FILED
13-0882
6/23/2014 7:05:46 PM
tex-1622200
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
NO. 13-0882
IN THE SUPREME COURT OF TEXAS
Service Employees International Union Local 5,
Dan Schlademan, and Susan Strubbe,
Petitioners,
v.
Professional Janitorial Service of Houston, Inc.,
Respondent.
On Review from the First Court of Appeals
Houston, Texas
Amicus Curiae Brief in Support of Petitioners by
SCOTUSblog Delaware, Inc. (SCOTUSblog), Don Cruse
(Supreme Court of Texas Blog), Howard J. Bashman
(How Appealing), Glenn H. Reynolds (Instapundit),
and Steven F. Hayward, John H. Hinderaker, and
Scott W. Johnson (Power Line)
Eugene Volokh
(Admitted Pro Hac Vice)
UCLA School of Law
First Amendment
Amicus Brief Clinic
405 Hilgard Ave.
Los Angeles, CA 90095
[email protected]
(310) 206-3926
J. Campbell Barker
State Bar No. 24049125
Yetter Coleman LLP
909 Fannin Suite 3600
Houston, TX 77010
[email protected]
(713) 632-8016
Counsel for Amici Curiae
IDENTITY OF PARTIES AND COUNSEL
Petitioners’ Brief on the Merits correctly identifies the parties and
their counsel.
The amici curiae on whose behalf this brief is filed are SCOTUSblog
Delaware, Inc., Don Cruse, Howard J. Bashman, Glenn H. Reynolds,
Steven F. Hayward, John H. Hinderaker, and Scott W. Johnson.
The counsel for these amici curiae are:
J. Campbell Barker
State Bar No. 24049125
Yetter Coleman LLP
909 Fannin, Suite 3600
Houston, TX 77010
[email protected]
(713) 632-8016
Eugene Volokh
(Admitted Pro Hac Vice)
UCLA School of Law
First Amendment
Amicus Brief Clinic
405 Hilgard Ave.
Los Angeles, CA 90095
[email protected]
(310) 206-3926
Counsel would like to thank UCLA School of Law students Nathaniel
Barrett, Mairead Dolan, Garry Padrta, and Scott Sia for their assistance on this brief.
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................... i
INDEX OF AUTHORITIES ....................................................................iii
INTEREST OF AMICI CURIAE ............................................................... 1 SUMMARY OF THE ARGUMENT ........................................................... 3 ARGUMENT ............................................................................................... 5 I. This Court Should Read “Media” in § 51.014(a)(6) as
Following the Definition of “Medium” in § 22.021(3) ............... 5 A. Applying the § 22.021(3) definition is consistent
with the Legislature’s judgment about what
“electronic media” means ................................................. 5 B. The proposed reading of “media” will serve the
policy animating § 51.014(a)(6) ...................................... 10 II. The Multi-Factor “Primary Business” Test Adopted by
the Court Below Is Too Ill-Defined To Be Practically
Usable, and Considers Factors That Ought Not Be Used ..... 14 III. The Alternative Test Set Forth by the Second Court of
Appeals Is Likewise Inferior to the § 22.021(3) Test ............. 19 CONCLUSION ......................................................................................... 21
CERTIFICATE OF COMPLIANCE ........................................................ 23
CERTIFICATE OF SERVICE.................................................................. 24
ii
INDEX OF AUTHORITIES
Cases Allen Sales & Servicenter, Inc. v. Ryan,
525 S.W.2d 863 (Tex. 1975) ..................................................................... 5
Brown v. Darden,
50 S.W.2d 261 (Tex. 1932) ....................................................................... 5
Fitzmaurice v. Jones,
417 S.W.3d 627 (Tex. App.—Houston [14th Dist.] 2013) ....................... 9
Grant v. Wood,
916 S.W.2d 42 (Tex. App.—Houston [1st Dist.] 1995, no
writ) ........................................................................................................ 10
Hotze v. Miller,
361 S.W.3d 707 (Tex. App.—Tyler 2012, pet. denied).................... 20, 21
Kaufman v. Islamic Soc’y of Arlington,
