Ryan Larson,

1
STATE OF MINNESOTA

IN SUPREME COURT

A17-1068

Court of Appeals Chutich, J.
Concurring in part and dissenting in part,
Anderson, J., Gildea, C.J.

Ryan Larson,

Appellant,

vs. Filed: February 26, 2020
Office of Appellate Courts
Gannett Company, Inc., et al.,

Respondents.

________________________

Stephen C. Fiebiger, Stephen C. Fiebiger Law Office, Chtd., Burnsville, Minnesota, for
appellant.

Steven J. Wells, Timothy J. Droske, Nicholas J. Bullard, Dorsey & Whitney LLP,
Minneapolis, Minnesota, for respondents.

Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota, for amici curiae Star
Tribune Media Company LLC, Fox/UTV Holdings, LLC, The E.W. Scripps Company, the
Associated Press, Digital First Media, Gray Television Group, Inc., Meredith Corporation,
the Minnesota Newspaper Association, The Media Institute, The National Association of
Broadcasters, and The Reporters Committee for Freedom of the Press.

Randy M. Lebedoff, Minneapolis, Minnesota, for amicus curiae Star Tribune Media
Company LLC.

Bruce D. Brown, Katie Townsend, Caitlin Vogus, Washington, D.C., for amicus curiae
The Reporters Committee for Freedom of the Press.
________________________
2
S Y L L A B U S
1. The fair and accurate reporting privilege protects the reporting of information
about a matter of public concern that is disseminated by law enforcement officers at an
official press conference or in an official press release. Here, the district court erred in
failing to recognize the existence of this privilege.
2. The fair and accurate reporting privilege may be defeated if statements in a
news report were not a fair and accurate account of an official law enforcement press
conference or press release. Here, although two of the statements in the news reports were
fair and accurate as a matter of law, a new trial is required on five other statements because
neither the jury instructions nor the special verdict form adequately advised the jury about
the proper inquiry for determining whether the privilege was defeated, and the error was
prejudicial.
3. Certain statements falling outside the scope of the fair and accurate reporting
privilege are not actionable as a matter of law because they are non-actionable opinion,
true, or not capable of defamatory meaning.
Affirmed in part, reversed in part, and remanded.
O P I N I O N
CHUTICH, Justice.
In this case we consider whether the fair and accurate reporting privilege protects
news reports about sta tements on a matter of public concern made by law enforcement
officers at an official press conference and in an official press release. Because we
conclude that the privilege does apply, we must also consider whether the jury instructions
3
adequately advised the jury on the proper focus of its inquiry in determining whether the
privilege was defeated—that is, whether the statements in the news reports were a fair and
accurate account of the press conference or press release. This matter arises from the 2012
shooting death of a Cold Spring police officer and the arrest that same night of appellant
Ryan Larson in connection with the murder. The next day, representatives from three law
enforcement agencies held a press conference to announce Larson’s arrest and to discuss
the ongoing investigation; that same day, the Minnesota Department of Public Safety
issued a corresponding press release.
Larson was released from jail without being charged with a crime and then later
cleared as a s uspect. In other words, law enforcement officers had arrested Larson for a
murder that he did not commit. Larson sued state and local law enforcement officers for
various civil rights violations. 1 He also sued respondents Multimedia Holdings
Corporation d/b/a KARE 11-TV and the St. Cloud Times in state court for defamation
based on their news coverage about his arrest. He claimed that 11 statements in the news
reports about the murder investigation were false and harmed his reputation.
A jury found for respondents, but the district court set the jury verdict aside and
ordered a new trial. The court of appeals reversed the district court’s post-trial order and

1 Larson’s claims against employees of the Minnesota Bureau of Criminal
Apprehension have been settled. By order dated November 13, 2019, the federal district
court dismissed with prejudice Larson’s remaining claims against Stearns County, the
Stearns County Attorney, and local law enforcement officers. Larson v. Sanner, Civ. Nos.
17-63, 18-2957 (PAM/LIB), 2019 WL 5966322, at *3 (D. Minn. Nov. 13, 2019).
4
ordered that the judgment for respondents be reinstated. Larson v. Gannett Co.,
915 N.W.2d 485, 488 (Minn. App. 2018).
We granted Larson’s petition for review and respondent s’ request for conditional
cross-review. We conclude that, concerning the 11 alleged defamatory statements in the
news reports, (1) the fair and accurate reporting privilege applies to the 7 statements that
reported information about a matter of public concern disseminated by the law enforcement
officers at the press conference and in the press release; (2) the jury instructions and the
special verdict form did not adequately set forth the relevant factors that the jury should
consider in determining whether the privilege was defeated for lack of fairness and
substantial accuracy, an error that was prejudicial as to 5 of the statements, but not as to 2
of the statements that are protected by the privilege as a matter of law; and (3) the
remaining 4 statements that are not covered by the privilege are not actionable as a matter
of law. Therefore, we affirm the decision of the court of appeals in part, reverse that
decision in part, and remand to the district court for a new trial consistent with this opinion.
FACTS
On November 29, 2012, around 11:00 p.m., Cold Spring Police Officer Tom Decker
was shot twice outside a bar in Cold Spring. Officer Decker was responding to a request
from Larson’s parents to check on Larson, who lived above the bar. About an hour after
the shooting, the police entered Larson’s apartment while he was sleeping and arrested
him. Larson was brought to the Stearns County jail in St. Cloud and booked on suspicion
of second-degree murder. The Stearns County website’s publicly available jail log listed
Larson’s name, age, “charge” of “MURDER 2,” and photograph.
5
Official Press Conference and Minnesota Department of Public Safety Press
Release

At 9 a.m. the next morning, a short press conference was convened by three law
enforcement agencies. The Chief of the Cold Spring Police Department, the Sheriff of
Stearns County, and the Deputy Superintendent of the Minnesota Bureau of Criminal
Apprehension (“Bureau”) appeared, made statements, and answered questions. The press
conference was televised live.
The Stearns County Sheriff began by briefly describing the circumstances of the
shooting, including the welfare call by Larson’s parents. The Bureau Deputy
Superintendent spoke next. He described the Bureau’s investigation, including that “[a]
SERT team from the Stearns County Sheriff’s Office was eventually abl e to take into
custody the subject of the welfare check.” He noted that the investigation was “active and
ongoing,” and that “[w]e’ll continue to follow up to determine exactly what happened in
this incident.” Before turning the conference over to other speakers, the Deputy
Superintendent stated, “And as we noted, um, Ryan Larson was taken into custody and was
booked into the Stearns County jail in connection with this incident.”
The Chief next spoke about Officer Decker’s background, family, and work on the
police force. The law enforcement officers then answered questions from members of the
media. The media’s inquiries focused immediately on the arrested suspect, Larson. The
first question asked was whether Officer Decker knew Larson. Other questions included
where Larson was when he shot Officer Decker, what kind of weapon Larson used, and
whether, in light of the welfare call, the police knew more about Larson’s state of mind.
6
The officials refrained from going into detail on the investigation and declined to answer
some questions, noting that the investigation was in its early stages. When asked if there
was “any reason to believe that there might be some other individual involved,” the
Bureau’s Deputy Superintendent responded that “we don’t have any information to believe
that at this time.” At the end of the press conference, he also stated “from our preliminary
investigation, . . . it’s apparent to us that the officer was ambushed at the scene.”
On the day of the press conference, the Minnesota Department of Public Safety
(“Department”) issued a press release entitled “Cold Spring Police Officer Killed in the
Line of Duty.” The press release was posted on the Department’s public website. The
release stated that “within an hour” of launching a search for the suspect, “investigators
took Ryan Michael Larson, 34, of Cold Spring into custody. Larson was booked into the
Stearns County Jail on murder charges early this morning.”
Officer Decker’s death and the press conference were covered by the media
throughout Minnesota as “breaking news.” The defamation claims here concern 11
statements2 made by KARE 11 or the St. Cloud Times concerning the investigation,
including the law enforcement press conference and Larson’s release from Stearns County
Jail.
Coverage by KARE 11
KARE 11 broadcast the story on its evening newscasts on November 30, 2012, and
in an online article that same day. Its 6:00 p.m. newscast featured a “packaged” report by

2 For ease of reference, the 11 alleged defamatory statements in Larson’s complaint
are set forth below in bold text.
7
a reporter on location in Cold Spring. The news anchor introduced the segment:
“Condolences are pouring in tonight for the family of the Cold Spring Police Officer who
died in the line of duty, Tom Decker. The 31 year-old was shot and killed last night while
conducting a welfare check on a suicidal man. Police say that man—identified as 34
year-old Ryan Larson—ambushed Officer Decker and shot him twice—killing him.”
The newscast then cut to the reporter, who introduced an interview with the victim’s
mother: “[She] holds no ill-will against the man accused of killing her son.” The
officer’s mother is recorded saying, “His mind must have really been messed up to do
something like that. I know Tom would have forgave him.” When the reporter finished,
the news anchor ended the story by stating, “Ryan Larson, the man accused of killing
Officer Decker, could be charged as early as Monday.”
The 10:00 p.m. newscas t followed much the same format, but with a different
reporter in Cold Spring. The news anchor introduced the segment: “The body of Cold
Spring Police Officer Tom Decker is being guarded around the clock until his funeral. A
preliminary autopsy shows that Officer Decker died of multiple gunshot wounds.
Investigators say 34-year-old Ryan Larson ambushed the officer, shooting him twice.
Larson is in custody.” The report included a clip of a local resident stating that Officer
Decker was “one of the good guys.” The reporter then said, “He was the good guy last
night going to check on someone who needed help. T hat someone was 34 year-old
Ryan Larson who investigators say opened fire on Officer Tom Decker for no reason
anyone can fathom.”
8
After showing more clips from the interview with Officer Decker’s mother, the
newscast cut back to the anchor, who said, “Charges could be filed as early as Monday
against Ryan Larson, the man . . . who is accused of killing Officer Decker.” Larson’s
mugshot, retrieved from the jail log, appeared on the screen next to his name and the words
“Officer Killed” and “Suspect.” Meanwhile, the anchor stated, “He does not have an
extensive criminal history, but was cited with disorderly conduct in 2009. He was a
second-year machine tool student at St. Cloud Tech. Larson is being held in Stearns
County Jail.”
At the close of the story, a screen shot of an article published on kare11.com was
displayed. Viewers were directed to the article, which bore the headline “Suspect jailed in
fatal shooting of Cold Spring Police Officer.” The article noted that Larson was held “on
suspicion of second degree murder in the alleged ambush of a Cold Spring police officer.”
It also stated, “Investigators believe he fired two shots into Cold Spring police officer
Tom Decker, causing his death.”
Coverage by the St. Cloud Times
The following day, December 1, 2012, the St. Cloud Times covered Officer
Decker’s death in numerous front-page articles. The largest headline read: “Area mourns
death of Cold Spring officer.” A smaller headline in a separate article read, “ Man faces
murder charge ,” with the subheading, “Larson called ‘normal person.’ ” The article
reported that a “Cold Spring man has been arrested in connection with the shooting of a
police officer Thursday night. Ryan Michael Larson, 34, is in Stearns County Jail and
9
faces possible charges of second-degree murder. Police say Larson is responsible for the
shooting death of Cold Spring-Richmond Police Officer Tom Decker.”
Larson was released from jail on December 4, 2012. A press release issued by the
Department of Public Safety stated that “at this time there is not sufficient documented
evidence to continue to hold Ryan Larson” and requested “[ a]nyone with information
regarding this crime” to contact the authorities. Earlier that day, Larson had called the
St. Cloud Times to declare his innocence and to let people know that the real killer
remained in the community . Both the St. Cloud Times and KARE 11 published online
articles about his statements that day, and the St. Cloud Times ran a print story on
December 5 as well.
The St. Cloud Times article was titled, “County lets Cold Spring suspect go,” with
the subtitle “Prosecutors did not have enough evidence to charge.” The article covered
reactions by the community to Larson’s release, including that of the twin sister of Officer
Decker’s ex-wife. She expressed unease about the developments, stating that the culprit
“could be somebody in the crowd.” The report then stated: “[She] said she came to the
jail Tuesday because she had one thing she wanted to say to Larson if she got to [sic]
the chance to see him leave the jail. ‘This isn’t over,’ she said.” The article ended with
investigators urging anyone with information about the shooting to contact law
enforcement.
The police officially cleared Larson as a suspect in August 2013. In January 2013,
a person of interest in the investigation committed suicide after police officers questioned
10
him. Law enforcement investigators connected the murder weapon back to the person of
interest. The St. Cloud Times covered these developments in subsequent news articles.
Procedural History
Larson sued respondents for defamation, claiming that the following 11 statements
made in the television newscasts, the online news article, and the news articles printed in
the St. Cloud Times harmed his reputation:3
1. Police say that man—identified as 34-year-old Ryan Larson—ambushed
officer Decker and shot him twice—killing him.
2. Investigators say 34- year-old Ryan Larson ambushed the officer,
shooting him twice. Larson is in custody.
3. He [Officer Decker] was the good guy last night going to check on
someone who needed help. That someone was 34-year-old Ryan Larson
who investigators say opened fire on Officer Tom Decker for no reason
anyone can fathom.
4. Investigators believe he fired two shots into Cold Spring Police Officer
Tom Decker, causing his death.
5. Police say Larson is responsible for the shooting death of Cold
Spring-Richmond Police Officer Tom Decker.
6. [The officer’s mother] holds no ill-will against the man accused of killing
her son.
7. Ryan Larson, the man accused of killing Officer Decker, could be
charged as early as Monday.
8. Man faces murder charge.

