The Texas Supreme Court last week issued a ruling that could change how Texas lawyers fight defamation in the internet age.
The State Supremes ruled in the case of Robert Kinney, a Texas legal recruiter for BCG Attorney Search, Inc. who left the firm in 2004 to start a competing venture. Some time later, BCG's president Andrew Barnes posted a warning of sorts on the websites JDJournal.com and Employmentcrossing.com accusing Kinney of taking part in a kick-back scheme while at BCG. Barnes claimed he'd uncovered evidence that Kinney attempted to pay a recruiter at competing firms under the table to hire one of his candidates. Barnes says he fired Kinney immediately upon discovering the kickback scheme.
Kinney insists that's all false. The case landed in Travis County court when Kinney sued Barnes, BCG and two subsidiaries for defamation. The case entered questionable First Amendment territory when Kinney asked the court for a permanent injunction ordering Barnes to remove the (allegedly, since his case hasn't yet been decided) defamatory statements from his websites, to contact any third-party publishers and ask them to scrub the defamatory statements from their websites, to "conspicuously post a copy" of the court order on Barnes' website, to publicly retract said defamatory statements, and to issue a letter of apology that would appear on Barnes' website for six months. (Kinney has since dropped his request for an apology and retraction from Barnes.)
Kinney also sought to bar Barnes from making similar statements about him, in any form, in the future. Barnes argued that Kinney's request amounted to a prior restraint of free speech, and was therefore unconstitutional. Kinney's defamation case stalled when the Travis County trial court and the state appeals court agreed.
The Texas Supreme Court, however, opted to hear the case in January. On Friday, the state's high court overturned the lower rulings, sending Kinney's defamation claim back to be heard by the lower court. But it sent the case back with instructions that could change how Texas courts handle internet smear cases going forward.
Unlike temporary injunctions - in which a plaintiff asks for a court order before a judge or jury has ruled on the merits of a case (i.e. pre-trial) - judges issue permanent injunctions after a case has already been decided. In this case, only a bench or jury trial in Kinney's favor would have triggered the court order Kinney has been suing for.
But permanent injunctions in defamation cases are particularly tricky, says Eugene Volokh, a UCLA law professor who literally wrote the book on the First Amendment. Historically, many courts have ruled that you can never get an injunction that blocks speech -- that damages (i.e. money) are the only deterrent to libel or defamation. According to Volokh, however, the internet has started to change things. And in recent years some courts across the country have ruled that such court orders in defamation or libel cases are just fine, even when they bar defendants from publishing similar defamatory speech in the future.
With its decision Friday, however, the Texas Supreme Court is largely bucking that trend, Volokh says. While the court ruled that Kinney's request for Barnes to take down any smears he already published on the internet passes constitutional muster, an order that bars Barnes from posting such smears in the future does not, the court ruled.
"Functionally speaking, what this means is that these injunctions are going to be largely useless," Volokh said. Such court orders would have to be so narrow that they're just "empty words," Volok says - i.e., a court says a defendant can't repeat a specific sentence, so instead they just paraphrase or reword and keep posting the smears online. And injunctions that are too broad and subjective - i.e. an order barring "similar" defamatory language in the future - risk being knocked down by the courts as unconstitutional.
"Here's the practical problem," Volokh says. "These days, with the internet, it's quite easy for somebody, especially for somebody with very little money, to make very damaging and entirely false accusations about someone on the internet...And those statements are potentially visible to lots and lots of people." If defendants can just reword, rephrase, and re-post defamatory statements because there's no court order that keeps them from doing so, sure, they might face another lawsuit and get dragged back into court. But if the person's broke, and pissed off enough, the harassment's not going to stop, Volokh says. And for plaintiffs, such defamation lawsuits will eventually reach a point of diminishing returns.
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In the past, plaintiffs have asked for injunctions to keep such trolls from making similar defamatory smears in the future, or otherwise risk criminal contempt of court. Now, Volokh says, that might be off the table in Texas -- at least until we get another high court ruling that addresses the problem. (While Kinney tried to invoke the problem of cyber-bullying in his case, the high court largely swatted that down. "One final note is warranted in response to Kinney's assertion that the case for injunctive relief is made more compelling by the need to address the phenomena of cyber-bullying and online hate speech," the court wrote. "It is enough to say that neither of those is at issue here.")
Naturally, Martin Siegel, Kinney's Houston-based appellate attorney, has a slightly different take on Friday's ruling. Sure, plaintiffs might have to keep suing to stop persistent online trolls, but each subsequent lawsuit would still be much easier to win than the first. Siegel painted Friday's ruling as a victory for his client, largely because it got him back into court.
"No doubt the Court was seeking to balance competing concerns, and it chose a middle ground," he said. The court discarded the old rule that the only remedy to defamation is monetary damages. Now, you can sue to have something taken down.
But if your online trolls keep attacking, good luck. Under last week's ruling, you'll be hard-pressed to get a court order demanding they stop.