Ace N. WRIGHT, Jr., Appellant, v. GROVE SUN NEWSPAPER COMPANY, INC., and State of Oklahoma ex rel. Jon Douthitt, in his individual capacity, Appellee.
No. 77169.
Supreme Court of Oklahoma.
April 12, 1994.
873 P.2d 983
Michael Minnis, David McCullough, Michael Minnis & Associates, P.C., Oklahoma City, for appellee.
OPALA, Justice.
The issues presented on certiorari are (1) Was the republication by Grove Sun Newspaper Company, Inc. [Grove Sun, defendant or newspaper] of material, released by the District Attorney of Delaware County [district attorney or prosecutor] at a news conference called by his office and held at the courthouse, privileged and hence not actionable in a libel claim? and (2) If the material was privileged, could Ace N. Wright, Jr. [Wright or plaintiff] maintain an action for intentional infliction of emotional distress? We answer the first question in the affirmative and the second in the negative. We conclude today that (a) the district attorney‘s news conference was an official function of his office and represents a transaction/occasion to which the common-law fair report privilege will attach; (b) the references to
I
THE ANATOMY OF LITIGATION
On May 11, 1990 the district attorney held a news conference at the courthouse in Jay, the county seat of Delaware County, open to the public and the press. At this event the district attorney discussed a drug investigation previously conducted by his office in Delaware County. With his comments concerning the termination of this investigation, the district attorney distributed to those present an affidavit attesting to the authenticity of a transcript [attached to the affidavit] of a conversation between two undercover narcotic agents who had participated in the probe. Grove Sun published articles in two newspapers2 in Delaware County which included a verbatim transcript of the conversation between the two narcotic agents.3 It is in this transcript that a reference was made to Wright, which he characterized as libelous. Grove Sun did not embellish upon, make any comments regarding, or take editorial license with, the contents of the affidavit furnished by the district attorney. The newspaper asserted below that the material published was a fair and true report of the news conference and was hence privileged.4
Wright filed suit in the Delaware County District Court pressing two causes of action for libel and, as another theory of liability, the intentional infliction of emotional distress. He also advanced a claim against the State of Oklahoma ex rel. Jon Douthitt. The
II
THE ACCURATE AND TRUE REPORTING OF MATERIAL DISSEMINATED ON OFFICIAL PUBLIC OCCASIONS IS CRITICAL TO THE MAINTENANCE OF OUR DEMOCRATIC INSTITUTIONS OF GOVERNMENT.
At issue here is the need in a free, self-governing society for dissemination of information of fundamental importance to the people. Without accurate media coverage of official public events, it is highly doubtful that the general public would be able to make informed decisions and participate intelligently in their governance; nor would representatives of government be able to perform their assigned tasks effectively.8 It is hence against the backdrop of public interest in information concerning public and official activities of government that this case juxtaposes the interest of an individual in protecting his reputation from harm. The tension between the right of the press to disseminate information to the public and the law of defamation is not new. It is mirrored in the eighteenth-century common law of England,9 which developed the fair report privilege—the doctrine we invoke today for application to this case. Without this privilege the media would be compelled to engage in acts of self-censorship10 whenever repub-
III
EXCEPT AS ALTERED BY OUR CONSTITUTION AND STATUTES, THE COMMON LAW REMAINS IN FULL FORCE.
By the mandate of
The provisions of
SINCE THE DISTRICT ATTORNEY‘S COMMENTS AT THE CRITICAL PUBLIC NEWS CONFERENCE DEALT WITH ACTIVITIES OF HIS OFFICE AND WERE OF GENERAL PUBLIC INTEREST, THEY MUST BE TREATED AS OFFICIAL.
The critical district attorney‘s news conference, called at the Delaware County courthouse, is to be treated as an official function of that office. A district attorney‘s participation in and conduct of criminal investigations is explicitly contemplated by Oklahoma statutes.19 The official nature of public activities within a particular office may be divined from its settled practices—regardless of whether these practices are completely defined by written rules or statutes—by resort to the common-law sources reflecting upon that office.20 District attorneys in Oklahoma have historically used press conferences to distribute information about the activities of their offices to the citizenry they represent. Disseminating information to the public21 enhances, within the communities served by the prosecutor‘s office, confidence and understanding of his governmental mission.22 After an objective assessment of the critical occasion at which the comments under scrutiny were made,23 we conclude that the news conference covered by Grove Sun‘s publications was an activity conducted within the penumbra of the official duties of the Delaware County District Attorney‘s office. His comments, together with the materials disseminated, which were of general public interest, must be treated as official because they concern the investigative function of the office.24
V
UNDER THE FACTS REVEALED BY THE RECORD IN THIS CASE THE COMMON-LAW FAIR REPORT PRIVILEGE IS A COMPLETE DEFENSE TO LIBEL.
