Free Speech

Ordinary Oregonians Have Lesser First Amendment Rights Than the Institutional Media Do

|The Volokh Conspiracy |

So the Oregon Court of Appeals reaffirmed in yesterday's Lowell v. Wright decision:

Plaintiff Lowell, the owner of a piano store, brought this defamation action against defendant Wright, an individual, and defendant Artistic Piano, a competitor piano store for whom Wright works, after Wright posted a negative Google review about plaintiff's business….

The court concluded that the review was speech on a matter of public concern, but about a private figure, and that some statements in the review were factual assertions and not just opinion; and this would generally mean that,

Under Gertz v. Robert Welch, Inc. (1974), when the plaintiff in a defamation action is a private party (not a public official or public figure), the First Amendment limits the plaintiff's recovery of presumed or punitive damages to situations in which the plaintiff proves that the defendant acted with "actual malice" … [—]knew that the statements were false or acted with reckless disregard of whether they were false….

But not in cases where the speakers are ordinary citizens:

The Oregon Supreme Court has expressly held that the First Amendment limitations in Gertz apply only in defamation actions brought by private parties against media defendants. Harley-Davidson v. Markley (Or. 1977); Wheeler v. Green (Or. 1979) ("Although we acknowledge that there is authority to the contrary, we conclude that we were correct when we held in Harley-Davidson … that the rules first announced in Gertz, applicable to cases in which the plaintiff is neither a public official nor a public figure, apply only to actions against media defendants.").

The Ninth Circuit and a number of other courts have rejected a distinction between media and nonmedia defendants for First Amendment purposes. See Obsidian Fin. Grp., LLC v. Cox (9th Cir. 2014) (holding that "the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers"). However, the United States Supreme Court has historically made a point of referring to the defendants in its defamation cases as "media defendants," and it has avoided ever addressing whether that caselaw applies equally to nonmedia defendants. In the absence of controlling United States Supreme Court authority, we are bound by the Oregon Supreme Court, not the Ninth Circuit. {Defendants suggest that the Court abolished the media/nonmedia distinction in Citizens United v. FEC (2010), specifically pointing to the Ninth Circuit's citation to Citizens United in Obsidian. We disagree that Citizens United is dispositive on the present issue. Indeed, the Ninth Circuit itself did not treat Citizens United as dispositive, only as indirectly supportive.}

The court is correct that it's not bound by Ninth Circuit precedents, only by Oregon state precedents and the U.S. Supreme Court's precedents. And I can see why it would view Citizens United, which wasn't a libel case, as not strictly binding here, though I actually think that the language of Citizens United (and its endorsement of five Justices' views in Dun & Bradstreet v. Greenmoss Builders, which was a libel case) is pretty clear:

"We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting, and White, J., concurring in judgment). With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred.

In any event, it looks like it's up to the Oregon Supreme Court to correct this (assuming the defendants ask for review, which I hope they would); and I hope that court does what the Minnesota Supreme Court did last year, when it essentially reversed its previous endorsement of the First Amendment media-nonmedia distinction.

For more on the First Amendment providing equal rights to media and nonmedia speakers, see my article on Freedom for the Press as an Industry, or for the Press as a Technology?—From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012), the amicus brief I filed in the Minnesota case, or my briefing in Obsidian Finance, which I had litigated as Ms. Cox's lawyer.


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  1. While I disagree with the precedent, I’m glad they’re following it. Constitutional law should not inconsistently hinge on what a given judge wants the outcome to be. Here’s to the Oregon Supreme Court cleaning up their house.

  2. The flip side of this is that the paid media has rights greater than the paid media.

      1. For example, when MA issues a driving ban due to snow, *recognized* media (with state-issued press passes) are exempt while citizen journalists face felony charges for being on the roads.

        It says “freedom of the press”, not “government-recognized press.”

        1. And I should have specified “journalists who earn over half of their income as a journalist” versus those who have day jobs to subsidize their journalism.

  3. It’s the correct position for an intermediate appelate court to take.

    And it’s open to the Oregon Supreme Court to maintain the position and see if the US Supreme Court wishes to reverse it.

    Professor Volokh obviously thinks otherwise. But it is not an unreasonable interpretation to interpret “speech” as refering to private activity and “the press” as referring to institutional activity.

    “The press” can be interpreted as analogous to “the bar.” Just as a right to counsel, is different from a right of “the” bar, so press freedom could be construed as different from freedom of “the” press.

    How else do you explain the fact that one right (the press) has a definite article, and the other (speech) doesn’t? Words are not to be interpreted as superfluities.

