Doing its best to chill communications between lawyers and the media, the Utah Supreme Court has ruled that statements made about pending litigation at a press conference are not protected from liability for defamation.

A press conference is a form of “excessive publication” to which the judicial proceeding privilege does not apply, the court said in reinstating a slander suit filed against a woman who accused members of a polygamous sect of sexually abusing her.

The opinion is so broadly written, however, that lawyers could be deterred from speaking to individual reporters about a case. “In effect, the court has told litigants to prosecute their cases in the courtroom, not in the newspaper or on television," a First Amendment attorney told The Salt Lake Tribune.

Both a trial court judge and the Utah Court of Appeals found the judicial proceeding privilege protected Mary Ann Nelson from liability for statements she and her attorneys made about her sexual abuse lawsuit at an August 2003 press conference. Nelson had sued 242 alleged members of the “Kingston Order,” including Nevin and Denise Pratt of Bountiful, Utah.

Nelson's attorneys handed out copies of the complaint and told reporters the defendants were “key members of the Kingston organization” and that Nelson was trying to “make an example of them.” None of the statements referred specifically to the Pratts.

The judicial proceeding privilege covers a statement “made during or in the course of a judicial proceeding,” but a party loses that immunity if the statement is “excessively published” -- which, under Utah law, means “published to persons who did not have an adequate legal interest in the outcome of the proposed litigation.”

Justice Matthew B. Durrant, writing for the Supreme Court, dismissively found that “At most, the reporters at [Nelson's] press conference were acting only in the capacity of concerned citizens” and extending the privilege to her statements would “ill-serve the public policy underlying the privilege.”

“Statements made and distributed to the press concerning pending or ongoing litigation do little, if anything, to promote the truth finding process in a judicial proceeding,” he said. “Further, statements made to the press do not generally encourage open and honest discussion between the parties and their counsel in order to resolve disputes; indeed, such statements often do just the opposite.”

At oral argument, Chief Justice Christine M. Durham noted that the complaint was a public document and asked whether the excessive publication rule would apply if there had been no press conference and reporters individually obtained the lawsuit.

But the Supreme Court's excessive decision does not even bother to address that issue or the public's interest in newsworthy litigation.

By Matthew Heller
5/20/07