The elements of the common-law fair report privilege, drawn from the seventeenth and eighteenth century English developments, are defined in the RESTATEMENT (SECOND) OF TORTS § 611. The text of that section is:
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.25 [Emphasis added.]
The privilege26 is not conditioned upon the truth or falsity of the reported material, the character of the defamed person, nor on the newsworthiness of the event; rather, its applicability is determined by the nature of the occasion at which the republished material was secured for news coverage.27 The critical occasion here is the district attorney‘s news conference—a legitimate activity of his office, open to the public and held for the purpose of addressing a matter of general concern to the community. As the privilege is qualified, its abuse and loss would occur if the newspaper does not accurately and fairly republish that which was gathered from a public meeting, or if the republished material is not of general public interest.28
The court of appeals rested its opinion on the neutral reportage privilege.29
While the impetus for invoking the constitutional neutral reportage privilege and the common-law fair report privilege may in some instances be the same, the former rests on fundamental-law underpinnings. It mandates a different allocation of the pleading‘s burden and its scope is broader than that of the latter doctrine.30 We do not reach for discussion today the applicability of the constitutional privilege of neutral reportage recognized by the U.S. Court of Appeals for the Second Circuit. When, as here, the legal relief sought clearly is affordable upon alternative grounds, the common-law fair report privilege, consideration of constitutional challenges is inappropriate in view of our self-erected “prudential bar” of restraint.31
The facts before us clearly establish that the district attorney called a news conference open to the public, whose subject was the conduct of a drug investigation by his office—a matter of general public concern in the community he served—and that Grove Sun accurately and fairly republished the contents of an affidavit distributed as part of his news conference. The record provides abundant support for allowing the publisher its common-law fair report privilege as a complete defense to Wright‘s libel claims.32
VI
COVERAGE BY THE MEDIA OF AN OFFICIAL PUBLIC EVENT IS NOT ACTIONABLE AS AN OUTRAGE IF IT MEETS THE REQUIREMENTS OF THE FAIR REPORT PRIVILEGE.
As an additional theory of liability, plaintiff has asserted a claim based on the intentional infliction of emotional distress.33 For a defendant to be charged with delictual responsibility on this theory, it must be found [by the trial court] that the defendant‘s conduct was so outrageous as to be “beyond all possible bounds of decency” or was to be regarded as “utterly intolerable in a civilized community.”34 Since fair and accurate media coverage of official public occasions is in the highest and best interest of the public, Grove Sun‘s conduct cannot be treated as actionable under this rubric.35 We hence affirm today the nisi prius decision that Grove Sun‘s pleaded conduct is not actionable as an intentional infliction of emotional distress.
THE LEGAL FALLACY OF THE DISSENT
The dissent advances four reasons why Grove Sun should not be afforded the privilege. Three of the arguments are in reality but restatements of the same theme—the district attorney‘s press conference was not official. The remaining argument evidences the author‘s belief that since the common law inherited from England “died” in 1776, American courts must draw precedent only from jurisprudence born on this side of the Atlantic, which incorporates the pre-1776 English common law.36
As a general comment on the dissent‘s cited authority, it suffices to say that it fails to distinguish between the immunity which might be available to the district attorney and the privilege which is the newspaper‘s due. Initially, the dissent analyzes this case solely from the perspective of defamation law and without any regard to freedom of the press. The difference between the status-based immunity of the prosecutor and the transaction-based privilege of the publisher is also ignored. Secondly, there is a failure to perceive the difference between the fair report privilege and the fair comment privilege of the common law.37 The first deals with accurate and fair reporting of public events sans judgmental gloss. The second
The dissent ignores the broad range of media contemplated by the RESTATEMENT (SECOND). It plainly includes not only the press but also radio and television.38 The effect of the dissent‘s position would be that live television coverage of official press conferences of public officials could not be conducted without exposing the station to liability for republication. The authorities which most strongly support the dissent are easily distinguishable upon the facts. Here Grove Sun‘s agents attended a press conference called by the district attorney—an elected public official. Cases most heavily relied upon by the dissent relate to libelous articles based upon information secured by reporters, at the time of arrest or initial incarceration but before any judicial action was taken, from police officers or some unofficial gossip mongers.39 These cases do not address an event in which information was disseminated by an elected public official at a press conference open to the general public. Central to the § 611 privilege we adopt today is that the information was garnered at meetings open to the public and not from private
It is the dissent‘s position that the fair report privilege is but coextensive with the statutory privilege codified in
The dissent depreciates the authority of § 611 by stating that the jurisprudence cited in this opinion to support the RESTATEMENT (SECOND) OF TORTS § 611 does not specifically mention that section of the RESTATEMENT (SECOND). A review of Tentative Draft No. 20 of the RESTATEMENT (SECOND) OF TORTS § 611 will reveal that the authority questioned was in fact relied upon by the RESTATEMENT‘S (SECOND) redactors.
