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Fair report privilege reaffirmed in federal court

Judge McConnell dismisses lawsuit brought against The Providence Journal, reporter Lynn Arditi, ConvergenceRI, and editor and publisher Richard Asinof

Image courtesy of ConvegenceRI

In his ruling dismissing a lawsuit against ConvergenceRI and The Providence Journal, U.S. District Court John J. McConnell, Jr., ruled that the story by Richard Asinof in the Aug. 8, 2016, issue of ConvergenceRI did not abuse the fair report privilege.

By Richard Asinof
Posted 8/24/17
At a time when the news media is increasingly under attack for its reporting on President Donald Trump, attempting to hold him accountable for what he says and for his frequent distortions of the truth, the ruling by U.S. District Court Judge John J. McConnell, Jr., reinforces freedom of the press protections in Rhode Island, dismissing a lawsuit brought against ConvergenceRI, Richard Asinof, The Providence Journal, and the newspaper’s former reporter, Lynn Arditi.
Why has news coverage about this important ruling reinforcing freedom of the press protections been absent? For that matter, why has the ruling by Judge McConnell not received any comment from the usual suspects in defending freedom of the press – from the R.I. chapter of the ACLU, the R.I. chapter of Common Cause, or The New England First Amendment Coalition? Does the ruling also create some protection from Rhode Islanders in recovery to tell their stories at public events without being subject to attempts to challenge their right to speak?
There is a kind of “look at me” self-important side to the business of news coverage, a continual effort at self-promotion and self-aggrandizement that is part and parcel with the selling of the news as a commodity. At the worst, it can lead to debilitating mental health issues, as recently documented by freelance journalist Phil Eil. There is also the tendency to put work ahead of family and relationships. There are also the vices that have often accompanied deadline pressures – the over-consumption of alcohol and drugs and in previous decades, cigarettes. At its heart, I believe, is a kind of narcissism that demands recognition from an adoring audience – a personality disorder not unlike that which afflicts our current President.
The balance, of course, is to recognize that what is important is not to shout out your story, per se, or point to your success. Rather, it is in the ability to tell other people’s stories, not your own. Last week’s story by Toby Simon, for instance, in which she detailed her new-found affinity for paddle boarding at 70 years of age, was very much a story about achieving balance in life. It had a lot of wisdom to share.
In parenting, you learn, hopefully, that a child’s success is not yours, but his or her own. The same is true in the art of journalism, where the goal is to recognize that the greatest good we can do for others is not just to share our riches with them but to reveal theirs to themselves.
That said, it is still a welcome relief that Judge McConnell ruled in favor of including the journalism of ConvergenceRI within the privilege of fair report. And, thanks to my legal team of Rajaram Suryanarayan and Michael B. Messore IV at the law firm of Gunning and LaFazia for their good work.

PROVIDENCE – This week, U.S. District Court Judge John J. McConnell, Jr. issued a ruling with important freedom of the press ramifications, regarding when the fair report privilege applies in alleged defamation cases.

The ruling by McConnell, issued on Monday, Aug. 21, dismissed a lawsuit brought against The Providence Journal, reporter Lynn Arditi [now with Rhode Island Public Radio], ConvergenceRI, and its editor and publisher, Richard Asinof.

The dismissed lawsuit claimed that the plaintiff, Philip Olsen, had been defamed by the reporters for their reporting of statements made by Olsen’s daughter, Crystal Olsen, during a news event held on July 26, 2016, at the Adult Correctional Facility.

As ConvergenceRI reported in its Aug. 8, 2016, story, “Heroin, sexual abuse, prison, methadone and the promise of recovery,” Crystal Olsen was one of four mothers who shared their personal stories and their hopes to find a path to recovery through a new program of medication assisted treatment at the prison.

On July 26, four women incarcerated at the Gloria McDonald Facility told their stories of drug addiction and their hopes for recovery through a new program of medication assisted treatment at the jail.

Four mothers in drab khaki and blue prison garb told their brutal tales of survival on the street, often forced to go cold turkey in their jail cells.

Sprawled out before them, sitting on the visiting room floor, were a number of TV and radio reporters: well-coifed, well-attired professionals from WPRO, WPRI and ABC6, holding a phalanx of microphones upward to capture the soft-spoken words of the women prisoners.

