tjb-seal-144Back in late 2015, I wrote a five-part series on the Expanding Scope of the TCPA or Texas’ Anti-SLAPP law. The Supreme Court of Texas confirmed our analysis last week with its decision in the ExxonMobil v. Coleman confirming that Anti-SLAPP protections can and do apply to internal corporate communications when there is a defamation claim.

ANTI-SLAPP 101

The Texas Anti-SLAPP law is known as the Texas Citizens Participation Act (the “TCPA” found at Tex. Civ. Prac. & Rem. Code at § 27.001, et seq.).

“If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.”  Id. at 27.003(a).   A defendant invoking the TCPA must therefore show three elements by a preponderance of the evidence: (1) there is a legal action; (2) “based on, relates to, or is in response to”; and (3) one of the protected activities.

“[A] court shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association.”  Id. at 27.005(b).

The Dallas Court of Appeals ruled no “public concern” in internal communications

In 2015, the Dallas Court of Appeals held that the law did not apply to internal communications within a company about an employee’s performance because that was not a matter of “public concern” despite the claim by the employer (ExxonMobil) that the issues touched on matters of public safety.  See ExxonMobil v. Coleman, 2015 WL2206466 (Tex.App.—Dallas May 12, 2015).

ExxonMobil claimed that the plaintiff failed to “gauge” one of the storage tanks and after an investigation ExxonMobil terminated him.  The plaintiff denied all wrongdoing and sued ExxonMobil and the employees who participated in the investigation for publishing defamatory statements about him during the internal investigation bringing the TCPA into a typical employment dispute.

Both the trial court and the court of appeals held the TCPA did not apply and refused to dismiss the suit.  Despite the defendants’ efforts to claim it was a matter of public safety, the court found the investigation focused on job performance and not the results that could happen if the storage tanks were not properly maintained.  Therefore, the statements “involve nothing more than an internal personnel matter at Exxon” and therefore “were not a matter of public concern.”

The Texas Supreme Court says matters of public concern are matters of public concern        

Relying upon its earlier decision of Lippincott v. Wisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam), the Supreme Court of Texas ruled there is no requirement that the communications themselves have to be public.  Instead, the statute only requires that the communication be made in connection with a matter of public concern. The court wrote:

The allegations include claims that Whisenhunt “failed to provide adequate coverage for pediatric cases,” administered a “different narcotic than was ordered prior to pre-op or patient consent being completed,” falsified a scrub tech record on multiple occasions, and violated the company’s sterile protocol policy. We have previously acknowledged that the provision of medical services by a health care professional constitutes a matter of public concern. See Neely v. Wilson, 418 S.W.3d 52, 70 n.12 & 26 (Tex. 2013) (determining that the public had a right to know about a doctor’s alleged inability to practice medicine due to a mental or physical condition); see also TEX. CIV. PRAC. & REM. CODE § 27.001(7) (defining “matter of public concern” to include issues related to health or safety, community well-being, and the provision of services in the marketplace, among other things). Thus, we conclude these communications were made in connection with a matter of public concern.

In ExxonMobil v. Coleman, the Supreme Court of Texas criticized the Dallas Court for suggesting that the communications at issue had to involve more than a “tangential relationship” to matters of public concern. Not finding that required by the statute which expressly states that the communications have to be made “in connection with” or about “an issue related to” safety, the court held the TCPA applied. As a result, the case was sent back to see whether the plaintiff Coleman met his burden of establishing clear and specific evidence for each essential element of his claim.

Plead defamation with care

If you add a defamation claim to your case, do so with caution. Regardless of who sees the alleged defamatory statement, if the defendant can make an argument that the alleged statement was made “in connection with” or about “an issue related to”  a public concern, you will likely face a Motion to Dismiss.  It automatically stays discovery, gives the defendant an automatic right to appeal and if a defendant prevails on a motion to dismiss, Texas courts are required to award the defendant “(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.”  Id. at 27.009(a).

I have been watching the events at my alma mater that led to the resignation of MU System President Tim Wolfe and Chancellor R. Bowen Loftin from afar. While I had heard inklings of discontent, I had no idea it was at this point until the football team got involved.

73741_1401374325373_749181_nOn many levels, I am trying my best to understand all the nuance involved, but am having difficulty. I haven’t been back to campus for five years to, of course, watch a football game.

Do I believe there is racism in Columbia, Missouri? Probably. Just like there probably is anywhere else in society. As a white male, I am probably not in a position to fully understand.

From the published reports, the protesters’ complaints appear to be isolated events that were handled poorly by the school administration or without enough concern. Part of the students’ concerns centered on how their protest at the Homecoming Parade was handled which you can watch here.  Things also did not go well when Wolfe was confronted in Kansas City a few weeks later.

Another complaint centers on racist taunts by unknown passersby to the African American young man who was elected student body president and homecoming king. Painting an entire school as racist, a school that elects a gay African American student to be president and homecoming king, is unfair. You can read about the events that led to the resignations here.

Should the administration have handled it better? Obviously. Letting it get to the point where the football team threatened not to play means it wasn’t handled the right way and probably left the school with few options.

