Texas Supreme Court Will Decide If Defamatory Comments Can Be Forcibly Removed From the Internet

On Thursday, the Texas Supreme Court will thrust itself into a debate as old as the Internet: Is the web a place where ideas and opinions, often vile, sometimes damaging, should be allowed to flow unencumbered? Or should there be some means of identifying defamatory speech and purging it from the Internet?

At first glance, the case they will hear is a rather parochial dispute between Robert Kinney, an Austin businessman, and Andrew Harrison Barnes, his former boss. Barnes, according to court documents, posted comments on a couple of websites he runs suggesting Kinney had been involved in a kickback and bribery scheme. Kinney got mad and sued Barnes, demanding that he be forced to remove the posts.

A court in Travis County dismissed the case. A state appeals court upheld the decision, ruling that "a permanent injunction requiring the removal of the alleged defamatory statement from Barnes' website would act as prior restraint on constitutionally protected speech."

Kinney then appealed the case to the Texas Supreme Court, which is scheduled to hear opening arguments on Thursday.

"It's an easy case," says David Anderson, a professor at the University of Texas School of Law who specializes in free speech and media law. "The court of appeals opinion is clearly correct."

The legal question at issue has been settled for centuries, Anderson says. Courts simply don't have the power to meddle with free speech. "The fact that it's an online thing is neither here nor there." The "only mystery" is why the Supreme Court decided to accept the case.

Kinney and his lawyers argue, essentially, that times have changed.

"Now, all it takes is a few minutes and a computer or cellphone and defamatory content is available everywhere for all time," Martin Siegel, Kinney's appellate attorney, told the Texas Tribune. "We think these technological developments call for re-evaluating the traditional rule."

If the Texas Supreme Court rules in Kinney's favor, the implications would be both far-reaching and disastrous, Anderson said. He declined to speculate on what form the disaster would take, but it's not too much of a stretch to imagine that the threat of losing a lawsuit could affect how websites, from obscure legal-search sites like Barnes' to Facebook and Twitter, handle user-generated content.

Not everyone agrees that stemming the flow of online vitriol is such a bad thing. The difficulty of cracking down on things like revenge porn and cyber-bullying is often cited as an example of why things need to change, and the supreme courts in a handful of states (California, Kentucky, Ohio, Georgia, and Minnesota) have ruled that courts can prevent speech after it has been ruled defamatory.

Nate Cardozo, an attorney with the California-based Electronic Frontiers Foundation, calls those cases "outliers" and says it's unlikely that Texas will take the same stance.

"Courts since even before the founding of this nation and the ratification of the First Amendment have been extraordinarily hesitant to issue restraints regarding speech. ... In our legal tradition the remedy for defamation is damages. If I have injured you by my speech, your recourse is to remedy that injury [by seeking compensation], not getting rid of the speech."

If the Texas Supreme Court does rule in Kinney's favor and forces Barnes' posts to come down, Cardozo expects the case would go to the U.S. Supreme Court.

"Until we have the Supreme Court's views on the subject, I think we need to continue to hold to traditional view of the First Amendment that prevents prior restraints on speech."

Send your story tips to the author, Eric Nicholson.