Petitioners, V

No. ______======

In The Supreme Court of the United States ------♦ ------

GANNETT CO., INC., GANNETT SATELLITE INFORMATION NETWORK INC., MULTIMEDIA HOLDINGS CORPORATION d/b/a KARE 11-TV and d/b/a ST. CLOUD TIMES,

Petitioners, v.

RYAN LARSON,

Respondent. ------♦ ------On Petition For A Writ Of Certiorari To The Minnesota Supreme Court ------♦ ------PETITION FOR A WRIT OF CERTIORARI ------♦ ------

Counsel for Petitioners Gannett Co., Inc., Gannett Satellite Information Network Inc., Multimedia Holdings Corporation d/b/a KARE 11-TV and d/b/a St. Cloud Times ======COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

“[W]here a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false.” Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 768-69 (1986). And generally, “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information. . . .” Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 102 (1979). Here, Plaintiff claimed news media defendants defamed him by falsely reporting on what law enforcement said in an official news conference and news release regarding Plaintiff ’s arrest for a police officer’s murder (Plaintiff was later exonerated). A jury found that Defendants’ reporting on what police said was true. But the Minnesota Supreme Court nonetheless ordered a new trial for the jury to instead consider the statements under the “fair report privilege,” thereby subjecting Defendants to potential liability for reporting already found to be truthful. The question presented is: In a defamation case, where a jury finds that media defendants’ reporting on what law enforcement said in a news release and news conference was substantially accurate and thus not false, does the First Amendment permit a state court to require the jury to consider whether such reports met the fair report privilege’s requirements, thereby displacing the falsity element of defamation?

PARTIES TO THE PROCEEDINGS

Petitioners are Gannett Co., Inc., Gannett Satel- lite Information Network Inc., Multimedia Holdings Corporation d/b/a KARE 11-TV and d/b/a St. Cloud Times. They were defendants in the trial court, appellants in the Minnesota Court of Appeals, and respondents in the Minnesota Supreme Court.1 Respondent is Ryan Larson (“Larson”). He was plaintiff in the trial court, respondent in the Minnesota Court of Appeals, and appellant in the Minnesota Supreme Court.

1 During trial, the trial court dismissed Gannett Co., Inc. and Gannett Satellite Information Network Inc. (“Gannett Defendants”). App. 92 n.1. The trial court’s post-trial order—from which Larson appealed—does not address or purport to reverse that decision. But in the event the post-trial order can be read to apply to all Defendants and without waiving their rights to rely upon and enforce the trial court’s earlier dismissal, the Gannett Defendants joined in the appeal from the post-trial order (App. 92) and join in this petition.

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CORPORATE DISCLOSURE STATEMENT

Gannett Co., Inc. is a publicly-traded company. BlackRock, Inc. and Vanguard, Inc., publicly-traded companies, each own 10% or more of the stock of Gannett Co., Inc. No other publicly-traded company owns 10% or more of the stock of Gannett Co., Inc. Gannett Satellite Information Network, Inc. is now Gannett Satellite Information Network, LLC. Gannett Co., Inc. is the sole member of Gannett Satellite Information Network, LLC. TEGNA Inc. is the sole shareholder of Multimedia Holdings Corporation d/b/a KARE 11-TV and d/b/a St. Cloud Times. BlackRock, Inc. and The Vanguard Group, Inc., publicly-traded companies, each own 10% or more of TEGNA Inc. stock.

RELATED PROCEEDINGS

Minnesota Supreme Court:

Larson v. Gannett Company, Inc., et al., A17-1068 (April 13, 2020) Minnesota Court of Appeals:

Larson v. Gannett Company, Inc., et al., A17-1068 (May 7, 2018) Minnesota District Court, Fourth Judicial District, County of Hennepin:

Larson v. Gannett Company, Inc., et al., 27-CV-15- 9371 (June 13, 2017)

Larson v. Gannett Company, Inc., et al., 27-CV-15- 9371 (Jan. 5, 2017)

Larson v. Gannett Company, Inc., et al., 27-CV-15- 9371 (Nov. 10, 2016)

Larson v. Gannett Company, Inc., et al., 27-CV-15- 9371 (May 19, 2016)

TABLE OF CONTENTS Page QUESTION PRESENTED...... i PARTIES TO THE PROCEEDINGS ...... ii CORPORATE DISCLOSURE STATEMENT ...... iii RELATED PROCEEDINGS ...... iv PETITION FOR A WRIT OF CERTIORARI ...... 1 OPINIONS BELOW ...... 1 JURISDICTION ...... 1 CONSTITUTIONAL PROVISIONS INVOLVED ... 2 STATEMENT ...... 2 A. Background ...... 6 B. Trial Court Proceedings ...... 7 1. The Trial Court Rejects the Fair Report Privilege ...... 8 2. The Jury Finds the Statements Were True ...... 9 3. The Trial Court Grants a New Trial, Finding the Statements False as a Matter of Law ...... 11 C. The Court of Appeals Finds the Fair Report Privilege Applies and the Jury’s “No-Falsity” Verdict Showed the Privilege Was Not Abused ...... 12 D. The Minnesota Supreme Court Affirms the Fair Report Privilege, but Remands for a New Trial Despite the Jury’s Explicit Finding of “No Falsity” ...... 12

TABLE OF CONTENTS—Continued Page E. Petition for Rehearing ...... 15 REASONS FOR GRANTING THE PETITION ..... 16 I. The Decision Below Conflicts with this Court’s First Amendment Precedents ...... 17 A. The Decision Below Conflicts with Hepps ...... 18 B. The Decision Below Conflicts with Daily Mail and its Progeny ...... 20 C. The Decision Below Conflicts with this Court’s Precedents Regarding the Constitutionally-Mandated Falsity Standard ...... 22 II. The Decision Below Highlights the Division and Confusion Regarding First Amend- ment Protection of Truthful Reporting on Government Statements and Investiga- tions ...... 28 III. The Decision Below Threatens to Chill Constitutional Speech when Reporting on Government Investigations and State- ments ...... 32 IV. This Case Is the Right Vehicle for Resolving these Important Questions ...... 37 CONCLUSION ...... 39

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TABLE OF CONTENTS—Continued Page TABLE OF APPENDICES Appendix A: Opinion of the Minnesota Supreme Court (Feb. 26, 2020) ...... App. 1 Appendix B: Order Denying Petition for Rehearing of the Minnesota Supreme Court (Mar. 30, 2020) .... App. 87 Appendix C: Judgment of the Minnesota Supreme Court (Apr. 13, 2020) ...... App. 88 Appendix D: Opinion of the Minnesota Court of Appeals (May 7, 2018) ...... App. 91 Appendix E: Order Granting in Part and Denying in Part Plaintiff ’s Motion for Judgment as a Matter of Law or for a New Trial and Granting Defendants’ Motion to Strike of the Minnesota Fourth Judicial District Court (Jun. 13, 2017) ...... App. 124 Appendix F: Judgment of the Minnesota Fourth Judicial District Court (Jan. 5, 2017) ...... App. 145 Appending G: Special Verdict Form in the Minnesota Fourth Judicial District Court (Nov. 21, 2016) ...... App. 147

