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.