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Fair Report 50-State Survey

Edited by: Christopher Proczko, Sapientia Law Group; Lily Roos, CBS News and Stations; and Lauren Russell, Ballard Spahr LLP

The Fair Report Survey 50-State is a state-by-state guide to the idiosyncrasies of the fair report privilege. Dozens of media law attorneys from around the country contributed to this project by researching the privilege across all 50 states and the District of Columbia, focusing on four aspects of each state’s version of the privilege:

  1. Does it cover press conferences and statements by public officials?
  2. Does it cover investigatory and law enforcement materials?
  3. Does it cover sealed and confidential materials?
  4. Is it absolute or qualified?

The Fair Report Survey distills their findings into an easy-to-read chart designed to give a big picture view of how the privilege operates in each state. But the full story is always more nuanced, so be sure to check out additional context, cases, and statutes in hyperlinked research pages.

StatePress Conferences
and statements by public officials?
Investigatory and Law Enforcement Materials?Sealed/Confidential Materials?Absolute or Qualified?*
AlabamaNoYesNoQualified
AlaskaUnclearYesUnclearQualified
ArizonaYesYesNoAbsolute
ArkansasYesYesUnclearQualified
CaliforniaYesYesYesAbsolute
ColoradoUnclearNoUnclearQualified
ConnecticutUnclearYesUnclearQualified
DelawareYesYesUnclearQualified
District of ColumbiaUnclearYesYesQualified
FloridaYesYesUnclearAbsolute
GeorgiaYesYesUnclearQualified
HawaiiUnclearUnclearUnclearUnclear
IdahoUnclearYesUnclearQualified
IllinoisYesUnclearNoAbsolute
IndianaYesUnclearUnclearQualified
IowaUnclearUnclearUnclearQualified
KansasYesYesUnclearQualified
KentuckyNoUnclearUnclearQualified
LouisianaYesYesUnclearQualified
MaineNoNoNoN/A
MarylandYesYesUnclearAbsolute
MassachusettsYesYesYesQualified
MichiganYesYesNoAbsolute
MinnesotaYesNoNoAbsolute
MississippiYesYesUnclearAbsolute
MissouriYesYesUnclearLikely Absolute
MontanaUnclearNoUnclearLikely Qualified
NebraskaYesYesUnclearUnclear
NevadaYesYesNoAbsolute
New HampshireYesYesUnclearQualified
New JerseyYesYesNoQualified
New MexicoUnclearYesNoLikely Absolute
New YorkYesYesYesAbsolute
North CarolinaYesYesUnclearUnclear
North DakotaUnclearUnclearUnclearQualified
OhioYesYesYesQualified
OklahomaYesUnclearNoAbsolute
OregonUnclearUnclearUnclearQualified
PennsylvaniaYesYesYesQualified
Rhode IslandYesUnclearNoQualified
South CarolinaYesYesUnclearQualified
South DakotaNoNoUnclearQualified
TennesseeUnclearNoNoAbsolute
TexasYesUnclearUnclearQualified
UtahYesUnclearUnclearQualified
VermontNoNoUnclearQualified
VirginiaUnclearUnclearUnclearQualified
WashingtonNoYesUnclearQualified
West VirginiaUnclearUnclearUnclearQualified
WisconsinNoNoUnclearAbsolute
WyomingUnclearNoUnclearQualified
*For purposes of this chart, the privilege is defined as qualified if it can be defeated by a showing of actual or express malice, and absolute if it cannot.

Alabama

Prepared by Margaret Strouse, Ballard Spahr LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

No

Statute and leading cases:

Ala. Code § 13A-11-161 

The privilege only applies to “the return of any indictment, the issuance of any warrant, the arrest of any person for any cause or the filing of any affidavit, pleading or other document in any criminal or civil proceeding in any court, or of a fair and impartial report of the contents thereof, or of any charge of crime made to any judicial officer or body, or of any report of any grand jury, or of any investigation made by any legislative committee, or other public body or officer,” Ala. Code § 13A-11-161.

But see Wiggins v. Mallard, 905 So. 2d 776 (Ala. 2004) (implying the fair report privilege would protect a reporter’s conversation with a police chief regarding an arrestee’s name, but overruling trial court’s summary judgment on fair report privilege because police chief and reporter disagree on the name that was said, and the application of privilege turns on the credibility of their testimony)

Alabama’s conditional privilege may apply to press conferences made by public officials:  Fulton v. Advertiser Co., 388 So. 2d 533, 540 (Ala. 1980) (denying summary judgment, the court noted that the newspaper “was protected by [public official’s] conditional privilege to the extent that it reported fairly and accurately the information relased at the press conference.”), overruled on other grounds by Nelson v. Lapeyrouse Grain Corp, 538 So. 2d 1085 (Ala. 1988).

  • An article discussing the firing of several employeers based on the results of a government investigation discussed at a press conference was privileged under Alabama’s conditional privilege, which privileges communications made with a duty to a third party or the public if made in good faith and without actual malice, to the extent that the speaker at the press conference was protected by conditional privilege.

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Ala. Code § 13A-11-161 

The privilege applies to “any investigation made by any legislative committee, or other public body or officer,” Ala. Code § 13A-11-161.

Wilson v. Birmingham Post Co., 482 So. 2d 1209, 1211-12 (Ala. 1986) (“The weight of authority makes it clear that the Birmingham Police Department’s interview of the Cuban refugees did constitute an investigation.  The police incident report subsequently filed by Officer Morgado confirms the existence of an investifation, and the Post-Herlad news report accurately reflects the contentds of that investigation.”) 

  • Newspaper relied on police investigation report and published the article without common law actual malice, so the statutory privilege applied.

Does the privilege in this state cover sealed and confidential materials?

No

Statute and leading cases:

Ala. Code § 13A-11-161 

The privilege only applies to “the return of any indictment, the issuance of any warrant, the arrest of any person for any cause or the filing of any affidavit, pleading or other document in any criminal or civil proceeding in any court, or of a fair and impartial report of the contents thereof, or of any charge of crime made to any judicial officer or body, or of any report of any grand jury, or of any investigation made by any legislative committee, or other public body or officer,” Ala. Code § 13A-11-161.

No case law on this topic.

Is the fair report privilege in this state absolute or qualified?

Qualified Privilege, subject to a common law malice (called “actual malice) standard for private figures and a constitutional actual malice standard for public officials or issues of public concern. 

Statute and leading cases:

Ala. Stat. § 13A-11-161 “The publication of a fair and impartial report . . . . shall be privileged, unless it be proved that the same was published with actual malice,”

“Actual malice as used in this statute refers to the common law standard of malice rather than the constitutional standard of malice as set out in New York Times Co. v. Sullivan”  Wilson v. Birmingham Post Co., 482 So. 2d 1209, 1213 (Ala. 1986). 

  • “In Alabama, where a communication concerning a private person is protected by a qualified or conditional privilege, such a person cannot recover in a defamation action unless that person can show that the communication was made with actual or common law malice (shown by evidence of previous ill will, hostility, threats, other actions, former libels or slanders, and the like, emanating from the defendant, or by the violence of the defendant’s language, the mode and extent of the publication, and the like)” Id. at 1213.

Courts apply constitutional actual malice when the fair report relates to a public official or a issue of public concern.  Little v. Consol. Publ’g Co., 83 So. 3d 517, 525 (Ala. Civ. App. 2011).

Other interesting nuances to the privilege:

A news station has no obligation to broadcast a correction in the same form as the first broadcast if the plaintiff fails to “provide a reasonable explaination or contradiction” to the news station directly.  Birmingham Broadcasting (WVTM-TV) LLC v. Hill, 303 So. 3d 1148, 1157-58 (Ala. 2020)

Alabama courts have applied the fair report privilege to store employees who report suspected shoplifters to law-enforcement authorities.  E.g. Dolgencorp, LLC v. Spence, 224 So. 3d 173, 176 (Ala. 2016).

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Alaska

Prepared by Christopher Hickman, Buzzfeed Inc

Does the fair report privilege in this state cover press conferences and statements by public officials?

There is no caselaw addressing the privilege’s application to sealed and/or confidential materials.

Statute and leading cases:

N/A

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Fairbanks Publishing Company v. Francisco, 390 P.2d 784 (Alaska 1964)

Does the privilege in this state cover sealed and confidential materials?

There is no caselaw addressing the privilege’s application to sealed and/or confidential materials.

Statute and leading cases:

N/A

Is the fair report privilege in this state absolute or qualified?

Qualified

Statute and leading cases:

Fairbanks Publishing Company v. Francisco, 390 P.2d 784 (Alaska 1964); Wayson v. McGrady, No. 3:18-cv-00163-SLG, 2019 WL 3852492 (D. Alaska June 25, 2019)

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes. Wayson v. McGrady, No. 3:18-cv-00163-SLG, 2019 WL 3852492 (D. Alaska June 25, 2019)

Does the privilege extend to foreign proceedings?

N/A

What does it take to invoke the privilege? Any idiosyncrasies in this area?

No idiosyncrasies; the State relies heavily on Restatement, Torts § 611 (1938). To invoke the privilege, a news publication must demonstrate that the report is by a government official, “conditioned on the publication of an accurate and complete account of the contents of the report. If the report is not to be completely covered in the publication, then any abstract or abridgment of the report must be fair. The publication must not have been made solely for the purpose of causing harm to the person defamed.” Fairbanks Pub. Co., 390 P.2d 784 at 794.

Other interesting nuances to the privilege:

The case law in Alaska is maddeningly slight in the area of the Fair Report privilege, so much so that in Wayson the Court stated, “Fairbanks Publishing was issued in 1964; the Court has found no more recent Alaska appellate case that addresses the standard for an ‘accurate and complete account’ or a fair ‘abstract or abridgment’ of an official proceeding under Section 611. Thus, the Court looks to courts of other states that have relied on the Restatement.”

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Arizona

Prepared by Allyson Veile, Ballard Spahr LLP

In general: The fair report privilege is not very well developed in Arizona. There is one case from Arizona’s Supreme Court recognizing the “public proceedings” privilege. See Green Acres Tr. v. London, 688 P.2d 617, 618 (Ariz. 1984). But the only (published) case that actually applies the privilege is from Arizona’s Court of Appeals, which refers to the privilege as the “public records privilege.” See Sallomi v. Phx. Newspapers, 771 P.2d 469, 471 (Ariz. Ct. App. 1989). Because these are the only two cases, most of the questions cannot be answered with a firm Y/N. 

Does the fair report privilege in this state cover press conferences and statements by public officials?

Likely yes. 

Statute and leading cases:

There are no cases that apply the privilege to press conferences or to statements by public officials. But Arizona’s Supreme Court has explained that the privilege would apply to non-governmental public meetings under certain circumstances. See Green Acres Tr. v. London, 688 P.2d 617, 626 (Ariz. 1984) (“If the proceeding is genuinely open, so that the speaker sees what any member of the public could have seen, and the meeting deals with a matter of public interest, the privilege applies.”). 

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes.

Statute and leading cases:

The extent of investigatory/law enforcement materials that may be covered is not clear because there is only one case on point. But the Arizona Court of Appeals has applied the privilege to a booking slip on file at a police department. See Sallomi v. Phx. Newspapers, 771 P.2d 469, 472 (Ariz. Ct. App. 1989). 

Does the privilege in this state cover sealed and confidential materials?

No authority directly on point, but likely no.

Statute and leading cases:

There are no cases directly addressing sealed or confidential materials. It is unlikely that these materials would be covered under current precedence, though, because the leading Arizona cases recognizing the fair report privilege refer to it only as a “public proceedings” privilege, Green Acres Tr. v. London, 688 P.2d 617, 626 (Ariz. 1984), and as a “public records privilege.” Sallomi v. Phx. Newspapers, 771 P.2d 469, 472 (Ariz. Ct. App. 1989).

Is the fair report privilege in this state absolute or qualified?

Likely absolute. 

Statute and leading cases:

Although there are no cases applying an absolute privilege, Arizona’s Supreme Court has suggested that the privilege does not depend on knowledge of falsity. See Green Acres Tr. v. London, 688 P.2d 617, 626 (Ariz. 1984) (explaining the fair report privilege differs from other common law privileges “because the publisher may report statements known to be false so long as the publisher fairly and accurately describes those statements.”)

Other interesting nuances to the privilege:

Although there is limited authority in Arizona on the fair report privilege, in an interesting unpublished opinion from 2015, the Arizona Court of Appeals suggested that the privilege would cover public events generally. The court applied the privilege to the publication of a letter handed out by an attendee at a passport renewal event held by the Chinese Consulate General, along with a photo of a sign he was wearing. The court based its decision primarily on the “substitute for the public eye” rationale for the fair report privilege. See Yang v. Ariz. Chinese News, L.L.C., No. 1 CA-CV 14-0080, 2015 Ariz. App. Unpub. LEXIS 648, *6, 43 Media L. Rep. 3036, 2015 WL 2453724 (Ariz. Ct. App. May 19, 2015), cert. denied, No. CV-15-0200-PR, 2015 Ariz. LEXIS 337, *1 (Ariz. Oct. 27, 2015). 

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Arkansas

Prepared by Tobin Raju, Washington University in St. Louis School of Law First Amendment Clinic

(Privilege first recognized by Arkansas Supreme Court in KARK–TV v. Simon, 656 S.W.2d 702 (Ark. 1983) and applied in Butler v. Hearst-Argyle Television, Inc., 49 S.W.3d 116, 122 (Ark. 2001))

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes.

Statute and leading cases:

In Brandon v. Gazette Pub. Co., 352 S.W.2d 92 (Ark. 1961), the Arkansas Supreme Court affirmed the dismissal of a defamation action against a newspaper arising from the paper’s publication of statements made by the then-governor of Arkansas during a press conference announcing the findings of an investigation into wrongdoing by nursing home proprietors. Id. at 92-93. The court found that a jury instruction stating that if defendant’s publication “was an accurate and impartial account of said press release and was published in good faith and was not published with the intent to harm the plaintiff, then you are told said publication was privileged” was a correct declaration of law. Id. at 93-94 (“The publication of a report of judicial proceedings, or proceedings of a legislative or administrative body or an executive officer of the United States, a State or Territory thereof, or a municipal corporation or of a body empowered by law to perform a public duty is privileged, although it contains matter which is false and defamatory.”) (citing Restatement of the Law of Torts, Vol. 3, § 611).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes.

Statute and leading cases:

Whiteside v. Russellville Newspapers, Inc., 295 S.W.3d 798, 802 (Ark. 2009) (affirming dismissal of defamation claim against newspaper for articles regarding alleged rape that occurred at plaintiff’s home and recognizing “information released by the police, including reports and records, is considered to be a report of an official action subject to the fair-report privilege” and holding that police documents that were basis for articles were made pursuant to an “official action” and therefore “covered by the fair report privilege”) (citing cases).

Does the privilege in this state cover sealed and confidential materials?

Unclear, the issue has not been addressed by Arkansas courts, but at least one case suggests that there is a colourable argument that the privilege applies.

Statute and leading cases:

Cf. Whiteside v. Russellville Newspapers, Inc., 295 S.W.3d 798, 803 (Ark. 2009) (determining that the fair report privilege was not lost where a newspaper obtained access to investigative information that was likely confidential because police did not tell reporter “there were any restrictions on the release of the information in that case report or that the report should not have been released. There is no evidence in the record that suggests the Newspaper obtained this information dishonestly”)

Is the fair report privilege in this state absolute or qualified?

Qualified. While Arkansas courts have not expressly addressed the issue, the privilege is not absolute but is likely more expansive than a typical conditional privilege.

Statute and leading cases:

Butler v. Hearst-Argyle Television, Inc., 49 S.W.3d 116, 121 (Ark. 2001) (adopting the modern rule from the Restatement (Second) of Torts § 611 and finding that “the privilege is lost only by a ‘showing of fault in failing to do what is reasonably necessary to insure that the report is accurate and complete or a fair abridgment’”) (citation omitted).

Whiteside v. Russellville Newspapers, Inc., 295 S.W.3d 798, 806 (Ark. 2009) (“This court has determined that the privilege is only lost by a failure to ensure that the report is accurate and complete or a fair abridgment.”) (citing Butler v. Hearst-Argyle Television, Inc., 49 S.W.3d 116, 121 (Ark. 2001))

Other interesting nuances to the privilege:

The case law in Arkansas state and federal court on the fair report privilege is not well developed.  The cases that do discuss the privilege heavily rely on Section 611 of the Second Restatement of Torts and other jurisdictions that follow the Second Restatement approach. See Whiteside v. Russellville Newspapers, Inc., 295 S.W.3d 798, 802 (Ark. 2009) (citing to cases from other jurisdictions for the proposition that police reports are subject to the fair-report privilege).  Defendants may find success in importing principles from other jurisdictions where Arkansas courts have not previously addressed the issue.

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California

Prepared by Benjamin McCoy, Fox Rothschild LLP

Does the fair report privilege in this state cover press conferences and statements by public officials

Yes.

Statute and leading cases:

Cal. Civ. Code, § 47(d)

“This statute grants an absolute privilege against defamation for a fair and true report in, or a communication to, a public journal, of a judicial, legislative, or other public official proceeding, or for anything said in the course of the proceeding; or for a verified charge or complaint made by any person to a public official, on which complaint a warrant has been issued.”

See J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP, 247 Cal. App. 4th 87 (2016).

See Kilgore v. Younger, 30 Cal.3d 770, 640 P.2d 793 (1982) (adoption by attorney general at a press conference of a report of an organized crime commission appointed by him). 

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes. 

Statute and leading cases:

See Balzaga v. Fox News Network, LLC, 173 Cal. App. 4th 1325, 1337 (2009) (holding the privilege applies to fair reports of police investigations); Hayward v. Watsonville Register-Pajaronian and Sun, 265 Cal. App. 2d 255 (1968) (newspaper article partially based on crime report of police department and attached FBI identification record was covered by privilege); Howard v. Oakland Tribune, 199 Cal. App. 3d 1124 (1988) (state agency’s summary of investigation findings of day-care center’s expenditure of public funds  was ‘official public proceeding’ within meaning of absolute privilege status.”). 

Does the privilege in this state cover sealed and confidential materials?

Yes

Statute and leading cases:Source?

See Smith v. Santa Rosa Democrat, 2011 WL 5006463, (N.D. Cal. October 20, 2011) ([T]he fact that the underlying proceedings may have been confidential or otherwise not open to the public, does not defeat the application of the privilege; Dorsey v. National Enquirer, Inc. 973 F.2d 1431 (9th Cir. 1992) (rejecting argument that privilege cannot apply to family court proceedings from which the general public is excluded).

Is the fair report privilege in this state absolute or qualified?

Absolute.

