Kevin Curran
Monday, Dec. 24, 2001

A recent court decision in New York has extended those constitutional protections to the World Wide Web.

In a case pitting National Bank of Mexico, or Banamex, against the operators of Narconews.com, a state supreme court justice has ruled webmasters cannot be sued for libel unless the plaintiff can prove malice.

To reach her decision, Justice Paula Omansky relied on the U.S. Supreme Court’s 1964 Sullivan vs. New York Times decision. In that case, an Alabama city official was awarded a libel judgment by that state’s courts for an advertisement in the Times that he claimed sullied his reputation.

The high court took a very different view. Not only did the justices strike down the award, they firmly established the right of journalists to report on the acts of public officials. In his concurring opinion, Justice Hugo Black said, "To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed."

Reached in Bolivia, Narco News publisher Alberto Giordano told NewsMax.com he started the website in April of last year, "to offer authentic journalism about the U.S.-imposed ‘war on drugs’ in Latin America. Narco News became necessary because of a vacuum of information in the United States and English-language media about the longest-running and most expensive war in human history."

Narco News had published stories connecting a senior Banamex official with narcotics trafficking. The bank claimed the reports were false and libelous. (Citigroup, the parent company of Citibank, has since purchased Banamex.)

"It was a classic David vs. Goliath battle, " said Giordano, "and the giant with bad intentions fell from the impact of the rock of truth thrown from the slingshot of authentic journalism."

"This court finds that Narco News is a media defendant and is entitled to heightened protection under the First Amendment," Justice Omansky wrote in a decision reached without a trial. "Since principles of defamation law may be applied to the Internet ... this court determines that Narco News, its website, and the writers who post information, are entitled to all the First Amendment protections accorded a newspaper-magazine or journalist in defamation suits."

"This is a ridiculous interpretation of the Sullivan decision," according to Chapman University constitutional scholar John Eastman. "There is no market check on what (website operators) are doing and the malice standard is so high no one can win a case," against a website that harms their reputation.

Eastman told NewsMax.com the framers of the constitution, "gave the American people the right to speak, but never took away responsibility for the right to speak." Unfortunately, Eastman added, decisions like Sullivan have raised the bar to prove malice, "and the higher you raise the bar to protect free speech, the harder malice is to prove."

This decision, Eastman warned, could allow webmasters to, "completely trash other people’s reputations. It moves the pendulum much too far in the balance between protecting someone’s reputation and the right to free speech."

Not surprisingly, Giordano takes exception to Eastman’s view of the decision. "Does he think the New York Times and the commercial press don't engage in vendettas? That only small websites might do that?…Should the Times have a monopoly on free speech protection? No! The moment the government gets to choose which media is 'real' and which is not, is the moment that tyranny begins. I say, let a robust dialogue come from below as well as above. The public is smart enough to weed between what is authentic and what is false. It's not as if the big boys in the press corps have distinguished themselves by being responsible."

Giordano also insists he will not be changing how he reports on his website, even with the new constitutional protections. "We do our thing, we do it with dignity and with a mission of seeking the truth. We have always been responsible and this hasn't changed no matter what our status is under the law."

At this point, Eastman does not expect the Narco News case to reach the U.S. Supreme Court. He said that would come only if courts in other states issue conflicting opinions on similar cases.

Narco News will be back in court, however. Giordano said he will be filing a countersuit, "if the Court wishes to discourage this kind of frivolous abuse of the legal system, it must make Banamex-Citigroup pay, to deter other corrupt corporate interests from harassing other journalists and citizens in the same way."

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