Court Hears Arguments in Online Defamation Case

*Correction appended

Arguing that Texas law is outdated when it comes to injunctions on defamatory statements, an attorney for an Austin businessman told the Texas Supreme Court on Thursday that it should let critical remarks about the businessman be removed from a former employer's online post.

But an attorney for the employer told the court that forcing the removal of the remarks could set a “dangerous precedent” for limiting individual freedom of speech.

The case could have far-reaching effects on freedom of speech on the internet as the highest civil court in the state considers whether Texas courts can force individuals to remove remarks from the internet if they are found to be false or defamatory. The Supreme Court is expected to release a decision in the coming months.

Robert Kinney says that his former employer, Andrew Harrison Barnes, defamed him in an online post published by JD Journal, a legal publication for which Barnes is an officer. The post alleged that Kinney organized a kickback and bribery scheme. A previous ruling did not allow for the remarks to be removed.

“Most people would be astonished to learn that they can be defamed online, bring a lawsuit and win their case but that the judge is then powerless to do anything about it and the information can be maintained on the internet,” Kinney’s attorney, Martin Siegel, said during Thursday's hearing.

Siegel’s main argument was that the internet has created new forms of speech and that the case calls for the re-examination of Texas common law, which indicates that injunctions cannot be used to redress defamation.

Kinney previously worked for a California recruiting firm, BCG Attorney Search, until 2004, when he established his own firm in Austin. Barnes says Kinney left because he was fired. 

In the online post, Kinney was accused of “orchestrating 'an unethical kickback scheme’” and bribing an associate at a law firm to hire one of his candidates, according to legal briefs in the case.

Kinney in turn sued Barnes after he wrote about the case on a legal news blog and an employment search website — both of which he owns — alleging that Barnes’ statements were false and defamatory and asked the court to order them removed.

A Travis County trial court first dismissed Kinney's request for the remarks to be removed, ruling that removing the content was a prior restraint on speech. The 3rd Court of Appeals upheld the dismissal in 2012. 

The Texas Supreme Court is set to consider whether the Texas Constitution's standards are stricter than the First Amendment and prohibit courts from forcing individuals to remove false statements posted on the internet. 

During the hearing, Barnes’ attorney, Anthony Ricciardelli, affirmed his client's position that the Texas Constitution grants individuals the right to make false and defamatory statements after being questioned by Texas Supreme Court Justice Jeffrey S. Boyd.

“I know that’s a difficult position to hold. That’s a difficult thing to say, and I know this court doesn’t want to say that but the opportunity to restrict some speech just opens the door to restrict more speech,” Ricciardelli said.

Citing previous court cases in which the Texas Supreme Court had ruled injunctions were impermissible in cases of defamation, Ricciardelli mainly argued that if the court ruled that the remarks be removed, it could create a precedent of “prior restraint” on speech.

“This is fundamentally a free speech case,” Ricciardelli said, adding that the court’s reversal of lower courts’ ruling would “lead to a slippery slope” that could further limit freedom of speech.

Siegel countered by saying that the requested injunction is a “remedial action” to remove remarks that have already been found to be defamatory.

Boyd and Justice Eva Guzman questioned both parties on how to balance interests between the inability to obtain an injunction to remove content from the internet in the current defamation case and other cases of teen bullying and hate crimes.

Siegel cited the balance as part his argument that the broad scope of the internet and the rise of cyber-bullying calls for a change in Texas law, while Ricciardelli argued that changes to the Texas Constitution in response to evolving forms of speech should be carried out through a constitutional amendment.

In his response to Ricciardelli’s argument, Siegel closed the hearing by indicating that the court could create a precedent of allowing narrow injunctions to remove false and damaging remarks from the internet, after they have found to be defamatory, through “case-by-case consideration.”

Kinney, who was present at the hearings, said he hoped to bring Texas law “into the modern era” when it comes to online defamation. Barnes, who is based in California, was not present at the hearings.

*Editor's Note: An earlier version of this story said a jury found Barnes' remarks to be defamatory in a Travis County trial court. The remarks were not found to be defamatory as the case was dismissed. This story has also been updated to reflect Barnes' assertion that Kinney was fired from Barnes' firm.