Attorney Laura Handman on Defending the New York Post with the Fair Report Privilege

laura handman headshot
Headshot of Laura Handman. Courtesy of Davis Wright Tremaine.

By Susanna Granieri

The New York Post and one of its reporters, Isabel Vincent, prevailed this month in a defamation lawsuit filed by Silicon Valley billionaire Michael Goguen.

Goguen, who lives in Montana, sued the Post and Vincent, as well as retired Whitefish, Montana police chief, Bill Dial, in November 2021. The suit followed an article by Vincent that reported on civil court filings containing an allegation that Goguen “kept [a] spreadsheet of 5,000 women he had sex with.” Goguen called the article “ridiculous and defamatory” and later claimed that it “soiled” his reputation. He also alleged that the Post failed to investigate the claims in court documents that were included in the article, and that the newspaper published the article before receiving a comment from him.

The Post argued that the allegations contained in the article were protected under the fair report privilege, which shields news outlets from legal action when publishing fair and true reports of official government proceedings. The Post’s motion to dismiss was denied, and the lower district court found that Montana’s fair report privilege — which has conditions — rather than New York’s — which provides broader protections — was applicable to the case, requiring a jury to decide if the Post’s reporting about Goguen constituted “a true and fair report absent malice.”

The Post appealed the decision to the Montana Supreme Court, which ruled unanimously on March 12 that the Post was protected by New York’s fair report privilege and “that the disputed statements fairly and accurately report on an official proceeding.” It added that the lower court “erred in its choice of laws analysis when it did not conclude that New York had the most significant interest in having its fair report privilege applied to the proceedings.”

First Amendment Watch spoke with Vincent’s attorney Laura Handman about the case. Handman discussed the differences between Montana and New York’s fair report privileges, the importance of being able to report on official proceedings, and the significance of the Montana Supreme Court’s decision on future litigation.

Editor’s note: This interview has been edited and condensed for length and clarity.

FAW: How would you describe this case to someone who is unfamiliar with it?

LH: The case involves a fundamental principle that news organizations and others routinely report on what is going on in our courts, and in government proceedings and other official proceedings, and the laws of the states have a variety of protections for that reporting, as long as it’s an accurate and fair report of the allegations made in the courts. And this decision very much stands for the importance of the people’s right to know all of what is being alleged in the court proceedings in any state, wherever it may be.

FAW: Can you outline the protections journalists are granted under the fair report privilege? And in what ways did Vincent fulfill the requirements of the privilege?

LH: The privilege in New York is, if it’s a fair and accurate report of proceedings that’s covered by the fair report privilege, which includes judicial proceedings, government proceedings, government investigations, a broad range of things. If it’s a fair and accurate report, then it’s protected. The news article is protected, even if the allegations ultimately are not true, even if the reporter doesn’t know or think it’s true, but as long as it’s an accurate and fair report, then it’s protected. And the judge, even in the lower court in this case, found that what Isabel had done were fair and accurate reports of various proceedings that had taken place against the plaintiff. But she found, the lower court in the district of Montana, the Flathead District in Montana, found that the Montana qualified fair report privilege applied, that’s also fair and accurate, but it has to, she said, be without malice, which she interpreted as requiring the news organizations to first investigate the allegations. She, however, certified that the question of which law applies and how the Montana qualified privilege operates and whether it has to be decided by a jury rather than a court, she certified those questions to the Montana Supreme Court, and they took those questions. And that is what the decision that was issued resolved. Not how to interpret the Montana privilege, but reaching whether the New York privilege should apply. And I would say  the lower court also had found and dismissed a claim against the Post and the former White Fish police chief for a statement he made in the article about all these allegations that the plaintiff was “a la Harvey Weinstein and Epstein” and the court found that was protected opinion and that was affirmed by the Montana Supreme Court as well.

FAW: Can you tell me a bit about how the differences between Montana’s fair report privilege and New York’s are important here?

LH: Well, in this case, where the court found that Isabel had fairly and accurately reported the allegations, and then the few places where there were some requests for clarification, those clarifications were made, and where she had called for comment and sought out his lawyers and called for comment and didn’t receive comment, and she published noting that they had not given comment, but the next day, the plaintiff posted on Twitter, very critical comments of the article and the Post did a second article that day, summarizing his criticism of the article. So in every way it was fair and accurate. And so under New York’s absolute privilege, that meant that they could decide, as a matter of law comparing the pleadings and what the article said, decide that yes, indeed, it was a fair and accurate report, and so there wouldn’t have to be what could have been very extensive discovery if the case had not been dismissed at this point in time. So it was very significant and also significant to reach the decision that the fair report privilege of New York applied. They had to do an analysis of the choice of law and Montana like many, many states has adopted a choice of law analysis that is provided for in the Restatement of law, and they went through all the different indicia, and while Montana law would apply to the rest of the claim, looking at which state had the most substantial interest in this issue of the conduct of the reporters and what they were reporting on, they found that New York had the most substantive interest in that question. And therefore, even though the Montana law would apply to questions like damages, and defamatory meaning, and other things, it would apply the New York fair report privilege and the court then, after the analysis of comparing the allegations and what was reported, dismissed the lawsuit as a matter of law under the New York fair report privilege. Montana is one of the few states that has actually a constitutional provision protecting the public’s right to know, and that was really underneath and underlay some of the beautiful discussion that introduces this whole question and is fundamental to the decision, I think.

