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Stephen Fiebiger, left, represents a plaintiff suing Gannett Co. and others, represented by Steven Wells, right. (Staff photo: Kevin Featherly)

Justices review reporting privilege

The Minnesota Supreme Court is pondering if and where to place “bookends” around reporting of news disseminated by public officials.

At issue is the “fair report privilege” which is a qualified privilege to report public communications that has been recognized in Minnesota for over a century. In 2000, the court said that the privilege extends to an accurate and complete report or a “fair abridgement” of events that are part of the regular business of a city council meeting. Now, in Larson v. Gannett Company, et al., the court is asked whether it extends to press conferences and news releases.

The case involves reports of a press conference and news release reporting that officials stated that Ryan Larson was arrested for the murder of police officer Tom Decker. He was not the killer.

The case went to trial in Hennepin County District Court the fall of 2016 and the jury found the statements defamatory but not false. The Hennepin County District Court granted a new trial, but the Court of Appeals reversed. It said that the fair report privilege extends to statements made at an official press conference or in an official press release.

But the Supreme Court apparently was not so sure. Early in the argument Chief Justice Lorie Gildea posited a rule that the privilege applies if the meeting is open under the open meeting law, or the information is public under the Minnesota Government Data Practices Act. That would define an “official proceeding” by reference to what the Legislature says is public, the chief justice said.

“I realize this is probably beyond how this case was briefed but we have to write a rule of law,” Gildea said.

Her suggestion was different from the rule suggested by plaintiff’s attorney Stephen Fiebiger, who said that the privilege applies only when there is an arrest (which there was in Larson) or the case is otherwise “under judicial control.”  Anything beyond official proceedings “goes too far,” he said.

Justice David Lillehaug noted that a press release issued by Stearns County and the BCA said that Larson was booked into jail on murder charges, and asked Fiebiger if that was defamatory.  That could be defamation by implication, the attorney replied.

“So a law abiding conscientious news outlet should not report that sentence?” Lillehaug asked.

At this point in the argument, Gildea suggested that this is why many media outlets have a policy against naming a suspect.

“That’s correct. That’s the problem with releasing the information before the case is under judicial control. Private persons’ right to sue outweighs media right to disseminate [information],” Fiebiger said.

In response to questioning by Justice Natalie Hudson, Fiebiger added that for an official proceeding to be covered by the privilege there must be an opportunity for both sides to be heard, a proposition that the defendants stated in their brief was not supported by case law.

Lillehaug re-entered the discussion, referring to what he called an “almost breathtaking” statement in Larson’s reply brief: “Unscripted questions and answers in a press conference by law enforcement are not covered by the fair report privilege.”

“How is a reporter supposed to know if the statements are scripted or unscripted? Do you have to go up to the official after and ask what the notes say?” Lillehaug asked. Fiebiger said the question and answer part of the press conference was “non-official.”

Content not regulated

When attorney Steven Wells took the podium for Gannett, he emphasized that the top law enforcement officials of the state, county and city convened the press conference for the purpose of disseminating information to the public. The court should hold that substantially accurate summaries or fair abridgements of statements at a news conference or in a press release called by the agency should be subject to the fair report privilege, Wells told the court.

Gildea returned quickly to the issue of bookends, with a hypothetical about a high level official at a public university holding a press conference and revealing private student data. Does the privilege then apply, she asked.

Wells responded that the question is whether the official is authorized and whether the meeting or occasion of the communication was for the purpose of talking to the public.

The court has never said that the fair report privilege depends on the content of the communication, Wells said.

But case law has dealt with public meetings, not press conferences, said the chief justice. “Was all the information public under the Minnesota Government Data Practices Act at the time?” she asked. “Why wouldn’t that be a good bookend?”

Because the underlying purpose of the privilege is to make known to the public what they would have seen or heard had they been there, Wells replied.

Gildea later took the hypothetical another step. “Your position is that even if the official is violating the law, the report is privileged?” Yes, said Wells, if it’s an official action.

The chief justice appeared frustrated. She asked why it is a bad rule to say that the fair report privilege applies only if the information is public under the data practices act. “It cannot be that any press conference called by any high level—that just cannot be the law. We need some bookends.”

What about officials who lie, Lillehaug asked. Wells replied that the Restatement is clear that the actual malice element of defamation goes to the accuracy of the reporting, and not whether what the person said was a lie.

“Let’s say we have an executive officer of the state or federal government who routinely lies. Don’t you want the press to report that? That’s how that officer is held accountable,” Wells said.

The public has a right to hear the government

The fair report privilege is about allowing the press to be the conduit of information but it doesn’t make the media the guarantors of the information, said Jane Kirtley, Silha Professor of Media Ethics and Law at the School of Journalism and Mass Communications

The correlation between the fair report privilege and the data practices act doesn’t work because the data practices law “defaults to privacy” and not to sharing information with the public, Kirtley said.  She does not agree that the privilege should apply only to open meetings but the correlation is congruent because the public policy behind the open meeting law is that when the government speaks, the public has a right to know, she said.

About Barbara L. Jones

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