Posted by Eugene Volokh:
Statute Giving Procedural Protection to "Electronic or Print Media" Defendants
Covers Internet Journalists:
http://volokh.com/archives/archive_2009_06_21-2009_06_27.shtml#1246069380
So the Texas Court of Appeals held yesterday in [1]Kaufman v. Islamic
Society of Arlington, Texas. (Kaufman is the defendant in the
underlying libel action, even though his name is listed first in the
appeal.) The [2]statute allows pretrial appeals of, among other
things, an order that
denies a motion for summary judgment that is based in whole or in
part upon a claim against or defense by a member of the electronic
or print media, acting in such capacity, or a person whose
communication appears in or is published by the electronic or print
media, arising under the free speech or free press clause of the
First Amendment to the United States Constitution, or Article I,
Section 8, of the Texas Constitution, or Chapter 73.
(Other parties generally have to wait until after trial to appeal,
which means they have to invest money and time in litigating the case
to trial, rather than just being able to appeal the denial of the
motion for summary judgment.)
The Islamic Society of Arlington "assert[ed] that Kaufman cannot be a
media defendant under section 51.014(a)(6) because he 'merely posts to
the internet,' because Front Page Magazine is simply Kaufman�s own
internet blog (an assertion that is belied by the affidavits discussed
below), and because Kaufman has not demonstrated that he has the
training associated with traditional journalism." Part of its
rationale was that "the internet 'has become a combination of gossip
fence, coffee house, back alley, and bathroom stall for the
dissemination of gossip, rumor, innuendo, and outright falsehood.'"
The court disagreed; citing various facts about Kaufman and Front Page
Magazine, it concluded that
(1) Kaufman�s journalistic background and his notoriety outside of
the parameters of the article and graphic at issue and (2) Front
Page Magazine�s broad readership and its existence as a
news/commentary medium that is independent from Kaufman�s articles,
are sufficient to qualify Kaufman as a �member of the electronic or
print media� and to qualify Front Page Magazine as an electronic or
print medium in which Kaufman�s article and graphic appeared.
More broadly, it held that "a person who communicates facts or
opinions through the internet is entitled to appeal under section
51.014(a)(6) when that person�s communication, under circumstances
relating to the character and text of the communication itself, its
editorial process, its volume of dissemination, the communicator�s
extrinsic notoriety unconnected to the communication, the
communicator�s compensation for or professional relationship to making
the communication, and other relevant circumstances as the facts may
dictate, would otherwise qualify as a communication covered by that
section through more traditional electronic or print media."
The court's extended explanation of why "electronic media" covers the
Internet and not just radio and television strikes me as quite
persuasive, though too long and detailed for me to paraphrase here. In
fact, I think that any blog with anything beyond a tiny circulation is
a member of the "electronic ... media," even if the blogger isn't a
journalist, is unknown outside the blog, and is a solo blogger (so
that the blog is not "independent from [his] articles"). The
limitations that the court imposes strike me as inapt, not mandated by
the text, not sound policy, and too unclear and hard to administer
(which is likely to lead to extra litigation and delay). Nonetheless,
that only suggests that the Texas court's decision should have been
even broader; certainly the court is right in concluding that
Kaufman's publications, at least, were indeed in the electronic media.
The court then moves on to rule in favor of Kaufman on the merits,
holding that his statements weren't "of and concerning" the plaintiffs
and thus not libelous as to them, because the statements pointed only
to the Islamic Circle of North America and the Islamic Association of
North Texas (which didn't sue Kaufman). I won't summarize this
detailed discussion here, because it's pretty tied to the particular
facts of this case, and breaks no new legal ground.
The interpretation of "electronic or print media" to cover at least
the Internet, on the other hand, is pretty important. The Supreme
Court has made clear that First Amendment protections cover the
Internet as much as other media. (Though the Islamic Society of
Arlington, Texas did argue, according to the court of appeals, that
Kaufman "is not a media defendant for the purposes of First Amendment
protection because he only communicates his articles through the
internet (rather than in print or through radio or television)," that
was clearly inconsistent with the U.S. Supreme Court's caselaw on the
subject.)
But when a statute provides extra protection beyond what the First
Amendment requires, the question is how that particular statute is to
be interpreted. This should be a pretty important decision both in
Texas and, in some measure, in other states that have similar
statutory language.
References
1.
http://www.2ndcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=20562
2. http://law.onecle.com/texas/civil/51.014.00.html
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