Texas Lawmaker Wants To Decide Who's A Real Journalist, Make It Easier To Sue Them

from the double-trouble dept

Because a buddy of his lost a defamation lawsuit, a Texas legislator has introduced a pair of bills targeting protected speech. Kelsey Jukam of Courthouse News has more details:

State Rep. Ken King, a gas and oil man from the small town of Canadian in the Panhandle, last week introduced House Bill 3387, which would make it easier for public officials to sue reporters for libel, and House Bill 3388, which undermines Texas’s shield law, which allows reporters to keep their records and sources confidential.

Both bills stem from an unsuccessful libel suit brought by a millionaire hedge fund trader, who also lives in Canadian.

The hedge fund trader is local hero/local litigant Salem Abraham, who filed two lawsuits against bloggers who both (erroneously) reported he had been thrown out of a campaign event by Governor Rick Perry. Both were losing efforts, with Abraham ultimately being held responsible for legal fees under Texas' declaratory judgments statute. It appears King is trying to hook his fellow Canadian (TX) resident up with additional lawsuit options as well as have the state government decide who is or isn't a journalist. According to King's proposed bill, real journalists shouldn't have any political affiliations.

HB 3388 would prohibit the shield law from applying to any reporter who has worked for or donated to political campaigns within five years, and to any reporter whose employer has worked for or donated to political campaigns in that time.

Proponents testified that it would prevent “political hacks” from gaming the system by claiming journalistic privilege in defamation litigation. They said the bills are not meant to harm “bona fide” reporters.

When legislators start questioning the bona fide-ness of journalists, it's usually because they've got political axes of their own to grind. The real/fake journalist line will be determined by prevailing political winds, as generated by the party in power. This gives the government the power to censor based on something the Supreme Court has determined to be an integral part of free speech: political contributions. How this bill will survive a constitutional challenge is left to King's (and Abraham's) imagination.

The other bill narrows the definition of "public figure" to make it easier for public figures to dodge the "malice" prong in defamation lawsuits. This was ultimately the undoing of Abraham's lawsuits. Abraham caught the bloggers in a lie, but was unable to prove the publication of the false statement was willfully malicious.

What the law would do is sneakily pernicious. The argument Abraham advanced was that he was well-known locally but not all over the world. Since the blog posts were ostensibly accessible to the entire world, Abraham felt his stature as a public figure should be negated since he wasn't actually world-famous. That argument ultimately failed, but that's what King's bill would institute in the state of Texas: a separate libel standard solely for internet posts, comments, etc.

A person is considered a public official for purposes of a defense to a libel claim only if the person is known as a public official in the community in which the damage to the person was proximately caused.

If the damage is "proximately caused" on the internet, the community is technically worldwide and local public officials won't have to meet the malice stipulation when litigating alleged defamation because they're not well-known everywhere the internet reaches.

Both bills are bad for the press and bad for Texans. First, it puts the government in charge of deciding who's a journalist. Second, it invites public figures to sue critics by lowering the standards they have to meet when litigating. If these pass, there will be a palpable chill in the air.

[D]onnis Baggett, executive vice president of the Texas Press Association, disagreed. He told the committee the bill would effectively crush political reporting in Texas, because most news outlets are owned by people or corporations who have been involved in politics in some way.

[...]

Stacy Allen, an attorney representing the Texas Association of Broadcasters, testified that the bill would be “seriously detrimental” to the state’s shield law, enacted in 2009, which he said is highly regarded and has been used as a model by other states.

Allen said the bill punishes journalists for exercising their First Amendment right to political speech and by narrowly defining who qualifies as a journalist.

Finally, the millionaire for whom the bills are being written was on hand to express his support. There's nothing quite like a plaintiff in two failed libel lawsuits defending two bad laws by citing nonexistent Constitutional rights.

“I was sanctioned for trying to defend my reputation, when everyone agrees I was lied about,” Abraham said. “It seems that everyone here knows about the First Amendment. There are other amendments to the Constitution and other rights in the bill of rights, one of which is defending your reputation.”

Yeah. That's called the First Amendment. Anyone can defend their reputation with more speech. Shutting down the speech of others because you don't like having to meet certain legal standards when suing isn't "defending your reputation." There is no right to successful lawsuits contained in the Bill of Rights. Hopefully, these bills will die the swift death they deserve.


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  • identicon
    Anonymous Coward, 24 Apr 2017 @ 10:46am

    Let me fix this for you...

    "When legislators start questioning the bona fide-ness of journalists, it's usually because they've got political axes of their own to grind."

    Should be...

    When legislators start questioning the bona fide-ness of journalists, it's ONLY because they've got political axes of their own to grind.

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 24 Apr 2017 @ 11:17am

    In That Case...

    HB 3388 would prohibit the shield law from applying to any reporter who has worked for or donated to political campaigns within five years, and to any reporter whose employer has worked for or donated to political campaigns in that time.

    If you're going to erect a firewall between journalists and public officials, then it should work both ways. Bar public officials from commenting on journalists.

