Saturday, March 17, 2007

Times v. Sullivan redux

In the Blog House today, Tim O'Brien recognizes the efforts of blogger Josh Marshall of Talking Points Memo for developing the fired-U.S. Attorneys story to a point where even the MSM couldn't ignore it. Well, he didn't say that—exactly—but that's what happened. Josh deserves a lot of credit for one of the major stories in what will be looked back on as Blood in the Water Week for the Bush administration.

O'Brien included this little item at the end at the end of today's Blog House:

A defamation lawsuit filed against Michael Brodkorb of Minnesota Democrats Exposed by Blois Olson of New School Communications was dismissed last week by a Dakota County judge. Olson, in the eyes of the court, was a public figure, thus he would have to prove actual malice or reckless disregard for the truth.

Congrats, bloggers, you're covered by Sullivan vs. the New York Times (so is the Weekly World News). But don't crack the champagne just yet. With blogs with "Exposed" or "Dumped" in their names, actual malice might not be hard to prove.

Sigh. The meaning of "actual malice" has caused sooooooooo much confusion.

First, let it be said first that whether bloggers were covered by the ruling in Times v. Sullivan was not in doubt. Of course they are. Everyone has the protection of the "actual malice" standard when speaking or writing about public figures. Sullivan was not just press case; it was a speech case.

Here's one summary of the holding in Times v. Sullivan:

The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.

Notice, boys and girls, this standard does not include anything about harboring ill will toward the person you're talking or writing about.

Let's put the standard into action!

Assume there is a blogger [call him "Spotty," Spotty!], all right we'll call him "Spotty," who really, really dislikes George Bush. Spotty writes that George Bush and his claque of sycophants lied the United States into a war with Iraq. George Bush hires the Texas law firm of Gonzales and Miers to sue Spotty, alleging, among other things, that Spotty possessed the requisite "actual malice" because he really, really dislikes George Bush.

Spotty replies, hey wait a minute, among the things Spot relied on in making that statement was the speech of a 24-year CIA veteran who spoke recently in the Twin Cities about the politicization of the intelligence services. The fact that Spot dislikes the prez is irrelevant; Spot's statement was not reckless.

Sheesh! It is not as though Spot accused Bush of doing blow or avoiding the draft. Sorry. Bad examples. It is not as though Spot accused Bush of being a pedophile, or that he has a "loathsome social disease." (Spot is not making those accusations.)

Having "Exposed" or "Dumped" in a blog name is really not relevant to an inquiry about actual malice. By itself, it is not proof of recklessness. A successful defamation plaintiff still has to prove that the defendant knew the statements were false (whether or not the defendant disliked the plaintiff) or that the defendant made the statements without any foundation for making them.

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