February 6, 2014 | By Andrew Crocker

EFF and Scholars Tell the Texas Supreme Court: No Second Class Status for the First Amendment Online

Free speech is equally important whether it’s shouted in a town square or posted to a personal website. The Supreme Court made that clear way back in 1997 in Reno v. ACLU, but it bears repeating as the Internet matures. Ensuring that online speech isn’t relegated to second-class status when it comes to the First Amendment is at the heart of two amicus briefs just submitted on behalf of EFF and the rock star First Amendment scholars Erwin Chemerinsky and Lyrissa Lidsky in a pair of cases currently before the Texas Supreme Court.

The two cases, Burbage v. Burbage and Kinney v. Barnes, are suits for defamation. Burbage involves several statements made in person and online by the defendant Chad Burbage about his brother Kirk, accusing Kirk of committing elder abuse in the process of inheriting the family funeral home business and other property “through untoward means.” At trial, a jury determined several of Chad’s statements were defamatory. In Kinney, the defendant Barnes, who runs an attorney recruiting company, posted an allegedly defamatory statement on two personal websites, claiming that Kinney, an ex-employee, had tried to bribe a law firm to hire one of his candidates.

The Texas Supreme Court is considering the same issue in both cases: Once a court has found that the defendant in a defamation suit has in fact said something defamatory about the plaintiff, can it prohibit the defendant from ever saying the statement again in the future? Or, if the defamatory statement was posted on a personal blog, can the court require the defendant to take it down and keep it down forever? These are called permanent injunctions and, as we explain in our briefs, they are not allowed in defamation cases offline and so should not be allowed in those cases online. Following the Supreme Court’s lead in Reno, we argue that the Texas court should not adopt an “Internet-specific” rule allowing permanent injunctions. “If anything, the particular properties of the Internet that allow for the rapid flow of information counsel against allowing permanent injunctions in defamation cases.”

The Texas Supreme Court is expected to rule in Burbage and Kinney soon. A big thanks to Marc Fuller and Tom Leatherbury at Vinson & Elkins for helping with the brief and acting as local counsel.

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