SCOTUS gets defamation appeal

Labeling the state Supreme Court’s Larson v. Gannett defamation decision double jeopardy for journalists, lawyers have petitioned to kick the case upstairs.

Counsel for Gannett Co., Gannett Satellite Information Network Inc., KARE-11 television and the St. Cloud Times newspaper petitioned for a writ of certiorari with the U.S. Supreme Court on Aug. 27. Minnesota Lawyer obtained a copy last week.

The 39-page brief argues that even though a District Court jury found news reports about a 2012 Cold Springs cop killing were substantially accurate, the state Supreme Court remanded the case for a new trial to decide whether that coverage also was fair and accurate under the fair report privilege.

“I think it’s a really important case,” said Steven J. Wells, the media group’s counsel of record in the case. “I mean, it’s kind of like double jeopardy for the press.”

The Larson case has a convoluted history. It stems from false allegations, made by police in a news conference and press release, against Ryan Larson. Police told the media that Larson was suspected in the ambush murder of Cold Springs Police Officer Tom Decker. However, authorities later determined that Larson had not killed Decker.

Larson sued the media companies, which argued in District Court that the long-recognized fair report privilege protects their accurate accounts of what law enforcement told them. For his part, Larson argued—erroneously—that police never made the statements.

A jury found the statements substantially accurate and Hennepin County District Court Judge Susan Burke initially entered a judgment for defendants. But she later changed her mind and ordered the case retried, holding that the falsity inquiry must focus on the media’s underlying statements—that Larson murdered the officer. Those, she ruled, were false as a matter of law.

The state Court of Appeals reversed, saying the privilege applies to statements gleaned from law enforcement news conferences and press releases. By finding the reporting accurately reflected police comments, that court ruled, the jury showed the reports were fair and accurate.

“Thus, the district court erred when it determined, in its post-trial order granting Larson judgment as a matter of law, that the fair-report privilege ‘does not apply to this case,’” Judge Diane Bratvold wrote for the Court of Appeals.

The state Supreme Court, while recognizing that the privilege extends to law enforcement statements, nonetheless remanded the case back for a new trial. A jury must take the case back and decide if the reports were fair and accurate under the fair report privilege, the 5-2 majority ruled.

In their petition for cert, Wells and co-counsel Timothy Droske and Nicholas Bullard, are asking the U.S. Supreme Court to review that decision. “That ruling violates the First Amendment and compels this court’s correction,” the petition states.

The lawyers’ brief poses one primary question: If a District Court jury has already found media coverage to be accurate—and therefore not false—can an appellate court then remand and order the jury to consider, as a separate matter, whether those same reports were also fair and accurate under the fair report privilege?

‘Chilling effect’

The “fair report privilege” is a qualified civil protection that allows news media to report on government communications without fear of being sued. It has been recognized in Minnesota for more than a century.

In 2000, for example, the state Supreme Court said the privilege extends to an accurate and complete report, or “fair abridgement,” of events that are part of regular business during city council meetings.

In Gannett, the state Supreme Court was asked whether that privilege extends to law enforcement press conferences and news releases. They ruled it does, but still sent the case back for trial to weigh the news reports’ fairness and accuracy against the privilege—a reversal of the Court of Appeals’ holding.

In essence, Wells argues, the state’s highest court has taken a civil privilege traditionally seen as an extra layer of media defamation protection, and converted it into a cudgel.

“What the Minnesota Supreme Court has said is, essentially, we’re going to use this doctrine to force you to go through this procedure—even though the jury has already found that the reporting was correct,” Wells said.

Or, as his petition phrases it, “The fear of a defendant being forced to win on the same issue twice, against two different juries, at a high litigation costs, and at the risk of inconsistent verdicts, will have a chilling effect on the news media.”

That would force reporters to painstakingly sift through government pronouncements and withhold any arguably unlawful material, the petition says. “This ‘chilling effect’ will be the new normal in the state unless corrected by this court now,” it says.

Many states and the American Law Institute’s 1977 second Restatement of Torts hold that publishing defamatory information is privileged if it comes from open meetings or other official government actions or proceedings. The only requirement is that the report must be “accurate and complete or a fair abridgment of the occurrence reported.” Wells said the District Court jury found that to be true in Larson’s case.

An abundance of federal case law, including the U.S. Supreme Court’s landmark Times v. Sullivan decision, likewise makes clear that liability can’t be imposed in the Larson case, Wells said.

“The fact that the jury has already decided that the statements are accurate precludes us from having to go back and re-litigate the exact same question—and it is the exact same question,” Wells said. “That’s what violates the First Amendment.”

Wells said the cert petition is on the docket to be considered during the U.S. Supreme Court’s Oct. 9 conference. There justices could either decide to accept the case, reject it, or call for a response from Larson.

Wells said that Larson’s legal team has filed a response waiver, inviting justices to consider it at conference without their reply brief.

However, with the recent death of Justice Ruth Bader Ginsburg, Wells said it is possible that consideration of his writ could be postponed to a later conference.