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Good morning may it please the court counsel I'm Stephen P burger on behalf of Ryan Larsen over 30 years ago in Jadwin versus Minneapolis star-tribune this Court observed throughout history personal reputation has been cherished as important in highly worthy of protection with this principle in mind I'm here. To ask the court to reinstate and restore mr. Larson's ability to sue for compensation and damages to. His reputation caused by the defamatory statements published by kare 11 and the Saint Cloud Times the Court of Appeals here honestly reversed the district court's post trial. Order granting judgment as a matter. Of law as to the defamatory nature and falsity of the eight statements that were submitted to the jury and the order for new trial on damages and negligence for those statements the court of appeals also erroneously reversed the district court's post trial. Order for a new trial on the three additional statements for defamation by implication the court of appeals decision was based on an erroneous application of the fair and accurate reporting privilege an improper extrapolation of the jury verdict on falsity to apply the privilege mr. application of the law of falsity by implication and defamation. By implication and an improper application of the incremental harm doctrine mr. Larson is asking the court to reverse the Court of Appeals and remand the case for a new trial consistent with the district court's post trial order counsel respondent argues in at least two places in their briefing to. Our court that you would have abandoned your exact words argument can you respond to that you agree or disagree with their claim that you've abandoned that argument I disagree with that your honor that falls under the notion that the the statements are defamatory on their face. And under the doctrine of republication a absent privileged one who republishes statements that are defamatory are equally as liable as if they had published them originally so we we disagree with that argument counsel what is your position about whether the. Media would have a privilege here that a fair and accurate privilege could it ever apply to a press conference called by police what is your what is your position about that your honor we we don't think that there is a. Privilege here for a press conference or as the court of appeals held a summary of statements made in the press conference and and the privilege would attach to the point of the. Fact of arrest in the arrest charge but it. Doesn't apply before the case is under judicial control and I think the cases are clear about so is it your position then that that. Because arrest and charge are fairly encompassed within a judicial proceeding that the fair and accurate reporting privilege covers arrest and charge but nothing else yes under under Moreno in section 611 of the Restatement that's consistent with the law and both of those authorities but isn't there a valid public purpose in having the. Privilege apply in the context of I mean what if law enforcement wants the public the public's help in. Investigating a crime don't we want in that situation that to incent the media to report if law enforcement is saying we need help anybody with information should. Call the tip line or whatever the information is there I mean shouldn't the privilege cover that situation no I I don't think it should I think we certainly want help where it's needed for for Public Safety and getting the word out but but the privilege applies when there's been an arrest or an arrest charge or. The cases under judicial control the law that's evolved in this area supports that and we have examples say in the Minnesota Rules of Professional Conduct where prosecutors and law enforcement are prohibited from making extrajudicial statements that might substantially prejudice a consult but I'm a little. Puzzled because in Marino we recognize the fair report privilege and it had nothing to do with an arrest or charge there so I mean our court has already expanded it beyond cases. Where arrests or charges have taken place there was just a member of. The public saying a police officer is dealing drugs out of his out of his squad car yes your honor I agree with that in Marino the court looked at the the big picture in terms of applying the privilege to an official proceeding or an official action and that's where the privilege was appropriate in Marino because the statements. Alleged to be defamatory about officer Moreno took place in a city council meeting and Moreno extended the privilege to the official proceeding that encompassed city council meetings so it's. It's consistent for the privilege to apply to official proceedings which which it does and and that's that's the issue here as to whether it counts how about I thought you your position had conceded that if they had confined if the law enforcement and then the press had. Confined their statements to what had happened publicly about the arrest the fair privilege report should apply. Right so so if there's a press conference that. Talks only about the facts of a rash you're not saying the press can't report that right right so so in some ways you would be saying to this court you. Can recognize the fair report privilege in in the context of law enforcement press conferences but the problem here is it just went beyond what was the facts of the press release and the more most importantly the Jo log. Right the Jo log is is a problem here because the police arrested your client for for murder and that was just about everything about that was public information his name where he's being held and the charge he was being held on. The potential charge he was being held on right and and I think that's consistent with Marino and it's section 611 of the Restatement and comment each which limits the privilege for law enforcement officers prosecutors complaining witnesses in witnesses to where. They can't talk about the facts of the case or evidence expected to be given in the case before judicial control is exercised so when they go beyond the privileged pieces of the official proceedings such as the arrest the jail log that is not entitled to the privilege and that's that's what happened here counsel let's. Take a look at the press release that was issued I want to ask you about the press release it says in the third paragraph Larson was booked into the Stearns County Jail on murder charges early this morning now if a press outlet reports that the Stearns County Sheriff's Office and the BCA said Larson was booked into the jail. On