On Friday, December 7, a New York State Supreme Court Judged ruled in favor of the muckraking online news site NarcoNews in a landmark freedom of press case for online news sources.
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New York City Independent Media Center journalist Mike Burke conducted a brief email interview on Monday December 10 with Al Giordano, the founder of the muckraking online new site NarcoNews.com which covers the Latin American drug war. On Friday, December 7, a New York State Supreme Court Judged ruled in favor of NarcoNews in a landmark freedom of press case for online news sources. NarcoNews and Mario Menendez, Mexican newspaper publisher, had been sued for libel by the Mexican banking mogul Banamex for exposing a top executive as a drug smuggler. After three failed attempts for a libel verdict in Mexican courts, Banamex filed suit in New York but the case was dismissed on Friday.
"Since principles of defamation law may be applied to the Internet... this court determines that Narco News, its website, and the writers who post information, are entitled to all the First Amendment protections accorded a newspaper-magazine or journalist in defamation suits," ruled New York Supreme Court Justice Paula Omansky.
INDYMEDIA: How did the suit affect your ability to report As NarcoNews on the Drug War?
NARCONEWS: It was nearly fatal and took half of my hours away from the real work - reporting on the US-imposed "war on drugs" from Latin America - for the past year.
I first heard I was being sued by Banamex in late October of 2000 - almost three months after the suit had been filed. I was in an isolated area of Mexico and checking in with journalist Mario Menendez by telephone, and he had just been served papers on the lawsuit. I had to cut short an investigation on political prisoners in Oaxaca and rushed back, 11 hours away, to what we affectionately call the Narco Newsroom, which is nothing more than a little rented house and a laptop. There, my neighbors were in an uproar. Armed men had come into the community, an indigenous town, looking for the "gringo with a mustache" and they were, well, diverted (at a future date I'll elaborate more on the cat-and-mouse game with Banamex's inept attorneys at the Akin Gump firm who failed to legally serve me papers on the case).
I had been in Mexico already for years. I had no money, no regular contact with more than a dozen people in the United States, Narco News had about 3,000 daily readers and 185 subscribers - the site had just been launched in April 2000 - and I certainly couldn't afford a lawyer. The PRI regime was lame-duck but still in power at that time and there were also very reliable sources who were telling me of a plan to expell me from the country as has happened to 400 colleagues in journalism and human rights who had spent time in Zapatista territory. It was, well, a weighty time.
In terms of workload, I would estimate that responding to this lawsuit, studying the law and court rules, gathering all the mountains of documentation about the Banamex president Roberto Hernandez's reported cocaine trafficking activities on his properties and the other related issues, travelling five times to New York to defend the case, raising some money so that the narconews.com internet site could have a legal defense on the complex technical internet jurisdiction issues, coordinating with my codefendant Mario Menendez, his lawyers Marty Garbus and David Atlas, Narco News lawyer Tom Lesser, writing legal memoranda, all of this cost me more than half of my hours over the past year. And I'm speaking of more than a 40-hour work week, of course.
It's still taking time away from the reporting. Right now I'm in Bolivia. There is a very heated conflict between the coca growers, organized as a labor union, and the government, taking orders from the US Embassy, a major growers union leader, Casimiro Huanca, has just been assassinated, and I'm trying to do the ground-level reporting and maintain a "war log" of sorts on Narco News to inform the world.
But obviously it is also important to respond to the press. I'm answering these questions from Indymedia first because, A., Indymedia supported our battle before the press bandwagon on our case had started, and, B., I know it will be published uncensensored and I can send other reporters there to get some background info.
In sum, my life of the past year has been one of a nearly full-time professional defendant. Somehow we've also gotten some good reporting done on the drug war, but oh, at what a grueling work schedule. That was made possible by Attorney Tom Lesser coming into the case to defend Narco News (I had been sued twice, in effect, once as Al Giordano and also as "Defendant The Narco News Bulletin"). Lesser pitched a perfect game against the Akin Gumpsters of Banamex and the Judge has just dismissed all the charges at the first possible instance.
I strongly urge you and other media to interview Attorney Tom Lesser, the great civil liberties and free speech barrister from Massachusetts. His office phone number is 413-584-7331, and you can publish it.
Lesser was *the* difference between victory and defeat on this battle. He has been my friend for 24 years, ever since I was a 17 year old lad being ejected from the New Hampshire national guard armories after anti-nuke protests in Seabrook, New Hampshire, and Tom was part of the legal team into whose custody we minors were placed after that 1977 protest. I'd say he's taken his custudy responsibilities quite seriously, no? Seriously, he's a great man and a laser sharp attorney who, from day one, plotted the winning strategy with this broke pro se defendant.
INDYMEDIA: Could you summarize what the court's ruling mean for online journalists?
NARCONEWS: So far I have only seen parts of the 29 page decision. The key part regarding online journalists is posted on the front page of Narco News:
There, Judge Paula Omansky explains that she conducted a "careful review" of all the works published on Narco News during the relevant time period of the lawsuit; I had given her 568 pages of every word and every story and had asked her to please read it during our July 20th court hearing in New York. "It ain't exactly popular summer reading or the latest John Grisham novel" I said to her in Court. And she laughed, saying, "I should hope not! We get Grisham here every day!" Well, she apparently kept her promise and actually read all of Narco News, not just the reports on the narco-bankers.
