Blumenthal Suit Against Drudge & AOL Languishes in Court

(December 17, 1999) The defamation suit brought by White House aide Sidney Blumenthal and his wife against Internet journalist Matt Drudge and America Online has been languishing with little activity. AOL has long since been dismissed, but Blumenthal's attorney says that an appeal might still be filed.

Judge Paul Friedman dismissed AOL from the suit in an opinion and order on April 23, 1998. Little has happened since April of this year. Judge Friedman held a status conference with the attorneys on Friday, December 17. He stated that he held the conference "because not much has happened in this case." He added that "I don't like a case sitting on my calendar with nothing going on."

The case has attracted considerable attention because of Drudge's notoriety in reporting on the Clinton White House. However, the case involves two legal issues of importance to the development of Internet law. First and foremost, the claim against AOL involves interpretation of Section 230 of the Telecom Act of 1996. Second, the claims against Drudge, and requests for discovery from Drudge, raise questions regarding the extent to which First Amendment free press protections extend to citizen journalists on the Internet.

While Judge Friedman dismissed AOL from the case, Blumenthal still has the opportunity to appeal that ruling. Jo Marsh, one of Blumenthal's attorneys, spoke with Tech Law Journal before the conference. She affirmed that Blumenthal may appeal the AOL dismissal order once final judgment is rendered in the case. However, she would not state whether an appeal would be filed. Nor would she comment of the strength of the appeal.

To date, all courts have that have addressed the issue have uniformly applied Section 230 to insulate AOL from liability for content posted on AOL by third parties. However, the Blumenthal case is the only one in which AOL was paying the third party for the content.

After Judge Friedman scheduled the status conference, both sides prepared new legal papers. Drudge filed a motion for judgment on the pleadings; he wants the case dismissed. Blumenthal noticed the depositions of Drudge and three other journalists; he wants to know who Drudge's source was.

Drudge is represented by Manuel Klausner, an attorney based in Los Angeles. Blumenthal is represented by the firm of McDaniel and Marsh. Jo Marsh appeared at the conference.

Klausner presented three legal arguments in support of the request for judgment. He spoke with Tech Law Journal after the conference.

First, he asserts the "neutral reportage privilege, which basically protects a journalist who accurately reports charges made against a public official."

"It is a modern doctrine which is gaining ground," said Klausner. "It changes the common law doctrine of republication."

The Drudge story (later retracted) which gave rise to this lawsuit included the following statement:

"There are court records of Blumenthal's violence against his wife," one influential republican, who demanded anonymity, tells the DRUDGE REPORT.

Second, Klausner argues that Drudge is entitled to judgment based on the landmark 1964 Supreme Court case of New York Times v. Sullivan, which requires a finding of malice for a journalist to be held liable for defaming a public figure. Klausner requests that the court "find that both plaintiffs are public figures" based on their high positions in the Clinton White House. He also contends that "Drudge did not act with malice."

Third, Klausner seeks judgment as to Mrs. Blumenthal's claims on the grounds that "the Drudge Report was not defamatory as to Mrs. Blumenthal's conduct."

Judge Friedman set a briefing schedule on this motion that will not conclude until early February, 2000. He also stayed discovery pending resolution of this motion.

Manuel Klausner also discussed why the lawsuit has been inactive. "The lawsuit was filed for political purposes at the outset in order to try to slow Drudge down and lower his credibility," Klausner told Tech Law Journal. "That objective has not been achieved. Drudge is bigger than ever."

The case is languishing, says Klausner, because there is now "no purpose for pursuing the suit."

Nevertheless, Blumenthal's lawyers just served four notices of deposition. They want to take the oral depositions of Matt Drudge, Tucker Carlson, Richard Carlson, and John Fund. All are journalists. Jo Marsh stated at the status conference that she wanted to find out who was the source of Drudge's defamatory story. Klausner filed a motion for a protective order, on the grounds that journalists have a limited privilege regarding revealing sources.