murder charges earlier this morning is that defamation technically yes because he wasn't booked on or he was booked on murder charges but he wasn't charged with it. Could be defamation by implication if it implies that there are facts that exist to support the charge of murder and here there weren't so a law-abiding conscientious news outlets should not. Report that sentence that the BCA and the Stearns County Sheriff said that in their press release I don't think the. The media is entitled to a privilege for statements that wouldn't be privileged for the law enforcement and and that's where the the Restatement covers those types of statements where law enforcement makes statements outside of the the official document or the the arrest itself and gives evidence that might be presented in the case or talks about facts of the case. That haven't come up yet because the case isn't in court so. The media doesn't get a better privilege than would the law enforcement let's say that I for whatever reason have come in acquired a copy of this press release and I go home and I say to my wife you're not going to this is really. Something the BCA in Stearns County Sheriff say Larson was booked into the jail and murder charges earlier this morning have I just committed defamation absent a privileged republication of a defamatory statement is is the same as if. You made the original statement so yes it could be construed as defamation by implication well by your you're not proposing. Some different test for me talking to my wife then a reporter covering a press conference are. You not at all so if it's defamatory for the reporter then I suppose it's defamatory. For me to say that also right I think it could be well what's your. Position okay isn't that why there are media organizations who have a policy that they don't they don't release the names of suspects that's. Correct and that's the problem with releasing the the information that was disseminated here before charges are filed and the case under judicial control because he didn't do it he wasn't the one that committed the murder and so the the need to disseminate information by the media is outweighed by the private person's. Right to sue for compensation when the defamation is is published and that's what happened here counsel what if the rule of law is that the privilege applies if the media is covering information that is public under the Minnesota government data Practices Act or it's an open meeting under the Open Meeting Law I think if it's. An official proceeding or official meeting it would be privileged and I guess what I'm suggesting is to give legs to that term official proceeding we would look to what the legislature has already determined is public so there's a whole host of government data that's public under the Minnesota Government Practices Act and there are a. Bunch of meetings that by state statute have to be open to the public so I'm just I understand that this is this is probably beyond how this case was was briefed but we have to write a rule of law and I'm just wondering if what your reaction is. To that rule of law so that this fair reporting privilege would cover them would apply if the media is reporting on public information under the data Practices Act or under the Open Meeting Law I think the the privilege would apply to information presented at an official. Public meeting so to that extent if it falls under an official meeting that's called right right I guess I guess that's the best answer I can offer up and we don't really know how that would apply here we don't really know I suppose whether the information I mean. We could maybe find out but whether the information here it said at the press conference was public information under the data Practices Act well but that raises an interesting point your honor in their council police reports our public is. That correct that's correct and that was the point I was going to raise is the the reports as I understand it would have been protected by the data Practices Act as an ongoing criminal investigation so that information would not have been disclosable and I think superintendent Hugh Evans touched on that in his. Testimony it's troubling about this case to me and maybe I should ask this question of opposing counsel and not you is. In the press conference the officers noted multiple times the preliminary nature of the investigation and that doesn't appear anywhere in these media accounts I don't think that's correct your honor and and that goes Willie to. The issue of whether the statements were substantially accurate or if it went afoul of the standards set in Murano that the publications added additional contextual material not part of the original proceeding this press conference that conveyed a defamatory impression and. Commented on the integrity and veracity of mr. Larson as the killer and the publication's in the the newscast at 6:00 and 10:00 on kare 11 and also in the articles in the. St. Cloud Times went way beyond anything that was said at the news conference the news conference and it's better to see it in the the video forum than reading the transcript. But I think it's clear from the news conference that the law enforcement officials were emphasizing that it is a preliminary in an. Early investigation and it's active an ongoing there were questions raised by reporters about details of the the crime and repeatedly superintendent Evans would say we just can't answer that. That's an active an ongoing investigation what do you do with the fact that the jury found that now I'm gonna get this wrong I think but that's that the statements. Were not false I guess is that is that right okay so the jury made a finding that these at least the eight of the statements if I'm correct or not false what do we what do you do with that that's correct we we brought the motion for. A judgment as a matter of law on the falsity issue the jury found all eight statements were defamatory so here we have somewhat of a competing finding there with the statements being found defamatory but not false and that's where we look at the definition of falsity that was not correct in our view in pleat I wanted you to get. To that but before that what was the jury finding maybe that was it would be a better way to state were these finding that what was reported was not false over where they've I mean what was the jury what was before the jury was the issue of fair reporting before the. Jury or was the issue of whether these statements were tort falls before the jury the jury was asked to find whether the eight. Statements that were submitted