291 S.W.3d 130 (Tex. App.—Fort Worth 2009, pet. denied) ...... 8, 10, 19
Mason v. Glickman,
408 S.W.3d 691 (Tex. App.—Dallas 2013) .............................................. 9
Melendez v. Houston Indep. Sch. Dist.,
418 S.W.3d 701 (Tex. App.—Houston [14th Dist.] 2013) ....................... 9
O’Grady v. Superior Court,
44 Cal. Rptr. 3d 72 (Cal. Ct. App. 2006) ................................... 6, 7, 8, 20
Tex. Bank & Trust Co. v. Austin,
280 S.W. 161 (Tex. 1926) ......................................................................... 5
Too Much Media, LLC v. Hale,
206 N.J. 209 (2011) .............................................................................. 7, 8
iii
Whisenhunt v. Lippincott,
416 S.W.3d 689 (Tex. App.—Texarkana 2013, pet. filed) ...................... 9
Statutes 2 U.S.C. § 431(9)(B)(i)................................................................................. 7
Tex. Civ. Prac. & Rem. Code § 22.021(3). ........................................ passim
Tex. Civ. Prac. & Rem. Code § 51.014(a)(6) .................................... passim
Articles
About Us, The Crisis,
http://www.thecrisismagazine.com/about.html .................................... 13
Federal Election Commission, Advisory Opinion 2005-16
(Nov. 18, 2005), 2005 WL 3143734 ..................................................... 7, 8
Karla Kelling Sclater, The Labor and Radical Press 1820 –
the Present, Labor Press Project, http://depts.washington.
edu/labhist/laborpress/Kelling.shtml (last visited Oct. 23,
2013) ....................................................................................................... 12
Katharine Q. Seelye, Blogger Is Surprised by Uproar Over
Obama Story, but Not Bitter, N.Y. Times (Apr. 14, 2008),
http://www.nytimes.com/2008/04/14/us/politics/14webseelye.html ............................................................................................. 11
Martin M. Perline, The Trade Union Press: An Historical
Analysis, 10 Labor Hist. 107 (1969), available at
http://www.tandfonline.com/doi/abs/
10.1080/00236566908584071#.UoETEnCsh8E .................................... 12
iv
Oliver Burkeman, Bloggers Catch What Washington Post
Missed, Guardian (Dec. 20, 2002, 7:37 PM),
http://www.theguardian.com/technology/2002/dec/
21/internetnews.usnews ........................................................................ 12
Twitter 1, CNN 0, Economist (Jun. 18, 2009), http://www.
economist.com/node/13856224 .............................................................. 11
v
INTEREST OF AMICI CURIAE
SCOTUSblog Delaware, Inc., operates SCOTUSblog, a Web site
devoted to comprehensive coverage of the Supreme Court of the United
States. In 2013, SCOTUSblog won the Peabody Award, the National
Press Club Award, and the Sigma Delta Chi (Society of Professional
Journalists) Award. The business of SCOTUSblog Delaware, Inc., is
limited to publishing the SCOTUSblog site. Nonetheless, many of the
individual authors who write for SCOTUSblog are lawyers, who spend
most of their time practicing law; this was even more so earlier in
SCOTUSblog’s history.
Don Cruse is a lawyer who authors the Supreme Court of Texas Blog,
providing opinion summaries, practice notes, and coverage of Texas
judicial elections. The blog also tracks judicial voting patterns and the
status of each petition filed in the Court.
Howard J. Bashman is a lawyer who authors How Appealing, a
prominent blog devoted to appellate litigation.
Glenn H. Reynolds is a law professor who authors Instapundit, a
popular legal and political news blog founded in 2001.
1
John Hinderaker, Scott Johnson, and Steven Hayward are two
lawyers and a professor who are proprietors and three of the four
coauthors of Power Line, a Web site that has published daily news and
commentary since 2002. Power Line has broken nationally significant
news stories, such as the fact that the documents featured in a 2004
Dan Rather 60 Minutes story about then-President Bush were forgeries.
