When ‘there is serious reason to doubt’ rumors and allegations, is it libelous to publish them?

(Nicholas Kamm/Agence France-Presse via Getty Images)

BuzzFeed, as everyone now knows, has published unverified allegations about Russia having “compromising material and information on [Donald] Trump’s personal life and finances”; the allegations had been apparently included in a “classified report delivered to President Obama and President-elect Donald Trump.” This raises all sorts of important questions about national security, journalistic ethics and more. I will set those aside under Mr. Ed’s Law, since I don’t have anything helpful to add about them.

But it also raises one question that a reader asked me about, and on which I actually know something: When a publisher knows “there is serious reason to doubt” certain allegations (which BuzzFeed’s top editor expressly said), is it libelous for the publisher to pass along those allegations (assuming they ultimately prove to be factually false)? Or is the publisher free to publish them on the theory that it is accurately reporting what has been alleged, even if the allegations are not accurate? It’s unlikely that Trump, despite his talk about libel law, will actually sue BuzzFeed over this, but these questions come up often with regard to reports about accusations about lower-level public figures. And the answer is, “It’s complicated.”

1. The republication rule: Say that Alan writes, “Betty alleges Charlie committed armed robbery.” Alan’s statement is literally true: Betty did make the allegation. But the statement Alan is reporting on (Betty’s statement) is false. American libel law has long adopted the “republication rule,” under which Alan is potentially liable for defamation — if Betty’s allegation actually proves to be false — even if he expressly attributes the statement to Betty. (See Restatement (Second) of Torts § 578.)

And this is true even if Alan distances himself from the allegation, for instance by saying that Charlie has denied the statement, or that Betty has reason to lie. The principle is that “Tale bearers are as bad as the tale makers.”

2. The “absence of malice” / absence of negligence defense: Of course, Alan (like Betty) would still have the benefit of the First Amendment defamation defenses that the Supreme Court has crafted. For instance, if Charlie is a public official or a public figure, Alan is immune from liability unless he spoke knowing that the statement was false, or at least having “serious doubts as to the truth of” the allegation. (That’s the famous “actual malice” standard, though that term is confusing, because it doesn’t actually mean “malice.”) If Charlie is a private figure, Alan would be immune from liability if he reasonably believed the allegations.

Very often, people who are passing along such allegations do sincerely believe them, even if they are unwise to do so. If that’s true, and Charlie is a public figure or public official, then Alan is off the hook. But assume, as in the BuzzFeed situation, that Alan does indeed know that “there is serious reason to doubt” the accuracy of Betty’s charges. The “absence of malice” defense thus falls away, and we get to the really interesting stuff.

3. The fair report privilege: The republication rule can’t be the whole story, though. Say a reporter is covering a trial, in which witnesses are making assertions that the reporter knows are false, or knows are likely false; or say a reporter is reporting on some official government report. The law has long recognized that such coverage must be immune from liability, under the so-called “fair report privilege,” at least when the coverage is substantially accurate and evenhandedly summarizes the testimony. In many states, this is an absolute privilege, applicable even when the reporter knows that the statements within those proceedings are likely to be false.

The fair report privilege also generally extends beyond reports of court proceedings, to include reports of public meetings of government bodies, including legislative and executive bodies. But most cases don’t extend it to reports of nonpublic government discussions. A report of allegations included in a secret government briefing, for instance, wouldn’t qualify for this privilege (though maybe they would qualify for others).

4. The possible neutral reportage privilege: But what if the statement is outside a government proceeding? Consider this incident, from Norton v. Glenn, a 2004 Pennsylvania Supreme Court case: William T. Glenn Sr., a city councilman, claimed that council president James B. Norton III and mayor Alan M. Wolfe were gay, implied that they were child molesters and claimed “that Norton had made homosexual advances toward Glenn which escalated to Norton grabbing Glenn’s penis.” A newspaper published an article accurately describing the charges and quoting Norton’s unequivocal denial; the newspaper didn’t endorse Glenn’s statements. Norton and Wolfe sued both the newspaper and Glenn, and the jury found that the statements were false.

Some courts would hold that the newspaper would be protected in such a case under a First Amendment “neutral reportage” privilege, because the charges themselves were newsworthy even if they were false. (Among other things, for instance, Glenn’s charges against Norton and Wolfe could be important to the public because they reflected on Glenn’s fitness for office.) Some courts have held that, “when a responsible, prominent organization … makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges,” even when the reporter has serious doubts about the accuracy of the charges. (That’s from Edwards v. National Audubon Society (2d Cir. 1977).) And some other courts have extended this to certain charges on matters of public concern against private figures, and to statements made not just by responsible, prominent organizations but by any public figure, or even by any non-anonymous source.