were false there was no question. Asked pertaining to whether the fair report privilege applied whether. The fair report privilege was abused and and that's where we get into all these different competing definitions of what is abuse of the privilege and that never came up at the trial and the jury didn't answer that in the falsity question what counsel how do we know that when the statements were quoted verbatim. And they have police say for example investigators say and as I understand it that's how I. Don't know who was trial counsel but that's how the case was presented that there were kind of two theories one was they didn't accurately depress didn't accurately quote the press conference and then the other theory was this poor gentleman did not do this. He's not that he's you know that would go to the underlying truth and the juries have which to the jury decide in your view servile is it correct you prove it you presented both theories to the jury yes a trial we also and this goes. Back to justice T 'sons inquiry we specifically requested the jury instruction on falsity by implication that would have instructed the jury that the statement or communication is also. False if the implication is false and and that's that's the problem here with with no answers on the jury responses to the falsity questions because they didn't have an opportunity to answer that question and that that was key in terms of their no answer as well as counsel isn't isn't what. Happened here judge Burke in considering all of the evidence and in the post trial motions concluded that the jury's verdict just isn't. Sustainable that these eight statements will I think the age statements and the three statements that follow are in different categories different. Buckets but in that bucket of those that you find those eight. Statements the jury's verdict just wasn't sustainable that those statements were in fact false and defamatory and I'm wondering where their motions made at the close of your case for judgment as a matter of law on that point I mean is this is this the. Court reconsidering in concluding that it made an error there yes we raised we brought a motion for judgment as a matter of law at the close of the evidence and then in our post trial motion on the falsity issue and really there was no disputed facts as to as to what happened and to what was said and that he. Wasn't the communities to me and this is question perhaps more appropriate for opposing counsel but it seems to me those those two buckets are in a different position with respect to the first bucket there are statements there that I I think what happened here is the. District court said they're just clearly false there's no there's no dispute to them there there. Was no there was no evidence here of any shooting that is attributable to the defendant for example other statements that were made the second bucket maybe is a little more debatable because the defamatory statements are a little less clear the way. I see the evidence am i seeing it wrong or how would you respond to that no I don't think you've seen it wrong I would add to that however that as the district court found and we argued in our post trial motion that the court could and did find the statements were false by implication as. A matter of law that regardless under any reasonable view of the the evidence the underlying implication that mr. Larson killed officer Decker was false and and there was no two ways. About that and that really isn't any different at this. Point in the case and so you you agree of course if the fair privilege report the fair report privilege applies then. Moreno says you don't go to that underlying truth or falsity about whether he killed the officer if the if the report if the fair and accurate reporting privilege applies Moreno clearly says doesn't it. That then you just look to see did the officers I'm sorry did the press accurately report what was said and that included a fair. Abridgement of what was said which to me sounds like. A fair summary of what was said I think that's a fair right I got that right what I would point out is that in Moreno while the the court found that the privilege attached they found that the privilege attached to the official City Council meeting. It didn't apply to the article that was in Moreno because there were so many additional contextual I took it out of the privilege and did it matter. There that the plaintiff actually alleged that the entire article was defamatory and and that I mean the factual situation was different because you had the you had the meeting and then over the course of ten days the the press did some investigation talked to the police chief heard about these rumors and that kind of thing and there does. It matter that here you you the the plaintiff alleged specific statements and there and marina was that entire art article and what happened in that ten day span. At all I. Think what we have to look at here is the context of. Each of the publication's six o'clock newscast the ten o'clock newscast and then the articles in the newspaper how they how they were presented we can't just take the statements in isolation and analyze them I think I think everybody agrees about that that the statement the specific statement should be should. Be considered in the context of the broadcast or the article in which it appeared I think both sides agree to that right but the only question I think there's a. Disagreement when it comes to the incremental harm privilege about whether you look to a specific just a specific broadcast as opposed to what occurred over the entire evening I think I think with respect to. The incremental harm issue could. You just say I I think there is agreement that you place these statements even though you've alleged certain statements you place them in the context of whatever article or broadcast they appeared in right I mean both sides agreed to that right yes. Okay and then now please go on I'm sorry to interrupt well and it's set out in our brief in terms of this incremental harm doctrine first of all Minnesota hasn't applied it to a case like this involving prior defamation claims and. None of the cases have applied it to where there is more than one publication so it's you know technically almost impossible to try to assess the harm from statements in one publication against statements in another publication where nobody knows who saw which ones and there's no evidence that the same people saw the same publications the the court of appeals. Made a comment about mr. Larson hadn't shown evidence of additional harm from the