Year-End Review of the OregonPEN Agenda for 2017

The next year will be momentous in every sense of that word. The Rube Goldberg booby-trap at the heart of our national governance has snapped again, and it remains to be seen whether America survives as a functioning nation or whether the elevation of a complete sociopathic narcissist to head the executive branch — with the other two branches totally dominated by rank partisans — is the Rubicon moment for the crackup of democracy in America.

So that will dominate much of what goes on.

But in the meantime, OregonPEN is, first and foremost, about Oregon, and about ideas for making Oregon better. Better meaning more just, more successful, more resilient to challenges, and more intelligent about how it governs itself.

The Oregon Public Empowerment News (Oregon PEN), is an, all-digital weekly newspaper that focuses entirely on giving readers news and commentary that empowers and engages, providing the knowledge and insights needed for making Oregon better.

Each week, Oregon PEN delivers a different kind of newspaper experience, one that is all signal, no noise: No horoscopes, no celebrity sex lives, no fluff — just deep content about news that actually matters, not just this week but this year, and next year, and beyond.

This year, OregonPEN will enter the next phase of its progress, soliciting and accepting paid legal and public notices, with the purpose of devoting the net proceeds from the revenue to continue the mission of making Oregon better.  Stay tuned for announcements on that front.

But the end of the year and the upcoming change to a more commercial entity provides a good opportunity to review some of the ideas that OregonPEN will continue to advance in the year ahead, the items that make up the OregonPEN Agenda.

Governmental Transparency
OregonPEN Vol. 1, No. 40

Instead of making citizens request information, it’s time to make openness the default setting for all Oregon governments instead of just empty rhetoric:

1) All public work would be stored on fully open servers and indexed continually as created.

2) Instead of citizen public records requests, officials would have to ask for and get the OK to create or store any records outside the fully open systems.

3) Records would be “Born Free” instead of born hidden and then only released on request.
 
The Oregon Secretary of State’s office just issued a lengthy report on the state government’s persistent and widespread failure to comply with our Public Records Act. That act, one of the many “Sunshine Laws” that were created around the United States in the 1970s, followed in response to the realization by many that much of the worst harms by public agencies were allowed to grow into such catastrophes because, before these laws, the usual response from a government office to a request for information from ordinary citizen was “Who wants to know?”

The Public Records Act was intended to ban that kind of response, and create a default position of openness based on the idea that citizens in a democracy have a right to know what was being done in their name, and that we all have a right to know how the decisions are made, who influences them, and what was considered. But the many interests who prefer to operate outside the public view have been tireless in throwing up shade barriers, and so the “sunshine” is now less and less bright.

The whole public records act process in Oregon, as elsewhere, has become a bureaucratic swamp of agency evasion, vindictive fees and delay, because they are all baked into the very basis of a public records act where the citizen approaches the government on bended knee with a request for a record, and the government gets to decide whether or not it understands the request, how long it will take to understand the request, how much it will charge the citizen to come to that understanding, and how hard it will fight to oppose the request.

Thus, it is now time to give up on the idea that openness is optional, and that government is to be trusted to consider citizen requests and restrict refusals to produce records to a short list of obvious exceptions.

Instead, Oregon must move to a system where all public records are stored on openly accessible servers that anyone can access day or night and browse, anonymously and freely, without charge, and the records must be indexed so that the records are intelligible.

In this world, the only time citizens will need a public records act request is when a public official has completed the lengthy and somewhat difficult process of getting approval to create and store certain records outside the publicly accessible servers, a process that will create a trail to follow so that the citizen-requester can know that the record exists, who has it, and the reason it’s not already available, so that the citizen can challenge the rationale.

We don’t need more training for officials on how to handle public records requests — what we need are systems that make public record requests unnecessary 99.99% of the time, because all the records are either automatically accessible or indisputably not appropriate for public disclosure — with the burden on the creator of the record to obtain that status before storing the record out of public view.

