The Volokh Conspiracy
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No Legal Duty to Remove or Update Accurate Report of Arrest, Even After Charges Were Dismissed
From Holt v. Gray Television, Inc., decided Friday by Chief Judge David Proctor (N.D. Ala.):
This action arises from Plaintiff's arrest on January 7, 2021. Plaintiff was charged with three counts of child pornography—that is, sending, receiving, and possessing child sexual abuse material. Plaintiff alleges that, on that same day, Defendants reported this information on WTOK TV and posted it on their website. On September 15, 2022, Plaintiff's charges were dismissed. Plaintiff alleges that he contacted Defendant Harms, provided proof that the charges had been dismissed, and requested that the story on his arrest be removed or updated. Plaintiff further alleges that Defendant Harms refused to update the story or take down the information that had been posted on the website.
At the time of his arrest, Plaintiff alleges that he was a candidate for Ward 2 City Councilman for the City of Meridian, Mississippi. He also alleges that he was a political activist, and had a podcast called "Reaching Out With Eddie," where he exposed the "illegal acts and wrong doing of government officials, city officials, politicians, and the law enforcement community." …
Plaintiff sued for defamation, but the court rejected the claim; here is part of the reasoning:
A district court sitting in diversity applies the choice-of-law rules of the forum state. In Alabama, the choice of law for substantive law is governed by the principle of lex loci delicti, which means Alabama courts "will determine the substantive rights of an injured party according to the law of the state where the injury occurred." Since the injury allegedly occurred in Mississippi, Mississippi law will govern the substantive law.
Under Mississippi law, to establish a defamation claim, a plaintiff must prove four elements, one of which is that the defendant made "a false and defamatory statement concerning plaintiff." Defendants argue (and the court agrees) that Plaintiff cannot prove a defamation claim because Defendants' statements were true: Plaintiff was actually arrested and charged—and that is exactly what Defendants reported. Moreover, this claim is barred by Mississippi's fair report privilege. That is, even based on Plaintiff's allegations, Defendants merely reported accurate information that was obtained from law enforcement. None of the information included in the news story is in dispute or challenged by the Plaintiff as being false….
Defendants also argue that to the extent Plaintiff claims Defendants defamed him, Plaintiff has failed to exhaust his remedies. They assert that "under Mississippi law, the plaintiff must, in writing, serve notice to a television station to their regular place of business with the alleged defamatory statement at least ten days before filing suit." While Plaintiff claims he asked Defendant Harms to remove or update the story after his charges were dismissed, he has not alleged that he provided written notice to the station. Because Plaintiff has not shown that he provided written notice to Defendants, he failed to exhaust his remedies pursuant to Mississippi law.
Defendants also contend that Plaintiff's claim was not filed within the statutory limitations period. Under Alabama law, the statute of limitations of a defamation claim is two years2 and begins to run from the date of publication. The two-year "statute of limitations for actions alleging libel or slander prescribes a period that runs from the date of publication—that is the date on which the injury to the plaintiff's reputation occurs and the cause of action is completed." Plaintiff's argument that the statute of limitations period began to run on September 15, 2022, when the charges against him were dismissed is off the mark. The statute of limitations period began to run when the allegedly defamatory statement was published by Defendants, which Plaintiff himself alleges was on January 7, 2021. Therefore, Plaintiff ran out of time to file this lawsuit two years later on January 7, 2023. Because Plaintiff waited to file this case until March 29, 2024, the claim should also be dismissed for this additional reason.
Next, Plaintiff claims that Defendants harmed him by failing to remove or update the news story. But, Defendants had no obligation to do so. First, as a general matter, news organizations do not have a duty to retract, remove, or update previously-published true stories based on subsequent developments. Martin v. Hearst Corp., 777 F.3d 546, 551 (2d Cir. 2015) (noting that later-occurring developments "cannot undo historical facts or convert once-true facts into falsehoods"); Rogatkin v. Raleigh Am., Inc., 69 F. Supp. 3d 294, 298 (D. Mass. 2014) ("The publication of true but historical facts (even if outdated) about a person cannot be defamatory as a matter of law."); see also Pacheco Quevedo v. Hearst Corp., 2019 WL 7900036, at *6 (Conn. Super. Ct. Dec. 19, 2019) ("[T]he law of defamation does not impose a duty to update news coverage with later developments.").
Mississippi law provides that the obligation to issue a correction, update, or retraction only arises where the statement made was false. As discussed above, because the statement was not false (a fact that Plaintiff does not dispute), Defendants had no obligation to update the story once Plaintiff's charges were dismissed. Moreover, imposing such an obligation on a news organization would violate the news station's First Amendment rights to freedom of speech. See Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 258 ("It has yet to be demonstrated how governmental regulation of [editorial control and judgment] can be exercised consistent with First Amendment guarantees of a free press ….").
I have argued that libel law should indeed in essence require updating such online material once charges are dismissed (see pp. 343-49 of this article), and that there is some authority supporting such a proposition (at least when the statute of limitations had not yet run). But that apparently is not the law in Mississippi.