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TABLE OF CONTENTS—Continued Page Appendix H: Order Modifying the Court’s Order Granting in Part and Denying in Part Defendant’s Motion for Summary Judgment of the Minnesota Fourth Judicial District Court (Nov. 10, 2016) ...... App. 186 Appendix I: Order Granting in Part and Denying in Part Defendant’s Motion for Summary Judgment of the Minnesota Fourth Judicial District Court (May 19, 2016) ...... App. 194 Appendix J: Petition for Rehearing by Respondents/Cross- Appellants to the Minnesota Supreme Court (Mar. 11, 2020) ...... App. 228 Appendix K: Excerpt of Corrected Final Jury Instructions, Instruction No. 13, Definition of “false” (Dist. Ct. Doc. 127) ...... App. 245 Appendix L: Trial Transcript Excerpts, Plaintiff Ryan Larson Direct Examination (Trial Day 6, Nov. 15, 2016) ...... App. 246 Appendix M: Trial Transcript Excerpts, Defendants’ Argument to the Court Regarding Falsity (Trial Day 8, Nov. 17, 2016) ...... App. 253

TABLE OF CONTENTS—Continued Page Appendix N: Trial Transcript Excerpts, Plaintiff ’s Closing Argument (Trial Day 8, Nov. 17, 2016) ...... App. 255 Appendix O: Transcript of November 30, 2012 Press Conference (Trial Ex. 102) ...... App. 260 Appendix P: Minnesota Department of Public Safety News Release, Dated November 30, 2012 (Trial Ex. 104) ...... App. 270

TABLE OF AUTHORITIES Page

CASES Air Wis. Airlines Corp. v. Hoeper, 571 U.S. 237 (2014) ...... 19 Bartnicki v. Vopper, 532 U.S. 514 (2001) ...... 17, 20 Berkos v. Nat’l Broad. Co., 515 N.E.2d 668 (Ill. App. 1987) ...... 30 Cohen v. Cowles Media Co., 501 U.S. 663 (1991) ...... 37 Cox Broad. Corp. v. Cohn, 420 U.S. 469 (1975) ...... 2, 19, 20, 32 Fla. Star v. B.J.F., 491 U.S. 524 (1989) ...... passim Foley v. Lowell Sun Pul’g. Co., 533 N.E.2d 196 (Mass. 1989) ...... 31 Fortenbaugh v. N.J. Press, Inc., 722 A.2d 568 (Superior Ct. N.J., App. Div. 1999) ..... 30 Garrison v. Louisiana, 379 U.S. 64 (1964) ...... 19, 29 Gertz v. Welch, 418 U.S. 323 (1974) ...... 19, 32, 37 Global Relief Found., Inc. v. N.Y. Times Co., 390 F.3d 973 (7th Cir. 2004) ...... 29 Greenbelt Coop. Pub. Ass’n v. Bresler, 398 U.S. 6 (1970) ...... 27 Hatfill v. N.Y. Times Co., 427 F.3d 253 (4th Cir. 2005) ...... 29, 31, 38

TABLE OF AUTHORITIES—Continued Page Janklow v. Newsweek, Inc., 759 F.2d 644 (8th Cir. 1985) ...... 29 Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348 (S.D.N.Y. 1998) ...... 29 Jones v. Taibbi, 512 N.E.2d 260 (Mass. 1987) ...... 30 KBMT Operating Co., LLC v. Toledo, 492 S.W.3d 710 (Tex. 2016) ...... 29 Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978) ...... 20 Larson v. Sanner, No. 17-cv-00063 (D. Minn. Jan. 23, 2019) ...... 7 Marquette Nat’l Bank v. First of Omaha Service Corp., 439 U.S. 299 (1978) ...... 2 Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) ...... 10, 13, 24 McKee v. Laurion, 825 N.W.2d 725 (Minn. 2013)...... 13 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ...... 15, 18 Minn. Voters All. v. Mansky, 138 S. Ct. 1876 (2018) ...... 37 Moreno v. Crookston Times Printing Co., 610 N.W.2d 321 (Minn. 2000)...... 30 N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) ...... 18

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TABLE OF AUTHORITIES—Continued Page Neely v. Wilson, 418 S.W.3d 52 (Tex. 2012) ...... 30, 31 Okla. Publ’g Co. v. Dist. Court, 430 U.S. 308 (1977) ...... 20 Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) ...... passim R.A.V. v. St. Paul, 505 U.S. 377 (1992) ...... 37 Ramsey v. Fox News Network, L.L.C., 351 F. Supp. 2d 1145 (D. Colo. 2005) ...... 31 Republican Party v. White, 536 U.S. 765 (2002) ...... 37 Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979) ...... passim Speiser v. Randall, 357 U.S. 513 (1958) ...... 36 Thomas v. Tel. Publ’g Co., 929 A.2d 991 (N.H. 2007) ...... 30 Time, Inc. v. Firestone, 424 U.S. 448 (1976) ...... 18, 25, 26, 27 Time, Inc. v. Pape, 401 U.S. 279 (1970) ...... 25, 27 Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724 (5th Cir. 2019) ...... 30 White v. Fraternal Order of Police, 909 F.2d 512 (D.C. Cir. 1990) ...... 31

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TABLE OF AUTHORITIES—Continued Page

CONSTITUTION AND STATUTES 28 U.S.C. § 1257(a) ...... 2 28 U.S.C. § 2101(c) ...... 2 U.S. Constitution, First Amendment ...... passim U.S. Constitution, Fourteenth Amendment ...... 2

OTHER AUTHORITIES 4A Minn. Prac. Jury Instr. Guides—Civil § 50.25 (6th ed. 2014) ...... 10 Jonathan Donnellan & Justin Peacock, Truth and Consequences: First Amendment Protec- tion for Accurate Reporting on Government Investigations, 50 N.Y.L. SCH. L. REV. 237 (2005-2006) ...... 31 Mayor Jacob Frey, May 27, 2020 Press Confer- ence (May 27, 2020), https://www.rev.com/blog/ transcripts/minneapolis-mayor-jacob-frey-press- conference-george-floyd-death ...... 35 Nick Woltman, Man defamed as Cold Spring cop killer settled KSTP lawsuit, Pioneer Press (published Dec. 2, 2014; updated Oct. 25, 2015), https://www.twincities.com/2014/12/02/man- defamed-as-cold-spring-cop-killer-settles-kstp- lawsuit/ ...... 7

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TABLE OF AUTHORITIES—Continued Page Police Chief Medaria Arradondo, Minneapolis Police Chief Arradondo Press Conference Tran- script June 10 (June 10, 2020), https://www. rev.com/blog/transcripts/minneapolis-police- chief-arradondo-press-conference-transcript- june-10 ...... 35 Rep. Nancy Pelosi, Transcript of Pelosi Weekly Press Conference Today (May 28, 2020), https:// pelosi.house.gov/news/press-releases/transcript- of-pelosi-weekly-press-conference-today-65 ...... 35 Restatement (Second) of Torts § 566, cmt. a (1977) ...... 18 Restatement (Second) of Torts § 611 (1977) ...... 8 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems §§ 7-24, 7-51 (5th ed. 2019) ...... 30, 31

PETITION FOR A WRIT OF CERTIORARI Petitioners Gannett Co., Inc., Gannett Satellite Information Network Inc., Multimedia Holdings Cor- poration d/b/a KARE 11-TV and d/b/a St. Cloud Times (collectively “KARE 11-TV and the St. Cloud Times”) submit this petition for a writ of certiorari to review the judgment of the Minnesota Supreme Court.

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OPINIONS BELOW The Minnesota Supreme Court’s opinion is reported at 940 N.W.2d 120 and reproduced in the Appendix to the Petition (“App.”) at 1-86. Its order denying the petition for rehearing is unreported and reproduced at App. 87, and its judgment is unreported and reproduced at App. 88-90. The Minnesota Court of Appeals’ opinion is reported at 915 N.W.2d 485 and reproduced at App. 91-123. The trial court’s post-trial order and opinion is unreported, but available at 2017 WL 4220968 and reproduced at App. 124-44. The trial court’s judgment following the jury’s verdict is unreported but reproduced at App. 145-46, and its summary judgment orders are unreported but reproduced at App. 186-227.