Were the protestors’ demands unreasonable? Probably. Asking the system president to write a handwritten apology to the Concerned Student 1950 demonstrators and hold a press conference reading the letter while acknowledging his “white male privilege” and admitting to “gross negligence” takes away from the otherwise legitimate concerns raised. To throw in some law in the discussion, demanding racial quotas for the faculty and staff (“We demand that by the academic year 2017/2018, the University of Missouri increases the percentage of black faculty and staff campuswide to 10%) is probably unconstitutional.

One of the students then began a public hunger strike until the demands were met. Then, the football team got involved and refused to play until the hunger strike ended.  Head coach Gary Pinkel supported his players. Was this the right move? It certainly moved the needle, but I worry about whether a handful of players and then the team, as a whole, were leveraged. It is both encouraging, and somewhat alarming, to see young men take their position of prestige as SEC college football players and use it to get involved. Will this set a precedent and where is the line? Reading Tigerboard (admittedly not a place for cool-headed, well-reasoned analysis), the fan reaction was certainly mixed.

LoftinAbout 24 hours after the football team’s actions became public, the president resigned followed by the chancellor. Although the chancellor’s resignation becomes effective at the end of the year and may have had more to do with issues other than the handling the student protests. Ironically, the football team may be worse off with a new chancellor less supportive of the athletics department.

In response, Mizzou has promised to implement changes within the next 90 days which include:

  • The creation of a new position for a Chief Diversity, Inclusion and Equity Officer within the UM System which has already been filled on an interim basis
  • A review of UM System policies regarding staff and student conduct
  • Additional support for students, faculty and staff who have “experienced discrimination and disparate treatment”
  • Additional support for the hiring and retention of diverse faculty and staff
  • the creation of system-wide and campus-based diversity, inclusion and equity task forces
  • an education training program for holders of the university’s top leadership positions

Had the administration taken these steps prior to the football team’s involvement, would there have been two resignations? We may never know because we don’t know what would have happened with the hunger strike and what would the reaction have been had the administration gone 90% of the way but not conceded to all of the demands (which they could have never done). It may have gone a long way to assuage opinion of the public and maybe, more importantly, the football team.

Yes, this story does speak to better crisis communication techniques and the importance of getting in front of a controversy. The number one lesson for crisis communications is to be prepared and to have a plan. Once the controversy began, the school should have had a singular unified message.

If bombarded off campus (or even during the Homecoming Parade), the proper response would have been a polite refusal to engage at that time as it was not the appropriate time and place. There could have been a somewhat prepared “holding statement” such as “we take these issues seriously and are taking steps to ensure that every student is provided the best environment we can provide. This is not the time or place to get into the specifics, but we will be providing more details soon and invite continued discussions on the topic in the near future.” It would not have placated the protesters at the time, but it would not have added more fuel to the fire. A flagship state university is a much different animal than a private business, but the same basic tenets apply.

But, I justify this longer than usual and personal musing based on what happened next. Watch this:

As my wife gets tired of hearing, the University of Missouri is home of the best journalism school in the world. (I linked to something so it has to be true!) The student journalist handled this situation perfectly. The protestors — not so much.

Here are some basics about the First Amendment. The protesters have a right protest in the public parts of campus. And, yes, the very same First Amendment gives the journalists the right to cover the story from public property.

For the legal wonks, the Carnahan Quadrangle is very likely a limited or designated public forum being that it is on a university campus. Content-based speech restrictions are therefore subject to strict scrutiny. The school, however, can put reasonable time, place and manner restrictions as long as the restrictions serve an important governmental interest and the restrictions are narrowly tailored to serve that important governmental interest.

No one kept the protestors from doing their thing. Instead, the protestors tried to keep the media from doing theirs – covering the protest, which ironically is normally what protestors want.  It is true that journalists have no greater rights than non-journalists when it comes to accessing public property, but when you engage in a protest on public property, you can’t claim some of the public property as your own. The journalists had a right to be anywhere on the public grounds to cover the story.

The photographer handled the situation well making the Mizzou Mafia proud. You can read some perspectives of the journalists covering the story here and here.

More troubling, however, was the conduct of some of the Mizzou faculty who, in my opinion, mistreated the journalist and should have known better. For example, near the end of the video, a Mizzou professor of mass media (with the School of Communications and not the School of Journalism) tried to grab the camera and then yelled, “Who wants to help me get this reporter out of here? I need some muscle over here.” Ironically (a repeated theme to this story), this same professor had asked for media attention a few days prior. Unfortunately, this strange treatment of journalists is detracting from the protester’s efforts to further their true cause.

I don’t believe MU System President Tim Wolfe, or Chancellor R. Bowin Loftin, or Mizzou itself, is, in any way, racist. They could have handled the situation better and reacted quicker. Their downfall is a result of that failure. But, shouldn’t we hold the protesters, or at least the faculty that joins the protesters, to the same standard? The faculty member could have handled it better and, perhaps there should be some repercussions, on her end. The School of Journalism has already started distancing themselves from the faculty member and released this statement in support of the journalists. (Here’s another perspective from a law professor at Mizzou and more from one my former instructors at the J-SchoolStacey Woelfel).

The bad news is that it looks like two men who worked hard and wanted the best for the university lost their jobs. Another person who appeared to be a well-liked professor may lose hers, too. The whole thing is a circus.

