The New York Supreme Court has handed a stunning victory to Narco News (http://www.narconews.com) publisher Al Giordano in his legal battle with Banamex (now owned by Citibank) and its high-powered hired guns, the Washington, DC-based public relations and law firm, Akin Gump. Former Banamex head Roberto Fernandez had sued Narco News and Mexican newspaper publisher Mario Menendez for libel after the two, during a visit to New York, repeated allegations against Hernandez earlier made in their respective publications. Giordano and Menendez had accused Fernandez of involvement in cocaine trafficking in Mexico's Yucatan peninsula. But presiding Justice Paula Omansky this week threw out the case, ruling that the court had no jurisdiction over a Mexican newspaper and, in the case of Narco News, holding that the same heightened protection against libel suits afforded to traditional media also extend to Internet publications.
Under a 1964 Supreme Court ruling, New York Times v. Sullivan, established media outlets have benefited from a "higher standard" that aggrieved plaintiffs must meet to win libel or defamation lawsuits. Journalists can be found guilty of libel only if their words are found to be the result of "actual malice," that is, if they knowingly disseminated false information or demonstrated a reckless disregard for the truth.
Justice Omansky held that Narco News, a news provider based entirely on Internet, was in fact a media outlet deserving the same protections as the New York Times or CNN.
"This court finds that Narco News is a media defendant and is entitled to heightened protection under the First Amendment (Sullivan v. New York Times)," wrote Omansky. "The Internet is similar to a television and radio broadcast in the sense that the electronic missive is able to reach a large and diverse audience almost instantaneously... Narco News defendants' format is similar to a regularly published public news magazine or newspaper except for the fact that the periodical is published "on line" or electronically, instead of being printed on paper," she noted.
"Since principles of defamation law may be applied to the Internet," she continued, "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. Furthermore, the nature of the articles printed on the website and Mr. Giordano's statements at Columbia University constitute matters of public concern because the information disseminated relates to the drug trade and its effect on people living in this hemisphere."
In an interview with Wired magazine, the Electronic Frontier Foundation's Marcy J. Gordon, who wrote a friend-of-the-court brief, said she expected the court's decision to be widely applicable. "I wouldn't be surprised if this turns out to be a landmark case that gets cited repeatedly," she said.
The foundation's legal director, Cindy Cohn, added that, "We are tickled that the court heeded our advice, which was to make sure that you treat online journalists with the same degree of First Amendment protections against libel actions as offline journalists -- and not to create a First Amendment ghetto in cyberspace."
While the early ruling precludes Giordano's expressed desire to put the "drug war on trial" through testimony if the case had been allowed to continue, Narco News attorney Thomas Lessing told Wired he was pleased with the abrupt end of the case. "[Justice Omansky] understood that allowing a case like this to continue chills First Amendment rights," said the Massachusetts civil liberties and free speech litigator. "These are very expensive cases, so she nipped this one in the bud."
Lesser later told the Boston Phoenix that Giordano and his legal team are considering a counter-suit against Banamex. "I think the expectation is that we'll try to recoup the damages we've suffered."
While no figures on Narco News' legal fees are available, Giordano had been forced to make numerous appeals for his legal defense fund, and Lesser and his team had agreed to work for discount rates.
The fast-moving Giordano chimed in with an e-mail message to the Phoenix from Bolivia, where he is covering unrest among coca growers. "The [Banamex] story was airtight, factual, and fair then, and it has remained so ever since," he wrote. "It's a great victory and one to be shared by so many journalists and readers. On to the next one!"