Faculty Journal Articles and Book Chapters

The Press and the Law: Some Issues in Defamation Litigation Involving Media Coverage of Legal Affairs and Proceedings


Several factors explain why press reporting of legal affairs results in defamation suits. Legal matters and proceedings often involve serious charges bearing great potential for defamatory harm if false. Moreover, the risk of error is frequently significant since reporters must often decipher technical legal terminology and restate complex results of legal proceedings under the pressure of a deadline. Another possibility is that many of the plaintiffs in these defamation suits are not hesitant to go into court to assert their rights, since many are already deeply involved in litigation and others, such as lawyers and judges, are quite accustomed to it. Finally, it is likely that as with much other defamation litigation, many plaintiffs in these cases have motives for filing suit beyond the prospect of recovery of damages to reputation. Such motives may include promoting political ends, striking back at the press, or trying to influence the underlying legal proceeding. These cases cut across all of the legal issues raised in media defamation litigation in general. Often the treatment of a particular legal issue raised in a media defamation case is not peculiar. Frequently, however, unique twists to or common themes connecting these cases arise. One may study and analyze these cases by focusing on several different themes or issues that are presented.

This Article will focus on two specific themes that may bear a relationship to each other. The first theme is the treatment, as a matter of constitutional law, of the participants in legal matters and proceedings as public figures or officials and the treatment of such matters and proceedings as public controversies or matters of public concern. The resolution of these issues is generally of great significance in the individual case since it will determine whether the strict actual malice standard of fault or some lower standard such as negligence is applicable. The way that courts tend to decide these issues in this type of case is of more general interest in that it involves an important first amendment issue-the degree to which the law favors uninhibited reporting of legal matters and proceedings. The second theme focuses on the degree of accuracy that the press is legally expected to achieve in covering legal matters and proceedings. This is a theme that cuts across several specific legal issues raised in defamation litigation, including whether the statements are defamatory, whether they are true or false, whether they are fact or protected opinion, whether they are a privileged fair and accurate report of an official or judicial proceeding, and whether the reporter is at fault if the statements are false and defamatory. As with the public figure issue, the degree of accuracy to which the law holds the press will often prove to be determinative of the outcome of a particular case. The general manner in which the courts deal with the accuracy of media usage of legal terminology and descriptions of legal matters, proceedings, and participants will also have a major effect on press coverage of the legal world as well as a participant's right to sue successfully for harm caused to reputation by defamatory falsehood.

Publication Title

Southwestern Law Journal

Document Type



defamation litigation, media, legal proceedings, constitutional law, defamation – public figures