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JURISDICTION The Minnesota Supreme Court issued its opinion on February 26, 2020 (App. 1), denied KARE 11-TV and the St. Cloud Times’ petition for rehearing on March

30, 2020 (App. 87), and entered judgment on April 13, 2020 (App. 88). This petition is timely under this Court’s precedent, see Marquette Nat’l Bank v. First of Omaha Service Corp., 439 U.S. 299, 307 n.18 (1978), and under the COVID-19 Order, 589 U.S. ___ (Mar. 19, 2020). See also 28 U.S.C. § 2101(c). This Court has jurisdiction under 28 U.S.C. § 1257(a). See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 476-87 (1975). ------♦ ------

CONSTITUTIONAL PROVISIONS INVOLVED The First Amendment, as incorporated against the states by the Fourteenth Amendment, provides that the states “shall make no law . . . abridging the freedom of speech, or of the press.” U.S. Const. amend. I.

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STATEMENT Every day, citizens rely on the news media to report on breaking crime-related news. Often, law enforcement is the media’s primary source for such information. And sometimes, what government officials say itself becomes a major news story, as recently illustrated by news coverage of public officials’ statements regarding George Floyd’s death in Minneapolis. The media, in reporting on these issues of undisputed public concern, needs to make on-the-fly determinations about what it will report, running the

3 risk of possible exposure to defamation claims based on what the government says, and how the media relays those statements. That is the issue here. When a Minnesota police officer was shot and killed, law enforcement promptly issued a news release and held a news conference relaying available details, including that they had arrested Ryan Larson for the ambush killing of the officer, and had no reason to believe anyone else was involved. Defendants—a television station and general circulation newspaper—in turn, released news stories relaying what “police say” and “investigators believe,” including details on the murder and identi- fying Larson. Police, however, had the wrong man, and Larson brought defamation suits against Defendants. Defendants argued early that the fair report privilege—which the Minnesota Supreme Court had recognized for reports of judicial proceedings and city council meetings—should protect the media’s accurate reporting on what law enforcement had relayed. The trial court rejected the privilege’s applicability, and instead put to the jury the issue of whether the media reports were substantially true under the falsity element of defamation. Larson made clear on the stand and in closing that the alleged falsity was that the media did not accurately report what law enforcement had said (“[b]ecause police never said that”). The trial court presented all five “police say” statements to the jury, and the jury found each statement was substantially accurate. After initially entering judgment for

Defendants on that basis, the trial court then remanded for a new trial, holding that the falsity inquiry’s focus must be on the underlying statements (that Larson killed the officer), and those statements were false as a matter of law. The Minnesota Court of Appeals reversed, recog- nizing the fair report privilege applies to law enforcement news conferences and news releases, and finding that the jury’s determination on the falsity issue also constituted an adequate finding that the statements were fair and accurate under the fair report privilege. The Minnesota Supreme Court, however, reversed and remanded for a new trial. While affirming the fair report privilege’s extension to media reports on these types of proceedings, the court held that a remand for a new trial was required for the jury to assess whether the media’s statements were fair and accurate under the fair report privilege. It did so even though the jury had been properly instructed on the falsity issue and had found the statements substantially accurate. That ruling violates the First Amendment and compels this Court’s correction. As the media defendants stressed in their petition for rehearing, the “implication of the [Minnesota Supreme] Court’s decision is that the falsity inquiry can be entirely displaced by the inquiry into the fair and accurate reporting privilege—a ruling that conflicts with the ‘constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before

5 recovering damages.’ ” App. 241 (quoting Phila. News- papers, Inc. v. Hepps, 475 U.S. 767, 776 (1986)). Here, the Minnesota Supreme Court has effectively determined that statements already found to be true must undergo a separate jury trial to determine whether they also meet the fair report privilege’s requirements. Such a second trial creates the risk that Defendants could be found liable for statements already found to be true. That violates this Court’s repeated holding that “[i]f a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Fla. Star v. B.J.F., 491 U.S. 524, 533 (1989) (quotation omitted). Review is necessary because, without this Court’s intervention, the media Defendants here will be subject to the very threats to their constitutional rights that Hepps, Florida Star, and other decisions have cautioned against. “Timidity and self-censorship” will be the result if the media must rely exclusively on a narrowly drawn privilege covering only certain types of government proceedings and speakers. Id. at 535. It will “force upon the media the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication[,] . . . even where the newspaper’s sole object was to reproduce, with no substantial change, the government’s rendition of the event in question.” Id. at 535-36. “[S]uch a ‘chilling’ effect would

6 be antithetical to the First Amendment’s protection of true speech on matters of public concern,” Hepps, 475 U.S. at 777, and it compels this Court’s review.

A. Background Officer Tom Decker, a police officer in Cold Spring, Minnesota, was shot and killed while conducting a welfare check on a reportedly suicidal man the night of November 29, 2012. App. 5. Law enforcement quickly arrested the subject of the welfare check, Ryan Larson, and booked him on “Murder 2” charges. App. 5. The next morning, law enforcement held a televised news conference and issued a news release in which they provided details of Officer Decker’s murder and identified Larson by name as the person arrested. App. 260-69 (news conference); App. 270-72 (news release). Media throughout the State covered this “breaking news,” including KARE 11-TV and the St. Cloud Times, in television, print, and online publications. App. 7. Larson, however, did not commit the crime. Days later, law enforcement determined they did not have enough evidence to charge Larson and released him. App. 10. Over a month later, law enforcement reported that another person of interest committed suicide after police questioned him. App. 96. Six months after that, investigators officially cleared Larson as a suspect. App. 11. Larson brought defamation suits against both KARE 11-TV and the St. Cloud Times based on their initial coverage, notwithstanding their continued reporting on these ongoing developments,

including Larson’s release and ultimate exoneration. See App. 11.2

B. Trial Court Proceedings Larson alleged that 11 statements in KARE 11-TV and the St. Cloud Times’ news coverage were false and harmed his reputation. Only the first five statements— which reported on what “police” or “investigators” “say” or “believe”—are still at issue and relevant here: 1. Police say that man—identified as 34- year-old Ryan Larson—ambushed Officer Decker and shot him twice—killing him. 2. Investigators say 34-year-old Ryan Larson ambushed the officer, shooting him twice. Larson is in custody. 3. He [Officer Decker] was the good guy last night going to check on someone who needed help. That someone was 34-year- old Ryan Larson who investigators say

2 Larson also brought defamation suits against other media entities, as well as law enforcement agencies and officers. The suits against other media entities settled. See Nick Woltman, Man defamed as Cold Spring cop killer settled KSTP lawsuit, Pioneer Press (published Dec. 2, 2014; updated Oct. 25, 2015), https://www. twincities.com/2014/12/02/man-defamed-as-cold-spring-cop-killer- settles-kstp-lawsuit/ (noting separate settlements with media entities). Larson also reached settlements with many of the officers in the federal suit against law enforcement agencies and officers. See Larson v. Sanner, No. 17-cv-00063, Doc. 153 (D. Minn. Jan. 23, 2019) (settlement with officer); id., Doc. 156 (Jan. 28, 2019) (same).

opened fire on Officer Tom Decker for no reason anyone can fathom. 4. Investigators believe he fired two shots into Cold Spring Police Officer Tom Decker, causing his death. 5. Police say Larson is responsible for the shooting death of Cold Spring-Richmond Police Officer Tom Decker. App. 12-13.