Public Financing for Judicial Candidates
OregonPEN – Vol. 1, No. 45

What Oregon needs more than an end to the mandatory retirement age is something to address the growing role of money in determining who sits on our appellate courts. While Oregon has not yet seen the kinds of campaigns that have marred states such as Michigan, Ohio, and West Virginia, it is likely only a matter of time before corporations notice that Oregon’s total absence of campaign contribution limits makes judicial seats prime investment candidates.
 
In 2010, three candidates for two seats raised and spent just a hair over $100,000; but in 2012, four candidates for two seats (one uncontested, with the other three vying for the remaining seat) raised and spent over $750,000.

Tax Land and Bads, Not Work and Goods!
(Tax land, pollution and waste, not work, savings and investment.)
OregonPEN Vol. 1, No. 43 and No. 50

Results

Several similarities and some differences occur between this analysis and the original study of a standalone Oregon carbon tax. As in the original study, we find that emissions begin to decline immediately after application of the carbon price, and at a faster rate than with just the programmatic measures by themselves.

Similarly, higher tax rates generate greater emission reductions.

OregonPEN – Vol. 1, No. 50

Time to Get Off the Pogo Stick. It’s Time to Root our Tax System in Oregon Itself

 
There ARE solutions to our funding problems, ways that would let us get off the pogo stick that gives us a painful jolt every time the spring bottoms out and hurts our head whenever we smash against the ceiling kicker.
 
But implementing the solutions requires being willing to think about the problem of raising revenue in a new way, with the “how” first, rather than the “who” first.

Oregonians never sat down and created our tax system from a clean slate, but ever since the days of the pioneers, the effort has been, as anywhere, to put the tax burden where it belongs, which is anywhere other than present company – and that applies for all values of present company, all across Oregon. When social scientists say that Oregon is one of the least religious states in America, that is only because tax avoidance and tax hatred is not a recognized faith.
 
This issue of OregonPEN focuses on the first, most fundamental change we need to stabilize our tax system and to improve how we pay for things, regardless of how much we pay.
 
Because our tax system is and always has been so dependent on income, we have an extraordinarily complex and inefficient system, since the income subject to an income tax is a defined quantity, and each definition is subject to countless exceptions, both intended and otherwise (exceptions to the definition of income are generally known as obvious or common sense when used by present company and loopholes when used by others).
 
A better tax basis than income, which is a purely defined quantity, is one where the tax basis is a real quality, and where that real quality is objective and apparent to all, rather than being something that can only be discovered by an accountant operating thousands of definitions in the aptly named “tax code” (where code means a system of sharing information with chosen allies while serving to confound all others).
 
As the articles in this issue will argue, the best basis for a tax system is with the basis for the state itself, the very land that makes up the state. And it is important to distinguish between land value taxation and property taxation, because property taxes – taxing both land and structures on the land — work counterproductively, just like income taxes. That is because property taxes discourage the same things we want to encourage, improvements to land in places where people derive benefits from the improvements.
 
One metaphor to keep in mind throughout this issue of OregonPEN is that of the strong horse and the 200 pound weight. A healthy horse bears a 200 pound burden on its back with ease; but that same horse can be completely immobilized just by lashing the burden to the horse’s leg. Oregon is like a horse in that we have a burden we must bear, in this case the burden of raising the money we need to support the investments and services we want.
 
Sadly, while we expend thousands of hours fighting over the right size of the burden and millions of hours trying to shift the burden away from present company and onto “them,” we have given little or no thought to how we could go farther, faster, just by carrying that burden on our backs instead of having it tied to our legs. By taxing Oregon itself – the land value of our state, rather than the work of Oregonians or their improvements to the land – we can better carry the burden, and we would soon obtain the many additional benefits of a more efficient, transparent, honest revenue system.

Make Ballots Better All Over Oregon
OregonPEN Vol. 1, No. 49

Why is Ranked Choice Voting Superior?

Promotes Majority Support

Too often, candidates can and do win election to offices like Mayor and Governor despite being opposed by most voters. With ranked choice voting, if no candidate has more than half the vote in first-choices, candidates finishing last are eliminated round-by-round in an instant runoff until two candidates are left. The winning candidate will be the one with majority support when matched against the other. In a multi-winner election, ranked choice voting promotes majority rule because the majority of voters will always be able to elect a majority of seats, without fear that an entrenched minority has used gerrymandered districts to ensure they stay in office.

