Paul Watler's Podcast: Free Speech Protections For Internet Journalists

Paul Watler's Podcast: Free Speech Protections For Internet Journalists

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Is an Internet journalist entitled to the same free speech protections as a member of the traditional print or broadcast news media? The Second Court of Appeals in Fort Worth said the answer was yes in a decision issued in June [of 2009].

The decision in Kaufman v. Islamic Society of Arlington, et al., 291 S.W.3d 130 (Tex. App. – Fort Worth 2009, pet. pending) could impact the level of First Amendment protection afforded bloggers and citizen journalists. A petition for review remains pending in the Texas Supreme Court.

According to the opinion, here are the facts of the case. A group of Islamic associations sued author Joe Kaufman, alleging libel based on Kaufman's online article in Front Page Magazine. The plaintiffs did not sue the online magazine. Kaufman's article pointedly criticized an Islamic society's sponsorship of Muslim Family Day at Six Flags Over Texas in Arlington.

The 153rd District Court of Tarrant County denied Kaufman's summary judgment motion that asserted First Amendment defenses. Kaufman then sought an interlocutory appeal under Texas Civil Practice & Remedies Code section 51.014(a)(6).

Enacted in 1993 before the prominence of the Internet, the statute grants the right of interlocutory appeal to "a member of the electronic or print media" asserting First Amendment defenses to a libel action.

According to the opinion, the libel plaintiffs contended that the appellate court lacked jurisdiction over the appeal because Kaufman did not qualify as a media defendant. The opinion recounts that the plaintiffs argued that Kaufman could not be considered a media defendant because he only posted articles on the Web, was not trained as a journalist and was not employed by a television station or newspaper.

The 2nd Court found that Kaufman and the online magazine had the functional attributes of traditional electronic media. The Court rejected the notion that the magazine's Internet-only status cost Kaufman standing to file an interlocutory appeal as a member of the electronic media.

The Court surveyed other cases and authority to determine whether it should extend a statute written with existing technology in mind to a new technology. The Court noted that the 5th U.S. Circuit Court of Appeals recently decided a Texas case, Nationwide Bi-Weekly Administration, Inc. v. Belo Corp., 512 F.3d 137 (5th Cir. 2007), in which the 5th Circuit treated an Internet publication as the equivalent of a traditional print newspaper. Myself and my law firm represented the newspaper appellee in the Nationwide case. The 2nd Court in Kaufman also observed that the U.S. Supreme Court has extended First Amendment protection to information published through the Internet.

The 2nd Court then reached back a century to another era when new technologies were replacing old ones. It noted that in 1900, the Texas Supreme Court had held that a statute regulating telegraph lines also applied to telephone networks.

Finally, the Fort Worth court was also guided by the recently enacted Texas journalists' shield law. I was part of the coalition of Texas newspapers and broadcasters that worked over several legislative sessions in favor of the shield law. That statute defines a "news medium" to include methods of public news dissemination through "known or unknown" means. The 2nd Court found that the online magazine that published Kaufman's article would constitute a "news medium" under the shield law.

The 2nd Court ultimately concluded that libel defendant Kaufman qualified as a member of the electronic media entitled to interlocutory appeal because under the circumstances, he played a role as a communicator indistinguishable from a traditional member of the electronic media. The court stressed though that it was not holding that "everyone who communicates on the Internet would qualify as a member of the electronic media" under the interlocutory appeal statute.

After finding that it had jurisdiction over the interlocutory appeal, the 2nd Court went on to consider the merits. The court of appeals noted that libel plaintiffs are required to show that a defamatory article "concerned" them. An allegedly defamatory article "concerns" a plaintiff when it is about the party bringing the suit, not other people or groups. According to the 2nd Court, the Islamic groups who were suing Kaufman were required to demonstrate that the online article he wrote was specifically directed towards them. The Fort Worth court wrote, "settled law requires that the [allegedly] false statement point to the plaintiff and no one else." In the Kaufman case, the 2nd Court found that the Islamic group that Kaufman criticized by name in his online article was not one of the groups bringing the libel suit. Kaufman's article did not name any of the plaintiff organizations, and the 2nd Court rejected the plaintiffs' contention that the article could be read broadly to refer to them indirectly. The 2nd Court concluded that a reasonable reader would find that Kaufman's article only concerned the group he criticized by name, not any of the unnamed groups who filed the libel suit. Thus, the 2nd Court reversed and rendered summary judgment for Kaufman.

Jackson Walker partner Paul Watler regularly provides podcasts for Texas Lawyer. An archive of previous First Amendment podcasts can be found here.