Statute and leading cases:

See Argentieri v. Zuckerberg, 8 Cal. App. 5th 768, 788 (2017) (“It too is an absolute privilege – that is, it applies regardless of the defendants’ motive for making the report…”).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes, the privilege extends to complaints and other pleadings that are part of a “judicial proceeding.” See Healthsmart Pacific, Inc. v. Kabateck, 7 Cal. App. 5th 416 (2016); cf Burrill v. Nair, 217 Cal. App. 4th 357, 397 (2013) quoting Restatement 2d of Torts, §611, comment e.) (“The publication, therefore the contents of preliminary pleadings such as a complaint or petition, before the judicial action has been taken is not within the rule…It is not necessary, however, that a final disposition be made of the matter in question; it is enough that some judicial action has been taken…”). The Healthsmart Court distinguished Burrill’s contra holding by explaining that the criminal complaints filed with police departments/FBI were, at most, possible precursors to a judicial proceeding but were not a part of any judicial proceeding. 

Other interesting nuances to the privilege:

A deposition is considered a “judicial proceeding” within the meaning of relevant code section.  See Sipple v. Foundation for Nat. Progress, 71 Cal. App. 4th 226 (1999).

Defendants bear the burden of establishing the privilege. See Hawran v. Hixson, 209 Cal. App. 4th 256 (2012).

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Colorado

Prepared by Christopher Hickman, Buzzfeed Inc

Does the fair report privilege in this state cover press conferences and statements by public officials?

It depends

Statute and leading cases:

Quigley v. Rosenthal, 327 F.3d 1044 (10th Cir. 2003). Fair report privilege is recognized where: 1) the defendant was reporting on an official action or proceeding, or meeting open to the public and dealing with a matter of public concern which under the law would give rise to the privilege; and 2) the report was substantially accurate and complete as to the matter being reported or it was a fair summary of the matter. In Quigley, the Court found that statements by the director of the Anti-Defamation League’s Denver office at a press conference, which purported to rely on a copy of a civil complaint, were not covered by the fair report privilege because: 1) the director’s statements went well beyond the allegations in the civil complaint, and 2) it was apparent from the statements that the director was asserting that these claims were factually accurate and that there was evidence in support of these claims, when the civil matter’s in-court proceedings had not yet commenced. (The fair report privilege, accordingly, does not attach until the court has taken action on the pleadings.). See also: Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 438 F. Supp.2d 1288 (D. Colo. 2006).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Probably not, unless they’re subject of a meeting open to the public.

Statute and leading cases:

Quigley v. Rosenthal, 327 F.3d 1044 (10th Cir. 2003);

Does the privilege in this state cover sealed and confidential materials?

Maybe

Statute and leading cases:

Via Quigly and Wilson v. Meyer, 126 P.3d 276, 280 (Colo. App. 205), it seems that Colorado extends the privilege only to in-court proceedings after the court has taken action on the pleadings, or, per Wilson, where reports concern any meeting that is “open to the public” and “deals with a matter of public concern.” However, information in a court case file is covered under the privilege, if the reporter’s account of that information is fair and substantially accurate. Chesapeake Pub. Corp. v. Williams, 339 Md. 285, 302, 661 A.2d 1169, 1177 (1995).

Is the fair report privilege in this state absolute or qualified?

Qualified

Statute and leading cases:

Rosenberg v. Helinksi, 328 Md. 664, 616 A.2d 866 (1992).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Not at present: Quigley v. Rosenthal, 327 F.3d 1044 (10th Cir. 2003).

Does the privilege extend to foreign proceedings?

No

What does it take to invoke the privilege? Any idiosyncrasies in this area?

While Quigley counsels that fair report in judicial proceedings is triggered when the court has taken action on the pleadings, Colorado has also opened the privilege to “public procedings” generally, including city council meetings, meetings of board selectman, and school board meetings. Wilson v. Meyer, 126 P.3d 276, 279-80 (Colo. App. 205).

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Connecticut

Prepared by Michael Linhorst, Yale Media Freedom and Information Access Clinic

Does the fair report privilege in this state cover press conferences and statements by public officials?

Unclear

Statute and leading cases:

Connecticut courts have adopted the Restatement (Second) of Torts’ provision for the fair report privilege, but neither the courts nor the Restatement have addressed whether press conference or statements are specifically covered. In some circumstances, a press conference or statement would seem to be “an official action or proceeding” or “a meeting open to the public that deals with a matter of public concern,” which would be privileged. See Burton v. Am. Law. Media, Inc., 83 Conn. App. 134, 137–38, 847 A.2d 1115, 1118 (2004) (quoting Restatement (Second) of Torts § 611 (1977)). But in other circumstances, a press conference would not be covered: “[S]tatements made by the police or . . . by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceeding or of the arrest itself and are not privileged under this Section.” Restatement (Second) of Torts § 611 cmt. H (1977).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

“An arrest by a law enforcement officer is an official action. A report of the fact of the arrest and of the criminal charge made by a law enforcement officer and of the contents of an arrest warrant or arrest report are within the fair report privilege.” Dellacamera v. New Haven Reg., No. CV000436560, 2002 WL 31501855, at *3 (Conn. Super. Ct. Oct. 28, 2002) (citing Restatement (Second) Torts § 611, cmt. H); see also Idlibi v. Hartford Courant Co., No. CV206061439S, 2021 WL 3832032, at *1 (Conn. Super. Ct. Aug. 6, 2021) (fair report privilege covers reporting based on state Dental Commission investigation).

Does the privilege in this state cover sealed and confidential materials?

Unknown

Statute and leading cases:

No case law on this question.

Is the fair report privilege in this state absolute or qualified?

Qualified

Statute and leading cases:

“In Connecticut, a conditional privilege, such as fair reporting, will be defeated if the defendant acted with malice.” Burton v. Am. Law. Media, Inc., 83 Conn. App. 134, 138, 847 A.2d 1115, 1119 (2004) (citing Bleich v. Ortiz, 196 Conn. 498, 504, 493 A.2d 236, 240 (1985)).

Other interesting nuances to the privilege:

Connecticut courts have adopted the Restatement’s provision on the privilege, and they cite the Restatement’s comments as persuasive authority. See Restatement (Second) of Torts § 611 (1977); Burton v. Am. Law. Media, Inc., 83 Conn. App. 134, 137–38, 847 A.2d 1115, 1118 (2004); Elder v. 21st Century Media Newspaper, LLC, 204 Conn.App. 414, 422, 254 A.3d 344, 352 (2021).

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Deleware

Prepared by Ross Ufberg, UC Berkeley Law School

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes, so long as the reporting is “is fair, accurate and complete, and not published for the purpose of harming the person involved, it it privileged and no responsibility attaches, even though information contained therein is false.” Short v. News-J. Co., 58 Del. 592, 599, 212 A.2d 718, 722 (1965). An accurate and fair abridgement of a statement is also covered. Read v. News-J. Co., 474 A.2d 119, 120 (Del. 1984).

Statute and leading cases:

  • Short v. News-J. Co., 58 Del. 592, 599, 212 A.2d 718, 721 (1965) (recognizing “a privilege in favor of a newspaper to report the governmental acts of executive officials of government,” including a statement given over the telephone by the director of a federal agency.). (Emphasis added.)
  • Read v. News-J. Co., 474 A.2d 119, 120 (Del. 1984) (holding, in the context of reporting on judicial proceedings, that “an accurate and fair abridgement of a judicial proceeding is privileged under prevailing law, notwithstanding allegations of malice or ill will.”).
  • Russell v. Delaware Online, No. 15-794-SLR, 2016 WL 3437597, at *4 (D. Del. June 20, 2016) (applying the fair report privilege to an official police department press release).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Likely yes.

Statute and leading cases:

Page v. Oath Inc., No. CV S20C-07-030 CAK, 2021 WL 528472, at *4 (Del. Super. Ct. Feb. 11, 2021) (holding that federal investigation constituted official government proceedings, and that fair and accurate reporting on the investigations thus fell under the state’s fair report privilege).

Does the privilege in this state cover sealed and confidential materials?

The law does not seem to have reached this issue.

Is the fair report privilege in this state absolute or qualified?

Absolute as to judicial proceedings; likely qualified as to other types

Statute and leading cases:

Read v. News-J. Co., 474 A.2d 119, 121 (Del. 1984) (holding that “accurate reporting of judicial proceedings results in complete immunity rendering the motive of a publisher irrelevant.”).
Barker v. Huang, 610 A.2d 1341, 1345 (Del. 1992) (“statements made outside of the course of judicial proceedings, such as those made during a newspaper interview concerning judicial proceedings, are not accorded the protection of the absolute privilege.”).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Though the courts do not appear to have reached the issue of whether reporting on initial court documents would fall under the privilege, it would seem that the privilege does cover such materials, since the Supreme Court of Delaware has disavowed any “sham litigation” exception to the absolute privilege, in Barker v. Huang, 610 A.2d 1341, 1346 (Del. 1992). The courts support a pretty broad application of the fair report privilege for judicial proceedings.

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District of Columbia

Prepared by Lauren Russell, Ballard Spahr LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Unclear

Statute and leading cases:

The D.C. Court of Appeals has not considered this in a long time. In Phillips v. Evening Star Newspaper Co., the court held statements in a hotline that were not an arrest record or “a record required by statute or some other authority, but instead merely constituting a hearsay statement by police of facts of a case” were not “official records” for purposes of the privilege. 424 A.2d 78, 89 (D.C. 1980).

In White v. Fraternal Order of Police, the D.C. Circuit held the privilege applied to police union letters sent to the U.S. Attorney and D.C. mayor that prompted an investigation, holding “[i]t would be untenable to make a distinction between a report about an official proceeding and that which, for all purposes, is the subject matter of the proceeding.” 909 F.2d 512, 527 (D.C. Cir, 1990).

D.C. Superior has also held the privilege applied to an article summarizing the Office of Attorney General’s lawsuit and press release about the lawsuit. D.C. v. Precision Contr. Solutions, LP, 2020 D.C. Super. LEXIS 31, *40 (D.C. Super. June 25, 2020), re-entered, 2021 D.C. Super. LEXIS 13, *1 (D.C. Super. Aug, 18, 2021).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 89 (D.C. 1980) (privilege applied to reporting on arrest records).

White v. Fraternal Order of Police, 909 F.2d 512, 528 (D.C. Cir. 1990) (privilege applied to letters sent by a police organization to the U.S. Attorney and D.C. mayor requesting investigation of MPD drug testing program, which MPD later investigated).

Does the privilege in this state cover sealed and confidential materials?

Likely yes

Statute and leading cases:

In White v. Fraternal Order of Police, 909 F.2d 512, 527 (D.C. Cir. 1990), the D.C. Circuit in dicta cited a Third Circuit case and stated “it is of no moment whether the Committee’s investigation was barred to the public.” The D.C. Court of Appeals has not addressed this.

Is the fair report privilege in this state absolute or qualified?

Yes

Statute and leading cases:

Oparaugo v. Watts, 884 A.2d 63, 81 (D.C. 2005) (privilege “can be defeated by the presence of malice”).

Other interesting nuances to the privilege:

Privilege does apply to initial filings prior to judicial action. Johnson v. Johnson Publishing Co., 271 A.2d 696 (D.C. 1970).

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Florida

Prepared by Giselle M. Girones and Deanna K. Shullman of Shullman Fugate PLLC

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

Rasmussen v. Collier Cnty. Publ’g Co., 946 So. 2d 567, 570 (Fla. 2d DCA 2006) (privilege permits the media “to report accurately on information received from government officials.”); Huszar v. Gross, 468 So. 2d 512, 516 (Fla. 1st DCA 1985) (privilege extends to remarks of government official).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Woodard v. Sunbeam Television Corp., 616 So. 2d 501, 502 (Fla. 3d DCA 1993) (fair report privilege attaches to police records); Vaillancourt v. Media General Operations Inc., 36 Media L. Rep. 1543, 1544 (Fla. 6th Jud. Cir. 2007) (privilege attaches to police incident report and officer’s statement).

Does the privilege in this state cover sealed and confidential materials?

This question has not been directly addressed, but Ortega v. Post-Newsweek Stations, Fla., Inc., implies that it would. 510 So. 2d 972, 976 (Fla. 3d DCA 1987) (relying on Third Circuit opinion which found reports of FBI materials that had not been released to the public were privileged); see also Miller v. Gizmodo Media Grp., LLC, No. 18-24227, 2019 WL 17980248, at *4 (S.D. Fla. Apr. 24, 2019) (noting Ortega is the “one case suggesting that Florida courts might extend the privilege to cover non-public information in some circumstances, [but] it is not clear that confidential or classified materials are protected.”)

Statute and leading cases:

See above-cited cases.

Is the fair report privilege in this state absolute or qualified?

Qualified by the requirement that the report be a substantially correct account of the record or proceeding, or part of record/proceeding, being reported on.

Statute and leading cases:

Woodard v. Sunbeam Television Corp., 616 So. 2d 501, 502 (Fla. 3d DCA 1993); Jamason v. Palm Beach Newspapers, Inc., 450 So. 2d 1130, 1132-33 (Fla. 4th DCA 1984) (actual malice immaterial to an accurate account of proceeding/record).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes, the privilege covers the contents of public records without the need for judicial oversight. Larreal v. Telemundo of Florida, LLC, 489 F. Supp. 3d 1309, 1319 (S.D. Fla. 2020).

Does the privilege extend to foreign proceedings?

Although unclear, the privilege should extend to foreign proceedings because its purpose is to protect those who report on the contents of public records, regardless of where those records are located. See, e.g., Rasmussen v. Collier Cnty. Publ’g Co., 946 So. 2d 567, 570 (Fla. 2d DCA 2006). Moreover, the Restatement (Second) of Torts Section 611 recognizes that the privilege “extends to any person who makes an oral, written or printed report to pass on the information that is available to the public.” Restatement (Second) of Torts § 611. By that logic, the privilege should extend to the content of foreign records.

Other interesting nuances to the privilege:

The press not need neutralize or lessen the sting of reporting by including information a plaintiff believes is more favorable, as the media has a right to choose what to focus its reporting on and can add color. Folta v. New York Times Co., 2019 WL 148776, at *5 (N.D. Fla. Feb. 27, 2019); Rigmaiden v. NBCUniversal Media LLC, 2019 WL 10252763, at *3 (Fla. 11th Cir. Ct. Dec. 31, 2019), aff’d, 307 So. 3d 918 (Fla. 3d DCA 2020).

The privilege applies to fair and accurate accounts of part of a proceeding. See Carson v. News-Journal Corp., 790 So. 2d 1120, 1122 (Fla. 5th DCA 2001); Rigmaiden v. NBCUniversal Media LLC, No. 2018-015032-CA-01, 2019 WL 10252763, at *3 (Fla. 11th Cir. Ct. Dec. 31, 2019), aff’d, 307 So. 3d 918 (Fla. 3d DCA 2020).

Actual malice is immaterial to an accurate account of an official proceeding. Jamason v. Palm Beach Newspapers, Inc., 450 So. 2d 1130, 1133 (Fla. 4th DCA 1984).

The fact that a reporter gathers information regarding an official proceeding second-hand is immaterial to whether the story is covered by the privilege. See Ortega v. Post-Newsweek Stations, Fla., Inc., 510 So. 2d 972, 976 (Fla. 3d DCA 1987).

The privilege applies even if the source contains erroneous information. Woodard v. Sunbeam Television Corp., 616 So. 2d 501, 502 (Fla. 3d DCA 1993); Ortega v. Post-Newsweek Stations, Fla., Inc., 510 So. 2d 972, 976 (Fla. 3d DCA 1987) (press has no duty to independently determine accuracy of statements in government records).

The privilege applies to journalists being interviewed as part of documentary. See Rigmaiden v. NBCUniversal Media LLC, No. 2018-015032-CA-01, 2019 WL 10252763, at *3 (Fla. 11th Cir. Ct. Dec. 31, 2019), aff’d, 307 So. 3d 918 (Fla. 3d DCA 2020).

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Georgia

Prepared by Rian Dawson, Honigman LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

Adventure Outdoors, Inc. v. Bloomberg, 705 S.E.2d 241 (Ga. Ct. App. 2010) (statements made in press conference were privileged and entitled out-of-state defendants to protections under anti-SLAPP statute)O.C.G.A § 51-5-7(1) (providing privilege over statements made in good faith in the performance of a public duty)

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Lawton v. Georgia Television Co., 456 S.E.2d 274 (Ga. Ct. App. 1995) (broadcast based on National Guard investigative report regarding sexual harassment allegations against an officer fell within fair report privilege because “defendants’ broadcast constituted a fair and accurate report of the National Guard Report”)

AirTran Airlines, Inc. v. Plain Dealer Pub. Co., 66 F. Supp. 2d 1355 (N.D. Ga. 1999) (finding issue of fact existed regarding whether newspaper reported “gist” of draft FAA safety inspection report where article “did not merely report the findings contained in the draft report” but “concluded, among other things, the these violations constituted ‘serious safety violations’”)

Does the privilege in this state cover sealed and confidential materials?

Potentially, though there is no caselaw on point

Statute and leading cases:

O.C.G.A § 51-5-7(5)-(7) (providing privilege over fair and honest reports of proceedings of legislative or judicial bodies, court proceedings, comments of counsel, fairly made, on the circumstances of a case in which he or she is involved and on the conduct of the parties connected therewith)

Is the fair report privilege in this state absolute or qualified?

Qualified

Statute and leading cases:
O.C.G.A § 51-5-7

Morton v. Stewart, 266 S.E.2d 230 (Ga. Ct. App. 1980) (holding privilege is conditional, not absolute)

Schafer v. Time, Inc., No. 1:93-cv-833, 1994 WL 720256 (N.D.Ga.1994) (“All of the privileges contained in O.C.G.A. § 51–5–7 are conditional, rather than absolute, and may be lost upon a showing by the plaintiff of actual malice.”)

O.C.G.A. § 51–5–9 (“In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action.”)

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Potentially. Torrance v. Morris Pub. Grp., LLC, 656 S.E.2d 152 (Ga. Ct. App. 2007) (defamation plaintiff failed to make showing of actual malice where statements in article were compiled from, among other things, “police reports, crime scene logs and notes, [and] pleadings and depositions in a related federal action”)

Does the privilege extend to foreign proceedings?

No caselaw on point.

What does it take to invoke the privilege? Any idiosyncrasies in this area?

The “fair report” must be “substantially accurate,” meaning it has the same “gist/sting” as the proceedings reported. Lawton v. Georgia Television Co., 456 S.E.2d 274 (Ga. Ct. App.)

Other interesting nuances to the privilege:

Privilege covers not just judicial proceedings, but any proceedings meeting the criteria for a “quasi-judicial body.” Morton v. Stewart, 266 S.E.2d 230 (1980) (news reports of proceedings of the State Board of Medical Examiners are entitled to privilege if “fair and honest”)

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Hawaii

Prepared by Andrew M. Pauwels, Honigman LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Unanswered

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Unanswered

Does the privilege in this state cover sealed and confidential materials?

Unanswered

Is the fair report privilege in this state absolute or qualified?

