Olson v. Brodkorb: Precedent or One of Many Milestones to Come?

Once upon a time there was an anonymous blogger who posted scurrilous information about Democrats and other left-leaning sorts under the banner of Minnesota Democrats Exposed. One post by this anonymous blogger involved a public relations guru named Blois Olson, who also publishes an online political journal called Politics in Minnesota.

more insideIt said, in part, under the headline “MDE EXCLUSIVE: COLEEN ROWLEY AND BLOIS OLSON“:

I have been informed by a source in direct contact with Coleen Rowley’s campaign, that Blois Olson’s PR firm, New School Communications, tried to get Rowley’s campaign to hire Blois’ firm for a consulting contract.

Buck Humphrey, an employee of New School Communications, was the main person trying to get Rowley’s campaign to ink the contract.

Rowley’s campaign decided against hiring New School Communications.

According to my source, it was only after Rowley’s campaign decided against hiring Blois’ firm that Blois started to appear in newspapers criticizing Rowley’s campaign.

If my source is correct, and I believe they are, Politics in Minnesota and Blois Olson have some explaining to do.

Why did Blois never disclose he was trying to get Rowley’s campaign to hire his firm?

This story is developing and I will have more information later this evening.

##

UPDATE: Blois Olson sent me the following email:

—–Original Message—–
From:
  Blois Olson
Sent: Wednesday, December 28, 2005 8:49PM
To: Minnesota Democrats Exposed
Subject: RE: Minnesota Democrats Exposed: MDE EXCLUSIVE: COLEEN ROWLEY AND BLOIS OLSON
Importance:High

I don’t know who you are but your story is ABSOLUTELY FALSE.

New School Communications does not do ANY political work. Buck Humphrey may have persued [sic] a work with Rowley PRIOR to his employment at New School but we do not do any campaign work.

I demand a retraction immediately.

##

Here is my response:

1. New-School’s client list shows political work.

2. This is from Blois’ bio on New-School’s website: “Blois Olson leads New School Communications with a broad background in public affairs, media relations and campaign management. Specializing in innovative strategies for small businesses and public affairs organizations, he is well known for his media relations and public relations, as well as his political and pundit work.”

3. Blois’ occupation is listed as “a Democratic consultant” in the above story.

4. According to New-School’s website, Buck Humphrey joined the firm in March 2005. My source informs me that Humphrey was trying to get a contract with Rowley’s campaign in June 2005. If my source is correct, Humphrey was an employee of New-School communications when he was trying to work with Rowley’s campaign and it was not done prior to Humphrey joining New-School Communications as Blois now claims.

In a comment to the post, Olson repeated his demand for a retraction, adding:

It is well known that New School and Blois Olson have not done any campaign work since 1998.

It would be a clear conflict to our publications.

It should also be noted that an anonymous blogger that doesn’t accept anonymous postings could be defined as a hypocrit [sic].

If you want attributal [sic], political insight from people with real experience and credibility, not afraid to put their name on what they write – subscribe towww.politicsinminnesota.com

That was it. Seemingly not much of an exchange, but since the anonymous blogger did not retract his claim, New School Communications and Olson sued.

Though the lawsuit claimed Olson was defamed, it was widely accepted within the blogosphere and by mainstream journalists that Olson’s secondary purpose was to force public revelation of the blogger’s actual identity. In fact, Olson had written the following at Politics in Minnesota:

Anonymous Bloggers Need To Get A Life

Okay, the Blogs of the world have had some impact on politics in the past few cycles, but it’s time that someone begins outing all of the anonymous bloggers. Both sides have them, but it seems as though they have decided to pop-up as the most cost effective (free) ways to anonymously attack candidates. We value free speech, just have the guts to attach your name to your comments.

Realizing that the jig was up after the lawsuit was filed, the anonymous blogger came out of the closet, as it were, with this post on Jan. 4, 2006:

I AM M.D.E.

My name is Michael Brodkorb and I am Minnesota Democrats Exposed.

I had previously stated that I would never reveal my identity. I may have been naive to think I would be able to expose Democrats in the land of Hubert H. Humphrey, Walter Mondale and Paul Wellstone, while keeping my true identity a secret.

In the end, my identity is being unveiled today because of lawsuit filed against me by a prominent Democrat consultant. The Democrat who filed this lawsuit did not contact Domains by Proxy to confirm my identity. Instead, I was served legal papers at my home last evening.

I decided that I would expose myself on my own blog, in my own words, rather than my identity being eventually confirmed in Dakota County District Court documents.

Domains by Proxy is an internet registration intermediary set up to hide domain name ownership information that is normally publicly available through a query of the WHOIS system.

The success of the lawsuit hinged on a number of questions:

1. Were Brodkorb’s statements true?
2. If not, did Brodkorb intentionally try to defame Olson?
3. Should Olson be treated as a public or private person before the law?
4. Is Brodkorb a private individual or a journalist before the law?
5. If Brodkorb is a journalist and Olson is a public person, should the Sullivan precedent apply? That is, if Brodkorb’s statement was not true, did he publish it, as the Dakota County District Court said, with “actual malice” — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”

In its March 8 decision, the Dakota County District Court held that:

Plaintiff Blois Olson is a limited-purpose public figure and the statements in question fell within the scope of Mr. Olson’s public figure status; therefore, any defamation by Defendant must stand on clear and convincing legs of actual-malice, knowledge of falsity.

And that:

Without divining the truthfulness of the claimed events and proposals reported upon by Defendant, the court finds there was no reckless disregard, or serious doubts that would warrant further investigation before the alleged defamatory statements were made by Defendant; the multiple-source information and circumstances presented to Defendant before publication objectively and subjectively led to the conclusions made….

In other words, Brodkorb had not knowingly and maliciously made a false statement. But was Brodkorb a journalist? The court said only that it “further notes that there is no expert opinion in this case that the scope of Defendant’s verification efforts violated current journalistic standards.”

It appears then that the court made it clear that the Sullivan precedent did apply to this case. But is Brodkorb, a self-described blogger, a journalist? The Dakota County District Court did not answer this question, but at least one court in California has looked at the journalist defense for bloggers and decided the answer was “no.”

The situation occurred when Apple Computer (now just “Apple”) sued three bloggers, accusing them of making public Apple trade secrets. In that case the court held that the bloggers were not journalists, and therefore had to reveal their sources of information, presumably leaks within Apple. That case, however, did not involve defamation and bore little resemblance to Olson v. Brodkorb, except that the defendants in both cases were bloggers.

The problem with the term “blogger” is that it encompasses a range of writing styles from following pure journalistic standards to putting forth pure opinion, some of which may be distasteful to a majority of readers. Thus, blogging is not a type or genre of writing like journalism, fiction, nonfiction, playwriting, screenwriting, diary writing, technical writing, etc., but more a means of delivering information. In other words, a blog is perhaps more akin to a television or radio station; blogging is providing content for that station, be it written, audio or video.

The courts and lawmakers eventually will sort all this out, but historically law has been fashioned after the fact rather than before. That is, laws are rarely crafted in anticipation of a problem; they almost always come into being only after that problem has arisen.

What this means to bloggers, be they individuals like Michael Brodkorb, whose purpose is political communication more than journalism, or others who hold fast to stricter journalistic ethical codes, is that trying to hide behind existing law won’t be a surefire defense for free speech.

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