J’Accuse! Allegations Make News Even When They’re Unproven

(Bloomberg Opinion) -- What standard should the news media apply in deciding when allegations are newsworthy? Some are asking that question in the wake of accusations swirling around such diverse figures as Houston Texans quarterback Deshaun Watson and Representative Matt Gaetz of Florida. Whatever the right answer, we can say with assurance that if the allegations are filed in court, the press can’t be sued for reporting them, even if they turn out to be false.

The most recent reminder comes from last week’s decision by the U.S. Court of Appeals for the 11th Circuit, dismissing the defamation suit filed against Gizmodo by former Donald Trump aide Jason Miller. To be sure, the court’s opinion rests on the peculiarities of New York law, but the logic has a more general application.

According to the court, the case arose after a paternity suit was filed against Miller by A.J. Delgado, a campaign aide with whom he had conducted an affair. In the course of that litigation, Delgado filed a pleading that included an explosive allegation: that several years earlier a different girlfriend, identified as Jane Doe, had become pregnant; that Miller had visited Jane Doe’s apartment and given her “a beverage which, unbeknownst to her, contained an abortion pill”; and that as a result of the pill, “her unborn child died.”

Miller immediately moved to have the document sealed, but the damage was done.  A few days after the pleading was filed, a website owned by Gizmodo published the details of the allegations story under the sensational headline “Court Docs Allege Ex-Trump Staffer Drugged Woman He Got Pregnant with ‘Abortion Pill.’”

Miller sued Gizmodo and the reporter for defamation.

According to the court, both Miller and Doe both denied under oath that they’d ever had a sexual relationship. They denied that Doe had ever become pregnant with his child. They denied that Miller had ever been to Doe’s apartment. They denied that he’d given her a smoothie — the drink that allegedly contained the pill. Most important, Doe specifically denied that she had ever “lost a pregnancy” as a result of a beverage he’d given her.

In short, Miller argued that the story was false.

Except that he didn’t. Not exactly. Miller’s lawsuit doesn’t accuse Gizmodo of inaccurately reporting the contents of Delgado’s filing. Instead, the lawsuit claims that the allegations in the filing are false. Thus Miller is, in effect, accusing Gizmodo of accurately reporting falsehoods. (Miller can’t sue Delgado for what’s in the pleadings. The law has long held that the contents of pleadings in court are not the proper subject of a defamation action.)

Even if the allegations are false, the 11th Circuit explained, news articles about them are privileged under a New York statute that shields individuals and corporations alike from liability “for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.” This law, the judges pointed out, has been interpreted to cover even “news articles containing false factual statements capable of defamatory interpretation.”

 Ouch — but, for those who love the First Amendment, an important ouch to bear.

Although other few states have adopted statutes embracing this “fair reporting” privilege, many courts have enforced a similar rule as a matter of common law. Legal scholars have long argued that without protection for the publication of some reports that turn out to be false, much reporting that is true might never take place.

One function of press freedom is to reduce the moral hazard implicit in any delegation of authority, including to government: Elected officials, like most people, will get away with what they can. If reporting is chilled because of a fear of crossing some legal line, moral hazard increases and government can get away with more. That’s one of many reasons that the current campaign to reduce “misinformation” is ... well, misinformed.

But there are also moral-hazard concerns running the other way. Defamation law is intended to make people and companies internalize the costs of spreading falsehoods that harm others. When we make exceptions, we increase the likelihood that the press will get stories wrong, particularly in the current era, when we’ve conflated “informing the public” with “getting clicks.”

And although we might all prefer a little more caution in reporting allegations, caution itself can, paradoxically, cause problems. Minnesota’s Supreme Court has even hinted that seeking confirmation from additional sources can “add credibility” to a false allegation, thus increasing the ensuing article’s defamatory effect.

Still, I’m with those who’d rather not tamper with broad First Amendment freedoms, for press and people alike, because they’re crucial to democracy. But let’s not pretend that there are no costs.

According to the court, the document is apparently now sealed.

The headline doesn’t quite scan – the prepositional phrase is in the wrong place – but I’m just reporting.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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