Monday, March 31, 2003

Six Degrees of Separation

Today's New York Times had a story on the case of Norton v. Glenn regarding the issue of "reportage privilege."

Under the facts of the case, a member of the Parkesburg Borough Council characterized the Borough Mayor and the Borough Solicitor as "queers" and "child molesters" and referred to the Borough Solicitor as a "shyster Jew." The statements were reported in the local paper. The Mayor and Borough Solicitor brought suit against not only Glenn, the council member who made the statements, but against the reporter and newspaper as well.

The trial court had applied the so-called "neutral reportage privilege" to the case, based evidentiary rulings upon that privilege and gave jury instructions based upon it. The jury returned a verdict exonerating the reporter and the newspaper.

In essence, the privilege applies the standards of New York Times v. Sullivan, 376 U.S. 254 (1964). It allows reporting of newsworthy statements without fear of being sued for defamation, unless the plaintiff can show that the publication by the reporting organization was made with "actual malice." That is, the plaintiff must prove that reporting organization knew that the statement was false or reported the statement with reckless disregard of whether it was false or not.

The intermediate appellate court rejected the doctrine and the case is now on appeal to the Pennsylvania Supreme Court. Amicus briefs have been filed by numerous press organizations, including the Times.

The case has obvious ramifications for weblog authors. After all, a significant portion of weblog reportage consists of brief mentions of stories that appear in more traditional publications or even references to weblog references to weblog references (and so on) to articles that appear in more traditional publications. If there is no "neutral reportage privilege," the chain of potential defendants could be as long as the number of links to a particular story.

(Note: The quotes of the councilman that are set forth above were contained in the appellate court's opinion, which quoted from the trial court's opinon, which quoted from the evidence adduced at trial, which quoted from the allegedly offending news story, which quoted the councilman. I don't think that I can be sued for defamation for reporting about a court's opinion discussing a trial about an alleged defamation, but ya' never know.)

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