• September 16, 2016

intersection crossroad

The Minnesota Court of Appeals described this week’s decision in Range Development v. Star Tribune:

This case stands at the intersection of common-law defamation, the First Amendment right to free speech, and the parameters of a journalist’s privilege, if any, under the First Amendment. (Opinion at p. 6.)

In other words, this case is where the action is, where the laser scalpel of judicial oversight cuts dangerously close to the nerves of our democracy.

In our misinformation age, the line between protected speech and libelous speech is a hot area of law in the U.S. and worldwide. Critical information occasionally mixed up with confusing and destructive lies bombards us daily, with mind-numbing potential for both leading and misleading.

A Star Tribune reporter, Paul McEnroe, wrote an article about Range Development Company of Chisholm, Minnesota (Range). Range owns an assisted living center, Hillcrest Terrace Assisted Living Facility in Chisholm (“Hillcrest”). In January 2013, apparently, a tenant there was found “unresponsive,” urine-soaked, in a messy room in which the carpet was soaked in urine. The ambulance service submitted a government mandated report under the state Vulnerable Adults Act. Before the public release of the report, McEnroe got a copy of the report from a confidential source and published an article about the report online and in print in the Star Tribune. Range strongly suspected two individuals of filing what it claims is a false report.  Range believed these two individuals have vendettas against it.

If the report contained false and damaging statements about Range or its facility, should the reporter be compelled to divulge his source(s) (presumably so that Range can sue that person or persons for defamation)? Should confidentiality be the rule always? Never? Only under certain circumstances? What circumstances?

What if the report contained not only false and damaging statements but was completely factually baseless? What if the “confidential informants” who passed on the report had some kind of personal animus against Hillcrest (say, commercial competitors or personal enemies)?

What if the report is false, damaging, factually baseless, and Range/Hillcrest has NO IDEA who made these statements or why they were made?

St. Louis County District Court Judge Mark M. Starr ordered the reporter to divulge his source. The Star Tribune appealed. The Minnesota Court of Appeals reversed. It held that, under applicable law, the standards for ordering disclosure of a journalist’s confidential source require “an affirmative showing, with concrete evidence, that disclosure of the source will lead to persuasive evidence on the elements of a defamation claim.”

Here, because Range failed to demonstrate that disclosing the identity of McEnroe’s source will lead to persuasive evidence on the issues of falsity and malice, we reverse the district court’s order requiring disclosure of the confidential source.

My sympathies are strongly on the side of free expression and protection of the free press. So I am happy that the Star Tribune won. On the other hand, the Court of Appeals’ analysis is a little hard to follow. To be fair, the Court of Appeals has to grapple with a statute that is hard to apply

ContortionistBefore Plaintiff can obtain the identify of a confidential source, it must make “an affirmative demonstration that the identity of the source will lead to persuasive evidence of defamation….”

What is “an affirmative demonstration”? If the Plaintiff seeks the identity of the source, how can it, as a prerequisite, demonstrate that the identity of the source will lead to persuasive evidence of defamation? What is “persuasive evidence of defamation”?

The statute provides that the person seeking disclosure must “demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.” Is it just me or does that sound backward? In order to discover who the defamer is you must provide evidence that that person acted with malice?

It seems to me that courts analyzing the statutory prerequisite could and should focus on two things that defamation plaintiffs are in a good position to know, and to show, even without knowing the identity of the alleged defamer: (1) the falsity of the allegedly defamatory statement(s); and (2) the likelihood and amount of damages (that is, how harmful are the allegedly defamatory statements). From both of these measures, one might infer the likelihood that the unknown “declarant” spoke with malicious intent.

I think Range’s complaint fails on both measures.

First, it seems to me that the core facts set forth in the Star Tribune article were at least generally true. Although we tend to consider “true” and “false” a dichotomy, we all know that there are degrees of veracity. For example, if a person is found “unresponsive” and someone describes him as “unconscious,” it is possible that that the description is inaccurate, particularly to doctors who might find the distinction important. On the other hand, it would be odd to call someone a liar if they called a person “unconscious” when he was actually merely non-responsive. And it would strain credibility much further to suggest that such a fine-grained alleged misstatement was “malicious.”

Range pointed out the following supposedly false statements in the Star Tribune article: (1) ambulance drivers’ eyes watered from the odor of urine in a room in the Hillcrest facility; (2) “black mold” was allegedly observed on the table; (3) the resident was alleged to have suffered from a “mental illness;” (4) the resident was found “unconscious;” (5) the resident was found “barely alive;” (6) the resident experienced an “undetermined period of neglect;” (7) the facility failed to act on the resident’s “steadily deteriorating condition;” (8) the facility failed to recognize the resident’s “critical condition;” and (9) the matter was “referred to the St. Louis County attorney’s office for possible criminal charges.”

Consider Plaintiff’s own recitations as to why each of these statements was allegedly false (see linked brief at pages 13-17). In one instance Range suggests that the statement that the resident had mental illness was false; in actuality, the resident had schizophrenia. Range also claims that the allegation that the matter was referred to the St. Louis County Attorneys’ Office “for possible criminal charges” was false; in actuality the report was sent to the St. Louis County Attorneys’ Office “for informational purposes” only.

We can imagine Range’s indignation; it asserts that its Hillcrest facility was cast in a false light that seriously damages the facility’s reputation and could threaten its very survival. In Range’s papers, we can sense the outrage that one resident’s transient health episode seems to have been characterized as a shocking dereliction in care, a portrayal that the Range feels was unfair and false. On the other hand, the gap between what actually occurred according to the Plaintiff’s own admissions and what the Star Tribune reported are not such clear deviations from the truth to justify the constraint on free speech that Range’s lawsuit would impose.


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