Discourages Negative Campaigning

In non-ranked choice voting elections, candidates benefit from “mud-slinging” by attacking an opponent’s character instead of sharing their positive vision with voters. With ranked choice voting, candidates do best when they reach out positively to as many voters as possible, including those supporting their opponents. A comprehensive Rutgers University poll of voters in 7 cities with ranked choice voting found that voters report friendlier campaigns and that RCV had majority support in all of the cities using it.

Provides More Choice for Voters

Democracy is strongest when more voices are heard. Too often, to avoid “vote splitting” in which candidates can and do win with very little support (see “Promotes Majority Support” above), efforts are taken to limit the number of candidates who compete. This limits voters’ choices. In some places, that means a low turnout primary election eliminates most of the candidates; in others it means restrictive ballot access laws keep out challengers; and in others it means that candidates are shamed into staying out the race. Ranked choice voting allows more than two candidates to compete without fear of splitting the vote.

Minimizes Strategic Voting

Voters should be able to vote for candidates they support, not just against candidates they oppose most. Yet in elections without ranked choice voting, voters may feel that they need to vote for the “lesser of two evils,” because their favorite candidate is less likely to win. With ranked choice voting, you can honestly rank candidates in order of choice without having to worry about how others will vote and who is more or less likely to win.

Mitigates Impact of Money in Politics

Too often, candidates win by barraging opponents with a slew of expensive, negative ads, rather than building a positive, grassroots campaign for support. Candidates who have run and won in ranked choice voting elections have been successful because they built grassroots outreach networks. Those more positive and inclusive campaign tactics cost less than polarizing negative radio and television elections, helping to explain why candidates seem able to win ranked choice voting elections even when outspent.

Saves Money When Replacing Primaries or Runoffs

Many local offices are elected in two rounds of elections; either a primary winnowing the field to two followed by a general election, or a general election followed by a runoff if no candidate has a majority. In either case, the election that takes place outside of the context of the general Election Day often suffers from very weak and unrepresentative turnout, while raising issues of vote splitting in the first round and the possibility of disenfranchising overseas and military voters. Ranked choice voting can accomplish the benefits of a primary/runoff election structure with only one election, avoiding these issues while saving the jurisdiction the costs of running two elections. That’s why ranked choice voting is often called “instant runoff voting” when used to elect mayors, governors, and other single-winner offices.

Promotes Reflective Representation

Compared to winner-take-all elections, ranked choice voting in multi-winner contests allows more diverse groups of voters to elect candidates of choice. This promotes diversity of political viewpoint as well as diversity of candidate background and demographics. Even in single-winner races, ranked choice voting can promote the representation of historically under-represented groups like racial and ethnic minorities and women. A report co-authored by FairVote and the New America Foundation found that racial minority populations prefer ranked choice voting and find it easy to use, and that ranked choice voting increased turnout by 2.7 times in San Francisco.

Build Strong Towns all across Oregon
(Dethrone Drivers as the only People who Matter)
OregonPEN Vol. 1, No. 52

         I want to talk a little bit about congestion – traffic congestion, the scourge of our transportation system, the bane of our economy: traffic congestion.

        If you listen to politicians, if you listen to advocacy organizations in the realm of infrastructure funding, they will most often talk about the scourge of congestion, the problem that congested roadways, congested highways cause. And they put these problems in terms of dollars. They’ll say we have billions, sometimes even trillions of dollars of losses each year due to congestion. The American Society of Civil Engineers, everyone’s favorite organization to go to, to report on this kind of thing, put out a report a couple of years ago that said over the next decade families and businesses are going to lose a trillion dollars of lost value due to, largely, to congestion. They also include wear and tear on your car and other kind of things, but most of it has to do with congestion. And that report further went on and said over the next 30 years that number is going to go up exponentially with the – I can’t remember how many trillion, it’s like $3 or $4 trillion.
 
         Now, it’s important to understand how they come up with those numbers because those numbers are going to be the basis of a little bit of the conversation we’re going to have here today. When the American Society of Civil Engineers says families and business are going to lose a trillion dollars due to congestion, what they’re doing is, they are taking the time that you spend and assume that you could be traveling at free flow. And the time that you waste, they will multiply that by a bunch of factors and turn that into dollars.
 
