The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
(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)?
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:
- The harm caused by the stories is identical: Paul is being damaged equally by both.
- Both stories omit an important detail, which keep them from being full and fair accounts: Both mention just the conviction and not the reversal.
- Donna and Dan have the same current mental state: They both know about the reversal.
- 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.
- 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):
- 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.
- 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.
- 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.
- 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;
(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."
 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).
 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).