Sahara Gaming Corp. v. Culinary Workers Union Local 226

Rose, C. J.,

with whom Young, J., agrees, concurring:

I concur because I do not think that the pleadings and affidavits filed in this case create a triable issue of fact, but I disagree with the majority’s legal analysis of the fair report privilege.

This is not a case about gaming in Nevada. The issues do not involve labor law — it is a case of libel. The majority turns the traditional concepts of the law of libel upside down by granting an absolute privilege to reprint any portion of documents filed in *222 court, even if reprinted with malice and with knowledge that the information is false. The element of fairness in the fair report privilege is removed by the majority opinion, and therefore I disagree with the majority’s grant of an absolute fair report privilege.

The fair report privilege was recognized at a time when there was a legitimate expectation that court documents would be accurate and reliable. See Thompson v. Powning, 15 Nev. 195 (1880). Beginning in 1927, the fair report privilege was expanded to cover all pleadings filed with a court. See Reader’s Digest Ass’n v. Superior Ct., 690 P.2d 610 (Cal. 1984); Cox v. Lee Enter., Inc., 723 P.2d 238 (Mont. 1986); Campbell v. New York Evening Post, 157 N.E. 153 (N.Y. 1927); Ala. Code § 13A-11-1161 (1992); Ky. Rev. Stat. Ann. § 411.060 (Banks-Baldwin 1994); Ohio Rev. Code Ann. § 2317.05 (Anderson 1995). However, there is still a minority of states that refuse to extend the privilege to pleadings because they recognize that pleadings often contain false or misleading charges filed for malicious reasons. See Sanford v. Boston Herald-Traveler Corp., 61 N.E.2d 5 (Mass. 1945); see also Restatement (Second) of Torts § 611 cmt. e (1977) (republication of pleadings not privileged because no judicial action taken).

Like the minority of states, I find the premise upon which the fair report privilege is based — that all court documents are factually reliable — to be questionable in today’s society We have seen lawsuits with extravagant claims filed for political or strategic purposes, and I would not guarantee the veracity of some of the allegations I have seen or read about in various pleadings. But aside from the dubious premise upon which the fair report privilege is based, I believe that the absolute privilege the majority espouses today may lend itself to much mischief. 1

According to the majority, a privileged occasion arises even when the publisher believes or knows the information published is false, and publishes the information maliciously with the intent to harm. The majority’s absolute privilege is dangerously broad and protects any declarant who reports to inform the public that the defamed person was a miserable individual, or to influence an *223 election, even if the declarant knows the published information is false.

To balance this privilege and make it truly conditional, I would declare that a publisher loses the protection of the fair report privilege if he or she publishes a statement with actual malice — when he or she knew or should have known that the statement was false. 2 The First Amendment does not and should not be contorted to protect malicious liars merely because the lies were contained within the context of a judicial action. The Supreme Court of Pennsylvania eloquently described the ramifications of granting an absolute privilege to members of the media:

The defendant makes the startling statement in its brief that “even if defendant had known plaintiff was innocent and not a racketeer the broadcast would still be privileged.” This argues that because one is engaged in the business of news-dispensing, he may circulate a statement which he knows to be utterly false, to the irreparable injury of the innocent person. This would make legal tender of falsehood, give dignity to mendacity and make character assassination respectable. There is nothing in the laws of our country, and certainly not in the precepts of this nation which would give approval to so utterly immoral a standard of conduct. As the distinguished Justice Paxson cogently stated it in the case of Briggs v. Garrett, 111 Pa. 404, 414 , 2 A. 513, 520 ;

“A lie is never privileged. It always has malice coiled up within it. When a man coins and utters a lie, or when he repeats it knowing it to be false, the law implies malice, and he cannot shelter himself behind the doctrine of privileged communications.’ ’

Purcell v. Westinghouse Broadcasting Co., 191 A.2d 662, 669-70 (Pa. 1963) (emphasis added). Moreover, a conditional fair report privilege is in accord with defamation/libel law principles that grant protection to those who reprint false or misleading court documents in good faith, without the primary intent to harm the allegedly defamed person.

Although I disagree with the majority’s grant of an absolute fair report privilege, I concur with its decision to affirm the order granting the Union’s summary judgment motion. I concur with its *224 decision because the affidavit submitted by Sahara did not create a triable issue of material fact. See Posadas v. City of Reno, 109 Nev. 448, 452 , 851 P.2d 438, 441 (1993) (“the non-moving party must, by affidavit or otherwise, set forth specific facts demonstrating the existence of genuine issue for trial”). This affidavit created no triable material issues because it contained no affirmations that the Union acted with malice or knew or should have known that the information it reproduced from the Mississippi complaint was false. Accordingly, the instant case should be affirmed as Sahara’s affidavit was insufficient to raise a triable issue of material fact.

Although I concur that the instant case should be affirmed, I disagree with the majority’s conclusion that the union’s letter was absolutely privileged. I believe that this court should adopt a fair report privilege that is truly conditional, a privilege that is lost when one publishes maliciously. After all, the privilege is a “fair report” privilege — not an “all report” privilege. The fair report privilege is a shield, in that it protects free speech. In this case, however, the majority takes the shield and fashions it into a sword, allowing the fair report privilege to be used as a weapon. The majority legitimizes those who publish information with the knowledge that it was false and with the intent to harm. I believe that this broad rule will permit unfair play in the future and it is contrary to the basic principles of the law of libel.

My concurring colleague, Justice Shearing, contends that the fair report privilege should be extended to pleadings because the public is entitled to know what is in the public record and more mischief would be perpetrated by denying the public access to court pleadings. I agree with my concurring colleague that the public has the right to know what is in the public record, but note that refusing to extend the fair report privilege to pleadings would in no manner limit the public’s access to pleadings filed in our courts. Rather, limiting the fair report privilege to court proceedings would merely serve to hold individuals accountable for maliciously publishing information in pleadings that they knew or should have known was false. In our state, citizens should not only have the right to public information, but also the right to compensation for damages suffered when a publisher reprints public information that the publisher knew or should have known was false.

I note that there are numerous jurisdictions where the fair report privilege is conditional and where it may be lost if the plaintiff demonstrates that the defendant acted with common law or actual malice. See D'Alfonso v. A.S. Abell Co., 765 F.2d 138 (4th Cir. 1985); Schiavone Constr. Co. v. Time, Inc., 735 F.2d 94 (3d Cir. 1984); Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70 (W. Va. 1983); Mark v. King Broadcasting Co., 618 P.2d 512 (Wash. Ct. App. 1980).