In 2013, the University of Massachusetts Boston student paper The Mass Media published an article titled, “Have You Seen This Man?” to help local police follow up on a case of a report of the man suspiciously photographing women on campus.
The news report was based upon a police incident report — a traditional source of information important to communities about public safety. Then, upon investigation, police cleared the man and found no reason to issue an arrest warrant. They took no further action against the man.
But then a defamation case was filed against an editor of the paper.
That’s right. An accurate report about a routine police blotter assignment from six years ago has placed one of the paper’s former student editors in the judicial hot seat.
Our question is, should she be?
Usually, information pulled from official government documents (like police blotters) falls under the protection of fair report privilege. A reasonably fair and accurate retelling of the information in a government document is privileged against claims of slander or libel, even if the government document turns out to contain false information.
In this case, the man first identified as a possible suspect sued the school newspaper, saying the news report hurt his standing in the community and led to him losing his job. The trial court ruled for the newspaper.
On appeal, the court reversed, reinstating the man’s claim for defamation and intentional infliction of emotional distress. Why?
Court documents say the decision was based on the grounds that “unofficial talk,” such as blotter reports where no official police action has taken place is not protected by the fair report privilege. The blotter information in question had “neither the authority nor the importance to the public that other documents or statements shielded by the fair reporting privilege possess.”
The requirement for “official police action” is not a well-known requirement. What exactly happened?
Why a Former UMass-Boston Employee Claimed Defamation
The then-unidentified suspect was reportedly taking photos of young women on the UMass-Boston campus, and police were tracking him down for questioning. The blotter described him and stated, “Officers tried to locate the suspect…but could not find him.”
The newspaper included facts from the blotter and directed any tips to the Campus Safety phone line. He was later questioned by police, but they found insufficient cause to arrest him.
The man claimed the article resulted in his supervisors and other peers harassing him to the point of leaving his job at the university.
In the context of concerns about campus assaults, a blotter report like this should have caught the eye of the university’s journalists, because it relates directly to a matter of public concern.
Freedom of the Press and Fair Report Privilege
When journalists and free-press advocates talk about “freedom of the press” under the First Amendment, we refer to the guiding principle that journalists have the right to freely gather news and freely communicate information through their chosen medium of expression.
With that right does come the responsibility of fair and accurate reporting. True journalism should attempt to report information accurately, without bias or censorship, and only after diligent fact checking for the good of the public.
What Is Fair Report Privilege?
If someone publishes or retells the contents of an official public document, as long as the report is reasonably accurate retelling, such retelling is usually protected from liability under fair report privilege.
The privilege applies to publicly available records, official reports, statements released by government officials, and almost any other type of government report or document or statement.
Is Police Blotter Information Protected?
A police blotter is a public book of record where daily police station activities are documented as they happen. Activities are recorded chronologically and contain the most up-to-date details.
Every police-beat journalist across the country researches police incident reports and blotters leads and information because, as courts have time and time again ruled, crime is always a matter of public concern.
The man’s lawsuit has drawn national attention because there is a general consensus in First Amendment circles that the newspaper should be protected from liability in this case, and an appellate court decision from Massachusetts would buck that long-held principle.
A “fair and accurate” reflection of official documents warrants protection. Independent fact-checking of official government documentation would otherwise pose an undue burden on the media.
The Fallout of the Court’s Decision
The broader implications of this ruling if allowed to stand: the media will back away from reporting on police investigations for fears of risking a lawsuit. That’s what the courts call “chilling self-censorship”, which is disfavored under the First Amendment.
It seems Massachusetts Attorney General Maura Healey is inclined to agree. She now represents The Mass Media’s former editor who helped make the decision to publish the article allegedly defaming the UMass-Boston employee.
Healey’s office gave this statement, “Publications of this kind serve important public interests: They alert residents to reports of possible wrongdoing…[and] the activities of local law enforcement agencies…and they may assist law enforcement in completing investigations…”
In other words, the paper was doing its job. Hopefully, AG Healey will be able to sway the next court to continue protecting our journalists’ rights to freedom of the press.
If you are a journalist, publisher, or blogger under scrutiny for publishing what you know to be truthful information, more than ever before, your work is in need of protection.
If you have legal concerns related to freedom of the press in the digital world, avoiding or defending defamation claims, invasion of privacy, or free speech, I can be reached at 904-807-2179 or [email protected].