Wright v. Grove Sun Newspaper Co., Inc.

1994 OK 37, 873 P.2d 983, 22 Media L. Rep. (BNA) 1801, 1994 Okla. LEXIS 45, 1994 WL 136019

• Court: Supreme Court of Oklahoma
• Decided: April 12, 1994
• Docket: 77169
• Status: Published

Opinions

OP ALA, Justice.

The issues presented on certiorari are (1) Was the republication by Grove Sun Newspaper Company, Inc. [Grove Sun, defendant or newspaper] of material, released by the District Attorney of Delaware County [district attorney or prosecutor] at a news conference called by his office and held at the courthouse, privileged and hence not actionable in a libel claim? and (2) If the material was privileged, could Ace N. Wright, Jr. [Wright or plaintiff] maintain an action for intentional infliction of emotional distress? We answer the first question in the affirmative and the second in the negative. We conclude today that (a) the district attorney’s news conference was an official function of his office and represents a transaction/occasion to which the common-law fair report privilege will attach; (b) the references to Wright in the articles published by Grove Sun were accurate republications from materials released by the district attorney at the news conference and bereft of any judgmental newspaper gloss; (e) under circumstances shown by this record the fair report privilege ¹ affords Grove Sun a complete defense to Wright’s libel claims; and (d) the district court’s order dismissing Wright’s tort claims against Grove Sun must be affirmed.

I

THE ANATOMY OF LITIGATION

On May 11, 1990 the district attorney held a news conference at the courthouse in Jay, the county seat of Delaware County, open to the public and the press. At this event the district attorney discussed a drug investigation previously conducted by his office in Delaware County. With his comments concerning the termination of this investigation, the district attorney distributed to those present an affidavit attesting to the authenticity of a transcript [attached to the affidavit] of a conversation between two undercover narcotic agents who had participated in the probe. Grove Sun published articles in two newspapers² in Delaware County which included a verbatim transcript of the conversation between the two narcotic agents.³ It is in this transcript that a reference was made to Wright, which he characterized as libelous. Grove Sun did not embellish upon, make any comments regarding, or take editorial license with, the contents of the affidavit furnished by the district attorney. The newspaper asserted below that the material published was a fair and true report of the news conference and was hence privileged.⁴

Wright filed suit in the Delaware County District Court pressing two causes of action for libel and, as another theory of liability, the intentional infliction of emotional distress. He also advanced a claim against the State of OHahoma ex rel. Jon Douthitt. The district court ordered the claim against the State dismissed for plaintiffs failure to comply with the Oklahoma Governmental Tort Claims Act, 51 O.S.1991 §§ 151 et seq. This ruling went unchallenged by appeal. The district court then ordered all remaining claims dismissed.⁵ The court of appeals affirmed the nisi prius decision, holding that the neutral reportage privilege⁶ provided Grove Sun a complete defense to Wright’s claims.⁷ We granted certiorari and now affirm the dismissal order.

II

THE ACCURATE AND TRUE REPORTING OF MATERIAL DISSEMINATED ON OFFICIAL PUBLIC OCCASIONS IS CRITICAL TO THE MAINTENANCE OF OUR DEMOCRATIC INSTITUTIONS OF GOVERNMENT.

At issue here is the need in a free, self-governing society for dissemination of information of fundamental importance to the people. Without accurate media coverage of official public events, it is highly doubtful that the general public would be able to make informed decisions and participate intelligently in their governance; nor would representatives of government be able to perform their assigned tasks effectively.⁸ It is hence against the backdrop of public interest in information concerning public and official activities of government that this case juxtaposes the interest of an individual in protecting his reputation from harm. The tension between the right of the press to disseminate information to the public and the law of defamation is not new. It is mirrored in the eighteenth-century common law of England,⁹ which developed the fair report privilege — the doctrine we invoke today for application to this case. Without this privilege the media would be compelled to engage in acts of self-censorship¹⁰ whenever republishing information released by governmental officials to the public at official functions. The damage by reputational harm which goes unredressed because of the fair report privilege defense must be subordinated to the larger societal interests in the values which the privilege protects.

Ill

EXCEPT AS ALTERED BY OUR CONSTITUTION AND STATUTES, THE COMMON LAW REMAINS IN FULL FORCE.

