Can a public figure and candidate for public office shut down a news blog?

At issue is Camden County Freeholder candidate Vincent Squire’s attempt to shut down this blog.  Mr. Squire, apparently unhappy with the extensive research reported and opinions expressed on this blog as well as political satire by the Blogger on social media has threatened to not only use the courts to shut down this blog but filed criminal charges against the Blogger.  On Tuesday October 16, 2018 at a Probable Cause Hearing the Judge dismissed the most serious criminal charges and allowed one charge of Harassment to move forward. 

In the following video Candidate Squire falsely claims the Blogger was “found guilty” on two of the charges (there was no trial only a Probable Cause Hearing) and Squire is appealing the Judge’s decision on the most serious charge being dismissed (apparently unaware that NJ has no mechanism to appeal a Judge’s decision in a Probable Cause Hearing).  He also divulges what I believe to be his true intent when he says at the end of the video “We are also filing a cease and desist order from your rag, I mean your blog so Mr. Astringer we’re shutting you down”.

The Positively Pennsauken News Blog is not about Squire.  The blog has covered Squire in the course of reporting on local politics but Squire is not the sole focus of this blog.  Every word said about Squire on this blog has been backed up by documentation obtained via OPRA requests, searches of the NJ Courts web site or Squire’s own words on video.  The Blogger has shared political satire about Squire on social media but has intentionally kept this blog focused on fact or in some cases the writer’s opinion on Squire’s candidacy.

The First Amendment protects satire and parody as a form of free speech and expression.  According an article by the Bowen Law Group “Since it was adopted in 1791, the First Amendment has granted Americans the very well-known (and often misunderstood) right of free speech. Though not absolute, this freedom is one of the most fiercely-protected privileges we enjoy and has long been a pillar of American democracy. Over the years, this right has been extended through both laws and court decisions to offer protection for many different avenues of expression, including political, religious and commercial speech. What is often unappreciated by their targets, however, is that satire and parody are also entitled to full constitutional protection. Though the satire and parody may be outrageous, irreverent, critical or even in poor taste, it is important to note that subjects (particularly public figures) have no legal recourse against the author unless the satire or parody contains a provably false fact and is published with actual malice. Although often used interchangeably, there is a distinction between satire and parody.”

According to the Law Firm Kelly / Warner satire is defined as “the use of humor, irony, exaggeration or ridicule to expose and criticize people’s stupidity or vices, particularly in the context of contemporary politics and other topical issues”.

Over the years U.S. courts have made it abundantly clear that parody and satire are not defamatory.

The most famous court case relating to political satire is the case of Hustler v. Falwell (as portrayed in the movie The People vs. Larry Flint).  This case continues to be the benchmark for First Amendment lawsuits and American Tort Law.  In a 1988 ruling in favor of Hustler Magazine United States Supreme Court Chief Justice William Rehnquist wrote “The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are intimately involved in the resolution of important public questions, or, by reason of their fame, shape events in areas of concern to society at large”.  The Court recognized the importance of allowing the free flow of ideas despite a possible negative emotional impact on the target of ridicule.  The court affirmed that “the sort of expression in [the Hustler] case does not seem to us to be governed by any exception” to general First Amendment protection.

In 2013 a court dismissed a satire v. defamation lawsuit against Esquire Magazine.  Jerome Corsi sued Esquire for poking fun at his book Where’s the Birth Certificate?  The Case That Barack Obama is not Eligible to be President.

A fictional Dallas Observer parody article about the arrest of a 6-year-old girl for a book report was satire and didn’t libel two Denton County officials who sued the newspaper, the Texas Supreme Court in 2004.  The Attorney for the Dallas Observer successfully argued that the article was satire and protected by the First Amendment.

Court cases arguing protected speech go far back in American history.  In case after case courts have rule that the First Amendment protects satire and parody.

In 2014 the Ninth Circuit Court ruled that liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages.  In the case of Obsidian Finance Group v. Crystal Cox the court found that even though someone might not write for the institutional press they’re entitled to all of the protections the Constitution grans journalists.

I believe that every blogger and member of the institutional press should be deeply concerned about the implications of a candidate for public office attempting to shut down a blog that has reported factual information and opinion on him.  If successful Squire will open the door to other blogs and institutional press outlets being banned from reporting on officials and candidates for public office.

I ask that fellow bloggers and members of the institutional press consider the implications if Squire is successful in his efforts, band together and stand up to a politician attempting to use the legal system to shut down an outlet reporting on him.  I am happy to discuss in further detail and can be reached by email mike@positivelypennsauken.com or by phone 609-280-1367.