The good news is the hunger strike is over, there may be some changes to redress the situation, and hopefully both the administration and the protesters can learn from this.

For the rest of us, life will go on and I will continue to support my alma mater from afar. After all, there is a football game to played on Saturday.

Update: The professor in the video has apologized and resigned from her “courtesy appointment” with the J-School.

Part 2 – In Practice

Go to Part 1 – The basics of the Texas Anti-SLAPP law.

The exercise of the right to free speech on matters of public concern

             It is easy to see how this applies to your straightforward defamation case assuming the defendant engaged in the “exercise of the right of free speech” which means “a communication made in connection with a matter of public concern.” A “matter of public concern” is an issue related to:

  • health or safety;
  • environmental, economic, or community well-being;
  • the government;
  • a public official or public figure; or
  • a good, product, or service in the marketplace.

If the defendant who has been sued can show the allegedly defamatory speech was about a “matter of public concern,” then the burden shifts to the defendant to come up clear and convincing prima facie evidence of a valid defamation claim.  A lot of the litigation concerns whether the speech is a matter of public concern and whether the plaintiffs can provide the clear and convincing evidence to avoid dismissal.

What about the right to petition and the right to association? How broad are those?

            The Act also covers the right to petition and the right to association which greatly broadens its application as courts struggle with the definitions noting that only the “exercise of free speech” is limited to “matters of public concern.”  The TCPA defines “exercise of the right of association” to mean “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.” Tex. Civ. Prac. & Rem Code § 27.001(2).  The “exercise of the right to petition” is defined with reference to a specified list of communications that have a nexus to participation in government. Id. at § 27.001(2)-(4).

Are internal emails matters of public concern and do they have to be?

            Earlier this year, the Dallas Court of Appeals held that the law did not apply to internal communications within a company about an employee’s performance because that was not a matter of public concern despite the claim by the employer (ExxonMobil) that the issues touched on matters of public safety.  See ExxonMobil v. Coleman, 2015 WL2206466 (Tex.App.—Dallas May 12, 2015), rule 53.7(f) motion granted May 29, 2015.  Of more interest is that ExxonMobil also moved to dismiss the claim because it argued it was engaged in the right of association.

            ExxonMobil claimed that the plaintiff failed to “gauge” one of the storage tanks and after an investigation ExxonMobil terminated him.  The plaintiff denied all wrongdoing and sued ExxonMobil and the employees who participated in the investigation for publishing defamatory statements about him during the internal investigation bringing the TCPA into a typical employment dispute.

            Both the trial court and the court of appeals held the TCPA did not apply and refused to dismiss the suit.  Despite the defendants’ efforts to claim it was a matter of public safety, the court found the investigation focused on job performance and not the results that could happen if the storage tanks were not properly maintained.  Therefore, the statements “involve nothing more than an internal personnel matter at Exxon” and therefore “were not a matter of public concern.”

            With regard to the right to the association, Exxon argued the communications were made between Exxon employees regarding issues in which they shared a common interest, specifically Coleman’s job performance and his compliance with the safety guidelines.  In response, the Court of Appeals wrote:

Although these commuinications seem to fall within the plain language of the Act’s definition of the exercise of the right of association, we decline to read the statute so broadly, concluding it would lead to absurd results.

Id. at *4.  The court then spent numerous pages explaining that reading the definition of the right to association in a vacuum without considering the purpose of the act would encompass any private communications between two people about any shared interest.  The court, therefore, reasoned the “public participation” had to apply to the defendant’s engagement in the right to association and the right to petition as well.

Can the right of association govern every corporate email?

            The court relied in part on the First Court of Appeals decision in See Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 216–17 (Tex.App.–Houston [1st Dist.] 2014, no pet.). In that case, the plaintiff sued her former employer for wrongful termination and sued two former coworkers for tortious interference.   449 S.W.3d at 211–12.   The coworkers moved to dismiss the claim against them under the Act, asserting the plaintiff’s lawsuit was brought in response to their exercise of the right of association.  Id. at 212.   The plaintiff filed a response, but neither side filed any affidavit evidence.   With only the pleadings to go on, the trial court denied the motion to dismiss.  Id.  The court of appeals upheld the trial court’s ruling, concluding the coworkers failed to meet their burden to show they were entitled to dismissal because the limited allegations in the plaintiff’s pleadings did not show the coworkers had a communication, acted in furtherance of a common interest, or that the claim against them is related to their exercise of the right of association.  Id. at 214–15.

            Referring to the title of the Act, the court noted that the terms “citizen” and “participation” contemplate a larger public purpose.  Id. at 216.   It further stated the plaintiff’s lawsuit did not implicate the legislature’s express declaration of the purpose behind the Act, which indicates that a nexus is required between the communication and the generally recognized parameters of First Amendment protection.  Id.  “Otherwise, any communication that is part of the decision-making process in an employment dispute—to name just one example—could be used to draw within the [Act’s] summary dismissal procedures private suits implicating only private issues.”   Cheniere Energy, 449 S.W.3d at 216–17.

