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Proceedings of the Annual Meeting of the Association for Education in Journalism and Mass Communication (86Th, Kansas City, Missouri, July 30-August 2, 2003). Law Division

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Proceedings of the Annual Meeting of the Association for Education in Journalism and Mass Communication (86Th, Kansas City, Missouri, July 30-August 2, 2003). Law Division DOCUMENT RESUME ED 481 255 CS 512 485 TITLE Proceedings of the Annual Meeting of the Association for Education in Journalism and Mass Communication (86th, Kansas City, Missouri, July 30-August 2, 2003) . Law Division. PUB DATE 2003-07-00 NOTE 309p.; For other sections of these proceedings, see CS 512 480-498. PUB TYPE Collected Works Proceedings (021) Reports Research (143) EDRS PRICE EDRS Price MF01/PC13 Plus Postage. DESCRIPTORS Corporations; *Court Litigation; Federal Courts; Hate Crime; Hearings; Higher Education; Internet; *Journalism Education; Libel and Slander; Mental Disorders; Privacy; State Courts IDENTIFIERS Cross Burning; First Amendment; Florida; Hate Speech; *Public Records; *Supreme Court ABSTRACT The Law Division of the proceedings contains the following 8 papers: "The Neutral Reportage Doctrine 25 Years After: An Update on the Still 'Fletdgling' Libel Defense" (Kyu Ho Youm); "Personal Jurisdiction Over Media Libel Cases in the Internet Age" (Robert L. Spellman); "A Framework for Electronic Access to Court Records in Florida" (Roxanne S. Watson and Bill F. Chamberlin); "The Chickens Have Come Home to Roost: Individualism, Collectivism, and Conflict in Commercial Speech Doctrine" (Elizabeth Blanks Hindman); "Can the Effect of 'Richmond Newspapers' Stretch Even Further?: An Analysis of the Right of the Press to Cover Immigration Hearings" (Dale L. Edwards); "Cross Burning Revisited: What the Supreme Court Should Have Done in 'Virginia v. Black' and Why It Didn't"(W. Wat Hopkins); "Defamation and Mental Disorder: The Enduring Stigma" (Karen M. Markin); and "Privacy Versus Public Access: An Analysis of How Courts Balance These Competing Social Interests When Government Records Are Computerized" (Joey Senat). (RS) Reproductions supplied by EDRS are the best that can be made from the original document. oo Proceedings of the Annual Meeting of the Association for Education in Journalism and Mass Communication 86th, Kansas City, MO July 30-August 2, 2003 Law Division The Neutral Reportage Doctrine 25 Years After: An Update on the Still "Fledgling" Libel Defense...Kyu Ho Youm Personal Jurisdiction Over Media Libel Cases in the Internet Age...Robert L. Spellman A Framework for Electronic Access to Court Records in Florida...Roxanne S. Watson, Bill F. Chamberlin The Chickens Have Come Home to Roost: Individualism, Collectivism, and Conflict in Commercial Speech Doctrine...Elizabeth Blanks Hindman Can the Effect of Richmond Newspapers Stretch Even Further? An Analysis of the Right of the Press to Cover Immigration Hearings...Dale L. Edwards Cross Burning Revisited: What the Supreme Court Should Have Done in Virginia v Black and Why It Didn't...W. Wat Hopkins Defamation and Mental Disorder: The Enduring Stigma...Karen M. Markin Privacy Versus Public Access: An Analysis of How Courts Balance These Competing Social Interests When Government Records are Computerized...Joey Senat U.S. DEPARTMENT OF EDUCATION Office of Educational Research and Improvement PERMISSION TO REPRODUCE AND EDUCATIONAL RESOURCES INFORMATION DISSEMINATE THIS MATERIAL HAS CENTER (ERIC) BEEN GRANTED BY O This document has been reproduced as received from the person or organization originating it. O Minor changes have been made to improve reproduction quality. Points of view or opinions stated in this TO THE EDUCATIONAL RESOURCES document do not necessarily represent INFORMATION CENTER (ERIC) official OERI position or policy. 1 2 BEST COPY AVAILABLE THE NEUTRAL REPORTAGE DOCTRINE 25 YEARS AFTER: AN UPDATE ON THE STILL "FLEDGLING" LIBEL DEFENSE Kyu Ho Youm, M.S.L., Ph.D. Jonathan Marshall First Amendment Chair School of Journalism and Communication University of Oregon Eugene Or 97403-1275 Tel. (541) 346-2178 FAX (541) 346-0682 E-mail: [email protected] Paper presented at the annual convention of the Association for Education in Journalism and Mass Communication (AEJMC) in Kansas City, Missouri, on July 30-Aug. 2, 2003. 3 THE NEUTRAL REPORTAGE DONCTRINE 25 YEARS AFTER: AN UPDATE ON THE STILL "FLEDGLING" LIBEL DEFENSE Kyu Ho Youm, M.S.L., Ph.D. Jonathan Marshall First Amendment Chair School of Journalism and Communication University of Oregon Eugene OR 97403-1275 The debate about the viability of neutral reportage as a constitutional defense to libel continues. And given the "current limbo" that the neutral reportage doctrine is facing as it enters its 25-year evolution, the constitutional libel defense deserves another in-depth look. This article examines the theoretical underpinnings and judicial interpretations of the neutral reportage doctrine. Three questions provide the main focus: (1) What was the constitutional and common law framework on republication of defamatory statements?; (2) Why and how did the U.S. Court of Appeals for the Second Circuit formulate the neutral reportage doctrine to modify the republication rules?; and (3) How has the neutral reportage doctrine been applied by state and federal courts? 