A photograph by Providence Journal photographer Steve Szydlowski, published on Page 4 of the July 27 edition of the daily newspaper, captured this surreal prison scene.

The stories that the women told were part of an effort to champion the new strategies now underway at the prison to provide prisoners with medication-assisted treatment to help them with their addictions, instead of forcing them to go cold turkey in their jail cells, with the promise of access to treatment following their release from prison.

The moving stories by the four women was timed to coincide with a visit by Michael Botticelli, the White House director of National Drug Control Policy, who himself is in recovery.

“We know that people who leave incarceration without good connections to treatment have a significant overdose risk, often within the first 72 hours of release,” Botticelli said.

What prompted the lawsuit
The lawsuit against The Providence Journal, its former reporter Lynn Arditi, ConvergenceRI, and editor and publisher Richard Asinof, focused on what Crystal Olsen, the first prisoner to tell her story at the July 26, 2016, event, said in sharing her own personal story of how she said she became a heroin addict.

Her father, Philip Olsen, alleged that the reporting of what his daughter said amounted to defamation. The lawyers for the defendants successfully moved to dismiss the lawsuits, citing the fair report privilege.

What the judge said
The ruling reinforced freedom-of-the-press protections for the news media when reporting on what is said by participants at a government-organized news conference under the fair report privilege. The ruling also upheld the inclusion of ConvergenceRI within the fair report privilege in its ability to ask questions of authorities, based upon what was accurately reported about what participants said during the news conference.

Here are extensive excerpts from the 15-page ruling by Judge McConnell. In his ruling dismissing the lawsuit, McConnell wrote:

“The press panel was sponsored by two government agencies, touting the government’s medication assisted drug-treatment program for prisoners at the ACI. The participants in the press panel included an official from Rhode Island’s Office of Health and Human Services, officials from Rhode Island’s Department of Corrections, and the White House Director of National Drug Policy.

“It cannot be gainsaid that a public press event hosted by various government actors for the express purpose of discussing a government program does not constitute an official proceeding.”

McConnell continued:

“In addition, Mr. Olsen does not challenge – and this Court determines – that the articles were a fair and accurate report of the official proceeding. The articles discussed the medication-assisted drug-treatment program and Ms. Olsen’s story without changing the details, thereby providing a ‘rough-and-ready summary’ of the official proceeding.

“Now that the Court has snatched all the low-hanging fruit, it proceeds to the disputed issues. Mr. Olsen challenges the applicability of the fair report privilege to the reports on Ms. Olsen’s statements during the press panel, arguing that the privilege does not extend to statements made by ‘an inmate serving a jail sentence.’

“Instead, in Mr. Olsen’s mind, the privilege only applies to speakers who are ‘responsible authoritative decision maker[s]’ – that is, reliable government officials. Mr. Olsen has not cited authority for this proposition – that the privilege binds itself to a speaker, not a proceeding.

“In attacking the character of the speaker, though, the Court finds Mr. Olsen whistling past the graveyard – for the privilege, as elucidated by the Rhode Island Supreme Court, ‘protects the publication of fair and accurate reports of public and judicial proceedings.’

In other words, the privilege applies to reports of meetings, not reports of certain individuals at meetings. This distinction is made patently clear by the policy consideration underlying the privilege: ‘facilitating [the] dissemination of information about judicial and governmental proceedings.’

“Because the public has a strong interest in knowing what occurs at an official proceeding, reporters are granted protection in relaying a fair and accurate account of that information to the public. In essence, the rule supports a social good – allowing the whole public to attend the official proceeding without actually having to be present at the proceeding.”

The public’s right to know
In his ruling, Judge McConnell also wrote that Mr. Olsen’s argument would put limits on the information that was disseminated to the public.

“Shifting the focus away from the reporter and back on to the general public, the
Court also notes that Mr. Olsen's rule will limit the information disseminated to
the public.

“If a reporter did her due diligence and deemed a speaker unreliable, then the reporter could no longer report on the speaker’s statements, even if the reporter had no reason to believe the statements were false.

“Consequently, the public would not receive information on a portion of the official proceeding. This would hold true for a requirement that the speaker be a public official as well. As described above, the fair report privilege is rooted in access to accurate information, rather than indicia of reliability.

“The fact that Mr. Olsen may be able to impugn the reliability of the speaker is, therefore, beside the point, as is the fact [that] Ms. Olsen was not a public official.

