Although it’s easy — and accurate — to say that reporting the news in Pennsylvania just got harder, that’s not the real story in the pair of defamation opinions recently rendered by the Keystone State’s highest court. Rather, the real story is that the court’s decisions will deny the people of Pennsylvania important information about their elected officials and court system for years to come.
Let’s say, for instance, that Sen. Arlen Specter, R-Pa., a member of the Senate Judiciary Committee, claims in a press conference that Chief Justice William Rehnquist’s thyroid cancer was caused by a “spell” placed on him by Mary Brown, an unemployed Philadelphia woman whom Specter describes as “a known witch and practitioner of voodoo who also is responsible for Vice President Cheney’s frequent chest pains.”
Within seconds, we would expect Specter’s accusations to be breaking news on Web sites, television broadcasts and wire reports around the country, not because anyone believed him but because he had made the outrageous accusations. After the Pennsylvania Supreme Court’s decision in Norton v. Glenn, however, media in Pennsylvania might not run the story, fearful that Brown would seek to solve her financial problems by suing them for publishing false statements about her.
In Norton, the court held that neither the First Amendment nor the Pennsylvania Constitution protects a media entity that knowingly publishes false information about a person. This liability exists, the court said, even if the purpose of the story was to report only that a statement was made and not to suggest that the statement was true. Under the holding in Norton, all Brown would need to show to recover both compensatory and punitive damages is that Specter’s statements were false and that the media entity knew they were false, showings that would easily be made.
Or let’s say a Pittsburgh lawyer files a multi-count class-action lawsuit against a collection of local hospitals, alleging the hospitals conspired to fix prices, require unnecessary tests and deny services to the poor. A newspaper reporter calls the lawyer and asks for a copy of the lawsuit, clarification of certain issues and other comment about the case. The lawyer, fearful of the Pennsylvania Supreme Court’s ruling in Bochetto v. Gibson, declines, as does every other lawyer who’s asked by the reporter to explain the complex issues in the suit. The resulting story mentions the filing of the lawsuit but lacks any meaningful analysis of it. Many readers therefore only skim the story and fail to recognize the lawsuit’s significance.
After the decision in Bochetto, scenarios like this one are hardly far-fetched. In fact, they are likely, as the court in Bochetto held that the protections that prevent lawsuits against lawyers from what they say and write in court do not apply to statements made outside the courthouse. Lawyers in Pennsylvania accordingly now will cooperate and speak with reporters at their peril.
The common thread in Norton and Bochetto is the Pennsylvania court’s willingness to sacrifice the reporting of important events in order to protect reputation. In Norton, the court protected the reputations of a borough council president and a borough mayor, who were alleged by another borough council member to be “queers and child molesters.” In Bochetto, the court protected the reputation of an attorney who had been sued for malpractice. The attorney sued for defamation after the lawyer suing him faxed a copy of the malpractice action to a local newspaper reporter. In both Norton and Bochetto, the court rejected defenses rooted in the public’s right to know, saying essentially that the right to know does not extend to information being provided by sources with potentially impure motives.
In Norton, the court rejected the neutral-reportage privilege, which has been recognized by most of the other courts that have considered the issue. As first enunciated in 1977 by the 2nd U.S. Circuit Court of Appeals in Edwards v. National Audubon Society, the neutral-reportage privilege provides that when a public figure or organization makes serious charges against another, “the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter’s private view regarding their validity.”
The Pennsylvania court, however, called the privilege a “radical notion” and refused to follow Edwards. Instead, the court held that the constitutional protections for the freedom of the press cannot be read so as to protect the publication of claims the media know are false, regardless of how newsworthy the claims might be. Only one of the justices, Ronald Castille, seemed remotely concerned about the effect the holding would have on the reporting of important events — but even he refused to recognize the neutral-reportage privilege.
In Bochetto, the court was slightly more divided, ruling 4-2 that the lawyer who faxed the malpractice lawsuit to the reporter could not invoke judicial privilege as a defense in a defamation action brought against him by the attorney who was the subject of the malpractice claim. Under judicial privilege, which is recognized in Pennsylvania and elsewhere, participants in the legal system cannot be sued for statements made or written “in the regular course of judicial proceedings.” In this case, the majority held, communicating with a reporter by fax was outside the regular course of court proceedings.
The immediate impact of the decision in Bochetto is that the attorney sued for malpractice will be able to pursue a defamation action against the lawyer who sued him, alleging that the claims of malpractice are false and have injured his reputation. The more long-term impact will fall upon the news media and the public, as lawyers involved in litigation likely will refuse to speak with reporters rather than run the risk that their explanations or summaries of their legal positions will subject them to potential defamation liability.
The more cynical among us may see no great loss in a rule that discourages lawyers from speaking with the press. Some also may see an upside to a holding that dissuades the media from spreading outrageous accusations by elected officials. Ultimately, though, those who benefit from restrictions on reporting are those in government who prefer to act beyond public view. And those who suffer, unfortunately, are those who are supposed to have the right to know.