4t THE NEUTRAL REPORTAGE DONCTRINE 25 YEARS AFTER: AN UPDATE ON THE STILL "FLEDGLING" LIBEL DEFENSE Republication of a libel is no less actionable than its original publication in American law: "One who republishes a defamatory statement [originally made by another] 'adopts' it as his own and is liable in equal measure to the originaldefamer."' American courts have traditionally refused to distinguish publishers from republishers of defamatory statements on the theory that "tale bearers are as bad as tale makers."2 The common law republication rules have been deemed growingly inadequate by American courts especially "when they act to inhibit the flow of information about the very existence of the charges and accusations various persons and groups are hurling at each other in the midst of publiccontroversies."3 The "neutral reportage" doctrine was established as a more accommodating substitute for the rather rigid republication rules. The doctrine posits that the press should not be liable for reporting, i.e., republishing, in a fair and neutral manner "newsworthy" allegations made by any "responsible" or "prominent" speaker about public figures.4 The neutral reportage doctrine' is grounded in First Amendment principles because it revolves around "the subjective good faith of the journalist making the report and the public interest or newsworthiness of the story."6 The neutral reportage doctrine, which was first enunciated by the U.S. Court of Appeals for the Second Circuit in 1977, has been favorably received by lower state and federal courts as a whole but with "mixed" results, according to U.S. Circuit Judge Robert D. Sack.' U.S. District Judge Marilyn Patel stated in February 2002 that "there is a great deal of inconsistency among state court decisions" relating to the libel defense.8 Likewise, media attorney Kelli L. Sager argued that "very few federal cases have addressed the neutral reportage privilege and, in those that have, the decisions appear to be 'all over the map.'"9 By contrast, Justice Andrew Douglas of the Ohio Supreme Court has noted the wide recognition of the neutral reportage doctrine in numerous jurisdictions, both state andfederal.'° Professor Rodney A. Smolla, author of a highly influential libel law treatise,11 is not equally 4 2 .L effusive in his assessment of the judicial status of neutral reportage. But he is warily sanguine: "[O]n the whole the doctrine appears to be gaining slow but steady acceptance."12 Given that the U.S. Supreme Court has yet to rule on the concept of neutral reportage," it is hardly surprising that media defense lawyers have not widely resorted to the neutral reportage doctrine. One 2002 WESTLAW search of the doctrine concluded: "Edwards [v. National Audubon Society] [14] has been cited both positively and negatively only 153 times, and just seventeen times in the past five years."" Furthermore, attorneys James E. Stewart and Laurie J. Michelson in the summer of 1999 detected an apparent "reversal" of the earlier judicial expansion of the parameters of neutral reportage.' 6 The debate about the viability of neutral reportage as a constitutional defense to libel continues. In 2000, a law review commentator proposed revision of the neutral reportage doctrine because its original framework "has become outdated in an age in which unsubstantiated and potentially false charges made by disreputable figures, publications, and Web sites play a significant role in the public forum."" More recently, another commentator predicted that Massachusetts courts will adopt the neutral reportage doctrine "if a more appropriate case arises" because "other jurisdictions have [now] developed the doctrine more fully."" A good illustration of the still ongoing evolution of the neutral reportage doctrine is the impending ruling of the Pennsylvania Supreme Court in Norton v. Glenn'9 on the issue: Is the constitutional privilege of neutral reportage viable in Pennsylvania? The decision "may turn out to be the most important" on the neutral reportage doctrine since it was first recognized in1977.20 Given the "current limbo" that the neutral reportage doctrine is facing as it enters its 25- year evolution, the constitutional libel defense deserves another in-depth look. This article examines the theoretical underpinnings and judicial interpretations of the neutral reportage doctrine.2' Three questions provide the main focus: (1) What was the constitutional and common law framework on republication of defamatory statements?; (2) Why and how did the U.S. Court of Appeals for the Second Circuit formulate the neutral reportage
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