The defamation lawsuit against Dixie Chicks singer Natalie Maines and her band mates over an open letter published on the band's website has recently garnered the attention of legal bloggers (On.Point, THR, Esq.), who are asking whether Maines and her co-defendants can assert the fair report privilege as an affirmative defense despite their not being members of the traditional media.

The fair report privilege protects those who report on official actions and proceedings from liability for repeating defamatory statements if the report is fair and accurate and the speaker attributes the statements to the official source.   The privilege enables one to freely report, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records. For additional details, please see our legal guide page on the fair report privilege.

In the Dixie Chicks case, Terry Hobbs alleges that Maines falsely accused him of murdering three eight-year-old boys in 1993.  Maines made the challenged statements in a letter encouraging readers to support the movement to free the so-called "West Memphis Three" -- Damien Echols, Jesse Misskelley, and Jason Baldwin –-three teenagers who were convicted of the murders in question.  (The underlying story is chronicled in the HBO documentaries, Paradise Lost: The Child Murders at Robin Hood Hills and Paradise Lost 2: Revelations, which cast doubt on the guilt of the three teenagers.)

In the letter, attached as an exhibit to Hobbs's complaint, Maines claimed that DNA evidence from the crime scene and other evidence linked Hobbs to the murders rather than Echols, Misskelley, and Baldwin.  In so doing, she appears to have relied on Echols's petition for a writ of habeus corpus challenging his conviction, which is pending in federal court in Arkansas.  In their answer, Maines and the Dixie Chicks assert the fair report privilege as an affirmative defense, claiming that "[a]ll statements Defendants allegedly made were part of an official report and/or a public meeting and/or Defendants' actions constituted a protected comment on matters of public interest." The argument appears to be that Maines fairly and accurately reported the contents of Echols's petition, a court record that is part of an official report or proceeding.

Matthew Heller of On.Point suggests that Maines and her co-defendants may not be able to invoke the privilege because there is uncertainty about whether it applies to those outside the "the traditional media arena."  Arkansas defamation law (which presumably governs the case), however, suggests that the fair report privilege is available to those outside the traditional media. 

In Butler v. Hearst-Argyle Television, 49 S.W.3d 116 (Ark. 2001), the Supreme Court of Arkansas held that the fair report privilege shielded a media defendant from defamation liability for publishing statements from a video affidavit filed in a criminal court proceeding.  While this case involved a traditional media defendant, in it the court adopted and relied extensively on the statement of the fair report privilege found in Restatement (Second) of Torts § 611 (1977), which provides: 

The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported. 

By itself, this provision says nothing about who can invoke the privilege.  But comment c to section 611, entitled "Who may exercise the privilege," deals explicitly with this question:

The privilege stated in this Section is commonly exercised by newspapers, broadcasting stations and others who are in the business of reporting news to the public. It is not, however, limited to these publishers. It extends to any person who makes an oral, written or printed report to pass on the information that is available to the general public. (emphasis added)

Granted, this comment is not binding on an Arkansas court.  There is, however, a strong likelihood that a court would find the comment persuasive given the Arkansas Supreme Court's extensive reliance on section 611 in Butler.  Moreover, given that the historic rationale of the privilege has been to encourage public scrutiny of governmental activities through fair and accurate reporting of governmental proceedings, it would be perverse for any court to deny the privilege to ordinary citizens in an age when anyone with an Internet connection "can become a town crier with a voice that resonates farther than it could from any soapbox." Reno v. ACLU, 520 U.S. 844, 870 (1997).

We'll be monitoring this case in our database entry, Hobbs v. Pasdar.

(Photo courtesy of LGB Tech on Flickr.  Licensed under a CC Attribution-Noncommercial No Derivatives license.)