Islamic Society of Arlington Texas, Inc. v. Joe Kaufman, No. 09-0699 (DB)

This pending petition involves a defamation claim brought against an author whose work appeared on an internet site.

The substantive defamation question is probably not as interesting as the threshold question of whether this defendant was entitled to an immediate, interlocutory appeal of the denial of his summary judgment motion.

Under Texas law, very few trial court actions can trigger an interlocutory appeal. One of those is a special provision for a class of defamation claims, which is triggered when the trial court:

denies a motion for summary judgment that is based
in whole or in part upon a claim against or defense by a member of
the electronic or print media, acting in such capacity, or a person
whose communication appears in or is published by the electronic or
print media, arising under the free speech or free press clause of
the First Amendment to the United States Constitution, or Article
I, Section 8, of the Texas Constitution, or Chapter 73; (( See Tex. Civ. Prac. & Rem. Code §51.014(a)(6). ))

The plaintiffs in this case argued that Kaufman did not qualify as a “member of the electronic or print media” because of the nature of the website on which he published his work.

The Second Court of Appeals disagreed in this opinion, making clear that they were not announcing a bright-line rule. The Court held that it had jurisdiction over this appeal because of the particular facts about this author and this website. It then reversed the trial court, rendering judgment for the defendant.

Now the plaintiffs have filed a petition with the Texas Supreme Court. No response has yet been filed or requested. (The current docket status and a few other articles are linked here).

Hat tip: The procedural question in this case originally came to my attention through the post “Texas Islamic Groups Argue That Internet Speech Should Be Less Protected Than Print, Radio, or Television Speech” on the Volokh Conspiracy, and I made a note to follow the case.