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Texas Islamic Groups Argue That Internet Speech Should Be Less Protected Than Print, Radio, or Television Speech:

The Texas Court of Appeals disagrees, holding that a Texas statute that gives procedural protection to "electronic or print media" defendants covers Internet journalists on par with print journalists (and reaffirming that the First Amendment does as well). The case is 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 plaintiffs, who made the argument, were Islamic Society of Arlington, Texas, Islamic Center of Irving, DFW Islamic Educational Center, Inc., Dar Elsalam Islamic Center, Al Hedayah Islamic Center, Islamic Association of Tarrant Count, and Muslim American Society of Dallas.

Here's the core legal issue: A Texas 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 plaintiffs "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 their 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./p>

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 plaintiffs 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.

Note: This case also involved the trial court's "temporary injunction against Kaufman, prohibiting him from threatening to take unlawful action against any of appellees or their members or causing or threatening to cause bodily injury to any of appellees or their members," and a request by plaintiffs for an injunction "related to Kaufman's existing and future internet publications" (as well as "nominal damages"). The court of appeals decision, however, did not resolve whether the temporary injunction was proper (and implicitly foreclosed the requested injunction).

Oren:
OK, I don't support the plaintiff's legal positions BUT he is right that not every Eugene, Ilya and David with a WordPress site is a journalist. They are still due considerable protection from the first amendment, of course, but not because they are journalists.


prohibiting him from threatening to take unlawful action against any of appellees or their members or causing or threatening to cause bodily injury to any of appellees or their members

Those activities are (I though, correct me if I'm wrong) already illegal.
6.26.2009 11:12pm
Eugene Volokh (www):
Oren: The question isn't whether every blogger is a journalist; the question is whether we are members of the "electronic or print media." Many members of the electronic and print media aren't journalists.

For instance, under the first definition of journalism in dictionary.com ("the occupation of reporting, writing, editing, photographing, or broadcasting news or of conducting any news organization as a business"), many opinion columnists wouldn't be journalists, because they write opinion columns and not "news." Likewise, even feature article writers might not be journalists, if they don't write about the "news." There are doubtless other definitions that are broader, but it seems to me at least unclear whether many such writers for newspapers are indeed journalists.

But it is clear, I think, that all are members of the print media even if they aren't journalists. Likewise, bloggers may be members of the electronic media even if they aren't "journalists" in a narrow sense of the word.
6.26.2009 11:23pm
neurodoc:
Good, another defeat for those who would try to intimidate critics through bogus libel actions. CAIR went after Whitehead and his anti-CAIR website until it came to put-up-or-shut-up, that is discovery. CAIR quickly folded, which must say something about the organization.

I don't understand the trial court's grant of a temporary injunction prohibiting the "threatening to take unlawful action against any of appellees or their members or causing or threatening to cause bodily injury to any of appellees or their members." What was that all about? And if the appellate court disposed of the libel case, what then, did the defendant have to go back to the trial court so that he might not be prohibited "from threatening to take unlawful action against any of appellees or their members or causing or threatening to cause bodily injury to any of appellees or their members"?! What exactly was that injunction supposed to encompass and why did the trial court judge think such an injunction was warranted?
6.26.2009 11:35pm
Don Cruse (www):
It wouldn't be crazy for the Legislature to have limited this procedural protection to members of the traditional, paid, big media. I'm not saying it would be a good policy to grant extra procedural rights to big media but not citizen journalists. But that's what the Texas Legislature did in 2009 when it passed a journalist shield law that focuses on who writes the author's checks... not on whether the substance of their work resembles journalism.

With that in mind, the phrase "member of the electronic or print media" could pretty easily be read as a classification based on employment. The rigidity of that rule, though unsatisfying, would at least make this threshold question of appellate jurisdiction easy for a court to administer.

I share your view that the First Amendment should protect speech and journalism on the internet just as thoroughly as in print. And I think we'd both agree that the constitutional protection ought to depend on what you say, not who you are. But, at least in other contexts, the Texas Legislature has chosen to condition at least some of its extra procedural protections on the identity of the speaker.

Again, that's not how I (as a Texan and a blogger) would want Texas law to be interpreted. But it's not as implausible an understanding of this statute as you might expect.
6.26.2009 11:40pm
neurodoc:
I understand, though don't agree with, the policy argument for "shield" laws to let those who qualify as journalists by whatever criteria are to be employed keep confidential their sources. What, though, is the policy argument for giving more protection against abusive libel lawsuits to those who publish their alleged libels by means of a blog rather than through other than "electronic and print media"?
6.26.2009 11:41pm
neurodoc:
Don Cruse: I share your view that the First Amendment should protect speech and journalism on the internet just as thoroughly as in print.
Why not just say, "I share your view that the First Amendment should protect speech...on the internet just as thoroughly as in print," what need to add "journalism" in there? Putting aside the questions of whether "electronic" media should be treated the same as "print" media for these purposes, who qualifies as a "journalist," and the like, have journalists enjoyed more legal protection against libel lawsuits than someone who would publish by means of flyers handed out in a park?
6.26.2009 11:46pm
Don Cruse (www):
@neurodoc: I can take an edit. In that passage, I first wrote "journalism," then I changed it to "speech," then I decided to put both, since the First Amendment does list both speech and press. Did I mean two different things by two different words? Not really.

I didn't suggest that people with the "journalist" name tag or a press badge should get more substantive First Amendment protection. I just said they might, under current Texas law, have more procedural protections in the state court system.
6.26.2009 11:59pm
Oren:

Oren: The question isn't whether every blogger is a journalist; the question is whether we are members of the "electronic or print media." Many members of the electronic and print media aren't journalists.

[SNIP about journalism that I accept in its entirety]

But it is clear, I think, that all are members of the print media even if they aren't journalists. Likewise, bloggers may be members of the electronic media even if they aren't "journalists" in a narrow sense of the word.

I guess it's sort of an obvious objection but "blogger" doesn't really mean anything in a distinguishable sense. I have a webpage, I post things of interest on it but I would never, in good faith, suggest that I'm part of the "electronic media".

IOW, I don't see any way to understand that phrase "electronic media" in the vein that you propose without including every high school student with a MySpace page and soccer mom with a Facebook page. In what relevant way does your site here differ from those pages? Or, if you prefer, do you claim that the TX legislature intended the provision to apply to anyone with an internet site that is updated regularly with news/opinions/analysis?

A more natural (IMHO) reading of their intent would be that "electronic media" is to be read analogously to "print media" to be "those engaged in the business of providing news, opinion and analysis".

[ Aside, it's not that I don't support the broad reading as a matter of policy -- I just find it hard to believe that the TX legislature intended to make it that broad. ]
6.27.2009 12:24am
Oren:
Dang, I see that in my haste to write a response, I missed Don's comment that says essentially the same thing. My apologies to Don for recapitulating (poorly) what he wrote.
6.27.2009 12:25am
neurodoc:
Don Cruse: I didn't suggest that people with the "journalist" name tag or a press badge should get more substantive First Amendment protection. I just said they might, under current Texas law, have more procedural protections in the state court system.
Right, but my question is why should they "have more procedural protections in the state court system." If I had to answer that question on an exam, the only thing I might think to say would be that journalists are more likely to be sued for libel than non-jounalists, and the legislature thought they needed it more than non-journalists. Not a great argument in support of such a special provision for them, but what other one(s)?
6.27.2009 12:26am
John Moore (www):
At the time the BOR was adopted, I suspect anyone who owned a printing press was a "journalist." It is pretty doubtful that they had degrees in "journalism" or held press credentials. Any idea that "the press" is defined by criteria other than the act of publishing, in any media, is dangerous.
6.27.2009 1:09am
Oren:

At the time the BOR was adopted, I suspect anyone who owned a printing press was a "journalist."

Of course, no one who was not employed in the business of publishing news/analysis/opinion owned a printing press, due to the astronomical relative cost of such a device.

