Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

Vicki Iseman, a Wasington lobbyist, yesterday filed a defamation action against The New York Times, four of the newspaper's reporters, its executive editor, and the chief of its Washington bureau in federal court in Richmond, Virginia.  In her complaint, she contends that a February 2008 article published in the Times that linked her to Senator and then-Presidential candidate John McCain was susceptible of defamatory meaning.  She seeks to recover $27 million in damages for the alleged defamation.

Iseman alleges the article, through its literal words and by implication, conveyed a defamatory meaning that "Ms. Iseman exploited an alleged personal and social friendship with Senator McCain to obtain favorable outcomes for her clients, engaging in 'inappropriate' behavior that constituted a conflict of interest and a violation professional and ethical norms in breach of the public trust."  She further alleges that the article, again by its literal words and by implication, conveyed a second defamatory meaning that "Ms. Iseman and Senator McCain had engaged in an illicit and inappropriate romantic relationship while Ms. Iseman was a lobbyist conducting business on behalf of clients before the committee chaired by Senator McCain."

In response to Iseman's complaint, the Times issued a statement that "[w]e fully stand behind the article.  We continue to believe it to be true and accurate, and that we will prevail.  As we said at the time, it was an important piece that raised questions about a presidential contender and the perception that he had been engaged in conflicts of interest."

In asserting that the article falsely stated that Iseman and McCain had engaged in a romantic relationship, Iseman cited in her complaint the article's second paragraph, which read as follows:

A female lobbyist had been turning up with him at fund-raisers, visiting his offices and accompanying him on a client’s corporate jet.  Convinced the relationship had become romantic, some of his top advisers intervened to protect the candidate from himself — instructing staff members to block the woman’s access, privately warning her away and repeatedly confronting him, several people involved in the campaign said on the condition of anonymity.

The article went on to note that both McCain and Iseman "say they never had a romantic relationship."  Iseman contends the publication of these denials "did not negate the defamatory meanings" she says the article conveyed, as "most readers would understand [such denials] as 'obligatory,' and therefore precisely what Ms. Iseman and Senator McCain would be expected to say."  She alleges further that the defamatory meaning she pleads in her complaint is the very meaning most readers and media outlets in fact took away from the article, citing the "chorus" of broadcast, print, and Internet media that, after the article's publication, expressed that the article's "core meaning . . . was that Senator McCain and Ms. Iseman had engaged in an improper romantic relationship and improper professional relationship."  She includes over three pages of examples of these expressions in her complaint.

We will follow closely the progress of Iseman's lawsuit.  News reports about relationships between lobbyists and politicians, as well as about politicians' alleged affairs, are common fare these days.  Iseman's case may prompt significant legal wrangling over whether the "gist" or "sting" of the Times' article was substantially true, as well as over Iseman's contention that she is a private figure, rather than a public figure, for purposes of the standard of fault she must prove.  The case may also prompt a legal fight over the identity of the two anonymous sources cited in the article as the basis for many of the statements Iseman challenges.

Finally, the case is also noteworthy in that a well-known First Amendment scholar and Dean of the Washington and Lee University School of Law, Rodney Smolla, is listed in the complaint as one of the attorneys representing Iseman.  Smolla successfully represented the plaintiffs in the famous "hit man" lawsuit, also litigated in the Fourth Circuit, prevailing in an appeal from the entry of summary judgment in the publisher's favor in that case.

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As we discussed here, courts across the country are now dealing with the question of how state shield laws apply to anonymous commentary on newspaper web sites.  Mirroring these cases is a series of cases approaching the issue from the perspective of the people doing the commenting.  More specifically, courts are addressing the question of whether anonymous commenters on web sites have a First Amendment right to remain anonymous and, if so, whether the web site hosts have standing to raise those First Amendment rights in countering efforts to compel the hosts to disclose the commenters' identities.

In a significant decision on this issue, a federal judge in the Middle Distrist of Pennsylvania ruled in early December that a newspaper moving to quash a subpoena seeking the identities of anonymous commenters on its web site had standing to assert the First Amendment claims of those commenters.  Enterline v. Pocono Med. Ctr., No. 3:08-cv-1934, (M.D. Pa. Dec. 11, 2008).