Today‘s opinion carefully balances freedom of the press, the need of the public to be informed, and the individual rights of private citizens to be free from harm to one‘s reputation. While the dissent would have readers believe otherwise, today‘s pronouncement is narrowly limited to situations where the media, sans any trickle of judgmental gloss, republish information disseminated by public officials at press conferences open to the public. It does not address itself to any immunity the district attorney might interpose. Since a fair reading of § 1443.1 does not reveal a clearly expressed intent to abrogate the common-law fair report privilege, now at least a century old, it continues viable and will not be held to have been abridged by the narrower purview of § 1443.1.
VIII
SUMMARY
When, as here, the nisi prius judgment may be supported by any applicable theory, it must be affirmed.43 Both statutes and jurisprudence, when applied to the facts in the record, impel our conclusion that Grove Sun is entitled to the common law privilege of fair report as a complete defense to Wright‘s libel claims. As the interests of both the government and the public are best served when the press can report without chilling circumspection about official public events, if its coverage is fair, accurate and sans judgmental gloss, it cannot be said that media conduct well within the protection of this privilege is actionably outrageous.
ON CERTIORARI PREVIOUSLY GRANTED, THE COURT OF APPEALS’ OPINION IS VACATED AND THE TRIAL COURT‘S DISMISSAL ORDER IS AFFIRMED.
HODGES, C.J., and HARGRAVE, KAUGER and WATT, JJ., concur.
SIMMS, J., concurs in part and dissents in part.
LAVENDER, V.C.J., and ALMA WILSON and SUMMERS, JJ., dissent.
I agree with Justice Summers in that part of his writing which refuses to recognize that a press conference called by a district attorney for the obvious purpose of berating an announced political opponent is an “official function” of the office. To so hold, as does the majority, creates a situation where an incumbent district attorney may speak about any matter remotely connected with his office during his campaign with immunity, while his opponent is not so blessed. Likewise, publication by the media in one instance is protected and not protected in the other.
Nor do Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) and McCormick v. Specter, 220 Pa.Super. 19, 275 A.2d 688 (1971) support this thesis. Richmond deals with the issue of open and public trials, while McCormick treated statements made by a district attorney about a pending investigation in his office dealing with the plaintiff‘s business dealings with the City of Philadelphia. The Pennsylvania court wrote: “Thus, given the great potential for harm, the privilege must be limited to those statements and actions which are in fact “closely related” to the performance of those official duties“. A statement made purely for political purposes does not meet this test.
I believe the majority reaches the correct result, but for a different reason.
In my opinion, the offending statement at issue was, at most, libel per quod, and the appellant was required to plead special damages. The statement is susceptible of both a defamatory and an innocent meaning. There is no indication that Wright was engaged in the sale of drugs, merely that the officers were “trying” to make a buy. This statement, standing alone, does not impute a crime to Wright, nor is the statement susceptible of but one opprobrious meaning.
I would therefore affirm the trial court.
SUMMERS, Justice, concurring in part and dissenting in part:
I respectfully concur in part and dissent in part. The fair report privilege1 does not protect the news conference and press release for four reasons. First, the District Attorney was not acting in his official capacity when he held the press conference. Second, the common-law fair report privilege has never been construed broadly enough protect press releases which are not based on official reports. Third, the fair report privilege as expressed in the Restatement (Second) of Torts, Section 611, should not cover a press release which was not based on an official report. Fourth, Oklahoma‘s statutory enactment of privilege in
Suit was brought by Ace Wright, a private individual not connected with the district attorney‘s office or the police department. His claim arose from a press conference called by the District Attorney, in which the District Attorney released a written statement of a private telephone conversation between two police officers. The conversation was NOT excerpted from any official report or judicial proceeding. It was simply two officers talking informally about future plans for an investigation. Charges were not filed against
Wright insists that the District Attorney‘s purpose in calling the press conference was to discredit his political opponent. The news conference and press release apparently occurred during a heated election battle for District Attorney. The press release focused on the halt of an drug investigation. The District Attorney was not commenting on an ongoing investigation, but was attempting to shift the blame for the halted investigation to his political opponent.