At any rate, one need not get into the 1A issue here, since the provision at issue here is procedural, not substantive -- unless you believe that the 1A mandates the availability of appellate review of a pretrial motion to dismiss.
6.27.2009 1:33am
Oren:
(I should say, no private individual. I'm sure the religious institutions and governments had presses, but that's not at issue here.)
6.27.2009 1:34am
Kazinski:
Who is going to protect the public from opinions that may be wrong? We've got the FDA protecting us from medicines and devices that don't work, The Department of Agriculture inspecting our food. Shouldn't a federal agency or the courts protect us from wrong opinions? Even Iran and North Korea are freer than we are because at least they don't have to worry about wondering if what they read is correct, they know dedicated civil servants have validated opinions and news for truth. And by making sure that articles tell the larger truth they protect unsuspecting readers from instigators that may have insignificant facts correct, but mislead about larger truths.
6.27.2009 2:19am
Dan M.:

Of course, no one who was not employed in the business of publishing news/analysis/opinion owned a printing press, due to the astronomical relative cost of such a device.

At any rate, one need not get into the 1A issue here, since the provision at issue here is procedural, not substantive -- unless you believe that the 1A mandates the availability of appellate review of a pretrial motion to dismiss.


Or the entertainment business. And if some individual wanted to rent the use of a printing press for issue advocacy, and not as part of the "business" of selling news/analysis/opinion, or if some wealthy individual happened to own his own printing press for the same purpose, there would still be no necessary distinction between such a person and a "journalist" for the purposes of establishing which has the freedom to print essentially whatever the hell he or she pleases.
6.27.2009 2:32am
The River Temoc (mail):
Why do you insist on posting headlines that cast Muslims in the most negative light possible?

You state that "Texas Islamic Groups Argue That Internet Speech Should Be Less Protected Than Print, Radio, or Television Speech."

But you could equally well have posted "Texas legislature believes that print, radio, or television speech should be more protected than that of ordinary citizens." Or you could have found some more neutral formulation ("Texas court holds that...")

It's ultimately the Texas legislature that drew the distinction by enacting the statute.

People sometimes ask me why I do not identify with the Republican Party, or at least its libertarian wing, when I broadly favor many libertarian positions on economics.

This kind of post is Exhibit A for my answer -- it's the unremitting xenophobia that too often accompanies libertarianism. The target is usually Islam today, but it's also been Chinese, Hispanics, and, in the past at least, African-Americans under the utterly transparent guise of "states' rights."
6.27.2009 4:56am
Fub:
neurodoc wrote at 6.26.2009 11:35pm:
Good, another defeat for those who would try to intimidate critics through bogus libel actions. CAIR went after Whitehead and his anti-CAIR website until it came to put-up-or-shut-up, that is discovery. CAIR quickly folded, which must say something about the organization.
If only TX had an anti-SLAPP statute, the Islamic Society of Arlington, Texas would be ponying up Mr. Kaufman's defense costs. No need to be ruled a "media defendant".

No muss. No fuss. Except for the plaintiff who sues to shut somebody up who's speaking about an issue of public interest.

That's one thing CA has gotten right despite getting so many other things wrong.
6.27.2009 5:29am
neurodoc:
The River Temoc: Why do you insist on posting headlines that cast Muslims in the most negative light possible?

You state that "Texas Islamic Groups Argue That Internet Speech Should Be Less Protected Than Print, Radio, or Television Speech."

But you could equally well have posted "Texas legislature believes that print, radio, or television speech should be more protected than that of ordinary citizens." Or you could have found some more neutral formulation ("Texas court holds that...")
Because it is not only the law in this case that is of interest, but also the facts. And while it isn't very telling that the event was to take place at a Six Flags rather than Disney World/Land or some other amusement park, it is telling that the plaintiff was these Muslim groups trying to silence those who would speak against them and the action they brought couldn't withstand a motion for summary judgment. (I'm surprised the Committee on American Islamic Relations [CAIR] wasn't a plaintiff in this.) Goes along with other efforts in the US and internationally to bar speech that might offend the sensibilities of Muslims [e.g., Salmon Rushdie, the Danish cartoons, Theo Van Gogh, etc.]

Fub quite correctly characterizes this one as a SLAPP, and the sort of thing our legal system should discourage. If Quakers behaved in this fashion, it would be similarly newsworthy and deserve mention in the header.
6.27.2009 8:07am
JorgXMcKie (mail):
The River Temoc: I had supposed the headline referred to the attempt by "Texas Islamic Groups" to silence their opponents by way of dragging them through lengthy legal processes. After all, if such groups didn't make such attempts then the Texas legislature wouldn't have needed to pass a law allowing such putrid tactics to be used, would it.

I am getting tired of 'victimology' being used in an attempt to enable such behaviors.

People sometimes ask me why I do not identify with the Democratic Party, or at least its libertarian (snort) wing, when I broadly favor many libertarian positions on economics.

This kind of comment is Exhibit A for my answer -- it's the unremitting victimology that too often accompanies the Progressivism of the Democratic Party. The target is usually "hate speech" today, but it's also been other victimologist BS the past at least, under the utterly transparent guise of "protecting the victims."

Hey! That works pretty good.
6.27.2009 8:12am
Eugene Volokh (www):
The River Temoc: When groups call for what strike me as unjustified restrictions on freedom, I think it's important to call them out on that. I've done that as to many groups, including, for instance, a Catholic clergy group. I'll continue to do so about such groups, including Muslim groups. You might also have noted that I have often defended Muslim requests for religious accommodations that are roughly similar to the sorts of accommodations that other groups get -- an odd position for an "unremitting xenophob[e]," no?

As to the Texas legislature, please note that the legislature did not expressly draw any distinction between Internet media and other media; it said "electronic or print media," with no exclusions or qualifiers. And the court held that the Texas statute should be interpreted -- partly based on other judgments by the Texas legislature -- to cover Internet media as well as other media. So it's the Islamic groups that are trying to treat Internet media as less legally protected, not the Texas legislature.
6.27.2009 8:29am
martinned (mail) (www):
@Prof. Volokh: I admit I was a little uneasy about that headline as well, but I simply ascribed that to years of seeing the press argue about everything islamic.

I do think, however, that the headline is a bit dodgy. It suggests that the original plaintiffs wanted an exception for internet speech, when in fact they wanted an exception to a (statute-created) exception.

BTW, in my country it is custom to write the appellant's name first in the name of the case, even if the appellant was the defendant in the original case. Is that what happened here?
6.27.2009 8:35am
rosetta's stones:

As to the Texas legislature, please note that the legislature did not expressly draw any distinction between Internet media and other media; it said "electronic or print media," with no exclusions or qualifiers.


Well, if by that, they're implicitly drawing a distinction with journalists... aka "gerbilists" (they should beknight the guy who invented that term)... then it's a distinction without a difference. Don't appear they did.

Scribblers are scribblers... no matter who or where or how they scribble. Scribblings all include, at least, "a combination of gossip fence, coffee house, back alley, and bathroom stall for the dissemination of gossip, rumor, innuendo, and outright falsehood.'"

Scribblings also include other things, sometimes. Reader beware.
6.27.2009 9:49am
ShelbyC:

IOW, I don't see any way to understand that phrase "electronic media" in the vein that you propose without including every high school student with a MySpace page and soccer mom with a Facebook page.