            Two members of the three-judge panel concurred, writing separately to emphasize that the Act did not apply to the plaintiff’s tortious interference claim against her coworkers.  Id. at 217 (Jennings, J., concurring).   The concurrence stated that, standing alone, the Act’s definition of the “exercise of the right of association” in section 27.001(2) appears to include communications that are not constitutionally protected and do not concern citizen or public participation.  Id. at 219.   The concurrence stated that reading section 27.001(2) in isolation would lead to absurd results and would “actually thwart any meritorious lawsuit for demonstrable injury in which a plaintiff alleges that two or more persons engaged in a civil wrong involving a communication.”  Id.  At a minimum, such a reading would add unnecessary delay and expense to a plaintiff’s lawsuit.  Id.

But, the Texas Supreme Court says don’t amend the Act.

            This decision followed the Supreme Court of Texas’s opinion in Lippincott v. Whisenhunt, __ S.W.3d __, No. 13-0926, 2015 WL1967025 (Tex. April 24, 2015).  In that case, the defendants allegedly made disparaging comments about the plaintiff, who was a certified registered nurse anesthetist contracted to provide anesthesiology services, in emails internally to the company.  The allegedly defamatory emails included allegations that the plaintiff represented himself to be a doctor, endangered patients for his own financial gain, and sexually harassed employees.

            The plaintiff sued for defamation, tortious interference with existing and prospective business relations, and conspiracy to interfere in business relations.  The defendants moved to dismiss all of the claims based on the TCPA.  The trial court dismissed all of the claims except for defamation because the plaintiff was able to provide prima facie evidence of the defamation claim, but not the others.

            The court of appeals reversed and remanded holding the act does not apply to “private” communications such as internal emails thereby reviving all of the plaintiff’s claims.  The Supreme Court ruled there is no requirement that the communications themselves have to be public.  Instead, the statute only requires that the communication be made in connection with a matter of public concern.

            With regard to whether the communications involved matters of public concern, the court wrote:

The allegations include claims that Whisenhunt “failed to provide adequate coverage for pediatric cases,” administered a “different narcotic than was ordered prior to pre-op or patient consent being completed,” falsified a scrub tech record on multiple occasions, and violated the company’s sterile protocol policy. We have previously acknowledged that the provision of medical services by a health care professional constitutes a matter of public concern. See Neely v. Wilson, 418 S.W.3d 52, 70 n.12 & 26 (Tex. 2013) (determining that the public had a right to know about a doctor’s alleged inability to practice medicine due to a mental or physical condition); see also TEX. CIV. PRAC. & REM. CODE § 27.001(7) (defining “matter of public concern” to include issues related to health or safety, community well-being, and the provision of services in the marketplace, among other things). Thus, we conclude these communications were made in connection with a matter of public concern.

Id. at *2. The court concluded that because the defendant had demonstrated the applicability of the act, the court of appeals had to consider whether the plaintiffs had met his prima facie burden of proof.

            In the decision the Supreme Court of Texas said that courts should not “judicially amend” the act by adding words that are not there.  Id. at *1.  The Dallas Court of Appeals considered the instruction from the higher court, but wrote:  “Although we are aware that in Lippincott, the supreme court cautioned against “judicially amending” the Act by adding words that are not there, we agree that the legislature could not have intended for section 27.001(2) to be read in isolation.  We conclude that, to constitute an exercise of the right of association under the Act, the nature of the “communication between individuals who join together” must involve public or citizen’s participation.”  ExxonMobil, 2015 WL 2206466 at *6.

Part 3 will look at the impending Schlumberger decision.

Kate bluebonnets

It’s Spring in Texas which means one of two things – the bluebonnets are out and in odd years, our legislature is back at work.  One makes me grateful to be in Texas and the other only meets every other year.  Here are a few bills we are watching this session:

Service of Process Via Social Media- HB 241

The Legislature is making another effort on this.

The bill provides:

Sec. 17.032.  SUBSTITUTED SERVICE THROUGH SOCIAL MEDIA PRESENCE.
(a)  If substituted service of citation is authorized under the Texas Rules of Civil Procedure, the court, in accordance with the rules adopted by the supreme court under Subsection (b), may prescribe as a method of service an electronic communication sent to the defendant through a social media presence.

(b)  The supreme court shall adopt rules to provide for the substituted service of citation by an electronic communication sent to a defendant through a social media presence.

It looks like the bill stalled in committee.

Codifying a fair reporting privilege – SB 627

The Legislature continues to show its disdain for defamation suits.  This time, they are considering a bill that would codify a sometimes-recognized common law fair reporting privilege.  The privilege allows for a fair reporting of public records and allegations as long as done in good faith.  It looks like this one may become law.

The bill provides:

(b)  This section applies to:

(1)  a fair, true, and impartial account of:

(A)  a judicial proceeding, unless the court has prohibited publication of a matter because in its judgment the interests of justice demand that the matter not be published; (B)  an official proceeding, other than a judicial  proceeding, to administer the law; (C)  an executive or legislative proceeding (including a proceeding of a legislative committee), a proceeding in or before a managing board of an educational or eleemosynary institution supported from the public revenue, of the governing body of a city or town, of a county commissioners court, and of a public school board or a report of or debate and statements made in any of those proceedings; or (D)  the proceedings of a public meeting dealing with a public purpose, including statements and discussion at the meeting or other matters of public concern occurring at the meeting; [and]

(2)  publication of allegations made by a third party regarding matters of public concern, regardless of the truth or falsity of the allegations; and

(3)  reasonable and fair comment on or criticism of an official act of a public official or other matter of public concern published for general information.