         So let me give you an example from a real world project that I saw put forth.
 
         In this example, there was roughly 30,000, 40,000 cars a day traveling on this stretch, something like that. The DOT was going in and was going to add a couple more lanes. During this stretch it would reduce the amount time that a person’s commute took by about 45 seconds. And so the idea was, we take 45 seconds, we multiply that by 40,000 vehicles per day that traveled that stretch, we then multiply that by 365 days in a year, we then multiply that the 50 years that we think this improvement will be there and will be viable, and then we multiply that by some factor, $25.00 an hour or whatever, that would be the typical salary and benefits that someone would we receive, and all of sudden bam! We have billions and billions of dollars worth of savings that we can use to justify a large project, right?
 
         When we step back and we look at this, it’s not too hard to see how insane this is, right?
 
         These economic models are looking in the aggregate and we don’t work in the aggregate as human beings, right? When I save 45 seconds on my commute that’s hardly perceptible to me, right? In fact, the year or two that it’s going to take to actually build this improvement and the hours that I’m going to waste in traffic then is going to mean a lot more to me than when it’s done the 45 seconds that I’m going to save on my commute.
 
         If that weren’t absurd enough, which it actually is — I mean the fact that you’re turning minute amounts of time into large dollar amounts. We all understand what happens at the end of the day, right? We understand that when we build more capacity, it becomes easier to get places and what happens, more people drive, right? There are people who don’t drive at times because it’s too congested and as soon as we relieve that traffic congestion, those people say, well, I’m going to drive at that time now and so they immediately fill up that extra capacity. We see this again and again and again and again.
 
         Beyond that, I think it’s important to note that we don’t calculate time wasted in traffic the exact opposite way.

          In other words, when we want to justify a big billion dollar expansion project, we’ll go through this tortured map and we’ll come up with these correlations and say, yes, we’re going to spend a billion dollars but look at this, we’re going to save $5 billion, and so this is a 5 to 1 return on our investment. We don’t do the opposite when we’re actually increasing their time, reducing their ability to go.
 
         Let me give you an example: When we go in and we build the new interchange, so that we can have the new Walmart and the new strip mall, and the new drive-thru restaurant and the whole collection of things that you get along the frontage road, nobody says, look, now this merging traffic is going to increase traffic, it’s going to slow speeds, it’s going to increase travel time, you’re going to lose 45 seconds worth of time, so we’re going to take these $5 billion worth of losses and we’re going to charge that to the local municipality or the property owners who benefit from this or the people who are getting on and on at this spot.
 
         We don’t do that at all, right? And it is very clear why we don’t do that: because that would mean we would build less stuff.

          And all of our financing systems, all of our approaches towards building and creating places are about building more, right? If something in a system suggested that we shouldn’t build more, that thing would be discounted. And the models and the theoretical assumptions that allow us to justify building more are the ones that we promote, right?  This is how humanity works. I’m not suggesting anything nefarious per se, but just the way we’re wired to look at things. We don’t look at the things that don’t get us the result we want. Which is, we want to be able to build more.
 
         When we sit back and we look at this – and maybe I should point out what the original thought is here and the justification — because we’re not crazy, right? I mean, we haven’t just dreamed up this system out of thin air. When you built a highway, when we, as taxpayers, as Americans — I wasn’t around then, but — as people in the early interstate days decided that it would be a really good idea to have an interstate, let’s say, between Chicago and St. Louis, or between New York and Boston, or between San Diego and Los Angeles, when we made those initial connections, those high-speed, high-capacity, high-engineered connections, we transformed economies. We changed the way economies worked.
 
         Particularly because, and I look here in Minnesota. If you were on a rail line that went to Duluth, you did not have the option to put your stuff on a rail line that would go to Minneapolis. You were essentially a captive market by that rail line, and there was certainly kind of monopoly-type of things that would go on. Yes, you could transfer to another line, but it was going to be slow, it was going to be very expensive. All of the sudden, when we started connected places with high-speed interstates, now we could move goods and materials over long distances in multiple different ways, and it lowered costs, it increased competitiveness, and it added to the overall economic benefit of the economy. All right? We became in many ways more prosperous.
 
