In 1995, a reporter for the Daily Local News of West Chester, Pa., recorded some newsworthy comments by a member of the Parkesburg Borough Council. The remarks were directed at the council’s president and the mayor, who were ‘’liars,’’ ‘’criminals,’’ ‘’draft dodgers’’ and ‘’child molesters,’’ in the words of the council member. Scurrilous stuff, spoken without any supporting documentation.
The Daily Local News duly published those remarks and faced a lawsuit, together with the loose-lipped council member. A jury later held the council member liable to the mayor and the council president but let the Daily Local News off the hook, based on a judge’s ruling that the paper enjoyed something called the “neutral reporting privilege” — essentially a legal protection for a news outlet to pass along certain remarks of public officials, even irresponsible and slanderous ones. The Pennsylvania Supreme Court later ruled that media outlets in the state had no such privilege.
Implication: The Daily Local News and its peers need to be careful about printing allegations from public officials.
Who cares what happened in some Pennsylvania town 17 years ago? Reporters and politicians here in the District of Columbia.
The Huffington Post recently went through a similar exercise with Senate Majority Leader Harry Reid. In an astonishing news-making moment, Reid told HuffPo the following about Mitt Romney:
“He didn’t pay taxes for 10 years! Now, do I know that that’s true? Well, I’m not certain,” said Reid. “But obviously he can’t release those tax returns. How would it look?”
Showing off his fitness for a future on Fleet Street, Reid rested that allegation on a killer source: “a person who had invested with Bain Capital.” Way to nail down the story.
The Huffington Post has taken a bit of heat for going ahead and repeating Reid’s guess/smear. From a piece by Liz Cox Barrett and Greg Marx in CJR:
Especially so long as there are reporters willing to write up that “open speculation” and ensure its dissemination to a wider audience, and to present the story in a way that drives attention to Romney’s evasiveness rather than to Reid’s gleeful disregard for what the truth actually may be. The HuffPo reporters did, to their credit, note clearly that Reid’s claims are unsubstantiated — but that just highlighted how flimsy the claims are, and how reckless their dissemination is.
Bolded text added to highlight a word that needs replacement: In this case, the dissemination of Reid’s words is responsible, compulsory. It would be a shame, after all, if Reid’s constituents passed ignorant of the evidentiary standards to which he subjects his mudslinging.
Asked about this question, the Huffington Post replied as follows, via spokesman Rhoades Alderson:
We quoted a prominent politician on the record about a topic of intense public interest. We added the proper context and skepticism. We also highlighted an important, broader story: that Mitt Romney’s refusal to release more tax information has emboldened his opponents to level increasingly provocative charges. We weighed the merits of the piece before we published. Ultimately we decided that, among other things, it is not the job of the journalist to redact the on-the-record comments of the U.S. Senate Majority Leader.
Way to go, Rhoades Alderson. You have backup from David Schulz, name partner in the law firm Levine Sullivan Koch & Schulz: “I would argue that if I were defending Huffington Post, that this is the sort of information the public deserves to know.”
Supposing that Reid continues pulling in Huffington Post reporters Ryan Grim and Sam Stein to spread poorly sourced tales, how much protection does the publication have under the law? That’s a touch unclear.
According to the Citizen Media Law Project, D.C. courts have “not ruled definitively on the availability of the neutral reportage privilege,” though one lower court has applied it. The U.S. Court of Appeals, D.C. Circuit declined to address the neutral thing in a 1990 case because, well, it didn’t have to:
The media defendants also claim a right under the First Amendment to report accurately allegations of wrongdoing in a matter of public interest, even where the allegations are made outside of an official proceeding. The premise of this privilege, they claim, is that accusations of malfeasance by public officials are newsworthy, and the public will only learn of such charges if the press is immune from liability for dispassionate and disinterested reporting of such allegations. While the Second Circuit has recognized a constitutional privilege of “neutral reportage,” see Edwards v. National Audubon Society, Inc.,..., this circuit has not. Because we need not reach this question in order to resolve this case, we decline to do so.
Too bad bloggers can’t excuse themselves from work the way judges can.
In a world rigged by the Erik Wemple Blog, the legal system would be prejudiced in the opposite direction: Publications that failed to publish any and all false and defamatory charges made by public officials would be subject to criminal and civil liability. Professor Clay Calvert, the director of the Marion B. Brechner First Amendment Project at the University of Florida, says, “The real story is the fact that Reid made the allegation in the first place. The second story is whether the allegation is true.”