concurring in part and dissenting in part:
I agree with the majority’s conclusion that certain statements made by defendants fall within one or more of the recognized categories of statements that are defamatory per se. I disagree, however, with the majority’s conclusion that the fair report privilege shields defendants from liability for some of the statements they made. Therefore, I write separately to explain my position in this case.
The majority applies the fair report privilege to statements that were based upon the bare and untested allegations of a complaint. In my opinion, some action by the trial court is necessary to trigger application of the fair report privilege. Indeed, such a restriction on the fair report privilege is salutary and preserves a proper balance between the individual’s right to protect his reputation and the public’s interest in being informed of court proceedings.
The majority’s willingness to apply the fair report privilege to the statements at issue is particularly troubling when considered in light of the court’s concurrent holding that a showing of malice, whether actual malice or malice in fact, will not defeat the defendants’ claimed protection under the fair report privilege. The majority’s holding invites collusion between a party who files a frivolous complaint containing defamatory statements and a defendant who publishes the defamatory statements, with full knowledge of the falsity of the statements but with equal certainty of protection through application of the fair report privilege. Because I believe that the majority does not strike the proper balance between the rights of individuals to their good reputation and the interest of the public in being informed of court proceedings, I respectfully dissent in part from the majority opinion.
ANALYSIS
At issue in this case is the proper balance between an individual’s right to a good reputation and the public’s interest in being informed of court proceedings. As the majority recognizes, a defamatory communication violates an individual’s right to a good reputation and gives rise to a cause of action to recover damages for the violation. See J. Lee & B. Lindahl, Modern Tort Law § 36:1, at 36 — 3 (2d ed. 2002); W. Keeton, Prosser & Keeton on Torts § 111, at 771 (5th ed. 1984). A defamatory statement becomes actionable when it is actually communicated to a third person and understood by that person as being defamatory. Modern Tort Law § 36:4, at 36 — 9; Prosser & Keeton on Torts § 113, at 797-98. When a defamatory statement is published to a third person, that person in turn may be liable for republication of the communication to yet another individual. Modern Tort Law § 36:4, at 36 — 11.
Two classes of privileges have evolved as exceptions to the general rule of Lability for defamatory communications. Prosser & Keeton on Torts §§ 114, 115. The first class encompasses absolute privileges where immunity is conferred “regardless of motive and is based on the personal position or status of the actor.” Modern Tort Law § 36:24, at 36 — 39. Statements made in judicial proceedings are afforded immunity by absolute privilege. Prosser & Keeton on Torts § 114, at 816. It is generally recognized that the fair and impartial administration of judicial proceedings, the search for truth, and the vindication of personal rights in legal proceedings may be fostered only through “total freedom for the exchange of ideas” (Modern Tort Law § 36:25, at 36 — 40) and, consequently, require absolute immunity for statements made by judicial officers, attorneys, parties, and witnesses in the proceedings.
The second class encompasses conditional or qualified privileges where immunity is conferred because of “the occasion upon which the allegedly false statement is published.” Modern Tort Law § 36:24, at 36 — 39. A conditional or qualified privilege generally applies “where society’s interest in compensating a person for loss of reputation is outweighed by a competing interest that demands protection.” Modern Tort Law § 36:32, at 36— 47. See also Prosser & Keeton on Torts § 115, at 824. A conditional or qualified privilege may be lost if the privilege is abused. Modern Tort Law § 36:33, at 36 — 53; Prosser & Keeton on Torts § 115, at 832. As this court has heretofore explained:
“Where no qualified privilege exists, the plaintiff need only show that the defendant acted with negligence in making the defamatory statements to prevail. [Citation.] However, once a defendant establishes a qualified privilege, a plaintiff must prove that the defendant either intentionally published the material while knowing the matter was false, or displayed a reckless disregard as to the matter’s falseness.” Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16, 24 (1993).
Thus, where a person publishes a statement with knowledge of the falsity of the statement, a qualified privilege may not be sufficient to shield the person from liability. Likewise, where a person publishes a statement despite a high degree of awareness of its probable falsity or despite entertaining serious doubts as to truth of the statement, liability may not be defeated by application of a qualified privilege. Kuwik, 156 Ill. 2d at 24-25; Mittelman v. Witous, 135 Ill. 2d 220, 237 (1989).