I. THE OFFICIAL DUTIES OF THE DISTRICT ATTORNEY
First, the acts of the district attorney of holding the press conference were in no way related to his official duties. Since he was not acting his official capacity, the privilege cannot apply. Kirby v. Pittsburgh Courier Publ. Co., 150 F.2d 480, 482 (2nd Cir.1945); Wood v. Constitution Publ. Co., 57 Ga.App. 123, 194 S.E. 760 (1937).
In Short v. News-Journal Co., 58 Del. 592, 212 A.2d 718 (1965), a news release of the chief of delinquent accounts of the IRS was considered privileged. There, however, the chief was directly responsible—under regulations of the IRS—to release enforcement news to enhance compliance with tax laws and regulations. Relying on Section 611, the court found this to be within the privilege because one of the enumerated duties of the chief was press releases.
The duties of a district attorney are expressly set forth in
I have found no Oklahoma case which supports the majority‘s position that it is an official duty of the district attorney to hold press conferences for political purposes. While in some instances a press conference might fall within the boundaries of the enunciated duties, it did not in the present case.2 There was no ongoing investigation or prosecution. There was no completed prosecution upon which the district attorney was commenting. There is no indication in the record that the district attorney was seeking to revive a past investigation or contemplating the filing of charges. He was simply trying to win an election.
Magness v. Pledger, 334 P.2d 792, 795 (Okl.1959) supports this position. There, this Court was faced with the question of whether a petition by a citizen to the Attorney General was a privileged report. The petition alleged wrongdoing on the part of county officials. In holding that the petition was not privileged, we relied on the fact that the Attorney General was not charged by statute with the duty of investigating allegations by citizens. The powers and duties of the Attorney General are “not unlimited and do[] not extend to matters beyond the power, authority and duties conferred....” Id.
In Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980) cert. denied 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1980), the Fifth Circuit explained the duties of a prosecutor and defined the boundaries of absolute immunity with regard to a civil rights suit. The facts showed that a search warrant was executed at the plaintiff‘s place of business. The assistant district attorney accompanied the police officers to execute the warrant, and all the jewelry in the store was seized even though only one item was possibly sto-
Here, the prosecutor was acting in the absence of a case being filed. There were no ongoing judicial proceedings against the plaintiffs. Because the statements were not “intimately associated with the judicial phase of the criminal process,” his statements to the press were extrajudicial, and thus not entitled to absolute immunity. Id. at 506, quoting Imbler, 424 U.S. at 430, 96 S.Ct. at 995.
Likewise, in Catalano v. Pechous, 69 Ill.App.3d 797, 25 Ill.Dec. 838, 846, 387 N.E.2d 714, 722 (1st Dist.1978) cert. denied 451 U.S. 911, 101 S.Ct. 1981, 68 L.Ed.2d 300 (1978), the court found that to be entitled to protection under the fair report privilege, the official must be acting in matters legitimately connected to and drawn from official responsibilities. Id. 69 Ill.App.3d at 806-807, 25 Ill.Dec. at 846, 387 N.E.2d at 722. There, the city clerk was held to be acting outside official duties when he made statements to the press about a public meeting. Even though the clerk‘s duties included keeping records to be made available to the public, his comments were outside the scope of the statutory duties. He was thus not entitled to rely on the fair report privilege.
II. The Common Law Privilege of Fair Report
A. English Doctrine
The historical notions of privilege date as far back as 1559, wherein courts held privileged certain statements made in the course of judicial proceedings. Croke v. Grene, K.B. 27/1190, m. 60 (1559); see Select Cases on Defamation to 1600 (Selden Society 1985).4 In England, as the idea of privilege emerged, it took the form of protecting news reports of court trials. Curry v. Walter, 126 Eng.Rep. 1046 (C.P.1796); Dawkins v. Rokeby, L.R. 7 Q.B. 744 (1875); see generally Levy, Emergence of a Free Press. (1985). The fair report privilege, as it became known, was later extended to parliamentary accounts and debates. King v. Wright, 101 Eng.Rep. 1396 (K.B.1799); Wason v. Walter, L.R. 4 Q.B. 73 (1868). When it became apparent that the courts were unwilling to extend the fair report privilege beyond those instances already covered, the Parliament enacted legislation to privilege reports of official meetings lawfully convened. See Sowle, Defamation and the First Amendment: The Case for a Constitutional Privilege of Fair Report, 54 N.Y.U.L.Rev. 469, 478 (1979) (hereinafter cited as Defamation and the First Amendment).5 Again in 1952, the Parliament ex-
Contrary to the assertion in the majority opinion, I have found no cases in which a press release containing the transcript of a non-public conversation was held privileged.6 In fact, as the majority notes, the underlying basis of the fair report privilege is that the press, as an agent of the public, should be permitted to print reports of those events open to the public. Here, the telephone conversation was not open to the public nor were its contents part of any official proceeding. It was not part of a judicial or legislative record. It was simply the written statement of a telephone conversation. The policies behind the English fair report privilege do not lend support for its extension into this new area.
