Marquette University e-Publications@Marquette Master's Theses (2009 -) Dissertations, Theses, and Professional Projects Neutral Reportage Privilege: The Libel Defense Needed in a Struggling Democracy Christina Mazzeo Marquette University Recommended Citation Mazzeo, Christina, "Neutral Reportage Privilege: The Libel Defense Needed in a Struggling Democracy" (2019).edu/theses_open/548 NEUTRAL REPORTAGE PRIVILEGE: THE LIBEL DEFENSE NEEDED IN A STRUGGLING DEMOCRACY by Christina M. Mazzeo A Thesis submitted to the Faculty of the Graduate School, Marquette University, in Partial Fulfillment of the Requirements for the Degree of Master of Arts, Communication Milwaukee, Wisconsin August 2019 ABSTRACT NEUTRAL REPORTAGE PRIVILEGE: THE LIBEL DEFENSE NEEDED IN A STRUGGLING DEMOCRACY Christina M. Mazzeo Marquette University, 2019 This study aimed to understand the U. courts reasoning for either accepting or rejecting the neutral reportage privilege, a libel defense that protects individuals who republish defamatory statements for a newsworthy purpose.
A systematic analysis of federal and state court cases regarding the privilege was performed to determine how the courts view neutral reportage and what their rationales were for their decisions. The analysis showed the courts’ unnecessary reliance on Supreme Court precedent and an inconsistent application of the privilege. This paper offers a proposal for how the courts, journalists, other citizens, and social media platforms should view and utilize the neutral reportage privilege without rewarding the circulation of disinformation. Mazzeo I would first like to thank my support system at Marquette University.
Thank you to my professors, classmates, and friends for their advice and for being the reason why my time at Marquette was so enjoyable. I would especially like to thank my thesis committee: Dr. Ana Garner, Dr.Jay Wagner, and Dr. Each of them has guided me in many ways aside from this thesis.
Garner, you have been a constant source of help and reassurance ever since undergrad. I am very fortunate I was given the chance to work with you, and I learned so much while writing our papers together. Thank you for giving me opportunities to grow and succeed, and for reminding me to always be proud of my accomplishments. Wagner, you have been unbelievably encouraging since we first met, and I am so lucky I was able to help you with your many projects.
I am in awe of your thoughtfulness, your passion for your research, and your relentless work ethic. Thank you for all of your advice and for holding me to high standards. Ugland, you are the GOAT for your invaluable direction and insight on this project since day one; for editing this and many of my other papers over the years; and for your teaching and knowledge which has inspired my passion for media law. You were crazy for continuously agreeing to be my professor, adviser, and thesis chair, but I could not be more grateful.
The only way you could be a better mentor is if you bled green and gold instead of purple and gold. I would also like to thank my support system at home. My parents and siblings have been nothing but encouraging throughout this experience and during the rest of my time at Marquette. ii TABLE OF CONTENTS ACKNOWLEDGMENTS ……………………………………………………………….
i LIST OF TABLES ……………………………………………………………………… iv LIST OF FIGURES ……………………………………………………………………. The Foundation of Defamation ……………………………………… 7 B. Actual Malice and New York Times Co. Public Versus Private Plaintiffs …………………………………….
Fair Report Privilege ………………………………………………. Neutral Reportage Privilege ………………………………………. First Amendment Theory …………………………………………. Marketplace of Ideas …………………………………………….
Checking Value ………………………………………………… 33 iv. The Progression of Defamation Law ………………………………. Responsibilities and Ethics of a Journalist …………………………. Neutral Reportage Privilege …………………….
CASE ANALYSIS RESULTS ……………………………………………. Definition of the Neutral Reportage Privilege ……………………. Rationales for Accepting or Rejecting the Privilege ………………. Jurisdictional and Time Trends of the Neutral Reportage Privilege Decisions …………………………………….
How a Story is Presented …………………………………………. Spreading Disinformation ………………………… 67 ii. Accuracy, Context, and Neutrality ……………………………… 70 B. Whom the Privilege Protects ……………………………………….
Social Media Headlines and Posts …………………………………. Social Media Posts ………………………………………………. APPENDIX ………………………………………………………………… 96 iv LIST OF TABLES Table 1: Frequency of All Neutral Reportage Cases …………………………………. 62 Table 2: Frequency of Circuit Court Cases …………………………………………….
64 Table 3: Frequency of State Court Cases ………………………………………………. 64 Table 4: Rejected Circuit Court Cases …………………………………………………. 65 v LIST OF FIGURES Figure 1: Rulings for the Neutral Reportage Privilege ………………………………… 61 Figure 2: Most Recent Trends of Neutral Reportage Decisions ………………………. Introduction Although the President of the United States, Donald Trump, frequently accuses journalists of reporting fake news and claims that they are “the enemy of the people” (Stewart, 2018), he cannot sue them for libel merely because he does not like what they report.