FAW: Do all states have a fair reporting privilege and how much do they vary?

LH: Most states have them, but they vary, and this is a good example of how they vary. And this is particularly significant because if you’re a reporter in New York writing about someone somewhere else, would you have to say “Oh, I wonder what the privilege law is there?” This way the reporter can somewhat confidently report fair and accurate reports of the allegations and have some confidence that they would win if they were sued, as long as they fairly and accurately reported the allegations, and made clear, as this article did, that they were allegations in a complaint. The article was not adopting the allegations as true. And that is a very significant issue, the allegations have to be attributed to the complaint, which is what the article did.

FAW: What are the policy reasons that states have articulated to support a privilege to report defamatory information in official reports and proceedings?

LH: It’s fundamental to know what’s going on in the courts. And what allegations have been made and how the courts resolve them. There are some instances, it wasn’t at issue here, where the complaint might be what’s called a “sham” complaint. In other words, it may not really be stating claims, but more to get the allegations out, and in that situation, and I’ve had the good fortune of being able to invoke the New York fair report privilege on reports of allegations in lawsuits that were found to be sham lawsuits against the person who brought the lawsuit, but not against the news organization that reported on those allegations. So that’s a very significant issue. But some courts, obviously, or some states, don’t want to necessarily give face to such allegations. But in New York that’s protected for the news organization, even if the person that brought the lawsuit might not have a privilege.

FAW: Goguen claimed the statement that he “controls law enforcement,” as seen in Vincent’s article, was defamatory and not protected. But, Vincent uses the word “allegedly” before that statement. Does that, in itself, offer any protections?

LH: Yes. I think in five places in the article it refers to civil complaints, and certainly you’re allowed to do your analysis of the allegations and make a sort of broader statement about them, as long as it’s clear it’s based on the allegation. So the court found that statements like a “private fiefdom” was protected.

FAW: Would Goguen’s claims be considered a SLAPP suit in other states? Why or why not?

LH: It’s possible. SLAPP law is basically, if it’s a matter of public interest, and if the defendant prevails in states that have SLAPP laws, then it would apply. Montana does not have a SLAPP law. New York does. But, in any event, we haven’t raised it. It was clear that he would be a public figure. So if the case had gotten past the fair report privilege issue and the opinion issue he would have had to prove that the Post knew what they published was false. That they said it was true, that they weren’t just reporting allegations, but they were actually adopting the allegations, and that they knew that it was false, or had serious doubts as to the truth. But the case was ended before we got to those issues.

FAW: What do you think this case means for the future of fair report privilege application in similar cases?

LH: I think it’ll have a broad application, in part because of the very thorough analysis that the court did, and it was unanimous, seven justices. But also because they applied the choice of law rules of the Restatement. And as I said, many states have adopted the Restatements choice of law rules. So that analysis that they went through, will have applicability to many states. So for publications that have absolute fair report privileges like New York, but not only New York, they could end up applying that privilege to another case in another state.

FAW: If Goguen had been successful, what effect would that have had on how journalists report on official proceedings?

LH: Part of the consideration in the choice of law is some predictability for the reporter. And that would have been greatly affected. There was an amicus that was done by the Reporters Committee for Freedom of the Press, and joined by a number of Montana news organizations. And there was concern that if the Montana privilege did in fact require investigation before you could report on allegations, that would have pretty much made it almost impossible to report on the allegations. And it’s very different from adopting the allegations as true, if you’re just reporting this is what was alleged, and you fairly and accurately report that. If you had to investigate all the allegations first, which haven’t been adjudicated yet, no court has ruled on them, it would have made it impossible to do the reporting. And think about every day you read so much about what has been alleged in various lawsuits, criminal cases, you name it. The news is quite full of it these days.

FAW: Should there be a national fair reporting privilege? Has there been any attempt to pass a federal law?

LH: I think it might be a good thing. I don’t know if it would ever happen. But, you know, there are definitely efforts to get federal anti-SLAPP laws, there’s efforts to get federal reporter’s privilege protections, and this could be another good use of that, I think, but I have not heard anyone yet proposing it. But this could lead to much more uniformity, I think, which would be a good thing.