three statements beyond the statements. In one through eight as they were characterized but but under the law of defamation he's not required to prove that some statements are more harmful than others he just needs to show that they caught. They tended to cause him harm in the community and to his. Reputation in other words just as those three statements should. Be judged on their own and not in reference to the other eight exactly counsel if I could could just kind of backing up maybe to first principles but I want to make sure I'm clear and I think it's maybe an extension of justice judicious questions. Would you agree with the framing. Of the analysis that we have to do I mean I think as respondents frame it is it's a two-part inquiry so we ask first does the privilege apply and that question is a function of is this you know. A public meeting where matters of public concern are being discussed but but the first question we ask is does the privilege apply and. Then if the answer to that is yes then the next inquiry is has that privilege been abused or been lost and within that is the analysis of substantial accuracy the gist of. The the matter and also this idea from Moreno of whether or not any additional contextual material has been added so I guess my first question is is do you agree that that's the framework yes and just to follow up we think within that framework even if the privilege attached the the privilege was abused by. What happened here in the in the broadcast and the articles and just touched on this you know before you go for that if if the privilege attaches and then again I think this. Goes to the Chiefs question about what what's the rule that. You would ask us to write because in your brief you talk a lot about well this should apply to judicial proceedings or reoccurring meetings like judicial proceedings or meetings where. There's some opportunity to rebut but I don't see any of those themes or concepts coming out of Moreno and so I'm wondering two things one. Whether you have any case support for that and if not help me with the parameters of the rule as you see it again is it is it just meetings that are subject to the Open Meeting Law I'm still struggling with what the parameters of the rule might be as you. See it your honor and thank you but I also want to back up just a step I agree that would be the the framework for the. The approach I'm not agreeing that the news conference was an official proceeding just just to make that clear but I but I think that would be the framework we pointed out some. Pieces that show up in Moreno that I think are helpful and in some of the early cases I think one goes. Back to 1908 this Nixon case where and Moreno supports us to that for an official proceeding to be covered by the privilege there needs to be an opportunity for both sides to be heard and and that isn't present. At a news conference you know mr. Larsen couldn't have come into the news conference he wasn't invited and given his side of the story the news conference wasn't essential to the investigation or the administration of justice if it didn't take place the investigation would have gone on anyways counsel I know. Your position is this news conference. Was not an official proceeding but in your reply brief you take a one step further and have a very interesting and I think almost breathtaking is headline unscripted questions and answers in a. Press conference by law enforcement are not covered by the privilege how is a reporter supposed to know whether what the official has said is scripted or unscripted do you have to go up to the law enforcement official afterwards and say say that well that thing you just said. Was it on your in your notes and if so exactly what did your notes say how does a reporter do that well I think what happened here. Your honor is an example of that the law enforcement officials came out they read their statements and then they said we'll open it up. For questions that's when it because how does the reporter know that they're reading rather than then saying something that's unscripted I mean you can you can be reading and then put it in a sentence it's not in your text how's the reporters supposed. To figure that out I think by the questions and. Answers they're part of the exchange they had here the court gave credence as part of the official proceeding and and that's that's a real concern because there's no definition of the who went when or why as to when it's an official proceeding and when. It's not Thank You counsel you have five minutes for rebuttal mr. wells may it please the court counsel this case goes to the very heart. Of the press's role in our society it's reporting of actions Proceedings of top officials in the executive branch of government here are the top law enforcement profession officials of the state of a county and of a city who convened an official press conference expressly for the purpose of disseminating information. To the public substantially accurate summaries counsel what is the what are the bookends I mean you you would agree that recognizing the privilege here would is an expansion of Murano I would agree your honor. That Moreno and Nixon the other two cases that this Court has decided on the issue. Do not deal with this specific okay so I mean what are the bookends any high-level government official calls a press conference what about say the athletic director at University. X calls a press conference and at the press conference reveals data about students that is private under state and federal law the media covers it. Because after all it's a press conference by a high-level government official talking about a matter of public concern does the privilege apply art is that the question that the court should ask your honor is is this official authorized are they someone who speaks to the public is authorized. To speak to the to the public have they called. The meeting as expressly to disseminate information to the public and Moreno for us know that similar question to what justice lillehaug was asking opposing counsel how does the press make the determination that this particular public official is speaking of things that he's. Authorized to speak about because it seems like the rule you're drawing is that if they're not authorized then the privilege wouldn't apply no I think it's very clear we don't have to worry about it when it's the top official of a particular agency well. What if they're saying things that they can't say is justice this is the Chief Justice just said but the question is are they are they people who it's within their authority