FOR AL GIORDANO, A VICTORY AND A PRECEDENT

In what could prove to be a groundbreaking First Amendment precedent,
a New York judge has thrown out a libel suit against online
journalist and Phoenix contributor Al Giordano, ruling that he is
entitled to the same protection against such suits as a mainstream
news organization.

Giordano, the publisher and author of a Web site called the Narco
News Bulletin (www.narconews.com), and Mexican journalist Mario
Menendez had been sued by Roberto Hernandez, the head of the powerful
bank Banamex. The reason: Menendez's newspaper, Por Esto!, reported
that Hernandez had purchased Banamex in part with profits from the
illegal drug trade, an accusation that Giordano repeated in Narco
News and at a public appearance at Columbia University (see " Don't
Quote Me, " News and Features, April 13). Giordano had also written
about Banamex for the Phoenix (see " Clinton's Mexican Narco-Pals, "
News and Features, May 14, 1999).

New York State Supreme Court judge Paula Omansky cited the 1964 case
of Times v. Sullivan, in which the US Supreme Court held that a
public figure cannot successfully sue for libel unless he or she can
prove " actual malice " - a legal term that means the defendant must
be shown to have knowingly disseminated false information, or to have
demonstrated reckless disregard for whether the information was true
or false. That " high standard, " as Omansky called it, has long been
cited by free-speech activists as necessary to foster freewheeling
and robust debate about public issues - in this case, the so-called
War on Drugs.

Omansky ruled that even though Banamex was a private institution, the
War on Drugs was an issue of such public concern that Giordano was
entitled to the protection of Times v. Sullivan. " The nature of the
articles printed on the website and Mr. Giordano's statements at
Columbia University constitute matters of public concern because the
information disseminated relates to the drug trade and its effect on
people living in this hemisphere, " she wrote, according to a report
by Wired.com. Giordano's lawyer, Tom Lesser, says that the judge also
threw out the complaint against Menendez, ruling that her court had
no jurisdiction over a newspaper published in Mexico.

Calling it " extraordinary " that Omansky would reject Banamex's suit
even before the discovery phase of the case could begin, the
Northampton-based Lesser - an old friend of Giordano's dating back to
the latter's days as an anti-nuclear activist in the 1970s - told the
Phoenix that a countersuit against Banamex is being considered. " I
think the expectation is that we'll try to recoup the damages that we
have suffered, " he says.

But Banamex lawyer Michael Madigan, of the Washington firm of Akin
Gump, says Hernandez continues to insist that Menendez and Giordano's
charges are false - and he refuses to rule out an appeal of Omansky's
decision. " The only thing I can tell you at the moment is that the
matter is under review, " Madigan told the Phoenix. " Banamex will
continue to take any lawful action to protect itself from false and
libelous statements. "

Meanwhile, media observers and First Amendment advocates are hailing
Giordano's victory.

" Al Giordano has always fancied himself a dragon-slayer, and now
he's got a few more dragons on his belt, " says Danny Schechter,
executive editor of MediaChannel.org, which has carried some of
Giordano's work. " I'm encouraged not just by the outcome of the
case, but by the example of the case. "

Paul McMasters, First Amendment ombudsman for the Freedom Forum, says
what's most heartening is that Judge Omansky recognized that the
Constitution does not specify who may - and who may not - be a
journalist. " Because the First Amendment prohibits the definition of
a journalist, just about anybody with a Web site, it seems to me, can
define themselves as a journalist entitled to the protection of Times
v. Sullivan. And that, to me, is a good thing, " McMasters says.

In an e-mail to the Phoenix from Bolivia, where he is reporting this
week, Giordano - noting that his problems with Banamex began with his
May 1999 Phoenix story - said in part, " The story was airtight,
factual and fair then, and it has remained so ever since.... It's a
great victory and one to be shared by so many journalists and
readers. On to the next one! "