for the purpose of promoting news of Paul’s conviction (e.g. paulisaconvictedburglar.com). That seems like it should create different obligations from a blog story that might have focused on something else, but mentioned tangentially that Paul was convicted of burglary.

            I’m smelling a multi-part test because either extreme (duty to investigate and correct in all cases versus no duty to ever correct if accurate at the time) results in pretty severe over-inclusiveness or under-inclusiveness.

            But bright line tests have their own advantages. I am for a bright-line rule of no duty to correct clearly date-stamped material. I’d rather a few date-stamped billboards stay up, rather than millions of bloggers and tweeters and such having to dig up court records or, more likely, just delete or “correct” any disputed post.

            (And what if the correction gets its own cease and desist? Now the “publisher” really does have to, in at least some cases, make a trip to the courthouse because they once wrote a tweet….that’s too much. Or just delete all controversial tweets. I thought we were against that though. Or is cancel culture okay in that case?)

  6. The requirement to update arrest reports is likely to be the most burdensome if arrested people exercise their rights. As a publisher I could discourage demands by posting new updates instead of correcting old articles:

    Professor Volokh gets off the hook for racial slur
    Last year we reported on the arrest of Eugene Volokh after complaints of gratuitous use of the n-word in a blog post. We are informed that the district attorney, with his large backlog of cases, has decided not to pursue charges in this case of verbal violence.

    Boston got a progressive prosecutor a few years ago. A lot of arrests that would have led to an admission to sufficient facts or even a conviction are now being tossed by her office at or before arraignment. (She’s so quick to dismiss that her office has gotten into fights with judges. The state Supreme Court backed her up when she asked for mandamus-like expedited review of a judge’s refusal to immediately dismiss. Absent evidence of an illegal motive, prosecutorial discretion is to be respected.)

    Admission to sufficient facts is similar to diversion in other states. The defendant agrees that the evidence is sufficient to convict. The case will be dismissed if the defendant stays out of trouble. But it’s still a conviction for certain federal law purposes, thanks to the admission, and in a DUI case the consequences are very similar to a conviction under state law. Possibly this counts as a “deferred prosecution agreement” under the model law.

  7. Prof. Volokh,

    I can understand the desire to draw a distinction between online and offline publishers; it’s relatively cheap and easy to update something online, whereas we would not expect a newspaper or book publisher to be able to track down all the extant physical copies of its publications and put updates in them.

    But the NYT’s complete archives are online (at least for subscribers). Does the paper have an obligation to append electronic updates to its stories under the circumstances described (i.e., that it truthfully published a story that Paul was convicted of a crime, but then Paul was later exonerated)? If not, how is that different than Donna’s situation above?

    1. There’s an incentive to outsource archives to a third party.

  8. Vermont just had a similar case decided this month: ““We agree with the trial court that (Hoyt’s) allegations are insufficient to state a claim for defamation,” the high court stated. “(Hoyt) conceded in his pleadings that several years earlier he was the subject of a criminal charge that stemmed from allegations by a young girl that he sexually abused her. Although the charge was eventually dismissed, (Klar’s) statement referring to (Hoyt) as an ‘alleged child molester’ was not false because (Hoyt) had been alleged by the state to have molested a child.”

    The court stated that Hoyt did not contend that the newspaper article was false or defamatory.

    “Furthermore,” according to the ruling, “(Klar’s) statements suggesting that he believed the alleged victim was telling the truth cannot be the basis for a defamation claim because they were plainly statements of opinion, which is not capable of being proven true or false.”

    Article at https://vtdigger.org/2021/03/29/vermont-supreme-court-finds-no-defamation-in-spat-between-gubernatorial-candidates/

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