The Volokh Conspiracy
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I noted in December that the UCLA First Amendment Amicus Brief Clinic filed an amicus brief, in Lowell v. Wright in this case, on behalf of the Institute for Free Speech; the Electronic Frontier Foundation; Profs. William Funk (Lewis & Clark), Ofer Raban (U. of Oregon), and Kyu Ho Youm (U. of Oregon); and bloggers Prof. Glenn Harlan Reynolds, Howard Bashman, SCOTUSblog, and me.
This morning, the Oregon Supreme Court has announced that it will review the decision below, and therefore consider the issue. Here again is our brief supporting the petition for review; I expect that we will refile a version of this brief in the coming weeks, at the merits stage of the case:
This case presents three important related questions:
(1) Does Oregon law unconstitutionally deny ordinary Oregonians the protections offered by Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974), which limits presumed damages in libel cases brought by private figures?
(2) Does Oregon law unconstitutionally discriminate in this respect against ordinary speakers, denying them the same First Amendment rights that the institutional media enjoy?
(3) Is it unsound for Oregon law to differ from the Ninth Circuit precedent that covers virtually identical lawsuits that happen to be within the federal courts' diversity jurisdiction?
The appellate court below, citing Wheeler v. Green, 286 Or 99 (1979), held that the First Amendment only requires proof of "actual malice" to recover presumed damages "in defamation actions brought by private parties against media defendants." Lowell v. Wright, 306 Or App 325, 347 (2020)(emphasis in original). But this analysis is not correct; to the extent Wheelerso holds, it fails to properly protect the First Amendment rights of nonmedia speakers.
This Court should grant review for three related reasons:
- This Court's holding in Wheeler created a First Amendment double standard that conflicts with subsequent United States Supreme Court decisions. The U.S. Supreme Court has refused to create any media-nonmedia distinction, both in libel cases and in First Amendment cases. And, as that Court has said, this equal treatment is especially sensible in the internet era. Media participation has become increasingly decentralized and commonplace, making it impossible to draw meaningful distinctions between media and nonmedia speakers. And even if such distinctions were possible, First Amendment values are better served by treating both types of speakers equally.
- Oregon's rule departs from the view of the federal circuit courts. All seven circuits to consider the question presented here have held that the First Amendment applies equally to media and nonmedia speakers in defamation actions; six of those circuits, including the Ninth Circuit, held this after Wheeler was decided. Oregon's conflict with the Ninth Circuit is especially troublesome because it makes the First Amendment standard for Oregon defamation cases turn on whether the case is in state or federal court.
- The Wheeler rule is also an aberration among state courts. Twenty state courts treat media and nonmedia speakers equally in defamation cases; only a few discriminate among them. Just last year, the Minnesota Supreme Court—one of the few that had endorsed a media-nonmedia distinction—joined the prevailing approach in treating all speakers equally. This Court should also take a fresh look at Wheeler, in light of the developments since 1979….
[I.] Wheeler Conflicts with Subsequent U.S. Supreme Court Decisions, Which Reject Lesser First Amendment Rights for Nonmedia Speakers
In defamation cases, the U.S. Supreme Court has indicated that media and nonmedia speakers are equally protected by the First Amendment. Most recently, in Citizens United v. FEC, 558 U.S. 310 (2010), the Supreme Court expressly endorsed the view that "the institutional press" has no "constitutional privilege beyond that of other speakers," in fact noting that it had "consistently rejected the proposition." Id. at 352 (internal quotation marks omitted). And in the process the Court endorsed the view of five concurring and dissenting Justices in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), a leading libel law precedent: Writing for the four dissenters, Justice Brennan wrote that "the rights of the institutional media are no greater and no less than those enjoyed by other individuals engaged in the same activities," id. at 784, and Justice White, concurring in the judgment, "agree[d] with Justice Brennan that the First Amendment gives no more protection to the press in defamation suits than it does to others exercising their freedom of speech," id. at 773.
