This is entirely legal and commonly done.
The risk of defamation liability to the suspect is minimal. Under New York Times v. Sullivan 376 U.S. 254 (1964) and related cases, to prevail in defamation case with a media defendant, a public figure plaintiff, or a matter of public concern, the plaintiff must show "actual malice."
In Rosenbloom v. Metromedia Inc., 403 U.S. 29 (1971), the U.S. Supreme Court extended the “actual malice” standard to statements about matters of public concern—even where the plaintiff is a private figure. According to the Court, "if a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual did not 'voluntarily' choose to become involved. The public's primary interest is in the event; the public focus on the conduct of the participant and the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety."
The most recent development to the matters of public concern doctrine came when the Supreme Court decided Snyder v. Phelps, 131 S.Ct. 1207 (2011). At issue was whether statements made by members of the Westboro Baptist Church at the funeral of Marine Matthew Snyder related to matters of public concern and thus were protected by the First Amendment. To determine whether a statement relates to a matter of public concern, the Court created a two-part test. A statement related to a matter of public concern if: (1) the statement related “to any matter of political, social, or other concern to the community,” or (2) the statement related to “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”
Since the heightened matters of public concern test applies means that a false statement of fact is not enough to prevail. One must show that a statement was made knowing it was false or with reckless disregard to the truth or falsity of the statement. The proposed poster, based upon CCTV video and other factual circumstances strongly pointing towards the person depicted having committed a crime overcome this standard.
Other factors also help Mary.
She is clearly identifying the factual basis for her belief (the CCTV picture with a location and time) and is not attempting to put a name to the face. If the publication contains an opinion based on disclosed facts, and if the court finds that the supporting factual statements are libelous or slanderous per se, it is those factual statements, and not the opinion, that should be submitted to the jury. NBC
Subsid. (KCNC-TV), Inc. v. Living Will Ctr., 879 P.2d 6 (Colo. 1994); RESTATEMENT (SECOND) OF TORTS § 566 cmt. c (1977).
She is relying on Adam for her factual assertion in circumstances where she has no reason to believe that Adam has a reason to be untruthful.
She is asking the public to assist police by contacting them, not definitively saying that a person who looks similar to the poster is guilty of a crime, or urging unofficial retaliation. Specifically:
The paper poster would have the photos of the suspect, the police
department phone number, and ask if anyone has seen the suspect.
End Note: Case Law on Public Concern (from the annotations to Colorado Jury Instruction 22.1):
Whether or not a matter is one of public concern is a question of law for the Court and not a question of fact for the jury. See, e,g., Lewis
v. McGraw-Hill Broad. Co., 832 P.2d 1118 (Colo. App. 1992).
As to the criterion, “public interest or general concern,” see Burns
v. McGraw-Hill Broadcasting Co., 659 P.2d 1351 (Colo. 1983) (although
not an issue on appeal, the newscast of a story detailing the life of
a bomb squad officer who was seriously injured in an explosion was
analyzed as a matter of public concern); Diversified Management, Inc.,
653 P.2d at 1108 (because potential buyers were members of the general
public, an article reporting widespread and ongoing real estate
development schemes of questionable propriety was a matter of public
concern); Walker, 188 Colo. at 97, 538 P.2d at 456 (dispute between
property owner and antique dealer, when relevant to public interest in
failure of legal system to intervene in such disputes, was matter of
public concern); Lawson v. Stow, 2014 COA 26, ¶¶ 23-26, 327 P.3d 340
(statements made to public employees charged with investigating child
abuse relate to a matter of public concern); Shoen v. Shoen, 2012 COA
207, ¶¶ 25-27, 292 P.3d 1224 (husband’s statements addressing
inadequacy of police investigation into his wife’s murder, fourteen
years earlier, related to matter of public concern); Smiley’s Too, 935
P.2d at 42 (article about retailer’s business practices that affected
many consumers and involved a consumer affairs agency was a matter of
public concern); Lewis, 832 P.2d at 1121 (newscast involving public
controversy of racially discriminatory policies and implying plaintiff
had been previously arrested was matter of public concern); Seible v.
Denver Post Corp., 782 P.2d 805 (Colo. App. 1989) (defendants did not
dispute on appeal that allegations of attempts to evade handicapped
accessibility requirements of city building code involved a matter of
public concern); Bowers v. Loveland Publ’g Co., 773 P.2d 595 (Colo.
App. 1988) (news items relaying contents of police report is matter of
public concern).
On the other hand, the criterion “public interest or general concern”
was not met in Zueger, 2014 COA 61, ¶ 28 (business dispute between two
private parties discussed on Internet); McIntyre v. Jones, 194 P.3d
519 (Colo. App. 2008) (statement concerning qualifications of
applicant for bookkeeper of small homeowners association); and
Williams v. Continental Airlines, Inc., 943 P.2d 10 (Colo. App. 1996)
(statements by flight attendant that pilot attempted to rape her were
not matters of public concern).
While Williams v. Continental Airlines, Inc. bears some similarities to this case, there are important distinctions. The case there was seeking to identify an unknown person, but was identifying a particular person based upon undisclosed fact drawing from the credibility of the speaker, not reliance on a third party disclosed fact where no particular defendant is identified. And, that case accused someone of a crime rather than asking someone seeing the individual to contact police for further investigation.
There is no question of Adam "allowing" anything, from Mary's point of view. From Adam's point of view, what he "allowed" would make him equally guilty if the suspect sued.
Mary's rights are broadly the same as the police's, though stronger. Free speech is a red herring.
Cops, Mary or Adam are entitled to put up posters saying "This is someone we want to talk to…" and, depending on the evidence "This is a suspect."
– Robbie Goodwin Dec 09 '20 at 21:21