Principle of reporting public matters stands

Monday, February 7, 2011

The Supreme Court’s Jan. 24 decision not to review the ruling in Salzano v. North Jersey Media Group likely didn’t surprise many court watchers.  It did, however, relieve many reporters, editors and publishers.

At issue in Salzano was whether a particular exception exists to what’s called the fair-report privilege. The privilege, which has been recognized for more than a century, protects those who fairly and accurately report what happens in public meetings and judicial proceedings, even if statements made in those meetings and proceedings are false.


In Salzano, an individual accused in a bankruptcy court filing of stealing corporate funds argued in a defamation case against The Record newspaper that the privilege did not attach to statements made in initial pleadings because no judicial action had yet been taken. The plaintiff was arguing for an “initial pleadings” exception to the fair-report privilege.


The trial judge hearing the defamation action disagreed with the plaintiff’s argument and dismissed the case. The case received national attention, however, when the New Jersey Superior Court recognized the exception and reversed the trial court’s ruling.


On May 11, 2010, the New Jersey Supreme Court rejected the Superior Court’s analysis and held that the fair-report privilege applied to all court proceedings, including initial pleadings. The court acknowledged that courts in earlier years had recognized an initial-pleadings exception, but concluded that “most modern court decisions have rejected that exception” and that “the majority of jurisdictions that have considered the issue extend the fair-report privilege to encompass initial pleadings and filings.”


The Supreme Court’s refusal to hear the case appears to be the death knell of the initial-pleadings exception and is a welcome affirmation of an undiluted fair-report privilege. Reporting about public meetings and judicial proceedings is an important journalistic function, and journalists who report about these public events fairly should not have to fear the wrath of defamation plaintiffs.


“Members of the public simply cannot attend every single court case and cannot oversee every single paper filing, although clearly entitled to do so,” the New Jersey Supreme Court wrote. “Thus, it is critical for the press to be able to report fairly and accurately on every aspect of the administration of justice, including the complaint and answer, without fear of having to defend a defamation case and without the inhibitory effect of such fear.”


“[W]e are convinced that the public policy underpinning of the fair-report privilege – advancement of the public’s interest in the free flow of information about official actions – would be thwarted by the recognition of the initial pleadings exception,” the court added.  “A full, fair, and accurate report regarding a public document that marks the commencement of a judicial proceeding deserves the protection of the privilege.”