James B. NORTON, III, Alan M. Wolfe, and James Marlowe, v. William T. GLENN, Sr., Troy Publishing Company, Inc., Tom Kennedy, And William Caufield, Appeal of Troy Publishing Company, Inc., Tom Kennedy, and William M. Caufield.
Supreme Court of Pennsylvania.
Argued Oct. 20, 2003. Decided Oct. 20, 2004.
860 A.2d 48
Accordingly, we reverse the order of the Superior Court and dissolve the stay we entered at 251 MAP 1999.
Justice EAKIN did not participate in the consideration or decision of this matter.
Former Justice LAMB did not participate in the decision of this case.
Justices CASTILLE and NIGRO dissent.
Terence Jon Barna, Corinna R. Wilson, Niles Benn, York, Walter Thomas McGough, Katherine L. Hatton, Philadelphia, for PA Newspaper Ass‘n, et al., appellant amici curiae.
Jennifer DuFault James, Carl Anthony Solano, Bruce Philip Merestein, Alison Finnegan, Philadelphia, for Committee of Seventy, appellant amicus curiae.
William T. Wilson, West Chester, Dennis B. Young, Parkesburg, Laurie Wyche-Abele, West Chester, for Alan M. Wolfe, appellee.
Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.
OPINION
Chief Justice CAPPY.
At issue in these matters is whether the neutral reportage privilege is encompassed within the Pennsylvania or United States Constitutions. For the reasons that follow, we hold that it is not. We therefore affirm the order of the Superior Court.
These matters arise out of an article (“Article“) written by Tom Kennedy (“Kennedy“) which appeared in the April 20, 1995 edition of the Chester County Daily Local (”Daily Local“). The Article, which was entitled “Slurs, insults drag town into controversy,” detailed heated exchanges that occurred among members of the Parkersburg Borough Council (“Council“); the Article reported that these exchanges occurred both inside and outside of the Council chamber. At issue are extra-Council chamber comments made by William T. Glenn, Sr. (“Glenn“), a member of the Council, regarding Council President James B. Norton III (“Norton“) and Borough Mayor Alan M. Wolfe (“Wolfe“).1
The Article stated that Glenn had claimed that Norton and Wolfe were homosexuals and that Glenn had observed Norton involved in a homosexual act in Norton‘s house. The Article also reported that Glenn had issued a written statement strongly implying that Glenn considered Norton and Wolfe to be “queers and child molesters.” The Article related that Glenn had declared that he had a duty to make the public aware of this information as Norton and Wolfe had “access to children....” Finally, according to the Article, Glenn asserted that Norton had made homosexual advances toward Glenn
The Article noted that when informed of Glenn‘s claims, Norton responded, “If Mr. Glenn has made comments as bizarre as that, then I feel very sad for him, and I hope he can get the help he needs.”
Wolfe, Norton (collectively, “Appellees“) and Marlowe filed separate actions, each raising defamation claims.2 They named as defendants Kennedy, the Daily Local, William Caufield, who owned the Daily Local, and the Troy Publishing Company, Inc., which published the Daily Local; these defendants shall collectively be referred to as the “Media Defendants“. Appellees and Marlowe also filed suit against Glenn. Ultimately, these actions were consolidated before the trial court.
The Media Defendants and Glenn filed motions for summary judgment. In an opinion granting relief in part and denying relief in part, the trial court determined that the Media Defendants were entitled to the protection of a privilege known as the neutral reportage privilege. Tr. ct. slip op., 8/02/1999, at 12. The trial court reasoned that this privilege was nothing more than the long-recognized fair report privilege, id. at 2 n. 2, a privilege which grants immunity from defamation suits to media entities which accurately report the official proceedings of government. The trial court opined that pursuant to this privilege, “the subjective awareness of the publisher, of the truth or falsity of the statement, is irrelevant.” Id. at 12. The trial court explicitly stated that its “holding eliminates the necessity of a determination of actual malice3 as to the Media Defendants.” Id.
Via special interrogatories, the jury found that Glenn had made the statements attributed to him in the Article and had made them with actual malice; accordingly, it held him liable for defamation. As against Glenn, it awarded Norton $10,000.00 in compensatory damages and $7,500.00 in punitive damages; it granted an identical award to Wolfe. Glenn did not appeal.
