By: Christopher D. Carusone
Abraham Lincoln once said, “Character is like a tree and reputation like a shadow. The shadow is what we think of it; the tree is the real thing.” Unfortunately, in a world where opinion often replaces fact, and one negative article or blog post can live on the internet forever, a person’s reputation is not always a product of one’s true character, particularly online.
The same holds true for corporations and other artificial entities. A corporation’s reputation can be destroyed or severely tarnished by a single allegation accepted as true the moment it is posted. This is especially true when the government is the one making the allegation. While newspapers and other private parties can be sued for defamation, governments are generally immune from such suits at law. Does that mean that the government can say anything it wants about you or your company without any means to stop it?
This issue is currently playing out in a high-profile battle in the Pennsylvania Supreme Court. At issue in the appeal is the right of current and former priests named in a statewide investigating grand jury report about sexual abuse in six dioceses of the Roman Catholic Church to challenge the contents of the report before it is released. At the center of this legal dispute is Pennsylvania’s constitutional protection of a person’s reputation, and whether that right entitles the petitioners to a pre-deprivation evidentiary hearing prior to disclosure of the report. This is an issue of first impression, which tests whether the language in the Investigating Grand Jury Act (allowing for notice to unindicated persons identified in the report and the opportunity to attach a response thereto) is constitutionally adequate, 42 Pa.C.S. Section 4552(e).
Under the Pennsylvania Constitution, “reputation” is explicitly included as one of the “inherent rights of mankind” and enjoys the same protection as life, liberty, property, and the pursuant of happiness. Our constitution further provides: “All courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” This is unlike the federal constitution, where reputation is not legally protected in the absence of a more tangible injury, see Paul v. Davis, 424 U.S. 693 (1976).
Federal grand juries are also permitted to issue reports, see 18 U.S.C. Section 3333. However, despite the lesser constitutional protection afforded to reputation under the federal constitution, federal law and policy require that any person named in a federal grand jury report be afforded a reasonable opportunity to testify and present witnesses on his behalf to the grand jury before the report is released, see 18 U.S.C. Section 3333; U.S. Attorneys Criminal Resource Manual Section 101-499. Federal grand jury reports must also be related to organized criminal activity and involve willful wrongdoing as opposed to mere inaction or lack of diligence. By contrast, under the Pennsylvania Investigating Grand Jury Act, an investigating grand jury report can be issued not only in matters involved public corruption or organized crime, but also for “proposing recommendations for legislative, executive, or administrative action in the public interest based upon stated findings.”
Of course, there are a lot of ways in which the government can tarnish one’s reputation. This most frequently occurs in connection with the filing of a civil lawsuit or criminal charges. The Pennsylvania Supreme Court is not expected to address those situations in this appeal, because the due process rights to challenge the merits of the government’s assertions in such situations (albeit after the fact) are well established. Instead, this appeal deals with a situation in which the commonwealth issues a report (without the filing of criminal charges or a civil lawsuit) that tarnishes the reputation of a natural person or entity. In these situations, where there are no means of challenging the accuracy of the report in a court of law before it is issued, the question presented is whether a pre-deprivation hearing is required or whether a person named in a state report will be forced to do battle alone in the court of public opinion.
Reprinted with permission from the July 25, 2018 edition of “The Legal Intelligencer” © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.