    I agree that Citizens United is suggestive of the Supreme Court sharing Professor Volokh’s view on the matter. But it’s not dispositive.

    Further, Citizen’s United was a controversial 5-4 case, and the composition of the court has changed. It’s always possible that one or more of the new justices will think differently about a case like this.

    1. I think this is a great example of why we should care less about originalism and more about how texts interact with the modern conditions of society.

      Just like we can’t resolve all those Fourth Amendment cell phone cases Prof. Kerr cares about without taking into account that cell phones are very different than prior data storage mechanisms, we shouldn’t be looking at 200 year old distinctions between speech and press when the Internet has made everyone, potentially, a journalist.

      1. On the other hand, are we arguing over something due solely to a change in the dialect over the past 200+ years? The meanings of words can change over time but the original intent does not.

      2. I don’t think that critique really works.

        As Professor Volokh has explained, the First Amendment has never granted a special license to the institutional press, and, properly understood, has always protected everyone using the printed word in equal measure. So we don’t need to update our understanding of how it works, because it already works the way we want it to.

        Conversely, if the First Amendment as originally enacted had provided special protections for the institutional press, and changing technology had made us think those protections should be extended to everyone, it seems to me that the best way to do that would be to actually pass and ratify an amendment saying so, instead of having a handful of judges rely on their own intuition about “how texts interact with the modern conditions of society.”

        1. Exactly, but citizen journalists will be arrested.

      3. “we shouldn’t be looking at 200 year old distinctions between speech and press when the Internet has made everyone, potentially, a journalist.”

        ?? 200 years ago the printing press made everyone, potentially, a journalist.

        1. You have forgotten the first rule in an originalist situation” — the right-wing argument wins!

          Don’t miss the “2nd rule in a crisis situation,” also available at YouTube. (This site won’t permit a link.) Resist watching the “third rule in a crisis situation” on YouTube, though — watch the movie.

          1. “You have forgotten the first rule in an originalist situation” — the right-wing argument wins!”

            That’s not just originalist situations, Arthur.

    2. Are you sure about “the press” referring to an institution? Or could “the press” refer to the printing press machine? It’d be useful to check the OED for the history of the meaning behind “press”. Under this, I’d interpret “the press” to refer to the printed word and speech to refer to that which is stated aloud. The Institutions we currently refer to as “the press” need not factor into this at all.

    3. I agree that, in light of the clear precedent from the next highest court, and the suggestive language from the very highest, either conclusion from the court of appeals would be defensible. (Although I don’t see how the Supreme Court’s decision are entitled to any less weight because they’re controversial.)

      But that’s only because of the importance of vertical stare decisis. The Oregon Supreme Court’s interpretation of the first amendment is clearly indefensible on the merits, as Prof. Volokh has explained.

  4. I’m having a hard time understanding what kind of statement about a piano store could be of “public concern.” Apparently, that term has been stretched to the limit and beyond.

    1. From the opinion:

      For First Amendment purposes, speech need not concern the most pressing political or social issues of the day for it to be on a matter of public concern. Mine Workers v. Illinois Bar Assn., 389 US 217, 223, 88 S Ct 353, 19 L Ed 2d 426 (1967) (“The First Amendment does not protect speech and assembly only to the extent it can be charac-terized as political. ‘Great secular causes, with small ones, are guarded.’ ” (Quoting Thomas v. Collins, 323 US 516, 531, 65 S Ct 315, 89 L Ed 430 (1945).)). Both the individual consumer and society in general have strong interests in the free flow of commercial information. Va. Pharmacy Bd. v. Va. Consumer Council, 425 US 748, 763, 96 S Ct 1817, 48 L Ed 2d 346 (1976) (further stating that an individual consumer’s interest in the free flow of commercial information “may be as keen, if not keener by far, than his interest in the day’s most urgent political debate”). Relatedly, consumer speech regarding goods, services, and the businesses that provide them to the public has typically been recognized as speech on a matter of public concern.5See, e.g., Neumann, 358 Or at 720 (consumer review of a wedding venue was speech on a matter of public concern); Unelko Corp. v. Rooney, 912 F2d 1049, 1056 (9th Cir 1990) (Andy Rooney’s statement on 60 Minutes that a windshield-wiper product called Rain-X “didn’t work” was speech on a matter of public concern).

  5. Journalists can’t have special rights!

    Only people claiming superstition-based privilege and those seeking liability limitations can have special rights!

    1. “Only people claiming superstition-based privilege and those seeking liability limitations can have special rights!”

      You must be really pissed at the Dems for overturning Scalia’s ruling!

  6. Oh come on; you’re just putting up the Lathrop Signal here.

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