The underlying case involved a sexual harassment and retaliation claim asserted by Brenda Enterline, an employee of Pocono Medical Center.  In October, The Pocono Record published an article about the lawsuit, and, in response, several people with what seemed to be personal knowledge of the claims posted commentary anonymously on the paper's web site.  Enterline then subpoenaed the paper for the identities of those commenters.  The paper objected on the grounds that: (1) the information was protected by the First Amendment; (2) the information was protected by Pennsylvania's shield statute; and (3) the subpoena did not comply with Rule 45.  Because the court found in favor of the paper on its First Amendment argument, it did not address the second and third objections.

The bulk of the court's opinion explains why the newspaper has the standing required to assert the free-speech rights of the commenters.  In particular, the question for the court was whether the paper could invoke the doctrine of third-party standing in this case.  Under that doctrine, outlined in Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984), if a party that would normally have standing is prevented by "practical obstacles . . . from asserting rights on behalf of itself," a third party can do so if: (1) it can allege a sufficient injury-in-fact; and (2) it "can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal."  The court ruled that the commenters could not practically assert their own rights in this case without revealing their identities, and since they apparently worked for the defendant, such a disclosure could cost them their jobs.  The court also agreed with the newspaper's argument that the paper's web site fora would lose validity and readership if it was forced to reveal the commenters' identities, and that such a loss would result in decreased readership and advertising revenue.  This, the court said, was enough to satisfy the injury requirement.  None of the parties disputed that the paper would zealously advocate for the rights of the commenters.

With standing established, the court then addressed the core First Amendment question.  Citing Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001), the court used a four-part analysis to decide whether the First Amendment rights of the commenters outweighed the plainitff's need for the information.  The court asked whether:

(1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3)the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.

The court in Enterline held that the plainitff had not made a sufficient case that the information sought was unavailable from any other source, especially since the commenters were employees of the medical center and could be identified through normal discovery.

Also in early December, Maryland's highest court heard arguments on whether the host of an online business discussion forum should be forced to reveal the identity of an anonymous commenter who the plaintiff company claims is liable for defamation.  This case presents virtually the same facts as the cases outlined in our earlier post -- the plaintiff in a defamation suit serves a subpoena on a third-party web site seeking the identity of anonymous commenters.

Appellant Independent Newspapers, Inc. asked the court to allow the web site to protect the identity of the commenters and to adopt a five-part test borrowed from a New Jersey appeals court's opinion in Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. Super. App. Div. 2001).  Under that formulation, before requiring disclosure, a court should:

(1) provide notice to the potential defendant and an opportunity to defend her anonymity; (2) require the plaintiff to specify the statements that allegedly violate her rights; (3) review the complaint to ensure that it states a cause of action based on each statement and against each defendant; (4) require the plaintiff to produce evidence supporting each element of her claims; and (5) balance the equities, weighing the potential harm to the plaintiff from being unable to proceed against the harm to the defendant from losing her right to remain anonymous, in light of the strength of the plaintiff’s evidence of wrongdoing.

The Pennsylvania federal court indicated in its opinion in Enterline that its four-part test is "similar" to the New Jersey test suggested in the Maryland matter, but it appears that the federal test is actually borrowed from the typical reporter's shield statute and provides more protection to the commenters.  In particular, as in Enterline, the exhaustion requirement can be a significant hurdle for litigants to overcome.

Click here for a run-down by the Citizen Media Law Project of other states that have recognized the First Amendment right of Internet commenters to remain anonymous.

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In a previous post, we discussed the protections afforded to journalists by state shield statutes.  These statutes, which some 35 states have passed, protect reporters from being forced to identify their sources and disclose other source materials except under certain, limited circumstances.  In that post, we mentioned that one of the unanswered questions in most states is how these shield statutes will be interpreted in a world of bloggers and other "new media" journalists.

In recent months we have seen the first in what will likely be a series of decisions involving efforts by third parties (either law enforcement officials or civil litigants) to force newspapers to reveal the identity of anonymous commenters on their web sites.  The key question in these cases is whether a commenter to a newspaper web site is a "source" as defined in the statute.