3 For ease of reference, we adopt the court of appeals’ numbering of these statements.
As the court of appeals aptly noted, statements 1 through 5 attributed information to what
police or investigators said or believed, statements 6 through 8 refer to the accusation
against Larson, and statements 9 through 11 convey other information about Larson. Only
the first 8 statements were considered by the jury because the district court found, as a
matter of law, that the final 3 statements could not support a defamation claim.
11
9. His mind must have really been messed up to do something like that . I
know Tom would have forgave him.
10. He does not have an extensive criminal history, but was cited with
disorderly conduct in 2009. He was a second year machine tool student
at St. Cloud Tech. Larson is being held in the Stearns County Jail.
11. [She] said she came to the jail Tuesday because she had one thi ng she
wanted to say to Larson if she got to [sic] the chance to see him leave the
jail. “This isn’t over,” she said.
The procedural history of the litigation is complex, but the portions relevant to our
decision are summarized here. This appeal arises from the parties’ motions that followed
a jury trial held in November 2016. At the close of evidence at the trial, the district court
concluded that statements 9 through 11 were not “capable of . . . defamatory meaning” as
a matter of law and, therefore, those statements were not submitted to the jury. The district
court also denied Larson’s request for an instruction on “falsity by implication.” As to the
jury instructions that were given, the district court closely followed the model jury
instructions governing defamation claims. See 4 Minn. Dist. Judges Ass’n, Minnesota
Practice—Jury Instruction Guides, Civil, CIVJIGS 50.10–.60 (6th ed. 2014). Notably,
Larson did not seek an instruction on republication.
For statements 1 through 8, the 25-page special verdict form required the jury to
make findings on defamation, falsity, and negligence for each statement, in addition to
separate questions on damages. The jury found that the 8 statements were defamatory but
that Larson failed to prove that any of the statements were false. Consequently, the jury
did not make any findings on negligence or damages.
12
Larson then moved for judgment as a matter of law or, alternatively, for a new trial.
The district court granted judgment as a matter of law in part. It rejected respondents’
argument that the statements were protected by the fair and accurate reporting privilege.
Instead, the court agreed with Larson that the jury should have been allowed to consider
his claims based on a defamation-by-implication theory. Concluding that “the implication
of each statement was that Mr. Larson killed Officer Decker,” the court held that the 8
statements submitted to the jury were defamatory in nature and false as a matter of law,
entitling Larson to a new trial on the issues of negligence and damages. Reversing course,
the district court also revived statements 9 through 11, concluding that they could support
a viable defamation-by-implication theory. Therefore, the court ordered a new trial on all
11 statements.
Respondents appealed. The court of appeals reversed the order for a new trial,
concluding that statements 1 through 8 are protected by the fair and accurate reporting
privilege. Larson v. Gannett Co., 915 N.W.2d 485, 492–97 (Minn. App. 2018). Although
the court of appeals determined that the accuracy of the news reports was a fact question
for the jury, the court of appeals held that question was resolved by the jury’s decision that
the statements were not false. Id. at 496, 499. Regarding statements 9 through 11, the
court of appeals held that any error in dismissing them was harmless under the common
law incremental-harm doctrine. Id. at 500. Accordingly, the court of appeals ordered the
district court to enter judgment in respondents’ favor. Id. This appeal followed.
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ANALYSIS
Absent a privilege foreclosing relief, recovery for defamation requires a plaintiff to
prove four elements:
(1) the defamatory statement was communicated to someone other than the
plaintiff; (2) the statement is false; (3) the statement tends to harm the
plaintiff’s reputation and to lower the plaintiff in the estimation of the
community; and (4) the recipient of the false statement reasonably
understands it to refer to a specific individual.

McKee v. Laurion, 825 N.W.2d 725, 729–30 (Minn. 2013) (citations omitted) (internal
quotation marks omitted).
I.
Even if every element of a defamation claim is established, a speaker is not liable if
an absolute or qualified privilege protects the defamatory statement and the qualified
privilege is not abused. Bol v. Cole, 561 N.W.2d 143, 148–50 (Minn. 1997). An absolute
privilege affords the speaker the highest protection—it protects potentially defamatory
statements regardless of the speaker’s motive or state of mind. 4 Moreno v. Crookston
Times Printing Co., 610 N.W.2d 321, 328 (Minn. 2000). A qualified privilege extends to
a broader range of circumstances and, to be privileged, the statements must be made in
good faith, on a proper occasion, with a proper motive, and upon reasonable or probable

4 We have applied an absolute privilege to statements made by participants in judicial
proceedings, Matthis v. Kennedy, 67 N.W.2d 413, 417 (Minn. 1954); statements made by
a high-level agency official in the performance of official duties, Johnson v. Dirkswager,
315 N.W.2d 215, 223 (Minn. 1982); and statements made by a state trooper in a written
arrest report, Carradine v. State, 511 N.W.2d 733, 736–37 (Minn. 1994).

14
cause.5 Bol, 561 N.W.2d at 149–50 (applying a qualified privilege to statements made by
mental health providers to protect a child from abuse). These privileges exist because
“statements made in particular contexts or on certain occasions should be encouraged
despite the risk that the statements might be defamatory.” Lewis v. Equitable Life
Assurance Soc’y of the U.S., 389 N.W.2d 876, 889 (Minn. 1986).
The privilege at issue here—the fair and accurate reporting privilege—shields a
speaker from liability under the common law rule of republication. Under the republication
doctrine, a speaker may be liable for repeating the defamatory statements of another. See
Church of Scientology of Minn. v. Minn. State Med. Ass’n Found., 264 N.W.2d 152, 156
(Minn. 1978) (noting the common law republication rule); 1 Robert D. Sack, Sack on
Defamation § 7:3.5[B][1] (5th ed. 2017) (noting that the fair and accurate reporting
privilege is an exception to the republication rule).
The fair and accurate reporting privilege is similar to an absolute privilege. In
Moreno, we held that, like an absolute privilege, the fair and accurate reporting privilege
cannot be defeated by common law malice—that is, proof of ill will or improper motive in
the publication of the statements. 610 N.W.2d at 329, 333. Unlike an absolute privilege,

5 See, e.g., Britton v. Koep, 470 N.W.2d 518, 520 (Minn. 1991) (noting that
“Minnesota was in the forefront for protection of public debate” by recognizing a qualified
privilege for “[f]air comment on the conduct of public officials”); Lewis v. Equitable Life
Assurance Soc’y of the U.S., 389 N.W.2d 876, 890 (Minn. 1986) (recognizing a qualified
privilege for “an employer’s communication to an employee of the reason for discharge”);
Stuempges v. Parke, Davis & Co. , 297 N.W.2d 252, 257 (Minn. 1980) (extending a
qualified privilege to an employer’s statements about a past employee’s qualifications and
work record).
15
however, the fair and accurate reporting privilege “may be lost by a showing that the report
is not a fair and accurate representation of the proceedings or meetings.” Id. at 331.
We review a district court’s order to grant a new trial for an abuse of discretion.
Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990). But a
grant of a new trial “based on an error of law” is reviewed de novo. Id. Whether the fair
and accurate reporting privilege applies here is a question of law that we review de novo.
See Minke v. City of Minneapolis, 845 N.W.2d 179, 182 (Minn. 2014); Moreno,
610 N.W.2d at 328.
Larson challenges the court of appeals’ conclusion that the fair and accurate
reporting privilege applies to the news reports about the information communicated by the
law enforcement officers at the press conference and in the news release. He and
respondents dispute whether our decision in Moreno v. Crookston Times Printing Co.,
610 N.W.2d 321 (Minn. 2000), supports extending the fair and accurate reporting privilege
to official law enforcement news conferences and official press releases, an issue of first
impression in Minnesota. For the reasons stated below, we conclude that the principles
recognized in Moreno and the values underlying the First Amendment warrant applying
the fair and accurate reporting privilege to the circumstances presented here.
Moreno extended the fair and accurate reporting privilege to “the accurate and
complete report or a fair abridgement of events that are part of the regular business of a
city council meeting.” 610 N.W.2d at 334. Before Moreno, the privilege had been
recognized to protect reports of judicial proceedings, Nixon v. Dispatch Printing Co.,
16
112 N.W. 258, 258–59 (Minn. 1907), but Moreno was the first case to apply the privilege
to reports about legislative proceedings, 610 N.W.2d at 332.
In Moreno, during the public comment portion of a city council meeting, a citizen
asked the council to “stop Officer Moreno from dealing drugs out of his Police car.”
610 N.W.2d at 323. The Crookston newspaper reported the accusation in an article, as well
as the police chief’s response stating that the department “would be remiss” not to follow
up on the accusation, but denying rumors that an officer had been arrested. Id. at 324. The
paper also relayed details from its own investigation, including references to the citizen,
which we concluded “could be interpreted as commenting on his ‘veracity or integrity.’ ”
Id. at 324, 334. The police officer sued the newspaper for defamation, claiming the entire
article to be defamatory. Id. at 325. Because the record did “not permit us to determine as
a matter of law whether the material in the Times’ article that reported events other than
those of the city council meeting conveyed a defamatory impression,” we remanded the
case to the district court for further determination of this issue. Id. at 334.
In considering whether the privilege applied to the newspaper article, we noted that,
as a matter of policy, the privilege exists because “the public interest is served by the fair
and accurate dissemination of information concerning the events of public proceedings.”
Id. at 332. In particular, we found the “articulation of the common law on the fair and
accurate reporting privilege” in section 611 of the Restatement (Second) of Torts to be
“persuasive.” Id. Section 611 provides, “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
17
or a fair abridgement of the occurrence reported.” Restatement (Second) of Torts § 611
(Am. Law Inst. 1975).
In Moreno, we further explained that the fair and accurate reporting privilege is
based on two principles. “First, because the meeting was public, a fair and accurate report
would simply relay information to the reader that she would have seen or heard herself
were she present at the meeting.” 6 610 N.W.2d at 331 (citing W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 115 (5th ed. 1984)) . “The second principle is
the ‘obvious public interest in having public affairs made known to all.’ ” Id. (quoting
Prosser and Keeton on Torts, supra, § 115). The public’s interest in receiving information
provided by the government about important matters, and in knowing what public officials
are doing, is a weighty one. See Sack on Defamation, supra, § 7.3.5[B][2].
Moreno further noted that the Legislature, in the context of criminal defamation,
enacted a privilege for “a fair and true report or a fair summary of any judicial, legislative
or other public or official proceedings.” Minn. Stat. § 609.765, subd. 3(3) (2018), cited in
Moreno, 610 N.W.2d at 327 n.3. This statutory reference to “other public or official
proceedings” shows legislative support for applying the civil version of the reporting
privilege beyond the previously recognized judicial and legislative contexts to the specific
law enforcement context present in this case. See Moreno, 610 N.W.2d at 333.

6 This “agency” rationale recognizes that when a person accurately reports
information conveyed in an official press conference, she essentially stands in for the
public at large. See generally Sack on Defamation, supra, § 7:3.5[B][2] (describing agency
rationale).
18
The principles articulated in Moreno convince us to extend the privilege’s
protections to the media reporting at issue here. Accordingly, we hold that the fair and
accurate reporting privilege protects news reports that accurately and fairly summari ze
statements about a matter of public concern made by law enforcement officers during an
official press conference and in an official news release. As in Moreno, we take an
incremental approach confined to the “legal questions presented by the facts of this case
and made within the context of our own common law.” 610 N.W.2d at 332. And following
Moreno, we find the policy objectives of the Restatement to be persuasive—that the public
interest is served by the fair and accurate dissemination of information concerning the
events of public or official actions or proceedings—even though we do not adopt the
Restatement in its entirety. See Moreno, 610 N.W.2d at 332.7
Analyzing these objectives here, we first conclude that the press conference and
press release were public. The event was televised and the press release was posted online.
A representative from the Bureau of Criminal Apprehension testified at trial that the very
“purpose of the news conference was to provide information to the public and to the media
to provide to the public.” Doubtless, the corresponding press release was issued for the
same purpose. Applying the privilege here fits neatly with the privilege’s “agency
principle”: “because the meeting was public, a fair and accurate report would simply relay
information to the reader that she would have seen or heard herself were she present at the

