Legal Tools for the New Journalists
Does your Web page count as reporting?
by Bret A. Fausett
April 2002
Banco National de Mexico, S.A., or Banamex, as it's more popularly known, is one of the largest financial institutions in Mexico. Banamex counts some of Mexico's largest corporations among its banking customers, in addition to hundreds of thousands of individuals. In over 100 years of history, the bank has built a solid business reputation with its customers.
Thus, you can imagine the concern in the company's corporate press relations department when the chairman and general director of Banamex, Roberto Hernandez, was labeled a "major cocaine trafficker." It was said that he had purchased his controlling interest in the bank through profits from illegal drug sales and was actively using the bank to launder profits from his continuing illegal enterprises. This is the kind of jaw-dropping, stock-plummeting allegation that wrests the attention of nearly anyone who reads it.
And that's just the beginning. The same person who made these allegations claimed to have photographic proof that Hernandez was involved in cocaine trafficking. He also claimed that the Banamex leader was destroying historic Mayan archeological sites to clear land for his illegal enterprises, using Mexican beaches to dump waste from cocaine processing, and bribing journalists and public officials to keep his criminal operations quiet and free from government interference.
All of these details emerged over a period of several months in a series titled "The Banamex Story." If true, the allegations would obviously do great damage to the bank, not to mention its individual and corporate customers and investors.
Banamex took the allegations, which it contends are completely false, seriously—so seriously, in fact, that it filed a libel action against the publisher of the allegations in a New York state court.
But the case didn't get very far. On a motion to dismiss, the state court ruled that Banamex had failed to plead the requisite elements of a libel lawsuit against the person who had written "The Banamex Story." In drafting its lawsuit, Banamex apparently believed that it was simply going up against some kind of nut. However, the court said that this particular individual, nut or not, happened to be a media defendant, and was entitled to the same degree of protection from libel suits as such venerable publications as the New York Times. The reason? "The Banamex Story" was published online.
Authentic Journalism
"The Banamex Story" was posted in The Narco News Bulletin, found only on the Internet at narconews.com. The Narco News tagline is, "Authentic Journalism on the 'War on Drugs' in Latin America." The publication is single-mindedly focused on exposing drug lords, and those who support them, and American efforts to fight a war on drugs in Mexico.
Narco News isn't a conventional online news site. It sells no advertising, offers no products or services to the public, and has no apparent mechanism for generating any revenue. It has neither paid writers on its staff, nor indeed, a professional staff of any kind. Although most of the articles are unsigned, the news items on Narco News are mostly the work of Al Giordano.
Mr. Giordano obviously devotes significant time and effort to the exposés he publishes as Web stories and email bulletins for his Narco News. He summarizes press releases from the White House on the war on drugs, discusses news stories that appear in foreign publications about the activities of drug lords, and provides often biting commentary on the underworld, the government, and the innocents displaced by the war between the two.
Narconews.com is, however, very much the work of an amateur. From the multi-colored text presented against a solid black background to the spinning animated GIF that constitutes its logo, the site resembles an individual homepage more than a newspaper or commercial Web site. The writing and organization are a perfect match for the design, mixing breathless prose with rambling digressions.
You'll never mistake the Narco News for the New York Times—which is precisely why the court's decision is so important.
New York Times vs. Sullivan
In 1964, the United States Supreme Court issued a ruling in a case called New York Times v. Sullivan that forever changed the legal landscape for working journalists. At issue was a full-page advertisement that ran in the New York Times describing the mistreatment, by members of the city commission, of African Americans in Montgomery, Alabama.
The plaintiff in the case, L.B. Sullivan (one of the city commissioners), sued the New York Times, claiming that allegations in the advertisement were false and libelous. Among the items that Mr. Sullivan identified as false was this one:
"In Montgomery, Alabama, after students sang 'My country, 'tis of thee' on the state capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College campus."
The evidence at trial showed that, in fact, the sentence was false—the students had sung the national anthem, not "America." Additional evidence uncovered a handful of equally unimportant "falsehoods" in the text of the advertisement.
After hearing all of the evidence, a Montgomery County jury returned a verdict in Mr. Sullivan's favor and against the New York Times in the amount of $500,000. That's $500,000 in 1964 dollars. Not surprisingly, the New York Times appealed. The Times claimed that the Alabama court's application of the libel laws to the publication of an advertisement criticizing public officials violated its freedom of speech, even if the publication ultimately contained errors of fact.
Prior to the Sullivan case, it had long been the law that libel was not protected speech under the First Amendment. But what degree of error could a publication have before a statement protected by the Constitution became libel and defamation? Previous rulings had recognized that the "erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the 'breathing space' that they need to survive."
But the Court reversed the appellate court's decision, and went one important step forward in Sullivan. It expanded the media's "breathing space" by stating that a public person who brings a libel and defamation claim must prove that a publisher acted with "actual malice" in making false statements. That's a standard so high that most public figures have abandoned attempts to correct all but the most egregious media misstatements.
