After the Texas Supreme Court issued its opinion on Friday in Kinney v. Barnes, Robert Kinney's attorney declared victory. Kinney, an Austin businessman, had sued his former boss to force the removal of online postings accusing Kinney of taking bribes.
"This is a win for Robert and other people who are smeared online," appellate attorney Martin Siegel said. No longer can a person "destroy someone else's reputation online and have that stay on the web forever, as the other side wanted."
Funny thing, though. The Electronic Frontier Foundation, which filed an amicus brief in the case opposing Kinney's arguments, declared victory as well.
See also: Texas Supreme Court Will Decide If Defamatory Comments Can Be Forcibly Removed From the Internet
"The Texas Supreme Court reiterates a principle that has long been at the core of the First Amendment -- that the government cannot resort to judicial orders to muzzle its citizens from speaking in the future, even if it fears their speech may be disruptive or defamatory," University of Florida law professor Lyrissa Barnett Lidsky wrote in an EFF blog post.
Hold the phone. Kinney and EFF are on opposite sides of the case. A win for one should mean a loss for the other. How can they both claim victory?
To understand, it's first helpful to understand the basics of defamation law. In the United States, ever since the British system of jurisprudence migrated across the pond more or less intact centuries ago, there has been one and, with few exceptions, only one legal remedy available for victims of defamation: money. If a rival anvil-forger printed false and malicious pamphlets disparaging your anvil-forging business, you could take him to court and win damages. The pamphlets would remain in existence.
When a district court in Austin issued summary judgment against Kinney, this was its rationale. Forcing Barnes to remove his online posts would be an unconstitutional restraint on his free speech. Money was the proper means for righting any wrongs.
The Texas Supreme Court disagreed. Forcing the removal of a statement that has been ruled in court to be defamatory wouldn't be prior restraint; it would be a reasonable and constitutional way to protect its victim from lies that might otherwise live forever on the Internet.
The upshot for Kinney is that he gets to move forward with his lawsuit and, if he prevails, get Barnes' bribery allegations taken down. This will set precedent in other cases as well. In its amicus brief, for instance, the Texas Apartment Association argued that, since its member landlords "endure a significant number of defamatory Internet attacks by individuals unlikely to pay damage awards, they need the ability to seek post-judgment removal of statements adjudicated as defamatory." They now have that ability.
Lidsky, who co-authored EFF's amicus brief, doesn't care so much about that part of the appeal. Statements that a court has ruled defamatory don't contribute to the marketplace of ideas, she says, and thus are of little First Amendment concern. She was more alarmed by what would have happened if Kinney prevailed in his argument that, not only should Barnes' already-published statements be taken down, but that the court prevent him from making similar statements in the future.
It would be extremely problematic, Lidsky says, to have a "judicial order saying, by the way, you can't talk about that topic or that person for the rest of your natural life." The Texas Supreme Court didn't issue such an order, and Lidsky thinks they struck a healthy balance. "The thing that's significant is they said you can't enjoin speech forever into the future just because someone said something defamatory," Lidsky says.
Which means that, if Kinney wins his lawsuit, and if Barnes goes back and covers the Internet with claims that he took bribes, Kinney will have to go back to court to get those statements removed.
If a ruling that leaves both free-speech absolutists and defamation plaintiffs relatively happy isn't proof enough of the wisdom of Texas's high court, however, Justice Debra Lehrmann slips into the footnotes a quote from The Big Lebowski, delivered by Walter after a waitress asks him not to yell obscenities: "For your information, the Supreme Court has roundly rejected prior restraint."
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