    The reasons to do so - and unreasonableness - are about equal in both directions.

    reply to this | link to this | view in chronology ]

  • icon
    Oblate (profile), 24 Apr 2017 @ 11:37am

    A person is considered a public official for purposes of a defense to a libel claim only if the person is known as a public official in the community in which the damage to the person was proximately caused.

    IANAL, but would the libel claim then have to be filed in the 'community in which the damage to the person was proximately caused'? Good luck going to the internet to file this. Any place outside of Texas the defendant would be protected by relatively sane libel laws (i.e. not this proposed law). This doesn't leave many places where they could file such a claim and hope to prevail.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Apr 2017 @ 11:41am

      Re:

      Texas may be popular as a Patent Troll haven, as TD has pointed out many times, but it is about par for libel law in general and does not stand out in any way I can tell compared to other states.

      I think you may be confusing something here. Can you clarify what leads you to that claim?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 24 Apr 2017 @ 1:10pm

        Re: Re:

        It may not be overly different currently, but the law is attempting to change that by essentially removing the 'malice' requirement for libel charges involving a public figure.

        As I understand it under normal circumstances the bar to reach for a libel charge to stick is higher for 'public figures', such that it requires a showing that the person making the libelous speech be proven to have done so with actual malice. They knew what they were saying was wrong but said it anyway. This higher bar in in place to avoid the chilling of speech, as people might otherwise be afraid to say something 'unpleasant' about a public figure for fear of being hit with a libel suit to shut them up.

        What the law is attempting to do is make it so that unless a public figure is known world-wide(because that's the reach of the 'community' known as the internet), then they don't qualify as a public figure, and as such the bar for a libel lawsuit is lowered such that they don't need to show that the person knew what they were saying was wrong, simply saying it is enough, so long as the statement was made online.

        reply to this | link to this | view in chronology ]

        • identicon
          Wendy Cockcroft, 25 Apr 2017 @ 7:38am

          Re: Re: Re:

          I've never had cause to be thankful for Citizens United before but I've got to say I find it hard to agree that people have a RIGHT to tell lies.

          Actual malice is hard to prove but knowingly lying is not, is it?

          There's also the firehose V garden hose problem where counter-speech is concerned. See Gersh V Anglin for details. I've taken a look at this here: http://on-t-internet.blogspot.co.uk/2017/04/can-speech-ever-really-be-free-five.html

          I don't think you can dismiss abusive speech as a problem with "But counter-speech is an option." For the rich public figure, perhaps, but what about those of us who aren't massively wealthy? We need a proper debate about this.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Apr 2017 @ 12:21pm

    "Texas Lawmaker Wants To Decide Who's A Real Journalist"

    I would like to decide who is a real politician.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 25 Apr 2017 @ 5:44am

      Re:

      So they'd have the rights of a state legislator when inside the state capitol and in their home district, but outside those places they'd be private citizens with no special privileges? Sounds good to me.

      reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 24 Apr 2017 @ 12:54pm

    Seriously? Citing one of the most notoriously wrongheaded Supreme Court rulings in the Court's entire history to back up your point?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Apr 2017 @ 2:17pm

      Re:

      If he were arguing ethics rather than law, you might have a point. The reality is that Citizens United is decided caselaw regardless of whether it's a terrible ruling (which it was). The reality of its current application is what's relevant here.

      reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 24 Apr 2017 @ 1:13pm

    Silver lining

    On the plus side, if it passes, I see Fox News being the first target. They're only looking at it from their side and forgetting there's another side who can use the law as a weapon as well. :D

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Apr 2017 @ 2:20pm

      Re: Silver lining

      Fox News is a bigger target, but the easier targets will be Breitbart and Info Wars. Fox News sometimes reports the truth and then always editorializes to make it sound bad/fit within their predetermined perspective. Breitbart and Info Wars have peddled in demonstrably worse fake news, such as the PizzaGate story.

      reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 24 Apr 2017 @ 4:08pm

        Re: Re: Silver lining

        There's a relationship there. Sites like WorldNetDaily, InfoWars and Breitbart invent stories that Fox News would NEVER stoop to inventing. But which Fox News will then cheerfully report on all day, every day, as "this is what people are saying."

        reply to this | link to this | view in chronology ]

  • icon
    David (profile), 24 Apr 2017 @ 1:40pm

    Attack from TEXAS!

    Texas is such an inspiration. One can imagine the fun they would have with a secession vote. Or pray.

    Also, every time I hear *in Texas* this runs through my head:

    Billy Sol Estes we're proud of you, boy.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 24 Apr 2017 @ 1:59pm

    So that's got to be Streisand taken to a whole new level. I mean, why take down via lawsuits when I can try to take down via new laws???

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 24 Apr 2017 @ 2:34pm

    Politics

    Journalists can't have political opinions, but you're allowed to buy a newspaper and put any slant you want on it?
    Sure. Makes sense.

    reply to this | link to this | view in chronology ]


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