Texas Supreme Court Will Decide If Defamatory Comments Can Be Forcibly Removed From the Internet

A book Texas Supreme Court justices might want to peruse between now and tomorrow morning.
On Thursday, the Texas Supreme Court will thrust itself into a debate as old as the Internet: Is the web a place where ideas and opinions, often vile, sometimes damaging, should be allowed to flow unencumbered? Or should there be some means of identifying defamatory speech and purging it from the Internet?

At first glance, the case they will hear is a rather parochial dispute between Robert Kinney, an Austin businessman, and Andrew Harrison Barnes, his former boss. Barnes, according to court documents, posted comments on a couple of websites he runs suggesting Kinney had been involved in a kickback and bribery scheme. Kinney got mad and sued Barnes, demanding that he be forced to remove the posts.

A court in Travis County dismissed the case. A state appeals court upheld the decision, ruling that "a permanent injunction requiring the removal of the alleged defamatory statement from Barnes' website would act as prior restraint on constitutionally protected speech."

Kinney then appealed the case to the Texas Supreme Court, which is scheduled to hear opening arguments on Thursday.

"It's an easy case," says David Anderson, a professor at the University of Texas School of Law who specializes in free speech and media law. "The court of appeals opinion is clearly correct."

The legal question at issue has been settled for centuries, Anderson says. Courts simply don't have the power to meddle with free speech. "The fact that it's an online thing is neither here nor there." The "only mystery" is why the Supreme Court decided to accept the case.

Kinney and his lawyers argue, essentially, that times have changed.

"Now, all it takes is a few minutes and a computer or cellphone and defamatory content is available everywhere for all time," Martin Siegel, Kinney's appellate attorney, told the Texas Tribune. "We think these technological developments call for re-evaluating the traditional rule."

If the Texas Supreme Court rules in Kinney's favor, the implications would be both far-reaching and disastrous, Anderson said. He declined to speculate on what form the disaster would take, but it's not too much of a stretch to imagine that the threat of losing a lawsuit could affect how websites, from obscure legal-search sites like Barnes' to Facebook and Twitter, handle user-generated content.

Not everyone agrees that stemming the flow of online vitriol is such a bad thing. The difficulty of cracking down on things like revenge porn and cyber-bullying is often cited as an example of why things need to change, and the supreme courts in a handful of states (California, Kentucky, Ohio, Georgia, and Minnesota) have ruled that courts can prevent speech after it has been ruled defamatory.

Nate Cardozo, an attorney with the California-based Electronic Frontiers Foundation, calls those cases "outliers" and says it's unlikely that Texas will take the same stance.

"Courts since even before the founding of this nation and the ratification of the First Amendment have been extraordinarily hesitant to issue restraints regarding speech. ... In our legal tradition the remedy for defamation is damages. If I have injured you by my speech, your recourse is to remedy that injury [by seeking compensation], not getting rid of the speech."

If the Texas Supreme Court does rule in Kinney's favor and forces Barnes' posts to come down, Cardozo expects the case would go to the U.S. Supreme Court.

"Until we have the Supreme Court's views on the subject, I think we need to continue to hold to traditional view of the First Amendment that prevents prior restraints on speech."

Send your story tips to the author, Eric Nicholson.

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If a rich person loses money or prestige..we should all have to pay with another one of our freedoms lost.

DonkeyHotay topcommenter

Texas House Rejects Attempted Repeal Of Ag Libel Protection

AUSTIN — The Texas House late last week rejected an effort to repeal the state's agricultural defamation law, the derisively tagged "veggie libel" law which cattlemen attempted to use when suing television talk-show host Oprah Winfrey.

The repeal bill by Rep. Ruth Jones McClendon, a Democrat, was voted down 80-57 Thursday.

McClendon claimed the law encouraged frivolous lawsuits and discouraged free speech, but opponents argued that it is needed to protect the state's agricultural industries.

Even dubbing it the ``veggie libel'' law trivializes a serious issue to agricultural producers, said Republican Rep. David Swinford.

``It makes it sound silly. It's not silly,'' Swinford said.

The law allows producers to sue those who knowingly make false and disparaging statements about perishable agricultural products.

During an April 16, 1996 program on dangerous foods, Winfrey said England's bout with mad cow disease stopped her from eating another hamburger, and a vegetarian activist claimed U.S. stockmen feed "road kill" to cattle. Winfrey was quickly hit with a lawsuit that cost her up to $5 million to defend.

A federal jury ruled in Winfrey's favor after the judge declined to allow cattlemen to sue under the ag disparagement law because, she said, cattle were not "perishable." The lawsuit was forced to proceed under a more difficult statute and failed, largely because the stricter product libel law required the plaintiffs to prove that Winfrey and her co-defendant had specifically derided their cattle.

They hadn't, of course; they had libeled
allU.S. cattle and beef. It is just such loopholes in product libel law which the ag disparagement measure seeks to close.

The law recognizes that agricultural commodities are unlike most other commercial products because they are seldom identified with a single manufacturer. A libelous statement about one brand of soft drink doesn't necessarily reflect on competing brands, for instance, but a malicious lie about beef damages the market for all cattlemen.

Keeping the law will continue to have a chilling effect on free speech, argued Republican Rep. Brian McCall during debate on the repeal measure.

``You can't talk about broccoli without the fear that you'll have to defend yourself in a courtroom,'' McCall said.

mavdog topcommenter

this is nonsensical, we all know that once it is out in cyberspace it can never be fully erased/removed....

Montemalone topcommenter

So much for commenting here...


Texas State Constitution: Sec. 8.  FREEDOM OF SPEECH AND PRESS; LIBEL.  Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.  In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence.  And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.

ScottsMerkin topcommenter

@Montemalone no kidding... even though most of the time the person here being called a dickhead or a douchcanoe was acting like a dickhead or douchecanoe and therefore it wasn't defamatory right?

ThePosterFormerlyKnownasPaul topcommenter


Yep, that's it ... free speech is free speech; however, slander and libel is not free speech.  Although it does take a jury to establish the slander or libel.

DonkeyHotay topcommenter

@ThePosterFormerlyKnownasPaul @DonkeyHotay 

There is no legal defense to defamation, libel or slander simply by veiling that defamation, libel or slander behind the meaningless linguistic pretense 

"I think xxx" or "It's my opinion that xxx".

DonkeyHotay topcommenter

@ThePosterFormerlyKnownasPaul "There is a difference between saying you think someone is a douchecanoe and saying that they are a douchecanoe. "

Spoken like someone with no comprehension of the law regarding defamation, libel and slander.

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