As the majority notes correctly, the fair report privilege falls within the class of conditional or qualified privileges. 221 Ill. 2d at 585. The privilege furthers the interest of the public to have information about official proceedings and public meetings. In Medico v. Time, Inc., 643 F.2d 134 (3d Cir. 1981), the court explained the three rationales that have been used to justify the fair report privilege. First,
“an agency theory was offered to rationalize a privilege of fair report: one who reports what happens in a public, official proceeding acts as an agent for persons who had a right to attend, and informs them of what they might have seen for themselves. The agency rationale, however, cannot explain application of the privilege to proceedings or reports not open to public inspection.” Medico, 643 F.2d at 140-41.
Second is a theory of public supervision:
“(The privilege is justified by) ‘the security which publicity gives for the proper administration of justice. ... It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.’ ” Medico, 643 F.2d at 141, quoting Cowley v. Pulsifer, 137 Mass. 392, 394 (1884).
The third rationale for the fair report privilege rests “on the public’s interest in learning of important matters.” Medico, 643 F.2d at 142. The linchpin, however, is that the information reported must be of some import. “Mere curiosity in the private affairs of others is of insufficient importance” to warrant granting the privilege. Note, Privilege to Republish Defamation, 64 Colum. L. Rev. 1102, 1111 (1964).
Looking at the theoretical underpinnings of the fair report privilege, it is clear that the privilege serves the interest of the public in information about governmental and court proceedings. Where the public is not clearly entitled to the information in question, such as where a meeting is not open to the public, where the information is not fair and accurate, or where the information is false, the interest of the public in such information is less compelling, and protection of the plaintiffs right to his good reputation may call for a new balance. In my opinion, the majority in the present case does not strike the proper balance between the right of the plaintiffs to their reputations and the interest of the public in obtaining information about court proceedings.
The majority adopts the position of the Restatement (Second) of Torts that the publication of defamatory matter concerning another in a report of an official action or proceeding is privileged. 221 Ill. 2d at 586, citing Restatement (Second) of Torts § 611 (1977). As explained in comment d of the Restatement (Second) of Torts:
“The privilege covered in this Section extends to the report of any official proceeding, or any action taken by any officer or agency of the government of the United States, or of any State or of any of its subdivisions. Since the holding of an official hearing or meeting is in itself an official proceeding, the privilege includes the report of any official hearing or meeting, even though no other action is taken. The filing of a report by an officer or agency of the government is an action bringing a reporting of the governmental report within the scope of the privilege.
The privilege is thus applicable to the report of proceedings before any court, whether it is one of general or of special and limited jurisdiction.” Restatement (Second) of Torts § 611, Comment d, at 299 (1977).
Although the majority adopts the statement of the fair report privilege outlined in section 611, the majority rejects the limitation imposed by comment e on the use of the fair report privilege. See 221 Ill. 2d at 589. Instead, the majority concurs in the holding of Newell v. Field Enterprises, Inc., 91 Ill. App. 3d 735 (1980), that the fair report “privilege serves the public’s interest in the judicial system, and this interest begins with the filing of a complaint.” 221 Ill. 2d at 589.1 disagree.
I believe the interests of the citizens of Illinois are better served by adopting the position of the Restatement (Second) of Torts. Comment e provides in part:
“e. Necessity of official action in judicial proceedings. A report of a judicial proceeding implies that some official action has been taken by the officer or body whose proceedings are thus reported. The publication, therefore, of the contents of preliminary pleadings such as a complaint or petition, before any judicial action has been taken is not within the rule stated in this Section. An important reason for this position has been to prevent implementation of a scheme to file a complaint for the purpose of establishing a privilege to publicize its content and then dropping the action. (See Comment c). It is not necessary, however, that a final disposition be made of the matter in question; it is enough that some judicial action has been taken so that, in the normal progress of the proceeding, a final decision will be rendered.” Restatement (Second) of Torts § 611, Comment e, at 300.
The rationale for the restriction on the fair report privilege is explained thus by a leading treatise:
“An important field for the privilege is the reporting of any judicial proceeding, no matter how inferior the tribunal, and regardless of its jurisdiction over the particular matter. The proceeding may be an ex parte one, so long as some official action is taken, even though it is only the holding of a hearing; but a mere contemplated lawsuit not yet begun is clearly not enough. Because of the opportunity afforded for malicious public defamation and even extortion, through suits begun and promptly discontinued, most courts are agreed that some official action is essential to the privilege. Thus it is the prevailing view, with some few courts to the contrary, that a pleading or a deposition filed in a case but not yet acted upon may not he reported under the claim of privilege.” Prosser & Keeton on Torts § 115, at 837.
