No neutral reportage privilege in Pennsylvania, Supreme Court rules 

In an extremely disappointing decision dated October 20, 2004, the Pennsylvania Supreme Court ruled that there is no neutral reportage privilege in Pennsylvania. The PNA and numerous other state and national media entities filed an amicus curiae (friend of the court) brief with the Court in support of the newspaper.

The neutral reportage privilege, in states where it has been applied, can protect the media from liability for publishing accusations that one prominent person or public official has made against another outside of an official record or proceeding. In order for the privilege to apply, the media must report the accusations as a neutral reporter, and cannot “concur in” or endorse the accusations.

The ruling is likely to have serious consequences for Pennsylvania newspapers. It makes it clear that the media enjoys no special protection when reporting allegations made by one public figure against another when the allegations are: 1) made outside of an official record or proceeding; and 2) when the media knows that the accusations are false or has serious doubts about their truthfulness. 

What does this mean to Pennsylvania newspapers? The facts in the Norton v. Glenn case provide a perfect example of why the Court’s decision is so devastating. 

In Norton v. Glenn, Glenn was a council member in a small town near Philadelphia. Glenn made a number of false, defamatory comments about other town officials, including calling them “queers and child molesters.” the (West Chester) Daily Local News published Glenn’s accusations in an article about Glenn’s disruptive behavior. The emphasis of the article was that Glenn's comments and behavior were significantly interfering with the council's ability to conduct its business. The article also included comments from the other officials denying Glenn’s allegations. The mayor and council president sued Glenn and the newspaper for defamation.

Witnesses at the trial testified that Glenn’s behavior was important to their decision of whether to re-elect Glenn and that they would not have known about the behavior but for the article. In fact, Glenn was defeated in an election held a month after the article was published. The reporter testified that he had serious doubts about the truth of the statements, but reported them because he believed that the public had a right to know that they were made. The jury found in favor of the newspaper and against Glenn, who was not involved in the appeal to the Pennsylvania Supreme Court.

At trial, the jury found that the statements were false, but that the newspaper accurately reported them without concurring in them, rendering them privileged under the neutral reportage privilege. The Superior Court reversed, holding that there is no constitutional or common law privilege for accurately reporting false statements of public officials if the reporter believes that the statements are untrue.

It is important to realize that the comments at issue in Glenn were made outside of a public meeting. There is still a “fair report” privilege, which protects the media from liability where they fairly and accurately report matters that occurred or are contained in official records or proceedings (such as a public meeting or a court complaint). This privilege can be lost if abused, but it does exist in Pennsylvania. The Court has now ruled that there is no neutral reportage privilege when allegations are made outside of an official record or proceeding. Although a plaintiff must still prove “actual malice” when the accusations involve a public official or public figure, this standard may be satisfied where the newspaper knows or strongly suspects that the allegations are false.

Obviously, the decision in Norton v. Glenn is likely to have serious, negative implications for Pennsylvania newspapers. The decision has the potential to affect news coverage of political campaigns, as well as coverage of many public disagreements or accusations by and between public figures.

As acknowledged in Justice Castille’s concurring opinion, this ruling will make newspapers “walk the very fine line between accurately reporting public governance-related comments such as these, while avoiding liability for doing so.” 

So what should a newspaper do? Many newspapers may make the decision to continue to report these types of accusations and events, because they are both newsworthy and important information for the public. When doing so, however, newspaper personnel must understand that if they have “serious doubts” about the truthfulness of any accusations made outside of an official record or proceeding, they are running a substantial risk of liability. 

It’s a difficult time to be a member of the media in Pennsylvania and elsewhere. Reporters are under increasing pressure from the government to turn over source information, the Pennsylvania Supreme Court has ruled that the Shield Law does not protect non-confidential source information, and the courts are regularly interpreting the Sunshine Act and the Right to Know Law in ways that permit and even encourage secrecy in government affairs. The Norton decision is yet another example of this trend. At press time, the PNA does not know how the (West Chester) Daily Local News will respond to the decision. We will update our members as we learn additional information. In the meantime, feel free to call our Legal Hotline at (717) 703-3076 with any questions.

[1] There is still an issue in Norton of whether the fair report privilege applies to Glenn’s comments, which were made outside of, but related to, a public meeting.   On remand, the plaintiffs will also have to prove that the statements were published with “actual malice.”