The Volokh Conspiracy - 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).

	[Eugene Volokh, June 26, 2009 at 10:23pm] Trackbacks 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).