On Aug. 29, the Supreme Court of Texas made a significant ruling in an internet defamation case. In Kinney v. Barnes, the court held that authors of defamatory online posts can be required to remove the posts. However, a permanent injunction restricting future postings of the same or similar statements is an unconstitutional prior restraint.
In this case, the former employer of legal recruiter Robert Kinney accused him of being involved in a kickback scheme. Kinney, who left BCG Attorney Search to start his own company, sought a permanent injunction that would require Andrew Barnes, BCG’s president, to 1) remove the alleged defamation from JDJournal.com and Employmentcrossing.com, and 2) request that any third party publishers of the same or similar statements remove them as well.
Kinney’s requests, according to the court’s opinion, did not “prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected in the context in which it was made.” Nevertheless, an injunction prohibiting the publication of future defamatory remarks was found to be overbroad, threatening to chill speech.
“[T]he same statement made at a different time and in a different context may no longer be actionable,” Judge Debra Lehrmann wrote. “Untrue statements may later become true; unprivileged statements may later become privileges.”
In sum, the Supreme Court of Texas has ruled that requesting removal of speech that has been ruled defamatory is not an unfair restraint on speech, whereas an injunction curbing similar speech in the future is. Prior Texas cases have held that temporary injunctions prohibiting further defamation are unconstitutional prior restraints.
First Amendment advocates should be pleased that Texas did not grant Kinney’s request for a permanent injunction restricting future speech. Nevertheless, this is largely a “win” for those in Texas who have been (or may in the future be) harmed by defamatory content published online.
Defamation and online reputation attacks are widespread on the internet, and this will continue to be the case until current laws and website policies are reformed.
Individuals and businesses are regularly harmed online and left with little or no remedy. Prior to this ruling, Texans’ only remedy was potential monetary damages, but damages are often hard to prove. This ruling (and similar ones in other states) is a step in the right direction.
For more on navigating internet defamation cases in Texas, here is a guest post in Texas Lawyer magazine from June: “Five Things to Consider Before Filing an Internet Defamation Claim” (subscription may be required).