Pursuant to another set of special interrogatories, the jury determined that the Media Defendants were not liable. Specifically, the jury found that the Article accurately conveyed the gist of the statements Glenn made and did not imply that the Media Defendants adopted or concurred in those statements. Thus, pursuant to the trial court‘s instruction regarding the neutral reportage privilege, the jury found the Media Defendants not liable in defamation.
Appellees filed post-trial motions, requesting that a new trial be granted. The trial court denied relief. In its opinion explaining its determination, the trial court articulated its definition of the neutral reportage privilege. It interpreted the doctrine as conferring a privilege on the publication of “serious charges of a public official involved in an ongoing controversy and concerning other public officials4 irrespective of the publisher‘s belief as to the falsity of the charges, provided that the report does not espouse or concur in the charges and in good faith believe that the report accurately
On appeal, the Superior Court reversed. Norton v. Glenn, 797 A.2d 294 (Pa.Super.Ct.2002). The Superior Court found that there was no constitutional or statutory basis for the neutral reportage privilege. Thus, it concluded that the trial court had committed an error of law when it determined that such a privilege applied to this case and that a new trial must be awarded.
The Media Defendants filed a petition for allowance of appeal with this court. We granted allocatur, limited to the issue of whether there is a federal5 or state constitutional basis for declaring that the media enjoy the protections of a doctrine known as the neutral reportage privilege. As this is a question of law, our standard of review is de novo and our scope of review is plenary. See In re Hickson, 573 Pa. 127, 821 A.2d 1238 (2003).
The Media Defendants urge us to find that the
We must now determine whether the neutral reportage privilege is grounded in the
The circuit court reversed on appeal. The court declared that the
In adopting the neutral reportage doctrine, the Edwards court relied heavily on the U.S. Supreme Court‘s decision in Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), implying that Time announced that the
The Edwards court‘s reliance on Time, however, was ill-placed. In Time, the media defendant repeated statements regarding a public official that had been made in a civil rights report. The Court did not absolve the media defendant of liability on the basis that the defendant acted merely as a neutral conduit for statements of a third party; rather, the Court found that the defendant escaped liability because the public official-plaintiff could not establish that the defendant had acted with actual malice. Thus, Time did not explicitly or even impliedly adopt a privilege whereby the press could with impunity republish statements made by public figures or officials, escaping liability even where it could be shown that the press published these statements with actual malice. Indeed, Time applied the actual malice standard to the matter before it.
Furthermore, in the years following Edwards, the U.S. Supreme Court has not adopted the neutral reportage doctrine, or in any fashion declared that a defendant (be it a media defendant or simply a private citizen-defendant) will be immune from suit even where the defendant publishes with actual malice. See Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 660 n. 1, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (declining to address the neutral reportage doctrine as the issue had not been presented to the Court).8 Thus, as the U.S. Supreme Court has not squarely addressed the validity of the neutral reportage privilege, our next task is to determine whether this privilege is a logical extension of
Until the early 1960s, the high Court had consistently declared that imposition of civil liability for defamatory publications did not impinge on the
The law changed radically when the high Court announced its decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and declared that the
Ultimately, the U.S. Supreme Court granted certiorari in the matter. In commencing its analysis, the Court emphasized that there is a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government or public officials.” Id. at 270, 84 S.Ct. 710. The Court concluded that in order to stay true to this “profound national commitment,” it had to place certain limitations on the states’ ability to craft defamation law with regard to actions filed by public official-plaintiffs. No longer could malice and falsity be presumed; in fact, a public figure-plaintiff would not necessar-
The New York Times Court‘s actual malice standard announced severe restrictions on a public figure-plaintiff‘s rights to recover in defamation. The Court stated that actual malice will be found only where the defendant published the account “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 280, 84 S.Ct. 710. The Court stressed that actual malice will not be made out on a mere showing that the media defendant was negligent in ascertaining the truth of the statement it publishes. Id. at 288, 84 S.Ct. 710. Furthermore, the burden of proof was placed not on the defendant, but rather on the public official-plaintiff. Id. at 279-80, 84 S.Ct. 710. In applying the new standard to the matter before it, the Court found that the evidence adduced by Sullivan could not meet the actual malice standard, and therefore the Times could not be held liable.