Well, it includes every high school student and soccer mom who writes a letter to the editor. Why wouldn't MySpace and Facebook be members of the electronic media?
6.27.2009 10:20am
ShelbyC:
Also, doesn't reading the statute narrowly raise a big constitutional doubt issue? If you read it to include everyone you bypass alot of issues that should come up if you limit it to, say, paid jounalists. Are there any other cases where a party's procedural rights differ based on, say, what their job is or how many articles they publish?
6.27.2009 10:44am
Bruce Hayden (mail):
BTW, in my country it is custom to write the appellant's name first in the name of the case, even if the appellant was the defendant in the original case. Is that what happened here?
Kaufman was the appellant, and all those Islamic groups the appellees. This opinion reversed the 153rd District Court of Tarrant County (TX). (Are there really 152 other district courts in that county?)
6.27.2009 11:09am
martinned (mail) (www):
@Bruce Hayden: That's what I thought. Is it common to name cases that way in the US? And, BTW, I'd imagine the districts are numbered throughout the whole state. Presumably the District Court in Tarrant County is number 153.
6.27.2009 11:14am
Oren:

As to the Texas legislature, please note that the legislature did not expressly draw any distinction between Internet media and other media; it said "electronic or print media," with no exclusions or qualifiers. And the court held that the Texas statute should be interpreted -- partly based on other judgments by the Texas legislature -- to cover Internet media as well as other media.

Of course Internet media is included, I just think that the standard of the Court for determining who is the electronic media (and your purported standard, which is broader still) was not what they intended.

Let me turn it around and ask about the physical side. Under the TX statute, do you believe every family that has a printer and routinely mails "so-and-So family update" to all their extended relatives and acquaintances qualifies as "print media"?
6.27.2009 11:19am
Toby:
Those arguing thaat just a few people ran printing presses in Colonial times should google something like "colonial" and "pamphleteer". Ad hoc pamphlets were published be people from all walks of life, advocating all sorts of positions. Perhaps the modern blogger is the closest thing to the colonial pamphleteer we have seen since that day.

Everyone who was at the consitutional convention was aware of the self published political pamphlet. Many of them extended the conversations surrounding the convention with their own pamphlets. Pamphleteers, not journalists, were the essence of freedom of the press. Bloggers, more than journalists, meet that profile today.
6.27.2009 11:34am
LarryA (mail) (www):
And if the appellate court disposed of the libel case, what then, did the defendant have to go back to the trial court so that he might not be prohibited "from threatening to take unlawful action against any of appellees or their members or causing or threatening to cause bodily injury to any of appellees or their members"?!
This was a temporary injunction. It's fairly easy to convince a judge to grant one with almost any unsubstantiated (in court) allegation of danger, and without the party the injunction restrains in court. Which is a feature, given that my experience with them is with family violence clients. OTOH they are very temporary, about a week. After that you have to go to court with the other side and face much higher standards for a permanent injunction.
I can take an edit. In that passage, I first wrote "journalism," then I changed it to "speech," then I decided to put both, since the First Amendment does list both speech and press. Did I mean two different things by two different words? Not really.
I think Freedom of Speech and Freedom of the Press are two different things. Speech is usually to people I know. Publication is to people I don't know. Telling a story to an audience is speech, publishing it in an anthology is press.
At the time the BOR was adopted, I suspect anyone who owned a printing press was a "journalist."
Of course, no one who was not employed in the business of publishing news/analysis/opinion owned a printing press, due to the astronomical relative cost of such a device.
Not quite. I would suspect there were people who owned presses for hire, charging people to publish material, just as there are today. I doubt Thomas Paine owned his own press, and the paper my wife writes for is published on a press that prints a number of other small papers. "Owning a press" is a very restrictive criteria.
IOW, I don't see any way to understand that phrase "electronic media" in the vein that you propose without including every high school student with a MySpace page and soccer mom with a Facebook page.
That's a feature, not a bug. Rights should always be construed as widely as possible. Absent clear need, I'd have just as much problem with government trying to set limits on who is a journalist as I would who can be a gun owner or who is entitled to presumption of innocence.
Are there any other cases where a party's procedural rights differ based on, say, what their job is or how many articles they publish?
College faculty?
This opinion reversed the 153rd District Court of Tarrant County (TX). (Are there really 152 other district courts in that county?)
In Texas District Courts are state level. Some serve more than one rural county, some cities have more than one court, based on population. They're numbered statewide, and this one just happens to be located in Tarrant County. There are two District Courts headquartered in Kerr County, where I live, and they serve two overlapping sets of adjoining counties.
Under the TX statute, do you believe every family that has a printer and routinely mails "so-and-So family update" to all their extended relatives and acquaintances qualifies as "print media"?
I'd consider newsletters to relatives and acquaintances speech, not press. If the family decided to mail the newsletters to everyone in the small town they came from, or everyone (even if not a relative or acquaintance) who signed up to get them, that would be journalism.
6.27.2009 11:52am
Soronel Haetir (mail):

Let me turn it around and ask about the physical side. Under the TX statute, do you believe every family that has a printer and routinely mails "so-and-So
family update" to all their extended relatives and acquaintances qualifies as "print media"?


At least so far as the material in question is part of that mailing, I would say it qualifies. I see this as being somewhat akin to employer liability depending on whether the complained of action was actually part of the employee's job or not.

Note I don't see 'media' as being job limited but someone could step outside of their media role even while printing material. An example I'm thinking of would be printing up libelous flyers and then going down to a street corner somewhere and passing them out. I can't come up with a good electronic example of the same though.
6.27.2009 11:53am
gasman (mail):

Why do you insist on posting headlines that cast Muslims in the most negative light possible?

...could equally well have posted "Texas legislature believes that print, radio, or television speech should be more protected than that of ordinary citizens."

Negative light? Don't seem so to me. But then which group was advocating on their day in court that some speach is less protected than other speach. This is a subject quite dear to most Americans, and if Muslim Americans, and Muslim non-Americans don't get that then they will find they they do often stumble into portraying themselves in a bad light. Quashing speach will rarely get a group positive public opinion.
6.27.2009 12:05pm
martinned (mail) (www):
@gasman: Actually, it was the Texas legislature that decided that some speech was more protected than other speech. The parties in this case argued about the extent of that exception. No one was quashing anything, if for no other reason than that the argument was about a rule of procedure.
6.27.2009 12:09pm
troll_dc2 (mail):
martinned, the underlying action was a libel action by plaintiffs who sought a remedy against someone who published on the Internet something that they did not like.
6.27.2009 12:47pm
Ken Arromdee:
Under the TX statute, do you believe every family that has a printer and routinely mails "so-and-So family update" to all their extended relatives and acquaintances qualifies as "print media"?

If the law was sane (which it often isn't), that wouldn't count as print media because it's not being offered to a sufficiently general audience.
6.27.2009 1:00pm
Ken Arromdee:
This was a temporary injunction. It's fairly easy to convince a judge to grant one with almost any unsubstantiated (in court) allegation of danger, and without the party the injunction restrains in court. Which is a feature, given that my experience with them is with family violence clients. OTOH they are very temporary, about a week. After that you have to go to court with the other side and face much higher standards for a permanent injunction.

But in this case the injunction bars him from doing things that are not legal anyway. How can it possibly have any meaning other than to prejudice others against the defendant?
6.27.2009 1:04pm
martinned (mail) (www):

martinned, the underlying action was a libel action by plaintiffs who sought a remedy against someone who published on the Internet something that they did not like.

Since when is libel protected speech? It never has been, and I wasn't aware of any reasonable argument otherwise. The plaintiffs are welcome to sue, and the judge (and jury) will ultimately settle whether they have a case. (Or rather, the judge already has.)
6.27.2009 1:33pm
Bob from Ohio (mail):
The River Temoc, trust me, no one wants you in the GOP.

If AIPAC, ADL and other Jewish groups had brought this baseless suit and the good professor had said:


Texas Jewish Groups Argue That Internet Speech Should Be Less Protected Than Print, Radio, or Television Speech


I doubt you would have cared. Both headlines would have been 100% factually accurate.