7 Contrary to the dissent’s fears, this rule of law is not a “wholesale adoption” of
section 611 or an “unreasonably broad” rule. The dissent’s characterization of our decision
mistakes our articulation of the rationale for the fair and accurate reporting privilege for
the rule of law that we announce.
19
meeting.” Moreno, 610 N.W.2d at 331; see also Restatement (Second) of Torts § 611
cmt. i.
Larson contests this conclusion, arguing that the press conference was not “public”
because only the media were invited and the public was not given “advance notice” that
the meeting would occur. This view of what proceedings are “public” is far too narrow.
The clear purpose of the press conference was to convey information to the community,
and the community was able to view the press conference live on television or through the
subsequent media coverage. In every practical sense, the press conference was “open to
the public.” Restatement (Second) of Torts § 611.
Larson nonetheless argues that, even if public, extending the privilege to media
“summaries” of a press conference does not align with the privilege’s agency principle.
See Moreno, 610 N.W.2d at 331. Moreno squarely forecloses this argument because we
recognized there that when a proceeding is protected by the privilege, the protection
extends to any “fair abridgement of events that are part of the regular business of ” that
proceeding. Id. at 334. Larson’s argument is also contradicted by the criminal defamation
privilege, which expressly protects “fair summar[ies]” of any public or official proceeding.
Minn. Stat. § 609.765, subd. 3(3). Allowing the press some leeway in its depiction and
reporting of public events is also supported by the principles of the First Amendment and
sound public policy . As the Supreme Court has stated, “in 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 him in
20
convenient form the facts of those operations. ” Cox Broad. Corp. v. Cohn, 420 U.S. 469,
491 (1975).
To be sure, the media’s reporting of an event may be an imperfect proxy for
first-hand experience. But the privilege ensures that the media’s distillation of an event is
not too imprecise ; a plaintiff can still defeat the privilege’s protection by demonstrating
that the report was not an “accurate and comp lete report or a fair abridgement” of the
proceeding. Moreno, 610 N.W.2d at 334.
Second, the press conference and press release involved a “matter of public
concern.” Id. at 331 (quoting Restatement (Second) of Torts § 611). Speech on matters of
public concern “occupies the highest rung of the hierarchy of First Amendment values, and
is entitled to special protection.” Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 875
(Minn. 2019) (quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).
Here, the police statements involved the sudden slaying of a community police
officer, which Larson and the dissent agree is a matter of public concern. The citizens of
Cold Spring and surrounding communities had a great need to be informed about matters
affecting their safety and their ability to go about their daily activities without fear. And
under some circumstances, such as when a suspected criminal remains at large, it is
important for the public to be so informed and for the government to be able to caution the
public and solicit pertinent information.
The media’s reports about the conduct of the law enforcement agencies in
investigating a matter of public concern promote key values of transparency and
accountability. These news reports not only facilitate communication between state
21
officials and the public that they serve, but they also allow the public to assess the quality
of the state and local officials’ response to a public safety emergency. See Johnson v.
Dirkswager, 315 N.W.2d 215, 220 (Minn. 1982) (according an absolute privilege to a
cabinet-level official, reasoning that “the purpose of the privilege is not so much to protect
public officials but to promote the public good, i.e., to keep the public informed of the
public’s business”). The privilege’s “second principle”—the “ ‘obvious public interest in
having public affairs made known to all’ ”—is certainly met here. Moreno, 610 N.W.2d
at 331 (quoting Prosser and Keeton on Torts, supra, § 115).
Although the dissent rightly agrees that “the murder of a police officer and the
expenditure of public funds to investigate that crime are a matter of public concern,” the
dissent believes that the identity of the person who is the focus of the investigation “cannot
be said to be of sufficient public concern” for the privilege to apply. The dissent opines
instead that the police should simply inform the public “that a suspect is in custody or that
they have no reason to believe that anyone else is in danger.” Notably, however, the fair
and accurate reporting privilege focuses on the reporting of what the police say —it does
not control the substance of what the police say at an official press conference or in an
official press release. Moreno specifically instructs that “the report must be either an
accurate and complete report of events at the proceeding or a fair abridgment thereof.”
610 N.W.2d at 331–32.
The dissent’s limitation would force the press to make quick, ad hoc determinations
about which public law enforcement statements to omit from live broadcasts, rebroadcasts,
and reporting because they are not “of sufficient public concern” for the privilege to apply,
22
while at the same time making sure that an abridged summary of what occurred at the press
conference is “fai r.” And when the state does announce a criminal investigation, the
dissent would place the onus of liability for a potentially false accusation not just on the
original speaker —here, the state by way of its law enforcement officer s—but on the
media.8
We see little sense in that rule. A rule that places defamation liability on a party
that has no control over the original message cannot deter the conduct that defamation law
seeks to prevent.9
Third, reports about the press conference and press release are covered by the
privilege’s application to “an official action or proceeding.” Moreno, 610 N.W.2d at 331.
(quoting Restatement (Second) of Torts § 611). The press conference was organized by
the leaders of law enforcement agencies, in the context of their official duties, to inform
the public of the investigation. Although not every statement made by a law enforcement
officer to the press is an official action, the statements made here during a planned, formal

8 The dissent attempts to lessen the damage that its rule would inflict on the media by
noting that the media would have protection from liability under the negligence or
actual-malice standards of care. These protections, however, are cold comfort against the
heavy costs of litigation. Such costs, we have recognized, risk rendering the media
“ineffective as guardians of the public weal by deterring investigation of controversial
subjects or even official misconduct.” Jadwin v. Minneapolis Star & Tribune Co.,
367 N.W.2d 476, 491 n.19 (Minn. 1985).

9 The dissent notes in a footnote the various laws and procedures governing the
behavior of law enforcement agencies. We agree that these provisions are important
safeguards. The presence of these protections substantially decreases the odds that a law
enforcement officer in an official press conference will purposely or carelessly defame
someone.
23
press conference , to convey information about an ongoing criminal investigation, were
official actions that were part of an official proceeding and subject to the privilege. See
Restatement (Second) of Torts § 611 cmt. d; see also Jones v. Taibbi, 512 N.E.2d 260, 267
(Mass. 1987) (noting that defendants may be privileged to report allegations if they “were
made public as part of an official statement by the [Los Angeles Police Department]”);
Wright v. Grove Sun Newspaper Co., 873 P.2d 983, 985, 988 (Okla. 1994) (concluding that
a press conference held by a district attorney to distribute information about a drug
investigation was “official because [it] concern[s] the investigative function of the office”).
These statements are in stark contrast to informal interviews or private conversations with
arresting officers or investigators, which are neither official actions or proceedings nor
open to the public.10
Larson proposes that for an action or proceeding to be “official” it must be
“recurring” and “essential to democracy.” He also asserts that “official” proceedings must
provide an opportunity for “both sides to be heard” and result in an “official record.”
These criteria are unsupported by precedent, and Larson fails to explain how they
serve the interests advanced by the fair and accurate reporting privilege. In Moreno, for

10 For example, our decision in Carradine v. State concerned statements that a state
trooper made in an arrest report and in response to informal press inquiries related to the
arrest report. 511 N.W.2d 733, 736 (Minn. 1994). In determining when an absolute
privilege applied, we distinguished between those statements made by an officer in “the
performance of his function as an officer” and those statements that were “not at all
essential to the officer’s performance of his duties as an officer.” Id. at 737. Moreover,
Carradine suggests that the law enforcement officer s here are at least protected by a
qualified privilege. Id. at 737 n.3. Absent the fair and accurate reporting privilege,
however, the media reporting their statements would have less protection from liability
than the original speaker. Our decision avoids this inconsistent result.
24
example, the citizen’s accusations against the officer were prime examples of ad hoc or
impromptu public statements, and the officer certainly had no immediate opportunity to
rebut the citizen’s accusations. 610 N.W.2d at 324. And even assuming that the privilege
requires the proceeding to be “essential to democracy,” a government-sponsored press
conference and press release concerning the exercise of police power undoubtedly
qualifies. See Neb . Press Ass’n v. Stuart, 427 U.S. 539, 587 (1976) (Brennan, J.,
concurring) (“Commentary and reporting on the criminal justice system is at the core of
First Amendment values, for the operation and integrity of that system is of crucial import
to citizens concerned with the administration of government.”).
For these reasons, we conclude that the statements made here during a planned,
formal, press conference, to convey information about an ongoing criminal investigation
of public interest, were official actions that were part of an official proceeding and the
reports from that proceeding are subject to the privilege.
The dissent claims that our holding conflicts with Nixon. But , as Moreno
recognized, Nixon provides little guidance because “we did not discuss the nature and
scope of the privilege” in that case “nor did we discuss its applications to other public
proceedings.” Moreno, 610 N.W.2d at 331. And Nixon is distinguishable factually. There,
the source of the defamation was a private party, who made defamatory statements about
another private party in a legal complaint filed in district court, which were then reported
by a newspaper. 112 N.W. at 258. Here, the source of the defamatory statements was not
a private party, but government officials who held a press conference to inform the public
about an ongoing criminal investigation. Unlike Nixon, the news reports here “serve the
25
administration of justice” and were a “legitimate object of public interest” because the
statements were made by law enforcement officials in the performance of their duties. Id.
Equally important, as we recognized in Moreno, Nixon was “decided nearly 60 years
before the Supreme Court articulated the First Amendment implications of defamation
sanctions” in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Moreno, 610 N.W.2d
at 330. And Nixon was also decided well before the Minnesota Rules of Civil Procedure—
and its procedural safeguards against frivolous complaints—were enacted. 11
Larson further maintains, as the district court found in its post-trial order granting a
new trial, that the privilege must be limited to reporting upon the fact of arrest “until
criminal charges are filed, and judicial control over the case is exercised.” He and the
dissent assert support for this limitation in comment (h) to section 611 of the Restatement,
which states:
An arrest by an officer is an official action, and a report of the fact of the
arrest or of the charge of crime made by the officer in making or returning
the arrest is therefore within the conditional privilege covered by this
Section. On the other hand statements made by the police or by the
complainant or other witnesses or by the prosecuting attorney as to the facts
of the case or the evidence expected to be given are not yet part of the judicial
proceeding or of the arrest itself and are not privileged under this Section.

Restatement (Second) of Torts § 611 cmt. h.

11 The Rules of Civil Procedure deter a party from filing complaints to defame another
party. See Minn. R. Civ. P. 11.02 (prohibiting a party or its attorney from presenting a
pleading “for any improper purpose” or that lacks evidentiary support); Minn. R. Civ. P.
11.03 (allowing a court to impose sanctions for violating Rule 11.02); see also Sack on
Defamation, supra, § 7:3.5 (noting that under the “modern” rule “[t]he damage resulting
from use of the filing of a complaint or petition to disseminate a libel, it is argued, is better
addressed by aggressive pursuit of sanctions against attorneys and parties who make
allegations in bad faith or without support than permitting redress against a republisher”).
26
Reliance on comment (h) is misplaced. To be sure, we cited comment (h) in
Moreno, but we did so in a section of the opinion that described how the entirety of
section 611 of the Restatement (Second) of Torts functions. 610 N.W.2d at 332. We noted
that the broad principles in section 611 are narrowed in application, and cited comment (h)
in explaining that the fair and accurate reporting privilege can be defeated when the reporter
makes “additional comments, not part of the meeting, that would convey a defamatory
impression or ‘impute corrupt motives to anyone, [or] . . . indict expressly or by innuendo
the veracity or integrity of any of the parties.’ ” Id. at 332 (emphasis added) (quoting
Restatement (Second) of Torts § 611 cmt. f).12
More importantly, the assertion by Larson and the dissent that comment (h) means
that the privilege is limited to the fact of arrest or criminal charge is flatly contradicted by
Moreno, which involved reporting on allegations of criminal activity before any arrest
occurred. There, we held that the fair and accurate reporting privilege applied to a
newspaper article about a citizen’s accusation of specific criminal activity by a police
officer even though the officer had not been arrested and no judicial proceeding was
underway. Id. at 334. The news report was privileged because it relayed public comments

12 Moreno did not adopt section 611 or any of the comments specifically. 610 N.W.2d
at 332. To the extent that comment (h) is persuasive, we agree with the court of appeals’
observation that it is best understood “to mean that the privilege does not apply to unofficial
police comments that are not a part of an official meeting or statement by law
enforcement.” Larson, 915 N.W.2d at 495. This view harmonizes, in the law enforcement
context, comment (h) with comment (i), entitled “[P] ublic meetings.” According to
comment (i), the privilege “extends to a report of any meeting, assembly or gathering that
is open to the general public and is held for the purpose of discussing or otherwise dealing
with matters of public concern.” Restatement (Second) of Torts § 611 cmt. i. The press
conference here falls squarely within this description.
27
made at a city council meeting. Id. The thrust of Moreno is that, if a proceeding is covered
by the privilege because it is an official proceeding open to the public, the application of
the privilege does not depend upon the content of what was said. Here, rather than a city
council meeting, the official proceeding was a law enforcement press conference.
Finally, we are unpersuaded by the argument that extending the privilege to
reporting of official law enforcement press conferences and press releases “will have a
substantial likelihood of materially prejudicing a jury trial in a pending criminal matter.”
Minn. R. Prof. Conduct 3.6; see also Minn. R. Prof. Conduct 3.8 (requiring prosecutors to
refrain from “making an extrajudicial statement that the prosecutor would be prohibited
from making under Rule 3.6”). Although we know that tension may exist in some cases
between protecting freedom of the press and preserving an unbiased jury pool, we cannot
conclude that extending ethical rules for lawyers to non -lawyer public officials is
appropriate, given the public interest in “the fair and accurate dissemination of information
concerning the events of public proceedings.” Moreno, 610 N.W.2d at 332.
Further, procedural mechanisms, such as a change of venue or voir dire, already
exist to protect a defendant’s rights. See Minn. R. Crim. P. 24.03, subd. 1 (change of
venue); Minn. R. Crim. P. 26.02, subd. 4 (voir dire examination); see also Stuart, 427 U.S.
at 563–64 (acknowledging voir dire as a method to preserve the defendant’s right to a fair
trial even when intense press coverage is present); Sheppard v. Maxwell, 384 U.S. 333,
350, 353 (1966) (implicitly recognizing that a change of venue may protect a defendant’s
right to a fair trial and noting that “where there was no threat or menace to the integrity of
the trial, we have consistently required that the press have a free hand, even though we
28
sometimes deplored its sensationalism” (citations omitted) (internal quotation marks
omitted)). And the passage of time alleviates the effect of potentially prejudicial comments
about a criminal case made by a government official. See State v. Parker, 901 N.W.2d
917, 921–22, 926–27 (Minn. 2017) (concluding that comments made by a county attorney
at a press conference more than a year before trial did not affect the defendant’s substantial
rights because the jurors were not aware of the statements).
Decisions from other jurisdictions provide further support for our decision to extend
the fair and accurate reporting privilege to reports of law enforcement press conferences
and press releases. According to one judicial tally in 2010, 47 states recognize the fair and
accurate reporting privilege in some form or another. Salzano v. N. J. Media Grp., Inc. ,
993 A.2d 778, 787 n.2 (N.J. 2010) (listing state statutes and decisions recognizing the fair
and accurate reporting privilege). We are far from an outlier in recognizing that the fair
and accurate reporting privilege extends to press conferences held by law enforcement
officers.13