I hasten to emphasize that under the approach advocated in comment e and followed by a number of jurisdictions, the public will gain access to information regarding the court proceedings, and the policy consideration for providing such access will be heeded. The issue, after all, is not whether the public has an interest in information concerning the court proceedings which is being denied. Rather, the issue is whether a media defendant reporting on the court proceedings may base its report on the bare, untested, and unsubstantiated allegations of a complaint. When some official action has been taken by the court in the proceedings, the media defendant will be able to report on the proceedings, including the allegations of the complaint. At that point, however, the media defendant may have access to additional information which will allow it to present a more balanced view of the court proceedings. Further, the oversight of the proceedings provided by the court and the possibility of sanctions for a frivolous complaint may stay the hand of a plaintiff whose sole purpose is to defame an innocent individual. The public’s interest in obtaining information about the court proceedings will be met. Concomitantly, the risk to the individual subjected to the defamatory statements in the complaint will be minimized.
I agree with the observations made by the court in Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 159, 61 N.E.2d 5, 7 (1945), in balancing the interests in an action for defamation:
“Public policy requires a glare of publicity upon the doings of courts, even though individual litigants suffer unmerited harm. But the publication of accusations made by one party against another in a pleading is neither a legal nor a moral duty of newspapers. Enterprise in that matter ought to be at the risk of paying damages if the accusations prove false. To be safe, a newspaper has only to send its reporters to listen to hearings rather than to search the files of cases not yet brought before the court. The older doctrine of the [Cowley v. Pulsifer, 137 Mass. 392 (1884)] and [Lundin v. Post Publishing Co., 217 Mass. 213, 104 N.E. 480 (1914)] cases still seems to us well founded in principle and without injustice in its practical operation. It is supported by the great weight of authority in other jurisdictions.”
See also Nixon v. Dispatch Printing Co., 101 Minn. 309, 312, 112 N.W 258, 258 (1907) (“[I]f the filing of such a complaint must be construed as a judicial proceeding within the rule stated, then any one who happens to read the complaint after it is filed is privileged to publish it ***. *** If such be the law, then an easy and safe way has been provided whereby a party desiring to libel another may do so with impunity by entitling the libel in an action, labeling it a complaint, and filing it with the clerk”). The majority here applies the fair report privilege to statements that were based upon the bare and untested allegations of a complaint. In my opinion, some action by the trial court is necessary to trigger application of the fair report privilege. Indeed, a restriction on the privilege preserves a proper balance between the individual’s right to protect his reputation and the public’s interest in being informed of court proceedings. Under the watchful eye of the trial court, the risk of collusion between the individual filing the frivolous, defamatory complaint and the media outlet republishing the defamatory allegations of the complaint is lessened.
The majority’s concurrent holding that malice, whether actual malice or malice in fact, will not defeat a defendant’s claimed protection under the fair report privilege only serves to throw the balance further off. In Lulay v. Peoria Journal-Star, Inc., 34 Ill. 2d 112 (1966), plaintiff proprietor of a combined bakery, grocery store and restaurant in Peoria was cited by city health officers for sanitary code violations. Plaintiff proprietor satisfied the objections of the Department of Health and received his food license. The following day, defendant newspaper, after an interview with the director of the health department, published the allegedly defamatory article. The court first recognized that a privilege exists to report government proceedings. Lulay, 34 Ill. 2d at 114-15. The court then held:
“The privilege to report governmental acts or utterances can only be defeated by proving that a particular publication was motivated solely by actual malice. [Citations.] As expressed in the Restatement of Torts, section 611, a publication reporting government proceedings is nonactionable unless published ‘solely for the purpose of causing harm to the person defamed.’ ” Lulay, 34 Ill. 2d at 115.
Although the Lulay court spoke in terms of actual malice, the definition the court provided, that is, a communication made solely for the purpose of causing harm to the person defamed, was that of common law malice or malice in fact.