         We took these insights, and we just correlated them out forever. We said, “Well, obviously, when we made a highway between San Diego and Los Angeles, we added value and benefit to those places. Thus, every time we add more highways or every time we add more lanes or every time we make an improvement, we’ll have a corresponding increase in wealth and value and prosperity.”
 
         And we just long passed the point of diminishing returns.

         In fact, it’s fascinating because if you go back to that American Society of Engineers report that I cited earlier, when they say the cost of inaction is $1 trillion, the cost of us not going out and making the improvements that the American Society of Engineers would like to see us do, it’s going to cost families and businesses $1 trillion. Not in cash, but in the equivalent of lost time, a little 30 seconds here, 45 seconds there, what have you. Even though we know that that’s complete bunk, that’s what their report says.
 
         The report also says in order to avoid that loss, we just need to spend a quaint $220 billion a year. Now, $220 billion doesn’t sound like much compared to a trillion, right? $1 trillion is a lot of money, but the problem is, is that it’s $220 billion per year; $1 trillion over 10 years. So when you do some basic, third grade multiplication, what you wind up with is a total cost of inaction, the pain and suffering people have of sitting in traffic, it has an equivalent worth of $1 trillion, but the amount of actual cash we need to tax those people in order to overcome that huge, unbearable burden is going to be $2.2 trillion.

         This is math that shows a diminishing return.

         We’ve long since passed the period of time where we’re making high-returning investments in our transportation system. Now, it’s just simple inertia. We just have a method, we go about doing it, we have all the vested interest lined up to continue it, and despite the fact that it’s bankrupting our cities, and it’s completely insolvent, we’re going to keep doing this and finding ways to do it. It’s our national political obsession. How do we find the money to continue to do the things that we’re no longer able to do, right? To me that borders on the definition of insanity, but even if you didn’t want to go there, it calls into question the sincerity of those who would argue for continuation of this approach. . . .

Abolish Corporate Personhood and Stop Corporate Bullying
OregonPEN Vol. 2, No. 4

Court reverses a terrible decision by the lower court that let a business’s SLAPP suit (Strategic Lawsuit Against Public Participation) proceed against a wedding guest who posted a negative review.
 
Case affirms that Oregon’s strong anti-SLAPP statute protects people posting negative Internet reviews from bankrupting attacks by the businesses subject to the negative reviews.
 
“We conclude that the online review at issue in this case is entitled to First Amendment protection. We therefore reverse the decision of the Court of Appeals to the contrary.”
 
In a well-written and well-reasoned opinion written by Justice Baldwin, the Oregon Supreme Court gave Oregonians a great victory early this month when the seven justices who heard the appeal unanimously agreed to throw out a terrible decision the Oregon Court of Appeals issued after the business appealed the trial court’s ruling in favor of the citizen. Had the Court of Appeals decision been allowed to stand, corporations in Oregon would have been unleashed and given the ability to use defamation suits to grind into bankruptcy anyone who posted a negative review of the business on the Internet.
 
The Supreme Court’s decision in the case of Neumann v Liles, found in Volume 358 of the Oregon Reports, starting on page 706, was issued on 3 March 2016 [358 Or 706 (2016)].
 
The case was so important that a lengthy group of mainstream press organizations submitted a joint “Friends of Court” (amici curiae in Latin) brief to the Supreme Court. Such briefs are often influential in helping an appeals court see and understand the real-world consequences of a decision, which the parties to the dispute often are not concerned with. The groups joining the amicus brief were Reporters Committee for Freedom of the Press, Willamette Week, Gannett Co., Inc., KPTV, Oregon Association of Broadcasters, Oregon Newspaper Publishers Association, Oregon Public Broadcasting, The Oregonian Media Group, and The Bulletin of Bend.

