'Neutral report' privilege does not apply to private figures

CALIFORNIA–Members of the news media cannot rely on the “neutral reportage” privilege when they republish defamatory statements that concern a private figure, the state Supreme Court held in early November.

The privilege, recognized in only a few jurisdictions, immunizes the republication of defamatory statements from liability, as long the statements were made about a public figure and were accurately and disinterestedly reported upon.

Noting that “the very existence of the privilege as a matter of constitutional law is uncertain,” the court left for another day the question of whether state or federal constitutional principles mandate the recognition of a neutral reportage privilege for republished statements about public figures or public officials.

Khalid Khawar sued the Globe, a national weekly newspaper, in 1989 after it published a story that reported on allegations contained in a book by former CIA agent Robert Morrow that the Shah of Iran’s secret police collaborated with the Mafia to carry out the 1968 assassination of U.S. Sen. Robert F. Kennedy, and that the assassination was carried out by a man named Ali Ahmand. The book also contained a photograph of Khawar standing near Kennedy just moments before the assassination. Khawar was a photojournalist at the time and was working the political rally on assignment for a Pakistani periodical.

The Globe illustrated its article with the photograph, enlarged and with an arrow pointing to Khawar and identifying him as Ahmand.

The state Supreme Court determined that Khawar was a private figure who had not, voluntarily or involuntarily, become involved in the public controversies surrounding the assassination of Sen. Kennedy or Morrow’s book about that assassination. Khawar, the court stated, had done nothing more than stand near Kennedy on the day of his assassination.

“Khawar did not know, nor should he have known, that Kennedy would be assassinated moments later, much less that a book would be published 20 years thereafter containing the theory proposed in the Morrow book,” the court concluded.

After determining that Khawar was a private figure, the court addressed the application of the neutral reportage privilege to republications of statements made about private figures. The privilege, as recognized by a few federal courts, protects accurate and disinterested reports of statements made about a public controversy. The state Supreme Court noted that the U.S. Supreme Court has never said that the First Amendment requires recognition of the privilege, but in any event, the state court held that the privilege does not extend to reports regarding private figures.

The court also said the jury properly concluded that the Globe had acted with actual malice — knowledge of falsity or reckless disregard for truth or falsity — in reporting about Morrow’s book. The court did not address the jury’s finding that the Globe report was a neutral and accurate report of Morrow’s book, which the trial judge had rejected because of the changes made in the Globe account.

The court specifically criticized the Globe for failing to confirm or disprove the allegations presented in Morrow’s book, indicating that the Globe had a legal duty to independently investigate the allegations.

The court asserted that in advance of “publishing an article accusing a private figure of a sensational murder, Globe could well have afforded to take the time necessary to investigate the matter with sufficient thoroughness to form an independent judgment before republishing an accusation likely to have a devastating effect on the reputation of the person accused. But Globe did not do so.” (Khawar v. Globe Int’l, Inc.; Media Counsel: Anthony Glassman, Beverly Hills; Amy Hogue, Los Angeles)