(c)  This section does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case, or common law or rule provisions.

(d)  This section shall be construed liberally to effectuate its purpose and intent fully.

Civil Penalties for Frivolous Patent Claims – SB 1457

This bill also looks like it might be headed for passage.  The pertinent part of the bill states:

       Sec. 17.952.  BAD FAITH CLAIM OF PATENT INFRINGEMENT PROHIBITED.

(a)  A person may not send to an end user located or doing business in this state a written or electronic communication that is a bad faith claim of patent infringement.

(b)  A communication is a bad faith claim of patent infringement if the communication includes a claim that the end user or a person affiliated with the end user has infringed a patent and is liable for that infringement and:

(1)  the communication falsely states that the sender has filed a lawsuit in connection with the claim;

(2)  the claim is objectively baseless because:

(A)  the sender or a person the sender represents does not have a current right to license the patent to or enforce the patent against the end user; (B)  the patent has been held invalid or unenforceable in a final judgment or administrative decision; or (C)  the infringing activity alleged in the communication occurred after the patent expired; or

(3)  the communication is likely to materially mislead a reasonable end user because the communication does not contain information sufficient to inform the end user of:

(A)  the identity of the person asserting the claim; (B)  the patent that is alleged to have been infringed; and (C)  at least one product, service, or technology obtained by the end user that is alleged to infringe the patent or the activity of the end user that is alleged to infringe the patent.

The bill only allows for enforcement by the Attorney General and not private litigants.

We will keep on eye on these any other bills of note.

The Texas Court of Criminal Appeals ruled in a 8-1 decision yesterday that the “Improper Photography and Visual Recording Act” is facially unconstitutional.  The case involved a guy who allegedly took pictures of kids at a water park.  You can read more here.

Before you say, you are not a creepy person taking pictures of random kids and therefore don’t agree or don’t care, if you believe photography is art protected by the First Amendment, you should care.

The Facts of the Case

The law provides, in relevant part:

 A person commits an offense if the person:

 (1) photographs or by videotape or other electronic means records . . . a visual image of another at a location that is not a bathroom or private dressing room: 

(A) without the other person’s consent; and

(B) with intent to arouse or gratify the sexual desire of any person.

Ronald Thompson was charged with twenty-six counts. Each count of the indictment alleges that appellant, “with intent to arouse or gratify the sexual desire of THE DEFENDANT, did by electronic means record another . . . at a location that was not a bathroom or private dressing room.”

We can all agree — creepy.

The Ruling

The first issue the court wrestled with was whether photography was conduct (subject to regulations) or speech protected by the First Amendment like other forms of art.  The court found that pictures, even bad ones, are expressive and therefore are subject to First Amendment scrutiny.   The court continued, “the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes” so the act of taking picture is also subject to First Amendment scrutiny.

The state reasoned, however, that the law regulates intent and therefore, even if considered speech, it can be regulated just like incitements to riot, threats or scams.  The court responded:

Sexual expression which is indecent but not obscene is protected by the First Amendment . . .  Of course, the statute at issue here does not require that the photographs or visual recordings be obscene, be child pornography, or even be depictions of nudity, nor does the statute require the intent to produce photographs or visual recordings of that nature. Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power.

The court then found the law “penalizes only a subset of non-consensual image and video producing activity—that which is done with the intent to arouse or gratify sexual desire” meaning it was a content-based regulation.  As I can hopefully teach my Media Law students (hint for the test), when there is a content-based law, it is subject to a strict scrutiny analysis which means a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest.  A regulation is “narrowly drawn” if it uses the least restrictive means of achieving the government interest.

Like most other laws subject to a strict scrutiny test, this one failed, too.  It was not narrowly drawn.

The Takeaway

Although well-intentioned, the law simply covered too much.  This law would allow a police officer to ask every photographer taking pictures of people in the public what their intent was.  If I was taking pictures of my kids at the park, the police could ask me why.  If I am doing it to show how nice my city is, I am OK.  If I am doing it because I am creepy, it is against the law.

As the court noted:

The statutory provision at issue is extremely broad, applying to any non-consensual photograph, occurring anywhere, as long as the actor has an intent to arouse or gratify sexual desire. This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street.

Having the police govern the intent of our photographs is not sustainable.

I am guessing our readers are not going to run out now and start taking creepy pictures because of this ruling.  But, it is comforting to know photographs are protected speech, the taking of photographs is subject to First Amendment analysis and the government does not have the right to ask me why I am taking pictures of people in public places.

With that said, we may not be thrilled this about this guy.  If he crosses the line, he could still get in trouble for child pornography, invasion of privacy, unauthorized use of likeness or other wrongs if he actually harmed any of the people he photographed or used them commercially.

Our Constitutional protections, however, often protect the people on the edges so the rest of us know we are secure.  Although the police may not be able to ask his intentions, if this guy is taping kids my kids at the park, I still can.

You can read the opinion here.

On Friday, the Supreme Court of Texas issued a 5-4 decision holding a plaintiff needs to establish jurisdiction over an anonymous blogger before a court will allow pre-suit discovery that would likely unmask the blogger’s identity.  Both the majority and dissenting opinions in In re John Doe a/k/a The Trooper are available here.  It will certainly complicate the process of suing anonymous online defamers.