The court’s holding in Lulay was followed in Coursey v. Greater Niles Township Publishing Corp., 40 Ill. 2d 257, 261 (1968), where the court observed:
“With respect to defendant’s contention that the article was a privileged comment on quasi-judicial proceedings, the appellate court correctly stated the controlling principle as expressed in the Restatement of Torts, § 611, that a newspaper is privileged to report the activities of a ‘municipal corporation or of a body empowered by law to perform a public duty *** although it contains matter which is false and defamatory, if it is (a) accurate and complete or a fair abridgement of such proceedings, and (b) not made solely for the purpose of causing harm to the person defamed.’ ”
In Catalano v. Pechous, 83 Ill. 2d 146 (1980), the court considered whether the plaintiffs, seven of the eight aldermen that comprised the city council of Berwyn, could maintain an action for a defamatory statement allegedly made by defendant Pechous at a council meeting, repeated by Pechous several months later to a reporter, and quoted by the reporter in a newspaper article. The plaintiffs argued the fair report privilege did not apply because the reporter did not attend the council meeting; the article was not published until five months after the council meeting; the article was based on an account given by Pechous; and not all of the statements by Pechous which appear in the article were made at the meeting. In discussing the concept of malice, the Catalano court noted that the Lulay court had actually defined common law malice, that is, a statement made for the purpose of causing harm to the person defamed, in holding that malice defeats the fair report privilege. Catalano, 83 Ill. 2d at 168. In the wake of New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), however, recovery for a defamatory statement concerning a public official may be allowed only upon a showing of actual malice, that is, “only if it is established both that the utterance was false and that it was made with knowledge of its falsity or in reckless disregard of whether it was false or true.” Catalano, 83 Ill. 2d at 155. The Catalano court then observed that it need not decide whether, as argued by the plaintiffs, the fair report privilege did not apply to the statement at issue in the first instance. The plaintiffs, all public officials, were not able to show actual malice on the part of the newspaper defendants, as required by New York Times. Catalano, 83 Ill. 2d at 168-69.
The majority rejects the holding of Lulay, and presents Catalano as support for its holding that a showing of malice, whether actual malice or common law malice, will not defeat application of the fair report privilege. The majority’s analysis is overly dependent on Catalano, however. The Catalano court itself noted it was not holding that the fair report privilege applies where the individual claiming the privilege knew of the statement’s falsity. The Catalano court observed:
“We think it is also appropriate to state that in holding that Pechous is liable and that the other defendants are not, we are not, as the plaintiffs assert, applying different standards, and we are not indicating approval of the position taken by the court in Edwards v. National Audubon Society, Inc. (2d Cir. 1977), 556 F.2d 113, cert. denied (1977), 434 U.S. 1002, 54 L. Ed. 2d 498, 98 S. Ct. 647, that a newspaper, under some circumstances, is protected against liability in reporting a defamatory statement about a public official or public figure even if the newspaper knew that the statement was false.” Catalano, 83 Ill. 2d at 170.
The majority’s analysis enjoys greater support in the Restatement (Second) of Torts. See Restatement (Second) of Torts § 611, Comment b, at 298 (1977).
The majority’s decision on the issue of malice provides timely guidance for the Illinois courts. As noted by the majority, Illinois law has been in disarray as to whether a showing of malice defeats the fair report privilege. 221 Ill. 2d at 585. Compare Lykowski v. Bergman, 299 Ill. App. 3d 157 (1998) (following Lulay and holding the privilege may be defeated by a showing of malice); Kumaran v. Brotman, 247 Ill. App. 3d 216 (1993); Reed v. Northwestern Publishing Co., 129 Ill. App. 3d 133 (1984); Emery v. Kimball Hill, Inc., 112 Ill. App. 3d 109 (1983); Nagib v. News-Sun, 64 Ill. App. 3d 752 (1978); Colucci v. Chicago Crime Comm’n, 31 Ill. App. 3d 802 (1975), with Snitowsky v. NBC Subsidiary (WMAQTV), Inc., 297 Ill. App. 3d 304 (1998) (fair report privilege applies if the report is accurate and complete or a fair abridgment of the occurrence reported); Gist v. Macon County Sheriff’s Department, 284 Ill. App. 3d 367 (1996). See also Berkos v. National Broadcasting Co., 161 Ill. App. 3d 476, 493 (1987) (Presiding Justice McMorrow, writing for the court, collecting cases and observing: “the question of whether the common law fair report privilege can be forfeited upon a showing that the defendant acted either with common law ‘express malice’ or constitutional law ‘actual malice,’ where the news media has falsely defamed a public official, a public figure, or a private figure with respect to a matter of ‘public concern,’ is apparently unsettled because of conflicting Illinois precedent”). Without venturing into the fray, I note simply that the majority’s holding that a defamatory report is privileged if based on the contents of a complaint is exacerbated by the concurrent holding that malice does not defeat the fair report privilege.
