© 2014 The Texas Lawbook.
By Natalie Posgate – (August 29) – In a potentially landmark decision, the Supreme Court of Texas ruled Friday that removing speech from the Internet that has been legally determined defamatory does not enjoin future speech, thus is not an unconstitutional prior restraint.
The opinion by the Texas high court reverses lower courts’ rulings on this issue, but it did uphold the idea that a permanent injunction prohibiting future speech that has been legally declared defamatory does cause unconstitutional prior restraint that would risk censoring constitutionally protected speech.
Friday’s opinion reinstates a lawsuit by a man who claims his former employer posted defamatory statements about him on the Internet.
The plaintiff, Robert Kinney, filed suit in Travis County requesting a permanent injunction after a trial on the merits, but did not seek monetary damages for the alleged defamatory statements. The court granted a summary judgment motion in favor of the defendant, Andrew Barnes, who is the president of California-based BCG Attorney Search, Inc. The court of appeals affirmed Travis County’s judgment.
Lawyers who argued before the Texas Supreme Court agreed that today’s opinion is significant, but for different reasons.
“Up until now, the rule has been pretty ironclad that the only thing [one could recover] for defamation was damages,” said Houston appellate lawyer Martin Siegel, who argued on behalf of Kinney. “Now the court says that someone who has been defamed can get an injunction removing a post that’s been found to be defamatory.”
Dallas attorney Anthony Ricciardelli of Brown Fox Kizzia & Johnson, who argued for Barnes, said the opinion is “unfortunately” very groundbreaking, but was pleased that the court at least made a narrow ruling that did not allow injunctions on future speech.
“It reverses almost a century of settled precedent that speech cannot be enjoined,” he said. “This opinion is going to make it easier for someone who does not like what someone else said about them on the Internet or other forum to force that person to essentially take back their statement. I think it’s going to lead to an increase in defamation litigation and an erosion of free speech rights.”
Kinney was a legal recruiter at BCG until 2004, when he left and started a competing firm, the opinion says. Several years later, Barnes posted a statement on two websites he owns that implied Kinney had a kickback scheme during his time with BCG in which he attempted to pay an associate from Preston, Gates and Ellis (now K&L Gates) under the table to hire one of his candidates.
Click here to read Justice Debra Lehrmann’s 24-page opinion.
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