Even if each of the previous factors has been established, the plaintiff must prove that the defendant is actually at fault for the defamation. The Supreme Court established this final factor as a safeguard against the chilling of the freedom of expression, while also encouraging responsible journalism.
Though the “fault” element can be at issue in private matters, it is most relevant to stories published by the press regarding controversial matters of public interest. It is not just the original source that can be sued for defamation; every contributor to the article’s publication can be held responsible. In fact, because plaintiffs are incentivized to go after defendants with the deepest pockets, it is common for the news organizations, rather than their employed journalists, to pay the bill for bad reporting. Thus news organizations are encouraged to hold their employees to high standards, ensuring that each source has been verified and each fact has been checked.
Nevertheless, due to time constraints and source mistakes, reporters are not always able to confirm each fact before publishing a story. The Supreme Court has acknowledged this unfortunate truth, and established the standard of “Neutral Reportage” as an attempted safeguard. Neutral Reportage means reporting a story in a way that adequately covers both sides of a controversial issue.
In Edwards v. National Audubon Society, the Second Circuit Court of Appeals dismissed a claim in 1977 against the National Audubon Society and the New York Times after they published an article that included criticisms of scientists involved in the prominent DDT debate. Robert Arbib, an amateur ornithologist and publication editor, wrote the Foreword to “American Birds,” a National Audubon Society publication. Immediately following Mr. Arbib’s Foreword, John Devlin wrote an article describing his own findings regarding the debate. Devlin included names and accusations against scientists that he claimed to have heard from Arbib, as well as the rebuttal from the named scientists. While the article included the scientists’ rebuttal, the accused scientists weren't happy about being portrayed as “paid liars” and sued the National Audubon Society and the New York Times.
Though Devlin and Arbib disagreed upon the details of their conversation, the jury found that Arbib did in fact give Devlin the names of the scientists and also made the allegations that the scientists were being paid to misuse published bird count data. However, the district court ruled that Devlin was the party responsible for the defamatory statements because he had acted “recklessly” in failing to adequately investigate the scientists’ defense. Nevertheless, in a somewhat surprising ruling, the court of appeals reversed the decision of the lower court and found Devlin and the NYT not guilty of defaming the scientists. The court stated that “when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporters private views regarding their privilege.”
The Edwards v. National Audubon Society ruling, which essentially established the neutral reportage defense, was a huge victory for reporters and expanded journalistic privilege. However, that does not give reporters free reign; they still have to adhere to the Court’s two standards of fault: 1) actual malice, and 2) negligence. These standards will be discussed in greater depth in the next two posts.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.