The individual amici bloggers, and many of the authors who write for
SCOTUSblog, share a common interest as distributors of information
and opinion whose primary line of business is something other than
such distribution. Amici’s blogs are read throughout the country, including in Texas. The Supreme Court of Texas Blog is focused on Texas, and
the others sometimes comment on events or cases in Texas. As a result,
amici might in the future be sued in Texas courts, so their rights are
cast in doubt by the Texas courts’ varied approaches to determining
who is considered a member of the electronic media. And beyond this,
amici believe that their perspectives as publishers who are not primarily in the business of publishing can be helpful in analyzing the rights of
other such publishers, including ones that operate primarily in Texas.
No fees were paid in connection with the preparation of this brief.
2
SUMMARY OF THE ARGUMENT
The court of appeals defined “member of the electronic or print media” for purposes of § 51.014(a)(6) narrowly, to cover only people or organizations whose “primary business is reporting the news.” This definition would exclude a broad range of publications, past and present,
including advocacy-group and religious-group magazines—such as the
NRA’s American Rifleman, the Sierra Club’s Sierra, the Knights of
Columbus’ Columbia, the United Methodist Church’s Newscope, the
Roman Catholic Diocese of Oakland’s The Catholic Voice, and the
Southern Christian Leadership Conference’s SCLC Magazine—and
including blogs such as those published by amici.
The Texas Legislature, however, has already considered what should
qualify as a “medium” for purposes of statutorily provided speech protection. The journalist-privilege statute, Tex. Civ. Prac. & Rem. Code
§ 22.021, makes clear that “news medium” is a broad term, encompassing, among other things, “a newspaper, magazine or periodical, . . . that
disseminates news or information to the public by any means, including . . . electronic; and . . . other means, known or unknown, that are accessible to the public.” Tex. Civ. Prac. & Rem. Code § 22.021(3). The
3
standalone term “medium,” unqualified by “news,” would therefore
mean newspapers, magazines, or periodicals that disseminate news,
opinion, and other information to the public by any means.
Private letters and e-mails, and other communications between
neighbors, employers, business partners, and others—which make up
the majority of reported Texas defamation decisions—would not qualify
as “media” speech. But, as cases from other jurisdictions interpreting
similar statutes hold, publications on regularly updated Web sites
aimed at the general public, such as the SEIU site in this case, qualify.
Applying the § 22.021(3) definition in § 51.014(a)(6) would therefore
be consistent with the Legislature’s understanding of the meaning of
“medium.” And applying this definition would serve the policy objectives behind § 51.014(a)(6). This exception to the ban on interlocutory
appeals was meant to protect free-speech values, by giving media defendants who have a sound legal defense an opportunity to avoid the
time, expense, and risk of a trial. Publishers whose primary business is
something other than journalism may especially need this protection,
because they may lack the libel insurance or the deep pockets of major
news publishers.
4
ARGUMENT
I.
This Court Should Read “Media” in § 51.014(a)(6) as Following the Definition of “Medium” in § 22.021(3)
A.
Applying the § 22.021(3) definition is consistent with the
Legislature’s judgment about what “electronic media”
means
The Texas Legislature has already considered what the term “electronic media” should mean. As this Court has long recognized, the plain
meaning of an undefined term can be inferred from how similar terms
are used in other statutes.1 And the Texas journalist-privilege statute
defines “news medium” to encompass, among other things, “a newspaper, magazine or periodical, . . . that disseminates news or information
to the public by any means, including . . . electronic; and . . . other
means, known or unknown, that are accessible to the public.” Tex. Civ.
Prac. & Rem. Code § 22.021(3).
This definition of “news medium” covers opinion as well as fact.
Many “magazine[s]” have traditionally been publications of opinion; “in-
See Brown v. Darden, 50 S.W.2d 261, 263 (Tex. 1932); Tex. Bank &
Trust Co. v. Austin, 280 S.W. 161, 162 (Tex. 1926). When discerning the
meaning of a term in a statute, a court must presume that the Legislature acted “with full knowledge of the existing condition of the law,” including how terms were used in similar portions of the Texas Code. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex. 1975).