to speak to the public not the content this Court. Has never gone to the has never said that the application of the privilege depends on the content that's spoken at a meeting and this is one of the things that I. Think troubles me about 6:11 and I think and we don't have to reach the issue particularly this case but I think it speaks to how broadly we draw this because when I read it six eleven it says for the same. Reason the privilege exists even though the publisher himself does not believe that defamatory words he reports are true right so what the six eleven says is you can report things you even know are false and that seems. To me to be incredibly problematic so do you agree with that I do your honor that's how that's how the press holds government accountable in other words if a thing that I gotta say and I'm sorry but in this. Brief and it's not your brief but the amici brief where they talk about this case and then they talk about all this great stuff about Watergate which is exactly the opposite of this case you're not. Holding the the in this. Case the job that you were doing was not holding the government accountable argument about that your honor we we that is not this case this case was. The press's reportage of a meeting that was expressly called to disseminate information to the public information that is unquestionable public important well that's another question I have because I was watching the Golden Globes. Last night and then NBC came on the news came on after the Golden Globes was ended and there the first story was a story of a report of I think it was a car accident and a hit and run and it said that the woman came forward to the police. And said basically that I'm person that was that did the hit-and-run but we're not gonna report her name because we. Don't report the name of a suspect until there's an actual charge placed and to help the public in this case you could have just said there's someone that has been arrested here that would have given enough information the public to give them more comfort right your honor that goes to my point about content though this Court has. This Court has never said that. If a proceeding an action a meeting is covered by the privilege that there are bits and pieces of the state interaction that are covered by the privilege but not everything for example your honor in Marino the concern was that there was a statement made by somebody who wasn't authorized to say anything it was a private citizen. Who appeared before the City Council that was a public meeting I mean we do look at the content we look at whether the information is public and in Marino it was a public meeting. I mean it was an open meeting it was a meeting that had that the City Council by state statute had to have in a public setting this was public this was public in every way that. Matters your honor the others all the information public under the Minnesota government data Practices Act at the time of the press conference I don't have an answer for that your honor well don't we need to know that no you do not your honor why wouldn't that be a good bookend because the underlying purpose of the privilege your honor. Is to make known to the. Public things that the public would have seen or heard had they been there this was live televised to people all over the. State there's no doubt about that I'm sorry chief good it sounds like an answer to one of the Chiefs earlier questions it matters or we have to consider whether or not what authority the person who's speaking or persons who are speaking have to speak. Is that a fair assessment of your position what they've been delegated I think what to fairly state what I what I'm trying to get across. Is if if it's a top official of an agency they're authorized there's no doubt. That they're authorized to speak on behalf of the agency so that's the issue that's that's really the distinction I think that is made in Subsection H of the Restatement where they're talking about the arresting off informal statements by the arresting officer sections D and what you have in mind then I. Often think of and I'm sure other police departments do it too but I frequently see the st. Paul Police Department do this where there's a crime or something has happened that is of public and great public interest and they bring out and again I'm not sure what this officers rank is but. Presumably a higher ranking official but the point is that I. Am assuming that he or she has been delegated the authority to speak. On behalf of Chief Axtell and they film it usually in front of. The st. Paul Police Department headquarters over on olive and that officer talks about what they is. That a press conference and is I guess I'm asking several questions is that a press conference and do we need to know or should are we assuming them that he or she is speaking on behalf of the chief it's bad enough well I think your honor when it's a win it so in this court in Marino and also. In the Restatement talks specifically about the fact that where you have and a an. Informal statement by a low-level officer typically those are statements that are made on behalf of the agency is made on behalf of the public affairs officer so if that's the situation that your honor is talking about a statement. A release of a statement to the media by a public affairs officer then yes that should be covered by the fair report privilege but we don't have to worry about that here because we have the top officials I know but but whereas you know we're always looking. Down the road we as the chief said we have to write a rule and so. It it's not just about what. Happened here but if we're going to extend and you agreed and you say in your brief that this would be an extension of the privilege we've not applied it in these contexts what are the boundaries of that what would you write the rule for me what does it. Say I think the statement should be substantially accurate summaries or fair abridgements of statements at a at a news conference of press release that is called by the agency should be subject to the fair report privilege that that is the statement that we would urge on this court and under the rule you've. Just given me given the court how does the statement that police say statement police say that the man identified as ryan Larson ambushed officer Decker and shot him. Twice there's no evidence anywhere in that press conference that those two facts shot him twice and ambushed him occurred so now we're talking about the substantial the substantial truth wrong your honor and and that's just not right I. Mean it