An anonymous blogger who went by “the Trooper” went after Reynolds & Reynolds Co. and its chairman. As we often recommend, the the company sought a pre-suit deposition from Google to try and identify the blogger.  The application was filed in Harris County, where the chairman resided.

In Texas, Rule 202 allows for a presuit deposition to determine whether you want to investigate possible claims.  It is cheaper and more efficient than filing a lawsuit.   The application to do this must be filed in the “proper court.”  You have to serve the petition on the company you want the discovery from (in this case Google) and the party who is the subject of the possible suit (in this case the Trooper).  The company did just that.  Google was unopposed.  The Trooper fought the discovery on a John Doe basis and argued he was not subject to jurisdiction in Texas and therefore the request was not filed in the “proper court.”

Jurisdiction means the subject of the suit must have some connection to state where the lawsuit has been filed.  For example, if you’ve never been to North Dakota, it would be a violation of your due process rights to be dragged into a lawsuit there.  The blogger argued he has no connection to Texas other than the fact his blog is viewable in Texas.

The Majority

The trial court was going to allow the discovery, but the Texas Supreme Court reversed.  The majority wrote:

To allow discovery of a potential claim against a defendant over which the court would not have personal jurisdiction denies him the protection Texas procedure would otherwise afford.   . . . [A] defendant who files a special appearance in a suit is entitled to have the issue of personal jurisdiction heard and decided before any other matter.  . . .  To allow witnesses in a potential suit to be deposed more extensively than would be permitted if the suit were actually filed would circumvent the protections. . .”

The court continued:

The Trooper cannot ignore this Rule 202 proceeding without losing his claimed First Amendment right to anonymity. By ordering discovery from Google, the court has adjudicated that claim. He has thus been forced to litigate the merits of an important issue before a court that has not been shown to have personal jurisdiction over him.

The Dissent

The problem with the ruling is that it will make it very difficult to unmask people online when you do not know their identity.  If the anonymous blogger does not have to at least reveal their state of residence, where is a defamation victim to go?  Four justices of the all-Republican Supreme Court dissented because “the Court requires a premature and impossible showing, in the process allowing an alleged tortfeasor to hide behind his anonymity regardless of whether the First Amendment allows it.”

The dissent explained:

In today’s case, involving the permissible scope of pre-suit discovery in Texas, the Court holds that the applicable procedural rule requires that personal jurisdiction be established over an anticipated defendant—even when that defendant’s identity is withheld—before such discovery may be granted. And it does so despite the fact that it would be impossible for a court to make the required minimum-contacts determination with respect to a potential party who refuses to reveal the jurisdictional facts (such as identity and domicile) that form the basis for that decision. This effectively abolishes a cause of action for defamation against a person who claims anonymity, particularly when the defamation occurs online.

In the context of an actual lawsuit, as opposed to a petition for pre-suit discovery, a defendant who claims they are not subject to jurisdiction is still subject to the discovery process.  The plaintiff can send discovery forcing the defendant to identify all of the defendant’s contacts with Texas generally and with regard to the specific incident.  Yet, in this case, it appears the anonymous blogger simply provided an affidavit that he had no contacts with Texas and there was no opportunity to dig further.  The dissent recognized this conundrum.

[A] court cannot conduct a minimum-contacts analysis while wearing a blindfold; when a party chooses to remain anonymous, a court is powerless to evaluate his connection to the forum state. Several federal district courts have noted as much, in the context of copyright infringement cases, when denying motions to quash subpoenas issued to Internet service providers to ascertain the identity of anonymous defendants. 

My two cents

From just reading the opinions, it is hard to tell how much information, if any, the anonymous poster provided other than a statement that he did not have any connection with Texas.  It seems to me there are sufficient safeguards in place that require at least some connection with the State before the discovery would be allowed — the victim of the defamation was in Texas which, in some circumstances, can be enough to establish jurisdiction for the actual lawsuit.  As the dissent points out, there are already tests in place to make sure the plaintiff has a valid complaint before the courts will allow discovery about an anonymous speaker.

Without some relief, what is the victim to do?  Where does he go to get the information he needs? Or, does he have to file a suit and follow the more formal and expensive process?  The rules do not allow lawyers to file suits unless we have done a good faith investigation of the facts and law.  Hence, the reason for presuit discovery.

Alas, all is not necessarily lost.  As pointed out by Strasburger’s Debra L. Innocenti, victims can still use out-of-court cyber-sleuths to help identify the defamer.  We are staunch defenders of the First Amendment, but we have been around long enough to know there is abuse of the ease with which someone can superficially damage people anonymously on the Internet, whether it be defamation, a competitor or a jilted ex.  The court has now taken away a standard tactic that helps people get redress when warranted.

There has not been much activity on the blog because we have been engaged in a long copyright and misappropriation of trade secrets trial.  So, we share with you some of the articles we have been reading, but just haven’t had time to write about:

Bloggers entitled to same protections as journalists under the First Amendment.  The Ninth Circuit recently applied libel defense protections normally reserved to the “institutional press” to bloggers reasoning the First Amendment applies to all citizens and there has been a blurring of the lines between who and who is not a journalist.  You can read more about this important decision here.

