The concept of "fair report privilege" in regard to the press goes back to the early days of the commonwealth of Massachusetts. That the principle still holds today, as declared last week by the Massachusetts Supreme Judicial Court, is welcome news for the press and residents of the commonwealth.
The deciding case that went before the SJC, Butcher vs. University of Massachusetts, involved two news articles published by Mass Media, the student newspaper of UMass-Boston back in 2013. The articles included information, about an alleged crime involving illicit photography, provided by a police blotter prepared by the university's police department. The individual named as a suspect claimed his innocence and subsequently sued the newspaper for libel. The university argued that there was no intent to defame the suspect and defended itself on the grounds of "fair report privilege."
A police blotter is a chronological listing of daily cases recorded by police departments. It includes arrests with name, age, address of the suspect and other relevant information. This information is of importance to the residents of a community, and the press that serves as a conduit of this information.
Warning of the dangers that would follow should the lawsuit be upheld, the New England First Amendment Coalition, joined by the Massachusetts Newspaper Publishers Association and the Reporters Committee for Freedom of the Press, among others, stated in an amicus brief that "Massachusetts journalists will no longer be able to report information contained in police blotters, a reliable and frequent source for news coverage about something that is of the utmost public importance — crime. This will necessarily have a chilling effect on the press's ability to report official government information, to the detriment of an informed public."
On Dec. 31, the SJC ruled in favor of the newspaper on the basis of fair report privilege. Justice Barbara Lenk, in writing the decision, noted that the information in a police blotter may or may not be accurate but cited a 1974 U.S. Supreme Court decision that ensuring the press can report freely on public affairs "requires that we protect some falsehood in order to protect speech that matters" as an argument for the state's provision of fair report privilege. There were competing principles, the justice acknowledged, but the ability of the press to act without restraints must take precedence.
As the case wound its way through the courts over the six years since the newspaper story was written, the reporters and editors at the school newspaper graduated and the plaintiff, who worked at UMass, left the school. All that remained was the lawsuit and the principle of fair report privilege. The SJC ruling does not give journalists carte blanche to print stories irresponsibly. Care must be taken to check facts and to offer corrections and apologies if necessary. But newspapers should not be held responsible for reporting what they can only take as accurate from a police blotter or in a statement from a public official. To do otherwise would be to stifle the free flow of information, and the SJC ruled wisely in assuring that a terrible precedent was not established by this case.