Unanswered

Other interesting nuances to the privilege:

The only case in Hawaii to address the fair report privilege appears to be Murphy v. Maui Pub. Co., 23 Haw. 804 (1917). In that case, the Supreme Court of the Territory of Hawaii recognized the privilege generally. Id. at 810 (“It is well settled that a newspaper is privileged to publish a report in a judicial proceeding after a hearing therein, provided it gives a fair report of what took place.”); see also

In that case, the court recognized an exception as to initial pleadings:

The privilege extended to a litigant or a witness or to counsel to state libelous matter pertinent to the issues in a judicial proceeding does not extend to third parties in civil cases, whether individuals or newspapers, as the public has no interest in a private controversy. “There is no rule of law which authorizes any but the parties interested to handle the files or publish the contents of their matters in litigation. The parties, and none but the parties, control them. One of the reasons why parties are privileged from suit for accusations made in their pleadings is that the pleadings are addressed to courts where the facts can be fairly tried, and to no other readers. If pleadings and other documents can be published to the world by any one who gets access to them, no more effectual way of doing mischief with impunity can be devised than filing papers containing false and scurrilous charges, and getting them printed as news. The public have no rights to any information on private suits till they come up for public hearing or action in open court; and when any publication is made involving such matter they possess no privilege, and the publication must rest on either non-libelous character or truth to defend it.

Id. at 810-11. See also Salzano v. North Jersey Media Grp. Inc., 201 N.J. 500, 517; 993 A.2d 778 (N.J. 2010) (citing Murphy to support the proposition that “in the early twentieth century, the initial pleadings exception was adopted in a number of jurisdictions”); Solaia Tech., LLC v. Specialty Pub. Co., 221 Ill.2d 558, 609; 852 N.E.2d 825, 855 (Ill. 2006) (Freeman, J., concurring in part and dissenting in part) (citing Murphy as an example of a jurisdiction that holds that “the fair report privilege does not extend to a report based on the contents of a complaint”).

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Idaho

Prepared by Andrew M. Pauwels, Honigman LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Unanswered

Statute and leading cases:

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Likely Yes

Statute and leading cases:

We find it necessary to determine whether the police reports here constituted a “public official proceeding.” We conclude that even if the police reports constituted a public official proceeding, the privilege granted by the statute did not apply here, because Rankin admitted in his deposition that in reaching the conclusions that led to the statements he made in the article he relied on statements made to him by the investigating officer that went beyond the reports. This destroyed any basis Rankin had to claim that the article was based only on a public official proceeding. Rankin argues that the statements made to him by the investigating officer should be construed as part of the public official proceeding. However, these statements were made privately by a law enforcement officer to a newspaper reporter and were not part of the investigation of Debbie’s death. Regardless of whether police reports are a public official proceeding, private statements of police officers made to members of the news media are not.

Wiemer v. Rankin, 117 Idaho 566, 573; 790 P.2d 347 (Id. 1990) (citations omitted)

Does the privilege in this state cover sealed and confidential materials?

Unanswered

Statute and leading cases:

Is the fair report privilege in this state absolute or qualified?

Qualified

Statute and leading cases:

“By a fair and true report, without malice, of a judicial, legislative or other public official proceeding, or of anything said in the course thereof, or of a charge or complaint made by any person to a public official, upon which a warrant shall have been issued or an arrest made.” I.C. § 6-713(4)

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Illinois

Prepared by Shari Albrecht, Baron Harris Healey

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

Hill v. Schmidt, 2012 IL App (5th) 110324, 969 N.E.2d 563 (fair report privilege based on statements made by prosecutor in an interview with a reporter); Dolatowski v. Life Printing & Publishing Co., Inc., 197 Ill. App. 3d 23, 554 N.E.2d 692 (1st Dist. 1990) (fair report privilege based on statements made by police officer in interview with reporter).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Maybe

Statute and leading cases:

I have not located a case on this. The courts are very generous toward applying the privilege to reporting on statements of law enforcement without requiring that the statements have been made in a public forum, which suggests that the same reasoning could be applied to law enforcement materials that are not widely available to the public.

Does the privilege in this state cover sealed and confidential materials?

No

Statute and leading cases:

Lykowski v. Bergman, 299 Ill. App. 3d 157, 700 N.E.2d (1st Dist. 1998) (no fair report privilege relating to confidential attorney ethics complaint)

Is the fair report privilege in this state absolute or qualified?

Absolute – applies even if actual malice is alleged.

Statute and leading cases:

Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 852 N.E.2d 825 (2006)

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes, it applies to complaints, Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558, 852 N.E.2d 825 (2006). However, it does not apply to one’s own complaint, Missner v. Clifford, 393 Ill. App. 3d 751, 914 N.E.2d 540 (1st Dist. 2009).

Does the privilege extend to foreign proceedings?

Glocoms Group, Inc. v. Center for Public Integrity, No. 17-cv-6854, 2018 U.S. Dist. Lexis 94555 (N.D. Ill. June 5, 2018) suggests that it should not.

What does it take to invoke the privilege? Any idiosyncrasies in this area?

Because of Illinois procedures, the privilege can typically be addressed at the pleading stage under 735 ILCS 5/2-619, which allows presentation of affidavits in support of a motion to dismiss.

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Indiana

Prepared by Margaret M. Christensen & Jessica Laurin Meek, Dentons Bingham Greenebaum LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Likely yes as to “public proceedings” and yes as to judicial proceedings (see also other interesting nuances).

Statute and leading cases:

Hall v. Shaw, 147 N.E.3d 394, 401 (Ind. Ct. App. 2020), transfer denied, 160 N.E.3d 517 (Ind. 2020) (quotations omitted) (“Indiana law has long recognized an absolute privilege that protects all relevant statements made in the course of a judicial proceeding, regardless of the truth or motive behind the statements.”)

Aafco Heating & Air Conditioning Co. v. Nw. Publications, Inc., 321 N.E.2d 580, 583 (Ind. Ct. App. 1974) (explaining that two qualified privileges have been recognized as affirmative defenses for media defendants: “1. The privilege of ‘fair comment’ (limited to opinions on public officials and their conduct—not applicable to private individuals or newsworthy events) and 2. the privileged attached to the reporting of public proceedings”) (emphasis added).

Henderson v. Evansville Press, Inc., 142 N.E.2d 920, 924–25 (Ind. App. 1957) (stating that “[p]rotection, in the form of a privilege, is generally accorded a newspaper reporting a judicial proceeding upon the basis of the public interest in that which pertains to the proper administration of justice” and that the issue before the court on motion to dismiss was whether the judge who made the allegedly defamatory statement “made the alleged communication in the course of his official duties and while in the exercise of a judicial function, and that the report presents fully, fairly, and accurately an impartial account of the judicial proceedings”).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Unclear.

Statute and leading cases:

Aafco Heating & Air Conditioning Co. v. Nw. Publications, Inc., 321 N.E.2d 580, 583 (Ind. Ct. App. 1974) suggests that the privilege is available to public proceedings. There is no case law guidance as to whether “investigatory and law enforcement materials” fall within the scope of “public proceedings.”

Does the privilege in this state cover sealed and confidential materials?

Unclear.

Statute and leading cases:

Aafco Heating & Air Conditioning Co. v. Nw. Publications, Inc., 321 N.E.2d 580, 583 (Ind. Ct. App. 1974) suggests that the privilege is available to public proceedings. There is no case law guidance as to whether “sealed and confidential materials” fall within the scope of “public proceedings.”

Is the fair report privilege in this state absolute or qualified?

Absolute as to judicial proceedings; qualified as to “public proceedings” more broadly.

Statute and leading cases:

Aafco Heating & Air Conditioning Co. v. Nw. Publications, Inc., 321 N.E.2d 580, 583 (Ind. Ct. App. 1974) (noting that a qualified privilege “attached to the reporting of public proceedings” has “traditionally been safeguarded”).

Henderson v. Evansville Press, Inc., 142 N.E.2d 920, 924–25 (Ind. App. 1957) (holding that an “absolute” privilege was not available as to publication of judge’s statement on motion to dismiss stage where it was unclear based on the news report whether the challenged statement was made in the courtroom); see also Hall v. Shaw, 147 N.E.3d 394, 401 (Ind. Ct. App. 2020), transfer denied, 160 N.E.3d 517 (Ind. 2020) (quotations omitted).

Other interesting nuances to the privilege:

Little case law addresses the fair report privilege in Indiana. As to judicial proceedings, the privilege is recognized as stated in Henderson v. Evansville Press, Inc., 142 N.E.2d 920, 925 (Ind. App. 1957); Hall v. Shaw, 147 N.E.3d 394, 401 (Ind. Ct. App.), transfer denied, 160 N.E.3d 517 (Ind. 2020) (quotations omitted) (recognizing that statements made in judicial proceedings are absolutely privileged, though not in the context of the fair report privilege specifically).

The privilege’s apparent recognition as to public proceedings more generally in Aafco Heating & Air Conditioning Co. v. Nw. Publications, Inc., 321 N.E.2d 580, 583 (Ind. Ct. App. 1974) is arguably dicta. The Court there simply stated that “[t]he privilege attached to the reporting of public proceedings” “has traditionally been safeguarded” as a qualified privilege; the majority of the opinion concerns Indiana’s adoption of the actual malice standard to matters of public concern, even if the defamation plaintiff is a private figure. See also Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 449 (Ind. 1999) (subsequent Indiana Supreme Court decision adopting the approach in Aafco regarding plaintiff’s burden of proof for private individuals on matters of public concern). Accordingly, while the fair report privilege in Indiana is not well-established, matters typically covered by the privilege may also be matters of public concern—and, if so, a qualified privilege is available regardless of the defamation plaintiff’s status as a public or private figure.

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Iowa

Prepared by Tobin Raju, Washington University in St. Louis School of Law First Amendment Clinic

Does the fair report privilege in this state cover press conferences and statements by public officials?

Unclear, the issue has not been addressed by Iowa courts.

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Unclear, the issue has not been addressed by Iowa courts.

Does the privilege in this state cover sealed and confidential materials?

Unclear, the issue has not been addressed by Iowa courts.

Is the fair report privilege in this state absolute or qualified?

Qualified.

Statute and leading cases:

Ballinger v. Democrat Co., 212 N.W. 557, 559 (Iowa 1927) (“The publication of judicial proceedings, if fairly and impartially done, without express malice, are privileged.”) (finding privilege did not apply where challenged article “did not fairly report the grounds upon which the plaintiff in the divorce action asked the dissolution of the marriage relation”).

Flues v. New Nonpareil Co., 155 Iowa 290, 135 N.W. 1083, 1085 (1912) (“The publication of fair and impartial reports of such proceedings is privileged, unless (1) the court where such proceedings are had has prohibited the publication of the same, or (2) the subject–matter of the trial be unfit for publication. The privilege of such publication, however, is always qualified, in this: That the report must be fair and impartial and without malice.”) (internal citation omitted).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Ballinger v. Democrat Co. suggests that reporting on initial court documents is covered by the privilege. 212 N.W. 557, 559 (Iowa 1927) (“The article complained of did not fairly report the grounds upon which the plaintiff in the divorce action asked the dissolution of the marriage relation. . . . Had the article fairly stated the true ground of the petition, it would have been privileged.”); see also Flues v. New Nonpareil Co., 135 N.W. 1083, 1086 (Iowa 1912) (“The rule of privilege under consideration applies to ex parte proceedings before magistrates and to applications for criminal information, and to everything that occurs publicly in open court, provided only that the reports are fair and accurate.”) (emphasis added; internal quotation marks and citations omitted); but see Johnson v. Nickerson, 542 N.W.2d 506, 512 (Iowa 1996) (“The defendant newspaper based its story on an advanced copy of a motion for a new trial. Because the court document was not filed as a public record at the time of the publication, the newspaper cannot rely on the public documents privilege.”) (affirming dismissal of defamation action where advanced copy of motion provided sufficient indicia of reliability to prevent finding of actual malice).

Other interesting nuances to the privilege:

In Kennedy v. Zimmermann, 601 N.W.2d 61, 66 (Iowa 1999), the Iowa Supreme Court rejected a defendant attorney’s apparent efforts to invoke the fair report privilege as a defense to allegedly defamatory statements the attorney made—during an interview with a reporter which was published in a newspaper—regarding the defendant attorney’s previously-filed lawsuit that alleged another attorney had unethically divulged client information. The court determined that excluding interviews with reporters from the absolute judicial proceeding privilege conformed with the purposes of the privilege and characterized the defendant’s interview discussing the complaint a “republication outside a judicial proceeding of protected communications previously made in a judicial proceeding” and not subject to the fair report privilege. Id.

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Kansas

Prepared by Lily Roos, CBS News and Stations

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes, so long as the statements are about a matter of legitimate public concern and it: (1) is accurate and complete and (2) is published for the purpose of informing the public.

Statute and leading cases:

“Defamatory matter concerning another in a report of any official proceeding or any meeting open to the public which deals with matters of public concern is published on a conditionally privileged occasion if the report is:
(a) accurate and complete, or a fair abridgement of what has occurred, and
(b) published for the purpose of informing the public as to a matter of public concern.”

Gobin v. Globe Publishing Co., 216 Kan. 223, 229, 531 P.2d 76, 81, (1975) (internal quotations omitted).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes.

Statute and leading cases:

“It is well settled in this jurisdiction that newspapers have a qualified privilege to publish as current news all matters involving open violations of the law which justify police interference, and matters in connection with inquiries regarding the commission of crime, even though the publication may reflect on the individuals concerned and tend to bring them into public disgrace. The conditional privilege to publish matters which are of legitimate public concern applies also to information concerning the conduct of a candidate for public office, as well as to publications concerning the conduct of an incumbent public official.” Stice v. Beacon Newspaper Corp., 185 Kan. 61, 65, 340 P.2d 396, 400, (1959) (internal quotations omitted).

See also Beyl v. Capper Publications, Inc., 180 Kan. 525, 526-527, 305 P.2d 817, 819 (1957); Gobin v. Globe Publishing Co., 216 Kan. 223, 227, 531 P.2d 76, 80 (1975).

“In Kansas, the qualified privilege extends to newspaper reports of ‘all matters involving open violations of the law which justify police interference.’ (Emphasis added.) Police arrests and criminal charges obviously fall within the scope of this privilege.” Haight v. Liberal Newspaper, Inc., 1997 Kan. App. Unpub. LEXIS 1115, *6, 1997 WL 35435303 (quoting Stice).

Does the privilege in this state cover sealed and confidential materials?

Not clear.

Statute and leading cases:

None.

Is the fair report privilege in this state absolute or qualified?

Qualified. In all of the above contexts, the privilege can be defeated by a showing of actual malice.

Statute and leading cases:

“The term ‘privileged’ as applied to a publication alleged to be libelous means simply that the circumstances under which the publication was made are such as to repel the legal inference or presumption of malice, and to place upon the plaintiff the burden of affirmatively pleading and proving its actual existence beyond the mere falsity of the charge.” Stice v. Beacon Newspaper Corp., 185 Kan. 61, 64, 340 P.2d 396, 399 (1959).

Other interesting nuances to the privilege:

The Kansas Supreme Court has described this privilege as applying to “situations where public policy is deemed to favor the free exchange of information over the individuals’ interest in his or her good reputation.” Turner v. Halliburton Co., 240 Kan. 1, 7-8, 722 P.2d 1106, 1112-1113 (1986) (holding that “[e]mployee conduct, particularly involving theft, is a matter within the bounds of the qualified privilege pertaining to communications within the company”).

If the subject of the otherwise privileged statement is a private figure, the privilege can be defeated by a showing that the error resulted from the publisher’s negligence.

“Our holding then is, in reporting judicial proceedings a publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure is liable in damages for actual injury to the individual when the assertion of the falsehood is the result of the publisher’s or broadcaster’s negligence and when the substance of the assertion makes substantial danger to reputation apparent[.]” Gobin v. Globe Publishing Co., 216 Kan. 223, 233, 531 P.2d 76, 84 (1975).

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Kentucky

Prepared by Darren W. Ford, Graydon Head & Ritchey LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Probably not.

Statute and leading cases:

KRS 411.060 codifies Kentucky’s fair report privilege, and does not, on its face, apply to press conferences or statements by public officials made outside of an official proceeding.

Chatterjee v. CBS Corp., No. 6:19-CV-212-REW, 2020 WL 592324, at *6 & *6 n. 9 (E.D. Ky. Feb. 6, 2020) (opining that reporting on DOJ press release about qui tam action “likely” fell “outside the Kentucky statutory boundary”).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Unless filed with a court in connection with a warrant application or affidavit, probably not.

Statute and leading cases:

KRS 411.060 does not, on its face, cover reporting on law enforcement materials that are not filed in connection with a criminal proceeding, providing that the privilege extends to “[t]he publication of a fair and impartial report or the whole or a synopsis of any indictment, warrant, affidavit, pleading or other document in any criminal or civil action in any court of competent jurisdiction. . .”

See also Beiser v. Scripps-McRae Publ’g Co., 68 S.W. 457, 459 (Ky. 1902) (extending common law privilege to ex parte reports made by police officers in the process of obtaining a warrant on the ground that such procedures should be considered a “judicial procedure”).

Does the privilege in this state cover sealed and confidential materials?

Probably yes.

Statute and leading cases:

The statute that governs the privilege, KRS 411.060 is silent as to whether it extends to sealed and confidential materials filed in a criminal or civil action.

Greenfield v. Courier-Journal & Louisville Times Co., 282 S.W.2d 839, 841-842 (Ky. 1955) (holding that common law fair report privilege applied to reporting on grand jury proceedings that had been made public on the ground that “[i]f the immediate participants in the act are protected, the record made certainty has the color of authenticity, and those who do no more than republish the record should not be adjudged guilty of wrongdoing”).

Is the fair report privilege in this state absolute or qualified?

Qualified.

Statute and leading cases:

KRS 411.060 (privilege doesn’t apply if “it is proved that the publication was maliciously made”); Smith v. Martin, 331 S.W.3d 637, 641 (Ky. Ct. App. 2011) (KRS 411.060 offers a qualified privilege for fair and impartial reporting).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes. KRS 411.060 by its terms applies to initial filings.

Does the privilege extend to foreign proceedings?

Unclear. KRS 411.060 applies to filings in civil or criminal actions in “any court of competent jurisdiction.”

What does it take to invoke the privilege? Any idiosyncrasies in this area?

To overcome the privilege, a plaintiff may demonstrate either that the publication was made maliciously, “or that the defendant after request by the plaintiff has failed to publish a reasonable explanation or contradiction thereof, giving the explanation or contradiction the same prominence as space as the original publication, or that the publisher has refused after request by the plaintiff to publish the subsequent determination of the proceeding.”

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Lousiana

Prepared by Lily Roos, CBS News and Stations

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes.

Statute and leading cases:

Press reports and other oral statements are subject to the fair report privilege in Louisiana. See Wilson v. Capital City Press, 315 So. 2d 393, 395, (La. App. 3d Cir. 1975) (fair report privilege available where reporting was based on information provided by press agent of a police department). Several cases have held that newspapers and media may rely on this privilege in publishing oral statements by law enforcement. See, e.g. Lovett v. Caddo Citizen, 594 Sp. 2d 1197. 1198-99 (La. App. 2d Cir. 1991), LeBoeuf v. Times Picayune Publ. Corp., 327 So. 2d 430, 431 (La. App. 4th Cir. 1976), Bates v. Times-Picayune Publ. Corp., 527 So. 2d. 407, 411 (La. App. 4th Cir. 1988).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes—as long as the report does not assume the guilt of the accused person and is not otherwise defamatory.