We have our first Twibel verdict – no defamation in 140 characters.  In three hours, the jury returned a defense verdict saying Courtney Love did not libel her lawyers with a tweet that suggested her prior lawyers had been “bought off.”  The bad news is that during the trial Love stayed off of Twitter, and now, she is apparently back.  More here.

Yelp ordered to disclose identity of reviewers.  A court ordered Yelp to review the identify of seven “anonymous” reviewers who criticized a dry cleaning business in Virginia. The business claimed the reviews are fakes and do not match any of their records.  This is another example of how courts are trying to balance the interests of anonymous speech and a plaintiff’s right to combat defamatory speech.  More here.

Parents take to the court to combat cyberbullying.  Locally, there has been a lot of attention about a lawsuit filed by one set of parents against seven minors and their parents for libel and negligence.   More here.

Will there be more transparency regarding government requests for online data?   The Justice Department is relaxing the rules for technology companies like Google and Microsoft to disclose, in broad terms, the number of requests these companies receive from the government and the amount of data provided.  Tech companies have long reported the number or requests from state and non-national security related requests from the federal government, but this will be the first time they can release general information related to national security letters.  If the numbers are surprising, this could lead to even more push back against the government surveillance programs.  More here.

Supreme Court to consider online re-broadcasting case.  The U.S. Supreme Court will weigh in on the rights to re-transmit broadcast programs via the internet.  Aereo receives over the air broadcasts the old fashion way in a warehouse and then sends them to paid subscribers devices.  The broadcasters are arguing that Aereo is violating the “public performance” copyrights to the programming.   Aereo says what they are no different than the users receiving the digital signals on their own devices.  Both sides wanted guidance from the high court and this is one worth watching.  More here.

With the short Thanksgiving week, I thought we would touch on a few interesting stories developing over the last couple of weeks.

Photographer gets $1 million+ verdict from AFP and Getty for copied Twitpics

In my three part series on using images from the web for your news stories, we talked about the Morel v. Agence France-Press case.  Agence France-Press, the Washington Post and Getty used images of the Haitian earthquake put on Twitter by photographer Daniel Morel.  The Washington Post settled, but the case went to trial last week against AFP and Getty.  AFP thought they had permission from the photographer to use the images, but they did not get permission from the right person.

Previously, a judge rejected AFP’s argument that it could use the images because they were put up on Twitter. The Twitter terms of service did not provide that the photographer gave his rights in the images away or grant anyone else the right to use the images outside of Twitter.  In the trial, it turns out AFP did not follow their internal guidelines on the use of images or take immediate corrective action.  The jury awarded the upper end of the statutory damages.

If you have policies, follow them.  If you make a mistake, you fix it as quick as you can. You can read about the case here and here.

Engineering gift for girls’ video spreads on Facebook – lawsuit follows.

I have a daughter.  I liked this commercial.

http://www.youtube.com/watch?v=UFpe3Up9T_g

I assumed they had the Beastie Boys’ permission.  Apparently, they did not and the Beastie Boys sent a copyright cease and desist letter.  The people at Goldiebox fought back and filed a suit asking the court to declare the parties’ rights.   Is it a parody or do the Beastie Boys have to do this to make sure more people don’t use their songs in commercials?  You can read more about the case here with some legal analysis from the EFF here.  At least Goldiebox will get some more attention with the lawsuit at the beginning of the holiday shopping season.

Want to criticize me, it will cost you!

KlearGear’s terms of service state:

“In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.”

A Utah couple criticized KlearGear on RipOff Report.  Soon thereafter, KlearGear sent the couple a bill for $3,500.  KlearGear never sued, but did report the couple as delinquent to the credit reporting agencies.  We have talked about being proactive, but not too proactive, when it comes to online complaints.  Since the news of this broke, KlearGear has shut down its Facebook page and its Twitter feed to hide from the blow back.  You can read more here, here and here.  This is not the kind of press you want before the shopping season.

Update 11/27/13 –  a lawyer is now representing the couple and has sent a demand to KlearGear to remove the notation with the credit agencies or face a Fair Credit Reporting Act lawsuit.  Read about it here.

Reputable companies line up to support TheDirty.com

Finally, we update you on the Jones v. TheDirty case we have talked about before.  This is the suit by a former Cincinnati Bengals cheerleader against the website TheDirty.   A Kentucky judge allowed the case to proceed against the rumor and trash site despite Section 230 of the Communications Decency Act which normally provides immunity for website operators based on user generated content.  The jury awarded $380,000 and TheDirty.com appealed.

While some may believe the ends justified the means against this particular defendant, the refusal to dismiss this case flies in the face of almost every other Section 230 case.  In this case, the court wrote “the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie” shows that the site “specifically encouraged development of what is offensive about the content.”  TheDirty.com asks people to “submit dirt.” Their submission form has entries for the “dirt,” and provides a link to upload photographs. The court seized on the fact that in response to the post about Jones, the site operator wrote “I love how the Dirty Army has a war mentality.”  Thus, no dismissal by the judge.