By the mandate of 12. O.S.1991 § 2¹¹ the common law remains in full force unless a statute explicitly provides to the contrary. The common law’s legislative abrogation may not be effected by mere implication.12 It must be clearly and plainly expressed.¹³ A presumption favors the preservation of common-law rights.¹⁴ In this State’s legal system the common law forms “a dynamic and growing” body of rules that changes with the conditions of society.¹⁵

The provisions of 12 O.S.1991 § 1443.-1¹⁶ embody the statutory privilege that affords to the media a complete defense to libel. While in some respects the statutory privilege overlaps the common-law fair report privilege, it does not provide the media with identical protection. The scope of the fair report privilege is broader than the terms of the statute; since the latter does not abrogate the other,¹⁷ the former remains a viable defense to libel.¹⁸

IV

SINCE THE DISTRICT ATTORNEY’S COMMENTS AT THE CRITICAL PUBLIC NEWS CONFERENCE DEALT WITH ACTIVITIES OF HIS OFFICE AND WERE OF GENERAL PUBLIC INTEREST, THEY MUST BE TREATED AS OFFICIAL.

The critical district attorney’s news conference, called at the Delaware County courthouse, is to be treated as an official function of that office. A district attorney’s participation in and conduct of criminal investigations is explicitly contemplated by Oklahoma statutes.¹⁹ The official nature of public activities within a particular office may be divined from its settled practices— regardless of whether these practices are completely defined by written rules or statutes — by resort to the common-law sources reflecting upon that office.²⁰ District attorneys in Oklahoma have historically used press conferences to distribute information about the activities of their offices to the citizenry they represent. Disseminating information to the public²¹ enhances, within the communities served by the prosecutor’s office, confidence and understanding of his governmental mission.²² After an objective assessment of the critical occasion at which the comments under scrutiny were made,²³ we conclude that the news conference covered by Grove Sun’s publications was an activity conducted within the penumbra of the official duties of the Delaware County District Attorney’s office. His comments, together with the materials disseminated, which were of general public interest, must be treated as official because they concern the investigative function of the office.²⁴

v

UNDER THE FACTS REVEALED BY THE RECORD IN THIS CASE THE COMMON-LAW FAIR REPORT PRIVILEGE IS A COMPLETE DEFENSE TO LIBEL.

The elements of the common-law fair report privilege, drawn from the seventeenth and eighteenth century English developments, are defined in the Restatement (Second) of ToRTS § 611. The text of that section is:

The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.²⁵ [Emphasis added.]

The privilege²⁶ is not conditioned upon the truth or falsity of the reported material, the character of the defamed person, nor on the newsworthiness of the event; rather, its applicability is determined by the nature of the occasion at which the republished material was secured for news coverage.²⁷ The critical occasion here is the district attorney’s news conference — a legitimate activity of his office, open to the public and held for the purpose of addressing a matter of general concern to the community. As the privilege is qualified, its abuse and loss would occur if the newspaper does not accurately and fairly republish that which was gathered from a public meeting, or if the republished material is not of general public interest.²⁸

The court of appeals rested its opinion on the neutral reportage privilege.²⁹ While the impetus for invoking the constitutional neutral reportage privilege and the common-law fair report privilege may in some instances be the same, the former rests onjfundamental-law underpinnings. It mandates a different allocation of the pleading’s burden and its scope is broader than that of the latter doctrine³⁰. We do not reach for discussion today the applicability of the constitutional privilege of neutral reportage recognized by the U.S. Court of Appeals for the Second Circuit. When, as here, the legal relief sought clearly is affordable upon alternative grounds, the common-law fair report privilege, consideration of constitutional challenges is inappropriate in view of our self-erected “prudential bar” of restraint.³¹

The facts before us clearly establish that the district attorney called a news conference open to the public, whose subject was the conduct of a drug investigation by his office — a matter of general public concern in the community he served — and that Grove Sun accurately and fairly republished the contents of an affidavit distributed as part of his news conference. The record provides abundant support for allowing the publisher its common-law fair report privilege as a complete defense to Wright’s libel claims.³²

VI

COVERAGE BY THE MEDIA OF AN OFFICIAL PUBLIC EVENT IS NOT ACTIONABLE AS AN OUTRAGE IF IT MEETS THE REQUIREMENTS OF THE FAIR REPORT PRIVILEGE.

