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Online Reviews Protected Speech, Appellate Court Rules

Submitted by Amaris Elliott-Engel on Sun, 03/20/2016 - 14:09

The Oregon Supreme Court has ruled that a negative review of a wedding venue is protected by the First Amendment. In doing so, the court also set precedent for how to distinguish whether speech is protected opinion or a defamatory assertion of fact.

Justice Richard C. Baldwin, writing for the court, applied a Ninth Circuit test in Unelko Corp v. Rooney: "whether a reasonable factfinder could conclude that an allegedly defamatory statement touching on a matter of public concern implies an assertion of objective fact and is therefore not constitutionally protected." The Oregon Supreme Court set out a three-part test to answer that question: 1) whether the general tenor of the entire publication negates the impression that the defendant was asserting an objective fact; 2) whether the defendant used figurative or hyperbolic language that negates that impression; and 3) whether the statement in question is susceptible of being proved true or false.

The defendant was a wedding guest who made a negative review of the venue on Google Reviews, including complaining that the owners were rude, the owners made wedding guests leave 45 minutes early and that the bridal suite was "'a tool shed that was painted pretty.'"

The case is only the second time that the Oregon Supreme Court has applied the U.S. Supreme Court's ruling in Milkovich v. Lorain Journal Co., which held that, in determining whether a defamatory statement is constitutionally protected, it must be decided if a reasonable factfinder could conclude that the statement implies an assertion of objective fact about the plaintiff. The Oregon Supreme Court decided to follow the Ninth Circuit's test in Unelko and found that the review did not imply an assertion of objective fact and instead was an opinion on a matter of public concern. 

The trial court struck down the wedding venue's defamation lawsuit under Oregon's anti-SLAPP law, but the Oregon Court of Appeals reversed.

Oregon, Rhode Island Expand DNA Testing for Convicts Released From Jail

Both Rhode Island and Oregon recently expanded their laws allowing for DNA testing by people trying to prove they were wrongfully convicted.

Both states have enacted laws to expand access to DNA testing for people convicted of a crime who are no longer in prison, The Oregonian's Maxine Bernstein and The Providence Journal's Katie Mulvaney respectively report.

Steve T. Wax, legal director of Oregon's Innocence Project, told Bernstein that Oregon's law was one of the most restrictive in the country. In that state, the standard to get post-conviction DNA testing will now be showing there is a reasonable possibility that testing would lead to a finding of actual innocence.

 

Legislation Introduced to Reform Oregon's DNA Testing Law

In the 14 years since Oregon enacted a law to allow defendants to get DNA testing to show they might be innocent, only two have gotten judges to approve such testing. As a result, legislators in Oregon have introduced a bill to reform the state's DNA testing law for defendants, Oregon Public Broadcasting's Amelia Templeton reports.

Under current law, defendants have to show that DNA testing on specific pieces of evidence would conclusively prove their innocence. The new bill would relax the standard, requiring defendants to "present a theory of defense supported by DNA evidence, and prove that a favorable DNA result would lead to finding that person would not have been convicted if the testing had been done before their trial," Templeton reports.

Oregon Judge Greenlights GMO Recount Results

Supporters of an Oregon measure that would require labels on genetically modified food lost their effort to prevent the state from certifying the results of a recount, The Oregonian's Laura Gunderson reports. The measure failed by 812 votes out of 1.5 million cast. A Multnomah County judge denied the request for a temporary restraining order, which leaves the Secretary of State's Office likely to certify the results from a recount next week.

GMO Labeling Fails in Colorado and Oregon

Voters in Oregon and Colorado rejected measures that would have required labeling of genetically modified food, Reuters' Carey Gillam reports. The vote was much closer in Oregon than in Colorado. Instead, the fight will shift to the federal level, Gillam reports: "Labeling proponents are pursuing a federal mandate for labeling of GMO foods, while labeling opponents are backing a proposed law that would nullify any mandatory labeling laws, including one approved by Vermont lawmakers earlier this year."

Oracle Asks to Legislators to Defund Lawsuit Over Health Insurance Website

Oracle Corp. has asked legislative leaders to defund a lawsuit Oregon has brought over the failed health insurance website the company built for the state, the Associated Press reports. Oracle contends that the insurance portal Cover Oregon failed because of mismanagement by the state. The state is suing Oracle for false claims and other causes of action, while Oracle has sued for state for breach of contract and alleged violations of its copyrights, the AP further reports.

Oregon Sues Vendor Over Problematic Health Exchange

Oregon has sued Oracle America for allegedly shoddy work on the Cover Oregon health exchange, The Oregonian's Nick Budnick reports. The state is prosecuting various theories all alleging that the IT firm fraudulently enriched itself at Oregon's expense.

Both sides blame each other for the failure to hire a systems integrator, or a general contractor to oversee Oracle's work, Budick further reports. When the systems integrator was not hired, Oracle became the primary contractor and ultimately was paid more than $103 million.

Outside counsel Markowitz, Herbold, Glade & Mehlhaf has been deputized to handle the case for the Oregon Department of Justice in exchange for a $2 million contract, Budnick concludes.

Pennsylvania, Oregon Become Latest States to Have Same-Sex Marriage Bans Struck Down

Pennsylvania's ban on same-sex marriage was struck down today, just a day after Oregon's ban on sam-sex marriage was struck down. Marriages have begun in both states.

Now there are 25 states that allow same-sex marriage and 25 that don't, the Associated Press reports.

In Oregon, U.S. District Judge Michael McShane said there was no rational relationship to any legitimate government interest to ban same-sex couples from marrying, the Oregonian reports. He also found that the ban violates same-sex couples' constitutional right to equal protection.

In Pennsylvania, U.S. District Judge John Jones III said same-sex marriages must be discarded onto the ash heap of history, the AP reports. 

Lawsuit Threatened Against Oregon's New American Indian Mascot Law

Oregon has passed a law to allow school districts to enter into agreements with American Indian tribes to use American Indian mascots and names. But the law is already being threatened by possible litigiation: "Sam Sachs, a racial-justice activist who also is a Portland Human Rights Commissioner, said the state Board of Education is obligated to create a safe environment for all Oregon children to learn free of discrimination and bullying. 'But this new law does not get there,' Sachs said of the bill, which will allow a district school board to enter into an approved written agreement with federally recognized American Indian tribes in Oregon to use a mascot that represents, is associated with, or is significant to the tribe," the Statesman Journal reports.

Oregon Must Now Recognize Other States' Same-Sex Marriages

Oregon's constitution bans same-sex marriage, but the Oregon Department of Justice has opined that same-sex marriages from other states must be recognized by Oregon governmental officials, The Portland Business Journal reports. The DOJ said that withholding benefits from same-sex spouses who legally wed out-of-state would violate equal protection principles and would be consistent with the policy of recognizing "valid out-of-state marriages that could not be performed in Oregon, including common-law unions," the publication also reports. Just like other states, lawsuits have been filed to challenge Oregon's ban on same-sex marriage.

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