Section 230 has its place.  Imagine if Facebook, Google, or YouTube could be sued or had to police all of the user generated content.  I don’t think those services would exist.  That’s why many of them have filed amicus briefs with the Sixth Court of Appeals urging the court to reverse the ruling and dismiss the claims.  You can read more here about how and why the likes of Amazon, Google, LinkedIn, Google and Microsoft are asking for the reversal.

 

Last week, the Supreme Court of Texas heard oral arguments on whether a party can use a pre-suit deposition to identify an anonymous blogger.  The petitioner tried to use a pre-suit subpoena to force Google to identify a blogger that constantly railed on how bad the company and its owner was.   The trial court allowed the discovery, the court of appeals affirmed the trial court’s decision and now the highest court in Texas will have to answer the question.

The case is In re John Doe a/k/a Trooper.  You can read the case summary here and the listen to the oral arguments here.  We have talked about how to unmask the anonymous online tormentor before, but this case will shed some light on some of the more practical applications.

Jurisdiction

While the issue of anonymity is complex enough, the case also asks “whether Texas court rules governing discovery before a lawsuit is filed means that the trial court must have ‘personal jurisdiction’ over the ‘John Doe’ defendant–that is, the authority to hear a case against a person only after he has been served with papers notifying him of a suit–before his identity may be discovered.”  Much of the argument focused on jurisdiction which is  less sexy, but an equally important issue.

In Texas, under Rule 202, you can ask for discovery without filing suit to investigate the possibility of a claim.  The company’s chairman lived here in Houston so the company sought to use Rule 202 to force Google to provide all information about the blogger.

The blogger filed documents that not only challenged the ability to unmask his identity, but challenged whether the Texas courts had any jurisdiction over him.  If you do not have sufficient contacts with a state, usually you cannot be sued in that state.   The anonymous blogger provided an affidavit claiming he did not live in Texas and did not have any contacts with Texas.  When there is an actual lawsuit with an identified target, normally you are allowed to use discovery to challenge the assertions.  If the person is not identified, challenging the assertion is next to impossible.

Then again, the purpose of pre-suit discovery is to determine whether you have a claim before you file suit.  If you cannot file suit against someone with no contacts with Texas, then you should not be able to use the Texas courts to get information you may not be able to obtain in other jurisdictions.  Other than the chairman of the company being in Houston, there was no other connection with the state.  Plus, the blogger suggested the court should order the disclosure of only the IP address which could be tracked to a physical location.

Anonymous Speech

There is little to no dispute that before a court requires the disclosure of an anonymous blogger, the person seeking the identity has to provide some basis to seek the identity.  If the speech is purely political and protected by the First Amendment, it would be difficult to unmask the blogger.  If it is commercial speech advertising a product, then there is little to no protections.

If the court gets over the jurisdictional hurdle, it will then have to decide what level of proof or pleadings does someone need to present before a court will order the identity to be disclosed.  There are three standards: (1) a good faith basis for a claim; (2) sufficient pleadings to survive a motion to dismiss that assumes every allegation is true; or (3) a prima fascie case that would survive a motion for summary judgment that requires the right allegations and some proof.

The blogger wants the court to require pleadings and proof.  The party seeking the information says the standard should be lower, but then says it can satisfy any one of the three levels.

It’s possible, the court could rule on the jurisdictional basis in a way that would allow it to punt on the anonymity issue.  As often as it comes up and is likely to come up again, it would be nice to have some guidance.  We’ll be keeping an eye on this case and report on it when the decision comes down.  A lot of times, it is obvious — like when the sheriff seeks to unmask someone critical of the sheriff’s actions.  That blogger will almost always be entitled to protection.  The person that criticizes the company down the street based on a financial transactions and accuses the owner of accounting fraud deserves a little closer scrutiny.

 

I don’t often make predictions on legal outcomes, so when I do and I get it right, it’s worth sharing.  In May, we talked about whether “liking” a candidate would constitute protected speech under the First Amendment.  A district judge in Virginia ruled it was not.  The Fourth Circuit Court of Appeals recently reversed in Bland v. Roberts.

In that case, a jailer in Virginia liked his boss’s opposition during a campaign for sheriff. The incumbent won and the plaintiff was fired. The sheriff said it was for competency issues, but the plaintiff said retaliation was the motivating factor for the termination.

I wrote back then that “it seems like a slam dunk case for our fired jailer,” before describing the district court’s dismissal based on the judge’s opinion that “liking” something on Facebook did not amount to a “substantive statement” worthy of protection.  Both the lunacy of the idea of liking a candidate on Facebook not being considered “substantive” enough to warrant protection and the questions asked during the appeal according to this Bloomberg report, I wrote, “I would put my money on a reversal.”

Winner, Winner Chicken Dinner! 

Reversing, the Fourth Circuit compared liking on Facebook to putting a campaign sign in your yard.  “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”

It is not likely your “like” will get you fired and set up a Supreme Court case. The lesson, however, is to be careful of making employment decisions based on what you see on Facebook.  The issue is more problematic for public employers, but as we have discussed before even non-union private employers need to make sure their social media policies and employment decisions do not upset the NLRB. ”Liking” a complaint from a co-worker about working conditions cannot be the basis of a termination.  In some states, it is illegal to fire someone for engaging in protected speech.  ”Liking” Coke when you work at Pepsi in an at will state, like Texas, can still probably get you fired.