13 See Kilgore v. Younger, 640 P.2d 793, 796–97 (Cal. 1982) (holding that the
privilege protects reports based on a press conference held by the attorney general in a
legally convened public meeting); Jones, 512 N.E.2d at 266–67 (concluding that the fair
and accurate reporting privilege protects news reports of murder allegations, later proven
to be false, made by the Los Angeles P olice Chief at a press conference); Thomas v. Tel.
Publ’g Co., 929 A.2d 993, 1010 (N.H. 2007) (stating that “[ t]he privilege also protects
reports that meet the accuracy requirements . . . and are based upon press conferences,
interviews with a police chief, or other types of official ‘conversations’ ” (citation
omitted)); Wright, 873 P.2d at 989–90 (concluding that a press conference held by a district
attorney was an official public occasion subject to the privilege); see also Lee v. TMZ
Prods. Inc., 710 Fed. Appx. 551, 558–59 (3d Cir. 2017) (applying New Jersey’s version of
the privilege to news reports based on a press conference and news release of the New
York Attorney General).
29
We acknowledge that balancing the public’s right to know with a defamed person’s
interest in protecting his reputation is a “difficult and sensitive task.” Johnson, 315 N.W.2d
at 221. Personal reputation is “ ‘highly worthy of protection,’ ” but “at the same time,
courts cannot offer recourse for injury to reputation at the cost of chilling speech on matters
of public concern.” Maethner, 929 N.W.2d at 875 (quoting Jadwin v. Minneapolis Star &
Tribune Co., 367 N.W.2d 476, 491 (Minn. 1985)).
For the policy reasons set forth in Moreno, and based upon the values underlying
the First Amendment, we conclude that the balance here weighs in favor of applying the
fair and accurate reporting privilege to news reports of information disseminated by law
enforcement officers about a matter of public concern at an official press conference or in
an official press release. Accordingly, the district court erred when it determined, during
trial and in its post-trial order, that the fair and accurate reporting privilege does not apply
to the statements at issue in this case.
II.
Having concluded that the fair and accurate reporting privilege applies here, we next
consider Larson’s argument that the privilege has been abused or “defeated.” Moreno v.
Crookston Times Printing Co., 610 N.W.2d 321, 333 (Minn. 2000). Once a defendant has
demonstrated the existence of a qualified privilege, “the burden shifts to plaintiff to prove
that the privilege has been abused, which is generally a question for the jury .” Stuempges
v. Parke, Davis & Co., 297 N.W.2d 252, 257 (Minn. 1980).
As we explained in Moreno, the privilege “is defeated by a showing that the report
is not a fair and accurate report” of the public proceeding. 610 N.W.2d at 333. A report is
30
fair and accurate if the report “simply relay [s] information to the reader that she would
have seen or heard herself were she present ” at the proceeding. Id. at 331. The report
“cannot be edited in such a manner as to misrepresent the proceeding and become
misleading.” Id. at 332 (citing Restatement (Second) of Torts § 611 cmt. f).
Because the district court incorrectly determined that the fair and accurate reporting
privilege did not apply to the news reports here, the district court did not instruct the jury
on the factors to consider in deciding whether the privilege had been defeated. Instead, the
district court instructed the jury on general principles of defamation, including the element
of falsity. The district court used the definition of “false” from the model jury instructions:
A statement or communication is false if it is not substantially accurate.
Substantial accuracy does not require every word to be true. A statement or
communication is substantially accurate if its substance or gist is true.

4 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Civil, CIVJIG
50.25 (6th ed. 2014). But the district court also included language about context in this
instruction: “In determining whether a statement was false, the words must be construed
as a whole without taking any word or phrase out of context. The meaning of the statement
must be construed in the context of the article or broadcast as a whole.”
Larson contends that even if the fair and accurate reporting privilege applies here,
the privilege was “lost.” He argues that the jury instructions did not accurately convey the
concepts of fairness and substantial accuracy. He further argues that the jury never had a
chance to decide whether the statements in the news reports “produced the same effect on
the mind of the recipient which the precise truth would have produced.” Respondents, by
contrast, contend that the statements in the news reports were “fair and accurate as a matter
31
of law.” According to respondents, there is “no need to turn to the jury verdict” because
the news reports conveyed the “gist” or “sting” of the message conveyed at the press
conference and by the press release. Alternatively, respondents urge us to rely upon the
jury’s verdict that the statements were not false to conclude that the fair and accurate
reporting privilege was not defeated for lack of substantial accuracy.
“The district court has broad discretion in determining jury instructions, and we will
not reverse where jury instructions ‘overall fairly and correctly state the applicable law.’ ”
Stewart v. Koenig, 783 N.W.2d 164, 166 (Minn. 2010) (quoting Hilligoss v. Cargill, Inc.,
649 N.W.2d 142, 147 (Minn. 2002)). A new trial is required, however, if an erroneous
instruction “destroys the substantial correctness of the charge as a whole, causes a
miscarriage of justice, or results in substantial prejudice.” Domagala v. Rolland ,
805 N.W.2d 14, 31 (Minn. 2011). A jury instruction is prejud icial if the instruction is
misleading on a crucial element in a case and “would have c hanged the outcome of the
case.” Id. If we cannot determine the effect of an erroneous jury instruction, “we will give
the complainant the benefit of the doubt and grant a new trial.” Id.
The court of appeals determined that the district court erred by failing to use the fair
and accurate reporting privilege “as the starting point from which to analyze the falsity
instructions.” Larson, 915 N.W.2d at 498. Nonetheless, the court of appeals concluded
that “the district court’s falsity i nstruction did not destroy the ‘substantial correctness of
the charge as a whole.’ ” Id. at 499 (quoting Domagala, 805 N.W.2d at 31). The court of
appeals ultimately credited the jury’s finding that the statements were not false as resolving
32
the issue of whether the privilege was defeated. Id. at 499. The court of appeals therefore
concluded that the district court erred in granting Larson a new trial. Id. at 500.
We agree with respondents that, as a matter of law, statements 7 and 8 were fair and
accurate reports of the press conference and press release and, therefore, the privilege
applies. But f or the reasons that follow, we conclude that a new trial is required to
determine whether the fair and accurate reporting privilege was defeated for statements 1
through 5.
The question of whether a qualified privilege was defeated generally is a jury
question. Lewis, 389 N.W.2d at 890 (citing Restatement (Second) of Torts § 619 (Am.
Law Inst. 1975)). W hen more than one conclusion can be drawn from undisputed facts,
the question of substantial accuracy and f airness should go to the jury. See Utecht v.
Shopko Dep’t Store, 324 N.W.2d 652, 654 (Minn. 1982) . But the question of whether a
qualified privilege was defeated need not be submitted to the jury if “the facts are such that
only one conclusion can be reasonably drawn.” Restatement (Second) of Torts § 619 cmt.
b; cf. McKee, 825 N.W.2d at 730–31 (concluding that no genuine issue of material fact
existed as to the falsity of various statements in a defamation case that did not involve a
privilege and deciding substantial accuracy as a matter of law).
The district court instructed the jury here only on substantial accuracy, using the
model jury instruction on the falsity element of a defamation claim . But the focus in
determining whether the fair and accurate reporting privilege was defeated is not on “the
truth or falsity of the content of the defamatory statement,” but on “the accuracy with which
the statement is reported.” Moreno, 610 N.W.2d at 331 (emphasis added); see also KBMT
33
Operating Co. v. Toledo, 492 S.W.3d 710, 714 (Tex. 2016) (“When the privilege applies,
the gist of an allegedly defamatory newscast must be compared to a truthful report of the
official proceedings, not to the actual facts.”). This distinction matters because when the
privilege applies, the re-publisher is not liable if the statement is reported accurately and
fairly, even if the underlying statement is false. 14 As noted above, the fair and accurate

14 This distinction is why falsity -by-implication cases do not fit comfortably in the
context of the fair and accurate reporting privilege inquiry. The falsity -by-implication
doctrine instructs that even if a statement is true on its face, a defamation action may be
maintained if the implication of the statement is untrue. Lewis, 389 N.W.2d at 889 (holding
that a truth defense must “go to the underlying implication of the statement, at least where
the statement is more than a simple allegation”). Lewis illustrates the principle well. The
case involved employees claiming defamation under a compelled self -publication theory
because they were forced to tell prospective employers that they had been fired for gross
insubordination. Id. at 886. The employees asserted that the employer’s determination of
gross insubordination was a false pretext for justifying their termination and that they had,
in fact, not been grossly insubordinate. See id. at 888. We held that the employees’
defamation claims could proceed because the jury found that being forced to repeat to
prospective employers a literally true statement—“I was fired for gross insubordination”—
implied a false fact that the employee had actually been grossly insubordinate. Id. at 889.
In other words, the employees’ defamation claims survived because the underlying fact
implied by the statement—that the employees were grossly insubordinate—was untrue.
The whole point of the qualified fair and accurate reporting privilege, however, is
that in limited circumstances a report about another person’s statement is not subject to
defamation liability —even if the facts underlying the statement are not true. The
distinction is made clear if we assume momentarily that the qualified fair and accurate
reporting privilege applied to a newspaper report that the employer in Lewis stated that the
employees had been fired for gross insubordination. (In reality, of course, the privilege
would not apply because the report about the Lewis employees is not a report on a public
proceeding.) Under the fair and accurate reporting privilege, the newspaper report would
be protected from defamation liability even if the employees proved that they did not
commit gross insubordination: the opposite of the result in Lewis. Id. Stated another way,
if the falsity -by-implication principle were transferred whole-cloth into the fair and
accurate reporting privilege inquiry, that principle would effectively swallow the privilege
in every case by requiring the defendant to prove that any reported statement made by
others in the proceeding was substantially accurate.
This conclusion does not mean, however, that the implications of a report about
another’s statement are irrelevant to our analysis under the fair and accurate reporting
34
reporting privilege is an exception to the common law republication rule, which provides
that a speaker who knows or should know that a statement is false and defamatory but
repeats it nonetheless is equally as liable for the defamation as the original speaker. See
Church of Scientology of Minn. v. Minn. State Med. Ass’n Found., 264 N.W.2d 152, 156
(Minn. 1978).
The court of appeals concluded that the district court’s falsity instruction sufficiently
instructed the jury “on the substantial accuracy of the news report.” Larson, 915 N.W.2d
at 499. The court therefore found that the district court erred in ordering a new trial. Id. at
498–500.
We disagree that the jury instructions were sufficient. We conclude that the district
court’s instruction on falsity was an incomplete instruction regarding the factors that a jury
should consider in determining whether the fair and accurate reporting privilege was
defeated. To be sure, the district court did instruct the jury on the “substantial accuracy”
standard that applies in deciding the falsity element in a general defamation case not
involving a privilege. And the substantial accuracy standard is relevant to the jury’s inquiry
in determining whether the fair and accurate reporting privilege was defeated. A report
may be substantially accurate even if the report is not “e xact in every immaterial detail.”

privilege. As discussed elsewhere in the opinion, if a report implies a meaning that is
different from the meaning conveyed by the reported-upon statement, the qualified fair and
accurate reporting privilege would not protect the report. For example, if the news reports
here omitted or added crucial facts in a manner that conveyed an erroneous impression of
the information conveyed at the press conference to the listener or reader, the privilege may
be defeated. See Moreno, 610 N.W.2d at 333 (stating that fair and accurate reporting
privilege can be defeated if the report contains “additional contextual material . . . that
conveys a defamatory impression”).
35
Restatement (Second) of Torts § 611 cmt. f. In other words, we may overlook only minor
inaccuracies in the report for the privilege to be preserved; the report must “convey[] to the
persons who read it a substantially correct account of the proceedings.” Id.
Moreover, to be protected by the privilege, “[n]ot only must the report be accurate,
but it must be fair.” Id. A news report may not be fair if the report omits or misplaces law
enforcement statements or adds contextual material in a way that changes the meaning of
the statements. See Moreno, 610 N.W.2d at 333. Our recognition of the privilege rests in
part on the principle that a fair and accurate report of statements made by law enforcement
officers “simply relay [s] information” that individual s would have heard or read
themselves if they had actually attended the press conference or read the press release. Id.
at 331.
In other words, a news report is fair and accurate if the report has “the same effect
on the mind ” of the listener or read er as that which attending the press conference or
reading the press release would have had. 15 McKee , 825 N.W.2d at 730; see Masson v.
New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991) (holding that a “statement is not
considered false unless it ‘would have a different effect on the mind of the reader from that

15 This same principle applies in defamation actions that do not involve the assertion
of a privilege. In McKee, we articulated a test for falsity that incorporated this principle—
that “[a] statement is substantially true if it would have the same eff ect on the mind of the
reader or listener as that which the pleaded truth would have produced.” 825 N.W.2d at
730 (citing Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991)). Because the
jury may not be familiar with the meaning of the term “gist,” instructing a jury on falsity
may involve including a clarifying instruction that the statement is substantially true if it
would have the same effect on the mind of the reader or listener as that which the original
statement would have produced.
36
which the pleaded truth would have produced’ ” (quoting R. Sack, Libel, Slander, and
Related Problems 138 (1980))). That is, the substance of the meaning of the report must
be the same—must communicate the same notion—as the underlying statement. McKee ,
825 N.W.2d at 730; Restatement (Second) of Torts § 611 cmt. f.
Therefore, f or a news report to be protected by the fair and accurate reporting
privilege, the media cannot edit or present the law enforcement statements in a way that
makes the report misleading. Moreno, 610 N.W.2d at 332. Specifically, the privilege can
be defeated if the report is not “a fair abridgment” of events at the proceeding, id. at 331,
or the report contains “additional contextual material . . . that conveys a defamatory
impression or comments on the veracity or integrity of any party,” id. at 333. This
inquiry—an essential component of determining if the fair and accurate reporting privilege
protects a report—was not included in the jury instructions and special verdict form used
here.
Because the district court concluded that the fair and accurate reporting privilege
did not apply here, the district court did not instruct the jury on the factors to consider in
determining whether the statements were fair and accurate, and the special verdict form
did not ask the jury to decide whether the privilege had been defeated by reporting that was
not fair and accurate. We conclude that the jury instructions were incomplete and
potentially misleading and therefore did not “fairly and correctly state the applicable law.”
Hilligoss, 649 N.W.2d at 147; see also Domagala, 805 N.W.2d at 31.
The district court should have instructed th e jury to consider whether the news
reports were fair and accurate accounts of the law enforcement statements. The crucial
37
inquiry for the jury is whether the statements in the news reports communicated to the
viewer or reader the same meaning that someone who actually attended the press
conference or read the press release would have taken away from the press conference or
press release.16 Especially in a case involving the fair and accurate reporting privilege, this
key question, modified to fit the circumstances here, best encapsulates the issue for the
jury: Did the reported statements produce the same effect on the mind of the listener or
the reader as the oral and written statements of the law enforcement officers at the press
conference or in the press release? If the court had framed the issue this way, the jury
would have clearly understood that its charge was to determine the fairness and accuracy
of the reported statements and not whether the underlying substance of those statements—
that Larson killed Officer Decker —was true or false. The district court’s instructions did
not make this distinction clear and therefore were misleading as to a crucial inquiry in this
case. See Domagala, 805 N.W.2d at 31.
Because the district court did not adequately instruct the jury on the fairness and
accuracy inquiry, we conclude that the error was potentially prejudicial to Larson and that