It should be remembered that a plaintiff in a judicial proceeding enjoys an absolute privilege for defamatory statements he makes in the proceedings. As explained in a leading treatise, the privilege “does not depend for its existence upon the good faith of the defamen An absolute privilege confers immunity regardless of motive and is based on the personal position or status of the actor.” Modern Tort Law § 36:25, at 36 — 40. To allow a newspaper to publish the defamatory statements the plaintiff includes in his complaint, and to give the newspaper immunity when the newspaper is aware of the falsity of the allegations in the plaintiffs complaint, is to degrade the right of the defamed individual to his good reputation without real necessity. What damage a plaintiff causes to the defamed individual by including defamatory statements in a complaint will be multiplied exponentially by publication of the defamatory statements in a newspaper. A complaint in a court proceeding will go unnoticed by the vast majority of the citizens of our state. Defamatory statements broadcast in a newspaper or other media outlet may magnify both the reach and the sting of the defamatory statements. A private individual in particular most likely will not have the resources to counter the defamatory allegations when they are given voice in a media outlet.
Again, the trade-off is not between affording a defamed individual the right of redress and denying the public’s interest in access to information concerning judicial proceedings. Rather, the trade-off is between protecting the right of the individual to his good reputation and delaying, for a short time, publication of information about the court proceedings. I note that numerous jurisdictions that have considered the issue at bar have drawn a more appropriate balance, holding either that the fair report privilege does not extend to a report based on the contents of a complaint, or that the fair report privilege may be defeated by a showing of malice. See Quigley v. Rosenthal, 327 F.3d 1044 (10th Cir. 2003) (applying Colorado law and holding that the fair report privilege does not apply to the reporting of the contents of pleadings before any judicial action has taken place); Stem v. Gannett Satellite, Information Network, Inc., 866 F. Supp. 355 (W.D. Tenn. 1994) (applying Tennessee law, court held that privilege applied to affidavit that was filed in court and became part of the judicial proceeding, but actual malice would defeat application of the privilege); Parsons v. Age-Herald Pub. Co., 181 Ala. 439, 61 So. 345 (1913) (court action is required and publication must be without malice); Johnson v. Johnson Publishing Co., 271 A.2d 696, 698 (D.C. 1970) (“If the publication fairly and accurately repeats the wife’s assertions as contained in the complaint, the defense of qualified privilege is available to appellee absent proof that the article was published with malice”); Murphy v. Maui Publishing Co., 23 Haw. 804 (1917) (court action is required for application of fair report privilege); Flues v. New Nonpareil Co., 155 Iowa 290, 135 N.W 1083 (1912) (official action is required and publication cannot be made with malice); Paducah Newspapers, Inc. v. Bratcher, 274 Ky. 220, 118 S.W.2d 178 (1938) (fair report privilege applies to report based on a complaint if the report is made without malice); Sanford, 318 Mass. 156, 61 N.E.2d 5 (official action is required); Park v. Detroit Free Press Co., 72 Mich. 560, 568, 40 N.W. 731, 734 (1888) (“If pleadings and other documents can be published to the world by any one who gets access to them, no more effectual way of doing malicious mischief with impunity could be devised than filing papers containing false and scurrilous charges, and getting those printed as news”; Nixon, 101 Minn, at 313, 112 N.W. at 259 (“a complaint or other pleading in a civil action, which has never been presented to the court for its action, is not a judicial proceeding within the rule”); Brown v. Globe Printing Co., 213 Mo. 611, 112 S.W. 462 (1908) (court action is required for application of the fair report privilege); Cox v. Lee Enterprises, Inc., 222 Mont. 527, 723 P.2d 238 (1986) (fair report privilege applies to a report that is based on a complaint, but the report must be made without malice); Fitch v. Daily News Publishing Co., 116 Neb. 474, 217 N.W. 947 (1928) (court action is required and publication must be done without malice); Costello v. Ocean County Observer, 136 N.J. 594, 643 A.2d 1012 (1994) (official action is required and a showing of malice will defeat the privilege); McCurdy v. Hughes, 63 N.D. 435, 447, 248 N.W. 512, 516 (1933) (observing that numerous cases have held “that the rule of privilege does not apply to pleadings which, though filed, have not yet received judicial notice”); Pollock v. Rashid, 117 Ohio App. 3d 361, 690 N.E.2d 903 (1996) (the publication of a fair report of a pleading is privileged unless the report was published maliciously); Mannix v. Portland Telegram, 144 Or. 172, 23 P.2d 138 (1933) (court action is required for application of fair report privilege); Weber v. Lancaster Newspapers, Inc., 2005 PA Super. 