November 3, 1998

DEFAMATION LAW ALERT!

The First Amendment does not protect a newspaper's "neutral reportage" of a false, defamatory accusation against a private figure, the California Supreme Court held Monday (Nov. 2).

Justice Joyce Kennard, writing for a unanimous court in Khawar v. Globe International, Inc. (no. S054868), upheld a jury verdict against the weekly tabloid Globe for a 1989 article in which it effectively accused a Bakersfield farmer, Khalid Khawar, of assassinating U.S. Senator Robert Kennedy. (At the time of the assassination in June 1968, Khawar was a Pakistani citizen and a photojournalist. His picture was taken with Kennedy at the Ambassador Hotel in Los Angeles, shortly before Sirhan Sirhan shot Kennedy to death there.)

The Globe claimed that its article was merely a neutral and accurate report of allegations raised in a 1988 book. It relied on certain federal and state court decisions, from outside California, which have made an exception to the common-law rule that a person who republishes a defamatory statement is liable for libel or slander, just as the original publisher is. The exception, called "neutral reportage," holds that the First Amendment mandates an absolute privilege for republication of defamatory statements in certain circumstances. Various courts have described the required circumstances in different ways; others have simply rejected the neutral reportage privilege. The U.S. Supreme Court has never tackled the issue.

"Deciding whether either the federal or the state Constitution mandates some form of neutral reportage privilege is a task that we leave for another day," Kennard wrote. "Even if some form of the privilege is constitutionally required, we are satisfied that any required privilege would not immunize defamatory statements about private figures like Khawar."

Kennard explained: "Only rarely will the report of false and defamatory accusations against a person who is neither a public official nor a public figure provide information of value in the resolution of a controversy over a matter of public concern. On the other hand, the report of such accusations can have a devastating effect on the reputation of the accused individual, who has not voluntarily elected to encounter an increased risk of defamation and who may lack sufficient media access to counter the accusations."

The decision should not have a significant impact on the daily work of serious journalists in California. Although allegations of wrongdoing by private individuals sometimes make news -- in crime stories, for example -- those allegations are generally covered by other privileges, such as the privilege covering "fair and true reports" of judicial proceedings and of complaints made to public officials (Cal. Civil Code, § 47).

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© Martin Kassman 1998