Natalie Maines

The explosion of the blogosphere has blurred the definition of “news media” and courts have granted bloggers the protection of press shield laws against subpoenas for their sources. But there does not appear to be any precedent for applying the “fair report” privilege outside the traditional media arena.

“The fair report privilege is 'a privilege for the press to report accounts of official proceedings or reports even when these contain defamatory statements,” a federal judge emphatically ruled in denying its protection to a private corporation. Fanelle v. LoJack Corp., 79 F. Supp. 2d 558 (2000).

Terry Hobbs of Memphis sued Maines in November, alleging the outspoken Dixie Chick libeled him in an open letter posted on the group's website which “taken as a whole, accused Plaintiff of committing the murder[s]” of three 8-year-old boys in West Memphis, Ark. He is the stepfather of one of the victims, Steven Branch.

The so-called West Memphis Three -- Damien Echols, Jesse Misskelley, and Jason Baldwin –- were convicted of the sensational murders in 1994. Hobbs' complaint also lists Maines' bandmates as defendants and accuses her of making defamatory comments at a “Free the West Memphis Three” rally.

In her letter, which was published Nov. 26, 2007, Maines describes evidence from a habeas corpus petition “showing that Damien Echols was wrongfully convicted.” Among other things, she says, DNA tests show that a hair belonging to Hobbs was found in a ligature used to strangle one of the victims and a hair at the crime scene matched “a friend of Hobbs that was with him that day.”

The letter also cited “New information implicating Terry Hobbs -- including his own statements made to police in recent interviews where he acknowledged that several of his relatives suspect him in the crime.”

Maines -– who was sued under her married name of Natalie Pasdar -– does appear to have provided a reasonably accurate report of information contained in the habeas petition and its attached exhibits, which include an affidavit by a private investigator who interviewed Hobbs in May 2007.

“All statements Defendants' allegedly made were part of an official report and/or a public meeting, and/or Defendants' actions constituted a protected comment on matters of public interest,” she says in her answer to the complaint.

While the Fanelle decision was definitive in limiting the scope of the fair report privilege to the press, the 2nd U.S. Circuit Court of Appeals has said the purpose of a journalist's privilege is not solely to protect newspaper or television reporters, but to protect the activity of “investigative reporting.”

“[T]he critical question in determining if a person falls within the class of persons protected by the journalist's privilege is whether the person, at the inception of the investigatory process, had the intent to disseminate to the public the information obtained through the investigation,” the court said in von Bulow v. von Bulow, 811 F.2d 136 (1987).

That test may be rather unwieldy for the internet age. But Maines certainly can argue that she “investigated” the evidence in the West Memphis Three case and did not “gather[ ] information for personal reasons unrelated to dissemination of information to the public.”

By Matthew Heller
1/17/09