There’s much to be said, I think, for the neutral reportage doctrine. The theory behind the First Amendment exception for defamation is that “there is no constitutional value in false statements of fact,” because such statements do not “materially advance[] society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” But sometimes the very existence of an allegation or a rumor is indeed of importance to public issues, for instance because it could affect the behavior of public officials. (If various allegations about Trump and Russia are floating around, that might lead some other leaders to be wary of Trump’s actions toward Russia, or might pressure Trump to act in particular ways just to rebut those allegations — knowing about the allegations could thus help citizens understand these reactions.) And it seems bad in a democracy when elite insiders know what rumors are swirling around, but ordinary voters are denied access to those rumors.

Nonetheless, a majority (though not an overwhelming majority) of courts that have considered the matter have rejected the neutral reportage privilege, because of the harm that false allegations — including ones passed along, rather than created in the first place, by the defendant — can cause to people’s reputations. In Norton v. Glenn, for instance, the Pennsylvania Supreme Court held that Norton’s and Wolfe’s lawsuit against the paper could go forward, and the paper could be held liable if it published Glenn’s statements knowing that they were likely false; the case eventually settled for an undisclosed amount. The New York high court has also rejected the neutral reportage privilege, as have several others. And to my knowledge no court has accepted the privilege for allegations made by unnamed sources, such as in the BuzzFeed incident.

5. 47 U.S.C. § 230: But BuzzFeed and other online publishers could have another source of immunity here — the federal 47 U.S.C. § 230 statute. That statute (enacted in 1996 as part of the Communications Decency Act) is famous for protecting online publications from being held liable for user comments. If you write unsubstantiated rumors in the comments to this post (and please don’t!), The Post and I aren’t going to be liable; Congress chose to provide such protection because it worried that otherwise online-service providers — such as America Online, back in the day — would simply refuse to host user posts or user comments.

But the statute has generally been read quite broadly, including to online publishers’ deliberate decisions to forward particular materials. Thus, in Batzel v. Smith (9th Cir. 2003), Ton Cremers ran an email newsletter about allegedly stolen art; Robert Smith submitted an item that alleged that Ellen Batzel possessed a painting that had been stolen by the Nazis from its rightful owner; and Cremers deliberately chose to include the item in his newsletter and on his site. The U.S. Court of Appeals for the Ninth Circuit held that this too was protected by § 230, because that statute broadly provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Cremers was a “user of an interactive computer service”; Smith was an “information content provider”; Cremers was therefore immune from liability for distributing Smith’s email.

Likewise, in Barrett v. Rosenthal (Cal. 2006), Ilena Rosenthal forwarded an email that she received from someone else; that email contained charges against Stephen Barrett. Barrett sued Rosenthal as well as the original sender, but the California Supreme Court held that Rosenthal was immune under § 230. The court acknowledged that this immunity was very broad (paragraph break added):

We share the concerns of those who have expressed reservations about … [such a] broad interpretation of section 230 immunity. The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications.

Nevertheless, by its terms section 230 exempts Internet intermediaries from defamation liability for republication. The statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended. Section 230 has been interpreted literally. It does not permit Internet service providers or users to be sued as “distributors,” nor does it expose “active users” to liability.

So if BuzzFeed got the dossier by email, and the dossier was originally distributed by its author by email, then BuzzFeed might well be protected by § 230. BuzzFeed got material from someone else, and chose to forward it, but that’s what Cremers and Rosenthal did, and they were found to be immune. If The Post decided to print the material in its paper edition (those things still exist, right?), it wouldn’t get such immunity, since § 230 only covers online publications. But online sites get this extra statutory protection.

On the other hand, many courts might find this result quite unappealing: Not only does it completely gut the republication rule for online publications, but it gives online media outlets a huge advantage over offline media outlets, within the core of the media’s traditional function — what a publication chooses to distribute to its readers — and not just as to comments. A court might thus refuse to accept Batzel or Barrett (which are binding precedent only in 9th Circuit federal courts and in California state courts).

Also, § 230 might be inapplicable if the material came to BuzzFeed on paper rather than by email, because § 230 only applies to material “provided by another information content provider,” defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” That would be a weird distinction, but statutes draw weird distinctions sometimes. Indeed, § 230 might be inapplicable so long as the material was first delivered by its author to others on paper, even if it was later forwarded by email, because then (one might argue) the person “responsible … for the creation or development” of the material didn’t provide it through an “interactive computer service.”

But at the very least, § 230 would be a possible defense that BuzzFeed and other sites could use when they’re passing along a wide range of rumor or allegations, however unsubstantiated — like it or not, the Batzel and Barrett precedents so suggest.

6. The bottom line: I told you it was complicated! That just shows how ridiculously over-complicated our legal system has become, some might say. No, others might say, it just reflects the crooked timber of humanity and the inherent complexity needed in rules that deal with a complex world. I don’t make the law, I just report on it. And here the legal result would turn heavily on (at least) two contested questions — whether the jurisdiction recognizes the neutral reportage privilege and would apply it to this situation, and whether § 230 is read broadly when applied to a news site’s publishing particular material that it itself has deliberately chosen.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/13/when-there-is-serious-reason-to-doubt-rumors-and-allegations-is-it-libelous-to-publish-them/

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