B. American Privilege of Fair Report
Since the English doctrine of fair report privilege was not in existence until after the settlers of the colonies had arrived in America, the states did not accept in total the English privilege of fair report. Thus, the fair report privilege, as developed by American courts, is similar to but not an exact mirror of the English doctrine. D. Dobbels, Edwards v. Nat‘l Audubon Society, Inc.: A Constitutional Privilege to Republish Defamation Should Be Rejected, 33 Hastings L.J. 1203, 1205 n. 16 (1982) (hereinafter cited as Edwards v. Nat‘l Audubon); V. Harper, F. James and O. Gray, The Law of Torts, §§ 5.23 and 5.24 (2d Ed.1986). The policies behind the privilege are consistent with those enunciated by the English courts: to accommodate the public and social interest in the availability of information about official proceedings and meetings. See Edwards v. Nat‘l Audubon, at 1207. Each state has determined whether the privilege is applicable and to what extent.7 However, only a minority of jurisdictions have extended the privilege to a public, non-official proceeding.8 Most have held the privilege to be much more narrowly proscribed than is urged by the majority opinion. To avoid the swallowing of the law of libel, most courts recognize strong limitations on the privilege. The majority opinion casts aside this concern, and leaves private individuals without a remedy for defamation, even when the defamation does not arise from an official proceeding.
In most jurisdictions, the extent of the privilege has been decided by the legislature. Many states have enacted legislation similar to that in Oklahoma, and hold that to be the
As for the situation presented in this case, courts generally hold that informal police remarks are not privileged because “extrajudicial defamation of the citizenry by the police is not a vital process of democratic government.” The Law of Torts, at 206. Further, the fact that the conversation was later transcribed into written form does not make it privileged as an “official” document.
In McAllister v. Detroit Free Press Co., 76 Mich. 338, 43 N.W. 431 (1889), the court held that newspaper articles were not privileged. A citizen had been arrested for the illegal sale of stamps; he was later released and the charges dropped. The reporter published two articles about the arrest, noting that earlier there had been a crime involving the stealing of stamps. The court remanded the case for a trial:
[T]he reporter of a newspaper has no more right to collect stories on the street, or even to gather information from policemen or magistrates out of court, about a citizen, and to his detriment, and publish such stories and information as facts in a newspaper, than has a person not connected with a newspaper to whisper from ear to ear the gossip and scandal of the street. If true, such publication or such speaking may be privileged, but, if false, the news-
paper as well as the citizen must be responsible to any one who is wronged and damaged thereby. Id. 43 N.W. at 437.
This is the general rule: Statements made by police officers in a preliminary investigation are not privileged, nor are informal statements made by prosecutors in interviews or press releases.10 In Yerkie v. Post-newsweek Stations, Michigan, Inc., 470 F.Supp. 91 (D.Md.1979), the plaintiff brought a defamation action for a report alleging criminal conduct. The federal district court held that the privilege did not apply to statements of the prosecuting attorney which were not yet part of a judicial proceeding:
While a privilege applicable to reports of official proceedings applies to a report of the fact of arrest or the fact that a charge has been made, it does not apply to statements made by the police, by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or evidence expected to be given which have not yet been made a part of the judicial proceeding or of the arrest process. See Restatement (Second) of Torts, Section 611, Comment D. In the instant case, there was never an arrest or judicial proceeding and the qualified privilege relating to the reports of such proceedings is not applicable.
