Pubdate: Wed, 12 Dec 2001
Source: Boston Phoenix (MA)
Copyright: 2001 The Phoenix Media/Communications Group.
Contact:  http://www.bostonphoenix.com/
Details: http://www.mapinc.org/media/54
Author: Dan Kennedy

FOR AL GIORDANO, A VICTORY AND A PRECEDENT

In what could prove to be a groundbreaking First Amendment precedent, 
a New York judge has thrown out a libel suit against online 
journalist and Phoenix contributor Al Giordano, ruling that he is 
entitled to the same protection against such suits as a mainstream 
news organization.

Giordano, the publisher and author of a Web site called the Narco 
News Bulletin (www.narconews.com), and Mexican journalist Mario 
Menendez had been sued by Roberto Hernandez, the head of the powerful 
bank Banamex. The reason: Menendez's newspaper, Por Esto!, reported 
that Hernandez had purchased Banamex in part with profits from the 
illegal drug trade, an accusation that Giordano repeated in Narco 
News and at a public appearance at Columbia University (see " Don't 
Quote Me, " News and Features, April 13). Giordano had also written 
about Banamex for the Phoenix (see " Clinton's Mexican Narco-Pals, " 
News and Features, May 14, 1999).

New York State Supreme Court judge Paula Omansky cited the 1964 case 
of Times v. Sullivan, in which the US Supreme Court held that a 
public figure cannot successfully sue for libel unless he or she can 
prove " actual malice " - a legal term that means the defendant must 
be shown to have knowingly disseminated false information, or to have 
demonstrated reckless disregard for whether the information was true 
or false. That " high standard, " as Omansky called it, has long been 
cited by free-speech activists as necessary to foster freewheeling 
and robust debate about public issues - in this case, the so-called 
War on Drugs.

Omansky ruled that even though Banamex was a private institution, the 
War on Drugs was an issue of such public concern that Giordano was 
entitled to the protection of Times v. Sullivan. " 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, " she wrote, according to a report 
by Wired.com. Giordano's lawyer, Tom Lesser, says that the judge also 
threw out the complaint against Menendez, ruling that her court had 
no jurisdiction over a newspaper published in Mexico.

Calling it " extraordinary " that Omansky would reject Banamex's suit 
even before the discovery phase of the case could begin, the 
Northampton-based Lesser - an old friend of Giordano's dating back to 
the latter's days as an anti-nuclear activist in the 1970s - told the 
Phoenix that a countersuit against Banamex is being considered. " I 
think the expectation is that we'll try to recoup the damages that we 
have suffered, " he says.

But Banamex lawyer Michael Madigan, of the Washington firm of Akin 
Gump, says Hernandez continues to insist that Menendez and Giordano's 
charges are false - and he refuses to rule out an appeal of Omansky's 
decision. " The only thing I can tell you at the moment is that the 
matter is under review, " Madigan told the Phoenix. " Banamex will 
continue to take any lawful action to protect itself from false and 
libelous statements. "

Meanwhile, media observers and First Amendment advocates are hailing 
Giordano's victory.

" Al Giordano has always fancied himself a dragon-slayer, and now 
he's got a few more dragons on his belt, " says Danny Schechter, 
executive editor of MediaChannel.org, which has carried some of 
Giordano's work. " I'm encouraged not just by the outcome of the 
case, but by the example of the case. "

Paul McMasters, First Amendment ombudsman for the Freedom Forum, says 
what's most heartening is that Judge Omansky recognized that the 
Constitution does not specify who may - and who may not - be a 
journalist. " Because the First Amendment prohibits the definition of 
a journalist, just about anybody with a Web site, it seems to me, can 
define themselves as a journalist entitled to the protection of Times 
v. Sullivan. And that, to me, is a good thing, " McMasters says.

In an e-mail to the Phoenix from Bolivia, where he is reporting this 
week, Giordano - noting that his problems with Banamex began with his 
May 1999 Phoenix story - said in part, " The story was airtight, 
factual and fair then, and it has remained so ever since.... It's a 
great victory and one to be shared by so many journalists and 
readers. On to the next one! "
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