1. The Trial Court Rejects the Fair Report Privilege KARE 11-TV and the St. Cloud Times argued from the outset that their statements were protected by the fair report privilege. That privilege, recognized by the Restatement and many states, provides that 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 abridgment of the occurrence reported.” Restatement (Second) of Torts § 611 (1977). The Minnesota Supreme Court, however, had only recognized the privilege’s applicability to reports of judicial proceedings and city council meetings. See App. 207-16. At summary judgment, the trial court rejected the privilege’s applicability to law enforcement’s news conference and news release other than the fact of Larson’s arrest and charge of the arrest, and the court held that even if the privilege applied, there

9 were fact issues for the jury regarding whether Defen- dants fairly and accurately reported the statements. App. 216-26.

When the trial started, the trial court sua sponte reversed course, concluding it could decide as a matter of law whether the reporting of law enforcement’s statements was fair and accurate, and found the statements were not substantially accurate. After Defendants strenuously argued that the trial court’s findings on the fair report privilege could not constitutionally take away the question of the statements’ falsity going to the jury under the plaintiff ’s burden, the trial court allowed the jury to decide falsity. See App. 254.

2. The Jury Finds the Statements Were True Falsity thus remained a key part of the trial. The jury was separately asked for each statement, “[b]y the greater weight of the evidence, was this statement false?” App. 147-80. The falsity instruction tracked the state jury instruction guide’s model instruction: A statement or communication is false if it is not substantially accurate. Substantial accuracy does not require every word to be true. A statement or communication is substantially accurate if its substance or gist is true. In determining whether a statement was false, the words must be construed as a whole without taking any word or phrase out of context. The meaning of the statement must

be construed in the context of the article or broadcast as a whole. Plaintiff bears the burden of proving that a statement is false by the greater weight of the evidence.

Add. 245.3 Larson made clear his allegations of falsity and defamation for the “police say” statements were squarely aimed at his claim that what the press reported was not what law enforcement said. Larson testified each of those statements was “false.” And when his attorney asked “why,” Larson responded, “[b]ecause police never said that.”4 App. 247-52. As the Minnesota Supreme Court noted, Larson never sought a republication instruction (where the focus is on the underlying statement’s falsity, rather than on the reporting of the statement). App. 13. Larson’s closing likewise made this clear, arguing that Defendants “reported statements that were never made by the police and that were false and that they had serious doubts that were—about their truth, because they

3 The “Authorities” cited by the model instruction include Hepps and the Minnesota Supreme Court’s invocation of Masson. 4A Minn. Prac. Jury Instr. Guides—Civil § 50.25 (6th ed. 2014). The trial court denied Larson’s request for an instruction on “falsity by implication”; Larson did not seek an instruction on republication. App. 13. 4 Larson never testified the “police said” statements were false for another reason. Instead, Larson’s counsel would ask, for example, “And had you shot and killed Officer Decker?” with Larson replying, “Absolutely not”—a point Defendants never disputed. App. 247; see also App. 248-52.

11 were never made.” App. 258. As Larson’s attorney argued to the jury, “going through each of the statements, they were false and defamatory, as Mr. Larson had not shot and killed Officer Decker. And law enforcement officials never said he did shoot and kill Officer Decker. That’s a recurring issue that comes up in the context of these statements.” App. 257; see also App. 255-59. The jury never got past falsity, finding each statement was substantially accurate. App. 147-85. The trial court ordered judgment on this basis. App. 146-47.

3. The Trial Court Grants a New Trial, Finding the Statements False as a Matter of Law Post-trial, however, the trial court granted a new trial. Despite Larson’s testimony that the falsity was “because police never said that,” the court allowed Larson to claim that the falsity inquiry should be directed towards the underlying statement, and found “the implication of each statement was that Mr. Larson killed Officer Decker”—statements that were false as a matter of law. App. 134. The trial court disregarded “Defendants argu[ment] that each statement accurately reported what law enforcement officials said.” App. 134. The court reasoned “those who repeat defamatory statements are subject to liability as if they had originally made them,” and “the fair report privilege does not apply.” App. 134.

C. The Court of Appeals Finds the Fair Report Privilege Applies and the Jury’s “No- Falsity” Verdict Showed the Privilege Was Not Abused KARE 11-TV and the St. Cloud Times appealed, arguing that the fair report privilege barred Larson’s claims, and alternatively, that the jury’s verdict that the statements were true must stand. See App. 238. The Minnesota Court of Appeals reversed. It first held that the fair report privilege applies to law enforcement news conferences and news releases. App. 92. It then concluded that it was a fact issue as to whether the statements here were fair and accurate. App. 113- 16. Finally, the court of appeals determined that the falsity instruction was a substantially correct instruction as to the fair report privilege, so it credited the jury’s finding of no falsity as a finding that the fair report privilege was not abused. App. 118-21.

D. The Minnesota Supreme Court Affirms the Fair Report Privilege, but Remands for a New Trial Despite the Jury’s Explicit Finding of “No Falsity” On review, the Minnesota Supreme Court agreed “the fair and accurate reporting privilege protects news reports about statements on a matter of public concern made by law enforcement officers at an official press conference or in an official press release.” App. 3. But the court held “the jury instructions and the special verdict form did not adequately set forth the relevant factors that the jury should consider in

determining whether the privilege was defeated for lack of fairness and substantial accuracy.” App. 4. On that basis, the court ordered a new trial as to statements 1-5 on the fair report privilege. App. 4. The Minnesota Supreme Court, however, never suggested the jury was improperly instructed on falsity. The court instead recognized the trial court “us[ed] the model jury instruction on the falsity element of a defamation claim,” and “[n]otably, Larson did not seek an instruction on republication.”5 App. 13, 38. Nor did the court hold that the trial court should have given a “falsity by implication” instruction.6 Rather, the court recognized that the “substantial accuracy standard,” on which the jury was instructed for falsity, is also “relevant to the jury’s inquiry in determining whether the fair and accurate reporting privilege was defeated,” citing precedents articulating the falsity standard under the privilege. App. 41-42 (citing McKee v. Laurion, 825 N.W.2d 725, 730 (Minn. 2013); Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991)).

5 The court only suggested that, “[b]ecause the jury may not be familiar with the meaning of the term ‘gist,’ instructing a jury on falsity may involve a clarifying instruction that the statement is substantially true if it would have the same effect on the mind of the reader or listener as that which the original statement would have produced.” App. 42 & n.16; see also App. 44. 6 The court’s note that “falsity-by-implication cases do not fit comfortably in the context of the fair and accurate reporting privilege” nowhere held such an instruction should have been given for falsity. App. 39-40 n.14.

Despite the jury’s finding that the statements were substantially accurate, the Minnesota Supreme Court ordered a new trial for the jury to be instructed under the fair report privilege. It reasoned that the fair report privilege exclusively focuses upon the reported statements’ substantial accuracy when compared to law enforcements’ statements, while the falsity instructions “did not make this distinction.” App. 44. In so holding, the court ignored that there was no such confusion for the jury as to the falsity inquiry’s focus based on Larson’s own testimony and closing arguments (App. 247-52, 258), a point proven by the jury’s finding that the statements were true (given it was undisputed Larson did not kill Officer Decker). The court’s exclusive analysis of the statements and jury instruction through the fair report privilege lens ignored Defendants’ argument that the “jury’s finding on falsity—separate from the fair-report privilege—is an alternative ground for affirming the Court of Appeals.” App. 238 (quoting Defs.’ Merits Sup. Ct. Brief ). The dissent, for its part, took a contrary view as to the statements’ substantial accuracy, but confirmed “that the same test applies when analyzing whether a statement is ‘fair and accurate’ for purposes of the qualified fair and accurate reporting privilege or whether a statement is false for purposes of proving the essential elements of a defamation claim.” App. 83. But unlike the majority, the dissent found that, whether analyzed under the fair report privilege or falsity, in both instances the inquiry focuses upon the

media’s statements in comparison to law enforcement’s. App. 83-86.