Id. at 93-94. The court continued by stating United States Supreme Court had forbidden
In Phillips v. Evening Star Newspaper, 424 A.2d 78 (D.C.Ct.App.1980) cert. denied 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1980), a private citizen brought suit for defamation resulting a newspaper article which stated that he shot his wife during a quarrel. In fact, the shooting was accidental. The article was based on a “hot line” dispatch from the police. The court held that the newspaper could not rely on the fair report privilege. Id. at 88. Relying on the comments in the Restatement (Second) and Section 611, the court held that this was not an instance in which the privilege applied. Public policy behind the privilege did not extend to this type of situation:
This log representing the oral police communication from which the Star composed its article does not carry the dignity and authoritative weight as a record for which the common law sought to provide a reporting privilege.
Id. at 89. See also Colpoys v. Gates, 118 F.2d 16 (D.C.Cir.1940) (U.S. Marshall was not privileged in making a press release)
One respected treatise explains the reasons which such communications should not be privileged as fair report:
In the constantly growing state executive bureaucracies and in the sprawling county and municipal governments there are many inferior officials who are political hacks with little, if any, real sense of social responsibility. Giving such persons a conditional privilege to defame an innocent person may given them the power to destroy him because of his inability to prove that the conditionally privileged occasion was abused . . . When the inferior state official, or the municipal official, makes a report to a superior, in the performance of
his duty, the number of persons who hear or read the defamation is limited and they are, presumably, interested in receiving accurate reports. A serious defamatory charge is likely to be kept confidential and may result in further investigation and correction of the falsehood. The situations which are devastating, and can irreparably harm a person‘s good name are those in which there is publication to person who have no duty to keep the information confidential or to take official action with respect to it . . . The issuance of press releases by inferior official, on their own authority, should not be considered as a publication in the performance of official duties. A press release may be read by millions. A ruling that there is a conditionally privileged occasion for an inferior official to hand out a press release is a temptation to publicity-hungry little men and women which many will be unable to resist. Sound public policy does not require this shield of protection. It is to be hoped that the courts will not hesitate, except in an extraordinary case, to rule that the inferior officials press release is no part of the performance of his official duties.
L. Eldredge, The Law of Defamation 504-505 (1978). Accord. W.P. Prosser et al., Prosser and Keeton on Torts, § 114 (5th Ed.1984).
Based on these views, I do not agree that the district attorney‘s press release was privileged under the American common law. It is not the type of statement which requires protection to ensure the public‘s right to information. It was not contained in a formal report filed by the police, nor filed in any court proceeding. The statement of the district attorney would have been just as persuasive had the name of Ace Wright been omitted to protect his reputation.12 As an
III. RESTATEMENT (SECOND) OF TORTS, SECTION 611
The majority opinion also relies on the Restatement (Second) of Torts, Section 611 as justification for the extension of the fair report privilege to the present case. However, the comments following Section 611 expressly reject the idea that the privilege extend to the press releases dealing with non-official business.
As the majority correctly states, Section 611 states that reports of “official action or proceeding or of a meeting open to the public that deals with a matter of public concern” are privileged. But comment (h) following Section 611 makes clear that the Restatement does not contemplate the extension of the privilege to instances like those present in our case:
h. Arrest. An arrest by an officer is an official action, as a report of the fact of the arrest or of the charge of the crime made by the officer in making or returning the arrest is therefore within the conditional privilege covered by this Section. On the other hand statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceeding or of the arrest itself and are not privileged under this Section. (Emphasis Added)
In Phillips, supra, the court relied on comment (h) to hold that the police “hot line” was not an official report so as to fall within the privilege. Quoting directly to Section 611
Likewise, in Kelley v. Hearst Corp., 2 A.D.2d 480, 157 N.Y.S.2d 498 (1956), the defendant newspaper asserted the fair report privilege. In remanding the case, the court relied on Section 611 as an accurate statement of New York law regarding the privilege. However, the court continued by pointing out that mere investigations and suspicions of police officers are not “official proceedings” so as to be privileged. In Kelley, the article stated that “police said” the plaintiff had threatened to kill his wife. However, the statements were not shown to be in an official report, and thus they were not necessarily privileged. See also Heard v. Neighbor Newspapers, Inc., 259 Ga. 458, 383 S.E.2d 553 (1989) (construing a similar statutory provision, court held that statement contained in report of an investigator of the Dept. of Human Resources was not privileged); Hyde v. City of Columbia, 637 S.W.2d 251 (Mo.Ct.App.1982) cert. denied 459 U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1982) (victim‘s name released by police to the newspaper was held not privileged because it was not part of an official report or judicial proceeding yet).13
The majority adopts a broad view of Section 611, and cites several cases as authority
Furthermore, only a minority of states have opted for such a broad interpretation of the privilege to cover meetings of “public concern.”14 Generally, states have declined to follow the sweeping implications of the Restatement (Second) and refuse to extend the fair report privilege to these occasions. See e.g., Yerkie v. Post-newsweek Stations, supra; Venn v. Tennessean Newspapers, Inc., 201 F.Supp. 47 (N.D.Tenn.1962); Jones v. Neighbor Newspapers, Inc., supra.