As an additional theory of liability, plaintiff has asserted a claim based on the intentional infliction of emotional distress.³³ For a defendant to be charged with delictual responsibility on this theory, it must be found [by the trial court] that the defendant’s conduct was so outrageous as to be “beyond all possible bounds of decency” or was to be regarded as “utterly intolerable in a civilized community.”³⁴ Since fair and accurate media coverage of official public occasions is in the highest and best interest of the public, Grove Sun’s conduct cannot be treated as actionable under this rubric.³⁵ We hence affirm today the nisi prius decision that Grove Sun’s pleaded conduct is not actionable as an intentional infliction of emotional distress.

VII

THE LEGAL FALLACY OF THE DISSENT

The dissent advances four reasons why Grove Sun should not be afforded the privilege. Three of the arguments are in reality but restatements of the same theme — the district attorney’s press conference was not official. The remaining argument evidences the author’s belief that since the common law inherited from England “died” in 1776, American courts must draw precedent only from jurisprudence born on this side of the Atlantic, which incorporates the pre-1776 English common law.36

As a general comment on the dissent’s cited authority, it suffices to say that it fails to distinguish between the immunity which might be available to the district attorney and the privilege which is the newspaper’s due. Initially, the dissent analyzes this case solely from the perspective of defamation law and without any regard to freedom of the press. The difference between the status-based immunity of the prosecutor and the transaction-based privilege of the publisher is also ignored. Secondly, there is a failure to perceive the difference between the fair report privilege and the fair comment privilege of the common law.³⁷ The first deals with accurate and fair reporting of public events sans judgmental gloss. The second covers comments or criticism of general public interest. Grove Sun reprinted verbatim the material disseminated by the district attorney; it offered no comment or editorial gloss with reference to Mr. Wright. The law governing the fair comment privilege is absolutely irrelevant to this controversy.

The dissent ignores the broad range of media contemplated by the Restatement (Second). It plainly includes not only the press but also radio and television,³⁸ The effect of the dissent’s position would be that live television coverage of official press conferences of public officials could not be conducted without exposing the station to liability for republication. The authorities which most strongly support the dissent are easily distinguishable upon the facts. Here Grove Sun’s agents attended a press conference called by the district attorney — an elected public official. Cases most heavily relied upon by the dissent relate to libelous articles based upon information secured by reporters, at the time of arrest or initial incarceration but before any judicial action was taken, from police officers or some unofficial gossip mongers,³⁹ These eases do not address an event in which information was disseminated by an elected public official at a press conference open to the general public. Central to the § 611 privilege we adopt today is that the information was garnered at meetings open to the public and not from private conversations between reporters, victims and/or police officers.⁴⁰ Police officers, the source of information in many of the dissent’s authorities, were not by anyone’s count officially speaking for a public office. In some of the relied-upon cases the published articles contained judgmental newspaper gloss or offered unfounded comment/opinion upon the events or facts covered.⁴¹ These articles were clearly outside the scope of the fair report privilege; they did not deal with fair and accurate media republication.

It is the dissent’s position that the fair report privilege is but coextensive with the statutory privilege codified in 12 O.S.1991 § 1443.1. According to the dissent, because the statute relates to the same subject matter as the common-law privilege — privileged communication — the former abrogates the common-law privilege by substitution of the legislature’s understanding of what that privilege means. This conclusion is inconsistent with our extant jurisprudence. Our case law plainly teaches that abrogation of the common law must be clearly and plainly expressed.⁴²

The dissent depreciates the authority of § 611 by stating that the jurisprudence cited in this opinion to support the Restatement (Second) of ToRts § 611 does not specifically mention that section of the Restatement (Second). A review of Tentative Draft No. 20 of the Restatement (Second) of ToRts §611 will reveal that the authority questioned was in fact relied upon by the Restatement’s (Second) redactors.

