Norton v. Glenn

• Decision Date: 20 October 2004
• Citation: 860 A.2d 48,580 Pa. 212
• Parties: James B. NORTON, III, Alan M. Wolfe, and James Marlowe, v. William T. GLENN, Sr., Troy Publishing Company, Inc., Tom Kennedy, And William Caufield, Appeal of Troy Publishing Company, Inc., Tom Kennedy, and William M. Caufield.
• Court: Pennsylvania Supreme Court

860 A.2d 48

580 Pa. 212

James B. NORTON, III, Alan M. Wolfe, and James Marlowe, v. William T. GLENN, Sr., Troy Publishing Company, Inc., Tom Kennedy, And William Caufield, Appeal of Troy Publishing Company, Inc., Tom Kennedy, and William M. Caufield.

Supreme Court of Pennsylvania.

Argued October 20, 2003.

Decided October 20, 2004.

Michael E. Baughman, Robert C. Heim, Amy B. Ginensky, Philadelphia, Gerald A. Hughes, Trenton, NJ, for Troy Pub. Co., Inc., appellant.

Terence Jon Barna, Corinna R. Wilson, Niles Benn, York, Walter Thomas McGough, Katherine L. Hatton, Philadelphia, for PA Newspaper Ass'n, et al., appellant amici curiae.

Jennifer DuFault James, Carl Anthony Solano, Bruce Philip Merestein, Alison Finnegan, Philadelphia, for Committee of Seventy, appellant amicus curiae.

William T. Wilson, West Chester, Dennis B. Young, Parkesburg, Laurie Wyche-Abele, West Chester, for Alan M. Wolfe, appellee.

Richard A. Sprague, Geoffrey Richard Johnson, Philadelphia, for James B. Norton, III, appellee.

Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION

Chief Justice CAPPY.

At issue in these matters is whether the neutral reportage privilege is encompassed within the Pennsylvania or United States Constitutions. For the reasons that follow, we hold that it is not. We therefore affirm the order of the Superior Court.

These matters arise out of an article ("Article") written by Tom Kennedy ("Kennedy") which appeared in the April 20, 1995 edition of the Chester County Daily Local ("Daily Local"). The Article, which was entitled "Slurs, insults drag town into controversy," detailed heated exchanges that occurred among members of the Parkersburg Borough Council ("Council"); the Article reported that these exchanges occurred both inside and outside of the Council chamber. At issue are extra-Council chamber comments made by William T. Glenn, Sr. ("Glenn"), a member of the Council, regarding Council President James B. Norton III ("Norton") and Borough Mayor Alan M. Wolfe ("Wolfe").¹

The Article stated that Glenn had claimed that Norton and Wolfe were homosexuals and that Glenn had observed Norton involved in a homosexual act in Norton's house. The Article also reported that Glenn had issued a written statement strongly implying that Glenn considered Norton and Wolfe to be "queers and child molesters." The Article related that Glenn had declared that he had a duty to make the public aware of this information as Norton and Wolfe had "access to children...." Finally, according to the Article, Glenn asserted that Norton had made homosexual advances toward Glenn which escalated to Norton grabbing Glenn's penis, apparently without Glenn's consent.

The Article noted that when informed of Glenn's claims, Norton responded, "If Mr. Glenn has made comments as bizarre as that, then I feel very sad for him, and I hope he can get the help he needs."

Wolfe, Norton (collectively, "Appellees") and Marlowe filed separate actions, each raising defamation claims.² They named as defendants Kennedy, the Daily Local, William Caufield, who owned the Daily Local, and the Troy Publishing Company, Inc., which published the Daily Local; these defendants shall collectively be referred to as the "Media Defendants". Appellees and Marlowe also filed suit against Glenn. Ultimately, these actions were consolidated before the trial court.

The Media Defendants and Glenn filed motions for summary judgment. In an opinion granting relief in part and denying relief in part, the trial court determined that the Media Defendants were entitled to the protection of a privilege known as the neutral reportage privilege. Tr. ct. slip op., 8/02/1999, at 12. The trial court reasoned that this privilege was nothing more than the long-recognized fair report privilege, id. at 2 n. 2, a privilege which grants immunity from defamation suits to media entities which accurately report the official proceedings of government. The trial court opined that pursuant to this privilege, "the subjective awareness of the publisher, of the truth or falsity of the statement, is irrelevant." Id. at 12. The trial court explicitly stated that its "holding eliminates the necessity of a determination of actual malice³ as to the Media Defendants." Id. At the commencement of trial, the trial court dismissed Marlowe's action. Appellees' claims against the Media Defendants and Glenn proceeded to trial. Pursuant to its earlier rulings that evidence of actual malice is irrelevant in a neutral reportage matter, the trial court precluded Appellees from introducing evidence regarding whether the Media Defendants acted with actual malice.

