In 1994, when we were first charged with criminal defamation, we got a crash course in what it is all about. We do not claim any special status because we are on the Internet. What we do is journalism. We have the advantage of not having to answer to any advertisers. We answer only to ourselves and our readers. When we cease to have readers, we will find another way to express ourselves. For now, we are proud to be part of a great global experiment. At a time when the gap between rich and poor is evident, we believe that telling the truth is still a viable method of changing the world, narrowing the gap. -- Sheila Steele, injusticebusters.com
Dec. 7, 2001: "This court finds that Narco News is a media defendant and is entitled to heightened protection under the First Amendment…" (Sullivan v. New York Times)
"The Internet is similar to a television and radio broadcast in the sense that the electronic missive is able to reach a large and diverse audience almost instananeously... However, the character of a particular website depends on the format and program design... A careful review of defendants' submission on Narco News's website indicates that the Narco defendants' format is similar to a regularly published public news magazine or newspaper except for the fact that the periodical is published "on line" or electronically, instead of being printed on paper. The fact that the Narco News website can accept readers' comments, or letters to the editor, via a seperate e-mail address only strengthens the need for First Amendment protections for the medium."
"Since principles of defamation law may be applied to the Internet... this court determines that Narco News, its website, and the writers who post information, are entitled to all the First Amendment protections accorded a newspaper-magazine or journalist in defamation suits... Furthermore, the nature of the articles printed on the website and Mr. Giordano's (right) statements at Columbia University constitute matters of public concern because the information disseminated relates to the drug trade and its affect on people living in this hemisphere…"
-- New York Supreme Court Justice Paula Omansky
Roberto Hernández Ramírez, president of Banamex, seeks to "bury" the accusations that have been published in various media about him for drug trafficking and money laundering in legal paperwork and "drown them," through an expensive trial in New York, says Al Giordano, editor of The Narco News Bulletin and one of the journalists sued by the banker in the New York Supreme Court.
More than trying to "restore" the deteriorated image of the bank, as he claims in his lawsuit, what the Banamex owner wants "is to silence us and discredit us in order to discredit the published accusations, since he already doesn't have the elements to refute the facts upon which the reports that accused him were based," said that journalist.
Tireless investigator, passionate opponent of the war on drugs, enthusiastic promoter of social causes, Giordano declined to speak of the strategies that he will use in his defense, but he declares himself openly optimistic of the results that this trial will bring.
He warns that the case is going to be politicized, "because we have all the elements for that: international narco-trafficking, money-laundering, government persecution against journalists and photographs of cocaine containers in the pristine coastal lands of Quintana Roo that belong to the banker."
"The Banamex owner wanted to silence us," he said, "and what he is going to succeed at doing is to place the narco-system and its bastard child, the war on drugs, in the seat of the accused."
"Roberto Hernández has already lost in advance because he has failed to silence us," he emphasized.
Soon, the parties will begin shooting, and to start it all off, Giordano notified Banamex defender Tom McLish by email of the adjournment of the pre-trial conference, ordered by a judge, from January 25th to March 8th.
In a missive infused with irony, in which he represented himself as his own attorney, the journalist accepted service of the bank's lawsuit against him and asked the accusing side for 90 days to respond.
"Roberto Hernández's gamble was to sue us in order to cost us money that we clearly don't have," said the former political reporter of the Boston Phoenix newspaper, a media that he left to dedicate himself to report on the absurdities and abuses of the war on drugs in Latin America.
"If Roberto Hernández's desire was to silence us he has failed because neither don Mario nor I are the type of people to give up in the face of harassment. To the contrary, here we go into the fight," he advised.
He stressed that the banker knows that neither of the journalists has the money needed to mount a defense to this lawsuit. "He knows it, because he has used companies like DSFX, an espionage firm, to investigate us."
And he added: "He knows perfectly well that I don't earn enough money to live in New York. He knows that Mario Renato Menéndez and Por Esto! sell ads for pesos and he wants to obligate them to pay for a legal defense in dollars."
"This lawsuit is about harassment and intimidation. The fact that to defend oneself from any lawsuit in New York costs hundreds of thousands of dollars," he said, adding that the cost of court documents alone is going to cost him around $100,000.
To be able to mount an adequate defense, he explained, "we need the transcripts of all the depositions and they cost about $500 dollars apiece, and if they have to be translated from Spanish, the price doubles. To this must be added the legal fees, the trips to New York, etcetera."