1
5
formation” is broad enough to cover opinion; and even “news” may include analysis as well as straight factual reporting. But in any event,
when the definition of “news medium” in § 22.021(3) is used as a source
for defining the stand-alone term “media” in § 51.014(a)(6), any possible
limitation to “news” would be removed. The borrowed definition would
thus be, “a newspaper, magazine or periodical, . . . that disseminates
[news, opinion, or information] to the public by any means, including . . .
electronic . . . and . . . other means.”
Similar definitions of “media” are present in other state and federal
statutes, and a body of law has emerged interpreting “magazine” and
“periodical” in such provisions. For example, in O’Grady v. Superior
Court, 44 Cal. Rptr. 3d 72 (Cal. Ct. App. 2006), the California Court of
Appeal held that a Web site published by a computer enthusiast qualified as “a newspaper, magazine, or other periodical publication” for
purposes of the state journalist’s privilege. Id. at 99. “[P]eriodical publication,” the court recognized, included “all ongoing, recurring news publications,” id. at 104, whether online or offline. And online publications
could also be treated as “magazine[s],” because “[t]he term ‘magazine’ is
6
now widely used in reference to Web sites or other digital publications.”
Id. at 100.
Nothing in the decision suggests that it mattered whether the Web
site was the primary business of the authors who wrote for it, rather
than just a sideline, or whether the authors had backgrounds in professional journalism. And O’Grady has also been endorsed by the New
Jersey Supreme Court in Too Much Media, LLC v. Hale, 206 N.J. 209,
236 (2011); the New Jersey court favorably cited O’Grady’s conclusion
that certain “online sites” could qualify as “magazine[s].”
Similarly, in the Federal Election Commission’s Advisory Opinion
2005-16 (Nov. 18, 2005), 2005 WL 3143734, the Commission determined
that a Web site cofounded by a former U.S. Senator, the Senator’s
former chief of staff, and a computer consultant qualified for the federal
campaign finance law exception for “newspaper[s], magazine[s], or other
periodical publication[s],” 2 U.S.C. § 431(9)(B)(i). That the Web site provided information to readers through the site’s commentary on other
news stories, and through some original reporting, sufficed to make it
“the online equivalent of a newspaper, magazine, or other periodical
publication.” Adv. Op. 2005-16, at 4. Again the decision did not inquire
7
whether the Web site was its operators’ primary business, or whether
its founders had a professional journalism background.
Finally, in Kaufman v. Islamic Society of Arlington, 291 S.W.3d 130
(Tex. App.—Fort Worth 2009, pet. denied), the Second Court of Appeals
did exactly what we urge—it looked to the § 22.021(3) definition of medium in interpreting § 51.014(a)(6), concluding that a publication that
qualified as a “news medium” for purposes of § 22.021(3) therefore qualified as “media” under § 51.014(a)(6). Id. at 142. As Part III will argue
below, the specific approach proposed in Kaufman lacked the clarity
needed for uniform, predictable enforcement. But Kaufman was correct
in following § 22.021(3), and in not requiring that the website be its authors’ primary business.2
While this definition of “media” covers a broad range of speakers, it
still serves the limiting function that the Legislature intended. As Too
Much Media and O’Grady make clear, people who simply post occasional comments to others’ blog posts are not themselves publishers or
A different portion of § 22.021, § 22.021(2), limits the journalist’s
privilege to people who write for financial gain. But that comes in the
definition of the separate term “journalist,” which does not appear in
§ 51.014(a)(6). The definition of “medium” in § 22.021—the only definition relevant to interpreting § 51.014(a)(6)—lacks any such limitation to
financially motivated authors.
2
8
coauthors of an electronic magazine or periodical. O’Grady, 44 Cal.
