Case 0:17-cv-60426-UU Document 169 Entered on FLSD Docket 06/04/2018 Page 20 of 22
(1) publishes an accurate and disinterested report, (2) of serious charges against a public figure,
(3) by a responsible, prominent organization, and (4) does not espouse or endorse the
organization’s statement. Id. at 120.
New York law does not recognize this privilege. Indeed, New York courts have roundly
rejected Edwards as contrary to the policy underpinning the fair report privilege and contrary to
Supreme Court precedent. See, e.g., Hogan, 84 A.D.2d at 478–79 (“We now hold that the rule of
Edwards v. National Audubon Society does not apply in this department.”), aff’d, 58 N.Y.2d 630;
Weiner v. Doubleday & Co., 74 N.Y.2d 586, 594, (N.Y. 1989) (“Indeed, in Hogan . . . we
rejected a claim that a “neutral reporting” privilege should be extended to a newspaper that
published an objective report of newsworthy charges with proper attribution to source.).
In rejecting Edwards the court in Hogan explained,
The Supreme Court has not adopted Edwards . . . and in our view it is not possible
to reconcile it with that court’s prior decision in [Gertz v. Robert Welch, Inc., 418
U.S. 323 (1974)]. The unequivocal holding of Gertz is that a publisher’s
immunity is based upon the status of the plaintiff, not the subject matter of the
publication. Presumably, all publications of the news media are newsworthy.
They are not privileged, however, unless the publisher is free of culpable conduct
under the standards stated in New York Times v Sullivan [376 U.S. 254 (1964)],
Gertz v. Robert Welch, Inc. and, in New York, Chapadeau v Utica ObserverDispatch [38 NY2d 196 (N.Y. Ct. App. 1975)].
84 A.D.2d at 479. Additionally, the court explained, “[t]he privilege was extended and given
constitutional status solely because the court perceived informational value to the public in the
publication of the charges; they were newsworthy.” Id. at 478.
Because the Court agrees with Defendants that New York law applies to their asserted
privileges, and because New York law does not recognize the neutral report privilege,
Defendants may not claim its protection under New York law.
B. Neutral Report Privilege Under the United States’ Constitution
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