Today’s opinion carefully balances freedom of the press, the need of the public to be informed, and the individual rights of private citizens to be free from harm to one’s reputation. While the dissent would have readers believe otherwise, today’s pronouncement is narrowly limited to situations where the media, sans any trickle of judgmental gloss, republish information disseminated by public officials at press conferences open to the public. It does not address itself to any immunity the district attorney might interpose. Since a fair reading of § 1443.1 does not reveal a clearly expressed intent to abrogate the common-law fair report privilege, now at least a century old, it continues viable and will not be held to have been abridged by the narrower purview of § 1443.1.

VIII

SUMMARY

When, as here, the nisi prius judgment may be supported by any applicable theory, it must be affirmed.43 Both statutes and jurisprudence, when applied to the facts in the record, impel our conclusion that Grove Sun is entitled to the common law privilege of fair report as a complete defense to Wright’s libel claims. As the interests of both the government and the public are best served when the press can report without chilling circumspection about official public events, if its coverage is fair, accurate and sans judgmental gloss, it cannot be said that media conduct well within the protection of this privilege is actionably outrageous.

ON CERTIORARI PREVIOUSLY GRANTED, THE COURT OF APPEALS’ OPINION IS VACATED AND THE TRIAL COURT’S DISMISSAL ORDER IS AFFIRMED.

HODGES, C.J., and HARGRAVE, KAUGER and WATT, JJ., concur. SIMMS, J., concurs in part and dissents in part. LAVENDER, V.C.J., and ALMA WILSON and SUMMERS, JJ., dissent.

1 . The common-law fair report privilege affords a qualified or conditional privilege to the media when they republish defamatory material in an account of a public or official proceeding. While the fair report privilege does not provide the media absolute immunity for their acts, it is a defense to or exemption from liability. Privilege arises only upon identifiable occasions — e.g., judicial proceedings, legislative sessions, administrative hearings, or official news conferences. See Restatement (Second) of Torts, ch. 25, Topic 2, Title B, Introductory Note; see also, Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586, 588-89 (1963); Phoenix Newspapers v. Choisser, 82 Ariz. 271, 312 P.2d 150 (1957); Fortney v. Stephan, 237 Mich. 603, 213 N.W. 172, 174 (1927); Garby v. Bennett, 166 N.Y. 392, 59 N.E. 1117 (App.1912). Privilege is distinguishable from immunity; the latter is based chiefly upon a person's status — e.g., judicial officers, legislators, attorneys during the course of litigation, prosecutors, witnesses in judicial proceedings. The scope of the privilege (or immunity) to be applied is determined by either a transactional or relational analysis. While this offending courthouse event would give the newspaper but an opportunity for interposing qualified privilege, it would have extended a qualified immunity to the prosecutor because of his status. See Buckley v. Fitzsimmons, -U.S.-, ---, 113 S.Ct. 2606, 2615-16, 125 L.Ed.2d 209 (1993). For further discussion of the distinctions between absolute and qualified privilege/immunity, see Forrester v. White, 484 U.S. 219, 224, 108 S.Ct. 538, 542, 98 L.Ed.2d 555 (1988); Buckley, -U.S. at- -, 113 S.Ct. supra at 2612-18; and Restatement (Second) of Torts § 611 comments (a) and (b), § 890 comment (a), Chapter 25 introductory note, and Chapter 45A introductory note. The underpinning of the qualified privilege of fair report is derived from an agency concept. It rests upon the notion that since the activity covered by the press was open to the public, the media functioned as a mere substitute for the public eye and ear — i.e., the public's agent. See Dorothy A. Bowles, 11 Com. & L„ No. 1, pg. 3 (1989); W. Page Keeton, Prosser and Keeton on The Law of Torts (Fifth), (1984), pp. 836-38. For historical antecedents of the privilege see infra note 26.

2 . The first alleged defamation occurred in an article published on May 16, 1990 in The Delaware County Journal and the second appeared in The Grove Sun on May 20, 1990. Both newspapers were then owned by the defendant.

3 . See appellant's brief in chief, pp. 1, 2, and 4; appellee's answer brief, pp. 1, 23-26. Admissions in an appellate brief may be used as a supplement to the appellate record. Kwikset/Emhart v. Mayberry, Okl., 800 P.2d 239, 240 n. 1 (1990); Reeves v. Agee, Okl., 769 P.2d 745, 754 (1989); Womack v. City of Oklahoma City, Okl., 726 P.2d 1178, 1181 n. 8 (1986).