IV. The Statutory Privilege and the Common Law
The majority asserts that the statute dealing with privilege,
The privilege of fair report as defined in Section 1443.1 has been part of Oklahoma‘s statutory law since 1910. Rev.Laws 1910, § 2381. The form of the statute has remained substantially the same over the years.15 The statute restates the fair report privilege as understood and adopted by a majority of the states. See, e.g.,
The American common law has never permitted the fair report privilege to encompass
Our statute expressly lists the instances in which a publication is privileged. It is simply a codification of the law which has always been followed in Oklahoma. See Cobb, supra; Spencer v. Minnick, 41 Okla. 613, 139 P. 130 (1914).
CONCLUSION
Any one of these four reasons would compel me to reject the majority‘s invocation of the fair report privilege to affirm the trial courts’ dismissal. I would reject applicability of the neutral reportage privilege for the reason that Ace Wright is admittedly a private person, and that court-created privilege, even in the few jurisdictions that have adopted it, applies only to suits brought by public figures. See Law Firm of Daniel P. Foster, P.C. v. Turner Broadcasting System, 844 F.2d 955, 961 (2nd Cir.1988). I would
I concur that the trial court correctly dismissed Wright‘s claim based on the tort of outrage.
I am authorized to state that Vice Chief Justice LAVENDER joins in these views.
SOUTHWESTERN BELL TELEPHONE COMPANY, Petitioner, v. OKLAHOMA CORPORATION COMMISSION, Respondent.
No. 80579.
Supreme Court of Oklahoma.
April 13, 1994.
Notes
“The English-speaking people brought the common law to America with them, in the first settlement of the colonies . . . and such of the English statutes adopted prior to the settlement of our colonies as were of general application, and suit to our conditions.... [W]hen people from all parts of the United States on the 22d day of April, 1889, settled the country known as Oklahoma, built cities, towns, and villages, and began to carry on trade and commerce in all its various branches, they brought into Oklahoma, with them, the established principles and rules of the common law, as recognized and promulgated by the American courts, and as it existed when imported into this country by our early settlers, and unmodified by American or English statutes. (Emphasis Added).
See also Meyer v. White, 79 Okla. 257, 192 P. 801 (1920); Creekmore v. Redman Ind., Inc., 671 P.2d 73, 76-77 (Okl.Ct.App.1983).
Thus, in the present case, the American common law is that which is relevant. English common law in the area of the fair report privilege serves only as a helpful backdrop. This view—the one followed by this Court—is in line with the holdings of a majority of jurisdictions. See, e.g., State v. Criqui, 105 Kan. 716, 185 P. 1063 (1919); Hannah v. State, 212 Ga. 313, 92 S.E.2d 89 (1956); Cooper v. Runnels, 48 Wash.2d 108, 291 P.2d 657 (1955). For a summary of states following this view, see 15 C.J.S. § 4 and 13.
“[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.” See Pinn v. Lawson, 72 F.2d 742, 744 (D.C.Cir.1934) (church meeting); Morin v. Houston Press Co., 103 S.W.2d 1087, 1090 (Tex.Civ.App.1937) (campaign speech).