Excerpts from the opinion explains the case and the result. First the court identifies the players and the basis for the appeal:

Plaintiff  Carol  Neumann  (Neumann)  is  an  owner of  plaintiff  Dancing  Deer  Mountain,  LLC  (Dancing  Deer Mountain),  a  business  that  arranges  and  performs  wedding events at a property owned by Neumann. Defendant, Christopher Liles (Liles), was a wedding guest who attended a  wedding  and  reception  held  on  Neumann’s  property  in June 2010. Two days after those events, Liles posted a negative  review  about  Neumann  and  her  business  on  Google Reviews,  a  publicly  accessible  website  where  individuals may  post  comments  about  services  or  products  they  have received.

The review was entitled, “Disaster!!!!! Find a different wedding venue,” and stated:

“There are many other great places to get married, this is not  that  place! The worst wedding  experience  of  my  life! The location is beautiful the problem is the owners. Carol (female owner) is two faced, crooked, and was rude to multiple guest[s]. I was only happy with one thing. It was  a beautiful wedding, when it wasn’t raining and Carol and Tim stayed away. The owners did not make the rules clear to the people helping with set up even when they saw something they didn’t like they waited until the day of the wedding to bring it up. They also changed the rules as they saw fit. We were told we had to leave at 9pm, but at 8:15 they started telling  the  guests  that  they  had  to  leave  immediately. The ‘bridal  suite’ was a tool shed  that was painted pretty, but a shed all the same. In my opinion [s]he will find a why [sic] to keep your $500 deposit, and will try to make you pay even more.”

A few months later, Neumann and Dancing Deer Mountain filed a defamation claim for damages against Liles. Liles then filed a special motion to strike under ORS 31.150, Oregon’s Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute.

Although the trial court rightly dismissed the SLAPP suit, the Court of Appeals reversed, putting Liles in peril of being bankrupted by the legal fees necessary to defend himself against Dancing Deer’s suit. Luckily, the Supreme Court agreed to hear Liles’s appeal and knew how to read the First Amendment:

“We allowed Liles’s petition for review to determine how an actionable statement of fact is distinguished from a constitutionally protected expression of opinion in a defamation claim and whether the context in which a statement is made affects that analysis.”

Initially, we conclude that, if false, several of Liles’s statements are capable of a defamatory meaning. Throughout his review, Liles ascribed to Neumann conduct that is incompatible with the proper conduct of a wedding venue operator and, as the Court of Appeals noted, “inconsistent with a positive wedding experience.”
 
As a result, a reasonable factfinder could conclude that Liles’s statements were defamatory if he or she found that the statements were false. . . . Moreover, because, if false, Liles’s defamatory statements were written and published—and therefore libelous—they are actionable per se.
 
The question remains, however, whether they are nevertheless
protected under the First Amendment.
 
To resolve that question, we must first determine, by examining the content, form, and context of Liles’s statements, whether those statements involve matters of public concern.
 
Neumann has not disputed that Liles’s statements involve matters of public concern, and we readily conclude that they do. Liles’s review was posted on a publicly accessible website, and the content of his review related to matters of general interest to the public, particularly those members of the public who are in the market for a wedding venue.
 
Next, we must determine whether a reasonable factfinder could interpret Liles’s statements as implying assertions of objective fact.
 
Applying the three-part inquiry that we articulated above, we first consider whether the general tenor of the entire work negates the impression that Liles was asserting objective facts about Neumann. From the outset, it is apparent that the review is describing Liles’s personal view of Neumann’s wedding venue, calling it a “Disaster!!!!!”
 
The general tenor of the piece, beginning with the word “Disaster,” is that, in Liles’s subjective opinion, the services were grossly inadequate and that the business was poorly operated. However, read independently, two sentences in the review could create the impression that Liles was asserting an objective fact:
 
“Carol (female owner) is two faced, crooked, and was rude to multiple guest[s]. * * * In my opinion [s]he will find a [way] to keep your $500 deposit, and will try to make you pay even more.”
 
Standing alone, those statements could create the impression that Liles was asserting the fact that Neumann had wrongfully kept a deposit that she was not entitled to keep. In the context of the entire review, however, those sentences do not leave such an impression.
 