Statute and leading cases:

Melon v. Capital City Press, 407 So. 2d 85, 86, (La. App. 1st Cir.1981) (“[N]ews media can reasonably rely on information obtained from law enforcement agencies, where there is no reason to doubt the correctness and authenticity of the information received.”).

“In Louisiana it has been held that a newspaper has a qualified or conditional privilege to report the fact that a person was arrested and the charges for which he is being held, provided that the report does not assume the guilt of the accused person and is not otherwise defamatory.” Francois v. Capital City Press, 166 So. 2d 84, 89, (La. App. 3d Cir.1964) (Log Book of a troop of state police was an official and public record on which local media could base its claim of qualified privilege).

Does the privilege in this state cover sealed and confidential materials?

Maybe…

Statute and leading cases:

In Thompson v. Emmis TV Broad., 894 So. 2d 480, 482, 2005 La. App. LEXIS 62, *13, 2004-1020 (La.App. 4 Cir. 01/19/05), the Firth Circuit Court of Appeal in Louisiana dismissed a defamation claim against a media defendant who had published “information from a sealed court record[.]” The Court did not explicitly cite the fair report privilege, but the fact that the court records were sealed did not affect the legal analysis.

Is the fair report privilege in this state absolute or qualified?

Qualified.

Statute and leading cases:

The privilege can be defeated by a showing of actual malice. See Thomas v. City of Monroe, 833 So. 2d 1282, 1288, 31 Media L. Rep. 1859 (La.App. 2 Cir. 2002) (“A person may be held liable in damages for libel or slander even though the communication is qualifiedly or conditionally privileged if it can be shown that he was guilty of actual malice.”); Francois v. Capital City Press, 166 So. 2d 84 (La. App. 3d Cir. 1964).

Other interesting nuances to the privilege:

Louisiana courts have declined to extend the privilege to media reports on official documents where the author of the report did not review the original document and instead relied on other news reporting of the official source, calling the connection “too tenuous.” Melon v. Capital City Press, 407 So. 2d 85, 87, (La. App. 1 st Cir. 1981) (no fair report privilege available to publisher of article that relied on a “previously published article” which “itself [was] based on” law enforcement materials, because publisher defendant did not review the law enforcement materials itself).

The fair report privilege is recognized as a statutory privilege with respect to criminal defamation. See La. R.S. §14:49

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Maine

Prepared by Lily Roos, CBS News and Stations

Does the fair report privilege in this state cover press conferences and statements by public officials?

No.

Statute and leading cases:

Maine does not recognize the fair report privilege. See, e.g. Franchini v. Bangor Publ’g Co., 383 F. Supp. 3d 50, 62 (D. Me. 2019) (“the Maine Supreme Judicial Court has never recognized a common-law privilege for ‘fair report’”); Pan Am Sys. v. Chalmers Hardenbergh, 871 F. Supp. 2d 6, 15, (D. Me. 2012) (declining to apply the fair report privilege because it “has not yet been recognized in Maine”).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

No.

Statute and leading cases:

Maine does not recognize the fair report privilege. See, e.g. Franchini v. Bangor Publ’g Co., 383 F. Supp. 3d 50, 62 (D. Me. 2019) (“the Maine Supreme Judicial Court has never recognized a common-law privilege for ‘fair report’”); Pan Am Sys. v. Chalmers Hardenbergh, 871 F. Supp. 2d 6, 15, (D. Me. 2012) (declining to apply the fair report privilege because it “has not yet been recognized in Maine”).

Does the privilege in this state cover sealed and confidential materials?

No.

Statute and leading cases:

Maine does not recognize the fair report privilege. See, e.g. Franchini v. Bangor Publ’g Co., 383 F. Supp. 3d 50, 62 (D. Me. 2019) (“the Maine Supreme Judicial Court has never recognized a common-law privilege for ‘fair report’”); Pan Am Sys. v. Chalmers Hardenbergh, 871 F. Supp. 2d 6, 15, (D. Me. 2012) (declining to apply the fair report privilege because it “has not yet been recognized in Maine”).

Is the fair report privilege in this state absolute or qualified?

There is none

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Maryland

Prepared by Lily Roos, CBS News and Stations

Does the fair report privilege in this state cover press conferences and statements by public officials?

Probably yes, so long as the statement is deemed an “official action” invoking the power of the office or governmental position, but not directly addressed by the case law.

Statute and leading cases:

In Reuber v. Food Chemical News, Inc., 925 F.2d 703, 713 (4th Cir. 1991) a letter of reprimand written by a supervisor at the National Cancer Institute was “official action” of the government such that the media defendant’s reporting on it was protected by the fair report privilege. The Fourth Circuit reasoned that the letter “invoked the power and prestige of the National Cancer Institute so as to make the decision [to reprimand] a governmental one in perception as well as reality.”

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Probably yes but not directly addressed in case law.

Statute and leading cases:

Nanji v. Nat’l Geographic Soc’y, 403 F. Supp. 2d 425, 434 (D. Md. 2005) (reporting of evidence featured in a Department of Justice Human Trafficking Report and official press release were protected by the fair report privilege).

Does the privilege in this state cover sealed and confidential materials?

Not clear.

Statute and leading cases:

No case law on this.

Is the fair report privilege in this state absolute or qualified?

Qualified.

Statute and leading cases:

Although the fair report privilege is a “qualified” privilege in Maryland, the Court of Appeals of Maryland has adopted a modern approach to the privilege that “discards the search for malice, and simply requires that the report be fair and substantially correct.” Thus, the fair report privilege fails to protect a defendant “not upon a showing of actual malice (as with other common law conditional privileges), but when the defendant’s account fails the test of fairness and accuracy.” Olukoya v. Sowore, 2019 U.S. Dist. LEXIS 129043, *9 (D. Md. 2019), 2019 WL 3501567 (quoting Piscatelli v. Van Smith, 424 Md. 294, 309, 35 A.3d 1140, 1149 (Md. 2012)).

“Unlike other qualified privileges, which are forfeited upon a showing of the defendant’s actual malice, the fair report privilege is lost when a defendant’s report is not fair and substantially accurate.” D&A Designs LLC v. Fox TV Stations, LLC, 2021 U.S. Dist. LEXIS 6641, *9 (D. Md. 2021), 2021 WL 100803.

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Massachusetts

Prepared by Shawn Musgrave, Center for Investigative Reporting and Jeff Pyle, Prince Lobel Tye LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

Butcher v. Univ. of Mass., 483 Mass. 742, 750, 136 N.E.3d 719, 730 (Mass. 2019) (“official statements,” which “typically are either ‘on-the-record statements by high-ranking (authorized to speak) officials,’ or ‘published official documents’” are covered by the fair report privilege) (quoting Howell v. Enter. Publ’g Co., LLC, 455 Mass. 641, 658 (Mass. 2010)).

Howell v. Enter. Publ’g Co., LLC, 455 Mass. 641, 657, 920 N.E.2d 1, 18 (Mass. 2010) (“reports of official statements . . . are covered by the fair report privilege,” including statements made at an “official press conference”) (citing Jones v. Taibbi, 400 Mass. 786, 797, 512 N.E.2d 260 (Mass. 1987)

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes, so long as investigators/law enforcement have taken official action (as opposed to law enforcement materials such as police blotters that might contain a mix of allegations, some of which law enforcement have not investigated)

Statute and leading cases:

Butcher v. Univ. of Mass., 483 Mass. 742, 750 (Mass. 2019) (“In sum, once police undertake an official response to a complaint, both that response and the allegations that gave rise to it fall within the fair report privilege.”)

Howell v. Enter. Publ’g Co., LLC, 455 Mass. 641, 657 (Mass. 2010) (“allegations in nonpublic, official investigatory documents qualified for privilege”) (citing Medico v. Time, Inc., 643 F.2d 134, 141-142 (3d Cir. 1981)).

Does the privilege in this state cover sealed and confidential materials?

Yes

Statute and leading cases:

Vondra v. Crown Publ’g Co., 61 Mass. App. Ct. 1116, 810 N.E.2d 1291 (Mass. App. Ct. 2004) (“Massachusetts courts have long recognized a ‘fair report privilege’ which applies to judicial documents such as the [guardian ad litem] report involved in this case, even if the document is subject to a confidentiality order of the type the judge entered in this case.”)

Howell v. Enter. Publ’g Co., LLC, 455 Mass. 641, 645, 920 N.E.2d 1, 10 (Mass. 2010) (granting summary judgment based on fair report privilege where reporting pertained to allegations seemingly derived, at least in part, from an agency letter on which “[t]he words, ‘CONFIDENTIAL—NOT A PUBLIC DOCUMENT,’ were printed in bold, underlined type across the top”).

Is the fair report privilege in this state absolute or qualified?

Qualified

Statute and leading cases:

Butcher v. Univ. of Mass., 483 Mass. 742, 756, 136 N.E.3d 719, 734 (Mass. 2019) (“The privilege is not absolute; it can be lost if a plaintiff shows that the publisher acted with malice or that the report is not a ‘fair and accurate’ portrayal of official actions or statements.”)

Howell v. Enter. Publ’g Co., LLC, 455 Mass. 641, 675 at n.8, 920 N.E.2d 1, 30 at n.8 (Mass. 2010) (“The privilege may be vitiated by misconduct on the newspapers’ part, but that misconduct must amount to more than negligent, or even knowing, republication of an inaccurate official statement. To defeat the privilege, a plaintiff must either show that the publisher does not give a fair and accurate report of the official statement [or action], or malice.”) (citations and internal quotation marks omitted)

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

No

Statute and leading cases:

Sibley v. Holyoke Transcript-Telegram Pub. Co., 391 Mass. 468, 471, 461 N.E.2d 823, 826 (Mass. 1984) (“The privilege extends only ‘to matters which really have been made the subject of judicial action,’” i.e., “cases in which judicial powers are exercised”) (quoting Lundin v. Post Publishing Co., 217 Mass. 213, 216, 104 N.E. 480 (Mass. 1914)).

Id. (“[T]he act of filing a paper with the court, without more, is not a ‘judicial proceeding’” that affords protection under the fair report privilege) (citing Cowley v. Pulsifer, 137 Mass. 392, 394 (Mass. 1884)).

Does the privilege extend to foreign proceedings?

Unclear

What does it take to invoke the privilege? Any idiosyncrasies in this area?

No significant idiosyncrasies; to secure summary judgment based on fair report privilege, a defendant must show: (1) reports of allegedly defamatory statements came from “official” actions or statements; and (2) that the reports of such statements were “fair and accurate”

Statute and leading cases:

Howell v. Enter. Publ’g Co., LLC, 455 Mass. 641, 654, 920 N.E.2d 1, 16 (2010) (“We begin by determining whether the [defendant] reported on ‘official’ actions or statements within the scope of the privilege. We then scrutinize the [defendant’s] reporting to determine if it was fair and accurate.”)

Other interesting nuances to the privilege:

Massachusetts cases treat “accuracy” and “fairness” as two separate elements of the privilege. “A report is accurate if it ‘conveys to the persons who read it a substantially correct account of the proceedings.’ It is fair so long as it is not ‘edited and deleted as to misrepresent the proceeding and thus be misleading.’” Howell v. Enter. Publ’g Co., LLC, 455 Mass. 641, 661-62 (Mass. 2010) (quoting Restatement (Second) of Torts § 611 comment f (1977)). That is, there are “two sorts of reporting errors: mistakes in reporting what actually happened (accurate), and liberties taken in reporting the character of what actually happened (fair).” Id. at 663; see also Butcher v. Univ. of Mass., 483 Mass. 742, 756, 136 N.E.3d 719, 734 (Mass. 2019) (“We consider fairness and accuracy as two separate but related elements.”). Whether the reporting was factually accurate is generally a “threshold inquiry,” to be followed by the fairness inquiry. Howell, 455 Mass. at 663-64.

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Michigan

Prepared by Robin Luce-Herrmann, Jennifer Dukarski and Maya Smith, Butzel Long

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

In Michigan, there is a statutory absolute privilege protecting against media liability for fair and true reports of public and official proceedings and acts or actions of a public body:

Damages shall not be awarded in a libel action for the publication or broadcast of a fair and true report of matters of public record, a public and official proceeding, or of a governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body, or for a heading of the report which is a fair and true headnote of the report. This privilege shall not apply to a libel which is contained in a matter added by a person concerned in the publication or contained in the report of anything said or done at the time and place of the public and official proceeding or governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body, which was not a part of the public and official proceeding or governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body.

Mich. Comp. Laws Ann. § 600.2911(3). Michigan courts have held that this privilege is broad and extends to more than just statements or press releases. Northland Wheels Roller Skating Ctr., Inc. v. Detroit Free Press, Inc., 213 Mich. App. 317, 326-27; 539 N.W.2d 774 (1995). See also DMC Plumbing and Remodeling, LLC v. Fox News Network, LLC, et al., 2012 U.S. Dist. LEXIS 167318 (E.D. Mich. 2012) (official statements by police officers); Bedford v. Witte, 318 Mich. App. 60, 67; 896 N.W.2d 69, 73 (2016) (statements made during interview); Stablein v. Schuster, 183 Mich. App. 477, 482; 455 N.W.2d 315 (1990) (report of a letter that was read aloud during a school board meeting).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Fair and true reports of police records are absolutely privileged, Northland Wheels Roller Skating Ctr., Inc. v. Detroit Free Press, Inc., 213 Mich. App. 317; 539 N.W.2d 774 (1995), as is the republication of documents in a court file. Amway Corporation v. The Procter & Gamble Company, 346 F.3d 180 (6th Cir. 2003).

Does the privilege in this state cover sealed and confidential materials?

Possibly not.

Statute and leading cases:

The language of Michigan’s statute refers to public records and events. Mich. Comp. Laws Ann. § 600.2911. A court may interpret confidential or sealed materials as not being “public” and thus not within scope of the fair report privilege. Nat’l Fair Hous. All. v. Town & Country – Sterling Heights, Inc., No. 07-10385, 2008 U.S. Dist. LEXIS 94958 (E.D. Mich. Aug. 19, 2008) (noting that “[w]here the underlying assertion/allegation is not in the public realm, however, there is nothing upon which to ‘fairly report’”). This issue has not been directly addressed by a State Court in Michigan.

Is the fair report privilege in this state absolute or qualified?

Absolute Privilege.

Statute and leading cases:

Michigan’s codified statute in MCL 600.2911(3) provides an absolute privilege against liability for fair and true reports of public and official proceedings. Bedford v. Witte, 318 Mich. App. 60, 67; 896 N.W.2d 69, 73 (2016) (noting malice does not impair fair report privilege); Stablein v. Schuster, 183 Mich. App. 477, 482; 455 N.W.2d 315, 318 (1990) (noting that the immunity is a qualified one when determining whether a report is fair and true).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes. Punturo v. Kern, No. 338727, 2018 WL 5276142, at *1 (Mich. Ct. App. Oct. 16, 2018) (civil complaints and other court pleadings were materials of the public record and thus covered under the Fair Report Privilege); Deutsch v. Berliner, No. 246991, 2004 WL 1882653, at *1 (Mich. App. Aug. 24, 2004) (protecting a document included in a Missouri case file); Amway Corp. v. Procter & Gamble Co., 346 F.3d 180, 187 (6th Cir. 2003) (non-media case; company protected by privilege for reporting to another (who then posted the information online) the contents of court documents filed by the company itself). See also Kmart Corp. v. Areeva, Inc., No. CIV. 04-40342, 2005 WL 2290678, at *3 (E.D. Mich. Sept. 20, 2005) (noting the fair report privilege covered allegations made in plaintiff’s own complaint in a judicial proceeding).

Does the privilege extend to foreign proceedings?

Yes. See Deutsch v. Berliner, No. 246991, 2004 WL 1882653, at *1 (Mich. Ct. App. Aug. 24, 2004) (privilege attached to republication of a document that was included in the Missouri court file); Amway Corp. v. Procter & Gamble Co., 346 F.3d 180 (6th Cir. 2003); Davidson v. Detroit Free Press Inc., 24 Media L. Rep. 2391, 2393 (Mich. Cir. 1996) (report of records from public licensing files from other states was privileged).

What does it take to invoke the privilege? Any idiosyncrasies in this area?

There are no major idiosyncrasies under the statute.

Other interesting nuances to the privilege:

Reporters are not required to “consult the public record before making [it’s] statements, it is sufficient that the public record is consistent with them.” McCracken v. Evening News Association, 3 Mich. App. 32, 141 N.W.2d 694 (1966). See also Nichols v. Moore, 396 F. Supp. 2d 783, 788 (E.D. Mich. 2005), aff’d, 477 F.3d 396 (6th Cir. 2007). The privilege applies even if the public record is inaccurate. McIntosh v. The Detroit News, Inc., 37 Media L. Rep. 1193, (Mich. Ct. App. 2009). This statutory privilege does not, however, apply to individuals who create the public record itself. Williams v. Detroit Bd. of Educ., 523 F. Supp. 2d 602 (E.D. Mich. 2007), aff’d, 306 F. App’x 943 (6th Cir. 2009)

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Minnesota

Prepared by Christopher Proczko, Sapientia Law Group PLLC

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

Larson v. Gannett Co., Inc., 940 N.W.2d 120 (Minn. 2020) – the fair and accurate reporting privilege extends to reports of law enforcement press conferences and press releases.

Does the fair report privilege in this state cover investigatory and law enforcement materials?

No

Statute and leading cases:

Larson v. Gannett Co., Inc., 940 N.W.2d 120 extended the fair report privilege to public law enforcement statements because the policy objectives of the Restatement valued the interest served by the fair and accurate dissemination of information concerning the events of public or official actions or proceedings. The majority opinion in Larson explicitly declined to adopt the limitation in Comment h of the Restatement § 611 that would remove the protection of the fair report privilege from statements by individuals at official meetings.

Carradine v. State, 511 N.W.2d 733, 736-37 (Minn. 1994) – distinguishing between statements made by an officer “in the performance of his function as an officer” and statements “not at all essential to the officer’s performance of his duties as an officer.”

Does the privilege in this state cover sealed and confidential materials?

No

Statute and leading cases:

Larson v. Gannett Co., Inc., 940 N.W.2d 120 (Minn. 2020) – to date, fair report privilege has been extended only to reports that fairly summarize judicial, legislative or other public or official proceedings, including public press conferences held by law enforcement.

Is the fair report privilege in this state absolute or qualified?

Absolute; malice cannot defeat the privilege, but the report must be a fair and accurate representation of the proceedings.

Statute and leading cases:

Moreno v. Crookston Times Printing, Co., 610 N.W.2d 321, 331 (Minn. 2000) – If the report is a fair and accurate representation of the proceedings or meeting, then the privilege “may be lost by a showing that the report is not a fair and accurate representation of the proceedings or meetings.” Common law malice is insufficient to invalidate the privilege. Id. at 333.

