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Julie Hilden

A Texas Case Asks Whether Bloggers Enjoy Journalists' Right to Early Appeals


Wednesday, August 5, 2009

Earlier this summer, a Texas Court of Appeals issued an opinion addressing a question that is likely to be of very significant importance in the coming years: Should the law treat bloggers the same way it treats traditional journalists?

In this column, I'll analyze the ruling. I'll also suggest that traditional journalists do not exclusively deserve special protections such as the right to interlocutory appeal. Rather, such protections should be available to all online and offline writers.

The Ruling on the Interlocutory Appeal, and the Ruling on the Merits

The Texas appeal, Kaufman v. Islamic Society, pitted writer Joe Kaufman against one subset of a larger set of Islamic groups that had co-sponsored a "Muslim Family Day" at an Arlington, Texas "Six Flags" amusement park. The suit alleged that Kaufman had defamed the plaintiffs in a highly critical piece he wrote about the event for the website of Front Page Magazine.

Kaufman sought summary judgment at the trial court level, and lost. He then tried to appeal. However, the plaintiffs argued both that Kaufman's appeal lacked merit, and that he was not entitled to file it yet.

In particular, the plaintiffs contended that Kaufman did not fall within a special statute allowing journalists to file interlocutory appeals – appeals that occur mid-case. Interlocutory appeals are generally rare and disfavored, because of the problems and delays that occur when cases ping-pong back and forth between trial and appellate courts. The statute carved out a special exception.

The appeals court ruled for Kaufman on both points, holding both that he was entitled to an interlocutory appeal, and that he was entitled to summary judgment on the merits of his defense. However, my focus here is on the Texas court's ruling allowing an interlocutory appeal on the ground that Kaufman counted as a journalist, even though his work appeared online.

The Reason Kaufman Was Granted An Interlocutory Appeal

Regarding the interlocutory appeal issue, the Texas appeals court cited a specific state statute that allowed such an appeal to be filed in this instance. The statute, by its terms, is triggered by the denial of a motion for summary judgment that is partially- or wholly-based upon a free-speech-based claim or defense. Moreover, that claim or defense must be brought by "a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media."

The Texas appeals court held that the statute could apply to certain writings appearing on the Internet, and that it applied to Kaufman's writings, specifically. It also held that a single test for whether the statute applied should be used, whether the writings at issue appeared on the Internet or in more traditional media.

That test, the court explained, looks to "circumstances relating to the character and text of the communication itself, its editorial process, [and] its volume of dissemination." It also looks to some characteristics of the communicator, such as his or her "extrinsic notoriety unconnected to the communication," and any "compensation for or professional relationship to making the communication." Finally, the test looks to "other relevant circumstances as the facts may dictate."

The court found that under the circumstances, Kaufman fulfilled the statute's test. It noted that he had a past journalistic background, and that he possessed "notoriety outside of the parameters of the article and graphic at issue." Moreover, it added that Front Page Magazine had a "broad readership" and existed "as a news/commentary medium that is independent from Kaufman's articles."

In This Context, We Need to Erase the Legal Blogger/Journalist Divide

The court's result was plainly right: Kaufman should count as a journalist. But its reasoning is disturbing in several respects.

As with all multi-factor tests, it is a little cloudy which factors are doing the most work here, but some of the factors arguably should not be doing any work at all – for they are counterproductive and/or they misunderstand the form that modern journalism, especially online journalism, is taking.

First, why should a journalist have to be notorious, or have a prior background in journalism, to fall within the statute's protections? Both factors unfairly disfavor journalists who are just starting out -- the very kind who might need interlocutory appeals the most, because they may not yet have heavy-hitting institutions to back them financially.

Second, and by similar logic, why should Front Page Magazine's broad readership matter? Again, this rule disfavors new entrants to the writing scene, and it also disfavors edgier journalistic outlets, and those that cater to niche markets or small audiences.

Combined with the track-record factor, the broad-readership factor truly puts in jeopardy the new journalist with original and offbeat things to say, whose audience may be small at first, but may grow. It's as if this test had specifically taken aim at Chris Anderson's theory of the "long tail" – recognizing the exciting ability of the Internet to cater to smaller markets for writing, among other things.

Finally, there is the factor, noted by the court, that Front Page Magazine didn't only publish Kaufman's articles online, but also others' as well. This factor clearly takes direct aim at blogs that feature the writings of only one author, but why? Can't a solo blogger ever count as a journalist? Isn't it too late in the day to say "No" when so much of the coverage of the protest and uprising in Iran came from citizens' solo Twitter postings?

Relatedly, too, the court's looking to the presence of compensation disrespects and disfavors the work of the many genuine journalists who choose to – or in the recession, have no choice but to -- write for free. Again, young people are especially hurt; many may take unpaid jobs to create clips (in the offline world) or postings that they hope will get them paid jobs in the future.

In sum, this multi-factor test is a disaster – excluding at least as much genuine journalism as it excludes, and freezing out the very journalists who need its protection most. The test needs to be junked.

Granted, the fault here does not lie entirely with the Texas court of appeals, which did make clear that it was seeking to interpret legislative intent. But surely the court of appeals could have used factors, in its test, that are less tone-deaf to Internet realities.

Ultimately, a new interlocutory-appeal standard, in this area, may need to come from the legislature. But what should the standard be?

I think the best answer is for the legislature to adopt a simple, bright-line standard granting interlocutory appeals in all cases when genuine First Amendment claims or defenses are raised. Cases where free speech is targeted risk having a greater chilling effect on free speech, the longer they drag on, and the more costly they become.

Conversely, a simple rule allowing interlocutory appeals in this limited category of cases could go a long way toward ensuring that free speech is truly free. Had Joe Kaufman not enjoyed the right to an interlocutory appeal, then he (or the magazine, or its website) might have had to pay for a full trial – only to eventually learn that, in the view of the appeals court, his adversaries had no case.

It's worth having some early appeals occur, in order to ensure that free speech, for some, does not carry a price tag in the hundreds of thousands of dollars – the likely cost of a trial. And it's worth it whether the speaker is a Pulitzer-Prize winner, or a kid in high school trying out his or her constitutional rights for the first time.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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