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Houston appellate court voids order forcing Google to censure

The First District Court of Appeals in Houston voided an expunction order that required Google Inc. and other search engines to wipe out all record of allegations against Calvin C. Jackson, a League City attorney.

According to the Houston Chronicle, this gag order was signed in a Galveston County district court by a visiting district judge from San Antonio, Judge Richard Price of the 285th District Court.

No explanation is given as to why Price was visiting, but the case certainly calls into question Price’s legal credentials. And this was a judge who was endorsed by the San Antonio Express-News.

No one puts it better than Tim Cushing, who writing for Techdirt said, “It’s unknown whether the judge actually read what he was signing of if he did, whether he recognized how completely ridiculous the request was. Google may index the web and hold a commanding lead in the search engine market, but it certainly doesn’t have the ability to demand third parties turn over and/or destroy content.”

The back story here involves Jacksons’ run-in with the Texas Bar Association. In 2012, he was accused of forging the signatures of two lawyers on different pleadings in a Galveston County civil case. Chronicle reporter Brian Rogers stated in April when the gag order was signed that the allegations against Jackson were settled, “but no one connected to the case would say what happened because of the gag order.”

Attorney Chip Babcock at Jackson Walker in Houston handled Google's appeal. He argued five points. The expunction order violates the Communications Decency Act and Google's due process rights. The state law from which the order purports to draw its authority doesn't apply to Google, the hearing the order wants expunged was required to be public, and finally the order is an unconstitutional prior restraint on Google's right to free speech.

Babcock may be right on all counts, but the appellate tribunal, as such panels are want to do, looked to resolve this dispute on one issue. Call it the 'kill shot' strategy, but appellate courts like to take the first off ramp they can find rather than muddle through all the merits of a case.

"Google urges us to resolve this appeal based on its first issue, whether the expunction order violates the Communications Decency Act," Justice Laura Carter Higley wrote in the June 5 opinion. "Even so, we must resolve jurisdictional issues before we review issues based on the merits of the dispute."

Higley then notes that "it is clear from the record" that Google was never named a party to the suit, never served with a lawsuit, did not waive or accept process, and never made an appearance in the suit before the order was entered.

These are all basic issues of jurisdiction that a competent judge would have questioned Jackson about before signing such an all-encompassing order.

"Accordingly, we hold that Google was not a party to the suit and the trial court lacked jurisdiction," Higley said. "When the defects in service are so substantial that the defendant was not afforded due process, the judgment is void."

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