Larson v. Gannett Co. Inc., 940 N.W.2d 120 (Minn. 2020) – The Larson Court noted that the fair and accurate reporting privilege cannot be defeated by common law malice, but unlike an absolute privilege, it may be lost by a showing that the report is not a fair and accurate representation of the proceedings or meetings.” 940 N.W.2d at 131 (quoting Moreno, 610 N.W.2d at 331). Whether the report is a fair and accurate representation is usually a jury question. Larson, 940 N.W.2d at 140-41.

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Probably. Nixon v. Dispatch Printing Co., 112 N.W. 258 (Minn. 1907), upheld a libel verdict against a publisher for publishing a filed complaint that was libelous on its face. The Minnesota Supreme Court has since cast doubt on this decision, noting that it was decided 60 years before NY Times v. Sullivan and well before the Rules of Civil Procedure allowed sanctions for frivolous complaints. Larson, 940 N.W.2d at 136-37 (citing Sack § 7:3.5 noting that under the modern rule “[t]he damage resulting from use of the filing of a complaint or petition to disseminate a libel, it is argued, is better addressed by aggressive pursuit of sanctions against attorneys and parties who make allegations in bad faith or without support than permitted redress against the publisher”).

Does the privilege extend to foreign proceedings?

Never examined by the courts.

What does it take to invoke the privilege? Any idiosyncrasies in this area?

Larson, 940 N.W.2d at 22-23: Not every statement made by a law enforcement officer to the press is an official action. In Larson, because the statements were made during a planned, formal press conference, to convey information about an ongoing criminal investigation, the statements were official actions that were part of an official proceeding and subject to the privilege.

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Mississippi

Prepared by Lily Roos, CBS News and Stations

Does the fair report privilege in this state cover press conferences and statements by public officials?

Probably yes, although it hasn’t been addressed squarely.

Statute and leading cases:

“The official proceedings privilege is stated…as follows: ‘The publication of defamatory matter concerning another in a report of an official action or proceedings or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.’” Brocato v. Mississippi Publishers Corp., 503 So. 2d 241, 244, (Miss. 1987) (quoting the Restatement (Second) of Torts §611 (1977)) (findings in a State Ethics Commission report were within the ambit of the official proceedings privilege).

The privilege applies to all reports of “official action,” so long as the privilege is not abused by an unfair and inaccurate description of the official action. McDonald v. Raycom TV Broad., Inc., 665 F. Supp. 2d 688, 690, (S.D. Miss 2009).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Pittman v. Gannett River States Publishing Corp., 836 F. Supp. 377, 384 (S.D. Miss. 1993) (reporting sourced to “police investigation reports, arrest reports, and an indictment were “public documents” and “official proceedings” giving rise to the official proceedings privilege); McDonald v. Raycom TV Broad., Inc., 665 F. Supp. 2d 688, 690 (S.D. Miss 2009) (collecting cases that “recognize the principle that information released by the police, including reports and records, is generally considered to be a report of an official action subject to the fair report privilege”); Hegwood v. Cmty. First Holdings, Inc., 546 F. Supp. 2d 363, 365 (S.D. Miss. 2008) (Sheriff’s press release was an official report for fair report privilege purposes).

Does the privilege in this state cover sealed and confidential materials?

Unclear

Statute and leading cases:

No case law on this.

Is the fair report privilege in this state absolute or qualified?

Absolute—in the sense that there’s no case law I could find suggesting that it can be defeated by a showing of actual malice.

Other interesting nuances to the privilege:

At least one court interpreting this privilege has said that “each quote or statement [need not] be specifically attributed to an official document or proceeding. Rather, it is necessary only that, when considered in context, it is clear that the article is quoting, paraphrasing or otherwise drawing upon official documents or proceedings.” Pittman v. Gannett River States Publishing Corp., 836 F. Supp. 377, 382-383 (S.D. Miss. 1993).

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Missouri

Prepared by Mike Nepple, Thompson Coburn LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes.

Statute and leading cases:

Fair report privilege applies to statements in official press releases. Hinkle v. St. Louis Post Dispatch, No. 4:11-CV-1667-DDN, 2011 WL 6332995 (E.D. Mo., Dec. 19, 2011); Kenney v. Scripps Howard Broadcasting Co., 259 F.3d 922 (8th Cir. 2001) (“The privilege is limited to those matters of public concern which are stated in an official action or proceeding or meeting open to the public.”)

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes.

Statute and leading cases:

Police reports are considered reports of official action subject to the fair report privilege. Erickson v. Pulitzer Publ’g Co., 797 S.W.2d 853 (Mo. App. 1990); Biermann v. Pulitzer Publ’g Co., 627 S.W.2d 87 (Mo. App. 1981).

Does the privilege in this state cover sealed and confidential materials?

No reported case.

Is the fair report privilege in this state absolute or qualified?

Yes, likely absolute.

Statute and leading cases:

See Shafer v. Lamar Publishing Co., 621 S.W.2d 709, 713 (Mo. Ct. App. 1981) (holding question of actual malice is immaterial and the “test rather is whether or not the report is fair and accurate”). But see Henry v. Halliburton, 690 S.W.2d 775, 781 (holding that a number of qualified privileges, but not specifically identifying the fair report privilege, can be defeated by proof of actual malice).

Other interesting nuances to the privilege:

Missouri adopted the fair report privilege set out in the Restatement (Second) of Torts § 611 (1976). Shafer v. Lamar Publ’g Co., 621 S.W.2d 709 (Mo. App. 1981). The privilege is limited to those matters of public concern which are stated in an official action or proceeding or meeting open to the public. Id. (“The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.”). The privilege applies to initial filed pleadings, even before any judicial action taken. See Hoeflicker v. Higginsville Advance, Inc., 818 S.W.2d 650 (Mo. App. 1991) (holding that newspaper was privileged to report on initial filing of wrongful death lawsuit, but denying the privilege for other reasons).

The applicability of the fair report privilege is a question of law. Erickson v. Pulitzer Publ’g Co., 797 S.W.2d 853 (Mo. App. 1990). The privilege can only be overcome when the report is not a fair and accurate account of the proceedings. Williams v. Pulitzer Broadcasting Co., 706 S.W.2d 508 (Mo. App. 1986).

Arguably, a defendant must have reviewed the official report prior to authoring the alleged defamatory article or broadcast. See, e.g. Mitan v. Osborn, No. 10-3207-CV-S-SWH, 2011 WL 4352550 (W.D. Mo., Sept. 16, 2011) (suggesting that the privilege does not protect defamatory statements “supported after-the-fact through a frantic search of official records,” and thus, “where the media does not directly or indirectly rely upon official records, the policy underlying the privilege is inapplicable and the privilege itself should not be applied.”)

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Montana

Prepared by Lily Roos, CBS News and Stations

Does the fair report privilege in this state cover press conferences and statements by public officials?

Not entirely clear, but seems like it would, as long as those statements are connected to an official proceeding.

Statute and leading cases:

The privilege is statutory in Montana: “A privileged publication is one made: . . . (4) by a fair and true report without malice of a judicial, legislative, or other public official proceeding or of anything said in the course thereof.” MCA § 27-1-804 (4)

The Montana Supreme Court has interpreted the bound of the statute as follows:

“An arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege covered by this Section. On the other hand statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceeding or of the arrest itself and are not privileged under this Section.” Sacco v. High Country Indep. Press, 896 P.2d 411, 430 (Mont. 1995).

But see Lurie v. Big Sky Publ’g, 2001 ML 1160, 5, 2001 Mont. Dist. LEXIS 2812, *2 (“information provided to [media defendant] by Gallatin County Sheriff’s Deputy” relating “to a pending sheriff’s sale” of some of the plaintiff’s assets, fell within the statutory privilege because the sheriff’s sale as a “public event” and a “proceeding to obtain such remedy as the law allows”).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

The fact of an arrest or a charge is covered, but “statements by police … or by the prosecuting attorney” about the facts of the case are not covered.

Statute and leading cases:

Although this has not been directly addressed in the caselaw, the Montana Supreme Court has interpreted the bound of the statute as follows:

“An arrest by an officer is an official action, and a report of the fact of the arrest or of the charge of crime made by the officer in making or returning the arrest is therefore within the conditional privilege covered by this Section. On the other hand statements made by the police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or the evidence expected to be given are not yet part of the judicial proceeding or of the arrest itself and are not privileged under this Section.” Sacco v. High Country Indep. Press, 896 P.2d 411, 430 (Mont. 1995).

Does the privilege in this state cover sealed and confidential materials?

Not addressed in case law.

Is the fair report privilege in this state absolute or qualified?

Not directly addressed, but probably qualified.

Statute and leading cases:

In Stamey v. Howell, 2016 U.S. Dist. LEXIS 169318, *15 (D. Mont. 2016) the district court acknowledged that the Montana Supreme Court had yet to address whether a showing of actual malice could defeat the state’s fair report privilege. But it engaged in statutory analysis and determined that it believed the privilege was conditional, finding: “[h]ere, MCA § 27-1-804(4)’s privilege is clearly conditioned on the absence of malice.”

Other interesting nuances to the privilege:

The privilege does cover initial court documents like pleadings, even prior to judicial oversight. See Cox v. Lee Enters., 222 Mont. 527, 529 (1986) (defense available where reporting “consists of facts taken from preliminary judicial pleadings which have been filed in court but which have not been judicially acted upon[.]”).

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Nebraska

Prepared by Tobin Raju, Washington University in St. Louis School of Law First Amendment Clinic

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes.

Statute and leading cases:

In Rhodes v. Star Herald Printing Co., 113 N.W.2d 658 (Neb. 1962), the Nebraska Supreme Court found that the fair report privilege applied to statements made by a law enforcement official concerning the official’s efforts to locate the plaintiff and take him into custody. The court found that “[s]uch a statement recites facts which the public is entitled to know and falls within the rule of qualified privilege that protects a newspaper in the dissemination of news.” Id. at 661

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes.

Statute and leading cases:

In Cooper v. Wowt-Channel 6 Gray Television Group Inc., No. CI 18-2674, 2018 WL 7500207, at *4 (Neb. Dist. Ct. Nov. 05, 2018), a Nebraska court dismissed an action alleging reporting on a plaintiff’s altercation with parking enforcement employee was inflammatory and defamatory. The court found, in part, that the challenged statements were subject to the fair report privilege because “the statements complained about by [plaintiff] are from the Police Incident Report and from judicial records. To the extent there are minor inaccuracies, [defendant’s] broadcasts conveyed ‘a substantially correct account’ of the incident between [plaintiff] and the parking employee from the Police Incident Report and judicial records.” Id.

Does the privilege in this state cover sealed and confidential materials?

Unclear, the issue has not been addressed by Nebraska courts.

Is the fair report privilege in this state absolute or qualified?

Qualified. While Arkansas courts have not expressly addressed the issue, the privilege is not absolute but is likely more expansive than a typical conditional privilege.

Statute and leading cases:

In Cooper v. Wowt-Channel 6 Gray Television Group Inc., No. CI 18-2674, 2018 WL 7500207, at *4 (Neb. Dist. Ct. Nov. 05, 2018), a Nebraska court cited to the Restatement (Second) of Torts § 611 as providing the contours of the fair report privilege. The Second Restatement, in turn, explains that the “privilege of the publication of reports of defamatory statements covered in this Section is not an absolute privilege. It is, however, somewhat broader in its scope than the conditional privileges covered in §§ 594 to 598A.” Restatement (Second) of Torts § 611.

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

While the privilege does apply to initial court documents like petitions, see Fitch v. Daily News Publishing Co., 217 N.W. 947, 948-49 (1928) (dismissing defamation claim arising from a plaintiff’s challenge to a newspaper’s report of facts contained in his wife’s petition for divorce), the Nebraska Supreme Court has stated that the “privilege extends to all matters which have been made the subject of judicial proceedings, though such proceedings may be merely preliminary, or interlocutory, or even ex parte. . . . it will render privileged a fair report of the charges made in a bill of equity which has been presented to the court and upon which the court has acted . . . .” id. at 949.

Other interesting nuances to the privilege:

The court in Fitch also determined that “[a] newspaper is allowed to make comments, draw deductions, and slightly add to court documents, if such inferences are fair, honest, and truthful deductions from the privileged proceedings, but of course it does not follow that a newspaper has permission to publish a lie at any time.” Fitch v. Daily News Pub. Co., 217 N.W. 947, 950 (1928).

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Nevada

Prepared by Lauren Russell, Ballard Spahr LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

Wynn v. AP, 475 P.3d 44, 50 (Nev. 2020) (privilege extended to police press conference and officially released email regarding citizen complaint of rape)

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Wynn v. Smith, 117 Nev. 6, 14 (2001)

Does the privilege in this state cover sealed and confidential materials?

No

Statute and leading cases:

Wynn v. Smith, 117 Nev. 6, 14 (2001) (recognizing privilege “should apply to all public, official actions or proceedings” but holding it did not apply to confidential investigatory reports)

Is the fair report privilege in this state absolute or qualified?

Absolute

Statute and leading cases:

Adelson v. Harris, 133 Nev. 512, 514 (2017); Sahara Gaming Corp. v. Culinary Workers Union Local 226, 115 Nev. 212, 214 (1999).

Other interesting nuances to the privilege:

In Wynn v. AP, 475 P.3d 44, 50 (Nev. 2020), the Supreme Court held the privilege did not extend to a police report documenting a citizen’s complaint on grounds that it “is simply the complainant’s statement about the facts of the case rather than an official action or proceeding such as an arrest or the bringing of charges.”

In Adelson v. Harris, 133 Nev. 512, 514 (2017) , the Supreme Court held hyperlinking to the official documents summarized in the report was sufficient attribution for the privilege to apply.

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New Hampshire

Prepared by Lauren Russell, Ballard Spahr LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

Thomas v. Tel. Publ’g Co., 155 N.H. 314, 332 (2007) (noting the privilege extended to statements “based upon press conferences, interviews with a police chief, . . . or other types of official ‘conversations’”).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Thomas v. Tel. Publ’g Co., 155 N.H. 314, 333 (2007) (“[O]fficial police records, such as official blotters, official reports, and so forth, fall within the privilege”).

Does the privilege in this state cover sealed and confidential materials?

Unclear

Statute and leading cases:

In Thomas v. Tel. Publ’g Co., 155 N.H. 314, 328 (2007), the Supreme Court held the privilege applied to a presentence investigation report even though the plaintiff argued this report was confidential, but it did not squarely address plaintiff’s claim that it was confidential and elsewhere in dicta cited a New Hampshire case holding the privilege didn’t extend to confidential investigatory reports.

Is the fair report privilege in this state absolute or qualified?

Qualified

Statute and leading cases:

Thomas v. Tel. Publ’g Co., 155 N.H. 314, 329 (2007) (privilege not defeated by actual malice but by a showing of common law malice “involving ill will or intent to harm”)

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New Jersey

Prepared by Benjamin McCoy, Fox Rothschild LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes.

Statute and leading cases:

The fair report privilege “protects the publication of defamatory matters that appear in a report of an official action or proceeding, or of a meeting open to the public that deals with a matter of public concern.” See Salzano v. Jersey Media Grp., 201 N.J. 500, 993 A.2d 778, 786 (N.J. 2010).

A qualified privilege extends to all legislative proceedings, including the investigations of committees and deliberations of local councils, and the acts of executive/administrative officials, including their official reports and communications. See Swede v. Passaic Daily News, 30 N.J. 320, 153 A.2d 36 (discussing Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 149 A.2d 193 (N.J. 1959) (adopting the analogous rule given in the original Restatement).

See Molnar v. Star-Ledger, 471 A.2d 1209 (N.J. Super. App. Div. 1984) (finding privileged news coverage of public officials’ statements to reporters pertaining to matters within the scope of their official duties); see also Orso v. Goldberg, 665 A.2d 786 (N.J. Super. 1995) (extending a qualified privilege to accusations made during non-public interviews).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes.

Statute and leading cases:

Lavin v. New York News, Inc., 757 F.2d 1416 (3d. Cir. 1985) (finding newspaper account of affidavit summarizing FBI investigation protected by the fair report privilege). The privilege applies to official action taken by the police.

Sedore v. Recorder Pub. Co., 716 A.2d 1196 (N.J. Super. App. Div. 1998) ( discussing statutory extension of fair report privilege to official statements issued by police department heads and county prosecutors in investigations, but not to statements of subordinates).

Does the privilege in this state cover sealed and confidential materials?

No.

Statute and leading cases:

See Fortenbaugh v. New Jersey Press, Inc., 722 A.2d 568 (N.J. Super. App. Div. 1999) (sealed records and documents which are withheld from public eye pursuant to court order do not come within scope of the fair report privilege) (citing Prosser and Keeton on Torts § 115 at 837 (5th ed. 1984)).

Is the fair report privilege in this state absolute or qualified?

Qualified.

Statute and leading cases:

Newspapers possess a qualified or conditional privilege to report on public proceedings. See Swede v. Passaic Daily News, 30 N.J. 320, 153 A.2d 36 (N.J. 1959).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes, it extends to court pleadings, such as a complaint. See Salzano v. North Jersey Media Group, Inc., 201 N.J. 500, 993 A.2d 778 (N.J. 2010) (fair report privilege extends to statements contained in filed pleadings that have not yet come before a judicial officer).

What does it take to invoke the privilege? Any idiosyncrasies in this area?

This privilege is an affirmative defense. See JNL Management, LLC v. Hackensack University Medical Center, 2019 WL 1951123 (D.N.J. May 2, 2019) citing Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 149 A.2d 193 (N.J. 1959) (“[T]he defendant has at the outset the burden of establishing the existence of a privileged occasion for the publication….”).

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New Mexico

Prepared by Allyson Veile, Ballard Spahr LLP

In general:

New Mexico’s Supreme Court has rarely addressed fair report privilege, and New Mexico does not have a statute recognizing the privilege. The Supreme Court has only explicitly held that court proceedings are covered. See Henderson v. Dreyfus, 191 P. 442, 452 (N.M. 1919); Rockafellow v. N.M. State Trib. Co., 397 P.2d 303, 306 (N.M. 1964). The Court of Appeals has expanded the privilege somewhat. This research provides the best authority available on each question. Still, most of these research questions cannot be answered with a firm Y/N.

Does the fair report privilege in this state cover press conferences and statements by public officials?

No authority directly on point.

Statute and leading cases:

There is no case that applies the fair report privilege to press conferences or statements by public officials. It is unclear whether the fair report privilege in New Mexico even applies to public proceedings other than court proceedings—New Mexico’s Supreme Court declined to address the issue of privilege in an early case involving reporting on a meeting of a committee of a city council. See Del Rico Co. v. New Mexican, Inc., 246 P.2d 206, 215 (N.M. 1952), overruled on other grounds by Marchiondo v. Brown, 649 P.2d 462, 472 (N.M. 1982).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Likely yes.

Statute and leading cases:

The extent of investigatory/law enforcement materials that may be covered is not clear because there is only one case on point. But New Mexico’s Court of Appeals has explained that an arrest report would be covered. See Furgason v. Clausen, 785 P.2d 242, 246 (N.M. Ct. App. 1989) (explaining arrest report was covered but additional facts reported from outside the arrest report was not).

Does the privilege in this state cover sealed and confidential materials?

No authority directly on point, but likely no.

