California libel protection now covers online publications

Here’s one for the changing-media-landscape file: California Gov. Jerry Brown signed a bill this week to update his state’s libel laws, bringing consistency to the treatment of print and online publications. “Our libel laws now rightly treat new media sources the same as traditional newspapers,” the bill’s sponsor said—appropriately enough—in a Facebook post.

At issue was the state’s “libel retraction” statute. Dating back to 1931, the original law created a means to limit the damages available to a plaintiff in a libel case against a media defendant. Basically, it said damages would be limited if the defendant had published a retraction at the plaintiff’s request.

The major catch: The statute applied only if the libelous material was published in a “newspaper” or a “radio broadcast.” A different statute clarified that “radio broadcast” included TV broadcast, but what about magazines and websites?

In 2014, a state appeals court ruled that California’s retraction statute did not, in fact, apply to websites. The panel concluded:

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Defendants ask us to interpret “newspaper” to include online publications such as TheWrap. We cannot do so. “[A] reviewing court’s ‘fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’ The analysis starts by examining the actual words of the statute, giving them their usual, ordinary meaning.”

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. 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.”

Donald Wagner, R-Irvine, accepted the court’s challenge. He introduced the update bill in 2014, but it didn’t go anywhere—so he reintroduced it in 2015 and saw it pass both houses, easily, before reaching the governor. The California Newspaper Publishers Association testified in support of the bill before the state Committee on the Judiciary.

Specifically, the new measure replaces the term “newspaper” with the phrase “daily or weekly news publication,” defined as “a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”

That’s a significant improvement. Media-consumption patterns have obviously changed a lot since the 1930s and ‘40s, and the law should reflect that. As UCLA law professor Eugene Volokh wrote at The Washington Post, the update bill represents a “substantial victory for online speech in California.”

But, as Volokh also notes, the new language does still discriminate among media—based on regularity, not form. What if I publish a monthly online magazine? It wouldn’t be covered. For that matter, the same goes for a monthly print magazine.

I find that unfortunate, but it’s probably constitutionally permissible. When it comes to media rights, the First Amendment acts as a floor rather than a ceiling—in the sense that retraction statutes go beyond what the First Amendment requires, so those statutes generally can treat some media differently from others.

Volokh put it this way: A legislature might do so to give special protection to outlets that it believes are “especially subject to deadline pressure.” The theory is that organizations that break news can’t always thoroughly check their stories for accidental errors, and since lots of breaking news is about matters of public concern, the organizations deserve some breathing room.

More broadly, retraction statutes reflect a legislature’s calculation that in some cases the public interest in disseminating news “outweighs [any] potential injury to a plaintiff from the publication of a libel,” and so the retraction statute tries to protect that dissemination by limiting the damages available to a plaintiff.

So, I worry about the remaining exclusiveness of the definition, but the update bill is still a welcome change—and it takes effect Jan. 1, 2016.

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Jonathan Peters is CJR’s press freedom correspondent. An attorney, he is an assistant professor of journalism at the University of Kansas, where he teaches and researches media law and policy, with an affiliate research position exploring big data and Internet governance in the KU Information & Telecommunication Technology Center. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.