Court rejects absolute fair report privilege

From the Summer 2001 issue of The News Media & The Law, page 13.

A Boise man can proceed with his invasion of privacy lawsuit against The Idaho Statesman, the Idaho Supreme Court ruled on June 21 after deciding that the newspaper could not rely on the fair report privilege when it published information from a court file that was 40 years old.

Fred Uranga’s lawsuit against the newspaper had been halted after a Boise trial judge dismissed the suit in October 1998, ruling that the Statesman had an absolute privilege to print material from a court file. A state appellate court upheld the dismissal in August 2000.

The effect of the Supreme Court’s decision will have a wide-reaching impact on newsgathering and publishing, Statesman Executive Editor Carolyn Washburn said.

“This has implications far beyond The Idaho Statesman,” Washburn said in the Statesman on June 21. “When you remove the absolute privilege, who decides what is tangential information and what is not? That becomes a judgment call, and that can have a real implication on what the public gets to see out of a public record.” In October 1995, the Statesman published an article about a “morals” investigation in Boise in 1955 and 1956. At that time, allegations of pedophilic and homosexual activity led to a formal investigation and 16 arrests.

One witness in the investigation, Melvin Dir, said that Frank Jones claimed to have had sex with Uranga. Jones and Uranga are cousins.

The statement was filed in a criminal case against Dir, although he pleaded guilty before going to trial. The Statesman reprinted the unsworn statement with the 1995 article.

Uranga sued in October 1997 after the Statesman refused to retract the Dir statement. Uranga appealed the decisions of the district and appellate courts.

The Statesman argued it had an absolute right to publish information contained in court records, relying on Cox Broadcasting Corp. v. Cohn, a 1975 U.S. Supreme Court decision that upheld the media’s right to publish information from court records.

The Idaho Supreme Court refused to believe that the privilege to publish information was absolute. The court was swayed by the fact that the allegation here came from only one person, unlike the material at issue in Cox, which came from multiple sources. The information was also never admissible as evidence in court; it was only a filed statement in Dir’s case. The court also reasoned that information of dubious accuracy may make it into court files.

“We cannot presume that deputy court clerks have the means of scrutinizing and controlling information they are asked to file, and by filing information, have concluded it is in the public interest to forever shield the press from liability for publishing that information,” Chief Justice Linda Copple Trout said in the opinion.

The court was also unwilling to permit the publication based on the common law fair report privilege, which is codified in Idaho law. The fair report privilege allows the publication of information from a public proceeding if the report is fair and accurate.

Trout questioned whether the privilege could ever be applied in a claim for invasion of privacy. She ruled that even if the privilege did apply to such claims, it did “not logically extend to cloak the press in an absolute privilege to publish a statement regarding Uranga’s sexuality found in a forty-year-old court file where the statement was not used in an official or judicial proceeding, was never entered into evidence, and was not in a court pleading.”

Debora Kristensen, the attorney representing the newspaper, said she is filing a petition for rehearing to the Idaho Supreme Court in July. Due to the pending petition, both Washburn and Kristensen declined to make any additional comments. — DB