Equal First Amendment Rights for Non-Media Speakers in Oregon
Here’s the heart of the amicus brief, in Lowell v. Wright, filed on behalf of:
- the Institute for Free Speech and the Electronic Frontier Foundation;
- Oregon law professors William Funk (Lewis & Clerk), Ofer Raban (U. of Oregon), and Kyu Ho Youm (U. of Oregon); and
- bloggers Prof. Glenn Harlan Reynolds, Howard Bashman, SCOTUSblog, and me.
(Many thanks to Owen Yeates of the Institute for Free Speech, who is our local counsel, to Sam Gillen, a UCLA law student who worked on the brief with me, and of course to Scott and Cyan Banister, for generously supporting our UCLA Amicus Brief Clinic.)
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: Wr
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