These Islamic groups don't want such headlines, don't bring such suits which have but one intention, to chill free speech.
6.27.2009 1:48pm
Harry Eagar (mail):
I don't like shield laws.
6.27.2009 3:00pm
neurodoc:
martinned: @gasman: Actually, it was the Texas legislature that decided that some speech was more protected than other speech. The parties in this case argued about the extent of that exception. No one was quashing anything, if for no other reason than that the argument was about a rule of procedure.
The plaintiff may have been in front of the appellate court arguing only about the extent of that exception and not the merits of the libel action they brought. That libel action, however, was self-evidently an attempt to squealch free speech.
6.27.2009 3:36pm
neurodoc:
martinned: Since when is libel protected speech? It never has been, and I wasn't aware of any reasonable argument otherwise.
"Absolute privilege" and "qualified privilege" are unfamiliar terms to you?
6.27.2009 3:38pm
neurodoc:
Ken Arromdee: But in this case the injunction bars him from doing things that are not legal anyway. How can it possibly have any meaning other than to prejudice others against the defendant?
Maybe the penalty for doing one of the unlawful actions the defendant was injoined from doing would have been enhanced because of "contempt of court." Does seem basically silly to me too.
6.27.2009 3:43pm
martinned (mail) (www):

That libel action, however, was self-evidently an attempt to squealch free speech.

Well, as long as it is self-evident to you, why even bother with judges and juries?
6.27.2009 3:44pm
Fub:
neurodoc wrote at 6.27.2009 8:07am:
If Quakers behaved in this fashion, it would be similarly newsworthy and deserve mention in the header.
Appellate forum quorum quickly aquits, quashing Quakers' quintessentially quotidian quibbles.
6.27.2009 4:10pm
Fub:
martinned wrote at 6.27.2009 3:44pm:
Well, as long as it is self-evident to you, why even bother with judges and juries?
The appellate ruling stated unequivocally that the plaintiff did not state a supportable cause of action in libel. Plaintiff-appellees did not show that Kaufman's statements "concerned them", as required to sustain a libel claim. So the appellate court overturned the trial court and upheld Kaufmann's motion for summary judgment.

What else is necessary to convince you that plaintiff's suit was frivolous and solely intended to silence constitutionally protected speech?
6.27.2009 4:46pm
martinned (mail) (www):
@Fub: Oh, I'm pretty sure the plaintiffs deserved to lose. I'm also pretty sure that there is a difference between losing on summary judgement and filing a frivolous suit. The plaintiffs deserved their day in court, and they had it. No reason to assume they were trying to do something horrible. They weren't trying to get away with some ridiculous theory of libel. (Group libel? Defamation of religion?) They just quarreled about the extent of the statutory favour that the Texan legislature did to the press.

Regardless of how this ruling came out on appeal, they would have lost sooner or later, but that doesn't mean they did something horrible. It also doesn't mean they did what the title of this post implies they did.
6.27.2009 5:03pm
LarryA (mail) (www):
But in this case the injunction bars him from doing things that are not legal anyway. How can it possibly have any meaning other than to prejudice others against the defendant?
I haven't read the injunction. The ones I've seen often contain prohibitions against going within 500 feet of a person or residence, etc.

This one did prohibit "threats." With a typical threat there's usually the question of whether it's a valid threat or not. "I'll whup your ass." Absent credible proof that the person saying it actually meant to physically harm a person that might just be hot-headed talk. In the presence of an injunction it's contempt of court.

Also, a court finding that a person disobeyed an injunction can put him in jail much quicker than a trial to convict the person for breaking the law.
6.27.2009 5:17pm
Chuck (mail):
Sir,

I fail to understand the functional merger of "Journalism" and "the Press." To my non-lawyerly eyes, the 1st Amemdment specified freedom of Speech and freedom of the Press, two separate items. To wit: Freedom of Speech allows you to stand up and say what you want, while Freedom of the Press allows you to put those words on paper and, by implication (Caution - Penumbra Alert!) disseminate them.

From this, the internet is The Press, as much as any pamphlet, flyer, newspaper, broadcast, video, recording, billboard or other communication media or forum. The requirement for being a Journalist is a false dilemma -- Journalism is a social construct of free assembly, not a state authorization or recognition.

Toby -- I certainly agree with you. So, am I missing something here? Since when do only "Journalists" get to spread their message?
6.27.2009 5:22pm
martinned (mail) (www):
@Chuck: Firstly, for some inexplicable reason all things press related are treated as free speech issues in Supreme Court case law. Secondly, this case has nothing to do with the first amendment, but rather with a point of Texan state law. (The law made it easier for a member of the "electronic or print media" to appeal a denial of summary judgement than it would be for a member of the general public.) The question before the court was whether "the media" only consists of journalists and, if so, whether the defendants were media.
6.27.2009 5:27pm
Oren:


IOW, I don't see any way to understand that phrase "electronic media" in the vein that you propose without including every high school student with a MySpace page and soccer mom with a Facebook page.



That's a feature, not a bug. Rights should always be construed as widely as possible. Absent clear need, I'd have just as much problem with government trying to set limits on who is a journalist as I would who can be a gun owner or who is entitled to presumption of innocence.

(1) I agree it's good policy (a feature) but I don't agree that it's what the TX legislature intended with that statute.

(2) There is no right to appeal a denial of summary judgment -- it's a procedural (not substantial) bonus that the TX legislature has chosen to extend to a particular class of people. We are discussing the scope of that class of people, having nothing whatsoever to do with "rights".
6.27.2009 5:47pm
Oren:

I'd consider newsletters to relatives and acquaintances speech, not press. If the family decided to mail the newsletters to everyone in the small town they came from, or everyone (even if not a relative or acquaintance) who signed up to get them, that would be journalism.

What possible distinction could be relevant here? Does a family newsletter mailed to the extended family (by your analysis, "speech") magically transform as soon as they put the same content on Family-Name.com (by your analysis "press")? What if only the relatives and acquaintances visit that website even if it's nominally open to all on the web?

Part of the wonders of the internet is that they have lowered barriers but that doesn't mean that the legislature intended to likewise lower the barrier to this particular statutory provision (as I've said before, there is no constitutional right to appeal a denial of summary judgment before trial -- it's a right invented, whole cloth, from the statute and can therefore be restricted to whatever class the TX legislature choses).
6.27.2009 5:51pm
Oren:

But then which group was advocating on their day in court that some speach is less protected than other speach.

They advocated no such thing!

Their position is that the TX legislature created (not as a matter of constitutional right but by statute) a procedural bonus for the members of the media to appeal a denial of summary judgment before trial.

Unless you claim that protection of the press requires such a procedural rule (AFAICT, the answer is almost certainly no under current 1A doctrine), then they aren't talking at all about whose speech is protected. What is claimed is that the defendant is not "electronic media" for the purposes of this statute and that, while his speech deserves exactly the same protection as any other speech, he does not merit this special statutory procedure.
6.27.2009 5:53pm
Oren:

martinned, the underlying action was a libel action by plaintiffs who sought a remedy against someone who published on the Internet something that they did not like.

Indeed. The actual merits of the libel case are quite weak (knowing and reckless falsehood is a tough burden, of course) but in a free society plaintiffs are entitled to bring weak cases before a judge and (if they survive summary judgment) a jury of their peers. That's our system of government.

Of course, just because a defendant (IMO) will likely win (or even deserves summary judgment) does not mean he is entitled to an interlocutory appeal of a denial of that ruling under a particular statutory provision that does not (again, IMO) appear to apply to him (at least as far as the TX legislature seems to have intended).


If the law was sane (which it often isn't), that wouldn't count as print media because it's not being offered to a sufficiently general audience.

Accepted as to print media, but how is this going to work electronically -- on the web, everything is "offered" to everyone. That's why "offer" makes no sense as a reasonable criteria on the web because, as in my previous example, I can open oren-family-news.com and publish a blog there, but if I only tell my family about the URL (and tell Google not to index it), it's effectively a private (but not secured) forum.

No member of the public has any reasonable chance to find it but it's still "offered" to them because if they randomly type in oren-family-news.com they can receive it.
6.27.2009 6:01pm
Oren:


What else is necessary to convince you that plaintiff's suit was frivolous and solely intended to silence constitutionally protected speech?

