Indy-area news orgs defeat defamation claim filed by pro-police nonprofit

A pro-police organization that was once accused of being a “scam” has lost its defamation claim against two Indianapolis-area news organizations.

The Indianapolis Star and The Associated Press on Monday won dismissal of the defamation claim filed against them by the National Police Association, a 501(c)(3) based in Indianapolis. The NPA is described as an “educational corporation whose mission is to educate supporters of law enforcement in how they can help support police departments,” including through public service announcements, articles and legal filings.

But in March 2019, both The Indianapolis Star and the AP published articles about “scam alerts” that had been issued against the NPA.

The IndyStar article said that the NPA had falsely claimed Germantown, Wisconsin, was a “sanctuary city” and that the police chief in Germantown had reported the NPA for fraud. Belle Isle, Florida, was also described as a sanctuary city, according to the article, so the local police chief posted a “scam alert” on Facebook, warning that mailers from the NPA were targeted at local elderly residents “who are easily preyed upon.”

Additionally, the article referenced mailers sent out in Trenton, New Jersey, that said, “Give our law enforcement officers the crime prevention tools they need. A donation of $10, $15 or $25 would help keep communities like Trenton safe.” The article quoted the Trenton police chief as saying, “I’m thinking, ‘What the hell is this, using our name and our police department to raise funds?’ … Get out of here.”

The AP article was very similar, with the Trenton police chief quoted as saying the solicitations were “a scam … no different than any other scam — just a different angle.”

IndyStar later published an article in July 2019 describing an NPA lawsuit against the Trenton Police Department. The article repeated some of the Trenton police chief’s earlier criticisms of the NPA mailers.

But after the articles were published, the quoted officials began to walk back their comments.

The Germantown village administrator wrote a letter to the NPA indicating it had provided information that the Milwaukee metropolitan area had a sanctuary city policy, and Germantown was part of that area. Similarly, Belle Isle updated its Facebook post to indicate it was in a county designated as a sanctuary area.

The Trenton Police Department also updated its Facebook post against the NPA to remove the word “scam.” Additionally, all three municipalities publicly indicated the NPA was an actual organization.

But IndyStar and AP, however, refused to retract their stories when contacted by the NPA, disagreeing with the organization’s claim that the articles were false and defamatory and instead asserting the articles were factual.

Thus, the NPA filed a lawsuit for one count of “continued publication defamation” against both news outlets. It sought presumed damages under a defamation per se theory and actual damages of up to $91,851 for one year and $1.6 million for 20 years, for the cost of rehabilitating its reputation.

But in dismissing the lawsuit, Senior Judge Robert L. Miller Jr., presiding in the Indiana Southern District Court, rejected the NPA’s claim under § 577(2) of the Restatement (Second) of Torts. The NPA had argued that under that section and Tacket v. General Motors Corp., 836 F.2d 1042 (7th Cir. 1987), it could prevail under the “continued-publication” rule.

“According to the National Police Association, this rule imposes liability on a defendant who publishes an article without malice, later discovers some of the published statements are false, and refuses to retract the article,” Miller wrote, noting the NPA did not allege actual malice at the time of original publication.

But “(t)he National Police Association’s ‘continued-publication’ rule goes beyond what § 577(2) and Tacket are really about, which is adoption of another’s statement, not failure to retract one’s own statement,” Miller wrote in granting the news organizations’ motion to dismiss. “The facts of Tacket show that § 577(2) is limited in this way — the communication at issue in Tacket was written by some unknown third party and adopted by the defendant pursuant to § 577(2).

“… In light of Tacket and the Restatement, the rule might more aptly be the ‘adoption’ rule of publication rather than the ‘continued-publication’ rule,” Miller continued. “Contrary to the National Police Association’s reading, Tacket and § 577(2) don’t create defamation liability for a publisher who refuses to retract its own publication when that publisher didn’t act with actual malice when originally publishing the material.”

The court continued by noting that the “continued-publication” rule conflicts with other rules in defamation law, including the single-publication rule, “which limits a publisher’s liability to a single defamation claim for the first publication of an edition of a book or newspaper.” The “continued-publication” rule would undermine the single-publication rule by imposing additional liability, the court held.

“The National Police Association downplays this additional liability as only one additional claim against the defendant, but doesn’t offer limiting principles to what could be a vast carveout of the single-publication rule,” Miller wrote. “… The single-publication rule is meant to prevent retriggering the statute of limitations, as well, but the National Police Association doesn’t explain whether there’s an outer limit to when a claim could accrue. If the claim accrues upon refusal to retract, as the National Police Association asserts, a claim could ostensibly accrue at any point after publication, undermining the single-publication rule’s concern against retriggering the statute of limitations.”

Finally, the court said the “continued-publication” rule is the same as a duty to retract, which has no basis in law.

“It would be strange to impose a duty to retract against that backdrop merely because the NPA was able to read § 577(2) in a creative way,” Miller wrote.

The NPA was given 14 days to file an amended complaint, if appropriate, in National Police Association, Inc. v. Gannett Co., Inc., et al., 1:21-cv-1116.

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