The Supreme Court made clear in New York Times v. Sullivan (1964) that public officials cannot sue for libel unless the material published about them was made “with knowledge that it was false or with reckless disregard of whether it was false or not” (p. What has been settled law for over half a century, however, is now up for debate again, after Trump insisted on the campaign trail that he intended to “open up libel laws” to make it easier for plaintiffs to sue, and after Supreme Court Justice Clarence Thomas recently stated that Sullivan ought to be reversed, or at least reassessed (McKee v. Without Sullivan, journalists would be left without protection if they made minor mistakes in their reporting.
They would not have the “breathing space” (NAACP v. 433) to investigate public officials and figures if even the smallest misstep would put them in jeopardy. Not only is there a need to maintain robust protections against libel suits by public people, existing libel laws generally do not go far enough to ensure that these people are held accountable and that there is an environment of “uninhibited, robust and wide-open” debate (New York Times v. One area that must be strengthened is the neutral reportage privilege.
Under traditional libel principles, when someone repeats a defamatory remark, the person effectively claims it as their own and can be sued to the same extent as the original defamer. Although there is nothing newsworthy about false information, there are times 2 when the making of the false statement is itself newsworthy. If a person like Donald Trump were to defame someone, it would be of public concern because it reveals the character and integrity of the President of the United States. When journalists want to report on events like this, the neutral reportage privilege will protect them when they feel it is in the public’s interest to republish defamatory statements even when they have doubts about the veracity of those statements (Edwards v.
National Audubon Society, 1977). The neutral reportage privilege was first recognized in 1977 by the U. Court of Appeals for the Second Circuit in Edwards v. National Audubon Society.
The case was between the National Audubon Society (NAS) and a group of scientists the organization had defamed. The NAS accused these scientists of being paid by pesticide companies to lie to the public about the effects of DDT on birds. After the New York Times wrote about this story, the scientists sued the newspaper as well as the NAS. The court ruled in favor of the Times because they believed that “when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter’s private views regarding their validity” (p.
In the subsequent four decades, some courts have embraced the neutral reportage defense, but many have not. This thesis seeks to understand the reasons for those mixed outcomes by systematically examining all federal and state court decisions that have addressed the privilege since Edwards. The aim is to understand the rationales offered by the courts for accepting or rejecting the privilege, the ways in which the privilege was conceptualized and articulated by the courts (who qualifies for the protection and under what conditions), and 3 to identify any trends over time. This thesis also offers a proposal and justification for recognition of the privilege, which takes account of the extraordinary ways in which the media landscape has changed.
Since Edwards, the internet has become a monolithic power in society. It has reconfigured how people communicate by creating a 24/7 news cycle, spawning social platforms that enable people to effortlessly share information with mass audiences, and allowing people to rapidly absorb massive amounts of information. These changes put all communicators in danger of libel lawsuits, especially journalists who are now sharing all of their work on social media. Without strong legal protections, including neutral reportage protection, citizens and journalists will be more likely to self-censor and to withhold newsworthy information to avoid being sued.
A recent example occurred during the 2018 midterm elections. The race for one of Florida’s U. Senate seats was tightly contested between Florida Senator Bill Nelson and Florida Governor Rick Scott (Griffiths, 2018). Scott was leading by the end of election day, but it seemed like a recount was imminent when Nelson’s numbers went up a few days later.
As a response to this news, Scott appeared on Fox News Sunday and said, “Senator Nelson is trying to commit fraud to win this election” (Griffiths, 2018, para. It is clear that people should know Scott said this, but by repeating these claims against Nelson, news outlets were risking a defamation lawsuit. This gap in defamation law, which chills speech about newsworthy remarks, needs to be filled. A problem some have with the neutral reportage privilege is that it permits people to feature false and defamatory statements during a time when society is trying to combat inaccurate narratives.
There are several reasons why incorporating this privilege into 4 defamation law outweighs the dangers of promoting false information, and one of them is that sometimes even the making of defamatory statements is newsworthy. When prominent figures make such remarks, it serves the public interest for people to know they were made. Public officials and figures can have great influence on society, and the public’s need to gauge their behavior and character takes precedence over avoiding the spread of untrue statements. In the case of Rick Scott, journalists were able to publicize the fact that he was trying to undermine an election, but they should not have to do it with the added legal risk of being sued.
Reporters who are not backed by strong institutions with vast resources might not have even taken the chance of disseminating this story. People should not fear republishing these types of statements because it allows the public to understand who their government leaders are and consider if they still want them as their representatives in the future. The consistent implementation of the neutral reportage privilege will also promote a free press. The intended purpose of the First Amendment is to protect citizens’ rights to express themselves freely without repercussions.
This includes their right to report on an event of public concern. If an article is accurate, fair, and retells a complete account of the events, the individual’s First Amendment rights should not be limited because of the legitimacy of what they are republishing. Even if someone is publishing something shorter than a full-length news story, like a tweet for example, they should still have a defense as long as they make the context clear to the reader. They are contributing to the marketplace of ideas where “the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market” (Abrams v.
It is unrealistic, 5 particularly at a time of rapid information flows on social media, for people to be expected to independently investigate every utterance from a public person before sharing that information with others. This issue may not come up as often as other areas of defamation law do, but that does not mean it is not a problem.