I wanted to pass along another brief the UCLA First Amendment Amicus Brief Clinic submitted last week. This one is on behalf of the bloggers at SCOTUSblog, the Supreme Court of Texas Blog, How Appealing, InstaPundit, and Power Line (3/4 of the bloggers there), in SEIU v. Professional Janitorial Service, Inc. (Tex. Sup. Ct.) (the link is to the decision that is being appealed), and my students Nate Barrett, Garry Padrta, and Scott Sia worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here.
Here’s the issue: Defendants often move for summary judgment before trial; they argue that, even assuming the evidence that the plaintiff has identified before trial is correct, defendant is entitled to win as a matter of law, without the need for a trial. This is a way of avoiding the extra expense and risk of trial, in those situations where the law is on defendant’s side. But if the judge rules against defendant, the trial goes on, and the defendant isn’t entitled to immediately appeal; the defendant has to wait for the appeal until after trial, when the losing party can indeed appeal.
But Texas Civil Practice & Remedies Code § 51.014(a)(6) provides various exceptions, including when the lawsuit “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 the similar Texas constitutional provisions]” (emphasis added). Texas courts of appeals disagree on how to define [...]