That statement is basically true, and I accept it.

Nevertheless, there is no automatic rule that says that a defendant is entitled to an interlocutory appeal from a denial of summary judgment on those grounds. The plaintiff claimed that he deserves the right to file such a motion on statutory grounds, citing a statute that, by its plain terms, does not apply to him.

IOW, just because you deserve to win a particular case doesn't mean that you deserve to make any kind of procedural motion towards winning that case.
6.27.2009 6:04pm
Oren:



From this, the internet is The Press, as much as any pamphlet, flyer, newspaper, broadcast, video, recording, billboard or other communication media or forum.

(1) The TX statute refers to "the media", not "the press".

(2) Assuming you meant the former not the latter, do you seriously assert that the TX legislature meant to grant this special procedural privilege to every single posting on the internet? That's an absurd result and creates and absurd distinction.
6.27.2009 6:05pm
neurodoc:
neurodoc: That libel action, however, was self-evidently an attempt to squealch free speech.
martinned: Well, as long as it is self-evident to you, why even bother with judges and juries?
Not just my opinion that there was no need for a jury, but also that of the Texas Court of Appeals judges, who said that the judge below should have granted the defendant's motion for summary judgment.

True, the appellate court did not label it "an attempt to squealch free speech" or say anything else about the plaintiffs' possible motive(s). That is the effect, though, that non-meritorious libel lawsuits brought by plaintiffs with deeper pockets than the defendants can have, hence the phenomenon of SLAPP lawsuits.
6.27.2009 6:35pm
Oren:

Not just my opinion that there was no need for a jury, but also that of the Texas Court of Appeals judges, who said that the judge below should have granted the defendant's motion for summary judgment.

In doing so, they created a weird definition of "electronic media" that's discordant with the phrase appearing right before it in the statute and seems unlikely to be what the TX legislature intended.
6.27.2009 6:45pm
Eugene Volokh (www):
Folks: According to the court of appeals' opinion, plaintiffs did argue 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's a passage I quoted in the post.) So they were arguing that Internet speech got less First Amendment protection than other speech.

They were also arguing that Internet speech got less statutory protection than other speech. Nor was this some weird statute that had nothing to do with protecting free speech. Its purpose is precisely to diminish the tendency of lawsuits -- even lawsuits that will eventually lose, after many years for expensive proceedings -- to deter free speech. The statute provides for immediate appeal precisely so that media speech is not unduly deterred.

Plaintiffs rationale, apparently, was that (in their view) "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'" and thus didn't deserve full protection. I take it from the court's opinion that this rationale would support both their constitutional arguments and their statutory arguments. So it seems to me that this post's heading is quite apt.
6.27.2009 7:18pm
Oren:

According to the court of appeals' opinion, plaintiffs did argue 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's a passage I quoted in the post.) So they were arguing that Internet speech got less First Amendment protection than other speech.

I was unaware that not being a "media defendant" changes his substantive first amendment rights as opposed to his statutory procedural rights.


They were also arguing that Internet speech got less statutory protection than other speech.

Which, hypothetically, is something the TX legislature could legally do under the 1A if they were so inclined, no?

I mean, I've been asking for a while in this thread, does the 1A require the availability of an interlocutory appeal of motion denying summary judgment, or is it just a procedural matter that the legislature can allocate as they wish?

I agree that the plaintiffs over-reached (and damaged their case) with their hyperbolic "back-alley" nonsense. What convinces me is the argument they should have made but didn't -- that the defendant simply does not qualify as "electronic media" under the TX statute.
6.27.2009 7:28pm
Fub:
martinned wrote at 6.27.2009 5:03pm:
@Fub: Oh, I'm pretty sure the plaintiffs deserved to lose. I'm also pretty sure that there is a difference between losing on summary judgement and filing a frivolous suit. The plaintiffs deserved their day in court, and they had it. No reason to assume they were trying to do something horrible. They weren't trying to get away with some ridiculous theory of libel. (Group libel? Defamation of religion?) They just quarreled about the extent of the statutory favour that the Texan legislature did to the press.
I must disagree. Of course there is a difference between losing on SJ and filing a frivolous suit. But that doesn't mean that a suit that loses on SJ is NOT frivolous. And they lost on more than the issue of whether Kaufman was a journalist.

The reason plaintiffs lost on defendant's SJ appeal is that they had no credible claim that defendant's statements were about them.
Because appellees were required to show that Kaufman's statements "concerned" them to maintain their defamation claims, because Kaufman moved for summary judgment on the ground that the statements did not, because Kaufman has argued on appeal that they did not, and because we conclude that they did not, we hold that the trial court improperly denied Kaufman's traditional summary judgment motion (which specifically challenged the "concerning" element), and we sustain his issue regarding the denial of his motion.
Plaintiff had no credible claim that defendant's statements concerned plaintiff. But plaintiff filed anyhow. The only way the suit could have presented a credible libel claim was if plaintiff had even a scintilla of credible evidence that defendant's statements concerned plaintiff.

The naked allegation in plaintiff's pleadings, that defendant's statements concerned plaintiff, doubtless saved the case from being declared legally frivolous, but on the facts the case is as bogus as a three dollar bill.

If I (as plaintiff, not counsel [1]) sued you, would you say that I wasn't "trying to get away with some ridiculous theory of libel"? I doubt it.

FN 1: which would be a disaster of Biblical proportions in either case.
6.27.2009 7:42pm
Fub:
Ooops. That last should read:

If I (as plaintiff, not counsel [1]) sued you for something you published about someone besides me, would you say that I wasn't "trying to get away with some ridiculous theory of libel"? I doubt it
6.27.2009 7:52pm
martinned (mail) (www):
@Fub: Actually, I'd say you failed to allege any injury in fact, and that the case should be thrown out for that reason. As long as the rest of your claim simply consists of the normal elements of the tort of defamation, nothing particularly disconcerting is going on. (At least not from a 1A point of view.) If X alleges that Y defamed Z when Y did in fact defame Z, under the usual definition of defamation, then there isn't much of a constitutional problem. X simply loses because he didn't suffer any injury.

A problem would be, for example, if X alleged injury in fact on the grounds that Y defamed the late Z (say, the prophet Mohammed), arguing that a) it is possible to defame a dead person, and b) that that allegedly tortuous conduct somehow creates an actionable injury for X.

Incidentally, lest I be misunderstood, I don't necessarily have a problem with the statute. It seems like a sensible way of giving a group who are at increased risk of frivolous speech deterring suits a leg up. However, the plaintiffs were entitled to argue about the size of the group covered by the statute without being painted as speech hating @#%$#@s.
6.27.2009 8:07pm
rosetta's stones:
At risk of being overly pedantic, they were entitled to nothing. At minimum, they were rabbit-eared, and any group that functions rabbit-eared deserves to be pilloried.
6.27.2009 8:19pm
Oren:

At risk of being overly pedantic, they were entitled to nothing.

And yet it seems quite obvious to everyone that the defendant in the original suit is absolutely entitled to an interlocutory appeal of the motion denying summary judgment (damn, I need an acronym for that doozy -- IAMDSJ?).

Sometimes lower courts make incorrect decisions (for instance, not granting summary judgment in this case, which was absolutely incorrect). The mere allegation of an incorrect decision, however, does not customarily give rise to the right to an interlocutory appeal. If it did, litigation would proceed even slower (and in a more costly fashion) that it currently does.
6.27.2009 8:50pm
Chuck (mail):
martinned - Thank you for clearing that up about this being a feature of Texas law. IANAL very much!

Oren:
(1) The TX statute refers to "the media", not "the press".

(2) Assuming you meant the former not the latter, do you seriously assert that the TX legislature meant to grant this special procedural privilege to every single posting on the internet? That's an absurd result and creates and absurd distinction.