4 . Grove Sun maintained that its claimed privilege rests upon the provisions of 12 O.S.1991 § 1443.1 or on the constitutional neutral reportage privilege recognized by the U.S. Court of Appeals for the Second Circuit. For explanation of the difference between the two principles, see infra notes 16 and 29.

5 . In its order of February 27, 1991 the district court did not give any explanation for sustaining Grove Sun's dismissal quest.

6 . For a discussion of the neutral reportage privilege, see infra note 29.

7 . The Court of Appeals need not have rested its opinion on Grove Sun’s constitutional neutral reportage privilege. The republication was well within the protection of the common law fair report privilege. There was hence no occasion for reaching the constitutional question. See our discussion of the "prudential bar" of restraint, infra note 31, which counsels against deciding constitutional issues in advance of strict necessity.

8 . Justice White in Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 491-92, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975), stated for the Court:

"[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.”

9 . This conflict provided the legal culture for the growth of the common-law fair report privilege, which is of fairly recent origin in English jurisprudence. It came into existence in the late eighteenth century. Before then reporting about Parliament was considered “a reflection on government”, deemed seditious libel, and punished. As the public learned to read, Parliament found it more difficult to control the dissemination of information by the press. Finally, by 1771, the House of Commons grudgingly withdrew from citing newspapers for reporting speeches and thereafter confined its contempt power to charges for misrepresenting speeches or for libelous attacks on the reputations of individual members of Parliament. In the early nineteenth century English courts were unwilling to apply the fair report privilege to occasions other than judicial or Parliamentary proceedings. The privilege was enlarged legislatively in 1881 by Parliament's enactment of the, Newspaper Libel and Registration Act which extended a qualified privilege to all meetings called for a lawful purpose and open to the public if republication of the material was for public benefit. Restatement (Second) of Torts § 611 reflects the status of the common-law fair report privilege after the enactment of this legislation. For a discussion of the historical antecedents of the fair report privilege, see Fredrick Seaton Siebert, Freedom of the Press in England 1476-1776 (1965).

10 . Censorship is "any examination of thought or expression in order to prevent publication of objectionable material." See Farmers Educational & Coop. Union v. WDAY, Inc., 360 U.S. 525, 527, 79 S.Ct. 1302, 1304, 3 L.Ed.2d 1407 (1959). In WDAY the Court addressed, in the context of the Federal Communications Act, the question whether a radio station should be extended a privilege from liability for airing the speeches of political candidates when the speech of one of the candidates was libelous of the other candidates. Extending a privilege to the radio station, the court observed: "Quite possibly, if a station were held responsible for the broadcast of libelous material, all remarks even faintly objectionable would be excluded out of an excess of caution.” Id.Id. 360 U.S. at 530-32, 79 S.Ct. at 1306. It would not be in the public interest to require the media, before printing the publicly disseminated material, to test the truth or falsity of records and statements made available to the community by public officials in order to avoid the costs and time of defending libel suits. To do so would invite "timidity and self-censorship” and would have a chilling effect on the press, ultimately leading to the suppression of information necessaty to the vitality of our democratic institutions. See Cox, supra note 8, 420 U.S. at 494-96, 95 S.Ct. at 1046. See also, Kathryn Dix Sowle, Defamation and the First Amendment: The Case for a Constitutional Privilege of Fair Report, 54 N.Y.U.L.Rev. 469, 476 (1979).

11 . 12 O.S.1991 § 2. Its relevant terms provide:

"The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma....”

12 . Tate v. Browning-Ferris, Inc., Okl., 833 P.2d 1218, 1225-26 (1992); Silver v. Slusher, Okl., 770 P.2d 878, 884 (1989); Ricks Exploration v. Okl. Water Resources Bd., Okl., 695 P.2d 498, 504 (1985); Roxana Petroleum Co. v. Cope, 132 Okl. 152, 269 P. 1084, 1085 (1928) (the court's syllabus ¶ 3); Reaves v. Reaves, 15 Okl. 240, 82 P. 490, 495 (1905); State Mut. Life Assur. Co. of Amer. v. Hampton, Okl., 696 P.2d 1027, 1034, 1036 (1985) (Opala, J., concurring).

