Wednesday, October 3, 2007
David Andrew Elder, Northern Kentucky University College of Law, has published "Truth, Accuracy, and Neutral Reportage: Beheading the Media Jabberwock's Attempts to Circumvent New York Times v. Sullivan," at 9 Vanderbilt Journal of Entertainment & Technology Law 551 (2007). Here is the abstract.
The article critiques a series of overlapping media attempts to circumvent the Supreme Court's extraordinarily media friendly decision in New York Times v. Sullivan. Sections I and II demonstrate persuasively that the Court has repeatedly rejected absolute protection for defamatory falsity and that its jurisprudence, including the Smith v. Daily Mail/Bartnicki v. Vopper line of cases, provides no First Amendment basis for absolute protection for all accurately reported false, defamatory information.
Sections III-VI take a fresh look at “neutral reportage” and conclude that the doctrine was founded in intellectual quicksand (Edwards v. National Audubon Society), engendered a deservedly tepid response from the courts, and received its death knell in the Pennsylvania Supreme Court's decision in Norton v. Glenn.
Section VII examines the attempts of a small minority of courts to reformulate all accurate reportage as truth supposedly subject to the common law and/or First Amendment protection for truth. Of course, this approach is at odds with Masson v. New Yorker Magazine's adoption of classic doctrine - truth and plaintiff's burden of falsity generally refer to underlying truth, not facial accuracy. Section VII also criticizes at length attempts by a minority of decisions to extend “fair report” far beyond its historic and justified limitation to official acts, reports and proceedings open to or available to the public.
Sections VIII and IX delve into the corrosive impact “neutral reportage” would have on other, largely indistinguishable scenarios involving “messenger”-“conduit” defendants and how the Second Circuit has adopted a bizarre reformulation of “neutral reportage” in interpreting New York's “grossly irresponsible” conduct test for private persons as to matters of public concern - under Second Circuit doctrine calculated falsehood magically becomes “responsible” media conduct!
In sum, the article is a hard-hitting, hopefully definitive, analysis of the topics covered, demonstrating how New York Times v. Sullivan protection for public persons has accorded the media the most extensive protection in world history - and why courts (and the Supreme Court) should reject the media Jabberwock's aggressive attempts to use these circumvention devices to provide absolute protection to the media for false defamatory error.
Download the entire article from SSRN here.