Statute and leading cases:

There are no cases directly addressing sealed or confidential materials. A leading case from New Mexico’s Court of Appeals implies that sealed materials would not be covered because the public cannot independently access them. See Stover v. J. Publ’g Co., 731 P.2d 1335, 1340 (N.M. Ct. App. 1985) (noting importance of the fact that affidavit covered by the fair report privilege in that case “was unsealed and, therefore, available for public examination.”).

Is the fair report privilege in this state absolute or qualified?

Likely absolute.

Statute and leading cases:

New Mexico’s Supreme Court has explicitly declined to address whether the privilege is qualified or absolute, so this is somewhat of an open question. See Del Rico Co. v. New Mexican, Inc., 246 P.2d 206, 215 (N.M. 1952) (deeming it unnecessary to address questions about whether privilege was qualified or absolute), overruled on other grounds by Marchiondo v. Brown, 649 P.2d 462, 472 (N.M. 1982). Nevertheless, the Court of Appeals has repeatedly stated that the privilege does not depend on knowledge of falsity. See Stover v. J. Publ’g Co., 731 P.2d 1335, 1338 (N.M. Ct. App. 1985) (“Even if the reporter knows of the falsity of a statement, he is not restrained from reporting the information.”); see also Furgason v. Clausen, 785 P.2d 242, 245 (N.M. Ct. App. 1989) (“The fair report privilege protects against liability even though the publisher may not believe the material reported.”).

Other interesting nuances to the privilege:

New Mexico’s Court of Appeals has limited the scope of the purported “self-report exception”—an exception that prevents a defendant who made the original defamatory publication from utilizing the fair report privilege to repeat it. See Stover v. J. Publ’g Co., 731 P.2d 1335 (N.M. Ct. App. 1985). In Stover, the court explained that the self-report exception would not preclude a media organization from publishing an affidavit by one of its own witnesses from a prior case where the media defendant “did not instigate the judicial proceedings” and where its “newsgathering activities were executed completely independent of and separate from its defense of the [prior] case.” Id. at 1340.

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New York

Prepared by Theresa House, Arnold & Porter Kaye Scholer LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

Rodriguez v. Daily News, L.P., 142 A.D.3d 1062, 1064 (2d Dep’t 2016) (“[T]he subject news reports were substantially accurate reports of the information provided by the NYPD in its press releases.”); Bouchard v. Daily Gazette Co., 136 A.D.3d 1233, 1234 (3d Dep’t 2016) (“[W]e agree with Supreme Court that defendants’ published statements were a fair and true representation of the DOJ press release, thus falling within the statutory privilege afforded by Civil Rights Law § 74.”); Freeze Right Refrigeration & Air Conditioning Servs., Inc. v. City of New York, 101 A.D.2d 175, 182 (1st Dep’t 1984) (“The test is whether the report concerns action taken by a person officially empowered to do so.” (quotation marks omitted)).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Aboutaam v. Dow Jones & Co., 180 A.D.3d 573 (1st Dep’t 2020) (reporting on ICE investigation covered).

Does the privilege in this state cover sealed and confidential materials?

Yes

Statute and leading cases:

Keogh v. New York Herald Trib., Inc., 51 Misc. 2d 888, 891 (Sup. Ct., N.Y. Cty. 1966), aff’d, 28 A.D.2d 1209, 285 N.Y.S.2d 262 (1st Dep’t 1967) (holding that current wording of Civil Rights Law § 74 replaced statute which had limited the privilege to reports of “public” proceedings and had thus excluded reporting on sealed papers; “The legislature has thus made clear its intent that the absolute privilege shall apply to fair and true reports of judicial and other official proceedings, regardless of whether they are public or nonpublic.”); cf. Fridman v. BuzzFeed, Inc., 172 A.D.3d 441, 442 (1st Dep’t 2019) (affirming application of privilege to article concerning “classified briefings and/or an FBI investigation concerning the dossier as a whole, including the confidential report relating to plaintiffs”).

Is the fair report privilege in this state absolute or qualified?

Absolute.

Statute and leading cases:

Cholowsky v. Civiletti, 69 A.D.3d 110, 114 (2d Dep’t 2009) (“Civil Rights Law § 74 . . . originally was enacted in 1854, as a qualified privilege for newspapers publishing ‘a fair and true report” of “any judicial, legislative, or other public official proceedings’. In 1930, former Civil Practice Act § 337 was amended to make the privilege absolute and, in 1940, the privilege was extended from newspapers to ‘any person, firm or corporation’.” (citations omitted)).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes. See McKesson v. Pirro, No. 160992/2017, 2019 N.Y. Misc. LEXIS 1295, at *25 (Sup. Ct., N.Y. Cty. Mar. 25, 2019) (“The dismissal of a complaint does not mean that a news organization—or any entity for that matter—loses the protections of Civil Rights Law § 74 in reporting on the allegations in that dismissed complaint.”); Komarov v. Advance Mag. Publishers, 180 Misc. 2d 658, 660 (Sup. Ct., N.Y. Cnty. 1999); accord Russian Am. Found., Inc. v. Daily News, L.P., 970 N.Y.S.2d 216, 218 (1st Dep’t 2013)..
Does the privilege extend to foreign proceedings? New York law is inconsistent in applying the privilege to reports of foreign proceedings. Compare Daniel Goldreyer, Ltd. v. Van de Wetering, 217 A.D.2d 434, 435-36 (1st Dep’t 1995) (Section 74 privilege applied to description of Dutch Ministry of Justice report) and Aboutaam v. Dow Jones & Co., 180 A.D.3d 573 (1st Dep’t 2020) (reporting on Belgian, Swiss, and French investigations is privileged) with Stepanov v. Dow Jones & Co., No. 150534/2012, 2013 N.Y. Misc. LEXIS 6471, at *6-11 (Sup. Ct., N.Y. Cty. Apr. 18, 2013) (declining to apply privilege to report of complaint submitted to Attorney General of Switzerland) and Stone v. Bloomberg L.P., 67221/2016, 2017 N.Y. Misc. LEXIS 5653, at *7 (Sup. Ct., Westchester Cty. May 11, 2017) (declining to apply privilege to report of Hong Kong police investigation).

What does it take to invoke the privilege? Any idiosyncrasies in this area?

A report will qualify as reporting on a protected proceeding so long as it is not “impossible” for the ordinary viewer to determine whether defendant was reporting on such a proceeding. Cholowsky v. Civiletti, 69 A.D.3d 110, 1141-15 (2d Dep’t 2009); accord Fridman v. Buzzfeed, Inc., 172 A.D.3d 442 (1st Dep’t 2019); Kinsey v. N.Y. Times Co., 991 F.3d 171 (2d Cir. 2021) (“[O]ur case law does not require that the court filing, the court, or the jurisdiction be specifically identified in the article. The key question is whether the reader is able to determine that the report is of a proceeding.” (footnote omitted)). Section 74 does not require a news organization to “tie every specific allegation in the report to a specific instance of official action.” Fridman v. Buzzfeed, Inc., No. 154895/2017, 2021 WL 1040531, at *7 (Sup. Ct., N.Y. Cnty. Mar. 11, 2021) (quoting Gubarev v. BuzzFeed, Inc., 340 F. Supp. 3d 1304, 1314 (S.D. Fla. 2018)) (This is so because “defamation law has traditionally stopped short of imposing extensive investigatory requirements on a news organization reporting on a governmental activity or document.”). Further, the privilege applies when a report combines information from multiple governmental sources. SentosaCare LLC v. Lehman, No. 504407/2016, 2018 WL 692568, at *7, 58 Misc. 3d 1216(A), 95 N.Y.S.3d 126 (Sup. Ct., Kings Cnty. Jan. 25, 2018) (“There is no requirement that a communication be limited to a single source or a single proceeding.”); Kinsey v. N.Y. Times Co., 991 F.3d 171, at 179 n.37 (2d Cir. 2021) (article’s “references to a litany of investigations and proceedings” does not deprive it of protections under Section 74 because “[i]t is clear from the article itself that quoted language [from a declaration] is drawn from an official proceeding” and because, consistent with a liberal interpretation of the statute, challenged language should not be reviewed “with a ‘lexicographer’s precision’ ” (citation omitted)).

Other interesting nuances to the privilege:

Although New York’s “fair and true report privilege” under Civil Rights Law § 74 generally applies to confidential or sealed proceedings, New York’s Domestic Relations Law § 235 may preclude application of the privilege to sealed records in matrimonial proceedings. Shiles v. News Syndicate Co., 27 N.Y.2d 9, 14-15 (1970); see also Grab v. Poughkeepsie Newspapers, Inc., 91 Misc. 2d 1003, 1005 (Sup. Ct., Duchess Cty. 1977) (limiting Shiles to matrimonial proceedings and applying privilege to report on sealed youthful offender proceedings); Zappin v. NYP Holdings Inc., 769 F. App’x 5, 8 (2d Cir. 2019) (declining to apply Shiles to public matrimonial proceedings).

In some circumstances, the privilege may apply to positions that will be taken in lawsuits, even if they are not yet filed at the time of the report. GEM Holdco, LLC v. Changing World Techs., L.P., No. 650841/2013, 2014 WL 4249134, at *6 (Sup. Ct., N.Y. Cnty. Aug. 28, 2014) (press release issued by defendants announcing their intent to file counterclaims against plaintiffs for fraud was privileged under Section 74, even though defendants had not yet filed the counterclaims at the time of the privileged communication and still had not filed them over a year later); Tacopina v. O’Keeffe, No. 14 Civ. 8379(PAC), 2015 WL 5178405, at *4 (S.D.N.Y. Sept. 4, 2015) (“In certain circumstances, publication of legal documents that have not yet been filed may be protected by the fair reporting privilege. New York courts have held that statements to the press regarding the litigation position a party intends to take are protected by New York Civil Rights Law § 74, even where the documents containing the position have not yet been filed, so long as the party ultimately takes that position in the litigation.”), aff’d, 645 F. App’x 7 (2d Cir. 2016); Hudson v. Goldman Sachs & Co., 304 A.D.2d 315, 316 (1st Dep’t 2003) (privilege applies to party’s out-of-court statement about position it intends to take in future court filing).

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North Carolina

Prepared by C. Amanda Martin, Stevens, Martin, Vaughn & Tadych, PLLC

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes (statements by public officials)

Statute and leading cases:

While not using the label fair report, the NC Court of Appeals applied its principles in finding that a reporter “was not negligent in relying on Sheriff Phillips to gain information regarding plaintiff’s being listed on Interpol or as to the status of warrants sworn out against plaintiff. In fact, consulting a law enforcement agency may have been the only avenue for obtaining this information.” McKinney v. Avery Journal, Inc., 99 N.C. App. 529, 532-33, 393 S.E.2d 295, 297 (1990).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes with regard to warrants but undecided at an appellate level regarding other materials such as witness statements made to law enforcement.

Statute and leading cases:

Lacomb v. Jacksonville Daily News Co., 142 N.C. App. 511, 543 S.E.2d 219 (2001).

Does the privilege in this state cover sealed and confidential materials?

No case has addressed this.

Is the fair report privilege in this state absolute or qualified?

No case has addressed this directly.

Other interesting nuances to the privilege:

Two cases from North Carolina apply a fair report-like privilege without using the term. In addition to the McKinney case noted above, a federal court applying NC law considered reporting related to proceedings of the State Board of Alcoholic Control. Kinloch v. News & Observer Publ’g Co., 314 F. Supp. 602, 603 (E.D.N.C. 1969). The article that gave rise to the libel suit was based on a hearing and a hearing examiner’s report. The court found that the article published by the News & Observer was a substantially accurate, fair and complete account of the proceedings before the Board. In addressing the plaintiff’s complaint about the article’s summary of the proceedings, the opinion finds, “It was never contemplated that any newspaper could publish more than the highlights of any administrative or judicial proceeding. In the context of this action for libel, there is no room for dispute as to whether this article was reasonably fair and complete.”

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North Dakota

Prepared by Tobin Raju, Washington University in St. Louis School of Law First Amendment Clinic

(Codified at N.D. Cent. Code Ann. § 14-02-05)

Does the fair report privilege in this state cover press conferences and statements by public officials?

Unclear, the issue has not been addressed by North Dakota courts.

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Unclear, the issue has not been addressed by North Dakota courts.

Does the privilege in this state cover sealed and confidential materials?

Unclear, the issue has not been addressed by North Dakota courts.

Is the fair report privilege in this state absolute or qualified?

Qualified.

Statute and leading cases:

Riemers v. Grand Forks Herald, 688 N.W.2d 167, 170 (N.D. 2004) (“It should be noted, however, that a privileged communication, under Section 14–02–05(4) [the section codifying the fair report privilege], does not enjoy absolute immunity. Rather, the privilege is a qualified privilege to prevent abuse.”)

What does it take to invoke the privilege? Any idiosyncrasies in this area?

It appears North Dakota has adopted a two-step analysis in determining whether the privilege applies: “[F]irst, the court must determine whether the attending circumstances of the communication occasion a qualified privilege and if so, the court must then determine whether the privilege was abused.” Riemers v. Grand Forks Herald, 688 N.W.2d 167, 170 (N.D. 2004) (citation omitted). Second, “[h]aving resolved that a qualified privilege exists, the court must then determine whether that qualified privilege was abused. ‘A qualified privilege is abused if statements are made with actual malice, without reasonable grounds for believing them to be true, and on a subject matter irrelevant to the common interest or duty.”’ Id. (citation omitted).

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Ohio

Prepared by Jack Greiner, Darren Ford, and Kellie Kulka, Graydon Head & Ritchey

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes, if statement originates from a source covered by the privilege.

Statute and leading cases:

Martinez v. WTVG, Inc., 6th Dist. Lucas, 2008-Ohio-1789, 2008 WL 1700443 (holding that television statement’s publication of defamatory statement about plaintiff based on erroneous police representation that mugshot of plaintiff was person recently indicted for rape was protected by fair report privilege because representation originated with police record).

Smitek v. Lorain Cty. Printing & Publishing Co., 9th Dist. Lorain No. 94CA006023, 1995 WL 599036 (Oct. 11, 1995) (newspaper’s report based on a press conference given by the mayor was “a fair report of what later was shown to be inaccurate information provided by government officials”).

April v. Reflector-Herald, Inc., 546 N.E.2d 466 (Ohio Ct. App. 6th Dist. 1988) (holding that newspaper’s publication of sheriff’s defamatory statement about the reason for plaintiff’s termination that occurred after a meeting about the termination, and which did not appear in an official record, was not protected by the fair report privilege).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

R.C. 2317.05 covers “publication of a fair and impartial report of . . . the arrest of any person accused of crime . . .”

Dinkel v. Lincoln Publ’g (Ohio), Inc., 93 Ohio App. 3d 344, 346–47, 638 N.E.2d 611 (12th Dist. 1994) (“R.C. 2317.05 provides that the publication of a fair and impartial report of the contents of a police report is privileged, unless it is proven that it was published maliciously.”)

Does the privilege in this state cover sealed and confidential materials?

Yes.

Statute and leading cases:

Oney v. Allen, 529 N.E.2d 471, 474 (Ohio 1988) (rejecting appellees’ argument that the secrecy of the indictment, and the subsequent reporting on that secret indictment, rendered the fair report privilege inapplicable).

Is the fair report privilege in this state absolute or qualified?

Qualified.

Statute and leading cases:

Martinez v. WTVG, Inc., 6th Dist. Lucas, No. L-07-1269, 2008-Ohio-1789, ¶ 33 (“[T]he fair report privilege in R.C. 2317.04 and 2317.05 is a qualified privilege to defamation.”).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes. R.C. 2317.05, by its express terms, applies to initial filings.

Does the privilege extend to foreign proceedings?

Unclear. R.C. 2317.05 by its terms applies to filings in “any court of competent jurisdiction.”

What does it take to invoke the privilege? Any idiosyncrasies in this area?

To invoke the privilege, a defendant must demonstrate that the publication was substantially accurate, which means it must have “conveyed the essence of the official record to the ordinary reader, without misleading the reader by the inclusion of the inaccurate extra-record information or the exclusion of relevant information in the record.” Oney v. Allen, 529 N.E.2d 471, 471 (Ohio 1988), paragraph 3 of the syllabus.

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Oregon

Prepared by Rian Dawson, Honigman LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Potentially, if it involves statements made regarding official proceedings

Statute and leading cases:

Kilgore v. Koen, 288 P. 192 (Or. 1930) (“Fair and impartial reports of judicial, executive, legislative, and sometimes other public official proceedings are covered by a qualified privilege, even if the report contains matters that would otherwise be defamatory.”)

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Potentially

Statute and leading cases:

Paulson v. Carter, No. 04-1501, 2006 WL 381951 (D. Or. Feb. 16, 2006) (reporting regarding state bar ethics investigations were privileged)

Does the privilege in this state cover sealed and confidential materials?

Potentially, though there is no case law on point

Statute and leading cases:

Kilgore v. Koen, 288 P. 192 (Or. 1930) (“Fair and impartial reports of judicial, executive, legislative, and sometimes other public official proceedings are covered by a qualified privilege, even if the report contains matters that would otherwise be defamatory.”)

Is the fair report privilege in this state absolute or qualified?

Qualified.

Statute and leading cases:

Paulson v. Carter, No. 04-1501, 2006 WL 381951 (D. Or. Feb. 16, 2006) (“The defense of qualified privilege requires a plaintiff to prove that a defendant acted with actual malice and abused the privileged occasion. Actual malice is knowing that the statement is false or with reckless disregard of the statement’s truth or falsity.”)

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Unclear, though not likely. Gunter v. The Guardian Press Foundation, Inc., No. 02–6254, 2004 WL 1088290 (D. Or. May 14, 2004) (looking skeptically at privilege and noting that “The Oregon Observer is charged with spreading defamatory statements made in a complaint and not with reporting on the adjudication of the complaint . . . even assuming that a qualified privilege applies in this case, plaintiff has presented sufficient evidence of a trier of fact to infer that not only did the publisher lack a reasonable ground to believe the statement, it may have made the statement in bad faith.”)

Does the privilege extend to foreign proceedings?

No case law on this.

What does it take to invoke the privilege? Any idiosyncrasies in this area?

The reporting must be “fair and impartial.” Kilgore v. Koen, 288 P.192 (Or. 1930).

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Pennsylvania

Prepared by Benjamin McCoy, Fox Rothschild LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

In general, yes.

Statute and leading cases:

The privilege extends to accounts of official proceedings or reports. See Mosley v. Observer Pub. Co., 629 A.2d 965 (Super. Ct. Pa. 1993) (holding that a newspaper has the privilege to report acts of executive or administrative officials of government, including accounts of official proceedings or reports).

Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 439 A.2d 652 (1981) (fair report privilege of Restatement (Second) Torts would have applied to newspaper’s report of comments at press conference if report was fair and accurate).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes.

Statute and leading cases:

The privilege applies to official action taken by the police. A report of the fact of an arrest or charge of crime made by an officer in making or returning an arrest is within the privilege governing reports of official proceedings or public meetings. See Williams v. WCAU-TV, 555 F. Supp. 198 (E.D. Pa. 1983).