13 . Fuller v. Odom, Okl., 741 P.2d 449, 451 (1987); McCormack v. Oklahoma Pub. Co., Okl., 613 P.2d 737, 740 (1980); Reaves, supra note 12, 82 P. at 495; Hampton, supra note 12, 696 P.2d at 1036 (Opala, J., concurring).

14 . Reaves, supra note 12, 82 P. at 495; Hampton, supra note 12, 696 P.2d at 1036 (Opala, J., concurring).

15 . Brigance v. Velvet Dove Restaurant, Inc., Okl., 725 P.2d 300, 303 (1986), quoting McCormack, supra note 13, 613 P.2d at 740. See also Vanderpool v. State, Okl., 672 P.2d 1153, 1157 (1983).

16 . 12 O.S.1991 § 1443.1 provides:

"A. A privileged publication or communication is one made:

First. In any legislative or judicial proceeding or any other proceeding authorized by law;

Second. In the proper discharge of an official duty;

Third. By a fair and true report of any legislative or judicial or other proceeding authorized by law, or anything said in the course thereof, and any and all expressions of opinion in regard thereto, and criticisms thereon, and any and all criticisms upon the official acts of any and all public officers....”

17 . Tate, supra note 12 at 1225-26; Hampton, supra note 12 at 1035-36 (Opala, J., concurring).

18 . Media as used in the context of the common law is a more inclusive term than newspaper or print media. The Restatement (Second) of Torts § 581 is very clear that “third person publisher” includes not only the press but also television and radio. See also, Restatement § 581 comment (g).

19 . See 19 O.S.1991 § 215.1 et seq. The statute explicitly recognizes official activities of the district attorney's office to be broader than its traditional prosecutorial functions. The terms of 19 O.S.1991 § 215.4 provide in pertinent part:

"The district attorney may at all times request the assistance of district attorneys, assistant district attorneys or district attorney investigators from other districts who then may appear and assist in the prosecution of actions for crime or assist in investigation of crime in like manner as assistants or investigators in the district.” [Emphasis added.]

20 . Whitney v. United States, 99 F.2d 327, 330 (10th Cir.1938).

21 . The importance of dissemination by lawyers of information to the public is explicitly acknowledged in 5 O.S.1991, Ch. 1, App. 3-A, Rule 3.6(d), where specific guidelines are found regarding trial publicity. These guidelines provide that in- the context of an investigation a lawyer could state without elaboration: "(3) that an investigation of a matter is in progress, including the general scope of the investigation, ... and, except when prohibited by law, the identity of the persons involved.”- The rule also allows disclosure of the identity of the investigation officers and agencies and the length of the probe. The comment to Rule 3.6 in the American Bar Association, Annotated Model Rules of Professional Conduct, 2d edition, states:

"[T]here are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security." Id. at 378. [Emphasis supplied.]

22 . English and American jurisprudence is replete with panegyrics on the value of openness and publicity in promoting confidence in the administration of a legal system. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 566-572, 100 S.Ct. 2814, 2821-25, 65 L.Ed.2d 973 (1980). See also, McCormick v. Specter, 220 Pa.Super. 19, 275 A.2d 688, 689 (1971), where the court held that "the responsible performance of the District Attorney's office warrants his informing the public of matters pending in that office.”

23 . Assessment of the district attorney's motives in holding the news conference is not called for. Comment on the motive of the district attorney in calling the critical news conference would be inappropriate because, even if the prosecutor's aims were wrongful, they would not be imputable to the publisher who unquestionably meets the fair report privilege standards. In concluding that the news conference in dispute here was a function of the district attorney's office and of general public interest, we applied the rationale of Harlow v. Fitzgerald, 457 U.S. 800, 815-819, 102 S.Ct. 2727, 2736-38, 73 L.Ed.2d 396 (1982). There the Court purged the qualified immunity doctrine [when applied in the context of 42 U.S.C. § 1983] of its subjective components.

