The Next Battles
The fair-report privilege protects journalists who cover contentious issues argued on the public record, such as in a city council meeting or in the courts. In the case at hand, Start, a Carol Stream-based trade magazine for manufacturers, reported on an antitrust suit Rockwell Automation had filed against Solaia Technology of Chicago over a patent. When Start published an article in 2003 headlined “Conspiracy of a Shakedown,” Solaia sued for defamation. A Cook County circuit judge threw out the suit on the grounds that the Start article had fairly reported the antitrust suit and therefore Solaia had no case.
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Yet in Burke’s view, Start’s accuracy and fairness weren’t the last word because “allegations of actual malice defeat the privilege.” That idea sent First Amendment lawyers reeling. If it stands it means cases such as this one will linger in court, so plaintiffs like Solaia can try to show they were recklessly defamed–despite the fair-report privilege and even when, as in this case, the court itself sees no sign of reckless defamation. Burke’s message to Start was effectively this: you’ll probably win this lawsuit, but you’ll have to spend a lot more time and money fighting it. The message tells magazines that next time they should stick to Britney Spears. The media’s amicus brief argues that the issue at stake here is the press’s “core function”: “to fairly and accurately report on the activities and processes of government.”
The story continues: “After Tuite was on the case, all the guys were sort of semijubilant. Everybody figured Tuite had it all handled. To Aiuppa and his codefendants, it was like it was a done deal, like they were all going to be acquitted. So you can imagine their reaction when they were all found guilty the following January…
To which the Reader, the Tribune, the Sun-Times, ABC, CBS, WLS, Crain Communications, the Copley Press, the Illinois Broadcasters Association, and Simon & Schuster reply in one voice: keep the rule. Tuite’s suggestion to abandon it “is profoundly ill-advised,” the amicus brief tells the state supreme court. “That sometimes the rule is misapplied does not mean you throw it out; that is what appellate review is for.” According to the brief, since the state supreme court reaffirmed the innocent-construction rule in 1982 state courts have upheld an innocent-construction defense in 33 cases and denied it in 25 others. These numbers belie Tuite’s suggestion to the court “that it has caused countless meritorious suits to be dismissed.” On the contrary, “the rule preserves writers, publishers and broadcasters from the chilling effect of hav-ing to mount a lengthy and expensive defense of marginal and abusive cases.”
As conspiracy theories sprouted like daffodils, the Tribune explained itself: it was simply laying the groundwork for routine postmortem interviews with the Ryan jury when it came across evidence that two jurors had concealed criminal histories. Then the Tribune acted promptly and responsibly, taking the evidence to Chief Judge Charles Kocoras–who told the presiding judge, Rebecca Pallmeyer, who dropped the two jurors. And the Ryan trial nearly went off the tracks.
He wondered, “Having established this precedent now, what will the Tribune and its attorneys do the next time a similar situation arises? What will the consequence be if in that instance they come to the opposite conclusion and publish first without having disclosed the information to the court, and the Tribune errs in what it publishes?” Will the Tribune one day have to answer for not doing twice something no one would have guessed it would do even once?