She concluded that Narco News was, lo and behold, a real and serious project in journalism that deserves the "heightened protection" accorded to the New York Times and commercial newspapers and magazine based in the Sullivan v. NY Times decision. She said that Narco News deals with an important policy issue: the drug war and its affect on the peoples of the hemisphere. She noted that the fact that we publish letters to the editor and allow readers to comment makes it even more important to protect our First Amendment rights.
In sum, with this decision, she broke the commercial press's legal monopoly on First Amendment protection, and extended that protection to an online periodical. This is a huge precedent. It applies to Indymedia. It applies to the website of Washington-based independent journalist Jeremy Bigwood , he wrote to me yesterday, because he's been reporting on Bolivia and the Andean drug war, too. It applies to any independent online journalist or website who makes a fair and responsible attempt to publish the facts and opinions on important public issues. It endorses, from the Court, the essence of Indymedia; that citizens can and should be journalists too, and can and should have the same legal protections as the paid media.
The decision should be read and studied, particularly that section.
INDYMEDIA: Had the court ruled in favor of Banamex how do you envision online reporting, especially international reporting, would have changed?
NARCONEWS: The fact that billionaires filed the lawsuit in expensive New York City against a Mexican internet site, a Mexican journalist, and a US journalist for his work in Mexico, already has had a chilling effect. You don't know how many emails I received in the past year from other web journalists and website producers fearful of the consequences for them. Some had even curtailed their activities - we didn't, but some who were not party to the case did out of a reasonable fear that the same can be done to them.
The most damage was done by the filing of this frivilous lawsuit and its abuse of the court system. It was a malicious prosecution, without basis in the facts. Banamex and the Akin Gump mercenary lawyers tried to overpower us by spending, I estimate, many millions of dollars on this prosecution. They hired an espionage firm, DSFX, to spy on us. According to Mexican journalist Carlos Ramirez, a document showed that Banamex had two Mexican judicial police "physically following" me. Ha! A lot of good it did 'em!
If the Court had ruled against the motions to dismiss, the case would have gone to the next phase, the "summary judgment" stage, and discovery, which means that both sides would be able to subpoena witnesses and documents from the other. We were ready for that, too. We were ready to take this all the way to trial, to a jury, and to turn the tables and put the Drug War itself On Trial. Attorney Tom Lesser, with Abbie Hoffman, Amy Carter and a group of UMass students did exactly that to the CIA in 1986, and the CIA, not the students, was found guilty by the jury of citizens. This was our plan here. But it was a plan that would have cost us half a million dollars more (My co-defendant and I are each at least 0,000 in debt just to win this victory.)
But am I glad the Court shut them down in the first instance? You bet. Because as much fun as I would have had representing myself at trial, it would have cost five more years of my life, tread upon the real reporting from Latin America, and had this chilling effect on all independent online media. That the Court did its homework and wrote what attorney Marty Garbus, who has read the entire decision, tells me is a very strong decision written to defeat any appeal against it, was a miracle. And when your life is spent working for social change, you come to rely on regular miracles, as so many of our colleagues already understand.
INDYMEDIA:How has the Mexican press covered the case?
NARCONEWS: This has been a much bigger story in Mexico than it was in the US. It has been in virtually every daily newspaper. I mentioned the national columnist Carlos Ramirez above, the grand fighter for press freedom in Mexico. He dedicated about a dozen columns to this case, put his weekly magazine, La Crisis, to work investigating it, and really organized the conscientious Mexican press to cover it extensively. Also, a regional group based in El Salvador, Periodistas Frente de la Corrupcion, maintained a Spanish language web page on the case and sparked a Pan-American interest.
Compare that to the New York media: Absolutely nothing was covered by the New York Times (the corrupted activities of one ex NYT correspondent, Sam Dillon, was in fact an issue in the case and Dillon had been mentioned by Banamex in its complaint as a journalist who opposed our activities; so it is understandable why the Times ran from the biggest press freedom trial in New York), the News, the Post, nor the Wall Street Journal, which spent two months investigating the case and then came September 11th, their offices destroyed, and wham, all that work seemed to come to naught.
INDYMEDIA: Are there plans for any countersuit again Banamex to recover damages? Or is there any word on Banamex filing an appeal?
NARCONEWS: We don't know if Banamex will appeal. Ask them. If they want to throw more money into the pit, let them. An appeals court would have two options: affirm Judge Omansky's decision or send the case back to a Judge who has already shown herself to be conscientious, hard-working, serious. If Banamex wants that, bring it on!
And as for counterclaims, stay tuned. This was a malicious prosecution, aimed only to silence your and my free speech rights. It was an abuse of the court system. The law was broken by bringing this frivilous lawsuit. Is Narco News now going to switch from defense to offense in Court? Should Banamex (now Citigroup) be made to pay for its abuse of the legal system? Talk to Attorney Tom Lesser about this. Of course we're going after them, with the same relentless passion that characterized our defense. You think I'm going to let all this great legal training I received as a pro se defendant in this case go to waste? Yes, I think I'll be seeing those greedy billionaire swine in court again, but with the tables turned.
Original: Indymedia Q & A with NarcoNews' Al Giordano