Following New York Times, the high Court issued a spate of decisions which further illuminated this new actual malice standard. One instructive decision is St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). At issue in that matter was a televised statement made by Phil St. Amant (“St. Amant“), a candidate for public office. In that statement, St. Amant repeated comments made by a third party regarding the shady activities allegedly engaged in by Herman Thompson (“Thompson“), who was the president of the local Teamsters’ Union. Thompson sued St. Amant, seeking damages in defamation. The question presented was whether in establishing that St. Amant acted with “reckless disregard“, his conduct was to be measured against what a reasonably prudent man would have done. The Court rejected using the objective reasonable man standard in determining whether the publisher made the statement with actual malice. It stated that for purposes of establishing actual malice, reckless disre-
The St. Amant Court cautioned would-be defendants in such actions, however, by stating that immunity from liability would not be guaranteed merely by a protestation from the defendant that it published in good faith. Rather, the Court found that actual malice could be made out where “the publisher‘s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Id. at 732, 88 S.Ct. 1323.
Decisions following New York Times placed further restrictions on the states’ ability to define defamation actions, making it resoundingly clear how cherished is the
Furthermore, while the U.S. Supreme Court rejected application of the actual malice standard to cases involving private figure plaintiffs, it did place limitations on even these actions. It found that the common law presumption of damages in a
Finally, we must note that in none of these decisions did the high Court determine that because of the media‘s special role in our society, the common law cause of action for defamation should be abrogated vis-à-vis the media. In fact, in terms of fashioning legal standards in these defamation matters, the Court has not declared that a media defendant is owed even a scintilla more protection than a private citizen-defendant.
Rather, the Court has declared that “[t]he need to avoid self-censorship by the news media is ... not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation.” Gertz, 418 U.S. at 340, 94 S.Ct. 2997. The Court has repeatedly stated that the claim that the Federal Constitution requires such a blanket immunity for the media constitutes an “an untenable construction of the
Instead, the Court has cautioned that in the area of the law where defamation actions and free expression rights intersect, the courts cannot focus myopically on the preservation of free expression. While it recognized that the
In synthesizing the numerous cases from the U.S. Supreme Court regarding the
Accordingly, we conclude that the existing case law from the U.S. Supreme Court indicates that the high Court would not so sharply tilt the balance against the protection of reputation, and in favor of protecting the media, so as to jettison the actual malice standard in favor of the neutral reportage doctrine. Rather, the U.S. Supreme Court has placed a burden
Furthermore, to the extent that the Media Defendants’ argument can be characterized as a plea for us to effectuate important public policy goals by charting a new course with regard to federal constitutional law, one apart from that set by the U.S. Supreme Court, we resoundingly reject it. This is not to say that the Media Defendants’ position regarding the provision of newsworthy information to the body politic does not have some visceral appeal. Yet, our role in these matters is not to champion what we perceive to be good public policy. Rather, our function, as a state supreme court examining a federal constitutional question on which the U.S. Supreme Court has not yet spoken, is to attempt to anticipate how the federal high Court would dispose of this issue. As detailed supra, our examination leads us to the conclusion that the U.S. Supreme Court will not adopt the neutral reportage doctrine.
Having determined that the
The Media Defendants and the Committee of Seventy are correct in their assertion that this court has often declared that the Pennsylvania Constitution recognizes broader free expression rights than does the federal constitution. See, e.g., Pap‘s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002). Yet, their lengthy recitation of the law fails to recognize the existence of Sprague v. Walter, 518 Pa. 425, 543 A.2d 1078 (1988). This is a significant gap in their analysis as it is Sprague which controls whether the Pennsylvania Constitution provides broader free expression protections in these matters than does the federal Constitution.
In Sprague, the plaintiff was a public official who sued a newspaper for printing an article which allegedly defamed the plaintiff. In this context, the Sprague court addressed the issue of whether the federal Constitution provides that representations made by a confidential source are presumptively valid. We concluded that the free expression rights accorded by the U.S. Constitution were not so expansive.
The Sprague court next considered whether the Pennsylvania Constitution provides broader protections to the media in a defamation action filed by a public official than does the federal Constitution. In discussing the free expression rights guaranteed by the Pennsylvania Constitution, we recognized that these rights are in tension with another right guaranteed by our commonwealth‘s constitution, namely the right to protect one‘s reputation.10
The Sprague court was keenly aware of the seesawing balance between the constitutional rights of freedom of expression and of safeguarding one‘s reputation: protection of one of those rights quite often leads to diminution of the other. Yet, in the quest to strike a balance between these two competing protections, our court cautioned that the freedom of expression should not be seen as dominant and the protection
In striking that balance, we reasoned that we could not interpret our state constitution as providing even broader free expression rights than does its federal counterpart. We noted that the U.S. Supreme Court had erected “stringent requirements” in order to protect the federal right of free expression. Were we to go beyond the U.S. Supreme Court, and grant even broader free expression protections in defamation actions, we would concomitantly—and impermissibly—infringe on the protection granted by the Pennsylvania Constitution to reputation. Id. at 1085. Essentially, we determined that the protections accorded at that time by the U.S. Supreme Court to the right of free expression in defamation actions would demarcate the outer boundaries of our Commonwealth‘s free expression provision.
