Do online media get treated like traditional media under libel retraction statutes?

I have long thought that bloggers and other online speakers are entitled to as much First Amendment protection as more traditional media; indeed, I’ve written at length about this and litigated it, too. But when it comes to statutory protection, beyond the minimum that the First Amendment requires, the matter is more complicated. The statutes vary from state to state; some have language that easily covers blogs and others don’t.

Two cases in the last week, both involving libel retraction statutes, illustrate this. If there is no such statute (not all states have them) or if the statute doesn’t apply, then a libel plaintiff can just sue the defendant without demanding a correction or retraction. And the plaintiff can potentially recover proven actual damages, presumed damages, and punitive damages. So long as the plaintiff shows the statements were false and defamatory, and said negligently, recklessly, or knowingly (the exact standard varies depending on various factors), he can win, and there’s no First Amendment problem with that.

But if a libel retraction statute applies, then the plaintiff must demand a retraction or correction before suing. (In some states, the demand must come within a certain time of the initial publication.) And if the defendant publishes a correction or retraction, then the plaintiff will generally not be allowed to recover presumed or punitive damages, but only actual damages. Libel retraction statutes can thus be valuable to publishers — but to which ones?

1. Here’s the first of the two cases I mentioned that consider this issue, Comis v. Vanvoorhis (Fla. Ct. App. Apr. 11, 2014) (won by prominent cyber-lawyer Marc Randazza). The Florida statute covered “publication or broadcast, in a newspaper, periodical, or other medium.” It had originally covered just publication in a newspaper or periodical, and during that era the Florida Supreme Court decided that it reflected a distinction between “newspapers and periodicals,” and “private persons.”

The statute was extended in 1976 to add “broadcast” and “other medium,” but Florida courts concluded that this extension wasn’t meant to apply it broadly to everyone, reasoning that it only applies to “media defendants” (on the theory that the legislature’s 1976 amendment was meant to build on the pre-1976 caselaw interpreting the old statute). “The language of the statute is limited to newspapers, periodicals, and other media. Nowhere does the statute contain the words ‘nonmedia’ or ‘private individuals.’”

But in Comis, the Florida Court of Appeal concluded that the “media” discussed in those precedents aren’t limited to the institutional media that have publishing as their primary line of business. Rather, the court concluded, the test is whether a blog “is operated to further the free dissemination of information or disinterested and neutral commentary or editorializing as to matters of public interest.” Publications — online or offline, professional or not, big or small, opinionated or objective — that are focused on such a purpose are covered by the “other medium” language. Other writings, presumably including one-off comments on someone else’s site, or posts on blogs dedicated to purely personal commentary (as opposed to “matters of public interest”), are not covered by the statute.

I’m not sure that the line the court draws is right, or is clear enough to be fairly administrable. But the important point is that the court is not trying to interpret the First Amendment, but rather interpreting language (“newspaper, periodical, or other medium”) in a statute, and the caselaw that has interpreted the provision.

2. Now the second recent case, Theiriot v. The Wrapnews, Inc. (Cal. Ct. App. Apr. 15, 2014). Here, the California libel retraction statute did not speak of “newspaper, periodical, or other medium,” but spoke only of “publication of a libel in a newspaper, or of a slander by radio broadcast.” And the court said that thewrap.com is not covered by the statute:

At the time the statute was enacted in 1931, or amended in 1945, a “newspaper” was understood to mean a publication that was printed on inexpensive paper, often daily. (See O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1460 [construing “newspaper” in California Reporter’s Shield law, the court stated: “The term ‘newspaper’ presents little difficulty; it has always meant, and continues to mean, a regularly appearing publication printed on large format, inexpensive paper”].) Had the Legislature intended the statute to apply to defamatory material published on an online website, it could have amended the statute to say so, or add a statute to include such websites within the definition of “newspaper,” as it did when it enacted Civil Code section 48.5 in 1949 to expand the term “radio broadcast” to include both visual and sound radio broadcasting.

Incidentally, the case the court cited, O’Grady, held that an online publication was entitled to protection under the California journalist’s privilege, but because that privilege applied to any “newspaper, magazine, or other periodical publication,” and not just to newspapers. Again, the focus both in Theiriot and O’Grady was on the text of the state statutory provision (or, in O’Grady, a state constitutional provision). The California defendant lost because the provision there was a good deal narrower.

To be sure, one can argue that the statutory term needs to be read broadly in light of technological changes, so the modern online analogs of “newspapers” — such as blogs — should be covered, even if they don’t actually fit within the normal meaning of “newspaper” either at the time the law was enacted or today. And some courts may accept such arguments. But they are uphill arguments. It’s always easier to win when the literal statutory text is on your side, as it was in Florida but not in California.

3. Of course, this doesn’t tell us how the statutes should be written. I’m inclined to say that they should cover a wide range of publications — not just “newspapers,” but offline magazines, online blogs, and various other online and offline publications (except perhaps one-off publications, such as books, for which a correction wouldn’t be effective). Among other things, retraction demands are especially useful for online publications, since an online correction is likely to be more valuable than an offline one: the site would be able to not just post a new post noting the correction, but also update the original text, so anyone who returns to the text will see the correction. Moreover, this would avoid having to draw difficult and often arbitrary lines between, for instance, newspapers and magazines. But, until the statutes are amended, some of the statutes do require courts to draw such lines.

(One could argue that the distinctions made by the statutes are so arbitrary that they are not “rationally related” to a “legitimate government interest” and thus violate the Equal Protection Clause. But such cases are very hard to win, and similar cases brought as to other media in the pre-Internet age have generally failed.)

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh | April 18