Incomplete Reports of Legal Proceedings as Libel
(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. “It is a misleading half-truth to say that a person was convicted … without including the fact that his conviction was overturned on appeal.”
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” and “[a] report may not be ‘fair’ if it fails to reveal the ultimate outcome of the reported accusation.” In a sense, this is another version of the libel by omission theory:
- 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.
- 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. That privilege exists because the ability to write about formal allegations made in court proceedings is seen as so important.
- 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.”
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. Likewise, it isn’t libelous to me
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