Indeed, the Court has expressly refused to discriminate against nonmedia speakers in many other First Amendment contexts as well. It has refused to provide the institutional media with "a testimonial privilege that other citizens do not enjoy," Branzburg v. Hayes, 408 U.S. 665, 690 (1972), or "a constitutional right of special access to information not available to the public generally." Pell v. Procunier, 417 U.S. 817, 834 (1974). And it has declined to grant the institutional media preferential First Amendment treatment under generally applicable antitrust, copyright, and labor laws. See Eugene Volokh, Freedom for the Press as an Industry or Technology? From the Framing to Today, 160 U. Pa. L. Rev. 459, 506–09 (2012). The principle is that all speakers, whether the institutional media or ordinary people, are entitled to the same First Amendment protections when speaking to the public (whatever extra protection some speakers may enjoy under state law).
The constitutional protection provided in Gertz—in particular, that private-figure defamation plaintiffs must show defendants' actual malice ("knowledge of falsity or reckless disregard for the truth") to recover presumed damages—must therefore apply equally to media and nonmedia defendants. And this is consistent with Gertz itself: Nothing in the Court's discussion of presumed damages in Gertz, 418 U.S. at 349–50, turns on the speaker's status; the Court's references elsewhere in the opinion to "media" or "publishers" stemmed simply from the defendant in that case being a magazine publisher.
This equal treatment of all speakers, media and nonmedia, as to First Amendment defamation rules is also consistent with broader First Amendment principles. The Court has rightly viewed the First Amendment's "freedom … of the press" as protecting the press as a technology—the printing press and its technological heirs—and as a function (gathering and reporting information to the public using mass communications technology) rather than giving special rights to a particular industry. See generally Volokh, supra, at 463–65. The freedom of the press is a "fundamental personal right" that is enjoyed by nonprofessional leafletters as much as by the professional media: "The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. City of Griffin, 303 U.S. 444, 450, 452 (1938).
And this constitutional equal treatment makes sense, especially given developments since Wheeler. "With the advent of the Internet and the decline of print and broadcast media, … the line between the media and others who wish to comment on political and social issues becomes far more blurred." Citizens United, 558 U.S. at 352.
Ordinary consumers like Wright can now speak to the public the same way that reviewers writing for newspapers or magazines could, such as by reviews on Google and Yelp. They can also set up review sites that are essentially online magazines. No First Amendment line can be drawn between, say, a free alternative newspaper that publishes reviews, a consumer group's site, an individual's own complaint site, or a one-off review posted by the individual on a third-party site.
Indeed, the amici exemplify how blurry the media-nonmedia line would have to be:
- The Institute for Free Speech and the Electronic Frontier Foundation are not usually thought of as "media," but they maintain web sites (http://ifs.org/ and http://www.eff.org) on which they publish their views to the world, just as online magazines do.
- Howard Bashman is a lawyer, but his How Appealing blog is likely the nation's leading news source related to appellate litigation.
- SCOTUSblog is published by lawyers, but it has become the nation's leading news source on the Supreme Court.
- Reynolds publishes the InstaPundit blog, one of the leading political and public policy blogs in the country; he has also often written in newspapers such as USA Today and the New York Post, and has sometimes excerpted material from those articles on his blog.
- Volokh publishes the Volokh Conspiracy blog, also a leading blog on law; for some years it was independently hosted but since 2014 has been hosted at mainstream media sites (the Washington Post and then Reason magazine).
- Youm and Volokh publish their views to the public via Twitter, at @MarshallYoum and @VolokhC.
- And Profs. Funk, Raban, Youm, Reynolds, and Volokh have regularly conveyed their analyses to lawyers, judges, and academics by publishing law review articles.
How can the law sensibly and fairly decide which of the amici are "the media" (at least for certain purposes) and which are not?
And even if it were possible, drawing a media-nonmedia distinction would be unwise. As the Supreme Court explained in Gertz, juries in defamation cases might be tempted to use presumed damages (as opposed to provable compensatory damages) "to punish unpopular opinions rather than to compensate individuals for injury sustained." Gertz, 418 U.S. at 349. And by giving juries an "uncontrolled discretion" to award damages to reputation, the presumed damages doctrine "unnecessarily exacerbates the danger of media self-censorship" and chills the exercise of First Amendment rights. Id. at 349, 350.
This logic applies even more clearly to nonmedia speakers. Media speakers are more likely than most nonmedia speakers to have considerable assets, enabling them to fight libel cases; they also often buy libel insurance, because that is needed for them to function (and is a tax-deductible business expense). They also have paid staff who are trained to investigate the facts, keep careful notes, and otherwise protect their institutions from liability. Nonmedia speakers generally lack these protections: They have fewer assets; they often lack libel insurance; and they have more limited investigatory resources. They are thus at least as subject to the chilling effect of presumed damages as are media speakers—and therefore need the same First Amendment protections as do the traditional media.
