## Facts

- A New York Family Court previously found Arnold G. Dorsey (Engelbert Humperdinck) to be the father of Kathy Jetter’s child and ordered support.
- In a later family-court support proceeding, Jetter filed an affidavit stating, “upon information and belief,” that Dorsey had “AIDS related syndrome” and had been treated at a New York hospital.
- Jetter provided the affidavit to National Enquirer, Inc.
- The National Enquirer published a story stating that the child’s mother “claims in court” that Dorsey “has AIDS virus,” and it quoted from the affidavit.
- The story also attributed to Jetter and her investigator more definitive statements (including that Dorsey was “tested positive”).
- Dorsey sued for defamation in federal district court (diversity), alleging the publication falsely asserted as fact that he had AIDS.
- The district court granted summary judgment for the Enquirer under California’s statutory “fair and true report” privilege for reports of judicial proceedings.

## Issues

1. Whether California’s fair report privilege for a “fair and true report” of a judicial proceeding applies to a media report based on allegations in an affidavit filed in a family-court matter.
2. Whether the privilege is confined to reports of open public proceedings, or also covers reports of filings in proceedings with confidentiality characteristics.
3. Whether “fair and true” can be decided as a matter of law on summary judgment when the content of the filing and the publication is undisputed.
4. Whether the publication materially altered the “gist” or “sting” of the allegations by presenting them more definitively than the affidavit.

## Decision

- The Ninth Circuit affirmed summary judgment for the National Enquirer.
- The court held the article fell within California’s statutory privilege for fair and true reports of judicial proceedings.
- The privilege was not defeated because the underlying family-court matter was not an open, public proceeding in the ordinary sense.
- The “fair and true” determination was properly resolved by the court on summary judgment because the relevant texts were undisputed.
- The court concluded the article was substantially accurate and did not materially change the effect of the allegations compared to the judicial filing.

## Legal Principles

- A publication is privileged if it is a “fair and true report” in a public journal of a judicial proceeding under California Civil Code § 47(4) (now § 47(d)).
- “Fair and true” is measured by substantial accuracy: the report must capture the “gist” or “sting” of the proceeding and must not add or subtract material content that produces a different effect on the reader.
- The privilege applies to reports of allegations contained in judicial filings and is not limited to reports of proceedings open to public attendance.
- When the content of the challenged publication and the underlying judicial record is undisputed, whether a report is “fair and true” may be decided as a matter of law on summary judgment.
- Once the privilege applies, it bars defamation liability even if the report contains harsh or unfavorable allegations, so long as it remains substantially accurate as to the proceeding.

## Conclusion

The Ninth Circuit held that the National Enquirer’s article was an absolutely privileged fair and true report of allegations made in a judicial filing, and it affirmed summary judgment because the article’s overall effect did not materially differ from the “sting” of the allegations in the affidavit.


Dorsey v. Nat'l Enquirer, Inc., 973 F.2d 1431 (9th Cir. 1992)