By Mark Anfinson

In one of the most important libel decisions in recent years, the Minnesota Court of Appeals on Monday repudiated a Hennepin County district court judge’s aberrant and restrictive interpretation of the fair report privilege, and dismissed the lawsuit brought by Ryan Larson against KARE 11 and the St. Cloud Times based on their reports about his 2012 arrest in connection with the killing of Cold Spring police officer Tom Decker.

The ruling in Larson v. Gannett Company, Inc. is a welcome relief to journalists across the state, because the fair report privilege provides a key buffer against libel claims, allowing news organizations to freely report on things like criminal charges and proceedings without undue fear of defamation liability.  So long as a news report conveys a reasonably accurate summary of government records or actions that are publicly accessible, the privilege immunizes it, regardless of whether the claims described in the report turn out to be false.

The Larson case exemplifies the importance of the privilege.  Within a few hours after Officer Decker was killed, prominent state and local law enforcement officials issued a press release and held a news conference in which they stated that Larson had been arrested in connection with the crime, and plainly signaled that they believed he was responsible.  The reports disseminated by KARE 11 and the Times based on this information did not state that Larson was the killer, only that this is what authorities were claiming.  After being held in jail for several days, Larson was never charged, and authorities later identified another man as the prime suspect.

Larson then sued the news organizations.  In early 2015, KARE 11 and the Times asked Hennepin County district court Judge Susan Burke to dismiss the case based on the fair report privilege.  But Burke refused, adopting a very narrow, peculiar definition of the kinds of proceedings that the privilege applied to, and ruling that news conferences and press releases didn’t qualify, even when conducted by top law enforcement officials.  The case was then sent to a jury in November 2016, which rejected Larson’s claims, holding that the news reports were accurate in terms of what the law enforcement authorities had in fact said.  But astonishingly, Judge Burke then determined that eight of the statements in question were both defamatory and false as a matter of law—that she should never have given these issues to the jury–and ordered another trial on damages.

Fortunately, the three judge appellate panel rejected Judge Burke’s view of the fair report privilege, concluding that the news conference and press release were clearly within its scope, and that reports based on them were protected by the privilege.
However, another aspect of the decision is more troubling.  The Court of Appeals also held that Judge Burke was correct in sending several of the statements that Larson claimed were defamatory to the jury for its evaluation of whether they provided a substantially accurate account of the law enforcement news conference and press release.  Only because the jury concluded that the statements were accurate did the appellate panel dismiss the case.  Unfortunately, this facet of the Court’s opinion could diminish the strength of the fair report privilege, because it could mean that many disputes over whether the privilege protects a particular news report would need to be submitted to a jury for resolution.

Cases that involve jury trials almost invariably produce excessive defense costs and long delays, which fundamentally conflicts with a core purpose of the fair report privilege, which is to avoid lengthy and expensive libel actions based on the recognition that they will deter reporting about government, and that the general public has a compelling need to know about things like criminal proceedings.  The crabbed legal interpretation adopted by the Court of Appeals undercuts this goal, and is at odds with how the privilege has been construed by courts in many other jurisdictions.

This lawsuit should have been dismissed long ago, and it reflects a troubling, protracted failure by the courts to appreciate just how chilling unfettered libel claims can be on reporting that is important to the general public.  Larson’s attorney stated on Monday that he intends to request review of the appellate decision from the Minnesota Supreme Court.  As a result, the litigation may not be over for awhile yet.

A copy of the Court of Appeals’ opinion can be found here