What the court does about it is something all Texans should be concerned about. A number of publications across the state published previews on Jan. 8 about the oral argument on this topic that was to take place the next day.
Most of them focused heavily on the facts of the underlying case, which in and of itself isn’t that interesting. Robert Kinney used to work for Andrew Harrison Barnes in a legal recruiting firm and moved on to start his own recruiting firm. When Kinney left the firm—Barnes claims he was fired—the former boss posted defamatory comments on two websites, alleging Kinney of paying kickbacks to place clients.
Kinney sued and was able to convince the judge he was defamed. But when he sought a permanent injunction, the trial judge said no. That’s prior restraint. Kinney appealed, but the district court of appeals upheld the lower court.
One comment among the preview stories that grabbed my attention was uttered by David Anderson, a professor at the University of Texas School of Law. He told the Dallas Observer the legal question at issue has been settled for centuries; courts simply don’t have the power to meddle with free speech.
Then Anderson told the Observer, the only mystery is why the Supreme Court decided to accept the case.
Hint to Anderson—courts of last resort take cases like this because they are at least thinking about changing the rules. And the Texas Supreme Court has shown it is perfectly willing to be an outlier on any number of issues.
What is prior restraint?
Prior restraint is government censorship. It is most commonly understood in the form of an injunction. A subject known to a party before publication is reviewed by a court or other official agency and its publication is prevented or heavily edited.
Martin Siegel, the Houston attorney representing Kinney, tried to make a distinction. Standing before the Supreme Court, he said, “We don’t think this kind of injunction is a prior restraint.”
Siegel referred to Kinney’s situation as a post-adjudication remedial order. Once a judge finds that offending statements are in fact defamatory, why can’t he, instead of going for money damages, order that statements be removed?
“The court ought to have the power to issue a narrowly tailored injunction,” Siegel said. “It just looks at texts or certain statements that have specifically been found to be defamatory and says don’t repeat them.”
Justice Jeffrey Boyd asked Siegel if the Internet made a difference to the legal rule. Siegel said it did.
“It’s so much easier now with the new technology than it used to be to defame somebody,” Siegel said.
Within minutes, anyone can produce a message on their cell phone, push a button and the defamatory act is everywhere for perpetuity, he said.
Anthony Ricciardelli of Taylor Dunham in Austin, attorney for Barnes, told the court that if it reverses the district court of appeals, a dangerous precedent will be set that has a chilling effect on free speech as defined in the First Amendment, “and may lead to a slippery slope of further restrictions on future speech.”
Justice Eva Guzman went right to the point of why the Supreme Court accepted this case. Speaking to Ricciardelli, she said, “Mr. Siegel mentioned something I think is troubling, this notion of the inability to avail yourself of equity when for example teen bullying is at issue.”
Guzman recalled the publicized Facebook postings that have led to teen suicides and the inability to obtain a court injunction in those cases to stop or delete published statements.
“To the extent they are defamatory and also hate crimes, how would you respond to balancing those interests,” Guzman asked.
Throughout argument, Ricciardelli stood on the Texas Constitution—“Every person shall be at liberty to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty.”—and former Texas Supreme Court decisions in 1920, 1983 and 1992 that defended that clause.
Unfortunately, Ricciardelli wasn't firm in standing his ground. He suggested the court might find hate speech and cyber bullying are not protected speech, but then emphasized that the court should not decide that in this case.
Guzman then cited Balboa Island Village Inn v. Lemen, a 2007 decision by the California Supreme Court. In Balboa, the court had to deal with a woman who was verbally harassing workers and customers of an inn that neighbored her cottage. She was undisputedly defaming them and the inn, and using this tactic to gather signatures for a petition to shut the inn down.
The only remedy the inn sought was an injunction to get her to stop the verbal abuse and smear campaign and the Supreme Court granted one.
Guzman said Balboa and other cases that have adopted “the modern rule” have discussed technology and the irreparable harm it’s caused.
Justice Debra Lerhmann joined that argument by noting that the court has recognized in another case that the Texas Constitution “may be more protective of speech in some instances than the First Amendment and we look at the national trends really going in the opposite direction from what you’re arguing. So, how do you respond to that?”
Ricciardelli said the “modern rule” referred to only five of the 50 states that have made some kind of prior restraint exception. And he noted that in Balboa, a California federal judge criticized that state’s Supreme Court ruling.
“The so-called modern trend has been widely criticized and I really think it’s more appropriate to call it the minority rule than the modern rule,” Ricciardelli said.
Justice Paul Green also had concerns about the lack of equity. He questioned what remedy there was against a prolific Internet defamer that also happens to be penniless. There’s no point in suing him for the very real monetary damage to reputation.
Ricciardelli acknowledged he was proposing the court take an unsavory position, but civil or criminal actions are and must continue to be the only recourse for victims. The alternative, he said, is much worse.
“This is a well-settled and well-reasoned rule—that equity may not enjoin a libel,” Ricciardelli said.
It goes back as far as 1742, in part based on English practices after the spread of the printing press.
“Printing had to be licensed and people didn’t like that, so judges said, ‘You can’t enjoin a libel. We’re going to have more free speech and that was made sacrosanct in this country’ Constitution,’” he said.
Finally, Ricciardelli said free speech on the Internet goes both ways. Yes, it is easy for bullies to defame people. But it is just as easy for their targets to respond.
“The answer here is more speech, not less,” he said.