Public less informed when reporting privilege is crushed.

Byline: GUEST VIEWPOINT By Kyu Ho Youm FOR The Register-Guard

Assume, hypothetically, that President Bush claims during a news conference: `Former President Clinton has stolen money from the tsunami relief fund.' Bush adds: `I'm making this up to see my father's 1992 defeat avenged. The allegations are false.'

Can The Register-Guard or any other American news medium publish Bush's charges without facing libel actions by Clinton? (Whether Clinton will or can sue Bush for libel is another matter.)

None of our well-settled libel defenses will apply to The Register-Guard's publication of Bush's libelous accusation.

Truth isn't a usable defense, because the accusations are conceded by Bush to be false. Likewise, the fair report privilege is inapplicable since Bush made his comment outside privileged official proceedings. The fair comment and criticism defense is no help, because Bush's charge was a statement of fact, not of opinion.

Even the constitutional defense that libel against a public figure requires `actual malice'does not shield The Register-Guard from liability. The newspaper's publication of Bush's statement would be with knowledge of falsity or reckless disregard of the truth.

Is there any way, then, for the public to be informed about the very existence of the outlandish accusations by a public official?

The `neutral reporting privilege,' where it's recognized, is the answer. It allows news organizations to report in neutral terms newsworthy charges made by prominent public officials about other public figures.

Chief Judge Irving Kaufman of the 2nd U.S. Circuit Court stated in 1977: `The interest of a public figure in the purity of his reputation cannot be allowed to obstruct that vital pulse of ideas and intelligence on which an informed and self-governing people depend. It is unfortunate that the exercise of liberties so precious as freedom of speech and of the press may sometimes do harm that the state is powerless to recompense: but this is the price that must be paid for the blessings of a democratic way of life."

But the neutral reporting privilege is increasingly under siege. Recently, the U.S. Supreme Court curtly rejected a Philadelphia newspaper's petition for review of a 2004 court ruling against the privilege. To journalists, the court's one-sentence refusal to take a definitive stand on the libel defense was a significant setback.

So neutral reporting most likely will remain a fledgling privilege when the media knowingly publish false statements by public officials. The growing but still scanty case law involving the neutral reporting privilege often leads news reporters and editors to wonder whether they can rely safely on the libel defense in publishing defamatory accusations. Thus far, no state court in Oregon has applied neutral reportage in libel cases.

The news media, however, should be encouraged in reporting newsworthy charges made by prominent political figures. In a narrowly defined set of circumstances like the hypothetical Bush vs. Clinton case, the free marketplace of ideas principle should leave open the possibility that the very utterance of the derogatory comments is or can be as significant as whether the accusations were true or not.

Over the years, nonetheless, courts have been reluctant to adopt the privilege for various reasons. To begin with, they are still unfamiliar with the libel defense partly because there's been conflicting case law on the privilege.

Second, judges tend to play safe by avoiding the still-novel doctrine, especially when they are unsure about where to draw the line on its potentially expansive application.

Finally, judges continue to have difficulty distinguishing the neutral reporting privilege from the fair report privilege. This leads to misapplication of neutral reporting and generates conflicting interpretations of the constitutional libel defense.

Therefore, the neutral reporting privilege struggles to establish itself as a libel defense more laboriously than ever. It is undoubtedly floundering, if not necessarily foundering.

The U.S. Supreme Court's deliberate quietus on the uniquely media-friendly libel defense sends an ill-advised message to the news media: If you want to avoid liability, sanitize the defamatory accusations by public officials; don't report them as they are.

So The Register-Guard reporters may hesitate to report the Bush charges against Clinton forthrightly. Especially if they know the more uncertain future of the neutral reporting privilege. Sadly, the public will be less informed because of a chilled press.

Kyu Ho Youm holds the Jonathan Marshall First Amendment Chair at the University of Oregon School of Journalism and Communication.