The privilege also extends to information contained in search warrants and affidavits for search warrants used in public investigations. See Mosley v. Observer Pub. Co., 629 A. 965 (Pa. Super. 1993); see also Weber v. Lancaster Newspapers, Inc., 878 A.2d 63 (Pa. Super. 2005).

The privilege extends to a summary of FBI investigation documents, even though the investigation materials did not ultimately lead to an arrest. See Medico v. Time, Inc., 643 F.2d 134 (3d. Cir. 1981) (“FBI files seem at least as ‘official’ as the pleadings in civil cases.”). Notably, this case involved reporting on organized crime, which the Court found to serve a legitimate public interest.

Does the privilege in this state cover sealed and confidential materials?

Yes.

Statute and leading cases:

See Medico v. Time, Inc., 643 F.2d 134 (3d. Cir. 1981) (discussing and not questioning the district court’s rejection of the possibility that FBI records were not “official” because they were not generally available to the public).

Is the fair report privilege in this state absolute or qualified?

Qualified.

Statute and leading cases:

See Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190 (E.D. Pa. 1994) (applying PA law, holding that an absolute privilege does not protect statements of a party to a judicial proceeding made outside of the courtroom by the party’s issuing a press release or holding a news conference).

See Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586 (Pa. 1963) (A newspaper has the privilege to report acts of the executive or administrative officials of government, however such right is a qualified or conditional privilege rather than an absolute privilege).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes, it extends to court pleadings, such as a complaint. See Weber v. Lancaster Newspapers, Inc., 2005 PA Super 192, 878 A.2d 63 (2005); see also First Lehigh Bank v. Cowen, 700 A.2d 498 (Pa. Super. 1997) (fair report privilege applied to newspaper report of allegations contained in pleadings upon which no judicial action had been taken).

However, Pennsylvania courts have not decided whether the fair report privilege applies a party’s report of statements and pleadings that have not yet been made or filed, but will be at the appropriate stage of litigation. See Doe v. Kohn Nast & Graf, P.C., 866 F. Supp. 190 (E.D. Pa. 1994)

What does it take to invoke the privilege? Any idiosyncrasies in this area?

See Banka v. Columbia Broadcasting Co., 63 F. Supp. 3d 501 (E.D. Pa. 2014) (Under PA law, the burden is on the defendant asserting fair report privilege to establish existence of privileged occasion).

Other interesting nuances to the privilege:

The privilege also applies to workers’ compensation hearings. See DeMary v. Latrobe Printing and Pub. Co., 762 A.2d 758 (Pa. Super. 2000).

The qualified fair report immunity can be forfeited if a broadcaster “abuses the occasion” by exaggerating or embellishing the account. It must be substantially fair and accurate (i.e. “its ‘gist’ or ‘sting’ is true”), and produces same effect on the mind of the recipient as the precise truth. See Williams v. WCAU-TV, 555 F. Supp. 198, 203 (E.D. Pa. 1983).

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Rhode Island

Prepared by Christopher Proczko, Sapientia Law Group

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes; courts have not addressed the issue as it applies to press conferences and statements by public officials, but (1) reports based on police blotters are covered, and (2) the privilege extends to a meeting open to the public that deals with a matter of public concern.

Statute and leading cases:

Trainor v. The Standard Times, 924 A.2d 766 (R.I. 2007) – Rhode Island Supreme Court applied common law fair report privilege to police report that said the plaintiff failed to appear related to a charge of leaving the scene of an accident, death resulting.” The court found that the report’s interpretation of the police report “constituted at the very least a rough-and-ready summary that was substantially correct.” 924 A.2d at 772 (cleaned up).

Olsen v. Providence Journal, Co., 261 F. Supp. 3d 362 (D.R.I. 2017) – U.S. District Court for the District of Rhode Island determined that a public panel discussion hosted by Rhode Island’s Executive office of Health and Human Services and the Rhode Island’s Department of Corrections, which included officials from Rhode Island’s Office of Health and Human Services, Rhode Island’s Department of Corrections, and the White House Director of National Drug Policy, was an official proceeding to which the fair report privilege applied.

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Not addressed by courts, but likely not. Courts frame privilege as protecting reports of “public meetings and judicial proceedings.”

Statute and leading cases:

Martin v. Wilson Publ’g Co., 497 A.2d 322 (R.I. 1985) – “The common-law privilege of fair report protects the publication of fair and accurate reports of public meetings and judicial proceedings, even when an individual is defamed during the proceeding or action. The privilege does not abrogate the policy of protecting one’s reputation but rather subordinates this value to the countervailing public interest in the availability of information about official proceedings and public meetings.”

Does the privilege in this state cover sealed and confidential materials?

Not addressed by courts.

Statute and leading cases:

Martin v. Wilson Publ’g Co., 497 A.2d 322, 328-29 (R.I. 1985) – “It is important to observe that the fair-report privilege accommodates the important societal interest in facilitating dissemination of information about judicial and governmental proceedings at which identified and identifiable persons may participate in resolving disputes and advancing the progress of government. In a judicial proceeding if one is defamed through cross-examination, opportunity exists for the one defamed to respond to rebut the defamation. With public meetings those susceptible of defamation may attend such gatherings and defend against attacks. We find no similar countervailing policy to protect repetition of rumors.” 497 A.2d at 32839 (internal citation omitted).

Is the fair report privilege in this state absolute or qualified?

Absolute

Statute and leading cases:

Trainor v. The Standard Times, 924 A.2d 766, 773 (R.I. 2007) – “The fair report privilege applies regardless of the actual truth or falsity of what is contained in the underlying official report.”

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South Carolina

Prepared by Eric Robinson and Edward Fenno, Fenno Law

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

Garrard v. Charleston Cnty. Sch. Dist., 429 S.C. 170, 193-94, 838 S.E.2d 698, 710 (Ct. App. 2019).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Yes

Statute and leading cases:

Cobin v. Hearst-Argyle TV, Inc., 561 F. Supp. 2d 546, 551 (D.S.C. 2008) (police arrest report)
McLaughlin v. Darlington Cnty., No. 4:21-1504-SAL-KDW, 2021 U.S. Dist. LEXIS 195002, at *9 (D.S.C. Sep. 17, 2021) (magistrate), adopted, 2021 U.S. Dist. LEXIS 194001, at *1 (D.S.C. Oct. 7, 2021) (Attorney General’s press release).

Brewster v. Laurens County Advertiser, No. 2010-CP-30-1186, 2012 BL 143872, 40 Med. L. Rptr. 1978 (S.C. Ct. Com. Pl. Apr. 10, 2012) (mug shot provided by police).

Does the privilege in this state cover sealed and confidential materials?

No cases found.

Is the fair report privilege in this state absolute or qualified?

Qualified

Statute and leading cases:

Jones v. Garner, 250 S.C. 479, 487, 158 S.E.2d 909, 913 (1968) (“Fair and impartial reports in newspapers of matters of public interest are qualifiedly privileged.”)

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Applicable to court pleadings. Lybrand v. State Co., 179 S.C. 208, 218, 184 S.E. 580, 584 (1936).

Does the privilege extend to foreign proceedings?

No cases found.

What does it take to invoke the privilege? Any idiosyncrasies in this area?

None found.

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South Dakota

Prepared by Tobin Raju, Washington University in St. Louis School of Law First Amendment Clinic

(Codified at S.D. Codified Laws § 20-11-5(4))

Does the fair report privilege in this state cover press conferences and statements by public officials?

While there is no authority expressly determining the issue, it is unlikely that the fair report privilege in South Dakota covers press conferences and statements by public officials.

Statute and leading cases:

The South Dakota fair report privilege is codified at S.D. Codified Laws § 20-11-5(4) and provides that communications made “[b]y a fair and true report, without malice, of a judicial, legislative, or other public official proceeding or of anything said in the course thereof.”

Section 20-11-5 lists other privileges to defamation claims including communications made “[i]n any legislative or judicial proceeding, or in any other official proceeding authorized by law,” which mirrors the language of the fair report privilege. S.D. Codified Laws § 20-11-5(2). Courts in South Dakota have narrowly interpreted in what circumstances these privileges apply and what constitutes “a judicial, legislative, or other public official proceeding.”

In Pawlovich v. Linke, 688 N.W.2d 218 (S.D. 2004), hospital officials conducted an investigation after which plaintiff employee was fired. Plaintiff employee sued defendant for defamation based on statements defendant made during the investigation. The South Dakota Supreme Court analyzing the applicability of a privilege pursuant to S.D. Codified Laws § 20-11-5(2) first noted that the investigation was not a judicial or legislative proceeding and instead focused “solely on the language contained in the second half of SDCL 20–11–5(2) to determine the applicability of this privilege here: ‘any other official proceeding authorized by law.’” Id. at 222. The court determined that “[a]n official proceeding is that which resembles judicial and legislative proceedings, such as transactions of administrative boards and quasi-judicial and quasi-legislative proceedings.” Id. at 222 (internal quotation marks and citations omitted). See also Waln v. Putnam, 196 N.W.2d 579, 580 (S.D. 1972) (recognizing limitations on the type of proceedings § 20-11-5(2) may apply.);

Does the fair report privilege in this state cover investigatory and law enforcement materials?

While there is no authority expressly determining the issue, it is unlikely that the fair report privilege in South Dakota covers cover investigatory and law enforcement materials.

Statute and leading cases:

No case law has been identified in which a South Dakota court applied the fair report privilege to cover investigatory or law enforcement materials.

The South Dakota fair report privilege is codified at S.D. Codified Laws § 20-11-5(4) and provides that communications made “[b]y a fair and true report, without malice, of a judicial, legislative, or other public official proceeding or of anything said in the course thereof.”).

Section 20-11-5 lists other privileges to defamation claims including communications made “[i]n any legislative or judicial proceeding, or in any other official proceeding authorized by law,” which mirrors the language of the fair report privilege. S.D. Codified Laws § 20-11-5(2). Courts in South Dakota have narrowly interpreted in what circumstances these privileges apply and what constitutes “a judicial, legislative, or other public official proceeding.”

In Pawlovich v. Linke, 688 N.W.2d 218 (S.D. 2004), hospital officials conducted on investigation after which plaintiff employee was fired. Plaintiff employee sued defendant for defamation based on statements defendant made during the investigation. The South Dakota Supreme Court analyzing the applicability of a privilege pursuant to S.D. Codified Laws § 20-11-5(2) first noted that the investigation was not a judicial or legislative proceeding and instead focused “solely on the language contained in the second half of SDCL 20–11–5(2) to determine the applicability of this privilege here: “any other official proceeding authorized by law.’” Id. at 222. The court determined that “[a]n official proceeding is that which resembles judicial and legislative proceedings, such as transactions of administrative boards and quasi-judicial and quasi-legislative proceedings.” Id. at 222 (internal quotation marks and citations omitted). See also Waln v. Putnam, 196 N.W.2d 579, 580 (S.D. 1972) (recognizing limitations on the type of proceedings the § 20-11-5(2) may apply.)

Does the privilege in this state cover sealed and confidential materials?

Unclear. South Dakota courts have not addressed this issue.

Is the fair report privilege in this state absolute or qualified?

Qualified.

Statute and leading cases:

Janklow v. Viking Press, 378 N.W.2d 875, 878 (S.D. 1985) (discussing the fair report privilege and stating “the First Amendment protection afforded the press is a qualified privilege, in that it falls before proof of malice”) (reversing and remanding dismissal of defamation action against author, publisher, sellers, and distributors of allegedly libellous book and finding privilege of neutral reportage unavailable)

POET, LLC v. Nelson Eng’g, Inc., No. CV 17-4029, 2018 WL 791254, at *5 (D.S.D. Feb. 7, 2018) (“Under South Dakota law, the fair report privilege is qualified rather than absolute because it can be waived by a showing of malice.”) (finding counterclaim defendant’s allegedly defamatory statements made in a complaint and excerpted by counterclaim defendant on its website was not protected by fair report privilege)

Setliff v. Akins, 616 N.W.2d 878, 891(S.D. 2000) (“There are two types of privileges under SDCL 20–11–5. Subsections (1) and (2) are considered absolute, unconditional privileges. Additionally, subsections (3) and (4) [the fair report privilege] are considered conditional, qualified privileges and may be lost if the speaker publishes the statement when he either (a) in fact does not believe it to be true, or (b) has no reasonable grounds to believe it to be true.”) (internal citations omitted).

Other interesting nuances to the privilege:

California has codified its fair report privilege with language substantially similar to South Dakota and North Dakota’s statutes. Compare Cal. Civ. Code § 47(d),(e) with S.D. Codified Laws § 20-11-5(4) and N.D. Cent. Code Ann. § 14-02-05. While unaddressed in South Dakota and North Dakota, California courts have held that police investigations are covered under the fair report privilege as “official proceedings.” See Williams v. Taylor, 754, 181 Cal. Rptr. 423, 428 (Cal. App. 1982).

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Tennessee

Prepared by Victoria Noble, First Look Institute Inc

Does the fair report privilege in this state cover press conferences and statements by public officials?

No- does not cover statements an official made privately (e.g. in an interview), but whether privilege applies to press conferences appears to be an open question.

Statute and leading cases:

Burke v. Sparta Newspapers, Inc., 592 S.W.3d 116, 124 (Tenn. 2019) (holding that the fair report privilege did not apply to private conversation between reporter and police detective, but expressly noted that the case did “not resolve the question of whether a press conference or a press release constitutes a public proceeding or an official action of government that has been made public.”)

Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 286-87 (Tenn. Ct. App. 2007) (“There is little question that the August 9, 2000 story would have been protected by the fair report privilege had it been limited to the contents of the Chief of Police’s press release. However, the story contained other information regarding the details of the December 27, 1998 incident” including from a “private interview” with a police officer, which were not covered by the privilege.)

Hill v. Old Navy, LLC, 20 F. Supp. 3d 643, 648 (W.D. Tenn. 2014) (“Police communications have been included in the official actions/proceedings covered by the fair report privilege.” But note that neither party disputed that police department press release at issue “is an official action/communication that falls under the fair report privilege.”)

Does the fair report privilege in this state cover investigatory and law enforcement materials?

No

Statute and leading cases:

Burke v. Sparta Newspapers, Inc., 592 S.W.3d 116, 124 (Tenn. 2019) (quoting (Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 286-87 (Tenn. Ct. App. 2007) (quoting David A. Elder, Defamation: A Lawyer’s Guide § 3:10, at 3-30-3:31 (2003)) (“The Court of Appeals has declined to expand the fair report privilege to ‘the “myriad types of informal reports and official and unofficial investigations, contacts, and communications of law enforcement personnel at all levels of the state and federal bureaucracy with local, regional, and national media.”’”)

Does the privilege in this state cover sealed and confidential materials?

No

Statute and leading cases:

Funk v. Scripps Media, Inc., 570 S.W.3d 205, 217-18 (Tenn. 2019) (remanding case with instructions to determine whether judicial materials were filed under seal or subject to a protective order and thus, whether information at issue “was obtained from an official action or proceeding.”)

Is the fair report privilege in this state absolute or qualified?

Absolute

Statute and leading cases:

Funk v. Scripps Media, Inc., 570 S.W.3d 205, 217 (Tenn. 2019) (“We hold that neither express malice nor actual malice can defeat the fair report privilege. The privilege can only be defeated by showing that a report about an official action or proceeding was unfair or inaccurate.”)

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Texas

Prepared by Leslie Minora, Ballard Spahr LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 717 (Tex. 2016) (“KBMT’s broadcast was a simple, accurate, fair, and brief restatement of the [Texas Medical] Board’s press release and the order to which [plaintiff] had agreed.”); Williams v. Cox Newspapers, Inc., 2009 Tex. App. LEXIS 6484, *10 (Tex. App.—Texarkana Jul. 31, 2009) (“Official statements from law enforcement, including press releases, trigger application of this privilege.”); Freedom Commc’ns, Inc. v. Sotelo, 2006 Tex. App. LEXIS 5132, *1-2, 8-9 (Tex. App.—Eastland [11th Dist.] Jun. 15, 2006) (reversing denial of media defendants’ motion for summary judgment based on privilege where “the newspaper article and news broadcasts were based on a news release issued by the Odessa Police Department”) (citing Restatement (Second) of Torts § 611 & cmt. d (1977)).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

There does not appear to be on-point case law, but the statutory fair report privilege in Texas broadly covers “official proceedings” in addition to “judicial proceedings.” Tex. Civ. Prac. & Rem. Code § 73.002(b)(1).

Additionally, section 73.005 of the Texas Citizens Participation Act provides even broader protection. Under section 73.005(b), in an action brought against “a newspaper or other periodical or broadcaster,” the defense of truth “applies to an accurate reporting of allegations made by a third party regarding a matter of public concern.” The Supreme Court of Texas has referred to this provision as the “third-party-allegation rule.” The Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019).

Statute and leading cases:

See above.

Does the privilege in this state cover sealed and confidential materials?

There does not appear to be on-point case law, but the fair report privilege and “third-party-allegation rule” both apply broadly, as noted above.

Statute and leading cases:

See above.

Is the fair report privilege in this state absolute or qualified?

It isn’t characterized as “absolute,” but it is very protective.

Statute and leading cases:

The only qualification included in section 73.002 (other than the statement being a “fair, true, and impartial account”) is that the “privilege does not extend to the republication of a matter if it is proved that the matter was republished with actual malice after it had ceased to be of public concern.” § 73.002(a).

Section 75.005 (the “third-party-allegation rule”) does not include any such qualification at all.

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes. Langston v. Eagle Pub. Co., 719 S.W.2d 612, 624 (Tex. App.—Waco [10th Dist.] 1986) (“Because the attorney general’s original petition in the consumer-fraud suit was open to the public’s inspection as an official court record, the defendants could truthfully publish, without malice, any allegation contained in the pleading without fear of liability.” (emphasis added)).

Does the privilege extend to foreign proceedings?

There does not appear to be on-point case law, but there is also nothing indicating that it would not apply to foreign proceedings.

What does it take to invoke the privilege? Any idiosyncrasies in this area?

There don’t appear to be any idiosyncrasies about invoking the privilege.

Other interesting nuances to the privilege:

Texas courts recognize a common law fair report privilege, as well as a statutory fair report privilege, Tex. Civ. Prac. & Rem. Code § 73.002(b)(1); Scripps NP Operating, LLC v. Carter, 567 S.W.3d 1, 21 (Tex. App.—Corpus Christi – Edinburg [13th Dist.] 2016), and these are commonly analyzed by courts as coextensive.

Additionally, section 73.002(b)(2) separately codifies a fair comment privilege. See Neely v. Wilson, 418 S.W.3d 52, 62 (Tex. 2013).

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Utah

Prepared by Ashley Waddoups, Ballard Spahr LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes

Statute and leading cases:

Utah Code Ann. § 76-9-504 Fair reporting privilege of newspaper or broadcasting station personnel as to public official proceedings — Privilege as to defamatory matter not subject to censorship.

There are three (3) Utah cases that discuss fair report privilege, but none are specific to Utah’s cover press conferences and/or statements made by public officials.

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Unfortunately, there is no Utah statute or case that directly answer, or provide insight into, this question.

Does the privilege in this state cover sealed and confidential materials?