Via special interrogatories, the jury found that Glenn had made the statements attributed to him in the Article and had made them with actual malice; accordingly, it held him liable for defamation. As against Glenn, it awarded Norton $10,000.00 in compensatory damages and $7,500.00 in punitive damages; it granted an identical award to Wolfe. Glenn did not appeal.

Pursuant to another set of special interrogatories, the jury determined that the Media Defendants were not liable. Specifically, the jury found that the Article accurately conveyed the gist of the statements Glenn made and did not imply that the Media Defendants adopted or concurred in those statements. Thus, pursuant to the trial court's instruction regarding the neutral reportage privilege, the jury found the Media Defendants not liable in defamation.

Appellees filed post-trial motions, requesting that a new trial be granted. The trial court denied relief. In its opinion explaining its determination, the trial court articulated its definition of the neutral reportage privilege. It interpreted the doctrine as conferring a privilege on the publication of "serious charges of a public official involved in an ongoing controversy and concerning other public officials⁴ irrespective of the publisher's belief as to the falsity of the charges, provided that the report does not espouse or concur in the charges and in good faith believe that the report accurately conveys the charges made." Tr. ct. slip op. dated 1/19/2001 at 3-4. The trial court also justified precluding Appellees from introducing evidence regarding whether the Media Defendants acted with actual malice in publishing the Article. It reasoned that "the neutral reportage privilege does offer broader protection than the actual malice standard, and under the neutral reportage privilege the evidence offered was irrelevant." Id. at 8. The trial court noted that in the event that an appellate court determined that the neutral reportage privilege was not viable, then Appellees "would be entitled to a new trial due to [the trial court's] exclusion of their evidence on the issue of actual malice." Id. at 8-9.

On appeal, the Superior Court reversed. Norton v. Glenn, 797 A.2d 294 (Pa.Super.Ct.2002). The Superior Court found that there was no constitutional or statutory basis for the neutral reportage privilege. Thus, it concluded that the trial court had committed an error of law when it determined that such a privilege applied to this case and that a new trial must be awarded.

The Media Defendants filed a petition for allowance of appeal with this court. We granted allocatur, limited to the issue of whether there is a federal⁵ or state constitutional basis for declaring that the media enjoy the protections of a doctrine known as the neutral reportage privilege. As this is a question of law, our standard of review is de novo and our scope of review is plenary. See In re Hickson, 573 Pa. 127, 821 A.2d 1238 (2003).

The Media Defendants urge us to find that the First Amendment encompasses the neutral reportage doctrine. They contend that we should follow the lead of several other jurisdictions and adopt this privilege. See, e.g., Sunshine Sportswear & Electronics, Inc. v. WSOC Television, Inc., 738 F.Supp. 1499 (D.S.C.1989); In re United Press International, 106 B.R. 323 (D.D.C.1989); Barry v. Time, Inc., 584 F.Supp. 1110 (N.D.Cal.1984) (finding that the First Amendment mandates adoption of the neutral reportage doctrine). Appellees, on the other hand, wish us to follow the lead of those jurisdictions which have rejected the privilege. See, e.g., Postill v. Booth Newspapers, Inc., 118 Mich.App. 608, 325 N.W.2d 511 (1982); McCall v. Courier-Journal, 623 S.W.2d 882 (Ky. 1981).

We must now determine whether the neutral reportage privilege is grounded in the First Amendment. In analyzing this claim, we find that the logical first step is to discuss at length the decision which first defined the contours of the privilege and declared it to be mandated by the First Amendment. See Edwards v. National Audubon Socy., Inc., 556 F.2d 113 (2d. Cir.1977). At issue in Edwards was an article published by the New York Times ("the Times"). This article stated that the National Audubon Society declared that certain scientists who claimed that bird populations were actually increasing in spite of the use of the insecticide DDT were paid "liars". Several of the scientists who were named filed suit against, inter alia, the Times seeking damages in defamation. The jury returned a verdict against the Times.

The circuit court reversed on appeal. The court declared that the First Amendment demands the protection of "a robust and unintimidated press...." Id. at 120. It hypothesized that "[t]he public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them." Id. Accordingly, it designed a privilege that gave sweeping protection to the media to repeat such newsworthy statements, and determined that this new privilege had its genesis in the federal Constitution. It reasoned that "when a responsible, prominent organization ... makes serious charges against a public figure, the First Amendment...