24 . See Barr v. Mateo, 360 U.S. 564, 572-576, 79 S.Ct. 1335, 1340-42, 3 L.Ed.2d 1434 (1959). There the Court considered whether a press release issued by the acting director of the Office of Housing Expediter concerning two employees of his agency was privileged and the official issuing the release hence exempt from liability for libel. The Court held "[t]he fact that the action here taken was within the outer perimeter of the [official's] line of duty is enough to render the privilege applicable_" Id. 360 U.S. at 575, 79 S.Ct. at 1341. [Emphasis added.] See also, Buckley, supra note 1. In Buckley the Court held that a qualified common-law privilege for materials disseminated at a press conference held by a district attorney would afford a prosecutor a defense to claims arising under 42 U.S.C. § 1983. The Court there concluded:

"The conduct of a press conference does not involve the initiation of a prosecution, the presentation of the state’s case in court, or actions preparatory for these functions. Statements to the press may he an integral part of a prosecutor’s job ... and they may serve a vital public function. But in these respects a prosecutor is in no different position than other executive officials who deal with the press, and ... qualified immunity is the norm for them.” Id.U.S. at -, 113 S.Ct. at 2618. [Emphasis added.]

25 . See Sciandra, supra note 1; Brandon v. Gazette Publishing Co., 234 Ark. 332, 352 S.W.2d 92, 94 (1961); Phoenix Newspapers, supra note 1; Abram v. Odham, 89 So.2d 334, 336 (Fla.1956); Borg v. Boas, 231 F.2d 788, 795 (9th Cir.1956); Pulvermann v. A.S. Abell Company, 131 F.Supp. 617 (Md.D.Ct.1955); Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, 260 N.Y. 106, 183 N.E. 193, 197 (App.1932); Fortney and Garby, supra note 1.

26 . The fair report privilege had its genesis in Curry v. Walters [1796], 126 Eng.Rep. 1046. While it was initially recognized in the reporting of judicial proceedings, in the following decades the English courts expanded its application to other occasions. See King v. Wright [1799], 101 Eng.Rep. 1396; Carr v. Hood, [1808] 170 Eng.Rep. 983; Wason v. Walter [1868], L.R. 4 Q.B. 73; Lyon v. Daily Telegraph [1943], L.R. 1 K.B. 746; Braddock v. Bevins [1948], L.R. 1 K.B. 580. The common-law privilege was further expanded in 1881 by acts of Parliament. See supra note 9. As the law of libel has grown, American courts saw fit to extend special defenses [found either in the common law or in statutes] to situations not contemplated when the privilege first came to be crafted. See Kirschstein v. Haynes, Okl., 788 P.2d 941 (1990); Pulvermann, supra note 25; Coleman v. Newark Morning Ledger Co., 29 N.J. 357, 149 A.2d 193 (1959). See also, R.W.C., The Developing Privilege of Neutral Reportage, 69 Virginia L.Rev. 853, 856 (1983).

27 . See Restatement (Second) of Torts § 611 comment a (1977); see also, Prosser and Keeton on Torts, supra note 1 at 836-38.

28 . See Restatement (Second) of Torts, supra note 27; see also, Watt v. Longsdon [1929] L.R. 1 K.B. 130.

29 . See Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir.1977), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977), in which the U.S. Court of Appeals for the Second Circuit fashioned an expansion of the common-law fair report privilege by holding that the First Amendment of the U.S. Constitution provides a qualified constitutional privilege as a defense to libel in situations where (1) the source relied upon by the newspaper was "responsible and prominent”; (2) the subject of the third-party comments was a public figure or official, i.e., “newsworthy"; (3) the newspaper coverage was accurate; and (4) the reporting was "fair”, “disinterested”, "reasonable” and in "good faith". The neutral reportage privilege is not the same as, and should not be confused with, the fair report privilege of the common law. The standards for applying the two privileges are different. For further discussion of the neutral report privilege see Rodney A. Smolla, Law of Defamation § 4 at p. 69 (1993); Donna Lee Dickerson, 3 Com. & L., No. 3, pp. 77-86 (Summer 1981). In Crittendon v. Combined Communications Corp., Okl., 714 P.2d 1026 (1986), this court, when addressing privileges available to the media in libel actions, did not reach the issue whether the neutral reportage privilege would avail in this jurisdiction. Rather, it decided the case upon a statutory-privilege basis.

