Iowa's media/non-media distinction in libel law could be trouble for bloggers.

Robinson, Eric P.

In mid-January, the Iowa Supreme Court decided to maintain the distinction in Iowa state law between "media" and "non-media" defendants in defamation cases, with the latter easier to sue for some types of libel. In Bierman v. Weier, the court said the distinction is "a well-established component of Iowa's defamation law."

The decision raises the question of whether bloggers would get the greater protection of media companies or the lesser protection of non-media defendants.

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The Iowa court retained the distinction in the context of "libel per se" cases. These cases involve statements that the law deems to be inherently defamatory, so that the plaintiff does not have prove actual harm to his or her reputation. Traditionally, examples of such statements include those saying that someone has committed a crime, is sexually promiscuous or has a "loathsome disease."

The Bierman case is a libel suit based on Weier's memoir, "Mind, Body and Soul," which focuses on Weier's personal transformation after his divorce from plaintiff Beth Weier. Scott Weier paid vanity publisher Author Solutions Inc. $3,183.81 to design and print 250 copies of the book, and he distributed 20 to 30 copies to friends, family, and local businesses. In addition, three copies were sold through Author Solutions' website, and one sold through Amazon.com. The rest of the books are in storage.

One of the statements from the book that was at issue in the case alleged that the author's ex-wife suffered from mental illness because her father, plaintiff Gall Bierman, had molested her as a child. The father's suit against Scott Weier alleged that this statement claimed he had committed a crime--molestation of his daughter--and was thus libel per se.

Under Iowa law, the court said, "[w]hen the defendant is a media defendant ... presumptions of fault, falsity, and damages are not permissible, and thus the common law doctrine of libel per se cannot apply." So the question became whether Scott Weier and Author Solutions were media defendants.

Before answering this question, the Iowa Supreme Court declared that it needed to first decide "whether we should continue to recognize libel per se and the distinction between media and non-media defendants...." In the end, after reviewing the history of libel in Iowa and the influence and meaning of U.S. Supreme Court cases on the issue, the Iowa court decided to retain libel per se, and the distinction between media and non-media defendants in such cases.

Before 1964, Iowa--like every other state--had certain categories of statements that the courts had declared to be libel per se. Then the U.S. Supreme Court revolutionized libel law by ruling in New York Times v. Sullivan in 1964 that the First Amendment placed some limits on state defamation law, requiring "actual malice" for public officials to recover in libel suits.

In 1974, the court held that "actual malice" did not apply to private figures seeking compensatory damages. But it also held that states could not impose strict liability. In other words, some level of fault must be required. (For punitive awards in such cases, actual malice is required.) Finally, in a third case, the court held that, for cases involving private figures and matters of private concern, states could use their own standard of fault in such cases, as long as it was not strict liability.

But in that and subsequent decisions, the United States Supreme Court did not clarify whether its libel rules applied differently to media as opposed to non-media defendants. This allows the courts of each state to decide independently whether the higher standards for libel declared in New York Times v. Sullivan and subsequent cases should apply to all defendants in defamation cases, or only to defendants who are "media."

With no definitive answer on the question from the U.S. Supreme Court, the Iowa Supreme Court's ruling in Bierman will stand. So, for now at least, defendants who are not considered to be "media" will effectively have a bit less protection under the First Amendment than media defendants.

After deciding to retain the media/ non-media distinction under Iowa law, the Iowa Supreme Court determined that Author Solutions was a media defendant.

A person or entity such as ASI whose regular practice is to (1) receive written materials prepared by a number of different third parties and (2) make finished products from the materials that are designed to be more suitable and accessible for the public to read should be considered a publisher and a media defendant for purposes of our case law.

But the court also held that author Scott Weier is not a media defendant. In support of this conclusion, the Iowa court discussed Lassiter v. Lassiter, in which a federal district court in Kentucky described a libel suit against an author who self-published on her own computer, without paying an outside printer--a similar memoir as "an action by one private person against another private person about a matter that is not of public interest."

In its discussion of the question of whether libel per se should continue to exist in Iowa, the court rejected the arguments by Author Solutions and Scott Weier that, as described by the court, "... the presumptions associated with libel per se have outlived their usefulness, and that technological developments--specifically the rise of the Internet and electronic publishing--have rendered the media/non-media defendant distinction obsolete." The court rejected this reasoning, saying, "We are not persuaded ... that the Internet's ability to restore reputations matches its ability to destroy them."

The court also rejected this argument as grounds for eliminating the media/non-media distinction.

In recent years the Internet and social media have evened the playing field somewhat by giving individuals with access to a computer a ready platform for spreading falsehoods or engaging in cyber-bullying. Yet unlike the media, these individuals may have fewer incentives to self-police the truth of what they are saying. For example, they may speak anonymously or pseudonymously. Also, because they are not in the communications business, they may care less about their reputation for veracity. In short, as compared to a generation ago, non-media defendants may have a greater capacity for harm without corresponding reasons to be accurate in what they are saying. This is a justification for retaining our media/ non-media distinction.

This ruling could be problematic for bloggers and other online publishers. Without a clear definition of who qualifies a "media defendant," they likely could be held to be non-media defendants under Iowa law. Although Scott Weier wrote his comments in a book that he paid to get published, his writings are not all that different from what many others write in blogs and other online media.