UPDATED: Texas Supreme Court to Take Up First Amendment Internet Smear Case

UPDATED: The previous post reflected that the plaintiff, Robert Kinney, asked for a temporary injunction. In fact, Kinney asked for a permanent injunction. Apologies if there was any confusion caused by this. The error was mine.

Next week, the Texas Supreme Court will hear oral arguments in a case that presents some interesting First Amendment issues in regard to the Internet. In short, here's what happened. An employee (Robert Kinney) of an attorney employment search company (owned by Harrison Barnes), quit his job with Barnes and left to start a competitor company.

Barnes filed suit against Kinney in California, and then published an article in JDJournal.com (Barnes is President of JDJournal.com) that stated:

"When Kinney was an employee of BCG Attorney Search in 2004, he devised an unethical kickback scheme, attempting to pay an associate under the table at Preston, Gates and Ellis (now K&L Gates) to hire one of his candidates. Barnes says that when he discovered this scheme, he and other BCG Attorney Search recruiters immediately fired Kinney. The complaint in the action even contains an email from Kinney where he talks about paying the bribe to an associate at Preston Gates in return for hiring a candidate."

Kinney in turn filed suit in Texas state court alleging that these accusations were defamatory (i.e., false) and asked the trial court to order Barnes to take it off his website and issue an apology (among other things). In the jargon, Kinney asked for a permanent injunction against Barnes' speech that would be in place if the fact-finder determined the speech was defamatory. As you might expect, defamatory speech is not protected by the First Amendment.

The Texas trial court entered summary judgment without a jury trial in favor of Barnes stating that the injunction requested by Kinney would be an unconstitutional "prior restraint" of Barnes' free speech rights. The court of appeals upheld this finding based on a decades-old case that predated the Internet. The Texas Supreme Court, recognizing that this issue needs a new look, decided to hear Kinney's case.

Professor Eugene Volokh of UCLA Law School, and the man who literally wrote the book on the First Amendment, said, "I think it's a good thing that the Texas Supreme Court has decided to hear this case now."

Why? Well, as Volokh explained, there is a split of authority across the country regarding this issue. And that split of authority, Volokh explained, is this: some courts have ruled that you can never get an injunction against speech. However, some more modern courts have ruled that injunctions should be available if the speech is determined to be defamatory.

Volokh also believes that this issue confronting the Texas Supreme Court will eventually go up to the U.S. Supreme Court, but it is difficult to say if this case will be the one that the high court hears.

So what should the Texas Supreme Court do? It seems most sensible to me to allow a jury to determine (Texas is one of the few states that would allow a jury to determine this issue as opposed to a judge) whether the speech was defamatory and then take up the issue of an injunction against that non-protected speech.

For example, as a point of comparison, we don't want to stop speech -- via a temporary, as opposed to a permanent, injunction -- that is later determined to be protected by First Amendment; we would have unnecessarily restrained speech in that case. But if it is defamatory, it seems wrong that we would be First Amendment absolutists, especially where the Internet is concerned. Defamatory speech on the Internet does not "go away"and is easily accessible by anyone with an internet connection.

And that's where it seems the trial and court of appeals went wrong here. They simply took this possibility away from Kinney by ruling on the issue as a matter of law rather than letting Kinney have his proverbial day in court -- a jury trial. The fact that the Texas Supreme Court decided to hear this case bodes well for Kinney: in 2012, it reversed the court of appeals in 61 percent of all cases and affirmed in only 9.8 percent of cases (the rest were a mixed bag, apparently). Let's hope this trend continues.

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