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A nonprofit that purports to help police departments with legal filings and other issues failed to convince the 7th Circuit Court of Appeals that newspaper articles questioning its legitimacy were defamatory, with the appellate court affirming a lower court’s decision.
The National Police Association, a nonprofit that supports police departments, sued the publishers of the Indianapolis Star newspaper and The Associated Press after the publications reported on police department alerts about NPA solicitations being a scam.
The articles focused on whether the money the NPA raised actually went to police departments in the municipalities where it mailed solicitations. It also highlighted statements in the NPA mailers that were sent to residents in towns falsely characterized as sanctuary cities.
The coverage appeared in March 2019, with AP publishing a wire story on the same allegations a day after the Star.
The NPA characterized the reporting as defamatory.
In June 2019, the organization sued the city of Trenton, Michigan, and two of its police officers based on statements included in the Star’s article. The Star then updated its reporting with an article headlined “A pro-police Indianapolis nonprofit is suing 2 police officers.”
Counsel for the NPA sent a letter to Gannett, the Star’s publisher, and AP’s Indianapolis office and general counsel, providing notice that the organization considered the articles defamatory and intended to sue. The letter included statements from two cities that partially walked back their original alerts about the organization, acknowledging the NPA is real.
The group wanted the articles retracted and for access to online copies of the stories to be removed.
In-house counsel for Gannett and AP declined and said they were prepared to defend the stories in potential litigation.
The NPA filed its complaint in May 2021.
The publishers filed a motion to dismiss, which the Indiana Southern District Court, Indianapolis Division, granted.
The district court held that the NPA’s suit would fail under traditional defamation doctrines, given the organization never alleged “actual malice.” The district court was also skeptical of the legal reason underlying a libel claim and determined that without a basis for liability under the Restatement (Second) of § 577(2), the group’s claim was foreclosed.
On appeal, the NPA reiterated its claim that § 577(2) — which imposes liability for landowners who do not remove defamatory content on their property — provides a basis for its claims, arguing the statute’s language creates a duty to remove defamatory material regardless of who the author is.
The 7th Circuit disagreed.
“The problem with this interpretation is that the context surrounding §577(2) — from the comment to the illustration to the lack of precedent adopting the NPA’s argument — points in the opposite direction,” the opinion says.
The true meaning of the statute, the appellate court ruled, is found in Comment p of the Restatement, which says the basis of liability under § 577(2) is “[the landowner’s] duty not to permit the use of his land or chattels for a purpose damaging to others outside of the land.”
“The NPA asks this court to reverse the district court’s dismissal of its libel suit based on an untested, bespoke theory of liability based on an interpretation of the single publication rule that courts have consistently rejected,” the opinion says.
The NPA also asked the 7th Circuit to certify several questions to the Indiana Supreme Court under Circuit Rule 52(a), including whether Indiana “recognizes the continued-publication rule for defamation as set out in § 577(2) and as Tacket predicted it would.” The question referenced Tacket v. General Motors Corporation, 836 F.2d 1042 (7th Cir. 1987).
The plaintiff in Tacket, a GM plant manager, alleged the company “adopted” a sign that accused him of corruption by failing to take it down for several months. Whether GM “published” the sign by not removing it dealt with the application of the Restatement, and the 7th Circuit ruled there was enough evidence for a jury to decide GM had adopted the sign by not removing it.
“In that decision, however, we made no reference to § 577(2) applying to a property owner’s own words or material, as opposed to those of a third party, like the person who created the offending sign at the GM plant,” the opinion says.
The ruling continued: “Indiana has not adopted the rule of § 577(2) in the 36 years since Tacket. Furthermore, even though that case is too old to have contemplated online publication liability, many other cases have come before courts across the country — including this one — attempting to argue that online articles are subject to defamation liability based on a post-publication notification of falsity. Most of these arguments have been unsuccessful.”
The 7th Circuit thus declined to certify the questions.
The case is National Police Association, Inc. v. Gannett Co., Inc., et al., 22-1639.
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