Monthly Archives: May 2015

Court of Appeals reaffirms fair report privilege, lets SBI analyst’s libel suit against N&O move forward

In a mixed ruling for both parties, the N.C. Court of Appeals released an opinion Tuesday morning that preserves some of of SBI Analyst Beth Desmond’s libel claims against The News & Observer. The ruling also dismisses most of them.

Desmond is a firearms analyst. Her testimony in a Pitt County case was the subject of a 2010 article in the newspaper that raised doubts about the science of firearms and toolmark identification. In that case Desmond testified that eight cartridge cases found at the scene were fired from a High Point 9 mm pistol. She also testified that two bullets found at the scene were fired from the same type of gun, but that she could not say with certainty that it was the same gun. After the trial, a defense attorney in a co-defendant’s case had the bullets photographed under a microscope. They appeared different.The News & Observer story, in part relying on those photographs, quoted several experts who raised questions about the analysis. The SBI then asked a former FBI analyst to perform an independent analysis, which reaffirmed Desmond’s conclusions. Desmond sued the newspaper and several of its employees for libel in 2011 over several statements in the original article, as well as those made in a followup.

In March of 2014, Superior Court Judge Donald Stephens entered a ruling dismissing several of the defendants but allowing the libel case to move forward against the newspaper and investigative reporter Mandy Locke over 16 specific passages in the two articles. On Tuesday the Court of Appeals found that six of the passages are protected by the fair report privilege, that two of the statements are factually accurate and that two more are not libelous. Claims based on the remaining six passages, though, could move forward.

The court broke up the passages into four separate groups for analysis. The six that survived were all in a group dealing with statements attributed to experts by the newspaper. The newspaper argued that those passages were protected by opinion, and that the plaintiff had not offered any evidence of actual malice. Because Desmond is a public official, she must prove the the newspaper and its reporter acted with actual malice, which is a reckless disregard for the truth or falsity of a matter or knowledge of its falsity.

The opinion defense provides leeway for discussion of one’s own opinion without fear of it being libelous. The Supreme Court upheld the opinion defense in Milkovich v. Lorrain Journal but also set some limits on it.  Taking a statement that can be proved true or false and qualifying it with “in my opinion …” will not give rise to the defense. The court in this case said that separating opinion and fact in the passages at issue was difficult.

Some of the allegedly defamatory statements, though stated as expressions of opinion from experts, may be factually false because Locke reported that the experts expressed opinions regarding Desmond’s work that they actually did not express. In some instances, the evidence indicates that Locke asked the experts a hypothetical question, and they answered on the assumption that the facts of the hypothetical question were true, while the facts were actually false and Locke either knew the facts were false or she asked the question with reckless disregard for the actual facts. The experts’ opinions were then stated in the article as opinions which the experts gave about Desmond’s actual work, instead of in response to a hypothetical question. Thus, the statements, even as opinions, “imply a false assertion of fact” and may be actionable under Milkovich.

The court said that because there was some discrepancy in the depositions of the experts and Locke about how the quotes were used, that it was possible Desmond could prove actual malice at trial. That’s a question for the jury to decide, and so the court allowed those six passages to survive.

The next group of passages dealt with statements attributed to Desmond’s court testimony. North Carolina recognizes the fair report privilege, which allows reporters to report on statements made during official proceedings and in public documents as long as the reporting is substantially accurate, fair, complete and properly attributed. Quoting its own decision in Lacomb v. Jacksonville Daily News Co. in which it first recognized the fair report privilege in North Carolina, the court said:

The fair report privilege flows from the absolute privilege which attaches to statements made in the due course of a judicial proceeding. Official statements made in a judicial proceeding will not support a civil action for defamation. This privilege includes statements made in arrest warrants. Statements in pleadings and other papers filed in a judicial proceeding which are relevant or pertinent to the subject matter in controversy are cloaked with this absolute privilege

The court found that those passages were not actionable because Locke’s reporting on them was substantially accurate.

Finally, the court addressed four other passages. For two of them, including a statement about the bullets being photographed, the court said they were true. One of the statements “She scribbled down the measurements of the lands and grooves” the court said wasn’t libelous. For the last statement, which reads “Experts, therefore, can’t provide probability of error” the court said that the plaintiff had failed to show that it makes a false assertion of fact. The court noted that experts disagree on probability in this arena and found that it was a statement of opinion when looked at in context, therefore subject to the opinion defense.

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