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Our latest amicus: “Just Sue Already”

December 17, 2010

Capitolbeat receives its fair share of invitations to join amicus briefs on matters of journalistic import. Some are high profile cases involving major First Amendment and Freedom of Information issues that are instantly recognizable from the many newspaper headlines about the case.  Sometimes — and these are not mutually exclusive — the case carries massive legal importance as well, with far-reaching and likely longstanding legal precedent, such as those instances in which we have participated on a brief filed in the United States Supreme Court.

But for every one of these “sexy” amicus briefs (yes, that term is accurate), you can probably find two that are much more mundane in nature.  Not “boring” and certainly not any less important (in fact, they quite often the most important as far as day to day protections are concerned), but certainly not headline-grabbing.  Wolk v. Olson, the most recent case in which Capitolbeat participates as amicus is one of those cases.  If not “mundane”, it’s certainly “arcane”.  But it’s also a case that is more likely to convey a real-life effect on Capitolbeat members, with potential harms best minimized by the bright line rule advocated in our brief.

The case arises out of an allegedly defamatory post on a legal blog.    But it’s not the “what”  that we’re concerned with, it’s the “when”.   The post was made in 2007, but the plaintiff, a Philadelphia aviation lawyer, didn’t sue until 2009.  This is important because the Pennsylvania statute of limitations requires that a defamation lawsuit be filed within one year of publication.  The legal issue centers on  how one defines “one year from publication.”    While most states define publication as the date on which the article in question was literally  first published in a newspaper, broadcast on television or radio, or posted on the Internet, this plaintiff  is arguing for something known as the “discovery rule”.  It might be easier to think of it as the “discovery exception”, as it states that, in certain instances, the statute of limitations does not begin to run until the plaintiff discovers the offending content.

The original lawsuit was filed in federal District Court in Pennsylvania. The District Court granted the defendant’s motion to dismiss the case because the statute of limitations had run, at which point the plaintiff appealed to the United States Court of Appeals for the Second Circuit.  But Pennsylvania’s statute of limitations — and how Pennsylvania courts would interpret that law — is still important because there is no federal defamation law.

Capitolbeat joined 19 other media organizations on a brief which reminds the Court of Appeals that the First Amendment offers more than just substantive protection; it requires certain procedural measures be implemented as well.  A strong statute of limitations is one such procedural protection, ensuring that reporters of all stripes are not constantly looking over their shoulders whenever they write anything controversial.  Specifically, the brief argues:

  • Pennsylvania’s statute of limitations is quite clear, with state courts  holding  on repeated occasions that the “discovery rule” applies only when there is a private communication or other unique circumstance that prevents discovery of the offending content by reasonable means.
  • Internet blogs are mass media, entitled to the same legal protections afforded other mass media.  The plaintiff claims otherwise, but offers no support for his conclusion.    This argument is not only the strongest legal argument but sends a clear message consistent with the views of Capitolbeat as an organization. While, the brief concedes that “not all blogs qualify as journalism” it strongly disagrees  with the plaintiff’s contention that bloggers “do not even remotely resemble journalists in the mass media.”  Our brief notes that “mainstream” media organizations increasingly rely on bloggers and other freelance “bloggers” for content.  It also cautions that the courts should not be in the business of making judgments as to the quality of content.
  • Finally, the brief reminds the court of the purpose of the overall “discovery rule”:  free speech requires that the burden of discovering a defamatory publication rests with the plaintiff, to ensure a predictable limit on potential claims.

We hope you agree that there is sufficient justification underlying the Board’s decision to join this brief.   While this case applies Pennsylvania’s statute of limitations, many other states have similar statutes and many have some limited form of the discovery rule.  The principles enunciated here are applicable to any situation involving potential application of the discovery rule. And the plaintiff’s main argument is one that is likely to be replicated all over the country:  that it is unfair to start the clock ticking when the plaintiff doesn’t even know the article exists; he specifically notes that the Internet is not equivalent to traditional mass media in this regard because it is less likely that a potential plaintiff will quickly notice that he or she is the subject of an article (to which one must ask:  how can an attorney with his own law firm that produces a blog, his own website that produces another blog and even his own entry in Wikipedia stating that he has appeared on “the ABC Evening News, CBS Evening News, CNBC and CNN Larry King Live” not possibly have set up a Google alert for his own name?).  Hopefully, a strong opinion from a United States Court of Appeals will resonate throughout that particular circuit and the nation as well.  But more important is the strong overt statement by Capitolbeat that ALL journalists, regardless of media, deserve the same legal protections.

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