Saturday, March 10, 2007

Not exactly, D.J.

As perhaps some of you know, boys and girls, Michael Brodkorb won a summary judgment motion in his defense of a defamation suit by Blois Olson. You can read the court's opinion here. The court did not rule that Brodkorb's statements about Olson were true; in fact, the court implied that the statements were false. The court rather found that Brodkorb's actions did not meet the actual malice test of New York Times v. Sullivan and its Minnesota companion, Jadwin v. Minneapolis Star and Tribune Co. Without proof of actual malice, Olson could not win.

Now, Spotty thinks Michael Brodkorb and MDE are walking, talking cases of actual malice, but that is neither here nor there for what Spot wants to discuss. Spot wants to discuss what D.J. Tice says the case Stands For. D.J. thinks that the court found that Michael Brodkorb was a journalist. That would be odious indeed, wouldn't it, boys and girls?

First of all, the case has no value as precedent because it is the ruling of a Minnesota trial court and will not be collected and published the way appellate court opinions are. The internet being what it is, some litigant may dust it off and quote it in the future, but it has no stare decisis value.

Moreover, the court did not explicitly hold that Michael Brodkorb is a journalist. Here is the sum total of what the court said on the subject:

The Court further notes that there is no expert opinion in this case that the scope of Defendant's verification efforts violated current journalistic standards; this type of opinion, absent here, can lead to circumstantial evidence of malice. See Workman v. Serrano, WL 771580 (Minn. Ct. App. March 28, 2006), rev. denied May 24, 2006 (unpublished).

What the court said was: if there was expert proof of deviation from a journalistic standard, that might be proof of malice. No way, no how is that the same as saying that bloggers are journalists. "The Court further notes" is hardly a conclusion of law in this case.

Journalists do love to quote Times v. Sullivan, but at its base, Sullivan is not really a journalism case. It's a public figures case. Public figures have to prove actual malice in order to prevail in a defamation case. Presumably, what constitutes actual malice will depend some on who utters the defamatory statements and the circumstances under which they were made. Spot can imagine a community where journalistic standards were so low that proof of meeting the standard might not take the speaker or writer off the hook for malice. Kind of like proving you were as competent as the other doctors in a hospital full of nincompoops.

And Blois Olson was a public figure. But don't take Spot's word for it:

By stipulation of the parties, Plaintiff Blois Olson is a limited-purpose public figure and the statements in question fell within the scope of Mr. Olson's public figure status; therefore, any defamation by Defendant must stand on clear and convincing legs of actual-malice, knowledge of its falsity.

In other words, Blois Olson agreed that he was a public figure for the purposes of what Michael Brodkorb said about him.

D.J. says the parties think—and apparently he does, too—that the ruling makes bloggers "full-fledged" journalists:

It is difficult, in reporting about public figures, to act with what the law considers "reckless disregard" for the truth — but it is not impossible. And if bloggers are going to be consistently held to that standard, some of them will need to discipline themselves.

On the other hand, for good and ill, if bloggers receive all the protections afforded traditional reporters — and especially if, as seems sensible, they receive the still greater latitude extended to commentary — they will generally remain unfettered in their ability to let the fur fly.

Do you get the feeling the prospect rather bothers D.J., boys and girls? Well, Spot hates to admit it, but he agrees with D.J. here. Public figures have to prove actual malice under Sullivan, but neither that case nor the district court's ruling in Olson v. Brodkorb say anything about, for example, the extension of the limited journalist's privilege as to confidential sources of bloggers.

So, to those of you tempted to tip Michael Brodkorb, be careful. It's probably still different than talking to Bob Woodward.

Update: Spot forgot to give a thump of the tail to MNO and da Wege for their orginal posting and spade work.

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