Rptr. 3d at 100; Too Much Media, 206 N.J. at 235. Likewise, people who
communicate privately to employers, employees, business partners,
family members, and the like would not be treated as “media,” since
their communications would not involve “disseminat[ing] . . . information to the public by . . . means . . . that are accessible to the public,”
§ 22.021(3) (emphasis added). Indeed, a Westlaw search for “synopsis(libel slander defamation) & date(= 2013)” in the TX-CS database reveals that at least 60% of the 28 opinions returned by the query (not
counting the opinion below) came in cases involving what appeared to
be nonmedia defendants.3
See, e.g., Melendez v. Houston Indep. School Dist., 418 S.W.3d 701,
710-11 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (alleged slander
and libel of employee by employer, in statements to coworkers); Fitzmaurice v. Jones, 417 S.W.3d 627, 629 (Tex. App.—Houston [14th Dist.]
2013) (alleged libel of advocacy group president by homeowners’ association, in pleadings filed by the association); Whisenhunt v. Lippincott,
416 S.W.3d 689, 692 (Tex. App.—Texarkana 2013, pet. filed) (alleged libel of professional by company with which plaintiff had had a contract,
in internal e-mails among the company’s employees); Mason v. Glickman, 408 S.W.3d 691, 693 (Tex. App.—Dallas 2013, no pet.) (alleged
defamation of congregant by rabbi, in rabbi’s report to police of alleged
child abuse by congregant).
3
9
B.
The proposed reading of “media” will serve the policy
animating § 51.014(a)(6)
Section 51.014(a)(6) allows for quick resolution of claims “to save the
time and expense of a trial on the merits when the media may be entitled to a constitutional or statutory privilege.” Grant v. Wood, 916
S.W.2d 42, 46 (Tex. App.—Houston [1st Dist.] 1995, no writ); see also
Kaufman, 291 S.W.3d at 142 (“[P]ermitting Kaufman to challenge the
trial court’s denial of his summary judgment motion through this interlocutory appeal promotes one of the objectives of section 51.014(a)(6)—it
allows us to consider and sort out appellees’ defamation claims before
this case enters the time-consuming and expensive trial phase.”). The
adoption of too narrow a definition of “member of the print or electronic
media” contradicts this policy.
Refusing to apply § 51.014(a)(6) to those who publish as a sideline to
their day jobs, or to small nonprofits that publish as an adjunct to their
main ideological missions, strips protection from those who need it
most. These speakers are especially likely to have limited funds and to
lack libel insurance. Moreover, because publishing is a secondary occupation for them, they may be less inclined to spend their life’s savings
(or their donors’ contributions) defending libel cases at trial. Knowing
10
this, these smaller speakers may be less willing to publish hard-hitting
stories that risk drawing the ire of well-funded plaintiffs, even if the
speakers are confident that they would be vindicated after a long and
expensive trial.
And such publishers that do not have publishing as their “primary
business” have long played a vital role in the dissemination of important information. Consider the Summer 2009 Iranian protests: while
CNN and other cable news outlets were slow to pick up the story, “Twitter and YouTube carried a stream of reports, pictures and film from
Iran’s streets.” Twitter 1, CNN 0, Economist (June 18, 2009),
http://www.economist.com/node/13856224.
Similarly, during the 2008 presidential campaign, it was a blogger
who broke the story that Barack Obama had told a private fundraising
party in San Francisco that small-town voters bitter over their economic
circumstances “cling to guns or religion or antipathy to people who
aren’t like them”—a quote that generated enormous controversy.
Katharine Q. Seelye, Blogger Is Surprised by Uproar Over Obama Story, but Not Bitter, N.Y. Times (Apr. 14, 2008), http://www.nytimes.com/
2008/04/14/us/politics/14web-seelye.html.
11
Likewise, when Senator Trent Lott stated his approval of Strom
Thurmond’s 1948 presidential candidacy—in which Thurmond ran on
the Dixiecrat pro-segregation ticket—at Thurmond’s 100th birthday
party in 2002, the mainstream media was largely silent. See Oliver
Burkeman, Bloggers Catch What Washington Post Missed, Guardian
(Dec. 20, 2002, 7:37 PM), http://www.theguardian.com/technology/2002/
dec/21/internetnews.usnews. But many bloggers insisted that Senator
Lott should be forced to resign as Senate Majority Leader, and were ultimately successful. See id.
