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In a significant setback for journalists and news organizations, the Pennsylvania Supreme Court has ruled that the so-called “neutral reportage privilege” is not recognized under either the U.S. or Pennsylvania constitutions. In Norton v. Glenn, the justices Thursday revived a defamation suit against the publisher of the Daily Local News in West Chester over an April 1995 article that reported on the eruption of a dispute among elected officials in the Borough of Parkesburg, which, according to court papers, quoted one borough councilman accusing the mayor and another councilman of being “queers,” “liars,” “criminals,” “draft dodgers” and “child molesters.” Chief Justice Ralph Cappy, writing for a unanimous six-justice court, found that the trial judge erred in applying the neutral reportage privilege and instead should have submitted the case to the jury under the traditional standard of “actual malice.” “This privilege,” Cappy wrote, “adopts the radical notion that media defendants, in repeating newsworthy comments regarding a public official, will be relieved from liability even where the public official-plaintiff can establish that the media defendants acted with actual malice.” According to the opinion, Councilman William T. Glenn was also quoted in the article as saying that Council President James B. Norton had made homosexual advances toward Glenn, and that Glenn felt he had a duty to inform the public because Norton, who is a school teacher, had “access to children.” Cappy said the article also quoted Mayor Alan M. Wolfe as saying: “If Mr. Glenn has made comments as bizarre as that, then I feel very sad for him and I hope he can get the help he needs.” Wolfe and Norton filed a defamation suit against Glenn, the Daily Local News and reporter Tom Kennedy. When the case went to trial in March 2000, Glenn did not deny making the statements but argued that he was entitled to make them under the immunity granted to high public officials. Chester County Court Judge Thomas Gavin disagreed, finding that Glenn’s accusations, lodged after a public meeting had ended, did not fall within the scope of his office. In its verdict, the jury found that Glenn should pay a total of $35,000 in damages — $17,500 each to Norton and Wolfe. But the newspaper was cleared of any liability. Before the trial, Gavin had ruled that the newspaper was entitled to the protection of the neutral reportage privilege. He instructed the jury that it should exonerate the paper and the reporter if it found that the article accurately conveyed the gist of Glenn’s statements and did not imply that the paper adopted or concurred in those statements. Gavin also ruled that since the privilege applied, the issue of “actual malice” was irrelevant and barred the plaintiffs from presenting any evidence of actual malice. Glenn did not appeal the verdict, but the plaintiffs appealed from the verdict in favor of the newspaper. The plaintiffs won the first round of appeals when a three-judge panel of the Superior Court concluded there was no precedent for recognizing the neutral reportage privilege. As a result, the Superior Court found that Gavin’s jury instructions were wrong and ordered a new trial. Now the state Supreme Court has affirmed the Superior Court’s decision, finding that there is no basis for recognizing the neutral reportage privilege under either federal or Pennsylvania law. In his 17-page majority, Cappy focused first on whether the First Amendment mandates recognition of the neutral reportage privilege. Although the 2nd U.S. Circuit Court of Appeals has ruled the privilege exists under federal law, Cappy found that the 2nd Circuit’s reasoning in its 1977 decision in Edwards v. National Audubon Society Inc. was seriously flawed. In the years since Edwards, Cappy said, the U.S. Supreme Court has never adopted the neutral reportage privilege “or in any fashion declared that a defendant (be it a media defendant or simply a private citizen defendant) will be immune from suit even where the defendant publishes with actual malice.” Canvassing the U.S. Supreme Court’s First Amendment jurisprudence, Cappy found no evidence that the neutral reportage privilege is “a logical extension” of the high court’s decisions. Instead, Cappy found that the U.S. Supreme Court has focused on the actual malice standard, first announced in the 1964 decision in New York Times v. Sullivan. The actual malice standard, Cappy said, provides “considerable protections” to the media in suits brought by public officials by requiring proof that a false statement was published either with knowledge of its falsity or with reckless disregard for whether it was true. “Yet the high court has not declared that the media, because of their special role in our democracy, enjoy a blanket immunity from suit,” Cappy wrote. Instead, Cappy found, the high court has insisted on a balancing of First Amendment rights with an individual’s right to protect his or her reputation, and has concluded that the actual malice standard effectively accomplishes that balancing. “A primary reason for rejecting such a sweeping privilege for the media is the concern that such a privilege would obliterate the states’ power to provide protection, via defamation actions, to a person’s reputation,” Cappy wrote. Cappy predicted that the U.S. Supreme Court will never adopt the neutral reportage privilege. “Existing case law from the U.S. Supreme Court indicates that the high court would not so sharply tilt the balance against the protection of reputation, and in favor of protecting the media, so as to jettison the actual malice standard in favor of the neutral reportage doctrine,” Cappy wrote. Cappy also rejected the newspaper’s argument that the neutral reportage privilege should be recognized under the Pennsylvania Constitution because it provides greater free speech rights than the U.S. Constitution. “The Pennsylvania Constitution’s protection of free speech is no broader than its counterpart in the federal Constitution,” Cappy wrote. “And since we have found that the First Amendment does not encompass this privilege, we conclude that the Pennsylvania Constitution does not as well.” In a concurring opinion, Justice Ronald D. Castille said he agreed that the U.S. Supreme Court has never recognized the neutral reportage privilege, and that “since any innovation in this area would mark a distinct break from the U.S. Supreme Court’s current analytical approach, such innovation should come from the high court.” Castille said he also agreed that there was “no basis to construe the Pennsylvania Constitution separately.” But Castille said he also believes that “there is much to be said” in support of a privilege to “fairly and accurately report on newsworthy events.” Castille said he was worried about the “practical difficulties the press will encounter in trying to walk the fine line between accurately reporting public governance-related comments such as these, while avoiding liability for doing so.” Without the neutral reportage privilege, Castille said, “the newspaper may be forced to sanitize the report or resort to vagaries — highly subjective changes which will operate to mislead the public as to the seriousness or rashness of the accusations.” By forcing news organizations to “recharacterize what actually occurred,” Castille said, “the absence of a privilege essentially requires the substitution of editorial opinion for actual transcription.” Despite those concerns, Castille said he was nonetheless “satisfied with the majority’s assessment of existing U.S. Supreme Court precedent and its conclusion that this precedent militates against this court’s embracing the neutral report privilege.” The Daily Local News’ lawyer, Amy B. Ginensky of Dechert, said she was “very disappointed” by the decision. “The public should be entitled to know as much as possible about elected officials, including what they have to say about one another. By holding the press liable for accurately republishing what one public official has to say about another public official, the court has deprived the citizens of this commonwealth of information they need to make decisions in the voting booth and elsewhere,” Ginensky said. Attorney Geoffrey R. Johnson of Sprague & Sprague, who represented plaintiff Norton, said he is eager to take the case before a second jury in a trial in which he plans to present the plaintiffs’ evidence of the newspaper’s alleged actual malice.

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