16 Respondents, in fact, recommended to the district court that the jury instructions and
the proposed special verdict form include this key concept. One proposed instruction
stated, “A report is considered substantially accurate, and a fair report if its gist or sting is
true, meaning that it produces the same effect on the mind of the recipient[] which the truth
would have produced. ” (Emphasis added.) Similarly, respondents proposed that the
special verdict form list every statement and then ask, as the first question, “Did the
statement produce the same effect on the mind of the recipients as the written and/or oral
statements of law enforcement?”
38
he is entitled to a new trial so that a jury can determine whether the privilege was defeated
concerning statements 1 through 5:
1. Police say that man—identified as 34-year-old Ryan Larson—ambushed
officer Decker and shot him twice—killing him.
2. Investigators say 34- year-old Ryan Larson ambushed the officer,
shooting him twice. Larson is in custody.
3. He [Officer Decker] was the good guy last night going to check on
someone who needed help. That someone was 34-year-old Ryan Larson
who investigators say opened fire on Officer Tom Decker for no reason
anyone can fathom.
4. Investigators believe he fired two shots into Cold Spring Police Officer
Tom Decker, causing his death.
5. Police say Larson is responsible for the shooting death of Cold
Spring-Richmond Police Officer Tom Decker.
Larson’s arguments on appeal go to the question of whether the privilege was
defeated. For example, he argues that the news reports omitted certain fact s and did not
appropriately convey that the investigation was in its very early stages, as law enforcement
officers stated at the press conference and in the press release. The district court agreed
that, if the privilege did apply here, the news reports “created the impression of finality to
the investigation and certainty to the idea that Mr. Larson had killed Officer Decker,”
which was “not present” in the press conference or press release. According to the district
court, the news reports did not give the impression that the investigation was in a
preliminary stage and that the investigation was ongoing; rather, the effect of each of the
statements was that “police had their man” and “[t]he investigation was over.” In sum, the
district court determined that each of the “statements produced a harsher effect or sting on
the mind of the recipients than the precise truth would have produced.”
39
But this is a question for the jury to decide. If the jury had been adequately
instructed on the fairness and accuracy inquiry, the jury could have reasonably concluded
that the privilege was defeated because the statements in the news reports did not convey
the same meaning as the statements at the press conference and in the press release.
Because the erroneous jury instructions possibly prejudiced Larson, he is entitled to a new
trial17 on statements 1 through 5. See George v. Estate of Baker, 724 N.W.2d 1, 10 (Minn.
2006) (explaining that a jury instruction is prejudicial if the erroneous instruction could
have influenced the jury’s analysis).
We conclude, however, that only one conclusion can be drawn regarding statements
7 and 8: they were fair and accurate as a matter of law. These statements are:
7. Ryan Larson, the man accused of killing Officer Decker, could be
charged as early as Monday.
8. Man faces murder charge.

17 The dissent would usurp the role of the jury and hold that the privilege was defeated
because these statements were “false as a matter of law.” We have long held that “the truth
or falsity of a statement is inherently within the province of the jury.” Lewis, 389 N.W.2d
at 889. Even if there is “no disputed material fact about the content of the press conference,
the broadcast, or the newspaper article,” as the dissent states, we cannot decide falsity as a
matter of law if a jury can draw different conclusions from undisputed f acts. See McKee,
825 N.W.2d at 730 (“As a general rule, the truth or falsity of a statement is a question for
the jury.”). “Only where the facts are undisputed and reasonable minds can draw but one
conclusion from them does the question for determination become one of law for the
court.” Conover v. N. States Power Co., 313 N.W.2d 397, 401 (Minn. 1981). Regarding
statements 1 through 5, a new trial is required because a jury might reasonably draw
different conclusions regarding the substantial accuracy and fairness of any one of the
statements.
40
Larson asserts that these statements were not accurate because the effect of each statement
“would produce on the mind of the recipient” that he “had been formally charged with
murder.” We disagree.
The use of the term “accused” in statement 7—“Ryan Larson, the man accused of
killing Officer Decker, could be charged as early as Monda y”—which was part of a
KARE 11 newscast, cannot reasonably be interpreted in the technical, legal sense as
meaning that Larson had already been charged with murder. The statement itself includes
the phrase “could be charged as early as Monday,” which clearly communicated that
Larson had not yet been formally charged. (Emphasis added.) Given the context of his
announced arrest, we conclude, as a matter of law, that this statement is protected by the
fair and accurate reporting privilege.18
Similarly, concerning statement 8—the headline in the St. Cloud Times “Man faces
murder charge”—the use of the word “faces” simply conveyed to the reader that Larson
had the prospec t of being charged in the future. See Webster’s Collegiate Dictionary
414−15 (10th ed. 1998) (defining “face” as “to have as a prospect”). Moreover, taking into
account the context, the article accompanying the headline clearly stated that Larson was

18 We note that some courts have held as a matter of law that the distinction between
“arrested” and “charged” is immaterial when applying the privilege. See Williams v.
WCAU-TV, 555 F. Supp. 198, 203–04 (E.D. Pa. 1983) (concluding that a statement made
during a broadcast that the plaintiff “will be charged for bank robbery,” even though he
was never charged, was substantially accurate because the plaintiff was arrested); Jones,
512 N.E.2d at 266 (concluding that “the report of the plaintiff’s arrest did not become
substantially inaccurate merely because the report incorrectly stated that the plaintiff had
been charged with murder” because “[a]lthough the plaintiff was not actually charged, the
impact of that statement did not create a substantially greater defamatory sting than an
accurate report that the plaintiff had only been booked on suspicion of murder”).
41
in the Stearns County Jail and “face[d] possible charges of second-degree murder.”
(Emphasis added.) Accordingly, we conclude, as a matter of law, that this statement is also
protected by the fair and accurate reporting privilege.
Therefore, we affirm the court of appeals’ decision regarding statements 7 and 8,
but reverse and remand for a new trial on whether the fair and accurate reporting privilege
has been defeated regarding statements 1 through 5.
III.
Finally, we consider whether a new trial is required concerning statement 6 and
statements 9 through 11, which were not reports of the law enforcement statements made
at the press conference or in the press release and, therefore, are not subject to the privilege.
The district court initially dismissed statements 9 through 11 from the case as not
actionable. Later, the district court reversed course and ordered a new trial on these
statements, concluding that it was error to dismiss the statements because a reasonable jury
could understand the statements as implying that Larson killed Officer Decker.
We review a district court’s order for a new trial for an abuse of discretion. Halla
Nursery, Inc., 454 N.W.2d at 910. But when an order for a new trial is based on a question
of law, we review the district court’s decision de novo. Stoebe v. Merastar Ins. Co.,
554 N.W.2d 733, 735 (Minn. 1996).
42
Here we consider the following statements:
6. [The officer’s mother] holds no ill-will against the man accused of killing
her son.19
9. His mind must have really been messed up to do something like that . I
know Tom would have forgave him.
10. He does not have an extensive criminal history, but was cited with
disorderly conduct in 2009. He was a second year machine tool student
at St. Cloud Tech. Larson is being held in the Stearns County Jail.
11. [She] said she came to the jail Tuesday because she had one thi ng she
wanted to say to Larson if she got to [sic] the chance to see him leave the
jail. “This isn’t over,” she said.
We must decide whether these statements can support a defam ation claim as a matter of
law.
Larson claims that each of these statements implied that he killed Officer Decker.
At common law, if a “ ‘defendant juxtaposes a series of facts so as to imply a defamatory
connection between them, or creates a defamatory implication by omitting facts, he may
be held responsible for the defamatory implication, unless it qualifies as an opinion, even
though the particular facts are correct.’ ” Diesen v. Hessburg, 455 N.W.2d 446, 450 (Minn.
1990) (emphasis added) (quoting Prosser and Keeton on Torts, supra, § 116 (5th ed. Supp.
1988)). “Whether defamatory meaning is conveyed depends upon how an ordinary person
understands the language used in the light of surrounding circumstances” and “the words

19 The court of appeals treated statement 6 as one of the statements protected by the
fair and accurate reporting privilege. See Larson, 915 N.W.2d at 500. But this statement
was not part of the report of statements made at the law enforcement press conference or
in the press release; rather, the statement related to an interview with Officer Decker’s
mother. The privilege does not apply to this statement.
43
must be construed as a whole without taking any word or phrase out of context.” McKee,
825 N.W.2d at 731 (citations omitted) (internal quotation marks omitted).
First, we consider statement 6—the statement that Officer Decker’s mother “holds
no ill-will against the man accused of killing her son.” This statement was made during a
KARE 11 broadcast as part of the description of the reporter’s interview with Officer
Decker’s mother. After the report on the interview, the segment cut back to the KARE 11
anchor, who then stated that “Ryan Larson, the man accused of killing Officer Decker,
could be charged as early as Monday.” The anchor’s statement is statement 7, which we
discussed above in connection with the fair and accurate reporting privilege. As we
concluded regarding statement 7, the word “accused” in statement 6, when considered in
the context of the news report, does not connote a formal legal charge of murder, as Larson
contends; in fact, the report makes clear that Larson had not yet been charged with a crime.
Further, the statement that the officer’s mother “holds no ill-will” is not capable of a
defamatory meaning. Therefore, we conclude that the defamation claim concerning
statement 6 fails as a matter of law.
Next, we consider statements 9 and 11, and conclude that these statements are
non-actionable opinion. The First Amendment protects opinion from defamation liability.
Diesen, 455 N.W.2d at 450 (citing Gertz v. Robert Welch, Inc. , 418 U.S. 323, 339 –40
(1974)). In assessing whether a statement is an opinion, we consider its “specificity and
verifiability, as well as [its] literary and public context.” Id. at 450. A statement that is
merely “rhetorical hyperbole,” moreover, is considered non- actionable. McKee,
825 N.W.2d at 733 (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20 (1990)).
44
Statement 9 was made by Officer Decker’s mother to a reporter and then broadcast
on KARE 11. In response to the reporter’s questions, Officer Decker’s mother said of the
suspect, “His mind must have really been messed up to do something like that. I know
Tom would have forgave him.” This statement speculates about the suspect’s state of mind
and further opines about how her dead son would have charitably forgiven his alleged
killer. In the context of the entire newscast, no ordinary listener would understand
statement 9 to be an assertion of fact, or to imply an assertion of fact, about Larson.
Statement 11 appeared in the St. Cloud Times and was made by the twin sister of
Officer Decker’s ex-wife, who had been asked for a reaction to the possibility that Larson
would be released from jail. Larson’s claim is based on the article’s statement that “[She]
said she came to the jail Tuesday because she had one thing she wanted to say to Larson if
she got to [sic] the chance to see him leave the jail. ‘This isn’t over,’ she said.” The full
context of the article makes clear, however, that these statements were not about Larson’s
guilt, but the speaker’s own worries. Immediately preceding the quoted passage, the article
states: “ ‘(The culprit) could be somebody in the crowd,’ [she] said.” She said “her sister
fears for the safety of her children because there are so many unknowns about what
happened or what led to the shooting.” Properly considered in its context, we fail to see
how statement 11 can be reasonably understood as anything other than opinion or
“rhetorical hyperbole.” See McKee, 825 N.W.2d at 733.
Finally, turning to statement 10, the statement was made by the KARE 11 anchor
and conveyed information about Lar son’s background, including his criminal history:
“[He] does not have an extensive criminal history, but was cited with disorderly conduct
45
in 2009. He was a second year machine tool student at St. Cloud Tech. Larson is being
held in Stearns County Jail.” The information about Larson’s criminal history is a matter
of public record, entitled to First Amendment protection. See Cox, 420 U.S. at 496; see
also Carradine v. State, 511 N.W.2d 733, 737 (Minn. 1994) (noting that an arrest report
“is a matter of public record available to the press”). His status as student was a true
statement. In addition to being public and true, statement 10 does not “juxtapose[] a series
of facts so as to imply a defamatory connection between them.” Diesen, 455 N.W.2d at
450. Because no implication of defamation arises from statement 10, Larson’s
defamation-by-implication claim fails.20
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals in part,
reverse in part, and remand to the district court for further proceedings consistent with this
opinion.
Affirmed in part, reversed in part, and remanded.