E. Petition for Rehearing KARE 11-TV and the St. Cloud Times petitioned for rehearing, stressing that there is “no basis for a remand on the fair and accurate reporting privilege because the jury has already found that, even in the absence of privilege, Larson failed to meet his constitutional requirement for proving falsity.” App. 232. Defendants emphasized that “failing to reinstate the verdict on falsity and instead remanding for a new trial frustrates fundamental and constitutional defamation law precepts,” including that “truth is a complete defense” to a defamation claim. App. 240-41 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 13 (1990); Hepps, 475 U.S. at 776). Defendants made clear that the “implication of the Court’s decision is that the falsity inquiry can be entirely displaced by the inquiry into the fair and accurate reporting privilege—a ruling that conflicts with the ‘constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.’ ” App. 241 (quoting Hepps, 475 U.S. at 776). The Minnesota Supreme Court summarily denied the petition. App. 87. This petition for a writ of certiorari followed.

------♦ ------

REASONS FOR GRANTING THE PETITION “To provide ‘breathing space’ for true speech on matters of public concern, the Court has been willing to insulate even demonstrably false speech from liability. . . .” Hepps, 475 U.S. at 778 (emphasis in original; internal citation omitted). The Minnesota Supreme Court has done the very opposite—subjecting what a jury found to be demonstrably true speech to potential liability. By discarding the jury’s finding that the statements were true, the Minnesota Supreme Court has displaced the constitutional protections to the media for true speech and replaced it with a new framework under the fair report privilege. That conflicts with this Court’s precedents in Hepps and the Daily Mail line of cases, which prohibit liability for publishing true statements. The decision below only widens the divergence among the states on how to assess defamation claims against the media for reports on government statements and investigations. Even if the First Amend- ment permits some variation by the states, it does not allow what the Minnesota Supreme Court did here— displacing a properly instructed jury’s finding that the statements were true on the basis that the media’s substantial accuracy in reporting on law enforcement’s statements can only be assessed under a state law privilege, even when the falsity the plaintiff alleged was that what the media reported was not what law enforcement said. Unless corrected, this decision threatens to impose on the media the very “chilling effect,” and “timidity and self-censorship” that this

Court has cautioned against. See Hepps, 475 U.S. at 777; Fla. Star, 491 U.S. at 535. This result cannot stand under this Court’s First Amendment precedents, and compels review and reversal.

I. The Decision Below Conflicts with this Court’s First Amendment Precedents The Minnesota Supreme Court’s decision conflicts with this Court’s First Amendment protections for the media. It conflicts withHepps ’ holding that, “at least where a newspaper publishes speech of a public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false.” 475 U.S. at 768-69. It conflicts with this Court’s precedents establishing that “state action to punish the publication of truthful information can seldom satisfy constitutional standards.” Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (quoting Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 102 (1979)). And it conflicts with this Court’s precedents establishing that the falsity in this case that the Plaintiff was constitutionally required to prove was the media’s inaccurate reporting on law enforcement statements—an inquiry that did not need to be rigidly applied only through the fair report privilege. The Minnesota Supreme Court decision’s conflict with these principles compels this Court’s review and reversal.

A. The Decision Below Conflicts with Hepps The common law has long recognized that “truth is a complete defense to a suit for defamation.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 13 (1990) (quoting Restatement (Second) of Torts § 566, cmt. a (1977)). That requirement now has constitutional force. In New York Times v. Sullivan, “the Court noted that ‘[authoritative] interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker.’ ” Hepps, 475 U.S. at 772 (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270- 71 (1964)). Decades later, in Hepps, the Court firmly established the constitutional mandate “that, at least where a newspaper publishes speech of public concern, a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false.” Id. at 768. The constitutional requirement that a plaintiff must prove falsity to establish defamation liability— and correspondingly, that true statements preclude defamation liability—is firmly entrenched in this Court’s precedents. See e.g., Milkovich, 497 U.S. at 19- 20 (“a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least . . . where a media defendant is involved”); Time, Inc. v. Firestone, 424 U.S. 448, 458 (1976) (“demonstration that an article was true would seem to preclude finding the publisher at

19 fault”); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 498-500 (1975) (Powell, J., concurring) (“in cases in which the interests sought to be protected are similar to those considered in Gertz, I view that opinion as requiring that the truth be recognized as a complete defense”); Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (“Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned.”); cf. Air Wis. Airlines Corp. v. Hoeper, 571 U.S. 237, 249 (2014) (drawing on Hepps and other decisions to “hold that ATSA immunity may not be denied under § 4494(b) to materially true statements”). The Minnesota Supreme Court’s holding runs afoul of this constitutional mandate. That court has ordered a retrial—notwithstanding that it never found the jury improperly instructed as to falsity—for statements already found to be true to be exclusively analyzed under the fair report privilege. A privilege of limited applicability based solely on state common law or statute, however, can only provide an additional defense; it cannot displace the constitutionally- mandated requirement that the plaintiff prove falsity. The court’s decision unconstitutionally exposes Defen- dants to liability for statements the jury found to be true, when “[t]ruth may not be the subject of . . . civil . . . sanctions where discussion of public affairs is concerned.” Garrison, 379 U.S. at 74.

B. The Decision Below Conflicts withDaily Mail and its Progeny Relatedly, “this Court has repeatedly held that ‘if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order.’ ” Bartnicki, 532 U.S. at 527-28 (quoting Daily Mail, 443 U.S. at 102, and citing Fla. Star, 491 U.S. 524 and Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829 (1978)); see also Okla. Publ’g Co. v. Dist. Court, 430 U.S. 308, 310 (1977); Cox, 420 U.S. at 489-90. These cases often involve state causes of action sanctioning the press for disseminating information about reported criminal activity. See, e.g., Cox, 420 U.S. at 496-97 (invalidating state law prohibiting broadcast of rape victim’s name); Okla. Publ’g, 430 U.S. at 311-12 (overruling state law enjoining media from disseminating name and picture of juvenile charged with murder); Fla. Star, 491 U.S. at 526 (reversing finding of civil liability against media based on state law prohibiting publishing sexual assault victim’s name). This constitutional protection is at its apex where, as here, the media lawfully obtains information from law enforcement “involv[ing] a matter of paramount public import: the commission, and investigation, of a violent crime which had been reported to authorities.” Fla. Star, 491 U.S. at 534-39. “[W]here the government has made certain information publicly available, it is highly anomalous to sanction persons other than the source of its release.” Id. at 535. The consequences of

21 doing so are high. If a state sanctions the press for publishing information “gained . . . through a government news release [it] makes it especially likely that, if liability were to be imposed, self-censorship would result.” Id. at 538-39. The First Amendment’s protections here are clear. “Had appellant [media defendant] merely reproduced the news release prepared and released by the [police] Department, imposing civil damages would surely violate the First Amendment. The fact that appellant converted the police report into a news story by adding the linguistic connecting tissue necessary to transform the report’s facts into full sentences cannot change this result.” Id. at 539. Yet that is the danger with the Minnesota Supreme Court’s ruling. Defendants must again face the possible threat of civil damages so that a jury can analyze the statements’ substantial accuracy exclusively through the lens of a state law privilege. And Defendants must do so, even though, “[t]o be sure, the district court did instruct the jury on the ‘substantial accuracy’ standard that applies in deciding the falsity element in a general defamation case not involving a privilege” (App. 41), and the jury found Defendants’ statements about what “police said”—based on a law enforcement news conference and news release—were true. The fair report privilege’s narrow application in Minnesota, coupled with the Minnesota Supreme Court’s holding that the privilege effectively displaces the falsity inquiry, will inevitably “force upon the media the onerous task of sifting through government press releases, reports,

and pronouncements to prune out material arguably unlawful for publication,” Fla. Star, 491 U.S. at 536, contrary to this Court’s constitutional mandates.7