said the the statements in the press conference were that Ryan Larsen had been had been booked for murder the murder of officer Decker when Superintendent Larsen testified he acknowledged that the press release said. That those were the statements that were in the news conference itself the police indicated that the murder was an. Ambush murder and that two shots had been fired into into officer Decker and there was also twice statements by law enforcement that they were that they had no reason to believe that anybody else was involved so your honor to say that those that to say or to suggest that that that is. Not a that a fair abridgement of that is not that police say Larsen shot Decker is it doesn't follow and the jury in this case found exactly that when the statements that were put to the jury were specifically the entire police say statements. Or the entire police believed statements and they were asked whether those were substantially substantially true whether the the reverse formulation they were they were not false the other concern I had really was with the the additional contextual material that gets added added here and your opponent highlights in his brief. Very well the numerous things that were were added that clearly were not talked about at the press conference and one that I remember in particular is the media also talked about mr. Larsen's prior run-ins with the police that he had been arrested or convicted I think of disorderly conduct and a number of other things and that has the appearance. Of just to be frank just kind of trying to dirty him up a little bit you know it had nothing to do with what actually happened and and so I guess I'm wondering here whether or not when you put all of that those additional contextual material together whether or not even if you. Had the privilege your client had the privilege in this instance it wasn't abuse. And it wasn't forfeited now I know and I found an interesting comment in amicus brief they want us to overrule Moreno to that extent and kind of get rid of that whole additional contextual material prong I'm not sure whether you're advocating for that but assuming it's there. Because it is there. Moreno says it's there what do we do with that what do we do with all the this is the discussion about his prior criminal contact and all the the enhancing of the videos and all of that that the media did here number one your honor what Moreno is. Concerned about is the addition of additional defamatory contextual material in other words statements that were not made in the course of the in the course of the this the City Council meeting but that were that. Were independently defamatory that's how I believe so it doesn't matter them with respect to that's helpful thank you so in your view. It would not matter that his prior criminal record was was discussed because that would be true I guess is what you're saying so that that provision additional contextual material only applies to matters that are independently defamatory is what you're so you're telling me that's how that's how I believe that's how I read Moreno I think that's the right that's. The right issue the I'm not sure exactly what additional. Contextual material you're referring to your honor but if it's merely the fact that they mentioned a disorderly conduct which was there was no doubt that that was true it's hard to see how that changes the gist or state I think counsel talked about the video packaging and a number of other things I don't. Remember it all now I don't have it in my in front of me but he runs through a list of things mainly in the reply brief I think is where I found it well it was I mean I know the videos. Are of the broadcast I believe are before the court I mean it frankly is pretty standard stuff it's a it's a picture of mr. Larson very brief snippets about his background and then statements about his role with respect to because when I think about this granted that there were statements made by law enforcement and I don't. Necessarily see law enforcement statements as a problem but when when taken out of context and and you're the person who is it's your picture that's being flashed on the news that says. That you have been arrested for murder and it turns out that that is not true you can't get you can't put that horse back in the barn and I would think that we why clearly we have to have a balance because we want public. To have information and that's what the media is for but I. Also have to think about the consequences to the individual who had their picture flashed because you can't ever get that back and and here the law enforcement said multiple times that it's still under investigation and my understanding is that Carol Evans policy was that. They don't release the name of the suspect until that individual has been charged and it appears to me that they didn't follow their own policy here. So how can you help me out there let me address a couple of those points your honor so number one first off it's it's important to recall that this press conference. Was live broadcast so the public wasn't hearing anything from kare 11 or from the same cloud times that wasn't already in the live broadcast mister Larson's name was was all over the place because of a live broadcast now it may be that the plaintiffs position in this case is the media isn't even allowed to. Broadcast press conferences which strikes me as a really extraordinary. But I think it's important to remember that that though to use your honors phrase the horse was out of the barn when when the law enforcement held a televised press conference and issued a. Press release to every media organization in the state specifically identifying mr.. Larson as having been arrested for the murder of officer Decker but to be clear I mean your clients didn't get sued for defamation because they aired the press conference. They got sued for defamation because of the follow up stories they your honor they as I understand. The addition of the plaintiff here if if they had simply broadcast completely accurately everything that had happened if they had a verbatim transcript of the press conference their view is this wasn't covered by the fair report privilege and and kare11 would be entitled to I understand I understand that but I. Mean I'm just talking about what what you your clients really got sued for here it well - two things as I understand it is that they reported something that wasn't covered by the fair report privilege according to the plaintiff and then their argument is they reported it. Inaccurately that's the VESA gist of the argument