20 Given these conclusions, we need not consider the court of appeals’ conclusion that
Larson is barred from recovery on these statements under the incremental-harm doctrine.
Larson, 915 N.W.2d at 500. It is also unnecessary to consider respondents’ arguments
regarding the evidence of negligence and damages. The jury did not answer these questions
on the special verdict form, the district court concluded that a new trial on these issues was
necessary though for reasons different from those explained here, and the court of appeals
did not reach these issues. Id. Because a new trial must be held to determine whether the
privilege was defeated, that trial will also, if necessary, encompass issues of negligence
and damages.
C/D-1
C O N C U R R E N C E & D I S S E N T
ANDERSON, Justice (concurring in part, dissenting in part).
This case requires us to balance the tension between “free and open public discourse
and an individual’s right to compensation for harm to reputation.” Moreno v. Crookston
Times Printing Co., 610 N.W.2d 321, 329 (Minn. 2000). Although we have “long sought
to protect and enhance free and open discussion of public issues,” we have also recognized
that “personal reputation has been cherished as important and highly worthy of protection.”
Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 490–91 (Minn. 1985). We
have struck a balance between these two interests through a complex array of privileges
and shifting requirements for the elements of a prima facie defamation case. Id. at 480.
Because the court tips that balance too far here in favor of the press, effectively immunizing
the press from liability for falsely accusing a private citizen of murder, I respectfully
dissent.1
The facts of this case are not disputed. In 2012, Cold Spring police officer Tom
Decker was shot to death. Police arrested appellant Ryan Larson in connection with Officer
Decker’s death. But Larson was never charged with any crime and police later learned that
the real killer was somebody else.
Even though their investigation was in its early stages, police held a press
conference and issued a press release the day after the shooting, announcing that they had

1 I agree with the court’s conclusion that, because statements 9–11 fall outside the
scope of the privilege at issue here, they are not actionable as a matter of law. Thus, I join
in the court’s decision in that part of section III of the opinion that addresses statements
9−11.
C/D-2
arrested Larson. Respondents, through KARE 11 and the St. Cloud Times newspaper,
covered the press conference. KARE 11’s 6 p.m. newscast stated, among other challenged
statements, “Police say that . . . Ryan Larson . . . ambushed Officer Decker and shot him
twice—killing him.”
Larson sued respondents for defamation, identifying 11 different statements that he
contended were defamatory. In five of these statements, respondents reported that police
said or believed that Larson had killed Officer Decker.
Larson requested that the district court instruct the jury on defamation by
implication as follows: “A statement or communication is also false if the implication of
the statement is false.” 4 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction
Guides, Civil, CIVJIG 50.25 (6th ed. 2014) (hereinafter CIVJIG 50.25). The district court
denied this request.
The jury determined that the statements at issue were defamatory but not false. The
district court, however, granted Larson’s posttrial motion and held that the statements were
false as a matter of law because the implication of the statements —that Larson killed
Officer Decker—was false. The court also rejected respondents’ argument that the fair and
accurate reporting privilege immunized them from Larson’s defamation claim. Thus, the
district court determined that a new trial was required, to address the issues of negligence
and damages. The court of appeals reversed, holding that the fair and accurate reporting
C/D-3
privilege applied to 8 of the 11 statements cited by Larson in his complaint, and thus the
district court erred by granting a new trial. We granted Larson’s petition for review. 2
I.
I turn first to the question of the fair and accurate reporting privilege. We have
discussed this privilege in only two cases, applying it in one case, Moreno, 610 N.W.2d at
334, and declining to apply it in the other, Nixon v. Dispatch Printing Co., 112 N.W. 258,
259 (Minn. 1907). In both cases, we declined to apply the privilege broadly because to do
so would undermine “[t]he constitutional guaranty to the citizen of a certain remedy for all
wrongs.” See Nixon, 112 N.W. at 258; see also Moreno, 610 N.W.2d at 331 (noting that a
“narrow application” of the privilege balances its broad protection). The court ignores that
caution today in favor of an expansive and limitless rule of privilege. At its outset, the fair
and accurate reporting privilege was a narrow common law privilege designed to protect
fair reporting on adversarial judicial proceedings; it had no application to reporting on law
enforcement press conferences. Even if the privilege is to be expanded beyond the
well-reasoned limits recognized at common law, as this court did in Moreno, a further
expansion to encompass the circumstances here misunderstands our precedent. But even
relying on the court’s dubious expansion of the privilege, I would hold that the statements
made were not “fair and accurate” as a matter of law.

2 We also granted respondents’ cross- petition on the question of whether their news
reports were fair and accurate.
C/D-4
A.
I begin with the observation that the Minnesota Constitution specifically promises
the residents of Minne sota the right to a remedy in our courts for damage to character.
Minn. Const. art. 1, § 8 (“Every person is entitled to a certain remedy in the laws for all
injuries or wrongs which he may receive to his person, property or character . . . .”). That
constitutionally mandated remedy for the wrong of libel or slander did not appear out of
thin air. The common law, developed over hundreds of years, has long recognized a
remedy for damage to reputation from defamation. See Van Vechten Veeder, The History
and Theory of the Law of Defamation, 3 Colum. L. Rev. 546, 547–61 (1903) (reviewing
how early laws, including Roman, Christian, Germanic, and English law, protected a
person’s reputation); 1 William Blackstone, Commentaries on the Law of England in Four
Books *134 (1753) (“The security of his reputation or good name from the arts of detraction
and slander, are rights to which every man is entitled, by reason and natural justice; since
without these it is impossible to have the perfect enjoyment of any other advantage or
right.”). Significant litigation vindicating an individual’s right to protect reputation
emerged as early as the seventeenth century. See Van Vechten Veeder, supra, at 559
(referencing several seventeenth-century cases); see also Allen v. Pioneer Press Co., 41 N.W. 936, 938 (Minn. 1889) (acknowledging that the right at common law to protect
one’s reputation included the ability to bring an action to seek “damages to his standing
and reputation”); King v. Lake (1670) 145 Eng. Rep. 552, 552–53 (providing an example
of seventeenth-century common law refinement of defamation law by distinguishing
between libel and slander). While a fair and accurate reporting privilege developed in
C/D-5
common law, the courts were mixed regarding whether the privilege extended beyond
adversarial judicial proceedings to ex parte judicial hearings; what was clear was that some
kind of judicial proceeding was required. 3 In accord with the common law, we held in
Nixon that publishing the contents of a complaint was not an adversarial judicial proceeding
and the publication was not protected by the fair and accurate reporting privilege.
112 N.W. at 258–59.
The right of a person “to the protection of his own reputation from unjustified
invasion and wrongful hurt reflects no more than our basic concept of the essential dignity
and worth of every human being —a concept at the root of any decent system of ordered
liberty.” Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring). Importantly,
“[t]he protection of private personality, like the protection of life itself, is left primarily to

3 At common law, the fair and accurate report ing privilege was a limited privilege
recognized only when reporting on judicial proceedings because these official proceedings
provided inherent protections to others. A nineteenth-century Rhode Island case explained
the rationale for this limited privilege:
If a man has not the right to go around to tell of charges made by one against
another, much less should a newspaper have the right to spread it broadcast
and in enduring form . . . . When the charges come up for adjudication,
however, although their publication may be as harmful and distressing to the
person accused as if they had been published before their consideration by a
court, a different rule applies. Individual feelings are no longer considered,
for the reason, as stated by Judge Holmes: “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.”
Metcalf v. Times Publ’g Co., 40 A. 864, 865–66 (R.I. 1898) (tracing the history of the fair
and accurate reporting privilege from early English precedent through its adoption into
United States jurisprudence).
C/D-6
the individual States under the Ninth and Tenth Amendments.” Id. By extending the
privilege, the court has deprived Larson of his historic right to seek justice from those who,
in his view, have damaged his reputation.
B.
I acknowledge that we have already exceeded the bounds of common law when in
Moreno we extended this privilege to legislative proceedings. 610 N.W.2d at 332–33
(extending the fair and accurate reporting privilege from judicial proceedings to include
legislative proceedings based on “policy considerations”). It is not necessary to address
the wisdom of that extension here in order to recognize that further expansion of the
privilege is neither consistent with the history of defamation law nor wise under our
existing jurisprudence.
The court grounds its application of the privilege in the Restatement (Second) of
Torts, which describes this privilege as one protecting the fair and accurate “report of an
official action or proceeding or of a meeting open to the public that deals with a matter of
public concern.” Restatement (Second) of Torts § 611 (Am. Law. Inst. 1977). But we
have never fully adopted section 611 and a wholesale adoption of this Restatement section
is inconsistent with our cautious approach to privileges in general and to this privilege in
particular. See Zutz v. Nelson, 788 N.W.2d 58, 62 (Minn. 2010) (noting that an “[a]bsolute
privilege is not lightly granted and applies only in limited circumstances”); see also
Moreno, 610 N.W.2d at 332 (declining to adopt section 611 in full).
Other than referencing section 611, the court does not clearly articulate why the
privilege applies here. The court states multiple times that the press conference was
C/D-7
“official” and that the agency’s press release was “official,” apparently because “officials”
conducted the press conference and wrote the press release. Under that logic, the media
has immunity to report on any press conference held by any government employee and the
scope of the fair and accurate reporting privilege is effectively limitless. Because of the
court’s broad rule, any government official or employee will be able to call a press
conference or disseminate a press release that defames private individuals and the press,
with impunity, will be able to widely circulate that defamation. Such expansive immunity
is flatly inconsistent with section 611 of the Restatement and with our own precedent. 4
Section 611 itself is inconsistent with the court’s expansive application of the
privilege. Comment (h) to section 611 makes clear that “statements made by the police . . .
as to the facts of the case or the evidence expected to be given are not yet part of the judicial
proceeding or of the arrest itself and are not privileged under this S ection.” Restatement

4 The court’s rule will be difficult to implement. The rule requires courts to make ad
hoc determinations on whether something is an “official action.” Without any standards
to anchor these decisions, courts must first decide what is, or is not, an “official duty” of a
government employee. From there, courts must decide whether the government
employee’s speech was “official” speech undertaken to fulfill that duty. And in light of
the court’s decision today, it is hard to imagine what speech will not be deemed “official”
if all a government employee must do is call a press conference or publish a press release.
This rule is unreasonably broad and has the potential to swallow all of the carefully crafted
privileges and defenses that currently exist in the law of defamation. Moreover, with the
rise of the Internet, which defendants are “ media” and therefore qualify for this reporting
privilege will be difficult to determine with any certainty. See Maethner v. Someplace
Safe, Inc., 929 N.W.2d 868, 876 (Minn. 2019) (acknowledging a defendant’s argument,
although finding it nondispositive, that “determining who qualifies as a member of the
media has become untenable with the rise of the internet and the decline of print and
broadcast media”).
C/D-8
(Second) of Torts § 611 cmt. h. Consistent with the comment to section 611, the privilege
should not apply here.5
The court’s expansive new rule is also inconsistent with our precedent. The court,
relying on Moreno, concludes that the privilege applies because the press conference was
a meeting open to the public that deals with matters of public concern. But state law
required the city council meeting at issue in Moreno to be open to the public. See Minn.
Stat. § 13D.01, subd. 1(b)(4)–(5) (2018) (requiring that meetings of governing bodies of
cities and towns be open to the public). There is no statute that requires police to hold press
conferences or issue press releases.

5 The court states that to the extent we cited comment (h) favorably in Moreno, our
reference has little utility in determining when the fair and accurate reporting privilege
applies because we were using it to explain only how that privilege can be defeated. This
distinction misapprehends our discussion in Moreno. Although we explained ways in
which the fair and accurate reporting privilege can be defeated, we specifically discussed
the problem that arises when reporters include “additional contextual material, not part of
the proceeding” in their reports. Moreno, 610 N.W.2d at 333. Because this material is not
covered by the privilege, the use of this additional material can defeat an otherwise
privileged report. Id. As an example of such additional material not covered by the
privilege, we included statements by the police about the facts of a case that are not yet
part of a judicial proceeding. Id. To be additional contextual material, a statement first
must be outside the privilege. Thus, this discussion was as much a comment on the
inapplicability of the fair and accurate reporting privilege to police statements like the ones
at issue in this case as it was about ways in which the privilege can be defeated.
The court also contends that Moreno contradicts the limits of comment (h) because,
in that case, a citizen’s accusation that a specific person had committed criminal activity
was privileged even though judicial proceedings were not underway. But the fair and
accurate reporting privilege is not concerned with the identity of the first speaker. Instead,
it applies to reports from public proceedings. Accordingly, the citizen’s statements in
Moreno were protected because they were made as “part of the regular business of a city
council meeting.” Id. But the law enforcement statements about the citizen’s statements
were outside the privilege because law enforcement’s statements were not made as part of
a privileged proceeding. Id. at 334.
C/D-9
Moreover, that a government employee chooses to make something public cannot
be the basis for extending a near-absolute immunity to media who report on that
publication.6 In Moreno, for example, the fact that the police chief spoke to the media and
that the media reported on the police chief’s statements did not entitle the media to the
privilege for reporting on the chief’s statements. We limited the privilege only to the
“report on the events of the city council meeting.” See 610 N.W.2d at 334. Moreno,
therefore, does not support the court’s rule.
The court’s broad application of the privilege also conflicts with Nixon. In Nixon,
the question was whether the fair and accurate reporting privilege applied to immunize

