Even if Public Records Are Wrong, Accurately Reporting Them is Protected
Published April 2023
The “fair report” privilege is a legal doctrine accepted in South Carolina and most other states which provides that a publisher is not liable for defamation when accurately reporting on a public document, even if the report repeats factual errors in the original document.
A recent example of this was the dismissal on March 31 of a libel lawsuit against the Myrtle Beach Herald and one of its reporters over coverage of the unsuccessful campaign of a candidate in a 2020 South Carolina Senate primary runoff. The newspaper and other news outlets reported on court records of candidate John Gallman’s 2017 divorce, which included police reports and other allegations of domestic abuse. Gallman was not arrested or criminally charged in connection with these allocations.
After Gallman lost the runoff, he sued the newspaper, reporter Christian Boschult, and several other individuals and entities—including his opponents in the election—for libel, intentional infliction of emotional distress and alleged conspiracy. He alleged that the divorce court file and related materials had been illegally distributed to the media by his runoff opponent and his allies. Gallman also alleged that the Myrtle Beach Herald’s story on the allegations was used by his opponent as the basis for campaign literature and advertisements.
The Myrtle Beach Herald and Boschult, represented by Jay Bender (who is also an SCPA attorney), successfully moved to have the claims against them separated from the claims against the other defendants, and to have the conspiracy claim against them dismissed. The newspaper and reporter then moved for summary judgment. Gallman then dropped the intentional infliction of emotional distress claim, leaving only the defamation claims against the Myrtle Beach Herald and Boschult.
Common Pleas Judge J. Cordell Maddox Jr. granted the motion for summary judgment on March 31, on the grounds that most of the statements in the article that complained of were “supported fully by records from the Family Court.” Thus Maddox held that the article was protected from a defamation claim by the “fair report privilege,” which provides protection to accurate reports of official government proceedings and documents.
Gallman complained that the family court records were inaccurate, and pointed out that the Family Court subsequently issued an order in the divorce case addressing the inaccurate information. But that order was not issued until seven months after the article at issue was published.
Judge Maddox held that the accuracy of the divorce file documents was not the question in the libel claims against the newspaper and its reporter. “The test of plaintiff’s allegations under the law of libel is not whether the information contained in court records was false,” he wrote in his ruling, “but whether the news report presented a fair and substantially true summation of the contents of the court records.”
Judge Maddox also noted that the article at issue was also protected as a publication addressing the fitness of candidates for public office. Such publications, the court observed, are protected by the First and Fourteenth Amendments, with a legacy dating back to the writings of James Madison.
Because Gallman was a candidate for public office, Maddox wrote, he was a public figure who had to show that the Myrtle Beach Herald and Boschult had published the article with “actual malice:” either knowing that their statements weren’t true or with reason to strongly suspect that they were not true.
After Maddox’s ruling, the newspaper and Boschult filed a motion against Gallman and his attorney for sanctions covering attorney fees. That motion is pending.
Updates on other issues:
- The Great Libel Trial that Wasn’t: Despite the huge dollar amount involved, the last-minute settlement of the Dominion v. Fox News defamation case, which many expected—or feared—would be a blockbuster trial, seemingly leaves Fox News and its opinion hosts able to continue to operate without directly admitting culpability. But the settlement also leaves some important questions over the meaning and applicability of the “actual malice” standard, and how that standard should be applied in the current polarized age, as well to news sources and commentary more focused on inflammatory accusations than on informative communication.
- Open Records Legacy of the Murdaugh Case: In addition to demonstrating how to conduct a high-profile murder trial that both accommodates the media and the public interest in a decorous trial, another legacy of the Murdaugh murder case is that it led to recordings of jail prisoners’ phone calls—other than those with their lawyers—being accessible under the state’s Freedom of Information Act. But the perils of this access being mishandled became evident when the Colleton County Sheriff’s Office mistakenly included a recording of a call between Murdaugh and his attorneys in response to a FOIA request. This points out the need for agencies to carefully review material before releasing it, but should not be used as an excuse for limiting access to materials that keep public agencies and officials accountable to the people they serve.
- Pence Defends Sullivan: In the past I’ve written about numerous threats to the long-standing “actual malice” standard set in the landmark New York Times v. Sullivan case, including recent developments in Florida. But while the attacks on Sullivan seem to be coming mainly from conservatives, in early April former Vice President Mike Pence defended the Sullivan standard.
“I believe a free and independent press is a bulwark of our nation,” Pence told the Washington Examiner. “From my years in Congress, as a governor and, I trust, as vice president, we’ve worked to preserve the ability of the media, however maddening it can be from time to time, we’ve worked hard to preserve the freedom of the press to thrive in America. I would hold to the view that any effort to intrude upon that would not be in the interest of the nation.”
Early is his career Pence was a radio and TV host in Indiana. As a member of Congress, Pence was co-founder and co-chair of the Congressional Caucus for the Freedom of the Press and repeatedly introduced bills to create a federal reporters’ shield law.
“I’ll always be a champion of a free and independent press,” Pence told the Examiner, “and I trust that the conservative majority on the Supreme Court of the United States will preserve our First Amendment.”
- FTC Proposes “Easy” Unsubscribe: The Federal Trade Commission has proposed rules that would require websites that sell subscription services—including newspaper websites—to make cancelling the subscriptions as easy as starting them. A 2021 study of 526 news organizations by the American Press Institute found that only 41 percent made it easy to cancel subscriptions online. The FTC rules would also ban “dark patterns,” which use website design and other techniques to make unsubscribe links and other customer information, such as opt-out choices, hard to find.
Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and in an “of counsel” position at Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.