Thank you for distinguishing this. By citing "The Media," apparently without formal definition (?) one must fall back on to generally (or legally) accepted terms to interpret the wording. Would this exclude non-profit entities publishing a newsletter? The absurd result (and I agree) you mention is consequence of the Legislature crafting law poorly. Rather than creating a special class of people entitled to this procedure, it would fall upon everyone, internet or otherwise, as an authorized option. Maybe not what the Legislature intended, but that's what they seem to have written.
6.27.2009 9:22pm
NickM (mail) (www):
Oren - consider the newspapers that have stopped paper publication and now only publish via the internet (Tucson Citizen, Seattle Post-Intelligencer, Cincinnati Post &Kentucky Post, etc.). Do they lose their protection under that TX statute (in your view of how it should be read)?

Nick
6.27.2009 9:39pm
Toby:
Chuck, you maybe NAL, but you went to an interesting point. Is "The Media" defined anywhere?

- If so, could one argue that a narrow definition was inconstitutional be creating special rights for governement sanctioned members of the press only, thus creating a press with some members more equal than others? Could such a press be declared as free?

- When I was an undergrad, any college professor could give any sttudent a note that said "The English on this [Homework/Project/Paper] was so bad that you must take a remedial course, and you will not receive a grade in this course until you have completed [one of the special courses offered for this ppurpose]. The University dropped this ability a decade ago, for reasons that appear nonsnesical to me. I ocassionally wonder what sort of sanctions could be made for lawmakers who draft and vote for unintellible drivel.

But of course, IANAL either, so perhaps I simply do not understand why it is impossible to define terms, to write clearly, and to require some of what used to be called rhetoric to get out of law school.
6.27.2009 9:48pm
Fub:
martinned wrote at 6.27.2009 8:07pm:
@Fub: Actually, I'd say you failed to allege any injury in fact, and that the case should be thrown out for that reason. As long as the rest of your claim simply consists of the normal elements of the tort of defamation, nothing particularly disconcerting is going on. (At least not from a 1A point of view.) If X alleges that Y defamed Z when Y did in fact defame Z, under the usual definition of defamation, then there isn't much of a constitutional problem. X simply loses because he didn't suffer any injury.
Since injury or damage to plaintiff is an element of the cause of action for libel, then an action alleging:

1. False and defamatory statement.
2. Unprivileged publication.
3. Damage to somebody besides plaintiff.

will fail to articulate a cause of action upon which a court can grant relief.

Filing a suit that fails to articulate a cause of action upon which a court can grant relief is within the definition of a frivolous suit, at least under California Code of Civil Procedure Section 128.5(b)(2):
(2) "Frivolous" means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.
I never practiced civil litigation, and maybe that's a good thing, because that was always my understanding.

But CA is a much better state for some civil defendants than many states (and especially when sued for speech). If these same plaintiffs had sued in CA, they'd have been paying all defense costs very quickly.

Plaintiff doesn't need to file an SJ motion, just a special motion to strike at any time after being served the complaint. Everything but litigation on the motion comes to a screeching halt. To defeat the motion, among other things the burden on the plaintiff is to show, without discovery, that he has a reasonable likelihood of prevailing in the case (not just that he could prevail if only the discovery fairy leaves some evidence under his pillow).

Ridiculous plaintiffs have had their heads handed to them on platters by CCCP 391, the Anti-SLAPP statute I mentioned earlier.

Hope the links work.
6.27.2009 10:30pm
martinned (mail) (www):

If these same plaintiffs had sued in CA, they'd have been paying all defense costs very quickly.

It's off-topic, but I don't see the argument for the normal American rule. Why not let the unsuccessful party pay some standardised version of the other party's legal costs in all cases? (I say "standardised version" because defendants have been known to jack up their legal fees as a way of bullying the plaintiff into settling and to deter future claims.)
6.28.2009 4:31am
Oren:

Would this exclude non-profit entities publishing a newsletter?

If the core job of non-profit is, say, being a shelter for animals and the newsletter is on the side, then I think it strains credulity to say that they are "print media" (if the newsletter is mailed) or "electronic media" (if the newsletter is a blog).

On the other hand, if the non-profit is in the business of disseminating news/opinions/analysis (says, the AEI or the CAP), then they fall under the traditional definition of media.


The absurd result (and I agree) you mention is consequence of the Legislature crafting law poorly. Rather than creating a special class of people entitled to this procedure, it would fall upon everyone, internet or otherwise, as an authorized option. Maybe not what the Legislature intended, but that's what they seem to have written.

Only because we interpret the words they wrote contrary to their intention! If you think adopting an interpretation that leads to an absurd unintended result is a legitimate exercise of judicial power, you give the courts a lot of wiggle room.


Oren - consider the newspapers that have stopped paper publication and now only publish via the internet (Tucson Citizen, Seattle Post-Intelligencer, Cincinnati Post &Kentucky Post, etc.). Do they lose their protection under that TX statute (in your view of how it should be read)?

No, they are still in the business of disseminating news/analysis/opinions. That distinguishes them from, say, my Facebook status page.

Under EV's interpretation, my Facebook status, because I update it frequently with things that are widely available for others to read, counts as electronic media. While I appreciate the extra statutory protection, I don't think that's what the TX legislature had in mind.
6.28.2009 10:11am
Oren:

If so, could one argue that a narrow definition was inconstitutional be creating special rights for governement sanctioned members of the press only, thus creating a press with some members more equal than others? Could such a press be declared as free?

No, because, as is quite evident, freedom of the press does not guarantee a procedural right to interlocutory appeal of a motion denying summary judgment. There is no historical or legal basis for declaring that such a procedure is an essential element of "freedom of the press".

As to the "equal protection of the press" argument, there is nothing that says that the TX legislature cannot enact provisions more protective than the 1A in just about any way they see fit.
6.28.2009 10:14am
Oren:



But of course, IANAL either, so perhaps I simply do not understand why it is impossible to define terms, to write clearly, and to require some of what used to be called rhetoric to get out of law school.


I think the terms are pretty clear and the court went out of their way to bend them for a very deserving litigant.

Also, traditionally, the word 'rhetoric' does not have a negative connotation, but is rather simply the art of persuading others using language.
6.28.2009 10:16am
Oren:

Ridiculous plaintiffs have had their heads handed to them on platters by CCCP 391, the Anti-SLAPP statute I mentioned earlier.

That's an unfortunate acronym for the California Code of Civil Procedure ...
6.28.2009 10:19am
Fub:
martinned wrote at 6.28.2009 4:31am:
It's off-topic, but I don't see the argument for the normal American rule. Why not let the unsuccessful party pay some standardised version of the other party's legal costs in all cases? (I say "standardised version" because defendants have been known to jack up their legal fees as a way of bullying the plaintiff into settling and to deter future claims.)
I'm certainly not going to defend the general USA rule. I do know that CA does provide some exceptions, as in its anti-SLAPP statute.

I think loser pays is definitely beneficial in that context, for much the same reasons that the legislature stated in the body of the statute. I think that typically two types of plaintiffs file abusive suits to silence critics: political and corporate jerks with more money than human decency; and loons with no common sense at all and less money, the typical in pro per libel case. The statute does a decent job of keeping both types of cases down to a dull roar.
6.28.2009 10:36am
neurodoc:
martinned: It's off-topic, but I don't see the argument for the normal American rule.
Well, to stay OT, or go even further OT, there are times when the American rule produces what may look like (and be) injustices, and there are times when the English rule produces what may look like (and be) injustices.

I don't think its too hard to spot a SLAPP, and what amounts to the English rule (loser pays other parties legal costs) is the answer to such. But what about medical malpractice lawsuits? One might think from what we hear so regularly these days from just about everyone other than trial lawyers is that a meritorious med mal claim is a rarity, most med mal actions being "frivolous." I have never had experience of a "frivolous" med mal case, though I did have experience as co-counsel on behalf of the plaintiff of an unsuccessful one. Should our impecunious client, who suffered a grievous neurologic injury consequent to what I earnestly believe was negligence on the part of the treating doctor, have had to pay the defenant's substantial legal costs. I don't think he should have. Nor do I think others should be further discouraged (they already face very substantial obstacles though their claims of injury consequent to negligence are far from bogus) from filing med mal lawsuits against doctors (and their deep-pocketed insurance carriers).

