Will First-Amendment Equality Come to Oregon?

In Lowell v. Wright, a case currently before the Oregon Supreme Court may put an end to the Beaver State denying ordinary Oregonians the same libel shield it gives to professional media. In the 1974 case of Gertz v. Robert Welch the U.S. Supreme Court established that to win a libel suit against a newspaper, a plaintive must prove the reporter acted with malice. Other lower courts have extended this standard to the rest of us, but not an Oregon court.

Tom Lowell owns Piano Studios and Showcase in Medford. Back in 2012, Mathew Wright was in this store to see if it offered as bad service as he allegedly had heard. Wright then posted a negative Google review. It turns out that Wright worked at another piano store in Medford, Artistic Piano. Lowell sued both Wright and his employer. The trial court sided with the defendants on Gertz decision grounds.

But this goes against long-standing Oregon precedent. In 1979, the Oregon Supreme Court decided in Wheeler v. Green that the First Amendment only requires proof of “actual malice” to recover presumed damages “in defamation actions brought by private parties against media defendants.” So Oregon has offered a higher evidentiary standard to sue reporters than ordinary Oregonians.

Pretty much every time this question has come up in a circuit court, the two-tiered distinction argument loses, including our own Ninth Circuit. So I predict the trial court’s decision will be upheld and Lowell will lose. I don’t know if his store offered good or bad service that day, but I know the text of the First Amendment wasn’t written only for reporters.

Eric Shierman lives in Salem and is the author of We were winning when I was there.