The Volokh Conspiracy

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Free Speech

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


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.