Is Accurately Repeating a Defamatory Allegation Itself Defamatory?
(A comment on the Incomplete Reports of Legal Proceedings as Libel thread leads me to repost this item from two years ago; there has been a lot of talk of libel since then, so I thought reposting it might yield an interesting conversation.)
Say that Don writes, “Teresa alleges Paul committed armed robbery.” Don’s statement is literally true: Teresa did allege that. But the statement Don is reporting on (Teresa’s statement) is false. Can Paul sue Don for defamation and win?
[1.] The republication rule: Often, yes. American defamation law has long adopted the “republication rule,” under which Don is potentially liable for defamation—if Teresa’s allegation actually proves to be false—even if he expressly attributes the statement to Teresa. See Restatement (Second) of Torts § 578. (You could tell that Don was destined to be a defendant just from the first letter of his name.)
The principle is that “Tale bearers are as bad as the tale makers.” And this is true even if Don distances himself from the allegation, for instance by saying that Paul has denied the statement, or that Teresa has reason to lie. A stark example: Martin v. Wilson Pub. Co. (R.I. 1985), which held that reporting a rumor that a local developer had been guilty of arson could be defamatory even though the newspaper expressly said that “[s]ome residents stretch available facts when they imagine Mr. Martin is connected with [the fires],” and that “[l]ocal fire officials feel that certain local kids did it for kicks.”
[2.] The “absence of malice” / absence of negligence defense: Of course, Don (like Teresa) would still have the benefit of the First Amendment defamation defenses that the Supreme Court has crafted. For instance, if Paul is a public official or a public figure, Don is immune from liability unless he spoke knowing that the statement was false, or at least having “serious doubts as to the truth of” the allegation. That’s the famous “actual malice” standard, though that term is confusing, because it doesn’t actually mean “malice.”
If Paul is a private figure, Don would generally be immune from liability if he reasonably (i.e., nonnegligently) believed the allegations. (In a few states, if Paul is a private figure and the accusation is seen as a matter of purely private concern, e.g., an accusation of adultery rather than a serious crime, Don might be “strict liable,” even if he reasonably investigated the matter; but most states require at least negligence in all cases.)
But often enough, a jury could determine that Don was negligent, or even that he was aware that the statement might well be false and thus entertained serious doubt as to its truth. Does that mean that Don is liable?
Well, it often means that, but it can’t always mean that, right? The theory behind the First Amendment exception for defamation is that “there is no constitutional value in false statements of fact,” because such statements do not “materially advance society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” But sometimes the very existence of an allegation or a rumor is indeed of importance to public issues.
Thus, consider the following two exceptions.
[3.] The fair report (of government proceedings) privilege: Say a reporter is covering a trial, in which witnesses are making assertions that the reporter knows are false, or knows are likely false; or say a reporter is reporting on some official government report. The law has long recognized that such coverage must be immune from liability, under the so-called “fair report privilege,” at least when the coverage is substantially accurate and evenhandedly summarizes the testimony. In many states, this
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