A CASE OF FREE SPEECH BOUNDARIES

A pending libel suit in New York now stands to test -- and potentially
redraw -- some of the boundaries of journalistic free speech on the
Internet.

The case concerns Roberto Hernandez Ramirez, general director and
majority owner of the National Bank of Mexico, also known as Banamex.
In 1997, this prominent Mexican billionaire and Salinista investor was
the subject of a series of 15 investigative reports in the Merida,
Mexico daily newspaper Por Esto that fingered him as a major narcotics
trafficker between Colombia and the United States.

Banamex and Mexican officials pursued criminal charges in Mexico
against the staff of Por Esto for defamation. Two years later, Judge
Marco Antonio Traconiz Varguez ruled that the bank was not libeled, a
decision that survived a May 2000 appeal.

Last fall, another attempt was made to press criminal libel charges in
Mexico against the staff of Por Esto, and that judge also threw the
case out. Hernandez has never personally filed a libel lawsuit over
these allegations.

Now Banamex has sued Por Esto's editor, Mario Menendez -- as well as a
Latin American Web newsletter and its editor, Al Giordano -- in New
York State court. It claims that statements Menendez and Giordano made
in public forums in New York last year were slanderous. (The two
editors delivered a lecture at Columbia University, spoke on a WBAI
radio program and were quoted in an article in the Village Voice.)

However, Banamex also cites eight articles Giordano published about
Por Esto's findings on his website, NarcoNews.com, as part of a libel
claim that could have considerable impact on Internet journalism.

"You have a Mexican business -- (in) this case the Bank of Mexico,
very much a Mexican business -- suing for stories concerning
activities that took place in Mexico," said Thomas Lesser, a First
Amendment attorney in Northampton, Mass. "And they're suing a website
that emanates in Mexico -- in New York."

However, Banamex lawyer Thomas McLish said in a written statement,
"Banamex filed its case in New York because that is where Menendez and
Giordano made the false statements that are at the core of this
lawsuit." He did not answer questions about the Internet aspects of
this case.

Lesser, who represents NarcoNews.com, came to national prominence in
1987 defending Abbie Hoffman and Amy Carter in their fight to protest
CIA recruitment on the Amherst campus of the University of
Massachusetts.

Although Banamex initiated its lawsuit last year, Lesser and Giordano
filed their briefs last month, arguing that the case should be
dismissed on the grounds that New York state has no jurisdiction
relevant to this case. This is the portion of the lawsuit that will be
central to the larger question of Internet free speech.

"It's fair to say that the potential ramifications of a ruling finding
jurisdiction over NarcoNews.com are extraordinary," Lesser said.

"It basically says, listen, if you say something that the Bank of
Mexico doesn't like -- and if they prevail in this lawsuit -- not only
can you be hauled into court in Mexico, but you can be hauled into
court anywhere in the world that they choose to haul you into court.
So if I'm a journalist, I'll prefer not to write about the Bank of
Mexico.... And I'll pass by any big organization that could do
something similar."

In little more than a year of existence, NarcoNews has scooped or shed
new light on many a drug war-related story that the American media has
overlooked.

The scrappy, shoestring-budget website exposed a multimillion dollar
conflict-of-interest scandal focusing on Associated Press articles
about Bolivian politics, which provoked AP's Bolivia correspondent,
Peter McFarren, to resign two weeks later.

It also broke the news that Uruguay President Jorge Batlle has
recently begun calling for the legalization of drugs -- a fact that
American news organizations had previously ignored.

And two months before the recent air deaths of American missionaries
in Peru, NarcoNews published an investigation alleging that American
forces had begun hiring private mercenaries in Peru on shoot-to-kill
missions.

Of course, for making burgers out of many sacred cows, NarcoNews --
which now has a legal defense fund -- has also earned the contempt and
disparagement of many powerful figures and their institutions.

McLish, discussing the allegedly defamatory articles and statements,
said, "Everyone who has looked into the matter has concluded that the
things these two men are saying about Banamex and its chairman are
just untrue.... The Mexican courts have never ruled that Menendez's
accusations are true or are supported by facts."

Should the case proceed to trial, the truth or falsehood of these
charges will certainly be pursued. And in that case, as Giordano
simply put it, "If we go to trial, the drug war goes to trial."

However, for the case to proceed, the court would first need to rule
that it does indeed have jurisdiction in New York -- the issue raised
in the defendants' motion to dismiss.

In that case, said Charles Nesson, Harvard law professor and director
of the university's Berkman Center for Internet and Society, "It's
still not the end of the story, but people should definitely be concerned."

Nesson added that it's possible that the judge could split the
defamation charges and rule that the court can hear a lawsuit over
statements uttered in New York, but that it has no business or
interest in pursuing libel claims advanced by a Mexican plaintiff over
a Mexican website.

Yet, even if partial jurisdiction is found in this case, the chilling
effect could be palpable.

"As I understand it, the investigative journalism that's gone on
primarily in Mexico has stood the test under Mexican legal process --
where an investigative journalist takes on some very big fish," Nesson
said. "And if the big fish can then pursue the journalist around the
world and threaten the website wherever it emanates from, that's
potentially harmful to spirited investigative journalism. And that, I
think, has significance."