And why hasn't Banamex sued media like El Universal, AP, the Wall Street Journal, the Boston Phoenix or the Village Voice that published the same facts? "Because they know they have a weak case and anyone with a minimum capacity to pay for a legal defense can prove it."
Also, he recalls a series of facts that demonstrate the kind of web that the Banamex owner is weaving to silence the two journalists: "The lawsuit in New York was filed on August 9th and some days later, on August 24th, the Mexican Attorney General brought charges against Mario Renato Menéndez. Their plan was to obtain a secret arrest warrant, to arrest the Por Esto! editor in Cancún on September 8th and the next day announce the lawsuit in the Big Apple."
"I think it was a huge surprise for Roberto Hernández's lawyers that an attorney like Martin Garbus (right), who has defended Nelson Mandela, Vaclav Havel, Henry Miller and many others, appeared in the defense of our case."
He outlines that Garbus has defended twenty cases before the US Supreme Court, "and has not lost a single one."
Another attorney that may join the defense is Tom Lesser, friend of Al Giordano, who has so far given legal advice, and is known for his talent at politicizing cases like this one.
But the most appetizing bite in this entire buffet of expensive plates is the possibility of putting the war on drugs in the seat of the accused.
Al Giordano explains: "In the United States, to win a lawsuit for libel, they need to prove malice on the part of the accused. As I see things going, I think that don Mario and I might spend days and days in the witness chair to explain all that we knew about this theme. In this sense, a lot of information that is unknown or ignored about drug trafficking and its complicities is going to come to light in New York."
Are you disposed to come to a legal agreement with Banamex outside the court if Roberto Hernández solicits that at some point?
"No deals: I don't make deals with this kind of people. I have to preserve my integrity."
But not all is honey over pancakes. Al Giordano recognizes that since this matter of the lawsuit began he has spent hours and hours preparing his defense and has been obligated to leave things that before seemed fundamental on the side. But not even that seems to deter his steel will to mount his defense with all the moral authority that he has earned through an impeccable journalistic career.
As part of an effort of censorship and harassment by the banker Roberto Hernández Ramírez, his bank, Banamex, and the lawyer-lobbyist firm that he hired to sue and harass online and newspaper journalists, you have been contracted by Banamex and/or Akin, Gump, Strauss, Hauer & Feld to publish a web site at this address:
NarcoNews has published the lawsuit here.
The web site, on your server, contains this message:
"Banco Nacional de Mexico, S.A. ('Banamex') has filed suit against 1) Mario Renato Mendendez Rodriguez, 2) Al Giordano and 3) The Narco News Bulletin. That case is currently pending in the United States District Court for the Southern District of New York. Banamex has set up this web page as a means to deliver important documents relating to the the lawsuit to the defendants in the case. Clicking on the links below will display the documents and permit the user to save them, if desired."
I am writing to kindly ask that you NOT censor this web site that has been placed by our litigious adversaries.
At Narco News, we believe that sunlight is the best disinfectant.
Since April 18, 2000, we have published hundreds of news stories that reveal the facts about the present-day atrocity that is the US-imposed War on Drugs in Latin America. These journalistic reports can be found at www.narconews.com
The web site that you have been contracted to provide includes the text of a lawsuit filed against Mexican and US journalists.
They are suing us because we reported the facts and told the truth about government-protected drug trafficking throughout América, including some stories about those in government and media who protected that activity on the coastal Caribbean properties of Mr. Hernández, owner of Banamex.
Today, we have placed a link from our web site to the site on your server so that all our readers across the world may read the false and unsubstantiated charges filed against us by Banamex through its lawyer-lobbyist firm Akin Gump.
The lawsuit speaks for itself. One need only read its hostile tone and its lack of facts to back its most serious allegations to see, clearly, that they have no real case. This lawsuit is a classic SLAPP suit (Strategic Lawsuit Against Public Participation), and its perpetrators are already beginning to feel the consequences of their own censorious and immoral actions against us.
The lawsuit makes some allegations that would be actionable as libel if the Plaintiffs or their lawyers stated them anywhere outside of the protected realm of a court proceeding (thus, they have not repeated these knowingly false and malicious allegations in their statements to the press). But we believe, as First Amendment advocates before us have said, that THE ONLY SOLUTION TO HARMFUL SPEECH IS MORE SPEECH.
