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 AJR  Columns :    FIRST AMENDMENT WATCH    

From AJR,   April/May 2005  issue

Merely the Messenger   

A small Pennsylvania paper takes the concept of “neutral reportage” to the Supreme Court


By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

If you've ever heard of the Daily Local News in West Chester, Pennsylvania, it's probably because that's where humor columnist Dave Barry, as he's often reminded his faithful fans, got his first journalism job after he graduated from Haverford College in 1969. But the U.S. Supreme Court might give this small newspaper in a community about 30 miles west of Philadelphia another claim to fame: an opportunity to rewrite the law of libel.

Things must have been pretty contentious at the Parkesburg Borough Council back in April 1995. After a series of what the Pennsylvania Supreme Court as "heated exchanges" between council member William T. Glenn Sr. and council President James B. Norton III, Norton read a statement at a special meeting threatening to evict anyone who disrupted future sessions. Glenn, who was planning to run for reelection, intended to read his own statement at the meeting, but it adjourned before he could do so. However, he gave a Daily Local News reporter a copy of the statement, and the paper ran a story the next day headlined "Slurs, insults drag town into controversy."

The article reported that Glenn's statement claimed Norton and Borough Mayor Alan M. Wolfe were "queers and child molesters." It also reported that Glenn's statement accused Norton of making unwanted homosexual advances toward him. Because Norton had "access to children"--he was a schoolteacher--Glenn wrote that "I now feel that it is my duty to report what has been happening." The article also noted that Norton dismissed Glenn's comments as "bizarre" and expressed the hope that Glenn could "get the help he needs."

Glenn's comments didn't help his reelection bid--he lost. To add insult to injury, Norton and Wolfe were returned to office in the same election.

You might think that having won, Norton and Wolfe would concede that they hadn't suffered any real harm to their reputations and go back to the business of running Parkesburg Borough. But they didn't. They filed a libel suit in state trial court not only against Glenn but also against the Daily Local News; its owner, William Caufield and Troy Publishing Co. Inc.; and the reporter who wrote the story. As Dave Barry would say, I'm not making this up.

The newspaper argued that it shouldn't be held liable for accurately reporting what a council member had said about his fellow officials. It claimed that it was protected by the constitutional privilege of "neutral reportage," first articulated by the 2nd U.S. Circuit Court of Appeals in 1977 in Edwards vs. National Audubon Society.

The idea behind this privilege is simple: The public has an interest in being fully informed about controversies concerning important issues. When a responsible organization makes accusations against a public figure, the press should be able to report them, even if the journalist has serious doubts about their veracity, without worrying about being sued for libel. Therefore, the Daily Local News argued, it should be allowed to report charges made by a public official about other public officials, which would clearly be of interest to voters in the run-up to an election, even though it knew the accusations were hogwash.

The problem was that only a handful of jurisdictions have adopted the neutral report privilege. In October 2004, the Pennsylvania Supreme Court declined to join them.

The opinion by Chief Justice Ralph J. Cappy contended that the First Amendment is all very well, but other interests matter, too. For example, he wrote, the individual's right to a good reputation is so important that it is guaranteed by the Pennsylvania Constitution. Cappy argued that although the U.S. Supreme Court gave the media "considerable protection" against libel suits by public officials, it never granted complete immunity. Instead, it left open potential liability for publishing falsehoods with knowledge that they were untrue--"actual malice." Cappy concluded that the high court would never abandon the actual malice standard nor adopt the neutral report privilege. And he wasn't about to do it in Pennsylvania.

Justice Ronald D. Castille concurred in the majority opinion, but he didn't seem all that happy with it. He acknowledged that when an elected official acts in a "scurrilous manner" and makes unsubstantiated allegations about his fellow council members, that's news. Castille worried that as a result of the ruling, newspapers, fearing libel suits, would "sanitize" their reports, resulting in "highly subjective changes" that might mislead the voters who have to pass judgment on whether to return these characters to office. But, Castille wrote, it's not up to a state court to second-guess the U.S. Supreme Court.

It isn't surprising that the Pennsylvania high court punted on the question. Lower court judges these days are reluctant to venture into uncharted constitutional territory, often out of fear of being labeled "activist" or worse. So in January 2005, the Daily Local News asked the U.S. Supreme Court to review and reverse the case.

Let's hope it does. As Dave Barry might say, "Neutral Reportage" would be a good name for a rock band. And it would be good public policy, as well.

Online Update: After AJR's press time, the Supreme Court declined to hear the case, letting the Pennsylvania Supreme Court ruling stand.