Rather, the review as a whole reveals that Liles was an attendee at the wedding in question and suggests that he did not himself purchase wedding services from Neumann. The general tenor of the review thus reflects Liles’s negative personal and subjective impressions and reactions as a guest at the venue and negates the impression  that Liles was asserting objective facts.
 
We next consider whether Liles used figurative or hyperbolic language that negates the impression that he was asserting objective facts. Although the general tenor of the review reveals its hyperbolic nature more clearly than do the individual statements contained therein, several statements can be characterized as hyperbolic. In particular, the title of the review—which starts with the word “Disaster” and is  followed by a histrionic series of exclamation marks — is hyperbolic and sets the tone for the review.
 
The review also includes the exaggerative statements that this was “The worst wedding experience of [Liles’s] life!” and that Liles was “only happy with one thing” about the wedding. Such hyperbolic expressions further negate any impression that Liles was asserting objective facts.

Finally, we consider whether Liles’s review is susceptible of being proved true or false. As discussed, Liles’s statements generally reflect a strong personal viewpoint as a guest at the wedding venue, which renders them not susceptible of being proved true or false.
 
Again, the sentences quoted above referring to Neumann as “crooked” and stating that, “[i]n my opinion [s]he will find a [way] to keep your $500 deposit, and will try to make you pay even more” could, standing alone, create the impression that Liles was asserting facts about Neumann. However, viewed in the context of the remainder of the review, those statements are not provably false. The general reference to Neumann as “crooked” is not a verifiable accusation that Neumann committed a specific crime.
 
Moreover, in light of the hyperbolic tenor of the review, the use of the word “crooked” does not suggest that Liles was seriously maintaining that Neumann had, in fact, committed a crime.
 
Similarly, Liles’s statement that “[i]n my opinion [Neumann] will find a [way] to keep your $500 deposit, and will try to make you pay even more” is not susceptible of being proved true or false. That statement is explicitly prefaced with the words, “In my opinion” — thereby alerting the reader to the fact that what follows is a subjective viewpoint. Of course, those words alone will not insulate an otherwise factual assertion from liability. However, given that Liles—as a mere guest at the wedding—presumably did not pay the deposit for the wedding involved in this case, his speculation that Neumann would try to keep a couple’s deposit is not susceptible of being proved true or false.
 
Based on the foregoing factors, we conclude that a reasonable factfinder could not conclude that Liles’s review implies an assertion of objective fact. Rather, his review is an expression of opinion on matters of public concern that is protected under the First Amendment.
 
We therefore further conclude that the trial court did not err in dismissing Neumann’s claim, and we reverse the Court of Appeals determination to the contrary.

Build Citizen Media
OregonPEN Vol. 2, No. 10


This issue of OregonPEN – an online-only newspaper with a mission of helping empower people in Oregon – is given over to republication of a milestone opinion from the Attorney General about the ability of nontraditional media to demand parity with the declining “institutional” media outlets such as traditional printed newspapers. The absence of public interest coverage in the traditional media is already a calamity; as the disappearance of corporate-owned and corporate advertiser-funded newspapers accelerates (at an accelerating rate), this opinion is crucial, because it paves the way for publications such as OregonPEN to start filling the gaps left by the collapse of printed media.

Just as the skirmishes at Lexington and Concord were small events that heralded a much greater one soon to follow, the welcome conclusion to the new Attorney General opinion will have profound effects on the ability to oversee public entities in Oregon in the 21st Century. The conclusion to the opinion:

The law permits news-gathering  representatives  of institutional media to attend executive sessions. The statutory term news media” is broad and flexible enough to encompass changing technologies for delivering the news.  A governing body may not exclude a representative of the news media from an executive session except as specifically allowed by ORS 192.660(4) and (5).  The commission generally may adopt rules to carry out its duty to enforce the executive session law, but it is prohibited by ORS 192.660(10) from adopting a rule that establishes which entities are considered representatives of the news media.  Governing bodies may adopt policies relating to the admission of media representatives to executive sessions, but those policies cannot limit the statutory right of representatives of the news media to attend executive sessions. In evaluating allegations that an individual was wrongly excluded from executive session, the commission  must  assess compliance  with the  statute, regardless  of a governing  body’s policies.