OK, back to the subject of this thread...
6.28.2009 12:57pm
Fub:
Martinned:

My cites above were garbled. Anti-SLAPP statute is section 425.16.

Section 391 is vexatious litigant statute.

Apologies for mis-cites. Got to avoid posting when half asleep. Nice morning here though.
6.28.2009 1:17pm
Chuck (mail):
Only because we interpret the words they wrote contrary to their intention! If you think adopting an interpretation that leads to an absurd unintended result is a legitimate exercise of judicial power, you give the courts a lot of wiggle room.

And so the arguments hang on intent vs what was actually written. Do Texas (or other) laws include a preface or such describing their intent? What if the law as written is antagonistic to the proclaimed intent?

Presume a law to "encourage public health" includes a "No Fat Chicks" provision based on a stated Body Mass Index subjecting them to extra taxation above that limit. Later, the BMI is lowered by a subsequent act to some unrealistic value which would actually be a health risk to achieve. Would an appeal against this tax be on the false expectation of health in the face of the stated intent?

I'm thinking the the "Assault" weapons category created on the basis of cosmetic items like a pistol grip and bayonet lugs.

We're back to the Texas definition of "The Media" as a category, and the reasons for defining that category separate from others. If the law causes absurdity as written, and as written conflicts with the stated intent, they the judge sure has a real mess to deal with.
6.28.2009 2:49pm
Larrya (mail) (www):
There is no right to appeal a denial of summary judgment -- it's a procedural (not substantial) bonus that the TX legislature has chosen to extend to a particular class of people. We are discussing the scope of that class of people, having nothing whatsoever to do with "rights".
If the government can say "Kaufman cannot use this procedure because he is not 'media,'" the government can also say "Kaufman's publication is not covered by freedom of the press because he is not 'media.'" Defining the "scope" of a class of people is an integral part of defining who has "rights." If Sen. Lautenberg's effort to add the "terrorist watch list" to the National Instant Check System database is successful, tens of thousands of people will have their Second Amendment rights stripped away.
Accepted as to print media, but how is this going to work electronically -- on the web, everything is "offered" to everyone. That's why "offer" makes no sense as a reasonable criteria on the web because, as in my previous example, I can open oren-family-news.com and publish a blog there, but if I only tell my family about the URL (and tell Google not to index it), it's effectively a private (but not secured) forum.
The difference, of course, is intention. If you tell only friends that's where the offer is made. If you tell the wider public, then it's publication. The fact that someone might stumble across the site means as much as someone accidentally finding a personal letter.
6.28.2009 4:05pm
Oren:

And so the arguments hang on intent vs what was actually written. Do Texas (or other) laws include a preface or such describing their intent? What if the law as written is antagonistic to the proclaimed intent?

I think one has to interpret what was written in light of the intended effect and also to be harmonious with the other components of the law.

I don't think we need to get into hypothetical questions about contradictory laws here (that's an interesting question, of course, just not relevant) because this isn't such a case. It's clear what the legislature was trying to do and, while they did use quite vague language, we can pretty confidently interpret it in line with their intent.


[Details setting up question omitted ...] Would an appeal against this tax be on the false expectation of health in the face of the stated intent?

This is a totally different question because the legislature made a finding of fact (not necessary a true fact, of course, but I digress) and the Court is not at liberty to substitute its own facts (ever true ones). The legislature is free to adopt policy X for reason Y even if policy X does ~Y.

That sort of "intent" is very different from the sort here, where the legislature has enacted a vague standard ("electronic media") without any guidance on how to interpret it.


We're back to the Texas definition of "The Media" as a category, and the reasons for defining that category separate from others. If the law causes absurdity as written, and as written conflicts with the stated intent, they the judge sure has a real mess to deal with.

I don't think the written *conflicts* with the intent, I think the written is vague and the current caselaw is what creates the absurdity.
6.28.2009 4:11pm
Oren:

If the government can say "Kaufman cannot use this procedure because he is not 'media,'" the government can also say "Kaufman's publication is not covered by freedom of the press because he is not 'media.'"

No, it cannot, because the TX legislature is bound by the 1A (as applied by the 14A) not to pass any law abridging the freedom of the press.

The Supreme Court has repeatedly affirmed that there are strong first amendment limitations on the tort of libel/defamation. The right to interlocutory appeal of an order denying summary judgment, however, is not an element of that protection (perhaps it should be though).

So, in short, the TX legislature cannot strip anyone of any rights guaranteed by the 1A, but we have here a right that is NOT guaranteed by the first amendment that is (potentially) being stripped.


Defining the "scope" of a class of people is an integral part of defining who has "rights."

Except that we aren't talking about a right, we are talking about an element of procedure.


The difference, of course, is intention. If you tell only friends that's where the offer is made. If you tell the wider public, then it's publication. The fact that someone might stumble across the site means as much as someone accidentally finding a personal letter.

That's absurd -- my private letters are stored in my private desk inside my private room in my locked private house that sits on my private property. The phrase you are looking for is "break and enter", not "stumble across".

What if I make a public offer (for instance, buying some advertising on The Volokh Conspiracy) but no one clicks because who the hell besides my family wants to read the-oren-family-update.com?
6.28.2009 4:25pm
troll_dc2 (mail):

What if I make a public offer (for instance, buying some advertising on The Volokh Conspiracy) but no one clicks because who the hell besides my family wants to read the-oren-family-update.com?



http://www.ancestry.com/facts/oren-family-history.ashx

That's the best I could come up with.
6.28.2009 5:07pm
New Pseudonym:

So, in short, the TX legislature cannot strip anyone of any rights guaranteed by the 1A, but we have here a right that is NOT guaranteed by the first amendment that is (potentially) being stripped.

Defining the "scope" of a class of people is an integral part of defining who has "rights."

Except that we aren't talking about a right, we are talking about an element of procedure.


But, cloaking a right as an element of procedure is not dispositive. The TX Statute grants persons a "procedural element" because they are "media" that it does not grant me, an individual citizen of TX, even though this "procedural element" can result in a final decision in a suit against me. It thereby denies me equal protection under the law with respect to a fundamental right granted under the First Amendment.

I would further argue that the suggestions of other posters that whether a person enjoys First Amendment freedom of the press depends on the number of copies disseminated or on the "core job" of the institution disseminating information can have no basis in the constitution. To begin, restrictions on either purpose or breadth of circulation are quite liable to not be content neutral, because the dissemination of wildly unpopular ideas is more likely to be received by a smaller audience.

Which leads to the additional conclusion that unless reporter shield [sic] laws apply to the one copy I run off on the printer attached to my computer equally with the content of the first page of the Dallas Morning News, it is facially unconstitutional. Just as the Second Amendment does not set forth a communal right, the First Amendment does not set forth rights enjoyed by some undefined entity known as "the Press."
6.28.2009 5:53pm
Chuck (mail):
Oren -- Thank you for your lucid and dispassionate answers to my questions. I've poked this with a stick quite enough for one day, and my heart goes out to lawyers and judges who have to deal with messes like this! Happy to have inspired some rational arguments.
6.28.2009 6:02pm
Oren:

But, cloaking a right as an element of procedure is not dispositive. The TX Statute grants persons a "procedural element" because they are "media" that it does not grant me, an individual citizen of TX, even though this "procedural element" can result in a final decision in a suit against me. It thereby denies me equal protection under the law with respect to a fundamental right granted under the First Amendment.

TX law could, consistent with the 1A grant no one the right to IA of a MDSJ. A fortiori, they can grant it to some people and not to others.