6 The court bases its extension of the privilege on its concern for a situation where the
media has less protection from liability than the government official on whom the media
is reporting. I am not at all troubled by this result and do not find it inconsistent as the
court does. The court’s reliance on Carradine v. State and Johnson v. Dirkswager
misunderstands our reasoning for extending absolute immunity to certain actions of public
officials. As we concluded in Carradine:
[T]he purpose of extending absolute immunity to an officer performing a
certain governmental function is not primarily to protect the officer
personally from civil liability (although that is the effect of absolute
immunity). Rather, the rationale is that unless the officer in question is
absolutely immune from suit, the officer will timorously, instead of
fearlessly, perform the function in question and, as a result, government—
that is, the public—will be the ultimate loser.
511 N.W.2d 733, 735 (Minn. 1994).
Absolute privilege and the fair and accurate reporting privilege serve different
purposes, and there is nothing inconsistent about extending one and not the other. Further,
the court’s rule does not even resolve the purported inconsistency. Our decision in
Johnson, that a high-level state official “has an absolute privilege, in the performance of
his official duties, to communicate defamatory material” does not also support the court’s
broad application of the privilege. Johnson v. Dirkswager, 315 N.W.2d 215, 223 (Minn.
1982). In Johnson, a privilege applied because state law required that the reasons for the
employer’s termination decision be made public. Id. There is no such statutory mandate
in this case.
C/D-10
reporting by the media on accusations made in a complaint that was filed in court.
112 N.W. at 258. Obviously, the complaint was public because it had been filed in court.
Id. (noting that “by virtue of . . . statute the clerk must exhibit the [complaint] in his office
for the inspection of any person”). But we held that the unilateral decision of a plaintiff to
file a complaint did not clothe the media with immunity to publish the allegations. Id. at
258–59. Rather, we held that, for the privilege to apply, there needed to be a “judicial
proceeding,” and before there would be a “judicial proceeding,” there needed to be a matter
“under the control of the judge, where both sides may be heard. Id. at 259. A fair report
of such a proceeding would include the claims of all parties as made in court.” Id. at 258–
59. Under the circumstance in Nixon—where the complaint had “never been presented to
the court for its action”—the privilege did not apply. Id. Consistent with Nixon, the
unilateral decision of law enforcement to hold a press conference and issue a press release
does not provide immunity to the media to publish defamatory statements made at that
press conference or in that press release.7
The court concludes, however, that the privilege applies here because the subject
discussed at the press conference involved a matter of public concern. And the court
repeatedly invokes the values of the First Amendment and principles of government
accountability to support its conclusion that the media has immunity here. These values

7 Unable to square its rule with Nixon, the court casts Nixon aside as an old case, then
casts Moreno aside because “Moreno recognized [that] Nixon provides little guidance.” In
fact, Moreno relied on the analysis in Nixon to conclude that the privilege should apply.
Moreno, 610 N.W.2d at 332 (“The same policy considerations found in Nixon support
extending that privilege to fair and accurate reports of legislative proceedings as well,
including city council meetings.”).
C/D-11
and principles have little to do with the facts here. Importantly, the media here did not
report about government misconduct or defame a government employee. This case is about
a private citizen who was falsely accused by certain media representatives of shooting and
killing a police officer. But the court does not explain just exactly how the First
Amendment is served by extending immunity to the press for making false accusations. 8
Certainly, the murder of a police officer and the expenditure of public funds to
investigate that crime are a matter of public concern. But the identity of the person who is
the focus of the police investigation cannot be said to be of sufficient public concern to
warrant the application of the immunity the media seeks here. See Rouch v. Enquirer &
News of Battle Creek, Mich., 357 N.W.2d 794, 801 (Mich. Ct. App. 1984) (“[T]here is an
important distinction between matters which truly promote the public interest and matters
which are merely interesting to the public.”), aff’d, 398 N.W.2d 245 (Mich. 1986) ,
superseded by statute as recognized in Northland Wheels Roller Skating Ctr., Inc. v.
Detroit Free Press, Inc., 539 N.W.2d 774, 779 (Mich. Ct. App. 1995). The court does not
and could not demonstrate otherwise because any public interest is satisfied when law
enforcement informs the public that a suspect is in custody or that there is no reason to
believe that anyone else is in danger. Law enforcement routinely issues such statements
without revealing the identity of the suspect or the details of the crime.

8 One of the cases the court cites, Cox Broad casting Corp. v. Cohn, 420 U.S. 469
(1975), shows that the court’s reliance on First Amendment principles is misplaced. There,
the media published the name of a rape victim, which the media was able to obtain because
the victim’s name was in a court filing in a pending and public criminal case. Id. at 471−73.
Here, by contrast, there was no pending criminal case because no criminal charges were
ever filed.
C/D-12
Further, there is no public policy, compelling or otherwise, that requires us to extend
the privilege this far. In fact, privileging the dissemination of this kind of defamation is
antithetical to the constitutional guarantees of a fair trial. See U.S. Const. amend. XIV,
§ 1; Minn. Const. art. 1, § 6. Law enforcement press conferences and news releases of this
sort have substantial potential “to prejudice those whom the law still presumes to be
innocent and to poison the sources of justice.” Lancour v. Herald & Globe Ass’n, 17 A.2d
253, 259 (Vt. 1941). This cost outweighs the public’s appetite for information about the
commission and investigation of crime before judicial proceedings have been initiated. Cf.
McAllister v. Detroit Free Press Co., 43 N.W. 431, 437 (Mich. 1889) (“It is indignity
enough for an honest man to be arrested and put in prison for an offense of which he is
innocent, . . . without being further subjected to the wrong and outrage of a false
publication of the circumstance of such arrest and imprisonment, looking towards his guilt,
without remedy.”).9
This is not to say that reports of law enforcement press conferences and press
releases can never be privileged. As the court posits, there might be a situation where “a
suspected criminal remains at large” and a press conference is held “to caution the public
and solicit pertinent information.” A qualified privilege likely extends to such a press

9 The court admits that tension may exist in some cases between protecting freedom
of the press and preserving an unbiased jury pool. Here, the record shows that at least
95,000 households likely viewed the 6 p.m. broadcast and at least 125,000 households
likely viewed the 10 p.m. broadcast that accused Larson of killing a police officer and, of
course, the only daily newspaper in St. Cloud also accused him of murdering a police
officer. It can be safely said that the court’s understated observation about “tension” is
accurate, to say the least.
C/D-13
conference. See Bol v. Cole, 561 N.W.2d 143, 150 (Minn. 1997) (extending a qualified
privilege to an accusation of child abuse published in an effort to prevent further harm).
Further, the commission and investigation of a crime is a matter of public concern. See
Cox Broad. Corp . v. Cohn, 420 U.S. 469, 492 (1975) (“The commission of crime,
prosecutions resulting from it, and judicial proceedings arising from the prosecutions,
however, are without question events of legitimate concern to the public . . . .”);
Jacobson v. Rochester Commc’ns Corp., 410 N.W.2d 830, 832, 836 n.7 (Minn. 1987)
(noting that news reports about a criminal trial and the out-of-court activities of the accused
were matters of public concern). Thus, if the press republish police statements about the
commission and investigation of a crime, defamed citizens will need to prove that the press
was negligent to make a prima facie case, Jadwin, 367 N.W.2d at 491, and must prove
actual malice to recover presumed or punitive damages, see Maethner v. Someplace Safe,
Inc., 929 N.W.2d 868, 878–79 (Minn. 2019).
The court dismisses these protections out of concern for the media having to bear
the costs of litigation and the possibility that such costs could deter the media from
investigating “controversial subjects or even official misconduct.” Of course in this case,
the media was not deterred from its reporting even though we had not yet extended the
privilege the court recognizes today and the court is resolutely silent on the financial burden
on Larson associated with his attempts to restore his shattered reputation. Moreover,
completely absent from the court’s evaluation is any consideration of the reputational
interests of the private citizen who was harmed here.
C/D-14
As we recognized in Jadwin, the very case the court cites, private citizens are
“deserving of recovery” and they “ordinarily have little to no media access to rebut alleged
libelous charges.” 367 N.W.2d at 491. And because a private citizen’s “sole means to
vindicate his or her reputation may be [a] judicial determination that the injurious statement
is in fact false,” we declined to adopt a fault standard that would “go too far in extinguishing
the only protection a private individual may invoke.” Id. I would follow this same path
here. Given the other protections that our law already provides to the media, the reduced
public interest, and the important reputational interests at stake, I would not extend the fair
and accurate reporting privilege to law enforcement press conferences and press releases.10

10 The court concludes that extending the privilege to law enforcement press
conferences and press releases will allow the public to hold the government accountable
and oversee the performance of public officials and institutions. This is unpersuasive.
Although media reports may facilitate communication between state officials and the
public, while also allowing the public to assess the quality of state officials’ responses to a
public safety emergency , t hese interests are satisfied by reporting that a suspect is in
custody. To do more, to identify that suspect before he faces criminal charges, is entirely
unnecessary to the articulated goals. Moreover, it is hard to imagine how the restrained
statements such as those made at the press conference here will allow the public to monitor
any wrongdoing by the police or a lack of integrity in the criminal justice system.
Other laws aimed at transparency and accountability of law enforcement—and the
criminal justice system as a whole—are better tools to achieve this goal. See, e.g., Minn.
Stat. §§ 13.82 (defining categories of law enforcement data as private, confidential, or open
to the public, and describing procedures to make this data available if applicable), 299C.18
(mandating that the Bureau of Criminal Apprehension submit a biennial report to the
Governor and the Le gislature detailing the operations of the bureau), 626.8459(a)
(mandating that the Peace Officer Standards and Training Board conduct reviews on all
state and local law enforcement agencies to ensure compliance with statutes and rules, and
that the board report detailed information about those reviews to the Legislature) (2018);
Minn. R. Pub. Access to Recs. of Jud. Branch 2 (setting out rules for public access to
records of the judicial branch, with the presumption that the records of all courts are “open
to any member of the public for inspection or copying” unless an exception in the rules
applies or a court orders otherwise); Minneapolis, Minn. Police Department Pol’y & Proc.
C/D-15
II.
I would not apply the privilege here. Rather, I would reach the same conclusion
that the district court reached; that is, that statements one through eight are false as a matter
of law. The dispositive question is whether the reports about the November 30 law
enforcement press conference made during KARE 11’s evening news broadcasts and
published the next day in the St. Cloud Times communicated to the viewer or reader the
same meaning that someone who actually attended the press conference would have taken
away from the press conference. After comparing the undisputed statements made at the
press conference and the undisputed reports by respondents, I conclude that the answer to
that question as a matter of law is “No.” Thus, I would remand to the district court for the
sole purpose of determining the negligence of respondents and the damages that
respondents must pay to compensate Larson, as the district court properly required under
its posttrial order.11
A.
When analyzing defamation claims, we must carefully balance two competing
values: (1) “the right to speak freely about issues of concern” and (2) an individual’s right

Manual § 4- 223 (2018) (regulating and requiring the use of body cameras in certain
situations).
Finally, I disagree with the court’s assertion that it makes “no sense” not to
immunize the media because the media was not responsible for the “original message.”
Why this should matter, the court does not explain. In any case, not only was the media in
control of the dissemination of the message that Larson shot and killed a police officer, as
I explain later, those statements also were not the “original message.”

11 The same analysis would lead me to conclude that even if the privilege applied, it
would not protect the media here because their reporting was not fair and accurate.
C/D-16
to protect his or her reputation, which “reflects no more than our basic concept of the
essential dignity and worth of every human being—a concept at the root of any decent
system of ordered liberty.” Maethner, 929 N.W.2d at 891 (Thissen, J., dissenting) (quoting
Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974)). This same balancing of interests
is critical whether the alleged defamer is an individual passing rumors on the street corner
or a large media company communicating with many viewers or readers. Indeed, our
concern about damage to reputation should be heightened when the alleged defamer can
reach tens of thousands of viewers.12
In McKee v. Laurion, we adopted the following test for whether a statement about
what someone else said or wrote is false:
If the statement is true in substance, minor inaccuracies of expression or
detail are immaterial. Minor inaccuracies do not amount to falsity so long as
the substance, the gist, the sting, of the libelous charge is justified. A
statement is substantially true if it would have the same effect on the mind of
the reader or listener as that which the pleaded truth would have produced.

825 N.W.2d 725, 730 (Minn. 2013) (citations omitted) (internal quotation marks omitted).
Two key principles emerge from this test. First, we may overlook only “minor”
inaccuracies. Id. (citing Restatement (Second) of Torts § 581A cmt. f (Am. Law. Inst.
1977) (“Slight inaccuracies of expression are immaterial provided that the defamatory

