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 Menéndez had been sued by Roberto Hernández, the head of the powerful bank Banamex. The reason: Menéndez’s newspaper, Por Esto!, reported that Hernández 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 Menéndez, 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 Hernández continues to insist that Menéndez 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! "

Issue Date: December 12, 2001

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