The sound of clinking glass you heard this morning, gentle readers, was Katie toasting Michael Brodkorb, the recently “outed” blogger author/publisher of Minnesota Democrats Exposed. Brodkorb got sued for defamation by Blois Olson for making comments about the raison d'être for Olson’s company’s criticism of the campaign being run by Colleen Rowley.
Katie gives us a thrilling account of the suit and the plucky Brodkorb, determined to uphold the First Amendment against all comers, including the mainstream media. Well, maybe. This is actually a pretty garden-variety reputational tort case, except for one thing.
Olson has to prove that Brodkorb published statements about Olson that were defamatory to Olson or his company, that the statements caused a diminution of the reputation of Olson, and the amount of damage to that reputation. The last time Spot looked, it was still Brodkorb’s burden to prove the truth of the statements; truth is a defense to defamation. Now for the twist.
Is Brodkorb, especially the anonymous Brodkorb, a news organization? If he is, he is entitled to protection against defamation claims against him, unless it is demonstrated that he acted with actual malice. Actual malice here means not acting with true ill will, but rather knowledge of the falsity of the statements, or a reckless disregard with respect to the truth of them. If you would like to read more about this, just google (a verb now, alas) New York Times v. Sullivan.
In addition, Brodkorb might be entitled to some protection of his sources because of a reporter’s privilege. Are bloggers, including the anonymous ones, news organizations? It’s a very good question, and one that hits close to home for Spotty. Let’s take the issues in reverse order.
When a news organization quotes an anonymous source, it is substituting its own credibility for that of the unnamed source. In other words, the news organization is vouching, to at least a degree, for the source, and it is the brand name of the news organization on which the reader is relying. That was true at least until Judy Miller came along.
In the case of anonymous bloggers particularly, there is no one’s credibility backing up or vouching for the source. Is that a problem? Potentially. (Spot wants to interject here that he has learned a lot about communication from not only Bob Dole, but Don Rumsfeld as well.) That’s why Spot tries to only editorialize on and recite facts that are independently verifiable, usually by including a link to a media outlet, a legislative source, or the like. Brodkorb, on the other hand, trades on gossip at Minnesota Democrats Exposed.
As such, it is useful for readers to know that Brodkorb is a flak, a party apparatchik, a factotum, a grub, a hack, a scullion for the Republican Party. Isn’t it useful for readers to know the publisher of the gossip?
On the malice issue, Olson has obviously thought about it already, in that he asked for a retraction, which he didn’t get. That’s one of the ways to demonstrate malice: giving the publisher a chance to take back what he said. Brodkorb may find himself in the interesting position of protecting a source and therefore being unable to produce evidence in support of the truth of what he has said.
Spot does find himself, remarkably enough, in agreement with Katie when she writes that bloggers can serve as informational ferrets, prodding the institutional outlets to investigate things that ought to be investigated.
UPDATE: Spot had the occasion to do something he hasn't done for many years: actually read Times v. Sullivan. In the first part of the opinion, Justice Brennan states that the issue is whether freedoms of speech and press limit the award in libel cases. However, as one reads the opinion, it becomes apparent that the holding rests really on the Speech Clause of the 1st amendment, as applied to criticism of public officials or official conduct.
In other words, it doesn't really matter if MDE and Brodkorb are press or media. What matters for purposes of the "actual malice" requirement of Times against Sullivan is whether Blois Olson is a public official or acting is a government capacity, which he certainly does not seem to be.
Tags: Katherine Kersten hearts Michael Brodkorb, a formerly anonymous blogger
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