Unfortunately, there is no Utah statute or case that directly answer, or provide insight into, this question.

Is the fair report privilege in this state absolute or qualified?

I was unable to find a Utah statute that was directly on point, but it appears that fair report privilege in Utah is qualified. Pursuant to Utah statute, a publication or broadcast “which shall not be considered as libelous or slanderous per se, is one made . . . by fair and true report, without malice” regarding “a judicial, legislative, or other public official proceeding, or of anything said in the course thereof, or of a charge or complaint made by any person to a public official, upon which a warrant shall have been issued or an arrest made[,]” and/or “the proceedings of a public meeting, if such meeting was lawfully convened for a lawful purpose and open to the public, or the publication or broadcast of the matter complained of was for the public benefit.” See Utah Code Ann. § 45-2-3(4)-(5).

Statute and leading cases:

Seegmiller v. KSL, Inc., 626 P.2d 968, 977 (Utah 1981) ( Section 45-2-3 sets forth five types of communication which are subject to the protection of a privilege. Two are absolute, and three are conditional, being applicable only in the absence of malice.”).

Note: there are other cases that cite to this statute, but none that I found to be particularly beneficial.

Other interesting nuances to the privilege:

Utah law on this subject is extremely limited, and most cases that cite to applicable statutes (cited above) are classic, garden-variety libel and defamation cases. Further, very few of the cases deal with a news reporter/news station being sued.

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Vermont

Prepared by Victoria Noble, First Look Institute Inc

Does the fair report privilege in this state cover press conferences and statements by public officials?

No

Statute and leading cases:

Vermont appears to extend qualified priviledge to fair and accurate reporting on judicial proceedings, see, e.g., Lancour v. Herald & Globe Ass’n, 111 Vt. 371, 384, 17 A.2d 253, 259 (1941) (“Information of this nature given out by the police is not to be considered as a statement of facts developed on a judicial investigation or the statement of a fact resulting from a judicial investigation.”), and “actual facts as to the commission of a crime, the arrest, and the charges brought against a person suspected of a crime, as long as the statement does not assert that the person arrested is guilty of the crime[]” and is “at least substantially accurate[.]” Weisburgh v. Mahady, 147 Vt. 70, 72, 511 A.2d 304, 306 (1986).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

No

Statute and leading cases:

Stone v. Banner Pub. Corp., 677 F. Supp. 242, 246 (D. Vt. 1988) (“Although Vermont allows a qualified privilege to fair, impartial, substantially accurate reports of judicial proceedings, such a privilege does not extend to a preliminary police investigation.”)

Does the privilege in this state cover sealed and confidential materials?

Did not find case law on this

Is the fair report privilege in this state absolute or qualified?

Qualified

Statute and leading cases:

Stone v. Banner Pub. Corp., 677 F. Supp. 242, 246 (D. Vt. 1988); Lancour v. Herald & Globe Ass’n, 111 Vt. 371, 383, 17 A.2d 253, 258 (1941)

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Virginia

Prepared by Sarah Guinee, UVA First Amendment Clinic

Does the fair report privilege in this state cover press conferences and statements by public officials?

Yes, in federal court. Chapin applied the privelege to unofficial public remarks of a member of Congress. Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993) (interpreting Virginia law).

Thus far, Virginia state courts have only considered the fair report privilege with respect to judicial records.

Does the fair report privilege in this state cover investigatory and law enforcement materials?

At least one federal court has applied it to investigatory at law enforcement materials. The Western District of Virginia held that statements in a newspaper were reasonable inferences from affidavit to obtain a search warrant filed by the sheriff. Ramey v. Kingsport Publishing Corp., 905 F. Supp. 355 (W.D. Va. 1995) (applying Virginia law).

Does the privilege in this state cover sealed and confidential materials?

It isn’t clear yet, though the Fourth Circuit has applied the privilege to an official letter of reprimand in a case originating in the Eastern District of Maryland. The letter, written inside of the National Cancer Institute, was leaked to the press because of the “public supervision” and “public information” rationales of the fair report privilege. Reuber v. Food Chemical News, Inc. 925 F.2d 703, 713 (4th Cir. 1991) (drawing somewhat on Landmark Communications v. Virginia, applying federal common law?).

Is the fair report privilege in this state absolute or qualified?

The Fourth Circuit and Virginia courts have generally found a qualified fair report privilege. The qualified privilege is overcome when it has been “abused.” Courts have found or implied several forms of abuse.

State courts require proof of common law malice (bad faith) on the part of the republisher to overcome the privilege. Negligence is insufficient. The Gazette v. Harris, 229 Va. 1, 3 (Va. 1985). The Gazette defined the relevant malice as “behavior actuated by motives of personal spite, or ill-will, independent of the occasion on which the communication was made.” Whether the statement by the press was actuated by malice, and the press has thus abused the occasion and exceeded his privilege are questions of fact for the jury. Alexandria Gazette Corp. v. West, 198 Va. 154, 160 (1956) (citing Bragg v. Elmore, 152 Va. 312, 325, 147 S.E. 275 (1929) Luhring v. Carter, 193 Va. 529, 541, 69 S.E.2d 416 (1952).

Federal courts have been far less definitive on what constitutes “abuse.” “The only requirements that must be met in order to avoid liability are properly to attribute the report to the original source and to ascertain that the republication is accurate and complete or a fair abridgment of the official report.”

Rushford v. New Yorker Magazine, 846 F.2d 249, 254 (4th Cir. 1988). The Fourth Circuit has stated in dicta that actual malice may overcome the privilege. Further, the court has applied the “actual malice” requirement under varying definitions and to varying components of the case.

Actual malice on the part of the press was discussed when actual malice actuates the press’s plain adoption of the defamatory statement as its own. For example, the press maliciously did not attribute the quote. Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1098 (4th Cir. 1993).

Court affirmed summary judgement order for press defendants because the statements published “were substantially correct and there was no proof of malice” in a case originating in the Eastern District of Virginia. Citing Gazette, the court noted that actual malice in the reporting may overcome the fair report privilege. Rushford, 846 F.2d at 254 (4th Cir. 1988).

Court adopted New York Times v. Sullivan’s definition of actual malice. Court noted that whether the privilege is qualified or absolute is a matter of judicial debate and discussed application of actual malice in the context of encouraging the press to report timely on government action. Reuber v. Food Chemical News, Inc. 925 F.2d 703, 713 (4th Cir. 1991). Further, the discussion in dicta seemed to refer to statements adopted by news outlets as fact (e.g. not necessarily attributed to a government statement).

But see Mills v. Kingsport Times-News, 475 F. Supp. 1005 (W.D. Va. 1979), applying Gertz v. Robert Welch to impose a standard of negligence regarding the on republications of defamatory statements about a private figure. (Including because this was actually part of the holding, whereas the Fourth Circuit cases afterwards are primarily dicta.

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

It applied to a news outlet’s reiteration of a magistrate judge’s notes taken during an arraignment proceeding. Agbapuruonwu v. NBC Subsidiary (WRC-TV), LLC, 821 F. App’x 234, 241 (4th Cir. 2020), cert. denied sub nom. Fidelis Agbapuruonwu v. NBC Subsidiary (WRC-TV), LLC, 141 S. Ct. 1393, 209 L. Ed. 2d 131 (2021).

Does the privilege extend to foreign proceedings?

Not according to federal court. See Chang-Sin Lee v. Dong-A Ilbo, 849 F.2d 876 (4th Cir. 1988) (applying Virginia law) (“Because we find that foreign governments are not necessarily more reliable than domestic non-official sources, we are not willing to enlarge the scope of the privilege to include information from such governments.”).

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Washington

Prepared by Andrew S. Clark, Ballard Spahr LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Likely yes, so long as (1) the report is attributable to an official proceeding and (2) the report is an accurate or a fair abridgment.

Statute and leading cases:

McNamara v. Koehler, 429 P.3d 6, 8 (Wash. Ct. App. 2018) (holding for the first time that the fair report privilege extends outside “traditional news media” to “websites, webpages, and blogs, reporting on official public proceedings, including judicial proceedings, so long as (1) the report is attributable to an official proceeding and (2) the report is an accurate or a fair abridgment of the official report.”).
Herron v. Trib. Publ’g Co., 736 P.2d 249, 260 (Wash. 1987) (citing Moloney v. Tribune Publ’g Co., 613 P.2d 1173, 1182 (Wash. Ct. App. 1980) (“The [fair report] privilege permits the media to publish . . . reports of any official action or proceeding or of a public meeting that deals with a matter of public concern.”).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Likely yes.

Statute and leading cases:

First, the privilege applies to reports in both civil and criminal proceedings. See Mark v. Seattle Times, 635 P.2d 1081, 1089 (Wash. 1980).

Second, the Washington courts have “long recognized a strong public interest in having access to public proceedings,” a policy determination upon which the Washington Court of Appeals relied to extend the privilege beyond just media officials. See McNamara, 429 F.3d at 8.

Further, the Washington Supreme Court has held that certain non-pleadings filed in criminal cases do receive protection under the privilege. See Mark, 635 P.2d at 1089 (finding that an affidavit of probable cause and investigator’s statements to the press were covered by the privilege despite “not technically” being pleadings).

Thus, the privilege likely encompasses law enforcement and investigatory materials that are publicly available.

Does the privilege in this state cover sealed and confidential materials?

Unclear, but possibly no.

Statute and leading cases:

The court has not directly addressed this issue as far as I can tell. However, the court’s broad reliance on the Restatement 2d of Torts leads me to believe that the court may not extend the privilege to documents that were not available to the public. For example, in Alpine Industries v. Cowles Publishing Co., 57 P.3d 1178, 1186 (Wash. Ct. App. 2002) (emphasis added), the Washington Court of Appeals recognized that the purpose of the privilege “is to serve the public’s interest in obtaining information as to what transpires in official proceedings and public meetings.” See also Herron, 736 P.2d at 260 (recognizing that the privilege applies to statements “made in the course of an official proceeding or contained in an official report”); Moloney, 613 P.2d at 1182 (“The reason underlying the privilege is the interest of the public in receiving information concerning an official action or proceedings and public meetings.”).

Thus, if the public would not have access to a report in an official proceeding based on the confidentiality or sealed status of the report, the privilege may not apply.

Is the fair report privilege in this state absolute or qualified?

The privilege is qualified.

Statute and leading cases:

McNamara, 429 P.3d at 6–7 (citations omitted). (“Washington recognizes the fair report privilege—a conditional privilege that protects a republisher of a statement ‘when the defamatory statement originally was made in the course of an official public proceeding or contained in an official [public] report.’”).

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes. The privilege has been extended to non-pleadings, such as affidavits of probable cause and investigator statements. See Mark, 635 P.2d at 1089.

Does the privilege extend to foreign proceedings?

Unclear. However, the privilege did apply to some domestic documents translated from another language that were disseminated in France. See Maison de France v. Mai Oui!, 108 P.3d 787 (Wash. Ct. App. 2005).

What does it take to invoke the privilege? Any idiosyncrasies in this area?

None that I can tell.

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West Virginia

Prepared by Lauren Russell, Ballard Spahr LLP

Does the fair report privilege in this state cover press conferences and statements by public officials?

Unclear

Statute and leading cases:

Cruse v. Frabrizio, 2014 U.S. Dist. LEXIS 90997, *19 (S.D. W. Va. Apr. 7, 2014), adopted in full, 2014 U.S. Dist. LEXIS 90107 (July 2, 2014) (privilege applied to article summarizing a news release by the sheriff’s department on a matter still under investigation).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

Unclear

Statute and leading cases:

Cruse v. Frabrizio, 2014 U.S. Dist. LEXIS 90997, *19 (S.D. W. Va. Apr. 7, 2014), adopted in full, 2014 U.S. Dist. LEXIS 90107 (July 2, 2014) (privilege applied to article summarizing a news release by the sheriff’s department on a matter still under investigation).

Does the privilege in this state cover sealed and confidential materials?

Unclear

Is the fair report privilege in this state absolute or qualified?

Unclear

Statute and leading cases:

Two federal West Virginia courts have said it is overcome by a showing of actual malice, but the only published West Virginia Supreme Court decision does not say if it is qualified or not. See Hagler v. WSAZ NewsChannel 3, 2020 U.S. Dist. LEXIS 58210, *15 (S.D. W. Va. Jan. 15, 2020); Cruse v. Frabrizio, 2014 U.S. Dist. LEXIS 90997, *19 (S.D. W. Va. Apr. 7, 2014), adopted in full, 2014 U.S. Dist. LEXIS 90107 (July 2, 2014).

Other interesting nuances to the privilege:

There is only one West Virginia Supreme Court case on the privilege. Hinerman v. Daily Gazette Co., 423 S.E.2d 560, 578 (W. Va. 1992). That case held that if an article on a petition submitted to the Supreme Court had been a fair abridgment the privilege would have applied, but it was not. Federal courts in West Virginia have on a few occasions applied the privilege, but there is very little precedent for guidance.

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Wisconsin

Prepared by Christopher Proczko, Sapientia Law Group

Email address: christopherp@sapientialaw.com

Does the fair report privilege in this state cover press conferences and statements by public officials?

No, unless those events are a “public official proceeding authorized by law” or a public statement in the course of any such proceeding..

Statute and leading cases:

Wis. Stat. § 895.05(1) – “The proprietor, publisher, editor, writer or reporter upon any newspaper published in this state shall not be liable in any civil action for libel for the publication in such newspaper of a true and fair report of any judicial, legislative or other public official proceeding authorized by law or of any public statement, speech, argument or debate in the course of such proceeding.”

Buckstaff v. Hicks, 68 N.W. 403, 404 (Wis. 1896) (holding that the privilege applies only to judicial or legislative proceedings, and did not apply to city council meeting).

Does the fair report privilege in this state cover investigatory and law enforcement materials?

This has never been examined by courts, but under the language of § 895.05(1) the answer is no.

Statute and leading cases:

Wisconsin courts have rather steadfastly limited the fair report privilege to only proceedings that have been brought to the attention of the court, and the mere filing of pleadings was insufficient to fall under the statute’s protection. Ilsley v. Sentinel Co., 113 N.W. 425, 427 (holding that the “filing of pleadings or other papers in the clerk’s office” did not “in some way involve at least the attention and invited action of some judicial officer” sufficient to fall under the privilege).

Does the privilege in this state cover sealed and confidential materials?

Never examined by courts, and the language of § 895.05(1) is unclear whether reports based on these materials would fall under the protections of the privilege.

Statute and leading cases:

Wis. Stat. § 895.05(1) – privilege is limited to newspaper publications of “any judicial, legislative or other public official proceeding authorized by law or of any public statement, speech, argument or debate in the course of such proceeding.” The statutory privilege applies only to a “public official proceeding,” However, the requirement of “the attention and invited action of some judicial officer” from Ilsley, supra, would be met in the case of sealed and confidential materials that are filed with the court and the subject of judicial proceedings.

Is the fair report privilege in this state absolute or qualified?

Qualified; malice does not defeat the privilege, but the report must be “true and fair.”

Statute and leading cases:

Lehner v. Berlin Publ’g Co., 245 N.W. 685, 686 (Wis. 1932) – holding that because the legislature purposely omitted the word “malice” from the fair report statute, a report of a judicial proceeding is privileged “if it [is] true and fair.”

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

No; Ilsley v. Sentinel Co., 113 N.W. 425 (1907) – “Clearly the overwhelming consensus of authority sustains the view that the publications of pleadings or other preliminary papers to which the attention of no judicial officer has been called, and no judicial action invited thereon, is not within the privilege accorded publication of judicial proceedings, in absence of statute modifying the rules of the common law.” 113 N.W. 425, 426 (Wis. 1907). Same result in Finnegan v. Eagle Printing Co., 179 N.W. 788, 790 (Wis. 1920) (citing Ilsley, 113 N.W. at 427).

Does the privilege extend to foreign proceedings?

Never examined by the courts.

What does it take to invoke the privilege? Any idiosyncrasies in this area?No idiosyncrasies in invoking the privilege.

Other interesting nuances to the privilege:

The privilege under § 895.05(1) is limited to “any newspaper published in this state” by the text. By its text, this excludes television-, radio-, and internet-based reports.

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Wyoming

Prepared by Christopher Proczko, Sapientia Law Group

Does the fair report privilege in this state cover press conferences and statements by public officials?

Unknown, but unlikely.

Statute and leading cases:

Wy. Stat. § 1-29-104 – Publication of proceedings of governing bodies deemed privileged: The publication of a fair and impartial report of the proceedings before state of municipal legislative bodies, or before state or municipal executive bodies, boards or officers, or the whole or a fair synopsis of any document presented, filed or issued in any proceeding before a legislative or executive body, board or offier, is privileged unless it is proved that the publication was made maliciously.

Wy. Stat. § 1-29-105 – Publication of criminal and civil proceedings deemed privileged: The publication of a fair and impartial report of any indictment, the issuing of any warrant, the arrest of any person accused of a crime, or the filing of any pleading or other document in any criminal or civil cause in any court, or of the contents thereof, is privileged unless it is proved that the same was published maliciously or that the defendant has refused or neglected to publish in the same manner in which the publication complained of appeared a reasonable written explanation or contradiction thereof by the plaintiff, or that the publisher has refused upon plaintiff’s request to publish the subsequent determination of the suit or action.

Does the fair report privilege in this state cover investigatory and law enforcement materials?

This has never been examined by courts, but under the language of § 1-29-105 the answer is no.

Does the privilege in this state cover sealed and confidential materials?

Never examined by courts. The language of § 1-29-105 does not distinguish between sealed/confidential materials and public materials.

Statute and leading cases:

Wy. Stat. § 1-29-105 – “The publication of . . . the filing of any pleading or other document in any criminal or civil cause in any court . . . is privileged unless it is proved that the same was published maliciously or that the defendant has refused or neglected to publish in the same manner in which the pblication complained of appeared a reasonable written explanation or contradiction thereof by the plaintiff, or that the publisher has refused upon plaintiff’s request to publish the subsequent determination of the suit or action.”

Is the fair report privilege in this state absolute or qualified?

Qualified; privilege can be overcome by malice.

Statute and leading cases:

Wy. Stat. § 1-29-105 – “The publication of . . . the filing of any pleading or other document in any criminal or civil cause in any court . . . is privileged unless it is proved that the same was published maliciously or that the defendant has refused or neglected to publish in the same manner in which the publication complained of appeared a reasonable written explanation or contradiction thereof by the plaintiff, or that the publisher has refused upon plaintiff’s request to publish the subsequent determination of the suit or action.”

Casteel v. News-Record, Inc., 875 P.2d 21, 24-25 (Wyo. 1994) – privilege does not require a report to be true or accurate so long as it was published without malice.

Does the privilege cover initial court documents like pleadings, even prior to judicial oversight or weigh-in?

Yes; Wyoming’s privilege applies to “the filing of any pleading or other document in any criminal or civil cause in any court” that is not published maliciously.

No cases have addressed court documents before judicial oversight or weigh-in.

Does the privilege extend to foreign proceedings?

Never addressed by a court

What does it take to invoke the privilege? Any idiosyncrasies in this area?

None.

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