This case would not require this Court to reconsider the result in Harley-Davidson Motorsports, Inc. v. Markley, 279 Or 361 (1977). Though that decision also mentioned the media-nonmedia distinction, it did so with regard to speech said privately to a business rather than to the public, id. at 363, and on a matter where "there is no issue of public concern," id.In Dun & Bradstreet, the U.S. Supreme Court held that the First Amendment does not affect libel liability in cases where there is no issue of public concern, especially when the speech is conveyed just to a few listeners. 472 U.S. at 761–62 (lead opin.). The result in Harley-Davidson can thus be reconciled with the U.S. Supreme Court precedent in Dun & Bradstreet (even though Dun & Bradstreet rejected the media-nonmedia distinction). But Wheeler cannot be reconciled with the U.S. Supreme Court precedent in Gertz and Citizens United.
[II.] Wheeler Also Conflicts with Every Federal Appellate Court to Consider the Same Question, Including the Ninth Circuit
All seven federal appellate courts to consider the issue have held that the actual-malice rule applies equally to private-figure defendants in defamation cases. [Citations omitted. -EV] Six of those decisions postdate Wheeler.
Most importantly, the Ninth Circuit has held that "the First Amendment defamation rules in Sullivan and its progeny apply equally to the institutional press and individual speakers." Obsidian Fin. Grp, 740 F.3d at 1291. This means that federal and state courts in Oregon dealing with virtually identical cases now apply different rules:
- Non-Oregon speakers (such as the defendant in Obsidian) who allegedly libel an Oregonian can get the protections offered by Gertz, because they can litigate their cases in federal court.
- Oregon speakers who allegedly libel another Oregonian cannot get those protections, because their cases must be litigated in state court.
This Court should step in to decide whether this discrimination against Oregon speakers should remain in place.
[III.] Wheeler Also Conflicts with the Great Majority of State Courts
Published appellate decisions in twenty states, plus the District of Columbia, have secured to media and nonmedia speakers the same First Amendment rights in tort lawsuits brought based on speech communicated to the general public. [Citations omitted. -EV] This is consistent with the view that all who use "the press" in the sense of the technology of mass communication have equal First Amendment rights. Volokh, supra, at 463–65. On the other hand, only two states besides Oregon have published precedents denying full First Amendment protections to nonmedia speakers who communicate to the general public. Fleming v. Moore, 275 S.E.2d 632, 638 (Va. 1981); Denny v. Mertz, 318 N.W.2d 141, 152–53 (Wisc. 1982). One other state established a rule that certain subjects, when addressed by media defendants, are by definition matters of public concern, but this does not itself create a media/non-media distinction like that applied by the decision here. [Footnote discussing Senna v. Florimont, 958 A.2d 427 (N.J. 2008), omitted. -EV]
Indeed, other states that had previously rejected the prevailing view have since reversed course. Just last year, the Minnesota Supreme Court held that private-figure plaintiffs must prove actual malice to recover presumed damages against nonmedia defendants, Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 878-79 (Minn. 2019), and departed from its contrary decades-old precedent in Richie v. Paramount Pictures Corp., 544 N.W.2d 21 (Minn. 1996). Likewise, the Louisiana Supreme Court in Kennedy v. Sheriff of E. Baton Rouge, 935 So. 2d 669, 678 (La. 2006), held "that a private individual's right to free speech is no less valuable than that of a publisher, broadcaster or other member of the communications media," effectively overruling contrary Louisiana Court of Appeals precedent (Gilbeaux v. Times of Acadiana, Inc., 693 So. 2d 1183, 1188 (La. Ct. App. 1997)).
Wheeler is inconsistent with subsequent Supreme Court precedent, federal appellate precedent, and the prevailing view in many other state courts. Wheeler conflicts with fundamental First Amendment values: It chills the speech of nonmedia speakers in an electronic age, when that speech has become indistinguishable from that of media speakers, and just as significant to the public. And Wheeler's inconsistency with Ninth Circuit precedent leads to different First Amendment rules being applied in libel cases depending on whether they are filed in state or federal court. This Court should grant review to consider whether this aspect of Wheeler should be overruled.