Earlier this week the Third Circuit issued a non-precedential opinion in Cheney v. Daily News, reviving a firefighter’s defamation and invasion-of-privacy claims against a newspaper that used his photo, naming him in the caption, to accompany a news story about a fire department sex scandal he had nothing to do with. The same panel had issued an opinion coming out the other way back in February, then granted panel rehearing and heard oral argument.
I don’t have an intelligent view about the merits here, but I do applaud the panel’s willingness to reverse course. I’m a firm believer in panel rehearing. Modern appellate judges simply don’t have the luxury of agonizing forever over each case. Panel rehearing plays a valuable role in helping courts decide cases efficiently and accurately, but fulfilling that role requires judges confident enough to admit their rare mistakes.
As Justice Felix Frankfurter wrote, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”