Your new clients do not share our commitment to free speech. Here is a case in point that, as an Internet Service Provider, ought to concern you deeply:
Last month, Mr. Tom McLish of Akin Gump sent a threatening letter to our Internet Service Provider, Voxel.net in Troy, New York, seeking to intimidate them into censoring our web publication. The good people at www.voxel.net, instead of running scared and taking our site down, told the Metroland newspaper of Albany that Narco News is providing "a public service," and that Voxel.net will not censor us.
You may also read a Village Voice story that reports on Akin Gump's harassment activities against online freedom of speech at: www.villagevoice.com
And you may read a free speech scholar's analysis of our case at: www.narconews.com/drugwarontrial3.html
We don't seek to win our battle for free speech through censorship. To the contrary, we write today to ask you NOT to censor the Banamex-Akin Gump web site - even if and when they ask you to take it down.
All the documents on that web site are public documents, property of the US courts, and thus, the American people. There is no copyright upon them. They are now part of the public record. Having filed them in a court of law, Banamex and Akin Gump have lost all claim of ownership on those words (indeed, the most truthful words in that complaint were taken from Narco News, and we thank them for providing more readers for the facts and truth we publish, and for making these texts available at yet another Internet site).
Thus, if Akin Gump or Banamex comes to you - now that we have, once again, turned their bitter litigious lemons into the sweet and refreshing lemonade of Free Expression - and if they ask you to take the site down, we call upon you to maintain the site as a historical archive of how huge companies in the private sector try to use their money and power to censor the Internet, the Press and Freedom of Expression.
Finally, we hope that your wealthy clients paid you in advance for the web site, and that perhaps you can find a worthy free speech organization like the Electronic Frontier Foundation, the American Civil Liberties Union, or another charity of your choice, to support with the funds of those who, in bad faith and hostility to freedom, seek to censor the Internet.
Thank you, Jared, for your time and consideration. We wish you continued success.
For an Internet that stays proud and free,
From somewhere in a country called América,
Al Giordano, Publisher The Narco News Bulletin firstname.lastname@example.org
The managers of Voxel Dot Net Inc, a small Internet-service provider in Troy, hardly imagined that they would ever become embroiled in an international dispute over drug trafficking. But this month, that's exactly what happened.
Last Thursday (Dec. 14), Voxel was contacted by representatives of Akin, Gump, Strauss, Hauer & Feld, a Washington, D.C. law firm representing the Mexican bank Banamex. Through a lawsuit filed in federal District Court in New York City, Banamex is waging a legal battle to discredit media reports indicating that its president, Roberto Hernández Ramírez, is a drug trafficker whose activities are allegedly protected by powerful politicians in both Mexico and the United States.
Since last April, Voxel has provided Internet access to the Narco News Bulletin, a news service that seeks to expose the alleged hypocrisies of the U.S.-led war against drugs-which enters its next phase in January with the start of a military operation in southern Colombia targeting coca growers. Akin Gump reportedly asked Voxel to dismantle the Narco News Web site (www.narconews.com), but the company refused, citing free speech concerns.
"This has the makings of a huge, huge case," said Raj Dutt, the corporate spokesman for Voxel in Troy. Dutt said he could not comment specifically on any legal action that might be taken against his company. "We're not being held responsible. We are the host" of Narco News, he said.
Dutt added that the news bulletin was "providing a public service" and that Voxel would continue providing Internet access "until we get a court order basically telling us to take the site down."
"I'm not authorized to speak to the press on behalf of our client," said Akin Gump spokesman Tom McLish, who has been attempting to serve the legal papers related to a lawsuit brought against the Narco News publisher, former Boston Phoenix political writer Al Giordano.
In July, Narco News translated a series of articles published in Por Esto!, Mexico's third-largest daily newspaper, which documented how the Hernández property in the state of Quintana Roo has become a prime shipping point for Colombian cocaine. The paper went so far as to call the Hernández ranch, located on Mexico's Caribbean coast, "the cocaine peninsula." Hernández filed lawsuits against the editor and publisher of Por Esto!, along with several of the paper's reporters, to force a retraction of its investigative stories. But top Mexican judges ruled against him, saying the stories were "based on the facts," according to Narco News.
Other Mexican papers have reported how Hernández hosted a private reception at his ranch this year that was attended by newly elected Mexican President Vincente Fox, U.S. ambassador to Mexico Jeffrey Davidow and President Bill Clinton.