By your argument, the States cannot exempt law enforcement from the various CCW laws (for instance, can't carry in a courthouse) because it denies me equal protection under the law with respect to a fundamental right under the 2A.

The Constitution establishes the minimum rights. Your claim that a state cannot enhance the procedural stature of those rights for some defendants without trampling on your rights (given that you are still given the minimum required by law) makes no sense.

By analogy, if everyone deserves cake, it's not a crime for the State of TX to give some people cake and some other people cake AND ice cream. You are claiming that it someone impinges on your fundamental right to cake that someone else gets ice cream -- a claim that makes absolutely no sense.

If you have no right under the 1A to an IAofMDSJ then you have no right to it (and the Supreme Court agrees) then you aren't deprived of your 1A rights when you don't get an IAofMDSJ!
6.28.2009 6:05pm
troll_dc2 (mail):

The TX Statute grants persons a "procedural element" because they are "media" that it does not grant me, an individual citizen of TX, even though this "procedural element" can result in a final decision in a suit against me. It thereby denies me equal protection under the law with respect to a fundamental right granted under the First Amendment.




The law grants a right to take an interlocutory appeal only to some people. I do not understand how this is a denial of equal protection. Haven't we always allowed legislatures to engage in somewhat-rational line-drawing, or are you proposing that once it grants a right, even a procedural right to some people, it automatically must grant it to all people? If so, laws restricting marriage only to a combination of one man and one woman would seem unconstitutional under your assertion.
6.28.2009 6:07pm
troll_dc2 (mail):
If you really want to, you can draw lines in such a way that virtually every bit of legislation that could be enacted can be said to violate equal protection in one sense or another.
6.28.2009 6:12pm
rosetta's stones:
"Should our impecunious client, who suffered a grievous neurologic injury consequent to what I earnestly believe was negligence on the part of the treating doctor, have had to pay the defenant's substantial legal costs."

Yes, if the court rejected your earnest beliefs, and ruled against the client's lawsuit, then the lawyer who took on the client's case should pay the substantial legal costs that he caused by pursuing the lawsuit, which he obviously took on contingency. He went to the casino, and lost, evidently.

Or he would, if we had loser pays.

The client can help pay those costs, if he chooses. So can you, since you appear to be the only one who got paid here.
6.28.2009 7:14pm
neurodoc:
rosetta's stones: The client can help pay those costs, if he chooses. So can you, since you appear to be the only one who got paid here.
On what basis did you draw the inference I got paid?
rosetta's stones: Yes, if the court rejected your earnest beliefs, and ruled against the client's lawsuit, then the lawyer who took on the client's case should pay the substantial legal costs that he caused by pursuing the lawsuit, which he obviously took on contingency. He went to the casino, and lost, evidently.
You realize, of course, that most plaintiffs in medical malpractice cases would be unable to pursue their claims however meritorious those claims if they can't find an attorney willing to do it on a contingency fee basis, often shouldering the considerable costs of a med mal case for their clients. Very few attorneys would be willing to play in your "casino" (is that what you think courtrooms are or should be?) with the deck so stacked against them. Medical malpractice lawsuits would become exceedingly rare, though medical malpractice would be no less common than it now is. But I suppose you think that would be for the best.

[Don't mean to turn this into a discussion of med mal litigation. Was just reacting to the notion that the English rule is so much better than the American one in effecting justice.]
6.28.2009 7:54pm
rosetta's stones:
On what basis did you draw the inference I got paid?

Just an assumption.

Yes, I am well aware that most are not wealthy enough to engage in costly litigation.

Yes, I am well aware that attornies take cases on a contingency basis. And yes, they are gambling that they will be paid for their trouble.

The deck is stacked against nobody. Sue if you want... the courtroom deck is the same for everybody. Your claim was rejected, and I'm left to assume it was without merit. Better luck next time.

As for me, I would increase the size of the contingent lawyer's bet, and enact loser pays.
6.28.2009 9:08pm
neurodoc:
rosetta's stones: The deck is stacked against nobody. Sue if you want... the courtroom deck is the same for everybody.
Do you think that hundreds of billions of dollars are spend on advertising and public relations campaigns to influence the products people buy, the politicians they vote for, and myriad other choices they make represent so much wasteful spending, changing nobody's mind about anything? Or do you think most of those dollars do change a good number of minds in the way those advertisers would like them changed, that is except for those dollars which have been spend by various business groups, insurance companies, professional groups, and others to convince the public that plaintiffs are milking us all with their bogus tort claims, especially med mal ones? Those dollars have not poisoned jury pools even a tad, biasing them before they hear any evidence?
rosetta's stones: As for me, I would increase the size of the contingent lawyer's bet, and enact loser pays.
You would do so in hopes of further discouraging med mal claims, without regard to their merits, since that would be the certain consequence?

BTW, do you have any personal experience or special knowlege of these things?

It is not logically inconsistent to favor the English rule for SLAPPs and disfavor it for other tort litigation.
6.28.2009 10:26pm
rosetta's stones:
"Those dollars have not poisoned jury pools even a tad, biasing them before they hear any evidence?"

Look guy, you lost. Stop whining, especially the whining about the deck and the card table. You took your shot, and may have been paid for taking it. The lawyer gambled, and lost his bet.

Yes, I am aware of the certain consequences of loser pays.

No, I have no special knowledge in this area, and likely no more than the hundreds of millions around the world living in nations who practice loser pays. I'd like us to join them.
6.28.2009 10:47pm
ReaderY:
The Texas Court of Appeals appears to have accepted jurisdiction based on nothing more than Kaufman and Horowitz's own affidavits that their publication regularly reaches 500,000 readers, they have repeatedly appeared on major network television, etc. etc., based on these affidavits, the Court of Appeals accepted that Front Page Magazine is a legitimate publication and Kaufman a legitmate journalist (or, accepting Professor Volokh's qualification, a legitimate media person.)

Instead of going for all the marbles with a position that internet as an entire medium categorically doesn't qualify for the statutory interlocutory appeal benefit available to other media for defamation cases involving Free Speech claims, the plaintiffs might have been better off attacking the evidence for Kaufman's claim that he and Front Page Magazine are what he says they are. If it really were a real publication of the stature claimed, shouldn't Kaufman and Horowitz have able to offer something more in the way of evidence than their own potentially self-serving affidavits? Should Texas courts accept a publishing party's own uncorroborated claims about matters like its publication's circulation? Plaintiff's lawyers might have argued that the defendants ought to be required to produce at least some independent corroboration of their claims. Kaufman may well be an important and well-known figure and Front Page Magazine may well be an important publication — I don't know — but from the appelate court's description, the evidence Kaufman offered in this case for his claims struck me as rather slim, perhaps even flimsy.

By going for all the marbles without taking a fallback position addressing things what the appropriate standard of evidence ought to be, plaintiff's lawyers may have overreached their way into losing what might otherwise have been a winnable case. Attacking all internet publications as a group is a venture likely to fail. But attacking this particular publication specifically, might possibly have succeeded, particularly since, with its specific claims unchallenged, it didn't appear to have put a great deal of effort into providing evidentiary support for them..
6.29.2009 1:23am
ReaderY:
That said, I realize that Kaufman's defense was open-and-shut. His article never mentioned or even so much as implied the existence of any of the named plaintiffs. Accordingly, it couldn't possibly have defamed them. Given this result, the Texas Court of Appeals might have been inclined to bend the rules of interlocutory appelate jurisdiction evidence a bit in order to avoid prolonging senseless litigation on a First Amendment-protected matter.
6.29.2009 1:32am
yankev (mail):

But in this case the injunction bars him from doing things that are not legal anyway. How can it possibly have any meaning other than to prejudice others against the defendant?
By establishing contempt of court as the remedy for violation, would it lower the burden of proof from beyond reasonable doubt to a mere preponderance
of the evidence?
6.29.2009 1:03pm

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