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Are Some Speakers More Equal Than Others?

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Are First Amendment rights of free speech and free press contingent rights, available only to those who qualify as members of 'the press?'

In Maethner v. Someplace Safe, Inc., the Minnesota Court of Appeals recently held that a defamation plaintiff could recover presumed damages without having to prove actual malice (i.e., that the defendant knew his statement was false or acted with reckless disregard as to whether it was false).  The most interesting aspect of the decision was the Court’s conclusion that the actual malice standard was inapplicable because the defendant was not a traditional media defendant. 

As the Court explained, “the statements were made by . . .  a non-profit organization that was soliciting donations,” not by a media defendant.  So, in the Court’s view,“[t]he media, and related concerns to protect constitutional rights under the First Amendment, were not involved.”  Maethner v. Someplace Safe, Inc., No. A17-0998 (Minn. App. Feb. 12, 2018), at 18. 

The Court’s reasoning inadvertently calls to mind the George Orwell’s classic, Animal Farm, with its paradoxical commandment:  “All animals are equal, but some animals are more equal than others.”  Apparently, in the view of the Minnesota Court of Appeals, all speakers are equal, but some speakers are more equal, so long as they are members of the traditional press.  

The Maethner Court’s conclusion is wrong.  First Amendment rights of free speech and free press are not contingent rights, available only to those who qualify as members of the “press.”  Instead, courts throughout the country have long recognized that the institutional press has no more – and no fewer – rights than anyone else to speak and publish freely. 

Professor Eugene Volokh has an interesting discussion about the Maethner decision, along with excerpts from an application he made to the Minnesota Supreme Court to file an amicus brief in the case, in his column at the website Reason.  It shows in detail how the Minnesota Court of Appeals misapplied the law.

At Thomas & LoCicero, we often say that “all companies are publishers.”  Defamation lawsuits are not restricted to media defendants; any company can find itself defending one.  Now more than ever, the ability to publish and to reach a wide audience is available to nearly everyone, through the internet, text messages, social media, and whatever mass and instantaneous form of communication comes next.  Fortunately, critical First Amendment defenses can be raised by all defendants, not merely a select few.  Some animals may be more equal than others, but under the First Amendment, all speakers have the same First Amendment rights. 

Jim McGuire is a litigation partner in the Tampa office of Thomas & LoCicero,  His advice and advocacy protects clients in business litigation matters and in defamation, First Amendment, and intellectual property disputes, particularly trademark and copyright cases.  Jim graduated first in his class from the University of North Carolina School of Law, where he won the West Publishing Company Book Award for highest GPA each of his three years.