here as I understand it counsel let me change the facts a little bit there was no press conference instead exclusive to kare 11 at 10 o'clock Julie Nelson reports kare. 11 has it based on a high-ranking source within the BCA then investigators say 34 year-old Ryan Larsen ambushed the officer shooting him twice Larson is in custody so instead of a press conference it's an exclusive which stations love with that would that reporting be covered by. The fair report privilege it's a clit. So I would say it's. A closer question in that in that circumstance and I guess the question would be whether I know it's a closer question was. What's your position on whether it's covered if it's official action then. It's covered in other words we have we have comment D and we have a leak a leak from a high-ranking person in the BCA as official action could be depends on the circumstances on which it was don't you tell me what circumstances would would. It depend on I'm sorry your honor was the hypothetical that it was a leak from somebody yeah I mean it's an exclusive I. Would say that's closer to what's what the subject in in comment age but if it is official action if it is official. Action then it is covered under comment D and so I would say that would be privileged we don't have that here so even if the official. The high-ranking official is is providing information it is violating the law in in providing information that is private under state and/or federal law your position is that the media is still entitled to the privilege if it's an official action then yes your honor it's covered by D it would. Not be covered by comment I which is the public meeting formulation of the privilege but if it is official action then then the answer then the answer is yes why is it a bad rule of law to say it's. Only the privilege only applies if the high-ranking official is just is discussing information that's public under the. Minnesota government data Practices Act I'm sorry the question why is that why is that a bad rule I mean I'm looking for bookends here it cannot be that any press conference called by any high-level I mean that just cannot be the law it seems to me we. Need some book in so I'm wondering if the data Practices Act doesn't provide a good bookend well Your Honor I don't there's nothing in the in the prior formulations of this court that would suggest that that the data Practices. Act is the is the bookend sure there is Johnson versus Turk Swaggart there your honor but in the fair report privilege context itself there's nothing than in the Marino formulation or Nixon that would suggest that the court that that reporters have to run to the lawyers to. Figure out whether information that's being lie brought in my experience reporters in Minnesota know are pretty familiar with the data Practices Act. Well your honor still get back to my point there's nothing in in this formula courts formulation in Marino or in or in Nixon that would suggest that result and let me say that would that. Would upend Marino in other words there was nothing about the Marino case that. Suggested that the that was again that's an Open Meeting Law case I mean not to keep arguing with you about this but that was an Open Meeting Law case I just think this court can take some comfort in the work that the legislature has already done here in in in deciding what's public and what's not public. So the media covers something that the statute already says is public then why not have the priviledge apply to that well your honor let me let me suggest this hypothetical as a reason why that's really just not a very good rule so. Let's say for example that. There is a press conference called by had a FBI or by the head of the BCA the very top officials in law enforcement organizations and they say that they are investigating serious allegations of sexual misconduct by a member of. Congress or by a member of the legislature and they name that person in its live broadcast is the press now to say well that might not be covered by the data Practices Act. So we can't report it even though everybody in the country has seen it because it's been live broadcast and even though it's the result of or obviously implicates very very serious public concerns the role of the press is not to determine or to pick content out of what the executive says in in. The in the conference I wonder if you're not going too far though I mean there are plenty of there are other protections the media would have in that situation New York Times versus Sullivan comes to mind so so it isn't. As though the media is going to be sitting there with no protection at all should they decide to cover that FBI executives press conference well the question here is whether as a matter of law this privilege is going to protect the media. Right it's a it's a qualified privilege and when public officials speak your honor the only way that the way that they're held accountable the way that the that the public finds out about officials and whether they've gone too far. As if the press reports it I think it's a I think it would be important for the public to know that the police have gone too far I mean isn't that something that you want the public to know so that. They can hold government officials accountable that's the role of the press now look here we're not talking about that here we're not talking about the an accountability issue here we're talking about an issue of extreme public importance of importance to the people of Coldspring about this particular murder and whether they were should be afraid to send. Their kids to school or not the next day and but you. Didn't have to. Name the person to achieve that purpose your honor that gets back to my content argument it's not up to the press to pick and choose when a matter is covered by the privilege when an action or proceeding is covered by the privilege the quote that the media has to be the ones to determine which content. Gets reported and which content doesn't you know the concern and I should point. Out but but that's actually what you do every day I mean you do in this particular case you determined which. Content is gonna be covered you name that you name that's a matter of editorial judgment though and not and not the law this Court has never said you don't. Get the privilege unless you pick and choose and that maybe that gets back to justice McKay's question about the policy or practice let me be clear. The saint-cloud times policy was to report the names of people who were arrested even though they hadn't been charged Carol Evans practice was that they