The first case arose in Montana and involved The Billings Gazette newspaper.  A local politician who had filed a defamation lawsuit against his political opponent sought the identity of an anonymous commenter on the newspaper's web site, apparently in the belief that the commenter was in fact his opponent.  The paper argued that online comments to posted stories are a "core service and integral part" of the newspaper's business because they "foster[] democratic discourse through communities of users."  In an oral ruling from the bench, the judge in Montana quashed the subpoena, holding that the state's shield statute protected anonymous commenters as "confidential sources."

Just a few weeks later in Oregon, another plaintiff subpoenaed The Portland Mercury and the Willamette Week newspapers for the IP address of an anonymous commenter who, the plaintiff claimed, had defamed him in a comment on the newspapers' web sites.  The judge in this case took a different approach.  Rather than calling the commenter a "source," the judge held that the IP address was "information" as defined by the Oregon Revised Statutes, and that the shield statute protects "any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public."

Soon after that decision was issued, in an almost identical case, a court in Florida quashed a subpoena issued to the Northwest Florida Daily News.  The court held that Florida's shield statute applied to Internet commenters as "sources."

The final case, which is still pending, is different from the others in that it involves a criminal matter.  In this case, the state's attorney in Madison County, Illinois issued a subpoena to The Alton Telegraph, seeking the IP addresses of five anonymous commenters on the newspaper's web site.  Law enforcement officials contend the commenters to an online story about a murder investigation might have information relevant to the criminal prosecution.  The paper sought to quash the subpoena, arguing that the posters were "sources" under the Illinois shield statute, and that the state had not made the required showing to overcome the privilege.  In response, the state has argued that because the commenters never actually spoke to a reporter with the newspaper, and because the information they posted was not used in an actual story, they were not "sources" under the shield statute.  The court has not yet issued a ruling on the newspaper's motion to quash.

These cases represent just the first skirmishes in what will likely be a battle in every state with a shield statute to better define how these laws interact with the new face of journalism.  Just as courts have had to grapple with the question of who is a "journalist" in a world of bloggers, they will now have to decide what a "source" is.  As traditional newspapers continue to focus their efforts on building a viable Internet presence, their ability to protect the identity of the members of the community who contribute to that presence will be vital.

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In a prior post, we described the contours of the fair report privilege.  This common-law privilege protects journalists from liability for republishing factual errors that appear in official records -- such as a police report, government press release, or criminal indictment -- or that are made during official proceedings -- such as a city council meeting or criminal trial.  So long as the journalist provides a substantially accurate account of the record or proceeding, she will not face liability if the record or proceeding described contains an error that someone contends is defamatory.

The privilege serves an important function because it allows news organizations to report freely on newsworthy government records and proceedings without having first to go behind the records or proceedings to confirm the accuracy of the facts the records contain or of the statements made during the proceedings.  For example, reporters covering the Blagojevich scandal have been able to recount the details set forth in the lengthy affidavit that accompanied the Illinois governor's federal indictment without fear of being sued if any of those facts turn out to be false.  It is therefore critically important that courts give the privilege robust application.

Two recent decisions, one from New Jersey and one from Kentucky, give some cause for concern because they in different ways cabin in the operation of the privilege.  The New Jersey decision, Salzano v. New Jersey Media Group, Inc., involved a defamation claim that arose out of an article written about an adversary complaint lodged by the trustee in a federal bankruptcy proceeding.  The adversary complaint alleged that the plaintiff, a former officer of the bankrupt company, had misappropriated funds from the company for his own benefit.  The article was entitled "Man accused of stealing $500,000 for high living."  The trial court dismissed the plaintiff's defamation action under the fair report privilege.

On appeal, the appellate division reversed.  After discussing the origins and purpose of the fair report privilege, the court first concluded that the article's use of the word "stole" to describe the trustee's allegations in the adversary complaint constituted a fair and accurate account of those allegations.  According to the court, the article carried the "same essential sting" as the trustee's allegations, even though the former indicated that Salzano has "stole[n]" the funds, whereas the latter asserted that he had "unlawfully diverted, converted and misappropriated" the funds.