And there is nothing new about entities being parts of the “media”
even though publishing is not their primary business. Labor unions, for
example, published many newspapers and magazines as adjunct to
their main ideological missions in the late 1800s and early 1900s.4 Indeed, Eugene V. Debs, a prominent early 1900s Socialist Party presi-
Karla Kelling Sclater, The Labor and Radical Press 1820 – the
Present, Labor Press Project, http://depts.washington.edu/labhist/
laborpress/Kelling.shtml (last visited Oct. 23, 2013); Martin M. Perline,
The Trade Union Press: An Historical Analysis, 10 Labor Hist. 107
(1969),
available
at
http://www.tandfonline.com/doi/abs/10.1080/
00236566908584071#.UoETEnCsh8E.
4
12
dential candidate, started his political career as the editor of one such
magazine.5
Likewise, in 1910 the NAACP—recognizing that spreading its message to the public was an important aspect of its political role—began to
publish the magazine The Crisis, which became a leading voice for civil
rights.
About
Us,
The
Crisis,
http://www.thecrisismagazine.com/
about.html. Today, magazines and newspapers such as the NRA’s
American Rifleman, the Sierra Club’s Sierra, the Knights of Columbus’
Columbia, the United Methodist Church’s Newscope, the Roman Catholic Diocese of Oakland’s The Catholic Voice, and the Southern Christian
Leadership Conference’s SCLC Magazine follow this tradition.
And, naturally, the advocacy organizations that published (or still
publish) print magazines have likewise begun to publish in the much
more cost-effective medium of the Internet. This change in form does
not alter the fact that these authors are rightly seen as entities within
the “print or electronic media.” Adopting § 22.021(3)’s definition of “medium” would protect these historic and important publications. The nar-
J. Robert Constantine, Eugene V. Debs: An American Paradox,
Monthly Labor Review (Aug. 1991), available at http://www.bls.gov/
opub/mlr/1991/08/art4full.pdf.
5
13
row definition used by the court below jeopardizes them.
II.
The Multi-Factor “Primary Business” Test Adopted by the
Court Below Is Too Ill-Defined To Be Practically Usable,
and Considers Factors That Ought Not Be Used
So the “primary business” test adopted by the court below is incon-
sistent with the Legislature’s understanding of the term “media” (see
Part I.A, supra) and would strip protection from a vast range of publications that have long been properly seen as media (see Part I.B, supra).
But the “primary business” test would also be unpredictable, to the
point that it would undermine the judicial efficiency interests that animate § 51.014(a) more broadly.
The court below acknowledged that it “may be difficult to ascertain a
person’s or entity’s primary business,” and concluded that the decision
must be based on:
(1) “the goods and services offered by the Internet author and the
sources of the Internet author’s revenue”;
(2) “the Internet author’s journalistic background, experience, and
independence (inquiring whether the author is a journalist by
trade, education, or experience; whether the author is a member
of various journalistic organizations; and whether the author is
14
reporting information on which he or she has a business, as opposed to news-reporting, interest)”;
(3) “the extent to which the Internet author has an established presence or reputation in traditional media”;
(4) “the character and content of the Internet author’s communications and range of reporting (inquiring about the primary purpose of the internet communication; whether the communication
involves matters of public concern; and the breadth of its coverage)”;
(5) “the editorial process (inquiring whether journalists select the
stories to be researched and published on the website, whether
the selection of stories was driven by their newsworthiness or
other factors; and whether journalists supervise the research and
act as the primary authors or editors of the website content)”;
and
(6) “the size, nature, and diversity of the readership and whether the
readership relies on the author to obtain news.”
