A little-known defense to defamation cases

Defamation law is so complex that one defense to a defamation claim is that you disparaged someone based on something that happened in a court proceeding. If your defamatory statement is a reasonable interpretation of a court ruling, there is no case. This is not a case law concept but a statutory concept, which means the State Legislature actually gave this serious thought.

The case is Daleiden v. Planned Parenthood, a summary order issued on April 5. Plaintiff is an anti-abortion activist. He sues over two statements. One article said that a judge had denied his motion to quash a search warrant for his apartment arising from a criminal case against him. The article had a statement from Planned Parenthood that plaintiff and a co-defendant in that criminal matter should face the consequences of their "multiyear illegal effort to manufacture a fake smear campaign against Planned Parenthood." The other alleged defamatory statement appeared on Planned Parenthood's Twitter feed, which linked to PP's similar statement that plaintiff "created a false smear campaign against Planned Parenthood" and "broke multiple" state and federal laws. The defamation lawsuit alleges that plaintiff's reputation was damaged when PP said he had "manufactured a fake smear campaign against Planned Parenthood."

Is this defamation? No, said the district court. The Court of Appeals agrees, citing the principle under N.Y. Civil Rights Law that alleged defamatory statements are privileged as "fair and true reports of a judicial proceeding." The "fair and true" privilege has been extended to statements made by "those connected with the suit." Also to publications such as tweets. 

What is "fair and true" under this doctrine? Something is fair and true if it is "substantially accurate" even with minor inaccuracies, and "does not produce a different effect on a reader than would a report containing the precise truth." This all comes from state and federal cases, by the way. That's a lot of wiggle room for a defamation defendant. 

The challenged statements in this case are privileged. One article, "while not a verbatim recitation of the charges in the California criminal case, provided background to the misconduct attributed to Plaintiffs in that case and therefore fell within the statutory privilege afforded to a fair and true report of a judicial proceeding.” In the decision that was the subject of that article, "the state court discussed how Daleiden and his co-defendant conspired to obtain fake driver’s licenses, used a fictitious company, and assumed fake identities with the intent to defraud Planned Parenthood.”  As for the November 2019 tweet, Planned Parenthood’s “characterization of the verdict accurately reflect[ed] the jury’s findings that [Daleiden and others] perpetuated a fraud that was designed to (and did) result in substantial harm” to Planned Parenthood."