However, the court went on to conclude that the fair report privilege did not apply at all because the source of the article was an initial pleading in a legal action -- a complaint -- rather than a written decision or oral pronouncement in open court rendering a legal determination on the merits.  The court cited the Restatement (Second) of Torts, Section 611, as the policy basis for this distinction.  According to the court, if reporting upon the allegations contained in a court-filed complaint triggered application of the fair report privilege, it would allow a person to file a baseless complaint for the purpose of having defamatory allegations republished in the news media.

This narrow view of the fair report privilege has been rejected in several other jurisdictions.  For example, in concluding that the privilege does indeed protect substantially accurate accounts of initial court filings, a Pennsylvania court concluded:

Based upon this case law and theory, we cannot reach a conclusion other than that the fair report privilege does apply to reports of initial pleadings upon which no judicial action has been taken.  Pleadings are public records, maintained in government buildings, open for review by the general populace.  We find no sense to the argument that newspapers, or other media groups, cannot report on pleadings prior to judicial action without opening themselves to a libel action.  It is the media's job and business to keep the public informed of pending litigation and related matters conducted in taxpayer funded courthouses.

First Lehigh Bank v. Cowen, 700 A.2d 498, 502 (Pa. Super. Ct. 1997).

The broader view reflected in the Pennsylvania decision is more faithful to the purpose behind the fair report privilege.  The New Jersey approach, on the other hand, permits the tail to wag the dog -- concern over a potentially unscrupulous civil plaintiff winds up creating a substantial deterrent to reporting upon the business of the courts generally, even though many civil complaints are newsworthy in and of themselves because they involve legitimate factual disputes over matters of public concern.  Moreover, the narrower view ignores those procedures -- such as Rule 11 sanctions -- that exist to punish unscrupulous litigants for filing baseless legal actions.  By denying application of the fair report privilege, the approach reflected in the New Jersey court's decision punishes the reporter, who may have limited practical ability to test the allegations of the complaint once the parties involved have shifted into a litigation mode, rather than the bad-faith litigant.

A recent decision from a federal court in Kentucky imposed two discrete limitations on the application of the fair report privilege.  In Trover v. Paxton, the court held that the publisher must know that it is reporting on government activities for the privilege to attach, and the publication at issue must expressly attribute the allegations to a government record or proceeding.  The court ultimately found that the fair report privilege did not apply in Trover because the article sourced the allegations as appearing in a letter accusing the plaintiff of workplace misconduct but did not explain that the letter was included in official investigatory files of a licensing board.

These decisions underscore that there may be nuances from jurisdiction to jurisdiction in how doctrines such as the fair report privilege are interpreted and applied.  And those differences may impact significantly the degree of risk the news media face when reporting upon a particular subject or event.  For example, what one publisher may be comfortable printing or broadcasting about a newly filed civil action may differ depending upon whether the rule applicable in Pennsylvania or New Jersey applies.  It is therefore critically important that reporters and editors have a good understanding of the extent of the legal protections in their jurisdiction.

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A reporter for the Detroit Free Press took an unusual approach last week in an effort to protect the identity of a confidential source -- he invoked the Fifth Amendment privilege against self-incrimination.

This dispute arose in the context of a civil lawsuit brought by former federal prosecutor Richard Convertino in federal court in the District of Columbia.  Convertino led the prosecution of the so-called "Detroit Sleeper Cell" defendants shortly after September 11, 2001; however, the Justice Department subsequently removed Convertino from his post and asked that the convictions he obtained in that matter be dismissed.  In the complaint he filed in the pending civil action, Convertino -- who was himself acquitted of charges that he conspired to conceal exculpatory evidence and lied to a federal judge in connection with the prosecution -- contends that the Department of Justice disclosed information about him to the news media in violation of the federal Privacy Act.