12 It is notable that most news outlets in the Twin Cities follow the commendable rule
that the names of persons alleged to have committed crimes are not released until the person
is actually charged with the crime. For reasons about which one can only speculate,
respondents chose not to follow that general practice when reporting on the murder of
Officer Decker. Certainly, a primary public purpose of the law enforcement press
conference—to reassure the local community that the police were actively and diligently
investigating the crime and that a potential shooter had been apprehended—did not require
respondents to report Larson’s name.
C/D-17
charge is true in substance.” (emphasis added))). Second, when comparing an allegedly
defamatory statement with a statement that differs from the actual statement made by the
speaker, the focus is not on the difference in the words of the statements themselves, but
on the meaning communicated by those words. Id. at 730 –31. The substance of the
meaning of the alleged defamatory statement must be the same— must communicate the
same notion—as the actual statement. Id. at 730; see Masson v. New Yorker Magazine,
Inc., 501 U.S. 496, 517 (1991) (stating that falsity is judged by whether changes in a
statement “result[] in a material change in the meaning conveyed by the statement”).
In McKee, a doctor sued for defamation when a patient’s son posted statements
about the doctor on the Internet. 825 N.W.2d at 728. Our analysis of those statements
illustrates that the critical inquiry is whether the meaning communicated by the alleged
defamatory statement and the actual statement is the same.
First, the son claimed that the doctor had told the patient and his family that the
doctor had “spen[t] time finding out if you transferred or died.” Id. at 730. The doctor
testified that he had made a joke that he was glad to find the patient in a regular hospital
bed because “you only go one of two ways when you leave the intensive care unit; you
either have improved to the point where you’re someplace like this [a regular bed] or you
leave because you died.” Id. We concluded that, because both statements “communicate
the notion that patients in the intensive care unit who have suffered a hemorrhagic stroke
leave the intensive care unit either because they have been transferred to a regular room or
they have died,” the substance communicated by the alleged statement and the actual
statement was the same. Id. at 730–31.
C/D-18
Second, the son alleged that the doctor told the f amily that “44% of hemorrhagic
strokes die within 30 days. I guess this is the better option.” Id. at 729. The doctor
acknowledged that, although he told the family that some ICU patients die, he denied
referencing the specific percentage. Id. at 731. We held that the mention of the percentage
was irrelevant because the point of the communication—its “gist or sting”—was
mentioning to a worried family that hemorrhagic stroke patients die. Id. at 730. In that
context, both the alleged statement with the percentage and the actual statement
communicated the same meaning. Id. Accordingly, we concluded that the statement as
alleged was not false.
Third, the son alleged that the doctor said it “doesn’t matter” that the patient’s gown
did not cover his backside. Id. at 731. The doctor claimed that he told the patient that the
gown “looks like it’s okay.” Id. Because “[c]ommenting that the gown ‘looks like it’s
okay’ is another way of communicating that ‘it didn’t matter’ that the gown was not tied
in the back,” we held that “any inaccuracy of expression does not change the meaning of
what [the doctor] admits to having said.” Id. Consequently, we determined that the
statement was not actionable. Id.
This focus— measuring falsity based on the meaning communicated by the
statement—is also illustrated by Lewis v. Equitable Life Assurance Society of the U.S.,
389 N.W.2d 876 (Minn. 1986). In Lewis, terminated employees sued an employer who
had fired them for “gross insubordination.” Id. at 880. The former employees alleged that
they were forced to republish to prospective employers that they had been fired for “gross
insubordination” even though (the former employees contended) they had not been grossly
C/D-19
insubordinate. Id. at 882. The employer argued that the district court erred by holding the
employer liable for defamation because the statement that the former employees made—
that they had been fired for gross insubordination—was true. Id. at 886. We disagreed and
held that the falsity of a statement must be judged based on the “underlying implication of
the statement”—in other words, the meaning communicated by the statement. Id. at 889.
Accordingly, the former employees were not barred from recovering defamation damages
if the underlying statements—that the former employees actuall y engaged in gross
insubordination—were false. Id. at 888–89; see generally Minn. Dist. Judges Ass’n,
CIVJIG 50.25.
The test that we have applied in McKee and Lewis accords with the United States
Supreme Court’s decision in Masson, 501 U.S. at 516–17. There, and as relevant here,
the Supreme Court expressly rejected a looser “rational interpretation” theory of similarity
between an alleged statement and an actual statement. Id. at 518–20. Under this theory,
an “altered quotation is protected [from defamation liability] so long as it is a ‘rational
interpretation’ of an actual statement.” Id. at 518. The Supreme Court explained that this
“interpretive license” is necessary when an author relies “upon ambiguous sources.” Id. at
519. But when the author of a statement seeks to convey what a speaker said through
quotations, the author cannot take interpretative license —offer a “rational
interpretation”—of what the author thought the speaker really meant. Id. at 519–20. “Were
we to assess quotations under a rational interpretation standard, we would give journalists
the freedom to place statements in their subjects’ mouths without fear of liability.” Id . at
C/D-20
520. And that, the Supreme Court reasoned, would be bad for journalism and for the values
that the First Amendment seeks to protect:
By eliminating any method of distinguishing between the statements of the
subject and the interpretation of the author, we would diminish to a great
degree the trustworthiness of the printed word and eliminate the real meaning
of quotations. Not only [the subjects of defamatory statements,] but the press
doubtless would suffer under such a rule. Newsworthy figures might become
more wary of journalists, knowing that any comment could be transmuted
and attributed to the subject, so long as some bounds of rational interpretation
were not exceeded.

Id.
In summary, a report of what someone else said is true, for defamation purposes,
when (laying the report and the statement side by side) the report contains only minor or
slight differences from, and, more critically, communicates the same meaning as, the
statement itself.13
B.
With these principles in mind, I turn now to the actual statements made at the press
conference and in the press release, then compare those statements to the defamatory
statements broadcast and published by respondents.

13 The current jury instruction, as prepared by the Minnesota District Judges
Association, CIVJIG 50.25, provides: “A statement or communication is false if it is not
substantially accurate. Substantial accuracy does not require every word to be true. A
statement or communication is substantially accurate if its substance or gist is true.” I am
not sure that the words “substance” and “gist” provide much clarity to jurors, and thus I
agree with the court that a clarifying instruction, perhaps drawing from McKee, may be
useful to jurors.
C/D-21
The Press Conference
On November 30, law enforcement officers from the Stearns County Sheriff’s
Office, the Minnesota Bureau of Criminal Apprehension (BCA), and the Cold Spring
Police Department held a press conference about the shooting. The Sheriff started with a
description of the incident. He noted that Officer Decker was responding to a call that
Larson was potentially suicidal. He stated: “[W]hen officers pulled up, Officer Decker left
his squad car, and a very short time later was confronted by an armed individual, shot twice,
and died.” The Sheriff did not identify Larson as the “armed individual.”
A deputy superintendent from the BCA spoke next. He noted that the Sheriff’s
Office took the subject of the welfare check ( Larson) into custody. He stated: “After that
occurred, he was interviewed by Stearns County deputies, and some of that investigation
is still ongoing.” (Emphasis added.) The BCA representative further stated:
• “Members of the BCA crime scene have processed the crime scene, and
that’s still in process right now, gathering evidence related to this
investigation.”

• “We have agents and deputies from the Stearns County Sheriff’s Office,
along with other police personnel in the area, conducting follow-up
investigation and interviews . . . around the entire state of Minnesota at this
time.”

• “[T]his is an active and ongoing investigation. We’ll continue to follow up
to determine exactly what happened in this incident. And, as we noted, . . .
Ryan Larson was taken into custody and booked into the Stearns County jail
in connection with this incident.”14

14 The Minnesota Department of Public Safety issued a news release on November 30
as well. The news release stated: “We’re still in the very early stages of this ongoing and
active investigation” and reported that, earlier in the morning of November 30, Larson had
been taken into custody and booked into Stearns County Jail on murder charges.
C/D-22
After the Cold Spring Police Chief spoke about Officer Decker, the three law
enforcement officers took questions from reporters. In response to questions about
investigators “walking out near the river,” the BCA representative emphasized “that’s part
of the active and ongoing investigation. All I’ll say is that it’s an active crime scene and
that we’re . . . looking for and gathering evidence related to this crime right now.”
Significantly, when asked if there was any reason to believe that there might be other
individuals involved, the BCA representative reinforced that “we don’t have any
information to believe that at this time, but it’s in early stages of the investigation. We
continue to follow up on all leads.”
In response to questions about a weapon and where Larson was when he shot at
Officer Decker, the BCA representative refused to confirm any details or even that Larson
was the shooter, stating each time that he could not “discuss” or “comment” on an active
investigation: “[A]gain, that’s part of an active crime scene, and we just, we can’t discuss
the details of the active crime scene at this time.” When asked about the reports that Larson
was suicidal, the Sterns County Sheriff stated, “Again, it’s far too early in the investigation
to make a comment in reference to that.”
Finally, reporters asked the law enforcement officers whether Officer Decker had a
partner with him when he arrived on the scene. The BCA representative responded that
Officer Decker “was with a partner when he was shot. And, you know, what I can say about
this from our preliminary investigation . . . it’s apparent to us that the officer was ambushed
at the scene.” After another two questions, the Sterns County Sherriff ended the press
conference, observing that “it wouldn’t be prudent for us to comment any further on this.”
C/D-23
In summary, the law enforcement officers stated no fewer than 13 times over the
course of a short press conference that the investigation was active and ongoing,
preliminary and in its early stages, and in process. Not once during t he press conference
did any law enforcement officer state that Larson ambushed, shot, or killed Officer Decker.
Not once during the press conference did any law enforcement officer state that Larson had
been charged in the murder of Officer Decker. Not once during the press conference did
any law enforcement officer accuse Larson of killing Officer Decker.
KARE 11 Television News Coverage
KARE 11 began its 6 p.m. broadcast as follows:
Condolences are pouring in tonight for the family of the Cold Spring Police
Officer who died in the line of duty, Tom Decker. The 31-year-old was shot
and killed last night while conducting a welfare check on a suicidal man.
Police say that man— identified as 34- year-old Ryan Larson—ambushed
Officer Decker and shot him twice—killing him.

Later in the broadcast, the KARE 11 news anchor once again described Larson as “the man
accused of killing Officer Decker.”
KARE 11 again began its 10 p.m. broadcast with the story of Officer Decker’s
murder:
The body of Cold Spring Police Officer Tom Decker is being guarded around
the clock until his funeral. A preliminary autopsy shows Officer Decker died
of multiple gunshot wounds. Investigators say 34- year-old Ryan Larson
ambushed the officer, shooting him twice. Larson is in custody.

The broadcast then switched to a reporter at the scene. After showing part of the interview
with Officer Decker’s mother, the reporter said that Officer Decker “was the good guy last
night, going to check on someone who needed help. That someone was 34-year-old Ryan
C/D-24
Larson who investigators say opened fire on Officer Tom Decker for no reason anyone can
fathom.” The broadcast then returned to the mother, who speculated that Larson’s mind
was messed up. A bit later, the broadcast returned to the station and the anchor stated,
“Charges could be filed as early as Monday against Ryan Larson, the man accused of
killing Officer Decker,” and followed with a description of Larson’s criminal history and
status as a machine tool student at St. Cloud Technical & Community College. 15
St. Cloud Times Reporting
On December 1, the St. Cloud Times understandably devoted significant coverage
to the killing of Officer Decker, as well as to the investigation. In one story titled “Man
faces murder charge,” the paper reported that “Ryan Michael Larson, 34, is in Stearns
County Jail and faces possible murder charges of second-degree murder. Police say Larson
is responsible for the shooting death of Cold Spring- Richmond Police Officer Tom
Decker.”
C.
I agree with the court that the same test applies when analyzing whether a statement
is “fair and accurate” for purposes of the qualified fair and accurate reporting privilege or
whether a statement is false for purposes of the proving the essential elements of a
defamation claim. In both cases we compare what was reported to have been said with
what was actually said. But in a typical defamation case, we compare the defendant’s

15 KARE 11 also posted a story on its website. The story states that a man was being
“held on suspicion of second degree murder in the alleged ambush of a Cold Spring police
officer” and that “[i]nvestigators believe he fired two shots into Cold Spring police officer
Tom Decker, causing his death.”
C/D-25
report on what a plaintiff allegedly said and what the plaintiff actually said, while the
statements compared in a qualified fair and accurate reporting privilege case are the reports
about a statement made about the plaintiff by a third party and what the third party actually
said. Compare McKee , 825 N.W.2d at 730–31 (comparing statement of alleged defamer
with actual statement of plaintiff), with Moreno, 610 N.W.2d at 331 (stating that focus is
on the accuracy with which the statement of a third party is reported). This difference
matters because the qualified fair and accurate reporting privilege may protect the reporter
from liability even if the underlying third-party statements about the plaintiff are false. The
underlying inquiry in both cases —whether the second, reported statement communicated
the same meaning as the actual statement (whether made by the plaintiff or by a third party
about the plaintiff)—is the same.
In this case, then, our inquiry is whether respondents’ reports about the law
enforcement press conference communicated the same meaning that someone who actually
attended the press conference would have taken away from the press conference.
A person attending the press conference would have fairly concluded that law
enforcement was in the midst of an active, ongoing, and early -stages investigation. The
person would have learned that Larson had been arrested as a suspect in the murder that
was under investigation. But nothing about what law enforcement said at the press
conference supports the takeaway that law enforcement had determined that Larson
ambushed, shot, and killed Officer Decker or that law enforcement was accusing the as-yet
uncharged Larson of doing so. Certainly law enforcement never said anything close to
those things. Indeed, when asked about the possibility of another shooter, law enforcement
C/D-26
expressly cautioned that “we don’t have any information to believe that at this time, but
it’s in early stages of the investigation. We continue to follow up on all leads.”
The same person watching KARE 11 that night would have reached a much
different conclusion. The viewer would have come away with the clear impression that
law enforcement accused Larson of the shooting. The viewer was told that law
enforcement stated that Larson “ambushed Officer Decker and shot him twice—killing
him” and that Larson “opened fire on Officer Tom Decker for no reason anyone can
fathom.” Similarly, a person reading in the December 1 St. Cloud Times that “[p]olice say
Larson is responsible for the shooting death of Cold Spring-Richmond Police Officer Tom
Decker” would have come to the same impression: that law enforcement stated that Larson
was the shooter.
We have decided questions of falsity as a matter of law where the content of an
alleged defamatory statement and an actual statement is undisputed. See McKee ,
825 N.W.2d at 730–31. There is no disputed material fact about the content of the press
conference, the broadcasts, or the newspaper article. The statements made by law
enforcement at the November 30 press conference objectively communicated a much
different meaning and narrative than the story told to viewers of KARE 11’s November 30
news broadcast and the readers of the December 1 St. Cloud Times. Therefore, I conclude
that KARE 11’s statements made during the 6 p.m. and 10 p.m. broadcasts on November 30
and the statement in the St. Cloud Times article published the next day did not
communicate the same meaning as the press conference as a matter of law.
C/D-27
A free and robust press that is motivated to inform and educate the public about
important public matters is undoubtedly critical to our democracy, and a broad cushion
around the press is necessary to accomplish that end. But we also expect the press to act
responsibly in how it conducts its work. That did not happen here. Accordingly, I would
hold that, even if a qualified fair and accurate reporting privilege applies to the November
30 press conference, respondents are not entitled to the protection of the privilege because
their reports were not “fair and accurate.” For the same reasons, I would hold that the
reports by respondents were false as a matter of law because they did not communicate the
same meaning that law enforcement conveyed at the press conference.
Accordingly, I would remand to the district court for the sole purpose of assessing
whether the media companies were negligent in their reporting and, if so, the damages that
Larson suffered as a result of respondents’ defamatory statements.

GILDEA, Chief Justice (concurring in part, dissenting in part).
I join in the concurrence and dissent of Justice Anderson.