Sahara Gaming Corp. v. Culinary Workers Union Local 226

Shearing, J.,

with whom Agosti, J., joins, concurring:

I agree that the order granting summary judgment should be affirmed. However, I do not agree with the majority’s analysis of this court’s prior caselaw and would not adopt the Restatement position in its totality.

The Nevada cases cited by the majority hold that testimony or reports in judicial and quasi-judicial proceedings are absolutely privileged, even if made with malice. Knox v. Dick, 99 Nev. 514, 665 P.2d 267 (1983); Circus Circus Hotels v. Witherspoon, 99 Nev. 56, 657 P.2d 101 (1983); Nickovich v. Mollart, 51 Nev. 306, 274 P. 809 (1929). However, none of these cases hold that republication of statements in such proceedings are absolutely privileged. This court, as early as 1880, in Thompson v. Powning, 15 Nev. 195, 203 (1880), recognized a conditional privilege for republication of a “fair, full, and true report of judicial proceedings.” The reason for the privilege was the same in 1880 as it is now, namely, “that the public have a right to know what takes place in a court of justice ...” Id. Truth was a justification under this common law privilege, but even proof of lack of malice in the republication of a falsity was held only to mitigate exemplary damages, not actual damages. Id. at 207.

The Restatement (Second) of Torts § 611 (1977) provides:

The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

The comments to Section 611 of the Restatement make clear that the privilege is absolute if the report is a fair and accurate report of the official action or proceeding. Id. at cmt. a. The truth or knowledge of the reporter is irrelevant as long as the report is fair and accurate. I agree we should adopt the Restatement position that the fair report privilege is absolute for reports of official proceedings which are accurate and complete or a fair abridgement of the occurrence reported.

However, I do not agree with a limitation which the Restatement places on the fair report privilege. The Restatement takes the position that the privilege applies only to official actions, not to preliminary pleadings, such as a complaint or petition, before any judicial action is taken. Id. at cmt. e. I would hold that the fair report privilege applies to republication of all public records of judicial cases, whether or not any judicial action has been taken. The view in England and the majority view in America until the early part of this century was that the common law privilege applied only after there was judicial action. Rodney A. Smolla, Law of Defamation § 8.10[2][a][ii] (1998). That is no longer the majority view in this country. Id. The more modern view is that a lawsuit from beginning to end is in the nature of a judicial proceeding and that a pleading is a public act in the course of judicial proceedings. Id. The leading case on this issue is Campbell v. New York Evening Post, 157 N.E. 153 (N.Y. 1927), in which Judge Roscoe Pound cited, among other examples, the incongruity of the republication of ex parte orders being privileged, but not complaints, when there is no rational basis for a distinction. Judge Pound stated:

The present distinction is indefensible. Therefore we proceed to a logical conclusion, and uphold the claim of privilege on the ground that the filing of a pleading is a public and official act in the course of judicial proceedings.

Id. at 156.

Further, I do not agree with the dissenting justices that the basis for the fair report privilege as to pleadings is that pleadings are presumed to be accurate and reliable. I believe the basis for the privilege is that the public is entitled to know what is in the public record. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975), the United States Supreme Court held that a state is precluded from imposing civil liability based upon the publication of truthful information contained in official records open to public inspection. Although the holding may not be directly applicable here, the language of the Supreme Court opinion is instructive. In the opinion of the Court, Justice White stated:

By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.

Id. at 495. The mischief perpetrated by a scheme to file false pleadings merely to publish lies with impunity is far less than the mischief perpetrated by denying the public access to official court pleadings.

In this case there is no dispute that the respondents accurately quoted the officially filed complaint. Therefore, I agree that summary judgment was appropriately granted.