In connection with the civil lawsuit, Convertino sought to depose Detroit Free Press reporter David Ashenfelter.  In particular, he sought from Ashenfelter the identity of a confidential source who told the newspaper that Convertino was being investigated for misconduct in connection with a terrorism prosecution.  Information from that source appeared in a January 2004 article that Ashenfelter authored.  Ashenfelter and the Detroit Free Press fought the subpoena in federal court in Michigan, moving to quash the subpoena and opposing Convertino's motion to compel Ashenfelter to comply with the subpoena.  In these papers Ashenfelter relied on traditional First Amendment arguments, which we have discussed in a prior post.  The district court rejected these arguments, and ordered the deposition to move forward in this written decision, which was subsequently reaffirmed on the newspaper's request for reconsideration.

Having lost on his First Amendment arguments, Ashenfelter appeared for his deposition last week.  However, during the deposition he still refused to answer questions concerning his confidential source, invoking the Fifth Amendment's privilege against self-incrimination.  The basis of his invocation of the privilege was Convertino's allegation that Ashenfelter, in refusing to reveal his source, was aiding the crime Convertino contends the source committed when the original leak occurred in 2004.  The Detroit Free Press issued a statement after the deposition adjourned, stating that "the First Amendment ought to be enough to protect journalists" and citing the matter as an example of why Congress should enact a federal shield law to protect reporters from being compelled to identify their sources in federal proceedings.  Convertino's attorney stated that he may ask the court to hold Ashenfelter in contempt for refusing to answer questions about his source.

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U.S. Attorney Patrick Fitzgerald released a sealed indictment and supporting affidavit against Illinois Governor Rod Blagojevich Tuesday after Blagojevich was arrested on a wide range of corruption and "pay-to-play" charges.  Public attention has focused thus far on the first count, which accuses Blagojevich of attempting to leverage his power to appoint President-Elect Barack Obama's successor to the U.S Senate into cash and campaign funds, a choice appointment of his own, or a substantial salary for himself or his wife on a foundation or corporate board.

Fitzgerald called the charges against Blagojevich "a truly new low" and "conduct [that] would make Lincoln roll over in his grave."  In a press release issued on Tuesday, Fitzgerald described the allegations against Blagojevich as follows:

The breadth of corruption laid out in these charges is staggering.  They allege that Blagojevich put a "for sale" sign on the naming of a United States Senator; involved himself personally in pay-to-play schemes with the urgency of a salesman meeting his annual sales target; and corruptly used his office in an effort to trample editorial voices of criticism.  The citizens of Illinois deserve public officials who act solely in the public's interest, without putting a price tag on government appointment, contracts and decisions.

Peddling a U.S. Senate seat as if it were detritus at a Saturday morning yard sale is clearly a serious, serious charge.  However, the second count against Blagojevich should be particularly troubling to editors and reporters -- it accuses Blagojevich and his chief of staff John Harris of threatening to withhold public financing for Wrigley Field if the Tribune Company did not fire certain members of the Chicago Tribune editorial board who were particularly critical of Blagojevich and his administration.

The allegations against Blagojevich -- many of which stem from conversations overheard as part of a court-approved wiretap -- are detailed in a 76-page affidavit that accompanied the indictment.  The Tribune Company had apparently explored in recent months the possibility of securing assitance from the Illinois Finance Agency in connection with the company's efforts to sell the Chicago Cubs and with the financing or sale of Wrigley Field, where the Cubs play. 

Harris apparently explained to Blagojevich that an IFA deal would save the Tribune Company approximately $100 million.  In a phone call intercepted on November 4, Blagojevich allegedly told Harris that he should tell upper manangement within Tribune that "our recommendation is fire all those [expletive] people, get 'em the [expletive] out of there and get us some editorial support."  On November 6, in another intercepted call, Harris told Blagojevich that the previous day he had informed a person described as "Tribune Financial Advisor" that things "look like they could move ahead fine but, you know, there is a risk that all of this is going to get derailed by your own editorial page."  In an intercepted call on November 11, Harris told Blagojevich that Tribune Financial Advisor had talked to a person described as "Tribune Owner" and that Tribune Owner "got the message and is very sensitive to the issue."  Harris said further that, according to Tribune Financial Advisor, "certain corporate reorganizations and budget cuts [would be] coming and, reading between the lines, he's going after that section."  Blagojevich's alleged response was "Oh.  That's fantastic" and "Wow.  Okay, keep our fingers crossed.  You're the man."  Thereafter, Blagojevich is alleged to have held a series of conversations with Cubs representatives concerning IFA financing for Wrigley Field.