C. The Decision Below Conflicts with this Court’s Precedents Regarding the Con- stitutionally-Mandated Falsity Standard This Court has made clear—in Hepps and Florida Star—that the Constitution protects media defendants’ true statements on issues of public importance, based on government-disseminated information. The Minnesota Supreme Court erred in finding that a state law privilege—which should provide an additional layer of protection to defendants—could instead displace the constitutional requirement that the plaintiff prove falsity before recovering for defamation. Here, Larson testified that the basis for his falsity claim (and causation and damages) as to the five “police say” statements was “because police didn’t say that.” App. 247-52; see also App. 255-59. And that is the claim the jury obviously considered (since no one argued the underlying “Larson shot Officer Decker” statements were true). Indeed, the Minnesota Supreme Court

7 The careful “sifting” and “pruning” that the news media would be forced to undertake in determining what is lawful and unlawful to publish is highlighted by the Minnesota Supreme Court’s view that a trial is required on the fair report privilege as to statements 1-5 reporting on what “police say,” while the two following statements are “fair and accurate as a matter of law”: “Ryan Larson, the man accused of killing Officer Decker, could be charged as early as Monday” and “Man faces murder charge.” App. 47-49.

23 expressly noted that Larson never requested a republication instruction (because the focus of a republication claim is the truth or falsity of the underlying statement that was accurately republished). App. 13. But the jury found, effectively, that “law enforcement did say that.” That determination of the falsity element should have put an end to this case—as it should in any case where the claim is that a defendant inaccurately reported or summarized the statements of another—regardless of whether the fair report privilege also might apply. In overturning the jury’s finding, however, the Minnesota Supreme Court displaced the falsity element of defamation and held that whether the media’s reports on what was said were substantially true is appropriately analyzed only under the fair report privilege, thereby subjecting Defendants to the costs of retrial and potentially inconsistent verdicts. This is an incongruous result, given the court’s acknowledgment that “the fair and accurate reporting privilege is an exception to the common law republication rule,” and that Larson did not request that the case be decided by the jury based on republication. App. 39-40 (emphasis in original). And the requirement that such statements be exclusively analyzed under the fair report privilege cannot be squared with this Court’s precedents, which make clear that so long as the jury considers the basis for the falsity alleged by the plaintiff, the test of falsity—whether within or outside the privilege context—is the same.

This is made clear by Masson v. New Yorker Magazine, which involved a public figure’s allegations that “he was defamed by an author who, with full knowledge of the inaccuracy, used quotation marks to attribute to him comments he had not made.” 501 U.S. 496, 499 (1991). There, this Court articulated the governing standard for falsity: “the statement is not considered false unless it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Id. at 517 (quotation omitted; emphasis added). In other words, the inquiry into a statement’s falsity to which a defamation defendant is constitutionally entitled compels a comparison between the claimed truth and the claimed falsity. And in conducting this comparison—as the trial court properly instructed the jury here consistent with Masson—“[m]inor inaccuracies do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge be justified.”Id. (quotation omitted); see App. 38, App. 245 (jury instruction on “false”). Critically, as Masson recognized, when the allegation is that the news media attributed statements to someone they did not make, the constitutional inquiry is into “whether the requisite falsity inheres in the attribution of words to the [speaker] which he did not speak.” 501 U.S. at 513. Given the Minnesota Supreme Court’s acknowledgment that Masson’s standard applies to the standard for both falsity and whether a news report is fair and accurate (App. 41 & n.15), there was no basis for the court to disregard the jury’s finding of falsity and command that the inquiry occur exclusively under the fair report privilege.

This Court has long-recognized that defamation claims of this sort are commonplace and often con- fusing. In Time, Inc. v. Pape, this Court observed that “a vast amount of what is published in the daily and periodical press purports to be descriptive of what somebody said rather than of what anybody did. Indeed, perhaps the largest share of news concerning the doings of government appears in the form of accounts of reports, speeches, press conferences, and the like.” 401 U.S. 279, 285-86 (1970) (emphases in original). This Court acknowledged that the “question of the ‘truth’ of such an indirect report presents rather complicated problems.” Id. at 291. But this Court was clear in Pape—which dealt with a libel claim aimed at Time magazine’s report on a publication by the United States Commission on Civil Rights—that the “truth” and “falsity” inquiry (there, examined in terms of the constitutional requirement of actual malice) was focused upon “the claimed misinterpretation of the gist of a lengthy government document,” rather than the underlying statements themselves. Id. Another case involving Time magazine, Time, Inc. v. Firestone, further confirms that so long as the media defendant is not unconstitutionally held liable for truthful reporting, it makes no difference whether the claimed falsity of the media’s report is put to the jury under a fair report privilege or the falsity element to a defamation claim. 424 U.S. 448 (1976). Firestone involved a libel suit against Time magazine for its “Milestones” report on a high-profile divorce proceeding. Id. at 452. Time reported the divorce was granted

26 based on findings of salacious conduct, when those were only the allegations in the pleadings, and not specified by the court as the basis for its order. Id. at 450-52, 458. On review, although pre-Hepps, this Court recognized that a “demonstration that an article was true would seem to preclude finding the publisher at fault” under the First Amendment, and thus examined whether “the Florida courts properly could have found the ‘Milestones’ item to be false.” Id. at 458. Notably, this Court’s examination in Firestone did not involve looking at whether the underlying statements were true. Instead, this Court examined whether what Time reported was in fact the basis for the divorce court’s order. In doing so, this Court credited that “this issue was submitted to the jury under an instruction intended to implement Florida’s limited privilege for accurate reports of judicial proceedings.” Id. at 458. And looking to the privilege finding, this Court concluded that “there is ample support for the jury’s conclusion, affirmed by the Supreme Court of Florida,” that Time’s report was not factually correct. Id. at 459. Critically, this Court recognized in Firestone that the applicability of a conditional privilege for the accurate reports of judicial proceedings is another form of the constitutionally required truth/falsity analysis when the allegation was that what the press reported was not what the government in fact said. Moreover, this Court also credited the jury’s findings as to the accuracy of the press reports to also constitute findings as to whether the article was true. Applying those same principles here dictates that there was no basis

for the Minnesota Supreme Court to have stripped away the jury’s determination that the statements were true in considering the falsity element—a determination to which Defendants were constitutionally entitled—so that the statements could instead be exclusively considered under the fair report privilege. Pape and Firestone stand for a commonsense rule: When a defamation claim is based on the press’s reporting on a government-related proceeding or report, the constitutional inquiry must be directed to the falsity on which the plaintiff ’s claim is based.8 In other words, where, as here, the plaintiff claims that the statements were false “[b]ecause law enforcement never said that,” the Constitution forbids liability unless the plaintiff proves that to be the case. See App. 247-52. And Firestone in particular shows that when the jury has already reached this issue—whether under a privilege or the falsity element—there is no need for an appellate court to remand for a new trial so that the same issue can be put to the jury under another basis. Collectively, these cases make clear that there is no requirement that journalists also establish that they

8 Greenbelt Coop. Pub. Ass’n v. Bresler, 398 U.S. 6 (1970) is in accord. That case concerned a defamation suit based on news articles reporting on city council meetings where people had characterized the plaintiff ’s negotiation position as “blackmail.” 398 U.S. at 7-8. The claim was that the speakers at the meeting and press in its republication were falsely charging Bresler with the crime of blackmail. Id. at 12. In directing its constitutional inquiry at the source of the plaintiff ’s allegation, this Court concluded “that as a matter of constitutional law, the word ‘blackmail’ in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review.” Id.

have met the other requirements of the fair report privilege (i.e., that the privilege applies to the type of proceeding or report that was reported on in this instance), and in turn defend that the privilege was not abused, in order to enjoy those First Amendment protections where the falsity claim is inaccurate reporting (as opposed to accurate republication). Here, the jury was properly instructed on the falsity element, and it found the statements were true. The Minnesota Supreme Court’s remand for a new trial—bringing with it the corresponding risk of inconsistent verdicts—for a jury to instead assess those same statements exclusively through the application of a state common law privilege, conflicts with the First Amend- ment’s requirements under this Court’s precedents, and compels this Court’s review and reversal.