Serv. Emps. Int’l Union Local 5 v. Prof’l Janitorial Serv. of Houston,
Inc., 415 S.W.3d 387, 399 (Tex. App.—Houston 2013, pet. filed). “No one
15
fact is dispositive; rather, the inquiry should focus on the totality of the
circumstances.” Id. The court also added a seventh factor (or perhaps a
spin on one or more of the earlier factors), which is whether the speaker
is “objective or neutral in their viewpoints,” id., or instead “aims to incite action or to sway public opinion,” id. at 401.
Such multifactor balancing tests often yield unpredictable results;
but they are especially unpredictable when many of the individual factors are themselves as vague as the ones here. For instance, how much
“journalistic background” and “experience” suffices under this test?
(Some of the authors of SEIU’s web site, for instance, were experienced
journalists, id. at 393, but the court below seemed to think this was not
enough.) Just how well-“established” should an author’s “presence or
reputation in traditional media” be? What qualifies as sufficient
“breadth” of coverage? How large must the “size” of the readership be,
what sort of “nature” would qualify the site for protection, and how “divers[e]” (and along what dimensions) must the readers be?
The point of § 51.014(a) is to save judicial resources, by generally
preventing unnecessary interlocutory appeals but allowing them in a
specific set of cases in which early appellate adjudication would be espe-
16
cially helpful. To serve this goal, the exceptions have to be clearly defined.
Without a clear rule, defendants will have an incentive to file interlocutory appeals in the hope that their appeals will be allowed, thus delaying litigation even in instances where an appeal ends up being rejected. And without a clear rule, many speakers contemplating the risk
of litigation will not have the assurance of prompt judicial resolution
that § 51.014(a)(6) aims to provide. Yet the court of appeals decision offers uncertainty instead of clarity.
And beyond this, many of the factors that make up the court of
appeals’ rule are substantively unsound. For instance, it should not
matter whether the publishers have “journalistic background [and] experience,” id. at 399. People whose prior jobs involved professional journalism have no monopoly on informing the public. If an activist, labor
organizer, lawyer, or academic has something to add to the debate, that
speech should be evaluated on its merits, not based on the author’s
résumé. Likewise, a person should not lose § 51.014(a)(6) protection for
choosing not to associate with “various journalistic organizations,” id.
17
Nor should it matter whether the readership is vast or more modest:
small local news websites can be more valuable than national sites to
citizens interested in local news and opinion about local news. Likewise,
it should not matter whether the readership is “divers[e]”; electronic
magazines and other periodicals addressed to a particular profession,
for instance, may have a homogeneous readership but may provide important commentary and analysis for those readers. (How Appealing,
SCOTUSblog, and the Supreme Court of Texas Blog, for instance, reach
relatively homogeneous audiences of lawyers, but are important news
and analysis sources to those audiences.)
Finally, it should not matter whether the speaker “aims to incite
action or to sway public opinion,” id. at 401, as is done by many speakers, including the NAACP, NRA, the Sierra Club, National Right to
Work, Power Line, and Instapundit. While in recent decades the specific
medium of daily newspapers has generally purported to aim at objectivity, for much of the nation’s history newspapers were highly opinionated. And beyond that, magazines, which are indubitably “media,” have
long included opinionated publications, such as National Review, The
18
New Republic, and The Nation. The court of appeals’ “primary business
test” is thus both unduly vague and unduly narrow.
III. The Alternative Test Set Forth by the Second Court of Appeals Is Likewise Inferior to the § 22.021(3) Test
Kaufman v. Islamic Society of Arlington, 291 S.W.3d 130, 142 (Tex.
App.—Fort Worth 2009, pet. denied), also tried to define “media” in
§ 51.014(a)(6). Kaufman’s interpretation is not as flawed as the “primary business” interpretation adopted by the court below. Nonetheless, it
would be better to simply adopt the § 22.021(3) definition—which extends protection to electronic magazines and periodicals—coupled with
the caselaw interpreting the terms “magazines” and “periodicals.”
