Protecting “No Surprises” Journalism: Why Courts Should Preserve the Actual Malice Privilege for News Media that Include the Subject’s Response to Allegations of Misconduct

Abstract

The recent onset of the “fake news” era has brought with it a wave of public discussion about the importance of ethical journalism. The sheer volume of misinformation from non-traditional online sources has had the corollary effect of also reducing the trust of many in traditional news sources. This is especially the case when the report involves alleged misconduct or scandal, which stands to potentially benefit opponents of the subject person or organization. Traditional news sources have fought vigorously to both differentiate “fake news” and reinstate public trust in sources committed to ethical journalism. But what exactly is “ethical journalism”? Do recognized legal protections relating to free speech and free press rights at all encourage ethical journalism over tactics used by those peddling fake news? The Society of Professional Journalists summarizes the concept well in providing simply that: “Ethical journalism should be accurate and fair.” A key tenet in ensuring both accuracy and fairness is the principle that a journalist should “diligently seek” out the person or organization that is the “subject” of a developing news report “to allow them to respond to criticism or allegations of wrongdoing.” This principle is referred to by many as the “no surprises rule” because it gives the subject a “fair chance to refute the facts” for publication. The Washington Post goes so far as to say in its current Policies and Standards that “[n]o story is fair if it covers individuals or organizations that have not been given the opportunity to address assertions or claims about them made by others.” It is this fundamental “discipline of verification” that “separates journalism from other forms of communication such as propaganda, advertising, fiction, or entertainment.” According to core principles established by the United States Supreme Court in a line of relevant cases, the free speech and free press rights guaranteed by the First Amendment should incentivize the “no surprises rule” and most often protect news media that include the subject person’s response to allegations of misconduct in the published report. Specifically, in most reports involving a public controversy, the news media defendant should be protected by the “actual malice privilege” in a subsequent libel lawsuit brought by the subject person because such person qualifies as a “limited purpose public figure.” However, a lingering dicta observation made in one Supreme Court opinion in this relevant line of cases has created the potential for confusion on this point. Perhaps even more problematic are two artificial self-defense-based exceptions to the actual malice privilege that have been established in two federal circuits, which remove protection of the news media in many relevant circumstances. These exceptions have only become more confused and conflated as they have spread. Given the increasing need to protect and encourage ethical journalism in the online age, and the recent interest from some members of the Supreme Court in reevaluating the scope of the actual malice privilege itself, consideration of the issue is critical at this time. This Article demonstrates that, in most circumstances involving a public controversy, a news media defendant should be protected by the actual malice privilege in a subsequent lawsuit brought by a libel plaintiff that responded to the alleged false statements in a published report. In sum, this Article shows why such a libel plaintiff should be considered a limited purpose public figure.