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Federal judge allows Internet libel lawsuit to proceed

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    News Media Update         SOUTH DAKOTA         Libel    

Federal judge allows Internet libel lawsuit to proceed

  • Former U.S. Senator James G. Abourezk continues to pursue a lawsuit against a Web site publisher who included him on a “Traitor List” for opposing President Bush’s use of the military following the terrorist attacks of Sept. 11.

March 23, 2004 — A federal judge in Sioux Falls, S.D., ruled last week that a libel lawsuit brought by former U.S. Sen. James G. Abourezk may proceed against a Web site that included Abourezk on its “Traitor List” for criticizing President Bush.

U.S. District Court Judge Lawrence L. Piersol denied the Web site’s motion to dismiss the case, concluding that the issue of whether Abourezk was a public figure was unclear. Piersol wrote that if Abourezk, a Democrat who represented South Dakota in the Senate from 1973-79, is determined to be a public figure, he would need to prove that the publisher acted with actual malice — knowing or reckless disregard for the truth.

If Abourezk is determined to be a private figure, Piersol said, the senator’s burden of proof depends of whether the speech involves a matter of public concern, which would require him to prove the statement is false.

The Web site,, argued that the case should be dismissed because the “Traitor List” is protected political speech under the First Amendment. But Piersol concluded on March 17 that the issue could not yet be decided due to scant evidence and no discovery.

Abourezk brought suit against the site’s publisher and editor, Michael Marino, in May 2003, after he was including on its “Traitor List.” The page begins with a definition of the word “treason:” “violation of allegiance toward one’s country or sovereignty, especially the betrayal of one’s country by waging war against it or by consciously or purposely acting to aid its enemies and states.” The page further defines “traitor” by saying, “If you do not support our President’s decisions you are a traitor.”

The list includes the name and photo of Abourezk, in addition to Massachusetts Sens. John Kerry and Ted Kennedy, Madonna and actress Susan Sarandon, among many others. The page does include a disclaimer that says the list is a parody, and it is not to be taken seriously.

The Web site claimed that Abourezk was included on the list because he signed the “Not in Our Name” petition, which expressed opposition to the military action President Bush took post-Sept. 11. The petition was published in The New York Times, Los Angeles Times and USA Today in the fall of 2002.

The lawsuit seeks $2 million in actual damages, $3 million in punitive damages and a retraction.

(Abourezk v., Inc.; Media Counsel: Ronald Parsons, Johnson, Heidepriem, Miner, Marlow & Janklow, Sioux Falls, S.D.) KM

© 2004 The Reporters Committee for Freedom of the Press

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