30 .The party asserting the common-law privilege has the burden of pressing it by pleading and proving the existence of its elements. As for constitutional privileges or immunity, the plaintiff has the burden of alleging and proving that the defendant had knowledge or acted in reckless disregard of the falsity of the published material. See Restatement (Second) of Torts § 580A comment e. The fair report privilege protects the accurate and fair reporting of material distributed at official public occasions. The neutral reportage privilege appears to extend to the fair and accurate coverage of statements of private persons to the media and hence goes beyond the sweep of the common-law privilege.

31 . I.N.S. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) and Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J„ concurring). See also, Smith v. Westinghouse Elec. Corp., Okl., 732 P.2d 466, 467 n. 3 (1987); Schwartz v. Diehl, Okl., 568 P.2d 280, 283 (1977); and Dablemont v. State Department of Public Safety, Okl., 543 P.2d 563, 564 (1975).

32 . Since the material published by Grove Sun was privileged, it is not necessary for us to reach for discussion the question whether the material was libelous per se or libelous per quod.

33 . Oklahoma recognizes as an independent tort the intentional infliction of emotional distress. The delict is also known as the tort of outrage. It is governed by the narrow standards of Restatement (Second) of Torts § 46. See Eddy v. Brown, Okl., 715 P.2d 74, 76 (1986); Breeden v. League Services Corp., Okl., 575 P.2d 1374 (1978).

34 . Eddy, supra note 33; Breeden, supra note 33.

35 . Eddy, supra note 33.

36 . The dissent’s premise is firmly contradicted by Oklahoma's jurisprudence. See McCormack, supra note 13 at 740; and other authorities that interpret our reception statute, 12 O.S.1991 § 2.

37 . For a discussion of the difference between these two privileges, see Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 87 (D.C.App.1980).

38 . See supra note 18.

39 . In Jones v. Neighbor Newspapers, Inc., 142 Ga.App. 365, 236 S.E.2d 23 (1977), an authority relied upon by the dissent, the appellate court succinctly pronounced the test for application of the fair report privilege. The court there stated:

“What is usually required is that the publication shall be substantially accurate; and if the article is published by the newspaper in good faith and the same is substantially accurate, the newspaper has a complete defense." Id. 236 S.E.2d at 25.

In McAlister v. Detroit Free Press Co., 43 N.W. 432, 484 (Mich.1889), the source of the reporter’s data was an overheard conversation between the chief of police and a magistrate. In Burrows v. Pulitzer Pub. Co., 255 S.W. 925, 930 (Mo.1923), the reporter’s source was a desk sergeant. In Kelly v. Independent Pub. Co., 45 Mont. 127, 122 P. 735, 737-38 (1912), the information was garnered from the sheriff's office and the court specifically found that the report did not emanate from an official public proceeding upon which the privilege could have been founded. In Jastrzembski v. Marxhousen, 76 N.W. 935, 937 (Mich.1899), the reporter secured statements from parties to the incident and this was the basis for the newspaper article; there was no reliance on information disseminated by a public official. The court in Phillips, note 37, recognized the fair report privilege as applicable to “reports of any official proceeding or action taken by any officer or agency of government”. Id. at 88. The developed facts in Phillips did not require the application of privilege.

40 .See Jastrzembski, supra note 39; see also, Kirby v. Pittsburg Courier Pub. Co., 150 F.2d 480, 482 (2d Cir.1945), where the source of the newspaper article was a conversation on the street between the reporter and a member of the draft board. In Kirby the court noted that it did not even consider whether the publication was privileged as an interpretation of an official record. The court in Wood v. Constitution Pub. Co., 57 Ga.App. 123, 194 S.E. 760, 767 (1937), noted that the source of the reporter's article was comments made to him by a judicial officer outside the discharge of his official duties. In short, the cases cited by the dissent do not address circumstances where the common-law fair report privilege could be invoked.

41 . See Houston Chronicle Pub. Co. v. Bowen, 182 S.W. 61, 65 (Tex.App.1915).

42 . See supra notes 11-15.

43 . Willis v. Nowata Land and Cattle Co., Okl., 789 P.2d 1282, 1286-87 (1990); Davidson v. Gregory, Okl., 780 P.2d 679, 685 n. 23 (1989); Utica Nat'l Bank and Trust v. Assoc. Prod., Okl., 622 P.2d 1061, 1066 (1981); Holloway v. Ward, 84 Okla. 247, 203 P. 217, 219 (1922).