In accordance with Sprague, we find that with regard to the neutral reportage doctrine, the Pennsylvania Constitution‘s protection of free expression is no broader than its counterpart in the federal Constitution. And, since we have found that the
Accordingly, we hold that neither the United States nor the Pennsylvania Constitutions mandate adoption of the neutral reportage doctrine. The order of the Superior Court is affirmed.
Justice CASTILLE files a concurring opinion.
Justice CASTILLE concurring.
I join the Majority Opinion with the single exception of the discussion in footnote 6 of the fair report privilege, which I believe warrants elaboration for purposes of retrial. I write separately to address two points: (1) my own view of the neutral report privilege; and (2) what role may be played upon remand by the related, but distinct, fair report privilege under Pennsylvania law.
The single issue accepted for review in this discretionary appeal is whether the neutral report privilege is viable in Pennsylvania under either the
If this Court truly were unfettered in its evaluation of the jurisprudential soundness of the neutral report privilege, I believe that there is much to be said, as a theoretical matter, in favor of recognizing a
[W]hen a responsible, prominent organization ... 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 view regarding their validity. What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the first amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.
Id. at 120 (further citations omitted).
The case sub judice involves more than a sensitive issue of public interest or controversy. Here, the article concerned the acrimonious fallout from a special meeting of the Parkesburg Borough Council, and it reported defamatory comments that Glenn, an elected borough councilman, made concerning the elected council president and the borough mayor. Absent some special circumstance (such as editorial adoption or apparent approval of the contents of the reported comments), the purpose for which a newspaper reports and disseminates such information is not the same defamatory purpose existing in the mind of the elected official/speaker. The very fact that, in response to official government proceedings such as the council meeting here, an elected public official would act in
I am concerned also with the practical difficulties the press will encounter in trying to walk the very fine line between accurately reporting public governance-related comments such as these, while avoiding liability for doing so. Absent a privilege, the newspaper may be forced to sanitize the report or resort to vagaries—highly subjective changes which inevitably will operate to mislead the public as to the seriousness or rashness of the accusations. Moreover, by forcing newspapers to recharacterize what actually occurred, the absence of a privilege essentially requires the substitution of editorial opinion for accurate transcription. Such a transformation of the actual event inevitably alters its context and content. In addition to being inaccurate, news reports altered for fear of litigation would be of far lesser value to the general public in learning of and passing upon the appropriateness of the public behavior of their elected officials. Such a stilted reporting regime would contravene the United States Supreme Court‘s seminal statement that “debate on public issues should be uninhibited, robust, and wide-open, and ... may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
Having said this, I nonetheless remain satisfied with the Majority‘s assessment of existing U.S. Supreme Court precedent and its conclusion that this precedent militates against this Court embracing the neutral report privilege. The U.S. Supreme Court has not yet, and may never, embrace the
I also agree with the Majority that, in this particular instance, there is no basis for concluding that a greater protection for the newspaper, in the form of a neutral report privilege, exists under
I write to emphasize that the fact that the applicability of the fair report privilege has not been squarely addressed at the appellate level will not preclude appellants from raising that distinct privilege upon retrial. The fair report privilege is a settled aspect of Pennsylvania law; that the trial court conflated the two doctrines cannot preclude appellants from invoking the doctrine upon remand.
The fair report privilege was embraced by this Court over forty years ago—indeed, even before the decision in New York Times—in Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (1963), which held that:
[A] newspaper has the privilege to report the acts of the executive or administrative officials of government.... If the newspaper account is fair, accurate and complete, and not published solely for the purpose of causing harm to the person defamed, it is privileged and no responsibility attaches, even though information contained therein is false or inaccurate.