II. The Decision Below Highlights the Division and Confusion Regarding First Amendment Protection of Truthful Reporting on Gov- ernment Statements and Investigations The Minnesota Supreme Court’s decision highlights the deep division and confusion among lower courts as to how to address defamation claims based on press reports of government officials’ statements regarding government investigations. Although many courts appropriately decline to hold the press liable for substantially accurate news reports on government investigations, they rely on competing rationales and legal protections. And for every decision affording such a legal protection, there is another refusing to do so,

leaving the news media exposed to potential liability for their true reports on government investigations. Whatever the approach, courts recognize that the “consequences of this decision for the First Amend- ment run deep.” Hatfill v. N.Y. Times Co., 427 F.3d 253, 258 (4th Cir. 2005) (Wilkinson, J., dissenting from denial of rehearing en banc). Some courts limit defamation liability in such circumstances by invoking the “substantial truth” doctrine and focusing on the news reports’ truthful- ness in describing the government action—not the truth of the underlying statements or allegations. See, e.g., Global Relief Found., Inc. v. N.Y. Times Co., 390 F.3d 973, 987-89 (7th Cir. 2004); Janklow v. Newsweek, Inc., 759 F.2d 644, 649 (8th Cir. 1985); Jewell v. NYP Holdings, Inc., 23 F. Supp. 2d 348, 367-69 (S.D.N.Y. 1998); KBMT Operating Co., LLC v. Toledo, 492 S.W.3d 710, 713-17 (Tex. 2016). But even among courts that recognize that the Constitution requires this inquiry into the substantial truth of the media reports, see Global Relief, 390 F.3d at 982 (citing Hepps); Janklow, 759 F.2d at 649 (citing Garrison); KBMT, 492 S.W.3d at 714 (citing Hepps), there is disagreement as to whether that substantial truth inquiry is part of the falsity element of a defamation claim or part of an applicable state law fair report privilege. Compare Global Relief, 390 F.3d at 982, with KBMT, 492 S.W.3d at 714-15. These decisions also bring with them confusion as to where the burden of proof lies. Compare Global Relief, 390 F.3d at 982 (defendant), with KBMT, 492 S.W.3d at 714-15 (plaintiff ).

Yet another line of decisions focuses the “substantial truth” inquiry on the underlying statements or allegations. See, e.g., Jones v. Taibbi, 512 N.E.2d 260, 266 (Mass. 1987) (“It is the truth of the underlying defamation that must be shown in order to establish the defense of truth.”); Berkos v. Nat’l Broad. Co., 515 N.E.2d 668, 679 (Ill. App. 1987) (finding substantial truth goes to the truth of the “allegedly defamatory remarks,” which there concerned the underlying statements). Other courts focus on a fair report privilege as the basis for protecting media defendants from liability for fair and accurate reporting on government investigations. See, e.g., Walker v. Beaumont Indep. Sch. Dist., 938 F.3d 724, 743-49 (5th Cir. 2019); Berkos, 515 N.E.2d at 676-78; Taibbi, 512 N.E.2d at 266-67; Thomas v. Tel. Publ’g Co., 929 A.2d 991, 1006-14 (N.H. 2007); Fortenbaugh v. N.J. Press, Inc., 722 A.2d 568, 570, 572- 76 (Superior Ct. N.J., App. Div. 1999); Neely v. Wilson, 418 S.W.3d 52, 62-69 (Tex. 2012). But the scope of that privilege “differs dramatically from jurisdiction to jurisdiction,” and the “constitutional status of the fair report privilege is uncertain.” Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems §§ 7- 24, 7-51 (5th ed. 2019); see also Moreno v. Crookston Times Printing Co., 610 N.W.2d 321, 332 (Minn. 2000) (noting the “confusion across jurisdictions” on the fair report privilege). Still other courts hold that the media’s reports on law enforcement’s arrest or investigation of an individual are not actionable because they are not capable

31 of a defamatory meaning or are statements of opinion. See, e.g., Foley v. Lowell Sun Pul’g. Co., 533 N.E.2d 196, 197 (Mass. 1989) (holding newspaper report on plaintiff ’s arrest for assault was not susceptible of a defamatory meaning because “a reasonable reader could not conclude that the Sun was accusing Foley of assaulting the officer”);see also, e.g., White v. Fraternal Order of Police, 909 F.2d 512, 525-26 (D.C. Cir. 1990); Ramsey v. Fox News Network, L.L.C., 351 F. Supp. 2d 1145, 1151-53 (D. Colo. 2005). Courts and commentators alike have noted the widespread confusion on this issue. See, e.g., Sack, supra, §§ 7-24, 7-35, 7-51; Neely, 418 S.W.3d at 93-94 (Lehrmann, J., dissenting from denial of rehearing) (noting “uncertainty in this critical area of the law [that] may have a chilling effect on the press”); Hatfill, 427 F.3d at 253-59 (Wilkinson, J., dissenting from denial of rehearing); Jonathan Donnellan & Justin Peacock, Truth and Consequences: First Amendment Protection for Accurate Reporting on Government Investigations, 50 N.Y.L. SCH. L. REV. 237, 243 (2005- 2006) (“the lack of legal clarity on this issue makes it extremely difficult to reliably determine a publisher’s potential liability for republishing the fact of a law enforcement investigation”). Here, the trial court openly acknowledged the confusion on this issue from the bench; confusion that was only compounded by the Minnesota Supreme Court’s decision. Although “the States may define for themselves” certain aspects of defamation law, that is only “so long as they do not” cross the minimum

32 standards compelled by the First Amendment. Gertz v. Welch, 418 U.S. 323, 347 (1974). Here, however, the Minnesota Supreme Court resolved the issue in a way the First Amendment flatly prohibits.See supra Arg. I. Review is compelled so this Court can clarify that whatever flexibility may be afforded to the states, there are constitutional baselines that cannot be violated.