These allegations are particularly troublesome for media organizations because, if true, they provide a stark example of government retailation on the basis of protected First Amendment speech.  Such retaliation itself violates the First Amendment.  For example, the Second Circuit has held:

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003).  Another federal appeals court has held that a plaintiff must prove the following elements in order to make out a First Amendment retaliation claim:

[1] his speech or act was constitutionally protected; [2] the defendant’s retaliatory conduct adversely affected the protected speech; and [3] a causal connection [existed] between the retaliatory actions and the adverse effect on speech.

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005).  A "causal connection," in turn, exists when:

the defendant’s allegedly retaliatory conduct would likely deter a person of ordinary firmness from the exercise of First Amendment rights.

Bennett, 423 F.3d at 1254.

First Amendment retaliation claims have most commonly arisen when a local government body terminates a public contract with a publisher (such as a contract to provide legal advertising on behalf of the local body) because of unfavorable editorial coverage.  See North Mississippi Communications, Inc. v. Jones, 951 F.2d 652 (5th Cir. 1992); El Dia, Inc. v. Rossello, 165 F.3d 106 (1st Cir. 1999); Review Publ’n, Inc. v. Navarro, 19 Media L. Rep. 1337 (S.D. Fla. 1991).  Nevertheless, a strong argument can be made that the facts set out in the Blagojevich indictment and supporting affidavit -- the threat to withhold $100 million in financing to the financially strapped owner of a prominent newspaper -- would likely chill speech, even if the threat were never formally carried out.

The charges against Blagojevich therefore serve as an important reminder that you should always be vigilent about efforts by government officials to shape your reporting or editorializing through threats of any sort.  Those efforts may give rise to a legal claim against the official.  It also underscores that the broader a publisher's financial exposoure, the more pressure points the publisher may have for politicians to try to exploit.

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Rachel Donadio wrote recently about Italy's litigious Prime Minister, Silvio Berlusconi.  In three separate stints as Prime Minister, Berlusconi has himself instituted at least two defamation lawsuits against his critics, and a third has been brought by a close associate.

These lawsuits include an action Berlusconi brought in Italy in July 2001 against the British weekly publication The Economist.  The Economist has been a frequent critic of Berlusconi's administrations, and his lawsuit centered upon an article about Berlusconi that appeared in an April 2001 issue of the magazine.  The cover of that issue bore the title "Why Silvio Berlusconi is unfit to lead Italy."  In September of this year, a court in Milan ruled in The Economist's favor and ordered Berlusconi to pay approximately $35,000 in costs.  The court's judgment, in Italian, is available here.  Berlusconi also sued a journalist with The Economist, David Lane, for his 2004 book "Berlusconi's Shadow."  The trial court likewise ruled against Berlusconi in his lawsuit against Lane.

More recently, a close associate of Berlusconi's brought a defamation action against Alexander Stille, an American critic.  In 2006, Stille published a book about Berlusconi entitled Sack of Rome: How a Beautiful European Country with a Fabled History and a Storied Culture Was Taken Over by a Man Named Silvio Berlusconi.  According to Donadio, the plaintiff in the lawsuit against Stille, who is the chairman of Berlusconi's Mediaset network, "objected to Stille's having reported that he was investigated in 1993 for illegal financing of the Socialist Party, without also noting that he was later cleared of those charges" and objected to Stille's claim that "Berlusconi 'has fused his business and private life almost totally,' as evidenced by his appointing [the plaintiff], 'his oldest childhood friend,' to run Mediaset."  The Italian court has yet to issue a ruling in this lawsuit.