Sciandra, 187 A.2d at 588-89 (citations omitted).2 The definition of the fair report privilege adopted by Sciandra derived from Section 611 of the Restatement (First) of Torts:
376 U.S. at 280-81, 84 S.Ct. 710.
The publication of a report of judicial proceedings, or proceedings of a legislative or administrative body or an executive officer of the United States, a State or Territory thereof, or a municipal corporation or of a body empowered by law to perform a public duty is privileged, although it contains matter which is false and defamatory, if it is
(a) accurate and complete or a fair abridgment of such proceedings, and
(b) not made solely for the purpose of causing harm to the person defamed.
Following Sciandra, the fair report privilege became well-established as a part of the free speech law of Pennsylvania. See e.g., Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971) (applying fair report privilege with citation to Restatement (First) Torts); Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 191 A.2d 662, 667 (1963) (analyzing radio station‘s comments about judicial proceeding under Section 611 fair report privilege); Rosenbloom v. Metromedia, 403 U.S. 29, 37-38, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971) (“Pennsylvania law recognizes ... a conditional privilege for news media to report judicial, administrative, or legislative proceedings if the account is fair and accurate, and not published solely for the purpose of causing harm to the person defamed, even though the official information is false or inaccurate.“).
In 1977, the Restatement (Second) of Torts broadened Section 611 to include reports of any official action or proceeding and any meeting open to the public. Notably, the Second Restatement also eliminated the requirement that the publication not be made solely for the purpose of causing harm:
The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.
Restatement (Second) of Torts § 611 (1977). The fair report privilege has continued to be recognized and successfully
In his concurring opinion below, Judge Montemuro described the practical operation of the fair report privilege, as follows:
The privilege may be forfeited by a publisher who exaggerates or embellishes its account of the occasion ... which must be “fair, accurate and complete.” Sciandra, 187 A.2d at 589. Publication of defamatory material solely for the purpose of causing harm to the person defamed results in loss of the fair report privilege. DeMary, [762 A.2d] at 762. Whether a privileged occasion occurred is a matter for the defendant to establish and for the trial court to decide, ... but whether abuse of the privilege has occurred is a question for the jury. DeMary, [762 A.2d] at 763.
The DeMary Court held, albeit in the context of preliminary objections, that the burden of proof borne by a public figure in order to succeed in making out a defamation case against (a) media defendant[] requires two types of malice to be demonstrated. “First, in order to make a prima facie case the plaintiff must show that the newspaper acted with actual malice toward the truthfulness of the statement.” Id. at 765. The actual malice referred to is that which was defined by the Supreme Court of the United States in New York Times v. Sullivan ..., as knowledge of the falsity of
797 A.2d at 298-99 (Montemuro, J., concurring) (emphasis supplied) (additional citations omitted).
Judge Montemuro went on to recognize that the trial judge‘s conflation of the unavailable neutral report privilege with the recognized fair report privilege would not have necessitated reversal in this case if the court‘s actions in ruling on evidentiary questions and instructing the jury would have conformed with the requirements of the fair report privilege; in that instance, the only error would have been one of nomenclature. Ultimately, Judge Montemuro concluded that the distinct nature of the two doctrines rendered the court‘s rulings erroneous under the fair report privilege and thus, he concurred in the award of a new trial.
I agree with Judge Montemuro‘s analysis. With the fair report privilege, assuming a privileged occasion, the question of an abuse of the privilege is for the jury, and evidence of actual and common law malice is admissible. The rulings at trial excluded such evidence; hence, the verdict cannot stand.
With respect to the legal question of whether a “privileged occasion” is at issue for purposes of the fair report doctrine, that is a matter which was not passed upon by the trial court under the proper standard and it is a matter properly left to that court in the first instance—particularly given the limited appellate posture in which the case is before this Court. I am aware that the event at issue here does not fit within the classic expression of the privilege: i.e., the report was not an account of what occurred within the special council meeting itself. Nevertheless, appellants should be permitted an oppor-
Notes
[W]here an article is published and circulated among voters for the sole purpose of giving wha[t] the defendant believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principle matters contained in the article may be untrue in fact and derogatory to the character of the plaintiff; and in such a case, the burden is on the plaintiff to show actual malice in the publication of the article.
This conclusion was incorrect. As noted by Judge (former Justice) Montemuro in his concurring opinion in the court below, the neutral reportage privilege is an animal distinct from the fair report doctrine. Norton, 797 A.2d at 298-99 (Montemuro, J., concurring). The fair report doctrine adopted by Sciandra is a common-law privilege protecting media entities which publish fair and accurate reports of governmental proceedings. At issue here, however, is whether there is a constitutional privilege to publish accounts of statements that were not made in the course of official proceedings.