III. The Decision Below Threatens to Chill Constitutional Speech when Reporting on Government Investigations and Statements The issue presented here is of vital constitutional importance. The press has a critical role and responsibility to report about government statements and investigations. “[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring him in convenient form the facts of those operations.” Cox, 420 U.S. at 491. Particularly when the press reports on the government’s statements in a formal news conference and news release, the “government’s issuance of such a release, without qualification, can only convey to recipients that the government considered dissemina- tion lawful, and indeed expected the recipients to disseminate information further.” Fla. Star, 491 U.S. at 538-39. Here, law enforcement expected—and the public relied upon—KARE 11-TV and the St. Cloud Times to

33 provide coverage and relay information law enforcement disseminated regarding Officer Decker’s murder. The First Amendment interests for the media are at their highest in such circumstances. As this Court has recognized, if KARE 11-TV and the St. Cloud Times would have “merely reproduced the news release prepared and released by the [police] Department, imposing civil damages would surely violate the First Amendment.” Id. at 539. News media must also be able to operate with the constitutional assurance that simply “convert[ing] the police report into a news story by adding the linguistic connecting tissue . . . cannot change this result.” Id. The First Amendment provides that assurance through the rule that, when the media reports on issues of public concern, “a private-figure plaintiff cannot recover damages without also showing that the statements at issue are false.” Hepps, 475 U.S. at 768-69. This Court has recognized that any “chilling effect” on the press in such circumstances “would be antithetical to the First Amendment’s protections of true speech on matters of public concern.” Id. at 777. Yet that is precisely the danger created by the Minne- sota Supreme Court’s decision. When the government makes public pronouncements on breaking news, news media needs assurance it is not exposing itself to defamation liability by reporting on that story and meeting its responsibility of reporting on that information to the public so long as it truthfully reports what the government has said. While the fair report privilege as recognized in Minnesota and

elsewhere provides a level of protection for the media in that regard, it is patently improper for a court to hold that the constitutionally-mandated protection given to truthful reporting is exclusively available through that privilege, particularly when as here, a properly instructed jury on the falsity element already made the determination that the statements at issue were not false. This Court has already found that “placement by state law of the burden of proving truth upon media defendants who publish speech of public concern” impermissibly “deters such speech because of the fear that liability will unjustifiably result.” Hepps, 475 U.S. at 777. The same danger exists here. The fear of a defendant being forced to win on the same issue twice, against two different juries, at a high litigation costs, and at the risk of inconsistent verdicts, will have a chilling effect on the news media. This “chilling effect” will be the new normal in the State unless corrected by this Court now. The Minne- sota Supreme Court emphasized that it “take[s] an incremental approach” to the fair report privilege, and in over a century, has only recognized its application to judicial proceedings, city council meetings, and official law enforcement news conferences and news releases. App. 21-30. This piecemeal approach means that any report by the press on statements by the government outside of these three previously recognized contexts may not be protected by the privilege, or at least not recognized as such until after a trial and the case is on appeal. This poses the real possibility of the same constitutional issue in this case arising again. The

added danger, however, is that instead of litigating this through to a potential second trial, as KARE 11-TV and the St. Cloud Times will have to do if review is denied, the media may instead self-censor what it publishes. It is not hard to find examples of where this could play out, in Minnesota or elsewhere. For example, after George Floyd’s death in Minneapolis—which set off a national and international firestorm—Minneapolis Mayor Jacob Frey stated at a press conference: “I do not want to get into the fundamentals of different classifications of murder, . . . the officer who had his knee on the neck of George Floyd should be charged.”9 Likewise, Speaker of the House Nancy Pelosi, in her weekly press conference, said “[w]e saw a murder take place before our very eyes.”10 Notably, neither of these significant public statements by high-ranking government officials currently falls within the Minnesota Supreme Court’s fair report privilege precedent (conversely, statements made by the Minneapolis Police Chief would11). And if any of the officers is later exonerated or the charges dismissed and a defamation

9 Mayor Jacob Frey, May 27, 2020 Press Conference (May 27, 2020), https://www.rev.com/blog/transcripts/minneapolis-mayor- jacob-frey-press-conference-george-floyd-death. 10 Rep. Nancy Pelosi, Transcript of Pelosi Weekly Press Con- ference Today (May 28, 2020), https://pelosi.house.gov/news/press- releases/transcript-of-pelosi-weekly-press-conference-today-65. 11 See, e.g., Police Chief Medaria Arradondo, Minneapolis Police Chief Arradondo Press Conference Transcript June 10 (June 10, 2020), https://www.rev.com/blog/transcripts/minneapolis-police- chief-arradondo-press-conference-transcript-june-10.

36 suit brought against the media for its reporting on these statements, the media could find itself in the same situation as KARE 11-TV and the St. Cloud Times—found not liable by a jury because the statements as relayed by the media were not false, only to be subject to a new trial on the same issue if the appellate court were later to recognize that such statements were also protected by the fair report privilege. Similar examples likewise abound during the current public health crisis, with government leaders holding regular news conferences about COVID-19 and offer- ing an ever-changing and fast-moving stream of facts, data, guidelines, anecdotes, and at times, misstate- ments. The media should not have to undertake “the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication.” Fla. Star, 491 U.S. at 536. Nor should it have to face the costs and risk of liability from a retrial to determine fairness and accuracy under a state law privilege for speech a properly instructed jury has already found to be true. The new trial ordered by the Minnesota Supreme Court here will “only result in a deterrence of speech which the Constitution makes free” in cases going forward. Hepps, 475 U.S. at 777 (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). The need for review is now.

IV. This Case Is the Right Vehicle for Resolving these Important Questions First Amendment-related issues from Minnesota have frequently compelled review and reversal by this Court, and this case is no exception. See, e.g., R.A.V. v. St. Paul, 505 U.S. 377 (1992), rev’g 464 N.W.2d 507 (Minn. 1991); Cohen v. Cowles Media Co., 501 U.S. 663 (1991), rev’g 457 N.W.2d 199 (Minn. 1990); Minn. Voters All. v. Mansky, 138 S. Ct. 1876 (2018), rev’g 849 F.3d 749 (8th Cir. 2017); Republican Party v. White, 536 U.S. 765 (2002), rev’g 247 F.3d 854 (8th Cir. 2001). The issues presented by this case are important, and this suit is a particularly good vehicle for taking up these issues. First, while courts have taken a variety of approaches to the question of defamation liability when the media reports on government statements regarding a crime, this case goes directly to the constitutional limits of the divergent approaches. Namely, when a plaintiff expressly claims that the falsity at issue is that what the media reported was not what law enforcement said, does a properly instructed jury’s determination that the statements were not false absolve the media defendant from defamation liability? Or can a state require that the inquiry into whether the statements were false in that respect be exclusively addressed through a common law fair report privilege, even at the risk of an inconsistent verdict upon a new trial? Although the First Amend- ment may not require states to adopt a singular approach to defamation claims, see Gertz, 418 U.S. at

347, it does not permit a ruling that subjects media defendants to potential liability when this Court’s precedents in Hepps, Florida Star, and their progeny all dictate that the jury’s finding on falsity in this case would constitutionally foreclose Defendants’ liability. Second, the chilling effect this case may have on the press compels review now. It does not matter that Defendants here may be vindicated by a second jury in a new trial. “Even if liability is defeated down the road, the damage has been done. . . . The prospect of legal bills, court appearances, and settlement conferences means that all but the most fearless will pull their punches even where robust comment might check the worst impulses of government and serve the community well.” Hatfill, 427 F.3d at 255 (Wilkinson, J., dissenting from denial of rehearing en banc). Although the effects of the Minnesota Supreme Court’s decision will be lasting, the only opportunity to meaningfully correct it is now.

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CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted,

STEVEN J. WELLS Counsel of Record TIMOTHY J. DROSKE NICHOLAS J. BULLARD DORSEY & WHITNEY LLP 50 South Sixth Street, Suite 1500 Minneapolis, Minnesota 55402 Telephone: (612) 340-2600 Email: [email protected] [email protected] [email protected] Counsel for Petitioners Gannett Co., Inc., Gannett Satellite Information Network Inc., Multimedia Holdings Corporation d/b/a KARE 11-TV and d/b/a St. Cloud Times August 27, 2020