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N.C. Appeals Court Strengthens Fair Report Privilege

Note: N.C. Open Government Coalition board member Amanda Martin contributed this post. Martin serves as counsel for the North Carolina Press Association and Supervising Attorney for the First Amendment Law Clinic at Duke University.

The N.C. Court of Appeals handed down some very good news for journalists this month. The case arose after the arrest of Wesley Walker for an assault. WTVD’s Ed Crump emailed the Wake County Sheriff’s PIO to get more details. Ed wrote:

Just asking for a quick check to make sure this charge isn’t related to this guy’s job. He lists his employer as Capital Nursing. I’m guessing it’s domestic but if it’s related to a client from Capital Nursing I’m interested in more details.”

The PIO emailed back with the following brief response:

“Related to his employer.”

In the 6:00 evening news broadcast, WTVD reported the following:

New at 6:00 a Wake County man who works with the elderly is facing an assault charge. Wesley Walker works for Capital Nursing. According to the warrant Walker hit the victim in the face with a closed fist.

The Sheriff’s Office telling us the charge is related to his job. We’ve reached out to Capital Nursing but so far they have refused to comment.

The charge against Walker was not related to his job, and he filed suit against the Sheriff, the Sheriff’s PIO, WTVD and WTVD employees. The Court of Appeals found that the case could proceed against the Sheriff defendants but affirmed the dismissal of the case against WTVD. Here’s why and what you should learn from the case.

North Carolina courts recognize the fair report privilege. That means that journalists can report on official records or proceedings without fear of a libel suit, even if it turns out the information in the records is wrong. The court case that spelled out the privilege most clearly was decided in 2001, and it applied the privilege to news reports of police records, so long as the news report was a substantially accurate account of the records. The recent WTVD case is significant for several reasons.

 First, the Court applied the privilege, even though WTVD essentially relied on a very brief email with just the phrase, “related to his employer.”

Second, there were allegations in the case that WTVD had reason to doubt whether the charges were, in fact, related to Walker’s employer. The original email to the PIO said as much – “I’m guessing it’s domestic.” There also were allegations that another WTVD journalist called the nursing home and was told “there was no resident by the name of [the victim] at Capital Nursing and that this incident did not occur at Capital Nursing.” Although knowledge of falsity or “entertaining serious doubts” can be evidence of actual malice, the Court didn’t tackle that question and simply applied the privilege despite those allegations. The opinion cites a New Jersey opinion that holds “the fair report privilege ‘protect[s] the media publisher even though the publisher does not personally believe the defamatory words he reports to be true.’”

The language of the opinion highlights how incredibly important the exact language of a news report is. WTVD did not report that the assault was related to the nursing home but instead reported that the Sheriff’s Office was saying it was related.  WTVD reported, “The Sheriff’s Office telling us the charge is related to his job.”The Court of Appeals opinion found, “This broadcast was not merely substantially accurate, it was an almost verbatim recitation of information in the arrest warrant and Curry’s email to Crump. … WTVD Defendants did not report that Plaintiff had assaulted a resident at Capital Nursing. Instead, WTVD Defendants accurately reported the charge as described in the warrant and Curry’s statement that the charge was related to Plaintiff’s employer.”

Jon Buchan represents WTVD, and Court of Appeals Judge Allegra Collins wrote the opinion. Because the ruling was unanimous, Walker will have to get permission if he wants the Supreme Court to review the decision.

Beyond just making us happy for the application and extension of the fair report privilege, the Walker v. WTVD case underscores the importance of the language you use. To get the fullest protection from the privilege, be sure that you attribute information to its official sources. At the end of the day, that might be what gets you an early offramp from a libel suit.

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