Reporters Left Hanging

Adam Gaffin at Universal Hub and Dan Kennedy* each report today on the SJC's decision in Fustolo v. Hollander, SJC No. 10485. If you've spent time with me, or read this blog, you probably know that I have a genetic inclination toward a broad interpretation of the First Amendment, especially as it relates to the press. But the decision in the Fustolo case feels right to me.

The issue in the case is whether a person who writes an objective news story is petitioning the government. If she is, the case against her would probably be dismissed in its earliest stages and she would be awarded her attorneys' fees. I agree that the statute is not as artfully crafted as we might like it to be. Especially on this front. But it protects petitioning. A reporter who objectively provides citizens with information about an issue of public concern is performing a valuable service in our democracy. She may be providing information that others use to petition. But she's not petitioning. Which is what the statute protects.

So the most important sentence in the opinion, to me, pops up early on: "she expressly stated in her affidavit that in writing all her articles, she was 'always careful to present an objective description of the subject matter, including the positions of both sides where applicable,' and that while she had personal views on the issues she covered, 'they were not reflected in the articles I wrote.'"

Again: not petitioning. No matter what you think of the plaintiff, no matter what you think of the press, if you're not presenting personal views you just aren't petitioning.

*I can't resist noting that Mr. Kennedy links in his post to an affidavit that he was paid, presumably by Ms. Hollander to the submit to the Court. As with just about everything he writes, it's persuasive and beautifully written. But I'm not so sure it's a particularly helpful document to file in a civil dispute to which he's not a party.