The fair report privilege is a widely recognized, state-law defense to defamation actions provided to journalists when they report on or republish defamatory statements made during the official affairs of the government or governmental meetings.
As First Amendment scholar Rodney Smolla writes, the privilege “clearly partakes of First Amendment values, and it has been suggested that the privilege (in some form) should perhaps be understood as required by modern First Amendment principles.” (§8.67).
Fair report privilege can insulate journalists from some defamation claims
However it is rooted or required by the First Amendment, what is clear is that the privilege generally applies if the content of the reporting deals with a matter of public concern and is a complete or a fair abridgment of the governmental action. For example, if a reporter attends a city council meeting and a city council person utters a defamatory statement, the reporter generally may print the defamatory statements of the city council person.
The privilege covers the media’s accurate reporting of “official statements” by government officials made at governmental meetings or sometimes made in less formal ways. However, the fair report privilege may not cover unofficial, one-on-one statements between a government official and a reporter. For example, the Tennessee Supreme Court recently refused to apply the fair report privilege to a one-one telephone conversation between a reporter and a police officer who doubled as a public information officer. Burke v. Sparta Newspapers (2019).
What makes the fair report privilege a powerful one is that generally, in defamation law, a person who republishes a defamatory statement is just as liable as the original defamer. However, the fair report privilege insulates the republisher in certain circumstances. The Restatement (Second) of Torts provides:
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. (§ 611).
Fair report privilege can be applied to variety of government proceedings
Originally, the fair report privilege applied only to cover the press when it reported on statements made in judicial proceedings in open court. Over time, the report has expanded beyond these judicial or quasi-judicial roots to cover a variety of governmental proceedings, such as city council meetings or police blotters.
Professor Russell Peltz explains that there are three justifications for the fair report privilege:
- The agency rationale;
- The public supervision rationale; and
- The information rationale.
Under the agency rationale, the press serves the public by reporting and bringing the public news of what the press observes. Under the public supervision rationale, the press makes government officials accountable to the public by reporting their proceedings. This rationale is rooted in the concept of democratic self-governance. Under the related information rationale, the public benefits from learning more information about government officials regardless of whether the press or the public then act in further of democratic self-governance principles associated with the public supervision rationale. (Peltz, 726).
Level of protection under fair report privilege varies by state
The fair report privilege, because it is a matter of state law, can differ dramatically from state to state. In some states, the privilege appears more absolute. In other states, there are many more exceptions.
The fair report privilege is similar to two other related defenses in defamation law – the fair comment privilege and the neutral reportage privilege.
The fair comment privilege refers generally to a common-law defense that applies to matters of asserted opinion. The neutral reportage privilege, which is not recognized in some states, applies to reporting about issues of public concern but – unlike the fair report privilege – does not turn on whether the original defamatory statements were uttered at a governmental event or meeting of a governmental body.
David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was published Jan. 23, 2020.