Although Berlusconi was not successful in his actions against The Economist and Lane, Donadio reports that succeeding in court may not have been Berlusconi's primary goal in bringing those legal actions.  She writes:

But Stille and others contend that the point is not to win a judgment as much as to intimidate journalists and news outlets with the prospect of a lengthy and expensive court proceeding if they write something unfavorable. "For each of these suits, you may affect the behavior of another 100 journalists," Stille added.

Such litigation seems to have an effect.

Lane, of The Economist, said he was considering cutting all references to Berlusconi in the Italian — but not the British — edition of his forthcoming book on the Mafia. "I'm too tired of spending my own money," he said. "There are no medals to be won by being sued by Berlusconi." 

The accusation that a prominent and powerful public figure uses lawsuits to influence media coverage and as leverage to intimidate journalists attests to the potentially chilling effect the cost and expense of libel litigation can have on speech.  In America, lawsuits designed to chill speech have been termed "strategic lawsuits against public participation" or "SLAPP" suits.  In an effort to combat the chilling effect strategic litigation brought by a powerful person or company can have, a number of states have enacted what are called "anti-SLAPP" statutes.  These statutes provide procedural protections to media defendants and others subject to such actions.

As we will discuss in greater detail in a future post, anti-SLAPP statutes vary in form from state to state but typically provide the defendant with an opportunity obtain an early ruling on the merits of the lawsuit, and, if the defendant prevails, may also provide the possibity of recovering attorneys' fees.  These protections can ease the burden of litigation on a media defendant, and they can operate as a deterrent to those who would bring SLAPP suits.  States that have anti-SLAPP statutes include California, Massachusetts, New York, Louisiana, Georgia, Rhode Island, Maine, Indiana, Delaware, Minnesota, Nebraska, and Washington.  Thus, if you are sued in a state with an anti-SLAPP statute, you may well have an important additional arrow in your quiver to use in defending yourself.

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The 2008 general election has been hard-fought on the federal and state levels.  We previously reported about the institution of legal actions in two hotly contested U.S. Senate races, and we provided an update on those matters.  In addition to federal races, claims have also been filed in state races, as well. 

For example, on October 20, 2008, fifteen days before the general election, a candidate for a local judicial office in Ohio filed a complaint for defamation against a radio broadcaster related to an editorial broadcast over the air and posted on the Internet in which the broadcaster endorsed one of the two other candidates for the position.  In addition to the defamation claim, the plaintiff in Christiansen v. Pricer et al. also sought an ex parte temporary restraining order (“TRO”) seeking to have the broadcaster ordered not to engage in any negative communications about the judicial candidate.

Instead of approving the TRO without first hearing arguments from the broadcaster, a special judge assigned to the matter held a hearing related to the TRO just eight days after the complaint and TRO application were filed (and one week before Election Day).  During the hearing, the plaintiff had an opportunity to demonstrate that a TRO was justified.  Likewise, the defendants were allowed to show why a TRO should not be issued.  The judge allowed the plaintiff to question the defendant broadcaster about the editorial but upheld objections, based on Ohio’s Shield Law, to questions concerning the broadcaster’s confidential sources in writing the editorial.  The plaintiff was also permitted to bring on several witnesses who testified about their reactions to the editorial.  After examination and cross examination of the plaintiff’s witnesses, the judge then allowed the parties to argue why the editorial should or should not be enjoined. 

After hearing from each side, the judge ruled from the bench, denying the plaintiff’s application for a TRO because the plaintiff had not demonstrated she would be likely to obtain an injunction.  Essentially, the judge determined that enjoining the defendants from editorializing about the plaintiff amount to a "prior restraint" on speech.  The U.S. Supreme Court, in the famous Pentagon Papers case, held that prior restraints on speech presumptively violate the First Amendment to the U.S. Constitution and are justified only in order to avert very great public harm.  Because the judge denied the TRO application, the broadcaster was not enjoined from further broadcasting or publishing the editorial in question—that is, the broadcaster was allowed to continue airing the editorial and posting it on the station’s website.  The judge’s order following the hearing is linked here.

Importantly, the judge did not make any ruling on the merits of the plaintiff’s defamation claim.  As of this writing, the lawsuit is still pending.

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