generally. Didn't but the policy was they generally didn't subject to the discretion of the news director which was exercised here bye-bye Jane Helmke the. News director because of the of the extreme importance of this and because the the law enforcement themselves had indicated that they had been so clear about what mr. Larsen's role. Was here well and it's also a better story I'm not gonna do well that's really what editorial content goes to I mean I I don't know if I particularly by this the First Amendment implications of that because what you're doing by naming. The person that you're making this a better story for your news so people come and watch your news and read your newspapers well hopefully that's true of any story your honor and so I mean the concern in. The concern in Nixon and in Marino was that you would be that you had citizen statements made by private citizens that you're potentially immunizing could be libelous and you're potentially immunizing because you hadn't had government any sort of form of government control but that's not the concern here here you have the government speaking the government officials who were in. Charge of these agencies speak about mr. Larsen and his role in the crime except for statements 9 through 11 which have nothing to do with the government we do not contend that those. Are covered by the fair report privileged but those are non actionable their statements of opinion and I think the court understands our incremental harm doctrine the council doesn't make any difference if the reporting organization knows that what the public official is saying is just flat-out false that it's a lie and let's say the. Public official is a serial serial Defamer of private citizens does that make any difference or does the privilege apply no your honor it it does I think the Restatement is clear. About this that actual malice or negligence would go to the accuracy with which it's. Reported but not whether the press knew that what he was saying was a lie and let me give you an example why your honor let's say we have an executive officer of the state of the of the federal government who routinely lies when it comes. To press conferences don't you want the press to report that that's how. That government official is held accountable Thank You counsel Thank You counsel mr. Phoebe. Gur you have 5 minutes for rebuttal what do you make of the argument that your the rule that you're articulating at least as to the first part of the framework. Means that the press couldn't even broadcast the press conference live is that are you comfortable with that I I don't have a problem with the press broadcasting a live news conference but by broadcasting it don't they run into exactly the problems that I mean if they would have broadcast that on their newscast went your client be in exactly the. Same position no I don't think you would your honor because the newscast gave a different impression than what happened but that's that's the second prong of the analysis the first prong is whether this privilege applies to press conference right that's the first part. Of your argument that it doesn't apply to press conferences so what how do. You respond to this point that if it doesn't apply to press conferences. Then the press really isn't a position I mean I. Guess they can run the risk that what is being said is. Defamatory but doesn't them doesn't that kind of undermine your argument as to the first part of the framework or do you think that the position should be that they just shouldn't broadcast the press conference'm not sure I really have an answer for that whether they broadcast the press conference or not I still think the press conference is. Not an official proceeding like a court hearing for example there's no opportunity to be heard by anyone that's true then how. Would law enforcement ever be. Able to actually get information out to the public I think the press consider the law enforcement can certainly hold a press conference and give information but it doesn't make it an official. Proceeding for purposes of. The fair report privileged and I think one other point that is is worth mentioning here is when the press publishes a story as either the exact words or a summary of what they characterize as an official proceeding they need to attribute that official proceeding somewhere in. The story they need to say this came from a press conference held by law enforcement in Coldspring you know this morning otherwise the viewer or the recipient of the information doesn't know that and and that defeats the purpose of a. Privilege because it's to disseminate information that occurred at an official proceeding or an official meeting if that's not told in the context of the story. They have no idea that the source is from an official proceeding and that's what happened here there was no attribution to the press conference or the the news. Release or the jail log as the official source of their stories and and for that reason as well as the other ones we've mentioned the privilege shouldn't attach and I think that would fit in with this notion of bookends that the Chief Justice raised there needs to be some attribution. Of the statements made to the official source or proceeding to be entitled to. The privilege and that's that's common sense more. Or less because under the substantial accuracy test in jabbed one that's in the. Briefs the court is going to look at whether the gist of the statement is true whether it produces the same effect on the mind of the recipient as the precise truth would have presented or produced and if they don't know what the source of the information is it's not going. To do that and so for that reason we think that attribution is key to the privilege in a case like this one other point I'd like to speak to is that I don't think the privilege is focused specifically on who speaks to the public counsel mentioned if a top official speaks that should basically do it. As I understood the argument but that wouldn't enable a top public official to disclose private data under the data Practices Act or disclose private data make false statements about an individual under the. Data Practices Act and be entitled to the privilege in our view I see my time's running short but we would ask that the district court order be reinstated and the Court of Appeals be reversed thank you Thank You counsel thanks to both counsel for the help. That you provided to the court in this matter this case is submitted will issue an opinion in due course we're in recess.

 


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