Kaufman concluded that § 51.014(a)(6) applies
when [a] person’s communication, under circumstances relating to
the character and text of the communication itself, its editorial
process, its volume of dissemination, the communicator’s extrinsic
notoriety unconnected to the communication, the communicator’s
compensation for or professional relationship to making the
communication, and other relevant circumstances as the facts
may dictate, would otherwise qualify as a communication covered
by that section through more traditional electronic or print media.
Kaufman, 291 S.W.3d at 142. Unlike the test set forth by the court of
appeals in this case, the Kaufman test does not require that the publication be the speaker’s “primary business.” Indeed, SEIU would likely
19
have prevailed under the Kaufman test.
While the Kaufman test is better than the “primary business test,” it
is too vague to be uniformly and predictably applied. It does not explain,
for instance, how high the “volume of dissemination” must be, how
much the communicator must be compensated, what counts as an acceptable “character and text of the communication,” how much “extrinsic notoriety” the speaker must have, or what are the “other relevant
circumstances as the facts may dictate.” To be sure, the Second Court of
Appeals seemed to be moving toward a definition much like the one
amici propose, and indeed cites § 22.021(3) as an authority. But simply
asking whether the online site is a “magazine” or “periodical” aimed at
the “public,” and using a definition such as that given by O’Grady—
whether the site involves an “ongoing, recurring” publication—should
offer a clearer standard.
Finally, note that Hotze v. Miller, 361 S.W.3d 707 (Tex. App.—Tyler
2012, pet. denied), the one other case that considered what “media” under § 51.014(a)(6) covers, did not articulate a test at all, but simply concluded that the particular speaker in that case was a member of the
“media.” Hotze was a physician by profession, but had also “been a po-
20
litical writer and journalist for thirty years”—apparently as a sideline
to his main profession—had “editorials . . . published in a weekly newspaper,” “host[ed] two websites that also publish his articles,” and “ha[d]
hosted a radio broadcast,” id. at 711-12. This, the court concluded, was
“sufficient to show that Hotze is a media defendant.” Id. at 712. But the
court did not go further to elaborate any test for what would constitute
“media.”
CONCLUSION
Amici ask that this Court interpret “media” under § 51.014(a)(6) by
borrowing the definition of “media” set forth in § 22.021(3). Such a decision would provide § 51.014(a)(6) protection to the many speakers who
publish ongoing, recurring publications, but who are not in the “primary
business” of creating such publications—including the SEIU, other advocacy groups, religious groups, and amici curiae.
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Respectfully submitted,
/s/ J. Campbell Barker
J. Campbell Barker
State Bar No. 24049125
Yetter Coleman LLP
909 Fannin, Suite 3600
Houston, TX 77010
[email protected]
(713) 632-8016
Counsel for Amici Curiae
Eugene Volokh
(Admitted Pro Hac Vice)
UCLA School of Law
First Amendment
Amicus Brief Clinic
405 Hilgard Ave.
Los Angeles, CA 90095
[email protected]
(310) 206-3926
22
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation of
Texas Rules of Appellate Procedure 9.4(i)(2)(B) & 11(a) because it contains 3,756 words, excluding the parts of the brief exempted by Texas
Rule of Appellate Procedure 9.4(i)(1).
/s/ J. Campbell Barker
J. Campbell Barker
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CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d),
and (e), I certify that, on June 23, 2014, I have served this document on
all counsel listed below, via the Court’s electronic-filing system:
Robert M. “Randy” Roach, Jr.
Amy J. Schumacher
Roach & Newton, L.L.P.
1111 Bagby Street, Suite 2650
Houston, TX 77002
[email protected]
[email protected]
G. Mark Jodon
Timothy A. Rybacki
Littler Mendelson, P.C.
1301 McKinney, Suite 1900
Houston, TX 77010
[email protected]
[email protected]
Philip Durst
B. Craig Deats
Deats Durst Owen & Levy, P.L.L.C.
1204 San Antonio Street, Suite 203
Austin, TX 78701
[email protected]
[email protected]
Counsel for Respondent
Counsel for Petitioners
/s/ J. Campbell Barker
J. Campbell Barker
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