192, 878 A.2d 63 (fair report privilege applies to pleadings but malice in fact will defeat application of the privilege); Williams v. Black, 24 S.D. 501, 510, 124 N.W. 728, 732 (1910) (stating general rule that “ ‘the publication of the contents of a petition or of other pleadings or papers filed in civil proceedings before trials or before any action has taken place on such pleadings or papers by the court is not privileged’ ”), quoting 25 Cyc. 406, 407; Baten v. Houston Oil Co., 217 S.W. 394, 398 (Tex. Civ. App. 1919) (statute declaring a fair, true, and impartial account of court proceedings “privileged[ ] does not justify the publication of a libelous written pleading, properly filed, upon which no action by the court, judge, or any other officer has been taken”); Russell v. Thomson Newspapers, Inc., 842 P.2d 896 (Utah 1992) (official action required and report must be made without malice); O’Brien v. Tribune Publishing Co., 7 Wash. App. 107, 117, 499 P.2d 24, 30 (1972) (“A newspaper has a qualified or conditional privilege to report legal proceedings provided the publication is a fair and accurate statement of the contents and is made without malice”); Ilsley v. Sentinel Co., 133 Wis. 20, 113 N.W. 425 (1907) (official action required).
CONCLUSION
I cannot join fully in today’s opinion. I believe the opinion does not strike a proper balance between an individual’s right to his good reputation and the public’s interest in information regarding court proceedings. The majority applies the fair report privilege to statements that were based upon the bare and untested allegations of a complaint. In my opinion, some action by the trial court is necessary to trigger application of the fair report privilege. Indeed, a restriction is salutary, forestalling possible collusion between an individual who files a frivolous complaint and the media defendant who republishes the allegations of the complaint. As explained by the court in Ilsley, 133 Wis. at 24-26, 113 N.W. at 426-27:
“The whole foundation for that privilege is the interest of the public to know the conduct of judicial officers and legislators, to the end that misconduct or incapacity may be promptly discovered and remedied. ***
The fundamental reason is the same which demands that proceedings of courts and legislatures shall be open to the public. [Citations.] When this reason is understood, it obviously fails wholly to justify publication of defamatory contents of mere pleadings and other preliminary papers which have simply been filed in the clerk’s office. In those the public have no concern until they are actually brought to the attention of some judicial officer and some action on his part is demanded based thereon. *** The fact that any one who wishes may, on other grounds, have access to such papers for examination, if any such right exists, has no bearing on the question. The degree of publicity likely to be so accomplished is trifling in comparison with general publication, and, at best, results incidentally from a public policy of nondiscrimination by a mere clerk which is in no wise promoted by spreading abroad the information which one may acquire by such inspection. In absence of dominating public interest, surely the individual ought not to be subjected to such assaults upon his character and reputation as may result from general publication of charges which may thus be made. The author of a pleading is broadly privileged in asserting his claims against his opponent, and may, and often does, make the most damaging charges with little or no foundation. He may make them with no expectation of proving them, nay, with no purpose of ever proceeding further with his action, and yet furnish most salacious matter for the enterprising reporter upon whose industry the pleader may indeed have counted to render his charges effective to injure his opponent before the public, though he never expected any effect for them in court.”
In my opinion, comment e to the Restatement (Second) of Torts carves out a proper balance between the individual’s right to protect his reputation and the public’s interest in being informed of court proceedings and should be followed by this court. In light of the foregoing, I respectfully dissent in part from the majority opinion.