Texas Supreme Court Opinions Firm Up Anti-SLAPP Rights For Online Journalists

April 28, 2016 | Insights

By Paul Watler

Online journalists and scholars from the Americas and around the globe recently gathered at the University of Texas at Austin to assess the state of internet-based journalism.

The keynote address of the 16th annual International Symposium on Online Journalism laid out the strategy of the New York Times to develop digital audiences through world-class journalism. And in a room full of innovators, the continuing need for advertising revenue to subsidize online news was a prominent topic.

For freedom of speech and the press to thrive in an online world, the First Amendment must continue as the unabated pillar of the right to robust debate on issues of public concern.

But the scoop of the day in the online news world may have occurred a few blocks away.

The Texas Supreme Court issued two opinions firming up the right of online journalists and news platforms to use the state’s anti-SLAPP law to fend off libel actions.

Both cases arose from a report on a political blog of an alleged heckling incident at a campaign rally for a candidate for re-election to the Texas House. It turned out that the alleged “heckler” was an officer of a West Texas school board who objected to the legislative candidate’s critique of “fiscally irresponsible” spending in the school district. The school trustee sued the online platform and a political blogger for libel, actions that ended up as companion cases in the Texas high court.

One decision turned on how the world-wide reach of online news affected the New York Times actual malice standard for public official libel plaintiffs. The other paved the way for online media to recover the full amount of attorney fees incurred in defending a libel action.

In Greer v. Abraham, 2016 WL 1514425 (Tex. Apr. 15, 2016), the court held the trustee-plaintiff to the demanding actual malice standard. The higher burden of proof applied because the plaintiff was a public official, even though the “internet article was unrelated to his conduct or duties as a [public school] trustee.”

The global audience that could potentially access the allegedly defamatory blog did not render the public official standard irrelevant since voters in the trustee’s district could also read the post. “As long as the circulation included the community in which the plaintiff is so well-known that the general public associates him with his official position,” the higher standard applied. The court also rejected the argument that the standard did not apply to a publication not expressly discussing the plaintiff’s official conduct or status. The actual malice standard protects “statements that relate to or touch on the person’s fitness for office,” especially where the reporting concerns possible criminal conduct, according to the court.

In Sullivan v. Abraham, 2016 WL 1513674, (Tex. Apr. 15, 2016), the court held that a libel defendant who succeeded on an anti-SLAPP act dismissal motion was entitled to “reasonable” attorney fees unreduced by considerations of “justice and equity,” a phrase appearing in the statutory fee provision. Delving into the rules of grammar and punctuation, the court determined that the “justice and equity” factor in the statute modified only litigation expenses, not attorney fees. If the legislature had meant otherwise, they would have an added a comma that the court was unwilling to read into the act. As a result, the court vacated a judgment awarding the defendant political blogger only a tenth of the lawyer fees he actually incurred.

For freedom of speech and the press to thrive in an online world, the First Amendment must continue as the unabated pillar of the right to robust debate on issues of public concern. More comprehensive progress toward First Amendment protection of the news media remains overdue from the Lone Star State’s highest court, but the pair of recent opinions gave online journalism conferees a reason to raise a stein of Shiner Bock.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.