In WDAY the Court addressed, in the context of the Federal Communications Act, the question whether a radio station should be extended a privilege from liability for airing the speeches of political candidates when the speech of one of the candidates was libelous of the other candidates. Extending a privilege to the radio station, the court observed: “Quite possibly, if a station were held responsible for the broadcast of libelous material, all remarks even faintly objectionable would be excluded out of an excess of caution.” Id. 360 U.S. at 530-32, 79 S.Ct. at 1306. It would not be in the public interest to require the media, before printing the publicly disseminated material, to test the truth or falsity of records and statements made available to the community by public officials in order to avoid the costs and time of defending libel suits. To do so would invite “timidity and self-censorship” and would have a chilling effect on the press, ultimately leading to the suppression of information necessary to the vitality of our democratic institutions. See Cox, supra note 8, 420 U.S. at 494-96, 95 S.Ct. at 1046. See also, Kathryn Dix Sowle, Defamation and the First Amendment: The Case for a Constitutional Privilege of Fair Report, 54 N.Y.U.L.REV. 469, 476 (1979). Lancour v. Herald & Globe Ass‘n, 111 Vt. 371, 17 A.2d 253 (1941) (a preliminary police investigation is not privileged); Burrows v. Pulitzer Pub. Co., 255 S.W. 925 (Mo.App.1923) (article was not privileged even though there was a written police report because the news in the article was obtained from a desk sergeant); Houston Chronicle Pub. Co. v. Bowen, 182 S.W. 61 (Tx.Ct.App.1915) (newspaper published article about plaintiff being held for a murder and court held the article not privileged because not based on documents filed in an official proceeding authorized by law); Kelly v. Independent Publ. Co., 45 Mont. 127, 122 P. 735 (1912) (article not privileged because it was based on oral reports of a sheriff before any charges were filed); Billet v. Times-Democrat Pub. Co., 107 La. 751, 32 So. 17 (1902) (neither common convenience nor the interests of society require that the suspicions of police officers be published to the world and thus, such suspicions whether written or oral are not privileged); Jastrzembski v. Marxhausen, 120 Mich. 677, 79 N.W. 935 (1899) (information given by a police officer, but not contained in a court file was not privileged). See also The Law of Torts, supra.
“The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma....” Here, the majority opinion states that because the district attorney‘s statement was of public interest, it was privileged. The United States Supreme Court, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) expressly rejected a similar argument, and held that newsworthiness was not an adequate criteria to warrant the publication of material. Although Gertz did not address the “public interest” idea with regard to fair reporting, it specifically held that constitutional protection could not be based on the public‘s interest in a newsworthy story.
“A. A privileged publication or communication is one made:
First. In any legislative or judicial proceeding or any other proceeding authorized by law;
Second. In the proper discharge of an official duty;
Third. By a fair and true report of any legislative or judicial or other proceeding authorized by law, or anything said in the course thereof, and any and all expressions of opinion in regard thereto, and criticisms thereon, and any and all criticisms upon the official acts of any and all public officers....” Comment (d) states that the privilege applies to official proceedings such as judicial proceedings, reports of executive officers, reports of legislative officers. However “[i]t it not clear whether the privilege extends to a report of an official proceeding that is not public or available to the public.” Another comment in the Restatement urges that the doctrine be extended to cover any meeting of public concern. However, this idea has met with criticism. One commentator has suggested that the Restatement does not accurately define the privilege, but extends it well beyond the boundaries accepted by American courts. F. Harper, F. James and O. Gray, The Law of Torts § 5.24 (2d Ed.1986). Furthermore, no court, until today, has extended it to this level.
“The district attorney may at all times request the assistance of district attorneys, assistant district attorneys or district attorney investigators from other districts who then may appear and assist in the prosecution of actions for crime or assist in investigation of crime in like manner as assistants or investigators in the district.” [Emphasis added.]
“[T]here are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security.” Id. at 378. [Emphasis supplied.]
“The conduct of a press conference does not involve the initiation of a prosecution, the presentation of the state‘s case in court, or actions preparatory for these functions. Statements to the press may be an integral part of a prosecutor‘s job . . . and they may serve a vital public function. But in these respects a prosecutor is in no different position than other executive officials who deal with the press, and . . . qualified immunity is the norm for them.” Id. — U.S. at —, 113 S.Ct. at 2618. [Emphasis added.]
“What is usually required is that the publication shall be substantially accurate; and if the article is published by the newspaper in good faith and the same is substantially accurate, the newspaper has a complete defense.” Id. 236 S.E.2d at 25.
In McAlister v. Detroit Free Press Co., 43 N.W. 432, 484 (Mich.1889), the source of the reporter‘s data was an overheard conversation between the chief of police and a magistrate. In Burrows v. Pulitzer Pub. Co., 255 S.W. 925, 930 (Mo.1923), the reporter‘s source was a desk sergeant. In Kelly v. Independent Pub. Co., 45 Mont. 127, 122 P. 735, 737-38 (1912), the information was garnered from the sheriff‘s office and the court specifically found that the report did not emanate from an official public proceeding upon which the privilege could have been founded. In Jastrzembski v. Marxhausen, 76 N.W. 935, 937 (Mich.1899), the reporter secured statements from parties to the incident and this was the basis for the newspaper article; there was no reliance on information disseminated by a public official. The court in Phillips, note 37, recognized the fair report privilege as applicable to “reports of any official proceeding or action taken by any officer or agency of government“. Id. at 88. The developed facts in Phillips did not require the application of privilege.