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Abstract

A television station reports that an individual is a suspect in a murder case. A newspaper reports that a business or charity is under investigation to determine whether it has provided funding to terrorists or terrorist organizations. It is true that the individual is a suspect in the police investigation of the murder, and that the government is investigating the business or charity for possible financial links to terrorists. However, the suspicion is wrong, or at least unprovable. As far as can be determined from the available evidence, the individual did not commit a murder, and the business or charity did not provide funds to terrorists. If the party identified as a suspect or investigation target brings a defamation action, the defendant will assert that the report it made to the public was true and truth is a complete defense to a defamation claim. The plaintiff, however, will assert that the report damaged the plaintiff’s reputation by causing the public to suspect the plaintiff of criminal or improper acts and the suspicion was false, so the defense of truth should not succeed. Which version of “truth” will prevail in these circumstances? What must be true for the defendant to avoid liability? This is the question that this article examines and attempts to answer. The answer will determine whether an innocent person can obtain some remedy for harm to reputation or whether the media will enjoy what amounts to an absolute immunity from liability when the published report is literally accurate in identifying a person as a suspect or under investigation. American courts have not developed a satisfactory or authoritative answer to the question of what is “truth” in this situation. This article will put forward answers that are well-grounded in defamation common law and constitutional law and strike a reasonable balance between allowing the media freedom to report on criminal investigations and providing a remedy to innocent parties whose reputation has been damaged.

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