“The public interest lies in that something was said at the official proceeding, regardless of whether it turns out to be a truth or an untruth.

“On this front, Ms. Olsen spoke at the official proceeding, at the government’s request, to showcase a prison's drug-rehabilitation program. Ms. Olsen was very much a part of the proceeding.”

A matter of public concern
In the next part of the ruling, in response to Mr. Olsen’s arguments, Judge McConnell asked and answered whether a government-sponsored drug treatment program for prisoners was a matter for public concern

“Mr. Olsen makes one final plea for why the fair report privilege should not attach to a report on Ms. Olsen’s statements: Ms. Olsen's statements were not a matter of public concern. Though, in cobbling together this argument, Mr. Olsen does not challenge – and this Court finds – that a government-sponsored drug-treatment program for prisoners is a matter of public concern.

“Instead, Mr. Olsen concludes that Ms. Olsen’s drug dependency and prostitution are private matters that only affect her.

“Ms. Olsen’s statements were directly related to, and in furtherance of, the official proceeding. She discussed her experience with the government program, and in doing so, she talked about the origin of her drug problems.

“Discussing the effects of addiction on prisoners highlights the necessity of the drug-treatment program that the government showcased at the panel discussion. In total, Ms. Olsen’s personal experiences with drug addiction are intertwined with the official proceeding, as she is an individual participant in the government's drug-treatment program.

No abuse of privilege by Asinof
In his lawsuit, Mr. Olsen also claimed that Asinof, in his reporting in ConvergenceRI, had forfeited the fair report privilege. Judge McConnell disagreed, ruling that Asinof “did not abuse the privilege," dismissing the lawsuit.

Mr. Olsen “hones in on the ConvergenceRI article, claiming that Mr. Asinof’s article forfeited the fair report privilege. In this chord, Mr. Olsen hits two notes: (1) the ConvergenceRI article transforms the meaning of the proceeding, and (2) the article editorializes by posing hypothetical questions. The relevant portions of the ConvergenceRI article are reproduced below:

One of the most telling moments in the presentation came when the first mother, Crystal Olsen, told the story of how she became a heroin addict. Her father, a heroin addict, shot her up when she was just 14, and then forced her to become a prostitute to support his habit.

"I ended up with a drug habit that needed to be supported. I used drugs a lot because of the trauma I had been through. The opiates would stop me from feeling what I've been through," Olson said.

"I've been back and forth to prison, doing illegal things, prostituting, stealing cars, shoplifting. I lost my fiance to an opiates overdose," she continued, sharing that she had two you[ng] daughters, ages 6 and 9.

"I've been on methadone for 19 years, and every time I've come into prison, I've had to be taken off it."

Why exclude that part of Olsen's story about her father’s abuse from the column? If you don’t talk about it or acknowledge it in a truthful fashion, does it get swept under the rug as an inconvenient fact?

Where were the authorities – from school, from the police, from the community – who somehow failed to protect a girl of 14 from being turned out on the street as a prostitute by her father?

Judge MConnell continued: “It is uncontroverted that Ms. Olsen, at the press conference, said that her father shot her up with heroin when she was fourteen years old and prostituted her to sustain his addiction.

“In reporting on Ms. Olsen’s story, while the ConvergenceRI article may have dedicated more space to Ms. Olsen’s drug-addiction story, ConvergenceRI did not add anything to the story, at least not in the first four paragraphs above.

“The next two paragraphs, however, go beyond a mere regurgitation of Ms. Olsen’s comments at the press panel. This part of the article takes Ms. Olsen’s statements and flips them into a series of rhetorical questions, aimed at institutional actors.

“In doing so, Mr. Asinof walks a tight rope, where one misstep, such as treating Ms. Olsen’s comments as true, will send him sailing past the fair report privilege’s safety net.

“While discussing a story in the past tense may, in some instances, imply the truthfulness of the statements, here, the ConvergenceRI explicitly says ‘Olsen's Story’ prior to the rhetorical questions.

“The questions that follow merely recycle Ms. Olsen’s statements, which were limned in quotes in the proceeding paragraphs and attributed to Ms. Olsen.

“For these reasons, only one conclusion can be drawn: the article neither added commentary nor implied the truthfulness of Ms. Olsen’s story. Accordingly, Mr. Asinof did not abuse the privilege.”


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