‘Fair report’ privilege defeated by attempt to verify comments

From the Summer 2000 issue of The News Media & The Law, page 33.

The state’s “fair report” privilege covers reports of remarks made at city council meetings, but not additional material included in an article that is defamatory or comments on the veracity of charges reported, the state Supreme Court held May 18.

The state’s smallest daily newspaper, the Crookston Times, was sued in Polk County District Court for an article about an accusation made against a policeman in a public meeting and the investigation surrounding it.

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Crookston Times city editor Mike Christopherson was at a meeting of the Crookston City Council in March 1998, and heard local citizen Dennis McDaniel complain about drug problems in the town. McDaniel asked the council to “stop Officer Moreno from dealing drugs out of his police car.”

Ten days later, Christopherson heard rumors that an officer was going to be arrested. The police chief told him the rumors were not true, and specifically denied that Moreno had been arrested. Asked about McDaniel’s allegation, the chief said the police department “would be remiss” if it did not follow up on the complaint.

A Times article mentioned that the department was following up on the allegation made at the council meeting. It also noted the rumors of an officer’s arrest, and mentioned that the chief said the rumors were untrue and that he had been with Moreno much of the day.

Moreno sued, but his case was dismissed. The trial judge found that the article was a fair and accurate report of a public proceeding. He rejected the officer’s claim that the fair report privilege is inapplicable because the report was made maliciously.

An appellate court overturned the dismissal, finding that a showing of common-law malice would defeat the privilege, and the newspaper appealed that decision to the state Supreme Court.

The Supreme Court noted that state law was not previously clear on whether the privilege extended beyond judicial proceedings.

It found, however, that the same public policy concerns underlying the application of the privilege to judicial proceedings — that the public interest is served by the fair and accurate dissemination of information concerning the events of public proceedings — warrants extending the privilege to legislative hearings, including city council meetings.

The court rejected the argument that a showing of common-law malice — ill will or improper motive — would overcome the privilege. Again, the public policy objectives behind the privilege demand only that the report be fair and accurate, and motive is irrelevant, the court held.

However, the court added that much of the Times article was dedicated to investigating the charges, which can negate the protection of the fair report privilege.

Three paragraphs reported on the allegations made before the council, while six followed up on the charges, the court pointed out. The mention of an official investigation could be viewed as adding credibility to McDaniel’s allegations and “could increase the defamatory effect” of the article. In addition, the article’s last paragraph, mentioning that McDaniel is an “outspoken citizen, and is a frequent contributor to the Times’ Editorial Page,” arguably speaks to McDaniel’s credibility.

Therefore, the trial court must examine whether the additional information did indeed defame Moreno or bolster the credibility of McDaniel, to determine if the fair report privilege still applies to the story, the court ruled. It sent the case back to the trial court for further consideration.